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EXHIBIT 10.53
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CREDIT AGREEMENT
dated as of December 22, 1998,
by and among
KNOLOGY HOLDINGS, INC.,
as Guarantor,
certain Subsidiaries of the Guarantor
and any Additional Borrower Party hereto
as Borrowers,
the Lenders referred to herein,
and
FIRST UNION NATIONAL BANK,
as Administrative Agent
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS.........................................................................................1
SECTION 1.1 Definitions...................................................................................1
SECTION 1.2 General......................................................................................17
SECTION 1.3 Other Definitions and Provisions.............................................................17
ARTICLE II CREDIT FACILITY....................................................................................17
SECTION 2.1 Loans........................................................................................17
SECTION 2.2 Procedure for Advances of Loans..............................................................18
SECTION 2.3 Repayment of Loans...........................................................................19
SECTION 2.4 Notes........................................................................................19
SECTION 2.5 Permanent Reduction of the Aggregate Commitment..............................................19
SECTION 2.6 Termination of Credit Facility...............................................................20
SECTION 2.7 Increase in Commitments......................................................................21
SECTION 2.8 Use of Proceeds..............................................................................21
SECTION 2.9 Security.....................................................................................21
ARTICLE III LETTER OF CREDIT FACILITY..........................................................................21
SECTION 3.1 L/C Commitment...............................................................................22
SECTION 3.2 Procedure for Issuance of Letters of Credit..................................................22
SECTION 3.3 Commissions and Other Charges................................................................22
SECTION 3.4 L/C Participations...........................................................................23
SECTION 3.5 Reimbursement Obligation of the Borrowers....................................................24
SECTION 3.6 Obligations Absolute.........................................................................24
SECTION 3.7 Effect of Application........................................................................25
ARTICLE IV GENERAL LOAN PROVISIONS............................................................................25
SECTION 4.1 Interest.....................................................................................25
SECTION 4.2 Notice and Manner of Conversion or Continuation of Loans.....................................27
SECTION 4.3 Fees.........................................................................................28
SECTION 4.4 Manner of Payment............................................................................29
SECTION 4.5 Crediting of Payments and Proceeds...........................................................29
SECTION 4.6 Adjustments..................................................................................29
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption
by the Administrative Agent..................................................................30
SECTION 4.8 Changed Circumstances........................................................................31
SECTION 4.9 Indemnity....................................................................................32
SECTION 4.10 Capital Requirements.........................................................................33
SECTION 4.11 Taxes........................................................................................33
SECTION 4.12 Change in Lending Office.....................................................................35
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING.......................................................35
SECTION 5.1 Closing......................................................................................35
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit.......................................35
SECTION 5.3 Conditions to Initial Loan...................................................................40
SECTION 5.4 Conditions to All Extensions of Credit.......................................................40
ARTICLE VI REPRESENTATIONS AND WARRANTIES.....................................................................41
SECTION 6.1 Representations and Warranties...............................................................41
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SECTION 6.2 Representations and Warranties of the Guarantor..............................................50
SECTION 6.3 Survival of Representations and Warranties, Etc..............................................50
ARTICLE VII FINANCIAL INFORMATION AND NOTICES..................................................................50
SECTION 7.1 Financial Statements and Projections.........................................................51
SECTION 7.2 Officer's Compliance Certificate.............................................................51
SECTION 7.3 Accountants' Certificate.....................................................................52
SECTION 7.4 Other Reports................................................................................52
SECTION 7.5 Notice of Litigation and Other Matters.......................................................52
SECTION 7.6 Accuracy of Information......................................................................53
ARTICLE VIII AFFIRMATIVE COVENANTS..............................................................................53
SECTION 8.1 Preservation of Corporate Existence and Related Matters......................................53
SECTION 8.2 Maintenance of Property......................................................................54
SECTION 8.3 Insurance....................................................................................54
SECTION 8.4 Accounting Methods and Financial Records.....................................................54
SECTION 8.5 Payment and Performance of Obligations.......................................................54
SECTION 8.6 Compliance With Laws and Approvals...........................................................54
SECTION 8.7 Environmental Laws...........................................................................54
SECTION 8.8 Compliance with ERISA........................................................................55
SECTION 8.9 Compliance With Agreements...................................................................55
SECTION 8.10 Conduct of Business..........................................................................55
SECTION 8.11 Visits and Inspections.......................................................................55
SECTION 8.12 Additional Subsidiaries; Additional Collateral; New Equity...................................55
SECTION 8.13 KNOLOGY of Georgia...........................................................................57
SECTION 8.14 Year 2000 Compatibility......................................................................57
SECTION 8.15 Further Assurances...........................................................................58
ARTICLE IX FINANCIAL COVENANTS................................................................................58
SECTION 9.1 Maximum Consolidated Senior Funded Debt to Consolidated Adjusted Cash
Flow Ratio...................................................................................58
SECTION 9.2 Minimum Consolidated Adjusted Cash Flow to Cash Interest Expense Ratio.......................58
SECTION 9.3 Maximum Consolidated Senior Funded Debt to Contributed Capital Ratio.........................58
SECTION 9.4 Borrower Performance Tests...................................................................58
ARTICLE X NEGATIVE COVENANTS.................................................................................59
SECTION 10.1 Limitations on Debt..........................................................................60
SECTION 10.2 Limitations on Guaranty Obligations..........................................................61
SECTION 10.3 Limitations on Liens.........................................................................61
SECTION 10.4 Limitations on Loans, Advances, Investments and Acquisitions.................................63
SECTION 10.5 Limitations on Mergers and Liquidation.......................................................65
SECTION 10.6 Limitations on Sale of Assets................................................................65
SECTION 10.7 Limitations on Dividends and Distributions...................................................66
SECTION 10.8 Limitations on Guarantor.....................................................................67
SECTION 10.9 Limitations on Exchange and Issuance of Capital Stock........................................68
SECTION 10.10 Transactions with Affiliates other than Loan Parties.........................................68
SECTION 10.11 Certain Accounting Changes...................................................................68
SECTION 10.12 Amendments; Payments and Prepayments of Subordinated Debt or Senior
Discount Notes...............................................................................68
SECTION 10.13 Restrictive Agreements.......................................................................69
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ARTICLE XI UNCONDITIONAL GUARANTY.............................................................................69
SECTION 11.1 Guaranty of Obligations......................................................................69
SECTION 11.2 Nature of Guaranty...........................................................................69
SECTION 11.3 Demand by the Administrative Agent...........................................................70
SECTION 11.4 Waivers......................................................................................70
SECTION 11.5 Modification of Loan Documents etc...........................................................71
SECTION 11.6 Reinstatement................................................................................71
SECTION 11.7 No Subrogation...............................................................................72
ARTICLE XII DEFAULT AND REMEDIES...............................................................................72
SECTION 12.1 Events of Default............................................................................72
SECTION 12.2 Remedies.....................................................................................75
SECTION 12.3 Rights and Remedies Cumulative; Non-Waiver; etc..............................................76
ARTICLE XIII THE ADMINISTRATIVE AGENT...........................................................................76
SECTION 13.1 Appointment..................................................................................76
SECTION 13.2 Delegation of Duties.........................................................................76
SECTION 13.3 Exculpatory Provisions.......................................................................77
SECTION 13.4 Reliance by the Administrative Agent.........................................................77
SECTION 13.5 Notice of Default............................................................................77
SECTION 13.6 Non-Reliance on the Administrative Agent and Other Lenders...................................78
SECTION 13.7 Indemnification..............................................................................78
SECTION 13.8 The Administrative Agent in Its Individual Capacity..........................................79
SECTION 13.9 Resignation of the Administrative Agent; Successor Administrative Agent......................79
ARTICLE XIV MISCELLANEOUS......................................................................................79
SECTION 14.1 Notices......................................................................................79
SECTION 14.2 Expenses; Indemnity..........................................................................81
SECTION 14.3 Set-off......................................................................................81
SECTION 14.4 Governing Law................................................................................82
SECTION 14.5 Consent to Jurisdiction......................................................................82
SECTION 14.6 Binding Arbitration; Waiver of Jury Trial....................................................82
SECTION 14.7 Reversal of Payments.........................................................................83
SECTION 14.8 Injunctive Relief; Punitive Damages..........................................................83
SECTION 14.9 Accounting Matters...........................................................................84
SECTION 14.10 Successors and Assigns; Participations.......................................................84
SECTION 14.11 Amendments, Waivers and Consents.............................................................87
SECTION 14.12 Performance of Duties........................................................................88
SECTION 14.13 All Powers Coupled with Interest.............................................................88
SECTION 14.14 Survival of Indemnities......................................................................88
SECTION 14.15 Titles and Captions..........................................................................88
SECTION 14.16 Severability of Provisions...................................................................88
SECTION 14.17 Counterparts.................................................................................88
SECTION 14.18 Guarantor as Agent for Borrowers.............................................................88
SECTION 14.19 Term of Agreement............................................................................88
SECTION 14.20 Inconsistencies with Other Documents; Independent Effect of Covenants........................89
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EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Prepayment
Exhibit D - Form of Notice of Conversion/Continuation
Exhibit E - Form of Officer's Compliance Certificate
Exhibit F - Form of Assignment and Acceptance
Exhibit G - Form of Notice of Account Designation
Exhibit H - Form of Collateral Assignment
Exhibit I - Form of Pledge Agreement
Exhibit J - Form of Security Agreement
Exhibit K-1 - Form of Commitment Increase Supplement
Exhibit K-2 - Form of New Lender Supplement
SCHEDULES
Schedule 1.1(a) - Lenders and Commitments
Schedule 1.1(b) - Designated Borrowers
Schedule 2.5(b) - Affiliated Parties
Schedule 5.2(d) - Required Consents
Schedule 6.1(a) - Jurisdictions of Organization and
Qualification
Schedule 6.1(b) - Subsidiaries and Capitalization
Schedule 6.1(e) - Compliance with Laws;
Governmental Approvals
Schedule 6.1(h) - Environmental Reports
Schedule 6.1(i) - ERISA Plans
Schedule 6.1(l) - Material Contracts
Schedule 6.1(m) - Labor and Collective Bargaining Agreements
Schedule 6.1(r) - Real Property Matters
Schedule 6.1(t) - Debt and Guaranty Obligations; Subordinated Debt
Schedule 6.1(u) - Litigation
Schedule 6.1(w)(i) - Interactive Broadband Networks
Schedule 6.1(w)(ii) - CATV Franchises
Schedule 6.1(w)(iii) - Local Service Communications Licenses/PUC Authorizations
Schedule 6.1(w)(iv) - Long Distance Service Communications Licenses/PUC
Authorizations
Schedule 6.1(w)(v) - Other Communications Licenses/PUC Authorizations
Schedule 6.1(w)(vi) - Network Agreements
Schedule 6.1(w)(x) - Notices of Rate Regulation
Schedule 10.3 - Existing Liens
Schedule 10.4 - Existing Loans, Advances and Investments
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CREDIT AGREEMENT, dated as of the 22nd day of December, 1998, by and
among KNOLOGY HOLDINGS, INC., a Delaware corporation, as guarantor (the
"Guarantor"), certain Subsidiaries of the Guarantor identified on the signature
pages hereto (excluding KNOLOGY of Georgia, Inc.), as borrowers (collectively,
the "Initial Borrowers") and any Additional Borrowers who may become party to
this Agreement, collectively with the Initial Borrowers, the "Borrowers"),
KNOLOGY of Georgia, Inc., the Lenders who are or may become a party to this
Agreement, and FIRST UNION NATIONAL BANK, as Administrative Agent for the
Lenders.
STATEMENT OF PURPOSE
The Borrowers have requested, and the Lenders have agreed, to extend
certain credit facilities to the Borrowers on the terms and conditions of this
Agreement. The Guarantor, as either direct or indirect owner of one hundred
percent (100%) of each of the Borrowers, will benefit directly and indirectly
from the extension of such credit facilities to the Borrowers. As a condition
to making any extensions of credit hereunder, the Lenders have required, and
the Guarantor has agreed, to execute this Agreement as Guarantor.
The parties hereto acknowledge that although this Credit Agreement is
entered into pursuant to a commitment letter dated as of October 16, 1998 (the
"Commitment Letter") between the Guarantor, First Union and First Union Capital
Markets, a division of Wheat First Securities, Inc., this is the Credit
Agreement contemplated by the expired commitment letters dated as of September
29, 1997 between the same entities, which such letters expired prior to and
were superseded and replaced by the Commitment Letter.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"Additional Borrower" means each Subsidiary of the Guarantor (as
defined below) which hereafter becomes a Borrower pursuant to Section 8.12(a).
"Affiliate" means, with respect to any Person, any other Person (other
than a Subsidiary) which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person or any of its Subsidiaries. The term "control" means (a) the
power to vote five percent (5%) or more of the securities or other equity
interests of a Person having ordinary voting power, or (b) the possession,
directly or indirectly, of any other power to direct or cause the direction of
the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
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"Administrative Agent" means First Union in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 13.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
14.1.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or modified at any time or
from time to time pursuant to the terms hereof. On the Closing Date, the
Aggregate Commitment shall be Fifty Million Dollars ($50,000,000).
"Agreement" means this Credit Agreement, as amended, restated or
otherwise modified from time to time.
"Applicable Law" means all applicable provisions of constitutions,
statutes, laws, rules, treaties, regulations and orders of all Governmental
Authorities and all orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in Section
4.1(c).
"Application" means an application, in the form specified by the
Issuing Lender from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 14.10(b)(iii).
"Available Commitment" means, as to any Lender at any time, an amount
equal to (a) such Lender's Commitment less (b) such Lender's Extensions of
Credit.
"Base Rate" means, at any time, the higher of (a) the Prime Rate or
(b) the Federal Funds Rate plus 1/2 of 1%; each change in the Base Rate shall
take effect simultaneously with the corresponding change or changes in the
Prime Rate or the Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate based upon
the Base Rate as provided in Section 4.1(a).
"Benefited Lender" shall have the meaning assigned thereto in Section
4.6.
"Borrowers" means the collective reference to the Initial Borrowers
and any other party joining this Agreement pursuant to Section 8.12(a), each in
its capacity as borrower hereunder; "Borrower" means any such Borrower.
"Broadband Services" means all broadband communication services,
including without limitation Broadband Carrier Services, cable television,
telephone, other telecommunications and high-speed internet access service,
provided by any Person to residential, business or other customers.
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"Broadband Carrier Services" means collectively the provision of
certain wholesale telecommunication transport services over the broadband
hybrid-fiber coax network ("Broadband Network"), primarily to Interexchange
Carriers ("IXC"), Internet Service Providers ("ISP") and large multi-location
commercial enterprises desiring high capacity connectivity within a
Metropolitan Service Area ("MSA"). These services are termed (a) Internal Local
Transport ("ILT") by which ISP's are connected from their point-of-presence
("POP") to end-users at wholesale transport revenue rates per customer, (as
distinguished from the provision of high-speed Internet access at retail
revenue rates using the Olobahn brand name), (b) Local Exchange Transport
("LET") by which IXC's are connected to end-users, Local Exchange Carriers
("LEC") or other IXC's via the Broadband Network and/or twisted pair cabling,
(c) Private Line Services by which carriers or commercial businesses operating
in multiple locations within the MSA are interconnected via point-to-point
facilities owned or leased by any Loan Party and (d) Special Access Services by
which corporate locations or central offices are directly connected to an IXC
point-of-presence.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day, other than a Saturday, Sunday or legal holiday, on
which banks in Charlotte, North Carolina are open for the conduct of their
commercial banking business, and (b) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
any LIBOR Rate Loan, any day that is a Business Day described in clause (a) and
that is also a day for trading by and between banks in Dollar deposits in the
London interbank market.
"Cable Act" means the Cable Television Communications Policy Act of
1984, as amended by the Consumer Protection and Competition Act of 1992, and
the Telecommunications Act of 1996, and as further amended or supplemented from
time to time.
"Capital Asset" means, with respect to the Loan Parties and their
Subsidiaries, any asset that should, in accordance with GAAP, be classified and
accounted for as a capital asset on a Consolidated balance sheet of the Loan
Parties and their Subsidiaries.
"Capital Expenditures" means, with respect to the Loan Parties and
their Subsidiaries for any period, the aggregate cost of all Capital Assets
acquired by any such Loan Party or such Subsidiary during such period,
determined in accordance with GAAP.
"Capital Lease" means, with respect to the Loan Parties and their
Subsidiaries, any lease of any property that should, in accordance with GAAP,
be classified and accounted for as a capital lease on a Consolidated balance
sheet of the Loan Parties and their Subsidiaries.
"Cash Interest Expense" means, with respect to the Loan Parties and
their Subsidiaries, for any period of two (2) consecutive fiscal quarters,
total interest expense paid in cash (including, without limitation, interest
expense attributable to Capital Leases) determined on a Consolidated basis,
without duplication, in accordance with GAAP, multiplied by two (2).
"CATV Franchise" means, with respect to the Loan Parties and their
Subsidiaries, (a) any franchise, license, permit, wire agreement or easement
granted by any local Governmental
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Authority, including any local franchising authority, pursuant to which any
such Loan Party or such Subsidiary has the right or license to provide
Broadband Services or to operate any cable distribution system for the purpose
of receiving and distributing audio, video, digital, other broadcast signals or
information or telecommunications by cable, optical, antenna, microwave or
satellite transmission and (b) any law, regulation, ordinance, agreement or
other instrument or document expressly setting forth all or any part of the
terms of any franchise, license, permit, wire agreement or easement described
in clause (a) of this definition (excluding any law, regulation, ordinance,
agreement, instrument or document which relates to, but does not expressly set
forth any terms of any such franchise, license, permit, wire agreement or
easement).
"Change in Control" shall have the meaning assigned thereto in Section
12.1(i).
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Section 5.2 shall be satisfied or
waived in all respects in a manner reasonably acceptable to the Administrative
Agent, in its sole discretion.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or supplemented from time to time.
"Collateral" means any assets purported to be pledged by any Loan
Party or Subsidiary thereof, whether pursuant to a Security Document or
otherwise, to the Lenders or the Administrative Agent for the ratable benefit
of the Administrative Agent and the Lenders in order to secure the Obligations
or any portion thereof.
"Collateral Assignments" means the collective reference to all
collateral assignments of leases, easements and/or agreements executed by any
Loan Party in favor of the Administrative Agent for the ratable benefit of
itself and the Lenders in substantially the form of Exhibit H hereto, as
amended, restated or otherwise modified; "Collateral Assignment" means any of
such Collateral Assignments.
"Commitment" means, as to any Lender, the obligation of such Lender to
make Loans to the Borrowers hereunder and to issue or participate in Letters of
Credit issued for the account of the Borrowers hereunder in an aggregate
principal or face amount at any time outstanding not to exceed the amount set
forth opposite such Lender's name on Schedule 1.1(a) hereto, as the same may be
reduced or modified at any time or from time to time pursuant to the terms
hereof.
"Commitment Percentage" means, as to any Lender at any time, the ratio
of (a) the amount of the Commitment of such Lender to (b) the Aggregate
Commitment of all of the Lenders.
"Communications Law" means the Communications Act of 1934, as amended,
and all rules and regulations thereunder, or any successor statute or statutes
thereto (including, without limitation, the Telecommunications Act of 1996) and
all rules and regulations issued by the FCC thereunder, as amended or
supplemented from time to time.
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"Communications License" means any local telecommunications, long
distance telecommunications, or other license, permit, consent, certificate of
compliance, franchise, approval, waiver or authorization granted or issued by
the FCC or other applicable federal Governmental Authority pertaining to the
provision of Broadband Services, including, without limitation, any of the
foregoing authorizing or permitting the acquisition, construction or operation
of any Interactive Broadband Network.
"Connections" means the sum of (a) the aggregate number of Service
Connections minus (b) the aggregate number of Exclusions.
"Consolidated" means, when used with reference to financial statements
or financial statement items of any Loan Party or any of their respective
Subsidiaries, such statements or items on a consolidated basis in accordance
with applicable principles of consolidation under GAAP.
"Consolidated Adjusted Cash Flow" means, for any period of two (2)
consecutive fiscal quarters, the sum of the following multiplied by two (2) and
determined on a Consolidated basis, without duplication, for the Designated
Borrowers, in accordance with GAAP: (a) net income for such period (including,
if applicable, the sum of (x) net income of KNOLOGY of Georgia, Inc., to the
extent actually received by a Designated Borrower in the form of a cash
distribution during such period less (y) the amount of any distributions
(excluding any host digital terminals) to KNOLOGY of Georgia, Inc. from any
Loan Party during such period) plus (b) the sum of the following to the extent
deducted in determining net income: (i) income and franchise taxes and real,
personal, and intangible property taxes, (ii) interest expense, (iii) corporate
overhead and (iv) amortization, depreciation and other non-cash charges less
(c) interest income and any extraordinary gains.
"Consolidated Cash Flow" means, for any Loan Party, for any period of
two (2) consecutive fiscal quarters, the sum of the following multiplied by two
(2) and determined on a Consolidated basis, without duplication, for such Loan
Party and its Subsidiaries in accordance with GAAP: (a) net income for such
period (including, if applicable, the sum of (x) net income of KNOLOGY of
Georgia, Inc., to the extent actually received by such Loan Party (other than
KNOLOGY of Georgia, Inc.) or its Subsidiaries in the form of a cash
distribution during such period less (y) the amount of any distributions
(excluding any host digital terminals) to KNOLOGY of Georgia, Inc. from any
Loan Party during such period) plus (b) the sum of the following to the extent
deducted in determining net income: (i) income and franchise taxes and real,
personal, and intangible property taxes, (ii) interest expense, and (iii)
amortization, depreciation and other non-cash charges less (c) interest income
and any extraordinary gains.
"Consolidated Senior Funded Debt" means the sum of (a) Consolidated
Total Funded Debt less (b) the sum of (i) the outstanding aggregate accreted
principal amount and accrued interest of the Senior Discount Notes plus (ii)
the outstanding aggregate principal amount of any other Subordinated Debt.
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"Consolidated Total Funded Debt" means, with respect to the Loan
Parties and their Subsidiaries at any date of determination and without
duplication, all Debt of the Loan Parties and their Subsidiaries on a
Consolidated basis.
"Contributed Capital" means, with respect to the Loan Parties and
their Subsidiaries at any date, the sum of the following determined on a
Consolidated basis, without duplication: (a) the gross cash proceeds received
by the Loan Parties and their Subsidiaries from any equity issuance plus (b)
Consolidated Total Funded Debt.
"Corporate Cash Management" means the periodic collection,
concentration and transfer of funds consisting of excess cash flow of any
Borrower to the Guarantor for the purpose of (a) temporarily investing such
funds in a corporate cash management program reasonably acceptable to the
Administrative Agent in the ordinary course of business or (b) investments
permitted pursuant to Section 10.4(b)(i).
"Credit Facility" means the collective reference to the Revolving
Credit Facility and the L/C Facility.
"Debt" means, with respect to the Loan Parties and their Subsidiaries
at any date and without duplication, the sum of the following calculated in
accordance with GAAP: (a) all liabilities, obligations and indebtedness for
borrowed money including, but not limited to obligations evidenced by bonds
including any accrued interest arising as a result of interest deferrals,
debentures, notes or other similar instruments of any such Loan Party or
Subsidiary, (b) all obligations to pay the deferred purchase price of property
or services of any such Loan Party or Subsidiary, including, but not limited
to, all obligations under non-competition agreements, except trade payables
arising in the ordinary course of business not more than ninety (90) days past
due (excluding such trade payables which are being contested in good faith and
for which adequate reserves are maintained to the extent required by GAAP), (c)
all obligations of any such Loan Party or Subsidiary as lessee under Capital
Leases, (d) all Debt of any other Person secured by a Lien on any asset of any
such Loan Party or Subsidiary, (e) all Guaranty Obligations of any such Loan
Party or Subsidiary, (f) all obligations, contingent or otherwise, of any such
Loan Party or Subsidiary relative to the face amount of letters of credit,
whether or not drawn, including without limitation any Reimbursement
Obligation, and banker's acceptances issued for the account of any such Loan
Party or Subsidiary, (g) all obligations to redeem, repurchase, exchange,
defease or otherwise make payments in respect of capital stock or other
securities of such Loan Party or Subsidiary and (h) all termination payments
due and payable by such Loan Party or Subsidiary pursuant to any Hedging
Agreement.
"Default" means any of the events specified in Section 12.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Designated Borrowers" means those Borrowers designated in writing by
the Guarantor for inclusion in the calculation of Consolidated Adjusted Cash
Flow, prior to any measuring date thereof; provided, that each such Borrower
must have a minimum Consolidated Cash Flow of at least one Dollar ($1.00) and
once so designated, each such Borrower shall remain a Designated Borrower. As
of the Closing Date, the Designated Borrowers are set forth on Schedule 1.1(b).
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"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Eligible Assignee" means, with respect to any assignment of the
rights, interest and obligations of a Lender hereunder, a Person that is at the
time of such assignment (a) a commercial bank organized under the laws of the
United States or any state thereof, having combined capital and surplus in
excess of $500,000,000, (b) a finance company, insurance company or other
financial institution which in the ordinary course of business extends credit
of the type extended hereunder and that has total assets in excess of
$1,000,000,000, (c) already a Lender hereunder (whether as an original party to
this Agreement or as the assignee of another Lender), (d) the successor
(whether by transfer of assets, merger or otherwise) to all or substantially
all of the commercial lending business of the assigning Lender, or (e) any
other Person that has been approved in writing as an Eligible Assignee by the
Borrowers and the Administrative Agent.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of any
Loan Party or any of their respective Subsidiaries or any ERISA Affiliate or
(b) has at any time within the preceding six years been maintained for the
employees of any Loan Party or any of their respective Subsidiaries or any
current or former ERISA Affiliate.
"Environmental Laws" means any and all federal, state and local laws,
statutes, ordinances, rules, regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities, relating to
the protection of human health or the environment, including, but not limited
to, requirements pertaining to the manufacture, processing, distribution, use,
treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of Hazardous Materials.
"Equivalent Basic Unit Connections" means, with respect to any market
served by the Loan Parties, the amount equal to the quotient of (a) the gross
revenue received by any Loan Party from the provision of cable service on a
wholesale or bulk basis to multiple dwelling units in such market divided by
(b) the basic monthly price charged by such Loan Party to the individual
consumers of such services on a non-bulk basis in such market. For example, if
the gross revenue received by the Loan Parties from a 1,000 room hotel was
$10,000 per month and basic monthly price charged to individual consumers on a
non-bulk basis was $20 per month, the Equivalent Basic Units Connections
attributable to the 1,000 room hotel would be 500.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA Affiliate" means any Person who together with any Loan Party or
any Subsidiary of a Loan Party is treated as a single employer within the
meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of
ERISA.
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"Eurodollar Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve
requirement (including without limitation any basic, supplemental or emergency
reserves) in respect of Eurocurrency liabilities or any similar category of
liabilities for a member bank of the Federal Reserve System in New York City.
"Event of Default" means any of the events specified in Section 12.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Exclusions" means the sum of all Service Connections for (a)
Broadband Carrier Services plus (b) premium video and digital video services
plus (c) second residential telephone lines which are not billed at full rates,
in residences where a Loan Party provides at least one other residential
telephone line which is billed at full rates.
"Existing Stockholders" means ITC Holding Company, Inc., a Delaware
corporation, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ and SCANA Corporation and
their Affiliates, and in the case of the foregoing individuals, his spouse and
any one or more of his lineal descendants and their spouses; provided, that any
such person shall only be deemed to be an "Existing Stockholder" to the extent
such Person's capital stock of the Guarantor was received, directly or
indirectly, from ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ or one or more of
such spouses or lineal descendents.
"Extensions of Credit" means, as to any Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Loans made by
such Lender then outstanding and (b) such Lender's Commitment Percentage of the
L/C Obligations then outstanding.
"FCC" means the Federal Communications Commission or any successor
Governmental Authority.
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"Federal Funds Rate" means the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any
reason, such rate is not available, then "Federal Funds Rate" shall mean a
daily rate which is determined, in the reasonable opinion of the Administrative
Agent, to be the rate at which federal funds are being offered for sale in the
national federal funds market at 9:00 a.m. (Charlotte time). Rates for weekends
or holidays shall be the same as the rate for the most immediate preceding
Business Day.
"First Union" means First Union National Bank, a national banking
association, and its successors.
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"Fiscal Year" means the fiscal year of the Loan Parties and their
Subsidiaries, ending on December 31.
"GAAP" means generally accepted accounting principles, as recognized
by the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the Loan Parties and their Subsidiaries throughout the period
indicated and consistent with the prior financial practice of the Loan Parties
and their Subsidiaries.
"Governmental Approvals" means all authorizations, consents,
approvals, licenses and exemptions of, registrations and filings with, and
reports to, all Governmental Authorities.
"Governmental Authority" means any nation, province, state or
political subdivision thereof, and any government or any Person exercising
executive, legislative, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guarantor" means KNOLOGY Holdings, Inc., in its capacity as guarantor
hereunder.
"Guaranty" means the unconditional guaranty agreement of the Guarantor
set forth in Article XI.
"Guaranty Obligation" means, with respect to the Loan Parties and
their Subsidiaries, without duplication, any obligation, contingent or
otherwise, of any such Loan Party or Subsidiary pursuant to which such Loan
Party or Subsidiary has directly or indirectly guaranteed any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of any
such Loan Party or Subsidiary (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or other obligation (whether
arising by virtue of partnership arrangements, by agreement to keep well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement condition or otherwise) or (b) entered into for the purpose
of assuring in any other manner the obligee of such Debt or other obligation of
the payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part); provided, that the term Guaranty Obligation shall not
include endorsements for collection or deposit in the ordinary course of
business.
"Hazardous Materials" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
Environmental Law, (b) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human
health or the environment and are or become regulated by any Governmental
Authority, (c) the presence of which require investigation or remediation under
any Environmental Law or common law, (d) the discharge or emission or release
of which requires a permit or license under any Environmental Law or other
Governmental Approval, (e) which pose a health or safety hazard to persons or
neighboring properties, (f) which are materials consisting of underground or
aboveground storage tanks, whether empty, filled or partially filled with any
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substance, or (g) which contain, without limitation, asbestos, polychlorinated
biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum
derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic
gas.
"Hedging Agreement" means any agreement with respect to an interest
rate swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection
with hedging the interest rate exposure of any Loan Party or any Subsidiary of
a Loan Party, and any confirming letter executed pursuant to such hedging
agreement, all as amended, restated or otherwise modified.
"Indenture" shall mean the Indenture dated as of October 22, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New York, as trustee,
pursuant to which the Guarantor issued the Senior Discount Notes, as the same
may be restated, extended, renewed, amended or otherwise modified and in effect
from time to time.
"Initial Funding Date" means the date upon which each condition
described in Section 5.3 shall be satisfied or would in all respects in a
manner reasonably acceptable to the Administrative Agent and the Lenders, each
in their sole discretion.
"Interactive Broadband Network" means any two-way, interactive,
high-capacity hybrid fiber-coaxial networks (including networks being
constructed or to be converted or upgraded to meet such criteria) owned or
leased or operated by any Loan Party or any Subsidiary of a Loan Party pursuant
to an agreement with any Person and which provides Broadband Services.
"Intercompany Debt" means Debt owed by any Loan Party or any
Subsidiary of any Loan Party to another Loan Party.
"Interest Period" shall have the meaning assigned thereto in Section
4.1(b).
"Issuing Lender" means First Union, in its capacity as issuer of any
Letter of Credit, or any successor thereto.
"L/C Commitment" means the lesser of (a) Ten Million Dollars
($10,000,000) and (b) the Aggregate Commitment.
"L/C Facility" means the letter of credit facility established
pursuant to Article III hereof.
"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders
other than the Issuing Lender.
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"Lender" means each Person executing this Agreement as a Lender set
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 14.10(b).
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Loans.
"Letters of Credit" shall have the meaning assigned thereto in Section
3.1.
"Leverage Ratio" means, at any fiscal quarter end, the ratio of (a)
Consolidated Total Funded Debt to (b) Consolidated Cash Flow.
"LIBOR" means the rate of interest per annum determined on the basis
of the rate for deposits in Dollars in minimum amounts of at least $5,000,000
for a period equal to the applicable Interest Period which appears on the
Telerate Page 3750 at approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of the applicable Interest Period. If, for any
reason, such rate does not appear on Telerate Page 3750, then "LIBOR" shall be
determined by the Administrative Agent to be the arithmetic average (rounded
upward, if necessary, to the nearest one-sixteenth of one percent (1/16%)) of
the rate per annum at which deposits in Dollars would be offered by first class
banks in the London interbank market to the Administrative Agent approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of the
applicable Interest Period for a period equal to such Interest Period and in an
amount substantially equal to the amount of the applicable Loan.
"LIBOR Rate" means a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined by the Administrative Agent pursuant
to the following formula:
LIBOR Rate = LIBOR
----------------------------------
1.00-Eurodollar Reserve Percentage
"LIBOR Rate Loan" means any Loan bearing interest at a rate based upon
the LIBOR Rate as provided in Section 4.1(a).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, a Person shall be deemed to own subject to
a Lien any asset which 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 relating to such asset.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Applications, any Hedging Agreement executed by any Lender and each other
document, instrument and agreement executed and delivered by any Loan Party,
any Subsidiary of a Loan Party in connection with this Agreement or otherwise
referred to herein or contemplated hereby, all as may be amended, restated or
otherwise modified.
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"Loan Parties" means the collective reference to the Guarantor, the
Borrowers and each Subsidiary thereof which becomes a party hereto pursuant to
Section 8.12(a) and KNOLOGY of Georgia, Inc.
"Loans" means any revolving loan made to the Borrower pursuant to
Section 2.1, and all such revolving loans collectively as the context requires.
"Majority Lenders" means, at any date, any combination of holders of
at least fifty-one percent (51%) of the aggregate unpaid principal amount of
the Notes, or if no amounts are outstanding under the Notes, any combination of
Lenders whose Commitment Percentages aggregate at least fifty-one percent
(51%).
"Material Adverse Effect" means, with respect to the Loan Parties and
their Subsidiaries, a material adverse effect on the properties, business,
prospects, operations or condition (financial or otherwise) of the Loan Parties
and their Subsidiaries, taken as a whole, or the ability of the Loan Parties
and their Subsidiaries, taken as a whole to perform their obligations under the
Loan Documents or Material Contracts.
"Material Contract" means (a) any contract or other agreement, written
or oral, of any Loan Party or any Subsidiary of a Loan Party involving monetary
liability of or to any such Person in an amount in excess of $1,000,000 per
annum or (b) any other contract or agreement, written or oral, of any Loan
Party or any Subsidiary of a Loan Party, the failure to comply with which could
reasonably be expected to have a Material Adverse Effect.
"Mortgages" means the mortgages, deeds of trust, deeds to secure debt
or other similar instrument executed by any Borrower with regard to the real
property owned thereby, in favor of the Administrative Agent, for the ratable
benefit of itself and the Lenders, in substance and form reasonably acceptable
to the Administrative Agent as amended, restated or otherwise modified.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which any Loan Party, any Subsidiary of a Loan
Party or any ERISA Affiliate is making, or is accruing an obligation to make,
contributions within the preceding six years.
"Net Cash Proceeds" means, as applicable, (a) with respect to any sale
of assets, the gross cash proceeds received by any Loan Party or any Subsidiary
of a Loan Party from such sale less the sum of (i) all legal, title, recording,
transfer and income tax expenses, commissions and similar fees and expenses
incurred, and all other federal, state, local and foreign taxes assessed in
connection therewith and (ii) the aggregate outstanding principal amount of,
premium, if any, and interest on any Debt secured by a Lien on the asset (or a
portion thereof) sold, which Debt is required to be repaid in connection with
such sale of assets, (b) with respect to any offering of debt or equity
securities, the gross cash proceeds received by any Loan Party or any
Subsidiary of a Loan Party therefrom less all legal, underwriting and similar
fees and expenses incurred in connection therewith and (c) with respect to any
payment under an insurance policy, the amount of cash proceeds received by any
Loan Party or any Subsidiary of a Loan Party from the related insurance company
less reasonable expenses of obtaining such proceeds.
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"Network Agreement" means any document or agreement entered into by
any Loan Party or any Subsidiary of a Loan Party regarding the use, operation
or maintenance of, or otherwise concerning, any Interactive Broadband Network.
"Notes" means the collective reference to the Notes made by the
Borrower payable to the order of each Lender, substantially in the form of
Exhibit A hereto, evidencing the Revolving Credit Facility, and any amendments
and modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extensions thereof, in whole or in part; "Note" means
any of such Notes.
"Notice of Account Designation" shall have the meaning assigned
thereto in Section 2.2(b).
"Notice of Borrowing" shall have the meaning assigned thereto in
Section 2.2(a).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 4.2.
"Notice of Prepayment" shall have the meaning assigned thereto in
Section 2.3(c).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
the L/C Obligations, (c) all payment and other obligations owing by any Loan
Party or any Subsidiary of a Loan Party to any Lender or the Administrative
Agent under any Hedging Agreement to which a Lender is a party, if any, and (c)
all other fees and commissions (including attorneys' fees), charges,
indebtedness, loans, liabilities, financial accommodations, obligations,
covenants and duties owing by any Loan Party or any Subsidiary of a Loan Party
to the Lenders or the Administrative Agent, of every kind, nature and
description, direct or indirect, absolute or contingent, due or to become due,
contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any note, and whether or not for the payment of money in each case
under or in respect of this Agreement, any Note, any Letter of Credit or any of
the other Loan Documents.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 7.2.
"Other Taxes" shall have the meaning assigned thereto in Section
4.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for employees of any Loan
Party, any Subsidiary of a Loan Party or any ERISA Affiliate or (b) has at any
time within the preceding six years been maintained for the employees of any
Loan Party, any Subsidiary of a Loan Party or any current or former ERISA
Affiliate.
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"Person" means an individual, corporation, partnership, limited
liability company, association, trust, business trust, joint venture, joint
stock company, pool, syndicate, sole proprietorship, unincorporated
organization, Governmental Authority or any other form of entity or group
thereof.
"Pledge Agreement" means any pledge agreement executed by any Loan
Party or any Subsidiary of a Loan Party in favor of the Administrative Agent
for the ratable benefit of the Administrative Agent and the other Lenders,
substantially in the form of Exhibit I, as amended, restated or otherwise
modified.
"Pole Agreement" means any pole attachment agreement or underground
conduit use agreement entered into in connection with the operation of any
Interactive Broadband Network.
"Prime Rate" means, at any time, the rate of interest per annum
publicly announced from time to time by First Union as its prime rate. Each
change in the Prime Rate shall be effective as of the opening of business on
the day such change in the Prime Rate occurs. The parties hereto acknowledge
that the rate announced publicly by First Union as its Prime Rate is an index
or base rate and shall not necessarily be its lowest or best rate charged to
its customers or other banks.
"Programming Agreements" means any agreement between any Loan Party or
any Subsidiary of a Loan Party and another person pursuant to which such person
agrees to provide programming to such Loan Party or such Subsidiary for
distribution on any Interactive Broadband Network.
"Public Market" means any time period after (a) an underwritten
primary public offering of shares of common stock of the Guarantor pursuant to
an effective registration statement under the Securities Act has been
consummated and (ii) at least fifteen percent (15%) of the total issued and
outstanding shares of common stock of the Guarantor has been distributed by
means of an effective registration statement under the Securities Act or sales
pursuant to Rule 144 under the Securities Act.
"PUC" means any state, provincial or other regulatory agency or body
that exercises jurisdiction over (a) the rates, services or provision of
Broadband Services or (b) the ownership, construction or operation of any
Interactive Broadband Network or long distance telecommunications system or (c)
over Persons who own, construct or operate any Interactive Broadband Network or
long distance telecommunications systems, in each case by reason of the nature
or type of the business subject to regulation and not pursuant to laws and
regulations of general applicability to Persons conducting business in any such
jurisdiction.
"PUC Authorization" means any registration with, and any written
validation, exemption, franchise, waiver, approval, order or authorization,
consent, license, certificate and permit, regarding the provision of Broadband
Services, issued to any Loan Party from any PUC.
"Register" shall have the meaning assigned thereto in Section
14.10(d).
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"Reimbursement Obligation" means the obligation of the Borrowers to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
the Letters of Credit.
"Required Lenders" means, at any date, any combination of holders of
at least sixty-six and two-thirds percent (66-2/3%) of the aggregate unpaid
principal amount of the Notes, or if no amounts are outstanding under the
Notes, any combination of Lenders whose Commitment Percentages aggregate at
least sixty-six and two-thirds percent (66-2/3%).
"Responsible Officer" means the chief executive officer or chief
financial officer of any Loan Party or any Subsidiary of a Loan Party, as
applicable, or any other officer of any Loan Party or Subsidiary of a Loan
Party, as applicable, reasonably acceptable to the Administrative Agent.
"Revolving Credit Facility" means the revolving credit facility
established pursuant to Article II hereof.
"Securities Act" means the Securities Act of 1933, as amended or any
similar federal statute and the rules and regulations of the Securities and
Exchange Commission thereunder, all as the same shall be in effect from time to
time.
"Security Agreement" means the Security Agreement executed by the Loan
Parties in favor of the Administrative Agent for the ratable benefit of the
Administrative Agent and the Lenders, substantially in the form of Exhibit J
hereto, as amended, restated or otherwise modified.
"Security Documents" means the collective reference to the Security
Agreement, the Pledge Agreement, the Mortgages, the Collateral Assignments and
each other agreement or writing pursuant to which any Loan Party or any
Subsidiary of a Loan Party purports to pledge or grant a security interest in
any property or assets securing the Obligations or any such Loan Party or such
Subsidiary guaranties the payment and/or performance of the Obligations.
"Senior Discount Notes" means the collective reference to the 11-7/8%
Senior Discount Notes due 2007 issued by the Guarantor pursuant to the
Indenture, as the same may be restated, extended, renewed, amended or otherwise
modified and in effect from time to time.
"Service Connections" means the sum of (a) the number of cable modem
units utilizing internet access provided by any Loan Party, (b) the number of
residences and businesses that receive cable service from the Loan Parties on a
non-bulk service basis, (c) the number of Equivalent Basic Unit Connections and
(d) the number of separate telephone lines providing local and long distance
services provided by the Loan Parties.
"Solvent" means, with regard to the Loan Parties and their
Subsidiaries, taken as a whole, that such entities (a) on any date of
determination have capital sufficient to carry on their business and
transactions and all business and transactions in which they are about to
engage and are able to pay their Debts as they mature, (b) on any date of
determination own property having a value, both at fair valuation and at
present fair saleable value, greater than the amount required
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to pay their probable liabilities (including contingencies), and (c) on any
date of determination do not believe that they will incur Debts or liabilities
beyond their ability to pay such Debts or liabilities as they mature.
"Subordinated Debt" means the collective reference to Debt on Schedule
6.1(t) hereof designated as Subordinated Debt and any other Debt of any Loan
Party or any Subsidiary of a Loan Party contractually subordinated in right and
time of payment to the Obligations on terms and conditions and in amounts
reasonably satisfactory to the Administrative Agent and Required Lenders.
"Subsidiary" means as to any Person, any corporation, partnership or
other entity of which more than fifty percent (50%) of the outstanding capital
stock or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity is at the time, directly or indirectly, owned by
such Person (irrespective of whether, at the time, capital stock of any other
class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency).
"Substantially Similar Business" means the development, ownership or
operation of one or more cable television, telephone, telecommunications or
information systems or the provision of telephony, telecommunications or
information services (including, without limitation, any voice, video
transmission, data or internet services) and any related, ancillary or
complementary business.
"Taxes" shall have the meaning assigned thereto in Section 4.11(a).
"Termination Date" means the earliest of the dates referred to in
Section 2.6.
"Termination Event" means: (a) a "Reportable Event" described in
Section 4043 of ERISA, or (b) the withdrawal of any Loan Party, Subsidiary of a
Loan Party or any ERISA Affiliate from a Pension Plan during a plan year in
which it was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA, or (c) the termination of a Pension Plan, the filing of a notice of
intent to terminate a Pension Plan or the treatment of a Pension Plan amendment
as a termination under Section 4041 of ERISA, or (d) the institution of
proceedings to terminate, or the appointment of a trustee with respect to, any
Pension Plan by the PBGC, or (e) any other event or condition which would
constitute grounds under Section 4042(a) of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan, or (f) the
partial or complete withdrawal of any Loan Party, any Subsidiary of a Loan
Party or any ERISA Affiliate from a Multiemployer Plan, or (g) the imposition
of a Lien pursuant to Section 412 of the Code or Section 302 of ERISA, or (h)
any event or condition which results in the reorganization or insolvency of a
Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (i) any event or
condition which results in the termination of a Multiemployer Plan under
Section 4041A of ERISA or the institution by PBGC of proceedings to terminate a
Multiemployer Plan under Section 4042 of ERISA.
"UCC" means the Uniform Commercial Code as in effect in the State of
North Carolina.
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"Uniform Customs" means the Uniform Customs and Practice for
Documentary Credits (1994 Revision), International Chamber of Commerce
Publication No. 500.
"United States" means the United States of America.
"Wholly-Owned" means, with respect to a Subsidiary of any Loan Party,
a Subsidiary all of the shares of capital stock or other ownership interests of
which are, directly or indirectly, owned or controlled by any Loan Party and/or
one or more of any Loan Party's Wholly-Owned Subsidiaries.
SECTION 1.2 GENERAL. Unless otherwise specified, a reference in
this Agreement to a particular section, subsection, Schedule or Exhibit is a
reference to that section, subsection, Schedule or Exhibit of this Agreement.
Wherever from the context it appears appropriate, each term stated in either
the singular or plural shall include the singular and plural, and pronouns
stated in the masculine, feminine or neuter gender shall include the masculine,
the feminine and the neuter. Any reference herein to "Charlotte time" shall
refer to the applicable time of day in Charlotte, North Carolina.
SECTION 1.3 OTHER DEFINITIONS AND PROVISIONS.
(a) Use of Capitalized Terms. Unless otherwise defined therein,
all capitalized terms defined in this Agreement shall have the defined meanings
when used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(b) Miscellaneous. The words "hereof", "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
CREDIT FACILITY
SECTION 2.1 LOANS. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Loans to the Borrowers on a
joint and several basis from time to time from the Initial Funding Date through
the Termination Date as requested by the Borrowers in accordance with the terms
of Section 2.2(a); provided, that (a) the aggregate principal amount of all
outstanding Loans (after giving effect to any amount requested) shall not
exceed the Aggregate Commitment less the sum of all outstanding L/C Obligations
and (b) the principal amount of outstanding Loans from any Lender to the
Borrowers shall not at any time exceed such Lender's Commitment less such
Lender's Commitment Percentage of the outstanding L/C Obligations. Each Loan by
a Lender shall be in a principal amount equal to such Lender's Commitment
Percentage of the aggregate principal amount of Loans requested on
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such occasion. Subject to the terms and conditions hereof, the Borrowers may
borrow, repay and reborrow Loans hereunder until the Termination Date.
SECTION 2.2 PROCEDURE FOR ADVANCES OF LOANS.
(a) Requests for Borrowing. The Guarantor, on behalf of all
Borrowers, shall give the Administrative Agent irrevocable prior written notice
in the form attached hereto as Exhibit B (a "Notice of Borrowing") not later
than 11:00 a.m. (Charlotte time) (i) on the same Business Day as each Base Rate
Loan and (ii) at least three (3) Business Days before each LIBOR Rate Loan, of
the Borrowers' intention to borrow, specifying (A) the date of such borrowing,
which shall be a Business Day, (B) the amount of such borrowing, which shall be
(X) with respect to Base Rate Loans in an aggregate principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof and (Y) with
respect to LIBOR Rate Loans in an aggregate principal amount of $1,000,000 or a
whole multiple of $1,000,000 in excess thereof (except, in each case, the
amount of such borrowing may be in the aggregate amount available to the
Borrowers), (C) whether the Loans are to be LIBOR Rate Loans or Base Rate Loans
or a combination thereof, and (D) in the case of a LIBOR Rate Loan, the
duration of the Interest Period applicable thereto. Notices received after
11:00 a.m. (Charlotte time) shall be deemed received on the next Business Day.
The Administrative Agent shall promptly notify the Lenders of each Notice of
Borrowing.
(b) Disbursement of Loans. Not later than 2:00 p.m. (Charlotte
time) on the proposed borrowing date, each Lender will make available to the
Administrative Agent, for the account of the Borrowers, at the office of the
Administrative Agent in funds immediately available to the Administrative
Agent, such Lender's Commitment Percentage of the Loans to be made on such
borrowing date. The Borrowers hereby irrevocably authorize the Administrative
Agent to disburse the proceeds of each borrowing requested pursuant to Section
2.2(a) in immediately available funds by crediting or wiring such proceeds to
the deposit account of the Borrowers identified in the most recent Notice of
Account Designation substantially in the form of Exhibit G hereto (a "Notice of
Account Designation") delivered by the Borrowers to the Administrative Agent or
as may be otherwise agreed upon by the Borrowers and the Administrative Agent
from time to time. Subject to Section 4.7, the Administrative Agent shall not
be obligated to disburse the portion of the proceeds of any Loan requested
pursuant to Section 2.2(a) to the extent that any Lender has not made available
to the Administrative Agent its Commitment Percentage of such Loan.
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SECTION 2.3 REPAYMENT OF LOANS.
(a) Repayment on Termination Date. The Borrowers shall repay the
outstanding principal amount of all Loans in full on the Termination Date, with
all accrued but unpaid interest thereon.
(b) Mandatory Repayments of Excess Loans. If at any time the
outstanding principal amount of all Loans exceeds the Aggregate Commitment,
less the sum of all outstanding L/C Obligations, the Borrowers shall
immediately upon notice from the Administrative Agent (i) repay the Loans by
payment to the Administrative Agent for the account of the Lenders or (ii)
furnish cash collateral reasonably satisfactory to the Administrative Agent or
(iii) repay the L/C Obligations, in each case in an amount equal to such
excess. Such cash collateral shall be applied in accordance with Section
12.2(b). Each such repayment shall be accompanied by any amount required to be
paid pursuant to Section 4.9 hereof.
(c) Optional Repayments. The Borrowers may at any time and from
time to time repay the Loans, in whole or in part, upon at least three (3)
Business Days' irrevocable notice to the Administrative Agent with respect to
LIBOR Rate Loans and one (1) Business Day irrevocable notice with respect to
Base Rate Loans, in the form attached hereto as Exhibit C (a "Notice of
Prepayment"), specifying the date and amount of repayment and whether the
repayment is of LIBOR Rate Loans, Base Rate Loans, or a combination thereof,
and, if of a combination thereof, the amount allocable to each. Upon receipt of
such notice, the Administrative Agent shall promptly notify each Lender. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date set forth in such notice. Partial repayments shall be in an
aggregate amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof with respect to Base Rate Loans and $1,000,000 or a whole multiple of
$1,000,000 in excess thereof with respect to LIBOR Rate Loans. Each such
repayment shall be accompanied by any amount required to be paid pursuant to
Section 4.9.
(d) Limitation on Repayment of LIBOR Rate Loans. The Borrowers
may not repay any LIBOR Rate Loan on any day other than on the last day of the
Interest Period applicable thereto unless such repayment is accompanied by any
amount required to be paid pursuant to Section 4.9 hereof.
SECTION 2.4 NOTES. Each Lender's Loans and the obligation of the
Borrowers to repay such Loans shall be evidenced by a Note executed by the
Borrowers payable to the order of such Lender representing the Borrowers'
obligation to pay such Lender's Commitment or, if less, the aggregate unpaid
principal amount of all Loans made and to be made by such Lender to the
Borrowers hereunder, plus interest and all other fees, charges and other
amounts due thereon. Each Note shall be dated the date hereof and shall bear
interest on the unpaid principal amount thereof at the applicable interest rate
per annum specified in Section 4.1.
SECTION 2.5 PERMANENT REDUCTION OF THE AGGREGATE COMMITMENT.
(a) Voluntary Reduction. The Borrowers shall have the right at
any time and from time to time, upon at least five (5) Business Days prior
written notice not later than 11:00 a.m.
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(Charlotte time) to the Administrative Agent, to permanently reduce, in whole
at any time or in part from time to time, without premium or penalty, the
Aggregate Commitment in an aggregate principal amount equal to $2,500,000 or
any whole multiple thereof.
(b) Other Permanent Reductions. The Aggregate Commitment shall be
permanently reduced as follows by an amount equal to:
(i) Insurance Proceeds. One hundred percent (100%) of
Net Cash Proceeds received by any Loan Party in excess of $200,000 in the
aggregate during any twelve (12) month period or $1,000,000 in the aggregate
during the term of this Agreement; provided, that so long as no Default or
Event of Default then exists, such Net Cash Proceeds may be reinvested or
contractually committed to be reinvested toward the repair or replacement of
damaged properties within one hundred and eighty days after receipt thereof.
(ii) Sale of Assets. One hundred percent (100%) of Net
Cash Proceeds received by any Loan Party in connection with the sale of assets
(other than a sale of assets permitted pursuant to Sections 10.6(a)-(e) and
Section 10.6(h)) in excess of $1,000,000 in the aggregate during any twelve
(12) month period or $5,000,000 in the aggregate during the term of this
Agreement; provided, that so long as no Default or Event of Default then
exists, such Net Cash Proceeds may be used or contractually committed to be
used to purchase like assets within one hundred and eighty (180) days after
receipt thereof.
(iii) Offering Proceeds. Unless otherwise agreed by the
Loan Parties and the Required Lenders, fifty percent (50%) of Net Cash Proceeds
from any offering by any Loan Party of equity securities (other than (A) the
Net Cash Proceeds of any equity offering to ITC Holding Company, Inc., or any
of the parties listed on Schedule 2.5(b) attached hereto and (B) the Net Cash
Proceeds of an initial public offering of the Guarantor) within three (3)
Business Days of receipt thereof.
(c) Additional Payments. Each permanent reduction permitted or
required pursuant to this Section 2.5 shall be accompanied by a payment of
principal sufficient to reduce the aggregate outstanding principal amount of
the Extensions of Credit of the Lenders after such reduction to the Aggregate
Commitment as so reduced and if the Aggregate Commitment as so reduced is less
than the aggregate amount of all outstanding Letters of Credit, the Borrowers
shall be required to deposit in a cash collateral account opened by the
Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. Any reduction of the Aggregate
Commitment to zero shall be accompanied by payment of all outstanding
Obligations (and furnishing of cash collateral satisfactory to the
Administrative Agent for all L/C Obligations) and shall result in the
termination of the Commitments and Credit Facility. Such cash collateral shall
be applied in accordance with Section 12.2(b). If the reduction of the
Aggregate Commitment requires the repayment of any LIBOR Rate Loan, such
repayment shall be accompanied by any amount required to be paid pursuant to
Section 4.9 hereof.
SECTION 2.6 TERMINATION OF CREDIT FACILITY. The Credit Facility
shall terminate on the earliest of (a) November 15, 2002, (b) the date of
termination by the Borrowers
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pursuant to Section 2.5(a) or Section 2.5(b) (by reduction of the Aggregate
Commitment to zero), and (c) the date of termination by the Administrative
Agent on behalf of the Lenders pursuant to Section 12.2(a).
SECTION 2.7 INCREASE IN COMMITMENTS. The Borrowers shall have
the right, so long as no Default or Event of Default shall have occurred and be
continuing (or would result therefrom), with the consent of the Majority
Lenders (which consent shall not be unreasonably withheld), to increase the
total amount of the Aggregate Commitments hereunder by (a) first, accepting the
offer of any existing Lender or Lenders to increase its (or their) Commitment
(or Commitments) up to the amount of any such increase (which such increase
shall be offered first to the Administrative Agent, then (to the extent any
such increase is not fully underwritten by the Administrative Agent) to the
existing other Lenders); and/or (b) second, accepting the offer or offers of
any Person or Persons (not then a Lender) constituting an Eligible Assignee to
become a new Lender hereto with a Commitment or Commitments up to the amount
(or aggregate amount) of any such increase to the extent any such increase is
not fully underwritten by the Administrative Agent or existing Lenders;
provided, that (i) in no event shall any Lender's Commitment be increased
without the consent of such Lender, (ii) if any Loans are outstanding hereunder
on the date that any such increase is to become effective, the Administrative
Agent shall make such transfers of funds as are necessary in order that the
outstanding balance of such Loans reflect the Commitment Percentages of the
Lenders after giving effect to any increase pursuant to this Section 2.7, and
(iii) in no event shall any such increase result in the amount of the Aggregate
Commitment exceeding $100,000,000. Any increase to the Aggregate Commitment
pursuant to clause (a) of the first sentence of this Section 2.7 shall become
effective upon the execution of a Commitment Increase Supplement in the form of
Exhibit K-1 hereto, executed by the Borrowers, the Administrative Agent and the
increasing Lender or Lenders and any increase to the Aggregate Commitment
pursuant to clause (b) of the first sentence of this Section 2.7 shall become
effective upon the execution of a New Lender Supplement in the form of Exhibit
K-2 hereto by the Borrowers, the Administrative Agent and relevant new Lender
or Lenders. The Administrative Agent shall forward copies of any such
supplement to the Lenders promptly upon receipt thereof.
SECTION 2.8 USE OF PROCEEDS. The Borrowers shall use the
proceeds of the Extensions of Credit (a) to finance capital expenditures, (b)
to make acquisitions permitted under Section 10.4 and (c) for working capital
and general corporate requirements of the Borrowers and their respective
Subsidiaries, including the payment of certain fees and expenses incurred in
connection with the foregoing.
SECTION 2.9 SECURITY. The Obligations of the Borrowers and the
Guarantor under this Agreement shall be secured by the Collateral described in
the Security Documents.
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ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C COMMITMENT. Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Lenders
set forth in Section 3.4(a), agrees to issue standby letters of credit
("Letters of Credit") for the account of the Borrowers on any Business Day from
the Initial Funding Date through but not including the Termination Date in such
form as may be approved from time to time by the Issuing Lender; provided, that
the Issuing Lender shall have no obligation to issue any Letter of Credit if,
after giving effect to such issuance, (a) the L/C Obligations would exceed the
L/C Commitment or (b) the Available Commitment of any Lender would be less than
zero. Each Letter of Credit shall (i) be denominated in Dollars in a minimum
amount of $250,000, (ii) be a standby letter of credit issued to support
obligations of the Borrowers or any of their respective Subsidiaries,
contingent or otherwise, incurred in the ordinary course of business, (iii)
expire no more than one year after the issuance date thereof, which date shall
be no later than the Termination Date and (iv) be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
North Carolina. The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any L/C Participant to exceed any limits imposed by, any
Applicable Law. References herein to "issue" and derivations thereof with
respect to Letters of Credit shall also include extensions or modifications of
any existing Letters of Credit, unless the context otherwise requires.
SECTION 3.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. The
Guarantor, on behalf of the Borrowers, may from time to time request that the
Issuing Lender issue a Letter of Credit by delivering to the Issuing Lender at
the Administrative Agent's Office an Application therefor, completed to the
satisfaction of the Issuing Lender, and such other certificates, documents and
other papers and information as the Issuing Lender may reasonably request. Upon
receipt of any Application, the Issuing Lender shall process such Application
and the certificates, documents and other papers and information delivered to
it in connection therewith in accordance with its customary procedures and
shall, subject to Section 3.1 and Article V hereof, promptly issue the Letter
of Credit requested thereby (but in no event shall the Issuing Lender be
required to issue any Letter of Credit earlier than three (3) Business Days
after its receipt of the Application therefor and all such other certificates,
documents and other papers and information relating thereto) by issuing the
original of such Letter of Credit to the beneficiary thereof or as otherwise
may be reasonably agreed by the Issuing Lender and the Guarantor, on behalf of
the Borrowers. The Issuing Lender shall promptly furnish to the Guarantor a
copy of such Letter of Credit and promptly notify each Lender of the issuance
and upon request by any Lender, furnish to such Lender a copy of such Letter of
Credit and the amount of such Lender's L/C Participation therein.
SECTION 3.3 COMMISSIONS AND OTHER CHARGES.
(a) The Borrowers shall pay to the Administrative Agent, for the
account of the Issuing Lender and the L/C Participants, a letter of credit
commission with respect to each Letter of Credit
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in an amount equal to the Applicable Margin for LIBOR on a per annum basis on
the face amount of such Letter of Credit. Such commission shall be payable
quarterly in arrears on the last Business Day of each calendar quarter and on
the Termination Date.
(b) In addition to the foregoing commission, the Borrowers shall
pay to the Issuing Lender an issuance fee of 0.125% per annum on the face
amount of each Letter of Credit, payable quarterly in arrears on the last
Business Day of each calendar quarter and on the Termination Date.
(c) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Lender and the L/C Participants all
commissions received by the Administrative Agent in accordance with their
respective Commitment Percentages.
SECTION 3.4 L/C PARTICIPATIONS.
(a) The Issuing Lender irrevocably agrees to grant and hereby
grants to each L/C Participant, and, to induce the Issuing Lender to issue
Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from the Issuing Lender, on the
terms and conditions hereinafter stated, for such L/C Participant's own account
and risk an undivided interest equal to such L/C Participant's Commitment
Percentage in the Issuing Lender's obligations and rights under each Letter of
Credit issued hereunder and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with
the Issuing Lender that, if a draft is paid under any Letter of Credit for
which the Issuing Lender is not reimbursed in full by the Borrowers in
accordance with the terms of this Agreement, such L/C Participant shall pay to
the Issuing Lender upon demand at the Issuing Lender's address for notices
specified herein an amount equal to such L/C Participant's Commitment
Percentage of the amount of such draft, or any part thereof, which is not so
reimbursed.
(b) Upon becoming aware of any amount required to be paid by any
L/C Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of
any unreimbursed portion of any payment made by the Issuing Lender under any
Letter of Credit, the Issuing Lender shall notify each L/C Participant of the
amount and due date of such required payment and such L/C Participant shall pay
to the Issuing Lender the amount specified on the applicable due date. If any
such amount is paid to the Issuing Lender after the date such payment is due,
such L/C Participant shall pay to the Issuing Lender on demand, in addition to
such amount, the product of (i) such amount, times (ii) the daily average
Federal Funds Rate as determined by the Administrative Agent during the period
from and including the date such payment is due to the date on which such
payment is immediately available to the Issuing Lender, times (iii) a fraction
the numerator of which is the number of days that elapse during such period and
the denominator of which is 360. A certificate of the Issuing Lender with
respect to any amounts owing under this Section 3.4(b) shall be conclusive in
the absence of manifest error. With respect to payment to the Issuing Lender of
the unreimbursed amounts described in this Section 3.4(b), if the L/C
Participants receive notice that any such payment is due (A) prior to 1:00 p.m.
(Charlotte time) on any Business Day, such payment shall be due that Business
Day, and (B) after 1:00 p.m. (Charlotte time) on any Business Day, such payment
shall be due on the following Business Day.
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(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant
its Commitment Percentage of such payment in accordance with this Section 3.4,
the Issuing Lender receives any payment related to such Letter of Credit
(whether directly from the Borrowers or otherwise, or any payment of interest
on account thereof, the Issuing Lender will distribute to such L/C Participant
its pro rata share thereof; provided, that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing
Lender, such L/C Participant shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.
SECTION 3.5 REIMBURSEMENT OBLIGATION OF THE BORROWERS. The
Borrowers agree to reimburse the Issuing Lender not later than 11:00 a.m.
(Charlotte time) on each date on which the Issuing Lender notifies the Borrower
of the date and amount of a draft paid under any Letter of Credit for the
amount of (a) such draft so paid and (b) any taxes, fees, charges or other
costs or expenses incurred by the Issuing Lender in connection with such
payment. Each such payment shall be made to the Issuing Lender at its address
for notices specified herein in lawful money of the United States and in
immediately available funds. Interest shall be payable on any and all amounts
remaining unpaid by the Borrowers under this Article III from the date such
amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate which would be payable on any
outstanding Base Rate Loans which were then overdue. If the Borrowers fail to
timely reimburse the Issuing Lender on the date the Borrowers receive the
notice referred to in this Section 3.5, the Borrowers shall be deemed to have
timely given a Notice of Borrowing hereunder to the Administrative Agent
requesting the Lenders to make a Base Rate Loan on such date in an amount equal
to the amount of such drawing and, regardless of whether or not the conditions
precedent specified in Article V have been satisfied, the Lenders shall make
Base Rate Loans in such amount, the proceeds of which shall be applied to
reimburse the Issuing Lender for the amount of the related drawing and costs
and expenses.
SECTION 3.6 OBLIGATIONS ABSOLUTE. The Borrowers' obligations
under this Article III (including without limitation the Reimbursement
Obligation) shall be absolute and unconditional under any and all circumstances
and irrespective of any set-off, counterclaim or defense to payment which the
Borrowers may have or have had against the Issuing Lender or any beneficiary of
a Letter of Credit. The Borrowers also agree with the Issuing Lender that the
Issuing Lender shall not be responsible for, and the Borrowers' Reimbursement
Obligation under Section 3.5 shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even
though such documents shall in fact prove to be invalid, fraudulent or forged,
or any dispute between or among the Borrowers and any beneficiary of any Letter
of Credit or any other party to which such Letter of Credit may be transferred
or any claims whatsoever of a Borrower against any beneficiary of such Letter
of Credit or any such transferee. The Issuing Lender shall not be liable for
any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with any
Letter of Credit, except for errors or omissions caused by the Issuing Lender's
gross negligence or willful misconduct. The Borrowers agree that any action
taken or omitted by the Issuing Lender under or in connection with any Letter
of Credit or the related drafts or documents, if done in the absence of gross
negligence or willful misconduct and in accordance with the standards of care
specified in the Uniform Customs and, to the extent not inconsistent therewith,
the UCC shall be binding on the Borrowers and shall not result in any liability
of the Issuing Lender to the Borrowers. The
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responsibility of the Issuing Lender to the Borrowers in connection with any
draft presented for payment under any Letter of Credit shall, in addition to
any payment obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft) delivered
under such Letter of Credit in connection with such presentment are in
conformity with such Letter of Credit.
SECTION 3.7 EFFECT OF APPLICATION. To the extent that any
provision of any Application related to any Letter of Credit is inconsistent
with the provisions of this Article III, the provisions of this Article III
shall apply.
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1 INTEREST.
(a) Interest Rate Options. Subject to the provisions of this
Section 4.1, at the election of the Borrowers, the aggregate principal balance
of the Notes or any portion thereof shall bear interest at the Base Rate or the
LIBOR Rate plus, in each case, the Applicable Margin as set forth below;
provided that the LIBOR Rate shall not be available until three (3) Business
Days after the Closing Date. The Borrowers shall select the rate of interest
and Interest Period, if any, applicable to any Loan at the time a Notice of
Borrowing is given pursuant to Section 2.2(a) or at the time a Notice of
Conversion/Continuation is given pursuant to Section 4.2. Each Loan or portion
thereof bearing interest based on the Base Rate shall be a "Base Rate Loan",
each Loan or portion thereof bearing interest based on the LIBOR Rate shall be
a "LIBOR Rate Loan." Any Loan or any portion thereof as to which the Borrowers
have not duly specified an interest rate as provided herein shall be deemed a
Base Rate Loan.
(b) Interest Periods. In connection with each LIBOR Rate Loan,
the Borrowers, by giving notice at the times described in Section 4.1(a), shall
elect an interest period (each, an "Interest Period") to be applicable to such
Loan, which Interest Period shall be a period of one (1), three (3), or six (6)
months with respect to each LIBOR Rate Loan; provided that:
(i) the Interest Period shall commence on the
date of advance of or conversion to any LIBOR Rate Loan and, in the case of
immediately successive Interest Periods, each successive Interest Period shall
commence on the date on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise
expire on a day that is not a Business Day, such Interest Period shall expire
on the next succeeding Business Day; provided, that if any Interest Period with
respect to a LIBOR Rate Loan would otherwise expire on a day that is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next preceding
Business Day;
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(iii) any Interest Period with respect to a LIBOR
Rate Loan that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Business Day of the
relevant calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the
Termination Date; and
(v) there shall be no more than five (5)
Interest Periods outstanding at any time.
(c) Applicable Margin. The Applicable Margin provided for in
Section 4.1(a) with respect to the Loans (the "Applicable Margin") shall (i) on
the Closing Date equal the percentages set forth in the certificate delivered
pursuant to Section 5.2(e)(ii) and (ii) for each fiscal quarter thereafter be
determined by reference to the Leverage Ratio as of the end of the fiscal
quarter immediately preceding the delivery of the applicable Officer's
Compliance Certificate as follows:
Leverage Applicable Margin for
Ratio Base Rate Loans LIBOR Rate Loans
----- ----------------------------------------
greater than or equal to 7.00 1.500% 2.500%
less than 7.00 but greater than or
equal to 6.00 1.250% 2.250%
less than 6.00 but greater than or
equal to 5.00 1.000% 2.000%
less than 5.00 but greater than or
equal to 4.00 0.750% 1.750%
less than 4.00 0.500% 1.500%
; provided, that at all times that Consolidated Cash Flow for the Loan Parties
and their Subsidiaries is less than or equal to zero Dollars ($0), the highest
Applicable Margin shall apply. Adjustments, if any, in the Applicable Margin
shall be made by the Administrative Agent on the tenth (10th) Business Day
after receipt by the Administrative Agent of quarterly financial statements for
the Loan Parties and the accompanying Officer's Compliance Certificate setting
forth the Leverage Ratio of the Loan Parties as of the most recent fiscal
quarter end. Subject to Section 4.1(d), in the event the Loan Parties fail to
deliver such financial statements and certificate within the time required by
Section 7.1(a), the Applicable Margin shall be the highest Applicable Margin
set forth above until the delivery of such financial statements and
certificate.
(d) Default Rate. Subject to Section 12.3, at the option of the
Administrative Agent and the Required Lenders, upon the occurrence and during
the continuance of an Event of Default, (i) the Borrowers shall no longer have
the option to request LIBOR Rate Loans, (ii) all outstanding LIBOR Rate Loans
shall bear interest at a rate per annum two percent (2%) in excess of the rate
then applicable to LIBOR Rate Loans, as applicable, until the end of the
applicable Interest Period and thereafter at a rate equal to two percent (2%)
in excess of the rate then
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applicable to Base Rate Loans, and (iii) all outstanding Base Rate Loans shall
bear interest at a rate per annum equal to two percent (2%) in excess of the
rate then applicable to Base Rate Loans. Interest shall continue to accrue on
the Notes after the filing by or against the Borrowers of any petition seeking
any relief in bankruptcy or under any act or law pertaining to insolvency or
debtor relief, whether state, federal or foreign.
(e) Interest Payment and Computation. Interest on each Base Rate
Loan shall be payable in arrears on the last Business Day of each calendar
quarter commencing December 31, 1998 and interest on each LIBOR Rate Loan shall
be payable on the last day of each Interest Period applicable thereto, and if
such Interest Period extends over three (3) months, at the end of each three
(3) month interval during such Interest Period. Interest on all LIBOR Rate
Loans shall be computed on the basis of a 360-day year and assessed for the
actual number of days elapsed. All other interest rates, and all fees and
commissions provided hereunder shall be computed on the basis of a 365 or
366-day year, as applicable, and assessed for the actual number of days
elapsed.
(f) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the
maximum rate permitted by Applicable Law and the Lenders shall at the
Administrative Agent's option promptly refund to the Borrowers any interest
received by Lenders in excess of the maximum lawful rate or shall apply such
excess to the principal balance of the Obligations. It is the intent hereof
that the Borrowers not pay or contract to pay, and that neither the
Administrative Agent nor any Lender receive or contract to receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may be
paid by the Borrowers under Applicable Law.
SECTION 4.2 NOTICE AND MANNER OF CONVERSION OR CONTINUATION OF
LOANS. Provided that no Event of Default has occurred and is then continuing,
the Borrowers shall have the option to (a) convert at any time all or any
portion of its outstanding Base Rate Loans in a principal amount equal to
$5,000,000 or any whole multiple of $1,000,000 in excess thereof into one or
more LIBOR Rate Loans and (b) upon the expiration of any Interest Period, (i)
convert all or any part of its outstanding LIBOR Rate Loans in a principal
amount equal to $1,000,000 or a whole multiple of $500,000 in excess thereof
into Base Rate Loans or (ii) continue such LIBOR Rate Loans as LIBOR Rate
Loans. Whenever the Borrowers desire to convert or continue Loans as provided
above, the Borrowers shall give the Administrative Agent irrevocable prior
written notice in the form attached as Exhibit D (a "Notice of Conversion/
Continuation") not later than 11:00 a.m. (Charlotte time) three (3) Business
Days before the day on which a proposed conversion or continuation of such Loan
is to be effective specifying (A) the Loans to be converted or continued, and,
in the case of any LIBOR Rate Loan to be converted or continued, the last day
of the Interest Period therefor, (B) the effective date of such conversion or
continuation (which shall be a Business Day), (C) the principal amount of such
Loans to be converted or continued, and (D) the Interest Period to be
applicable to such converted or
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continued LIBOR Rate Loan. The Administrative Agent shall promptly notify the
Lenders of such Notice of Conversion/Continuation.
SECTION 4.3 FEES.
(a) Commitment Fee. Commencing on the Closing Date, the Borrowers
shall pay to the Administrative Agent, for the account of the Lenders, a
non-refundable commitment fee (the "Commitment Fee") at a rate per annum equal
to (i) 0.500% at all times that the Leverage Ratio is less than zero or is
greater than or equal to 6.0 to 1.0 and (ii) 0.375% at all times that the
Leverage Ratio is less than 6.0 to 1.0 but greater than or equal to zero, in
each case on the average daily unused portion of the Aggregate Commitment
(outstanding Letters of Credit shall be considered usage); provided that, at
all times that Consolidated Cash Flow is less than or equal to zero dollars
($0), the Commitment Fee shall be 0.750%. The Commitment Fee shall be payable
on a quarterly basis in arrears on the date that is five (5) Business Days
after the date of receipt by the Guarantor of an invoice setting forth the
amount of such Commitment Fee and on the Termination Date. Such Commitment Fee
shall be distributed by the Administrative Agent to the Lenders pro rata in
accordance with the Lenders' respective Commitment Percentages.
(b) Administrative Agent's and Other Fees. In order to compensate
the Administrative Agent for structuring and syndicating the Loans and for its
obligations hereunder, the Borrowers agree to pay to the Administrative Agent,
for its account, the fees set forth in the separate fee letter agreement
executed by the Guarantor, on behalf of the Borrowers, and the Administrative
Agent dated October 16, 1998.
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SECTION 4.4 MANNER OF PAYMENT. Each payment by the Borrowers on
account of the principal of or interest on the Loans or of any fee, commission
or other amounts (including the Reimbursement Obligation) payable to the
Lenders under this Agreement or any Note shall be made not later than 1:00 p.m.
(Charlotte time) on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent's Office for the account of
the Lenders (other than as set forth below) pro rata in accordance with their
respective Commitment Percentages (except as specified below), in Dollars, in
immediately available funds and shall be made without any set-off, counterclaim
or deduction whatsoever. Any payment received after such time but before 2:00
p.m. (Charlotte time) on such day shall be deemed a payment on such date for
the purposes of Section 12.1, but for all other purposes shall be deemed to
have been made on the next succeeding Business Day. Any payment received after
2:00 p.m. (Charlotte time) shall be deemed to have been made on the next
succeeding Business Day for all purposes. Upon receipt by the Administrative
Agent of each such payment, the Administrative Agent shall distribute to each
Lender at its address for notices set forth herein its pro rata share of such
payment in accordance with such Lender's Commitment Percentage (except as
specified below) and shall wire advice of the amount of such credit to each
Lender. Each payment to the Administrative Agent of the Issuing Lender's fees
or L/C Participants' commissions shall be made in like manner, but for the
account of the Issuing Lender or the L/C Participants, as the case may be. Each
payment to the Administrative Agent of Administrative Agent's fees or expenses
shall be made for the account of the Administrative Agent and any amount
payable to any Lender under Sections 4.8, 4.9, 4.10, 4.11 or 14.2 shall be paid
to the Administrative Agent for the account of the applicable Lender. Subject
to Section 4.1(b)(ii), if any payment under this Agreement or any Note shall be
specified to be made upon a day which is not a Business Day, it shall be made
on the next succeeding day which is a Business Day and such extension of time
shall in such case be included in computing any interest if payable along with
such payment.
SECTION 4.5 CREDITING OF PAYMENTS AND PROCEEDS. In the event
that the Borrowers shall fail to pay any of the Obligations when due and the
Obligations have been accelerated pursuant to Section 12.2(a), all payments
received by the Lenders upon the Notes and the other Obligations and all net
proceeds from the enforcement of the Obligations shall be applied first to all
expenses then due and payable by the Borrowers hereunder, then to all indemnity
obligations then due and payable by the Borrowers hereunder, then to all
Administrative Agent's and Issuing Lender's fees then due and payable, then to
all commitment and other fees and commissions then due and payable, then to
accrued and unpaid interest on the Notes, Reimbursement Obligation and any
termination payments due in respect of a Hedging Agreement with any Lender (pro
rata in accordance with all such amounts due), then to the principal amount of
the Notes and Reimbursement Obligation (pro rata in accordance with all such
amounts due) and then to the cash collateral account described in Section
12.2(b) hereof to the extent of any L/C Obligations then outstanding, in that
order.
SECTION 4.6 ADJUSTMENTS. If any Lender (a "Benefited Lender")
shall at any time receive any payment of all or part of the Obligations owing
to it, or interest thereon, or if any Lender shall at any time receive any
collateral in respect to the Obligations owning to it (whether voluntarily or
involuntarily, by set-off or otherwise) in a greater proportion than any such
payment to and collateral received by any other Lender, if any, in respect of
the Obligations owning to it such other Lender, or interest thereon, such
Benefited Lender shall purchase for
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cash from the other Lenders such portion of each such other Lender's Extensions
of Credit, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, that if all or any portion
of such excess payment or benefits is thereafter recovered from such Benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned to the extent of such recovery, but without interest. The Borrowers
agree that each Lender so purchasing a portion of another Lender's Extensions
of Credit may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
SECTION 4.7 NATURE OF OBLIGATIONS OF LENDERS REGARDING
EXTENSIONS OF CREDIT; ASSUMPTION BY THE ADMINISTRATIVE AGENT. The obligations
of the Lenders under this Agreement to make the Loans and issue or participate
in Letters of Credit are several and are not joint or joint and several. Unless
the Administrative Agent shall have received notice from a Lender prior to a
proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
accordance with Section 2.2(b) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrowers on such date a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to the product of
(a) the amount of such Lender's Commitment Percentage of such borrowing, times
(b) the daily average Federal Funds Rate during such period as determined by
the Administrative Agent, times (c) a fraction the numerator of which is the
number of days that elapse from and including such borrowing date to the date
on which such Lender's Commitment Percentage of such borrowing shall have
become immediately available to the Administrative Agent and the denominator of
which is 360. A certificate of the Administrative Agent with respect to any
amounts owing under this Section 4.7 shall be conclusive, absent manifest
error. If such Lender's Commitment Percentage of such borrowing is not made
available to the Administrative Agent by such Lender within three (3) Business
Days of such borrowing date, the Administrative Agent shall be entitled to
recover such amount made available by the Administrative Agent with interest
thereon at the rate per annum applicable to Base Rate Loans hereunder, on
demand, from the Borrowers. The failure of any Lender to make its Commitment
Percentage of any Loan available shall not relieve it or any other Lender of
its obligation, if any, hereunder to make its Commitment Percentage of such
Loan available on such borrowing date, but no Lender shall be responsible for
the failure of any other Lender to make its Commitment Percentage of such Loan
available on the borrowing date.
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SECTION 4.8 CHANGED CIRCUMSTANCES.
(a) Circumstances Affecting LIBOR Rate Availability. If with
respect to any Interest Period the Administrative Agent or any Lender (after
consultation with Administrative Agent) shall determine that, by reason of
circumstances affecting the foreign exchange and interbank markets generally,
deposits in eurodollars, in the applicable amounts are not being quoted via
Telerate Page 3750 or offered to the Administrative Agent or such Lender for
such Interest Period, then the Administrative Agent shall forthwith give notice
thereof to the Borrowers. Thereafter, until the Administrative Agent notifies
the Borrowers that such circumstances no longer exist, the obligation of the
Lenders to make LIBOR Rate Loans and the right of the Borrowers to convert any
Loan to or continue any Loan as a LIBOR Rate Loan shall be suspended, and the
Borrowers shall repay in full (or cause to be repaid in full) the then
outstanding principal amount of each such LIBOR Rate Loans together with
accrued interest thereon, on the last day of the then current Interest Period
applicable to such LIBOR Rate Loan or convert the then outstanding principal
amount of each such LIBOR Rate Loan to a Base Rate Loan as of the last day of
such Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the date
hereof, the introduction of, or any change in, any Applicable Law or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any of their respective
Lending Offices) with any request or directive (whether or not having the force
of law) of any such Governmental Authority, central bank or comparable agency,
shall make it unlawful or impossible for any of the Lenders (or any of their
respective Lending Offices) to honor its obligations hereunder to make or
maintain any LIBOR Rate Loan, such Lender shall promptly give notice thereof to
the Administrative Agent and the Administrative Agent shall promptly give
notice to the Borrowers and the other Lenders. Thereafter, until the
Administrative Agent notifies the Borrowers that such circumstances no longer
exist, (i) the obligations of the Lenders to make LIBOR Rate Loans and the
right of the Borrowers to convert any Loan or continue any Loan as a LIBOR Rate
Loan shall be suspended and thereafter the Borrowers may select only Base Rate
Loans hereunder, and (ii) if any of the Lenders may not lawfully continue to
maintain a LIBOR Rate Loan to the end of the then current Interest Period
applicable thereto as a LIBOR Rate Loan, the applicable LIBOR Rate Loan shall
immediately be converted to a Base Rate Loan for the remainder of such Interest
Period.
(c) Increased Costs. If, after the date hereof, the introduction
of, or any change in, any Applicable Law, or in the interpretation or
administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any of the Lenders (or any of their respective Lending Offices)
with any request or directive (whether or not having the force of law) of such
Governmental Authority, central bank or comparable agency:
(i) shall subject any of the Lenders (or any of
their respective Lending Offices) to any tax, duty or other charge with respect
to any Note, Letter of Credit or Application or shall change the basis of
taxation of payments to any of the Lenders (or any of their respective Lending
Offices) of the principal of or interest on any Note, Letter of Credit or
Application or
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any other amounts due under this Agreement in respect thereof (except for
changes in the rate of tax on the overall net income of any of the Lenders or
any of their respective Lending Offices imposed by the jurisdiction in which
such Lender is organized or is or should be qualified to do business or such
Lending Office is located); or
(ii) shall impose, modify or deem applicable
any reserve (including, without limitation, any imposed by the Board of
Governors of the Federal Reserve System), special deposit, insurance or capital
or similar requirement against assets of, deposits with or for the account of,
or credit extended by any of the Lenders (or any of their respective Lending
Offices) or shall impose on any of the Lenders (or any of their respective
Lending Offices) or the foreign exchange and interbank markets any other
condition affecting any Note;
and the result of any of the foregoing is to increase the costs to any of the
Lenders of maintaining any LIBOR Rate Loan or issuing or participating in
Letters of Credit or to reduce the yield or amount of any sum received or
receivable by any of the Lenders under this Agreement or under the Notes in
respect of a LIBOR Rate Loan or Letter of Credit or Application, then such
Lender shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify the Borrowers of such fact and demand compensation
therefor and, within fifteen (15) days after such notice by the Administrative
Agent, the Borrowers shall pay to such Lender such additional amount or amounts
as will compensate such Lender or Lenders for such increased cost or reduction.
The Administrative Agent will promptly notify the Borrowers of any event of
which it has knowledge which will entitle such Lender to compensation pursuant
to this Section 4.8(c); provided, that the Administrative Agent shall incur no
liability whatsoever to the Lenders or the Borrowers in the event it fails to
do so. The amount of such compensation shall be determined, in the applicable
Lender's sole discretion, based upon the assumption that such Lender funded its
Commitment Percentage of the LIBOR Rate Loans in the London interbank market
and using any reasonable attribution or averaging methods which such Lender
deems appropriate and practical. A certificate of such Lender setting forth the
basis for determining such amount or amounts necessary to compensate such
Lender shall be forwarded to the Borrowers through the Administrative Agent and
shall be conclusively presumed to be correct save for manifest error.
SECTION 4.9 INDEMNITY. The Borrowers hereby indemnify each of
the Lenders against any loss or expense which may arise or be attributable to
each Lender's obtaining, liquidating or employing deposits or other funds
acquired to effect, fund or maintain any Loan (a) as a consequence of any
failure by the Borrowers to make any payment when due of any amount due
hereunder in connection with a LIBOR Rate Loan, (b) due to any failure of the
Borrowers to borrow on a date specified therefor in a Notice of Borrowing or
Notice of Continuation/Conversion or (c) due to any payment, prepayment or
conversion of any LIBOR Rate Loan on a date other than the last day of the
Interest Period therefor. The amount of such loss or expense shall be
determined, in the applicable Lender's sole discretion, based upon the
assumption that such Lender funded its Commitment Percentage of the LIBOR Rate
Loans in the London interbank market and using any reasonable attribution or
averaging methods which such Lender deems appropriate and practical. A
certificate of such Lender setting forth the basis for determining such amount
or amounts necessary to compensate such Lender shall be forwarded to
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the Borrowers through the Administrative Agent and shall be conclusively
presumed to be correct save for manifest error.
SECTION 4.10 CAPITAL REQUIREMENTS. If either (a) the introduction
of, or any change in, or in the interpretation of, any Applicable Law or (b)
compliance with any guideline or request from any central bank or comparable
agency or other Governmental Authority (whether or not having the force of
law), has or would have the effect of reducing the rate of return on the
capital of, or has affected or would affect the amount of capital required to
be maintained by, any Lender or any corporation controlling such Lender as a
consequence of, or with reference to the Commitments and other commitments of
this type, below the rate which the Lender or such other corporation could have
achieved but for such introduction, change or compliance, then within five (5)
Business Days after written demand by any such Lender, the Borrowers shall pay
to such Lender from time to time as specified by such Lender additional amounts
sufficient to compensate such Lender or other corporation for such reduction. A
certificate as to such amounts submitted to the Borrowers and the
Administrative Agent by such Lender, shall, in the absence of manifest error,
be presumed to be correct and binding for all purposes.
SECTION 4.11 TAXES.
(a) Payments Free and Clear. Any and all payments by the
Borrowers hereunder or under the Notes or the Letters of Credit shall be made
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholding, and all liabilities
with respect thereto excluding, (i) in the case of each Lender and the
Administrative Agent, income and franchise taxes imposed by the jurisdiction
under the laws of which such Lender or the Administrative Agent (as the case
may be) is organized or is or should be qualified to do business or any
political subdivision thereof and (ii) in the case of each Lender, income and
franchise taxes imposed by the jurisdiction of such Lender's Lending Office or
any political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Borrowers shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder or under any Note or
Letter of Credit to any Lender or the Administrative Agent, (A) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 4.11) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the amount such party would have received had no
such deductions been made, (B) the Borrowers shall make such deductions, (C)
the Borrowers shall pay the full amount deducted to the relevant taxing
authority or other authority in accordance with applicable law, and (D) the
Borrowers shall deliver to the Administrative Agent evidence of such payment to
the relevant taxing authority or other authority in the manner provided in
Section 4.11(d).
(b) Stamp and Other Taxes. In addition, the Borrowers shall pay
any present or future stamp, registration, recordation or documentary taxes or
any other similar fees or charges or excise or property taxes, levies of the
United States or any state or political subdivision thereof or any applicable
foreign jurisdiction which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement, the
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Loans, the Letters of Credit, the other Loan Documents, or the perfection of
any rights or security interest in respect thereto (hereinafter referred to as
"Other Taxes").
(c) Indemnity. The Borrowers shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 4.11) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be made within thirty (30) days from the date such
Lender or the Administrative Agent (as the case may be) makes written demand
therefor.
(d) Evidence of Payment. Within thirty (30) days after the date
of any payment of Taxes or Other Taxes by the Borrowers, the Borrowers shall
furnish to the Administrative Agent, at its address referred to in Section
14.1, the original or a certified copy of a receipt evidencing payment thereof
or other evidence of payment satisfactory to the Administrative Agent.
(e) Assignment of Interest. In the event that the Borrowers shall
be required to withhold or deduct Taxes from any sum payable hereunder, then,
provided that no Default or Event of Default has occurred and is continuing at
such time, the Borrowers may, at their own expense (such expense to include any
transfer fee payable to the Administrative Agent), in their sole discretion (a)
require any Lender as to which Borrowers have been required to withhold or
deduct Taxes to transfer and assign in whole or in part, without recourse, all
or part of its interests, rights and obligations under this Agreement to an
Eligible Assignee which, subject to the consent thereof, shall assume such
assigned obligations; provided that (i) such assignment shall not relieve the
Borrowers from their obligation to pay such additional amounts that may be due
in accordance with this Section 4.11, (ii) such assignment shall not conflict
with any law, rule or regulation or order of any court or other Governmental
Authority and (iii) the Borrowers or such assignee shall have paid to the
assigning Lender in immediately available funds the principal of, and interest
accrued on, the Loans to the date of such assignment and all accrued fees and
other amounts owed to it hereunder or (b) terminate the Commitment of such
Lender as to which the Borrowers have been required to withhold or deduct Taxes
and prepay, in immediately available funds the principal of, and interest
accrued on, all outstanding Loans of such Lender as of the date of such
prepayment; provided that (i) such termination of the Commitment of such Lender
shall not relieve the Borrowers from their obligations to pay such additional
amounts that may be due in accordance with this Section 4.11 and (ii) such
termination of the Commitment of such Lender and prepayment of such Loans does
not conflict with any law, rule or regulation or order of any court or other
Governmental Authority.
(f) Delivery of Tax Forms. Each Lender organized under the laws
of a jurisdiction other than the United States or any state thereof shall
deliver to the Borrowers, with a copy to the Administrative Agent, on the
Closing Date or concurrently with the delivery of the relevant Assignment and
Acceptance, as applicable, (i) two United States Internal Revenue Service Forms
4224 or Forms 1001 (or successor forms), as applicable, properly completed and
certifying in each case that such Lender is entitled to a complete exemption
from withholding or deduction for or on account of any United States federal
income taxes, and (ii) an Internal
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Revenue Service Form W-8 or W-9 or successor applicable form, as the case may
be, to establish an exemption from United States backup withholding taxes. Each
such Lender further agrees to deliver to the Borrowers, with a copy to the
Administrative Agent, a Form 1001 or 4224 and Form W-8 or W-9, or successor
applicable forms or manner of certification, as the case may be, on or before
the date that any such form expires or becomes obsolete or after the occurrence
of any event requiring a change in the most recent form previously delivered by
it to the Borrowers, certifying in the case of a Form 1001 or 4224 that such
Lender is entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes (unless in any such
case an event (including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders such forms inapplicable or the exemption to
which such forms relate unavailable and such Lender notifies the Borrowers and
the Administrative Agent that it is not entitled to receive payments without
deduction or withholding of United States federal income taxes) and, in the
case of a Form W-8 or W-9, establishing an exemption from United States backup
withholding tax.
(g) Survival. Without prejudice to the survival of any other
agreement of the Borrowers hereunder, the agreements and obligations of the
Borrowers contained in this Section 4.11 shall survive the payment in full of
the Obligations and the termination of the Commitments.
SECTION 4.12 CHANGE IN LENDING OFFICE.
Each Lender agrees that, upon the occurrence of any event giving rise
to the operation of Section 4.8, 4.9, 4.10 or 4.11 with respect to such Lender,
it will use its best efforts to designate another lending office as its Lending
Office for any Loans affected by such event with the intent of avoiding the
consequence of the event giving rise to the operation of any such Section;
provided, that such designation is made on such terms that such Lender and its
Lending Office suffer no economic, legal or regulatory disadvantage as a
consequence thereof.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1 CLOSING. The closing shall take place at the offices
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m. on December 22, 1998, or on such
other date as the parties hereto shall mutually agree.
SECTION 5.2 CONDITIONS TO CLOSING AND INITIAL EXTENSIONS OF
CREDIT. The obligation of the Lenders to close this Agreement and to make the
initial Loan or issue the initial Letter of Credit are subject to the
satisfaction of each of the following conditions:
(a) Executed Loan Documents. The following Loan Documents, in
form and substance satisfactory to the Administrative Agent and each Lender:
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(i) this Agreement;
(ii) the Notes;
(iii) the Security Agreement dated as of the date hereof;
(iv) all Pledge Agreements dated as of the date hereof;
(v) all Mortgages dated as of the date hereof; and
(vi) all Collateral Assignments dated as of the date
hereof;
shall have been duly authorized, executed and delivered by the Loan Parties
which are parties thereto, shall be in full force and effect and no default
shall exist thereunder, and the Loan Parties which are parties thereto shall
have delivered original counterparts thereof to the Administrative Agent.
(b) Closing Certificates; etc.
(i) Officer's Certificates of the Loan Parties.
The Administrative Agent shall have received a certificate from a Responsible
Officer of the Guarantor, in form and substance satisfactory to the
Administrative Agent, to the effect that all representations and warranties of
each Loan Party contained in this Agreement and the other Loan Documents are
true, correct and complete; that no Loan Party is in violation of any of the
covenants contained in this Agreement and the other Loan Documents; that, after
giving effect to the transactions contemplated by this Agreement, no Default or
Event of Default has occurred and is continuing; and that each Loan Party has
satisfied each of the closing conditions applicable to such Loan Party.
(ii) General Certificates of the Loan Parties.
The Administrative Agent shall have received a certificate of the secretary or
assistant secretary of each Loan Party certifying that attached thereto is a
true and complete copy of the articles of incorporation of such Loan Party and
all amendments thereto, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of incorporation; that attached
thereto is a true and complete copy of the bylaws of such Loan Party as in
effect on the date of such certification; that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors of such
Loan Party authorizing the transactions contemplated hereunder and the
execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party; and as to the incumbency and genuineness of
the signature of each officer of such Loan Party executing Loan Documents to
which it is a party.
(iii) Certificates of Good Standing. The
Administrative Agent shall have received long-form certificates as of a recent
date of the good standing of each Loan Party under the laws of its jurisdiction
of organization and each other jurisdiction where such Loan Party is qualified
to do business and a certificate of the relevant taxing authorities of such
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jurisdictions certifying that such Person has filed required tax returns and
owes no delinquent taxes.
(iv) Opinions of Counsel. The Administrative
Agent shall have received favorable opinions of counsel to the Loan Parties
addressed to the Administrative Agent and the Lenders (A) with respect to the
Loan Parties, the Loan Documents, the Collateral, and such other matters, and
covering such jurisdictions, as the Lenders shall reasonably request, (B) with
respect to FCC matters and (C) with respect to state law communication matters,
each in form and substance reasonably satisfactory to the Administrative Agent.
(v) Tax Forms. The Administrative Agent shall
have received copies of the United States Internal Revenue Service forms
required by Section 4.11(f).
(c) Collateral.
(i) Filings and Recordings. All filings and
recordations that are necessary to perfect the security interests of the
Lenders in the collateral described in the Security Documents shall have been
properly executed and delivered by the Borrowers and the Administrative Agent
shall be reasonably satisfied that such security interests, upon proper filing
of such filings and recordations, shall constitute valid and perfected first
priority Liens therein.
(ii) Pledged Stock. The Administrative Agent
shall have received (A) original stock certificates or other certificates
evidencing the capital stock or other ownership interests pledged pursuant to
the Pledge Agreement, together with an undated stock or other power for each
certificate duly executed in blank by the registered owner thereof and (B) each
original promissory note pledged pursuant to the Pledge Agreement.
(iii) Lien Search. The Loan Parties shall have
delivered the results of a Lien search made against the Loan Parties under the
Uniform Commercial Code as in effect in any state in which any of its assets
are located, indicating among other things that its assets are free and clear
of any Lien except for Liens permitted hereunder.
(iv) Hazard and Liability Insurance. The
Administrative Agent shall have received certificates of insurance, evidence of
payment of all insurance premiums for the current policy year of each, and, if
requested by the Administrative Agent, copies (certified by an officer of a
Loan Party acceptable to the Administrative Agent) of insurance policies in the
form required under the Security Documents and otherwise in form and substance
reasonably satisfactory to the Administrative Agent.
(v) Title Insurance. The Administrative Agent
shall have received a commitment for a policy of title insurance, insuring
Lenders' first priority Liens and showing no Liens prior to Lenders' Liens
other than for ad valorem taxes not yet due and payable, with title insurance
companies acceptable to the Administrative Agent on the property subject to the
Mortgages with the final title insurance policy, being delivered within thirty
(30) days after the Closing Date. Further, the Loan Parties agree to provide or
obtain any customary affidavits and
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indemnities as may be required or necessary to obtain title insurance
satisfactory to the Administrative Agent.
(vi) System Documents. Copies of the CATV
Franchises (and resolutions relating thereto), Pole Agreements, Programming
Agreements, Communications Licenses, real property leases, and Capital Leases
in existence as of the date hereof and all required assignments thereof and
consents to such assignments requested by the Administrative Agent or Lenders
and not already delivered to the Administrative Agent.
(vii) Programming Agreements. A duly executed
copy of each Programming Agreement.
(viii) Network Agreements. A duly executed copy of
each Network Agreement.
(ix) Matters Relating to Flood Hazard
Properties. (a) Certification from the National Research Center regarding each
parcel of property subject to a Mortgage and (b) evidence of flood insurance,
in form and substance reasonably satisfactory to the Administrative Agent, for
each parcel of property subject to a Mortgage that is located in a flood plain
on any certificate delivered pursuant to clause (a) of this Section 5.2(c)(x).
(x) Surveys. Copies of surveys in form and
substance and as of a date satisfactory to the Administrative Agent for each
parcel of real property subject to a Mortgage.
(xi) Environmental Assessments. A Phase I
environmental assessment or similar assessment of each parcel of real property
subject to a Mortgage in form and substance acceptable to the Administrative
Agent.
(d) Consents; Defaults.
(i) Governmental and Third Party Approvals. All
necessary approvals, authorizations and consents, if any be required, of any
Person and of all Governmental Authorities and courts having jurisdiction with
respect to the transactions contemplated by this Agreement and the other Loan
Documents shall have been obtained; provided, that, with respect to any consent
of a third party required in connection with any grant of a security interest
pursuant to any of the Security Documents, if any Loan Party notifies the
Administrative Agent that such Loan Party cannot, as reasonably determined by
the Loan Parties in consultation with the Administrative Agent and Lenders,
obtain such consent following commercially reasonable efforts to obtain such
consent, the Administrative Agent and Lenders may waive any requirement that
the Loan Parties obtain such consent or may permit such assets to be excluded
from the Collateral, unless the Administrative Agent and Lenders determine, in
their reasonable judgment, that such consent or such grant of a security
interest in such assets is necessary to fully secure the Credit Facility.
Schedule 5.2(d) hereto sets forth the third party consents to the granting of
security interests pursuant to the Security Documents which the Borrowers (A)
are required to deliver on the Closing Date, and (B) are required to use best
efforts to obtain after the Closing Date pursuant to Section 8.12(c). In
addition to the third party
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consents to the granting of security interests pursuant to the Security
Documents which are expressly waived on Schedule 5.2(d), subject to Section
8.12(c), any such consent which is not expressly required pursuant to Schedule
5.2(d) shall be deemed to be waived..
(ii) Permits and Licenses. All material permits
and licenses, including permits and licenses required under Applicable Laws,
necessary to the conduct of business by the Loan Parties and their
Subsidiaries, including, without limitation, all Communications Licenses, CATV
Franchises and PUC Authorizations shall have been obtained.
(iii) No Injunction, Etc. No material action,
proceeding, investigation, regulation or legislation shall have been
instituted, or to the knowledge of any Loan Party, threatened or proposed
before any Governmental Authority to enjoin, restrain, or prohibit, or to
obtain substantial damages in respect of, or which is related to or arises out
of this Agreement or the other Loan Documents or the consummation of the
transactions contemplated hereby or thereby, or which, in the Administrative
Agent's reasonable discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement and such other Loan Documents.
(iv) Senior Discount Notes. All consents and
waivers necessary to permit the execution and delivery of this Agreement and
each other Loan Document and the performance of the obligations of the Loan
Parties hereunder and thereunder and the consummation of the transactions
contemplated hereby and thereby shall have been obtained.
(v) No Material Adverse Change. There shall not
have occurred any event, condition or state of facts that will or could
reasonably be expected to result in a Material Adverse Effect.
(vi) No Event of Default. No Default or Event of
Default shall have occurred and be continuing.
(e) Financial Matters.
(i) Payment at Closing; Fee Letters. There
shall have been paid by the Borrowers to the Administrative Agent and the
Lenders the fees set forth or referenced in Section 4.3 and any other accrued
and unpaid fees or commissions due hereunder (including, without limitation,
reasonable legal fees and expenses), and to any other Person such amount as may
be due thereto in connection with the transactions contemplated hereby,
including all taxes, fees and other charges in connection with the execution,
delivery, recording, filing and registration of any of the Loan Documents. The
Administrative Agent shall have received duly authorized and executed copies of
the fee letter agreement referred to in Section 4.3(b).
(ii) Applicable Margin Certificate. The Loan
Parties shall have delivered to the Administrative Agent a certificate executed
by a Responsible Officer of the Guarantor setting forth the calculation of the
Applicable Margin pursuant to Section 4.1(c).
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(f) Miscellaneous.
(i) Proceedings and Documents. All opinions,
certificates and other instruments and all proceedings in connection with the
transactions contemplated by this Agreement shall be reasonably satisfactory in
form and substance to the Lenders. The Lenders shall have received copies of
all other instruments and other evidence as the Lenders may reasonably request,
in form and substance reasonably satisfactory to the Lenders, with respect to
the transactions contemplated by this Agreement and the taking of all actions
in connection therewith.
(ii) Due Diligence and Other Documents. The Loan
Parties shall have delivered to the Administrative Agent such other documents,
certificates and opinions as the Administrative Agent reasonably requests,
including without limitation copies of each document evidencing or governing
the Subordinated Debt, certified by a secretary or assistant secretary of a
Loan Party reasonably acceptable to the Administrative Agent as a true and
correct copy thereof.
SECTION 5.3 CONDITIONS TO INITIAL LOAN. The obligation of the
Lenders to make the initial Loan is subject to the satisfaction of each of the
conditions set forth in Section 5.2 and each of the following conditions:
(a) Financial Matters.
(i) Financial Statements. The Administrative Agent shall
have received the most recent audited Consolidated financial statements of the
Loan Parties, prepared in accordance with GAAP.
(ii) Financial Condition Certificate. The Loan Parties
shall have delivered to the Administrative Agent a certificate, in form and
substance satisfactory to the Administrative Agent, and certified as accurate
by a Responsible Officer of the Guarantor, that (A) the Loan Parties are
Solvent, (B) each Loan Party's trade payables are current and not past due in a
manner consistent with the Borrowers' customary payments practices (excluding
trade payables which are being contested in good faith and for which adequate
reserves are maintained to the extent required by GAAP) and (C) attached
thereto is a pro forma balance sheet of the Loan Parties, setting forth on a
pro forma basis the financial condition of the Loan Parties on a Consolidated
basis as of that date, reflecting on a pro forma basis the effect of the
transactions contemplated herein, including all fees and expenses in connection
therewith, and evidencing compliance on a pro forma basis with the covenants
contained in Articles IX and X hereof.
(b) Notices. The Administrative Agent shall have received a Notice
of Borrowing and a Notice of Account Designation from the Guarantor, on behalf
of the Borrowers, each in form and substance reasonably satisfactory to the
Administrative Agent.
SECTION 5.4 CONDITIONS TO ALL EXTENSIONS OF CREDIT. The
obligations of the Lenders to make any Extensions of Credit are subject to the
satisfaction of the following conditions precedent on the relevant borrowing or
issue date, as applicable:
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(a) Continuation of Representations and Warranties. The
representations and warranties contained in Article VI shall be true and
correct on and as of such borrowing or issuance date with the same effect as if
made on and as of such date; except for any representation and warranty made as
of an earlier date, which representation and warranty shall remain true and
correct as of such earlier date.
(b) No Existing Default. No Default or Event of Default
shall have occurred and be continuing hereunder (i) on the borrowing date with
respect to such Loan or after giving effect to the Loans to be made on such
date or (ii) on the issue date with respect to such Letter of Credit or after
giving affect to such Letters of Credit on such date.
(c) Officer's Compliance Certificate; Additional
Documents. The Administrative Agent shall have received the current Officer's
Compliance Certificate and each additional document, instrument, legal opinion
or other item of information reasonably requested by the Administrative Agent.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1 REPRESENTATIONS AND WARRANTIES. To induce the
Administrative Agent to enter into this Agreement and the Lenders to make the
Extensions of Credit, the Loan Parties hereby represent and warrant to the
Administrative Agent and the Lenders that:
(a) Organization; Power; Qualification. The Guarantor and its
respective Subsidiaries are duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation,
has the power and authority to own its properties and to carry on its business
as now being and currently proposed to be conducted and is duly qualified and
authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and
authorization. The jurisdictions in which the Guarantor and its respective
Subsidiaries are organized and qualified to do business as of the Closing Date
are described on Schedule 6.1(a).
(b) Ownership. Each Subsidiary of the Guarantor as of the Closing
Date is listed on Schedule 6.1(b). As of the Closing Date, the capitalization
of the Guarantor and its Subsidiaries consists of the number of shares,
authorized, issued and outstanding, of such classes and series, with or without
par value, described on Schedule 6.1(b). All outstanding shares have been duly
authorized and validly issued and are fully paid and nonassessable. The
shareholders of the Subsidiaries of the Guarantor and the number of shares
owned by each as of the Closing Date are described on Schedule 6.1(b). As of
the Closing Date, there are no outstanding stock purchase warrants,
subscriptions, options, securities, instruments or other rights of any type or
nature whatsoever, which are convertible into, exchangeable for or otherwise
provide for or permit the issuance of capital stock of any Subsidiaries of the
Guarantor, except as described on Schedule 6.1(b).
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(c) Authorization of Agreement, Loan Documents and Borrowing.
Each Loan Party and its respective Subsidiaries, if any, has the right, power
and authority and has taken all necessary corporate and other action to
authorize the execution, delivery and performance of this Agreement and each of
the other Loan Documents to which it is a party in accordance with their
respective terms. This Agreement and each of the other Loan Documents have been
duly executed and delivered by the duly authorized officers of each Loan Party
and its respective Subsidiaries, if any, party thereto, and each such document
constitutes the legal, valid and binding obligation of such Loan Party or its
Subsidiary party thereto, enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state or federal debtor relief laws from time to time in
effect which affect the enforcement of creditors' rights in general and the
availability of equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with
Laws, Etc. The execution, delivery and performance by the Loan Parties and
their Subsidiaries of the Loan Documents to which each such Person is a party,
in accordance with their respective terms, the borrowings hereunder and the
transactions contemplated hereby do not and will not, by the passage of time,
the giving of notice or otherwise, (i) require any Governmental Approval which
has not been obtained or violate any Applicable Law relating to any Loan Party
or any of their Subsidiaries, (ii) conflict with, result in a breach of or
constitute a default under the articles of incorporation, bylaws or other
organizational documents of any Loan Party or any of their Subsidiaries or any
material indenture, agreement or other instrument to which such Person is a
party or by which any of its properties may be bound or any Governmental
Approval relating to such Person, or (iii) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by such Person other than Liens arising under the Loan
Documents, except, in each case, where any of the foregoing, either
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect.
(e) Compliance with Law; Governmental Approvals. Except as set
forth on Schedule 6.1(e), each Loan Party and its Subsidiaries (i) has all
Governmental Approvals required by any Applicable Law for it to conduct its
business as presently conducted, each of which is in full force and effect, is
final and not subject to review on appeal and is not the subject of any pending
or, to the best of its knowledge, threatened attack by direct or collateral
proceeding, and (ii) is in compliance with each Governmental Approval
applicable to it and in compliance with all other Applicable Laws relating to
it or any of its respective properties, except where failure to so comply could
not reasonably be expected to result in a Material Adverse Effect.
(f) Tax Returns and Payments. Each Loan Party and its
Subsidiaries has duly filed or caused to be filed all federal, state, local and
other tax returns required by Applicable Law to be filed, and has paid, or made
adequate provision for the payment of, all federal, state, local and other
taxes, assessments and governmental charges or levies upon it and its property,
income, profits and assets which are due and payable, except where the failure
to so file, pay, or make such provision for payment could not reasonably be
expected to result in a Material Adverse Effect. No Governmental Authority has
asserted any Lien or other claim against the Loan Party or Subsidiary thereof
with respect to unpaid taxes which has not been discharged or resolved.
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The charges, accruals and reserves on the books of the Loan Parties and their
Subsidiaries in respect of federal, state, local and other taxes for all Fiscal
Years and portions thereof since the organization of the Loan Parties and their
Subsidiaries are in the judgment of the Loan Parties adequate, and the Loan
Parties do not anticipate any additional taxes or assessments for any of such
years.
(g) Intellectual Property Matters. Each Loan Party and its
Subsidiaries owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, trade names, trade name rights,
copyrights and rights with respect to the foregoing which are required to
conduct its business. No event has occurred which permits, or after notice or
lapse of time or both would permit, the revocation or termination of any such
rights, and neither such Loan Party nor any Subsidiary thereof is liable to any
Person for infringement under Applicable Law with respect to any such rights as
a result of its business operations, except where such event or liability could
not reasonably be expected to result in a Material Adverse Effect.
(h) Environmental Matters. Except as set forth in the
environmental reports provided to the Administrative Agent and Lenders on or
prior to the Closing Date and identified on Schedule 6.1(h):
(i) The properties of the Loan Parties and
their Subsidiaries do not contain, and to their knowledge have not previously
contained, any Hazardous Materials in amounts or concentrations which (A)
constitute or constituted a violation of, or (B) could give rise to liability
under, applicable Environmental Laws, except where such violation or liability
could not reasonably be expected to result in a Material Adverse Effect;
(ii) Such properties and all operations
conducted in connection therewith are in compliance, and have been in
compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about such properties or such operations which could
reasonably be expected to interfere with the continued operation of such
properties, except where failure to so comply or the existence of such
contamination could not reasonably be expected to result in a Material Adverse
Effect;
(iii) No Loan Party nor any Subsidiary thereof
has received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of their properties or the
operations conducted in connection therewith, and no Loan Party nor any
Subsidiary thereof has knowledge or reason to believe that any such notice will
be received or is being threatened, except where such notice could not
reasonably be expected to result in a Material Adverse Effect;
(iv) To the best knowledge of the Loan Parties
and their Subsidiaries, Hazardous Materials have not been transported or
disposed of from the properties of the Loan Parties or their Subsidiaries in
violation of, or in a manner or to a location which could give rise to
liability under, Environmental Laws, nor since the date of acquisition of such
property by any Loan Party have any Hazardous Materials been generated,
treated, stored or disposed of at, on or
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under any of such properties in violation of, or in a manner that could
reasonably be expected to give rise to liability under, any applicable
Environmental Laws, except where any such event could not reasonably be
expected to result in a Material Adverse Effect;
(v) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the Loan Parties,
threatened, under any Environmental Law to which the Loan Parties or any
Subsidiary thereof is or is expected to be named as a party with respect to
such properties or operations conducted in connection therewith, nor are there
any consent decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial requirements outstanding
under any Environmental Law with respect to such properties or such operations,
except where any such event could not reasonably be expected to result in a
Material Adverse Effect; and
(vi) To the best knowledge of the Loan Parties
or their Subsidiaries, there has been no release, or to the best of the Loan
Parties' knowledge, the threat of release, of Hazardous Materials at or from
such properties, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws, except where such release could not
reasonably be expected to result in a Material Adverse Effect.
(i) ERISA.
(i) As of the Closing Date, no Loan Party nor
any ERISA Affiliate maintains or contributes to, or has any obligation under,
any Employee Benefit Plans other than those identified on Schedule 6.1(i);
(ii) Each Loan Party and each ERISA Affiliate is
in material compliance with all applicable provisions of ERISA and the
regulations and published interpretations thereunder with respect to all
Employee Benefit Plans except for any required amendments for which the
remedial amendment period as defined in Section 401(b) of the Code has not yet
expired. Each Employee Benefit Plan that is intended to be qualified under
Section 401(a) of the Code (A) has been determined by the Internal Revenue
Service to be so qualified, and each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code, or (B) is within the
remedial amendment period as defined in Section 401(b) of the Code as to the
initial adoption of such Employee Benefit Plan. No material liability has been
incurred by any Loan Party or any ERISA Affiliate which remains unsatisfied for
any taxes or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan;
(iii) No Pension Plan has been terminated, nor
has any accumulated funding deficiency (as defined in Section 412 of the Code)
been incurred (without regard to any waiver granted under Section 412 of the
Code), nor has any funding waiver from the Internal Revenue Service been
received or requested with respect to any Pension Plan, nor has any Loan Party
or any ERISA Affiliate failed to make any contributions or to pay any amounts
due and owing as required by Section 412 of the Code, Section 302 of ERISA or
the terms of any Pension Plan prior to the due dates of such contributions
under Section 412 of the Code or Section 302 of ERISA, nor has there been any
event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA
with respect to any Pension Plan;
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(iv) Neither any Loan Party nor any ERISA
Affiliate has: (A) engaged in a nonexempt prohibited transaction described in
Section 406 of the ERISA or Section 4975 of the Code, (B) incurred any
liability to the PBGC which remains outstanding other than the payment of
premiums and there are no premium payments which are due and unpaid, (C) failed
to make a required contribution or payment to a Multiemployer Plan, or (D)
failed to make a required installment or other required payment under Section
412 of the Code;
(v) No Termination Event has occurred or is
reasonably expected to occur; and
(vi) No proceeding, claim, lawsuit and/or
investigation is existing or, to the best knowledge of the Loan Parties after
due inquiry, threatened concerning or involving any (A) employee welfare
benefit plan (as defined in Section 3(1) of ERISA) currently maintained or
contributed to by any Loan Party or any ERISA Affiliate, (B) Pension Plan or
(C) Multiemployer Plan.
(j) Margin Stock. No Loan Party nor any Subsidiary thereof is
engaged principally or as one of its activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" (as
each such term is defined or used in Regulations U of the Board of Governors of
the Federal Reserve System). No part of the proceeds of any of the Loans or
Letters of Credit will be used for purchasing or carrying margin stock or for
any purpose which violates, or which would be inconsistent with, the provisions
of Regulation T, U or X of such Board of Governors.
(k) Government Regulation. No Loan Party nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company" (as each such term is defined or used in the Investment Company Act of
1940, as amended) and no Loan Party nor any Subsidiary thereof is, or after
giving effect to any Extension of Credit will be, subject to regulation under
the Public Utility Holding Company Act of 1935 or the Interstate Commerce Act,
each as amended, or any other Applicable Law which limits its ability to incur
or consummate the transactions contemplated hereby.
(l) Material Contracts. Schedule 6.1(l) sets forth a complete and
accurate list of all Material Contracts of the Loan Parties and their
Subsidiaries in effect as of the Closing Date not listed on any other Schedule
hereto; other than as set forth in Schedule 6.1(l), each such Material Contract
is, and after giving effect to the consummation of the transactions
contemplated by the Loan Documents will be, in full force and effect in
accordance with the terms thereof. The Loan Parties and their Subsidiaries have
delivered to the Administrative Agent a true and complete copy of each Material
Contract required to be listed on Schedule 6.1(l).
(m) Employee Relations. As of the Closing Date, each of the Loan
Parties and their respective Subsidiaries has a stable work force in place and
is not, except as set forth on Schedule 6.1(m), party to any collective
bargaining agreement nor has any labor union been recognized as the
representative of its employees. The Loan Parties know of no pending,
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threatened or contemplated strikes, work stoppage or other collective labor
disputes involving their employees or those of their respective Subsidiaries.
(n) Burdensome Provisions. No Loan Party nor any Subsidiary
thereof is a party to any indenture, agreement, lease or other instrument, or
subject to any corporate or partnership restriction, Governmental Approval or
Applicable Law which is so unusual or burdensome as in the foreseeable future
could be reasonably expected to have a Material Adverse Effect. The Loan
Parties and their Subsidiaries do not presently anticipate that future
expenditures needed to meet the provisions of any statutes, orders, rules or
regulations of a Governmental Authority will be so burdensome as to have a
Material Adverse Effect.
(o) Financial Statements. The (i) Consolidated balance sheets of
the Loan Parties and their Subsidiaries as of December 31, 1997 and the related
Consolidated statements of income and retained earnings and cash flows for the
Fiscal Years then ended and (ii) unaudited Consolidated balance sheet of the
Loan Parties and their Subsidiaries as of June 30, 1998 and related
Consolidated unaudited interim statements of income and retained earnings and
cash flows, copies of which have been furnished to the Administrative Agent and
each Lender, are complete, correct and present fairly in all material respects
the assets, liabilities and financial position of the Loan Parties and their
Subsidiaries as at such dates, and the results of the operations and changes of
financial position for the periods then ended. All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP. The Loan Parties and their Subsidiaries have no Debt,
material obligation or other unusual material forward or long-term commitment
which is not fairly reflected in the foregoing financial statements or in the
notes thereto.
(p) No Material Adverse Change. Since December 31, 1997, there
has been no material adverse change in the properties, business, operations or
condition (financial or otherwise) of any Loan Party and the Subsidiaries
thereof and no event has occurred or condition arisen that could reasonably be
expected to have a Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to
each Extension of Credit made hereunder, the Loan Parties will be Solvent.
(r) Real Property Matters. As of the Closing Date, Schedule
6.1(r) contains a correct listing of all real property owned by any Loan Party,
all easements owned by any Loan Party and all material leases of any Loan
Party. Each Loan Party and its Subsidiaries has such title to the real property
owned by it as is necessary or desirable to the conduct of its business and
valid and legal title to all of its personal property and assets, including,
but not limited to, those reflected on the balance sheets of such Loan Party
and its Subsidiaries delivered pursuant to Section 6.1(o), except those which
have been disposed of by such Loan Party or its Subsidiaries subsequent to such
date which dispositions have been in the ordinary course of business or as
otherwise expressly permitted hereunder.
(s) Liens. None of the properties and assets of the Loan Parties
nor any Subsidiary thereof is subject to any Lien, except Liens permitted
pursuant to Section 10.3. No financing statement under the Uniform Commercial
Code of any state which names the Loan Parties or any
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Subsidiary thereof or any of their respective trade names or divisions as
debtor and which has not been terminated, has been filed in any state or other
jurisdiction and no Loan Party nor any Subsidiary thereof has signed any such
financing statement or any security agreement authorizing any secured party
thereunder to file any such financing statement, except to perfect those Liens
permitted by Section 10.3 hereof.
(t) Debt and Guaranty Obligations. Schedule 6.1(t) is a complete
and correct listing of all Debt and Guaranty Obligations of the Loan Parties
and their Subsidiaries as of the Closing Date in excess of $100,000. The Loan
Parties and their Subsidiaries have performed and are in compliance with all of
the material terms of such Debt and Guaranty Obligations and all instruments
and agreements relating thereto, and no default or event of default, or event
or condition which with notice or lapse of time or both would constitute such a
default or event of default on the part of the Loan Parties or their
Subsidiaries exists with respect to any such Debt or Guaranty Obligation.
(u) Litigation. Except as set forth on Schedule 6.1(u), as of the
Closing Date there are no actions, suits or proceedings pending nor, to the
knowledge of the Loan Parties, threatened against or in any other way relating
adversely to or affecting the Loan Parties or any Subsidiary thereof or any of
their respective properties in any court or before any arbitrator of any kind
or before or by any Governmental Authority, which, if decided adversely to any
of the Loan Parties, could reasonably be expected to result in a Material
Adverse Effect.
(v) Absence of Defaults. No event has occurred or is continuing
which constitutes a Default or an Event of Default, or which constitutes, or
which with the passage of time or giving of notice or both would constitute, a
default or event of default by the Loan Parties or any Subsidiary thereof under
any (A) Material Contract or (B) judgment, decree or order to which the Loan
Parties or their Subsidiaries are a party or by which the Loan Parties or their
Subsidiaries or any of their respective properties may be bound which would
require the Loan Parties or their Subsidiaries to make any material payment
thereunder prior to the scheduled maturity date therefor.
(w) Interactive Broadband Networks and Communications Law
Matters.
(i) Schedule 6.1(w)(i) hereto sets forth, as of
the Closing Date, and each subsequent date required pursuant to Section 8.12 or
Section 10.4, a true and complete list of each Interactive Broadband Network
owned or operated by any Loan Party identified by the jurisdiction served by
such Interactive Broadband Network.
(ii) Schedule 6.1(w)(ii) hereto sets forth, as
of the Closing Date, and each subsequent date required pursuant to Section 8.12
or Section 10.4, a true and complete list of the CATV Franchises (and
expiration dates thereof) of each Loan Party and the jurisdiction served
thereby.
(iii) Schedule 6.1(w)(iii) hereto sets forth, as
of the Closing Date, and each subsequent date required pursuant to Section 8.12
or Section 10.4, a true and complete list of all Communications Licenses and
other PUC Authorizations (and the expiration dates thereof)
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of each Loan Party pertaining to the provision of local telecommunications
services and high-speed internet access and, if applicable, the jurisdiction
served thereby.
(iv) Schedule 6.1(w)(iv) hereto sets forth, as
of the Closing Date, and each subsequent date required pursuant to Section 8.12
or Section 10.4, a true and complete list of all Communications Licenses and
other PUC Authorizations (and the expiration dates thereof) of each Loan Party
pertaining to the provision of long distance telecommunications services and
high-speed internet access and, if applicable, the jurisdiction served thereby.
(v) Schedule 6.1(w)(v) hereto sets forth, as of
the Closing Date, a true and complete list of all Communications Licenses and
other PUC Authorizations (and the expiration dates thereof) not listed on any
other Schedule hereto of any Loan Party, and, if applicable, the jurisdiction
served thereby.
(vi) Schedule 6.1(w)(vi) hereto sets forth, as
of the Closing Date, a true and complete list of the Network Agreements of each
Loan Party and its Subsidiaries which constitute Material Contracts, each of
which is in full force and effect and neither any Loan Party nor, to the best
knowledge of any Loan Party, any of the other parties thereto, is in default of
any of the provisions thereof in any material respect.
(vii) No Loan Party nor any of their respective
Subsidiaries is in violation of any duty or obligation required by any
Communications Law, the Cable Act or any other Applicable Law pertaining to or
regulating the operation of any Interactive Broadband Network or the provision
of Broadband Services, except where such violation could not reasonably be
expected to result in a Material Adverse Effect.
(viii) Each Loan Party and its Subsidiaries
possess all Governmental Approvals necessary to own and operate any Interactive
Broadband Network or any other long distance telecommunications systems
presently operated by such Loan Party or otherwise for the operations of their
businesses and are not in violation thereof, except where the failure to so
possess could not reasonably be expected to have a Material Adverse Effect. All
such material Governmental Approvals are in full force and effect and no event
has occurred that permits, or after notice or lapse of time could permit, the
revocation, termination or material and adverse modification of any such
Governmental Approval.
(ix) There is not pending or, to the best
knowledge of any Loan Party, threatened, any action by the FCC or any other
Governmental Authority to revoke, cancel, suspend or refuse to renew any
Communications License, CATV Franchise or PUC Authorization held by any Loan
Party or any of its Subsidiaries. There is not pending or, to the best
knowledge of any Loan Party, threatened, any action by the FCC or any other
Governmental Authority to modify adversely, revoke, cancel, suspend or refuse
to renew any other Governmental Approval. To the knowledge of the Loan Parties,
no event has occurred and is continuing which could reasonably be expected to
(A) result in the imposition of a material forfeiture or the revocation,
termination or adverse modification of any such Communications License or PUC
Authorization or (B) materially and adversely affect any rights of any Loan
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Party thereunder. Each Loan Party has no reason to believe and has no knowledge
that any of its Communications Licenses or PUC Authorizations will fail to be
renewed in the ordinary course.
(x) Except as set forth on Schedule 6.1(w)(x),
no franchising authority has notified any Loan Party or any of its Subsidiaries
of its application to be certified to regulate rates as provided in Section
76.910 of the FCC rules implementing the rate regulation provisions of the
Cable Act and no Governmental Authority that has issued a CATV Franchise to any
Loan Party has notified any Loan Party or any of its Subsidiaries that it has
been certified and has adopted regulations required to commence regulation as
provided in Section 76.910(c)(2) of such rate regulation rules.
(xi) There is not issued or outstanding or, to
the best knowledge of any Loan Party, threatened, any notice of any hearing,
violation or complaint against any Loan Party or any of its Subsidiaries with
respect to the provision of Broadband Services by any Loan Party or any of its
Subsidiaries or with respect to the operation of any portion of any Interactive
Broadband Network, except for any such hearing, violation or complaint which
could not reasonably be expected to have a Material Adverse Effect and no Loan
Party has any knowledge that any Person intends to contest renewal of any
Communication License, PUC Authorization, CATV Franchise or other Governmental
Approval or Pole Agreement.
(xii) All notices, statements of account,
supplements and other documents required under Section 111 of the Copyright Act
of 1976 and under the rules of the Copyright Office with respect to the
carriage of off-air signals by the Interactive Broadband Networks have been
duly filed, and the proper amount of copyright fees have been paid on a timely
basis, and each such Interactive Broadband Network qualifies for the compulsory
license under Section 111 of the Copyright Act of 1976, except where failure to
so file, pay or qualify could not reasonably be expected to result in a
Material Adverse Effect.
(xiii) The carriage of all off-air signals by the
Interactive Broadband Networks is permitted by valid retransmission consent
agreements or by must-carry elections by broadcasters, or is otherwise
permitted under Applicable Law.
(x) Condition of Systems. All of the material properties,
equipment and systems of each Loan Party and its Subsidiaries, including
without limitation the Interactive Broadband Networks, are, and all those to be
added in connection with any contemplated system expansion or construction will
be, in good repair and condition, ordinary wear and tear excepted, and in
working order and condition which is in accordance with applicable industry
standards, and are and will be in compliance with all standards or rules
imposed by any Governmental Authority, except where failure to be in such
condition or to so comply could not reasonably be expected to result in a
Material Adverse Effect.
(y) Fees. Each Loan Party and its Subsidiaries has paid all
franchise, license or other fees and charges material to the CATV Franchises,
Communications Licenses, PUC Authorizations, any Interactive Broadband Network
and other matters respecting the operation of its business which have become
due pursuant to any Governmental Approval or other permit in
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respect of its business, except where the failure to so pay could not
reasonably be expected to result in a Material Adverse Effect.
(z) Accuracy and Completeness of Information. All written
information, reports and other papers and data produced by or on behalf of the
Loan Parties or any Subsidiary thereof and furnished to the Lenders were, at
the time the same were so furnished, complete and correct in all material
respects to the extent necessary to give the recipient a true and accurate
knowledge of the subject matter. No document furnished or written statement
made to the Administrative Agent or the Lenders by the Loan Parties or any
Subsidiary thereof in connection with the negotiation, preparation or execution
of this Agreement or any of the Loan Documents contains or will contain any
untrue statement of a fact material to the creditworthiness of the Loan Parties
or their Subsidiaries or omits or will omit to state a fact necessary in order
to make the statements contained therein not misleading. The Loan Parties are
not aware of any facts which they have not disclosed in writing to the
Administrative Agent having a Material Adverse Effect, or insofar as the Loan
Parties can now foresee, could reasonably be expected to have a Material
Adverse Effect.
SECTION 6.2 REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR. To
induce the Administrative Agent to enter into this Agreement and the Lenders to
make the Loans, the Guarantor hereby represents and warrants to the
Administrative Agent and Lenders that:
(a) the restrictions set forth in Section 10.7 on the ability of
the Subsidiaries of the Guarantor to pay dividends or make any distribution to
the Guarantor are not more materially disadvantageous to the holders of the
Senior Discount Notes than restrictions which are customary in financings
comparable to this Agreement; and
(b) the restrictions set forth in Section 10.7 on the ability of
the Subsidiaries of the Guarantor to pay dividends or make any distribution to
the Guarantor are not reasonably expected to materially effect the Guarantor's
ability to make principal or interest payments on the Senior Discount Notes.
SECTION 6.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including but not limited to any such representation or warranty
made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall be made or deemed to be made at
and as of the Closing Date, shall survive the Closing Date and shall not be
waived by the execution and delivery of this Agreement, any investigation made
by or on behalf of the Lenders or any borrowing hereunder.
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ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 14.11, the Loan Parties will furnish or cause to be furnished
to the Administrative Agent and to the Lenders at their respective addresses as
set forth on Schedule 1.1(a), or such other office as may be designated by the
Administrative Agent and Lenders from time to time:
SECTION 7.1 FINANCIAL STATEMENTS AND PROJECTIONS.
(a) Quarterly Financial Statements. As soon as practicable and in
any event within sixty (60) days after the end of each fiscal quarter, an
unaudited Consolidated balance sheet of the Loan Parties as of the close of
such fiscal quarter and unaudited Consolidated statements of income, retained
earnings and cash flows for the fiscal quarter then ended and that portion of
the Fiscal Year then ended, including the notes thereto, all in reasonable
detail setting forth in comparative form the corresponding figures for the
preceding Fiscal Year and prepared by the Loan Parties in accordance with GAAP
and, if applicable, containing disclosure of the effect on the financial
position or results of operations of any change in the application of GAAP
accounting principles and practices during the period, and certified by a
Responsible Officer of the Guarantor to present fairly in all material respects
the financial condition of the Loan Parties as of their respective dates and
the results of operations of the Loan Parties for the respective periods then
ended, subject to normal year end adjustments.
(b) Annual Financial Statements. As soon as practicable and in
any event within one hundred and twenty (120) days after the end of each Fiscal
Year, an audited Consolidated balance sheet of the Loan Parties as of the close
of such Fiscal Year and audited Consolidated statements of income, retained
earnings and cash flows for the Fiscal Year then ended, including the notes
thereto, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year and prepared by an
independent certified public accounting firm acceptable to the Administrative
Agent in accordance with GAAP and, if applicable, containing disclosure of the
effect on the financial position or results of operation of any change in the
application of GAAP accounting principles and practices during the year, and
accompanied by a report thereon by such certified public accountants that is
not qualified with respect to scope limitations imposed by the Loan Parties or
with respect to accounting principles followed by the Loan Parties not in
accordance with GAAP.
(c) Annual Business Plan and Financial Projections. As soon as
practicable and in any event within thirty (30) days after to the beginning of
each Fiscal Year, a business plan of the Loan Parties and their Subsidiaries
for the ensuing Fiscal Year, such plan to be prepared in accordance with GAAP
and to include, on a monthly basis, the following: a monthly operating and
capital budget, a projected income statement, statement of cash flows and
balance sheet and a report containing management's discussion and analysis of
such projections, accompanied by a certificate from a Responsible Officer of
the Guarantor to the effect that, to the best of such
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officer's knowledge, such projections are good faith estimates of the financial
condition and operations of the Loan Parties for such Fiscal Year.
SECTION 7.2 OFFICER'S COMPLIANCE CERTIFICATE. At each time
financial statements are delivered pursuant to Section 7.1 (a) or (b) and at
such other times as the Administrative Agent shall reasonably request, a
certificate of a Responsible Officer of the Guarantor in the form of Exhibit E
attached hereto (an "Officer's Compliance Certificate").
SECTION 7.3 ACCOUNTANTS' CERTIFICATE. At each time financial
statements are delivered pursuant to Section 7.1(b), a certificate of the
independent public accountants certifying such financial statements addressed
to the Administrative Agent for the benefit of the Lenders:
(a) stating that in making the examination necessary for the
certification of such financial statements, they obtained no knowledge of any
Default or Event of Default or, if such is not the case, specifying such
Default or Event of Default and its nature and period of existence; and
(b) including the calculations prepared by such accountants
required to establish whether or not the Loan Parties and their Subsidiaries
are in compliance with the financial covenants set forth in Article X hereof as
at the end of each respective period.
SECTION 7.4 OTHER REPORTS.
(a) As soon as practicable and in any event within sixty (60)
days after the end of each fiscal quarter, quarterly management reports, in
form and substance to be agreed with the Administrative Agent, detailing the
number Connections, the type of Connections and the revenue per Connection;
(b) Such other information regarding the operations, business
affairs and financial condition of the Loan Parties or any of their
Subsidiaries as the Administrative Agent or any Lender may reasonably request;
and
(c) In advance of (i) the entrance into any new market by any
Loan Party or (ii) any change of prospective markets of any Loan Party or (iii)
any deferral of any market, deliver to the Administrative Agent a revised
business plan, in form and substance reasonably satisfactory thereto, to
include such new market change in a prospective market or the deferral of any
market, as applicable.
SECTION 7.5 NOTICE OF LITIGATION AND OTHER MATTERS. Prompt (but
in no event later than ten (10) Business Days after any officer of any Loan
Party obtains knowledge thereof) telephonic and written notice of:
(a) the commencement of all proceedings and investigations by or
before any Governmental Authority and all actions and proceedings in any court
or before any arbitrator against or involving any Loan Party or any of their
respective properties, assets or businesses,
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which if adversely decided to such Loan Party, could reasonably be expected to
have a Material Adverse Effect;
(b) any notice of any violation received by any Loan Party from
any Governmental Authority including, without limitation, any notice of
violation of any Communications License or of Environmental Laws;
(c) any labor controversy that has resulted in, or threatens to
result in, a strike or other work action against any Loan Party where such
strike or work action can reasonably be expected to result in a Material
Adverse Effect;
(d) any attachment, judgment, lien, levy or order exceeding
$1,000,000 that may be assessed against any Loan Party;
(e) any Default or Event of Default, or any event which
constitutes or which with the passage of time or giving of notice or both would
constitute a default or event of default under any Material Contract to which
any Loan Party is a party or by which any Loan Party or any of their respective
properties may be bound;
(f) (i) any unfavorable determination letter from the Internal
Revenue Service regarding the qualification of an Employee Benefit Plan under
Section 401(a) of the Code (along with a copy thereof), (ii) all notices
received by any Loan Party or any ERISA Affiliate of the PBGC's intent to
terminate any Pension Plan or to have a trustee appointed to administer any
Pension Plan, (iii) all notices received by any Loan Party or any ERISA
Affiliate from a Multiemployer Plan sponsor concerning the imposition or amount
of withdrawal liability pursuant to Section 4202 of ERISA and (iv) any Loan
Party obtaining knowledge or reason to know that any Loan Party or any ERISA
Affiliate has filed or intends to file a notice of intent to terminate any
Pension Plan under a distress termination within the meaning of Section 4041(c)
of ERISA; and
(g) any event which makes any of the representations set forth in
Section 6.1 inaccurate in any respect.
SECTION 7.6 ACCURACY OF INFORMATION. All written information,
reports, statements and other papers and data furnished by or on behalf of the
Loan Parties to the Administrative Agent or any Lender (other than financial
forecasts) whether pursuant to this Article VII or any other provision of this
Agreement, or any of the Security Documents, shall be, at the time the same is
so furnished, complete and correct in all material respects to the extent
necessary to give the Administrative Agent or any Lender complete, true and
accurate knowledge of the subject matter based on the Loan Parties' knowledge
thereof.
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ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner
provided for in Section 14.11, each Loan Party will, and will cause its
Subsidiaries to:
SECTION 8.1 PRESERVATION OF CORPORATE EXISTENCE AND RELATED
MATTERS. Except as permitted by Section 10.5, preserve and maintain its
separate corporate existence and all rights, franchises, licenses and
privileges necessary to the conduct of its business, and qualify and remain
qualified as a foreign corporation and authorized to do business in each
jurisdiction in which the failure to so qualify would have a Material Adverse
Effect.
SECTION 8.2 MAINTENANCE OF PROPERTY. Protect and preserve all
properties useful in and material to its business, including copyrights,
patents, trade names and trademarks; maintain in good working order and
condition all such buildings, equipment and other tangible real and personal
property; and from time to time make or cause to be made all renewals,
replacements and additions to such property necessary for the conduct of its
business.
SECTION 8.3 INSURANCE. Maintain insurance with financially sound
and reputable insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses and as may be required by
Applicable Law, and on the Closing Date and from time to time thereafter
deliver to the Administrative Agent upon its request a detailed list of the
insurance then in effect, stating the names of the insurance companies, the
amounts and rates of the insurance, the dates of the expiration thereof and the
properties and risks covered thereby.
SECTION 8.4 ACCOUNTING METHODS AND FINANCIAL RECORDS. Maintain a
system of accounting, and keep such books, records and accounts (which shall be
true and complete in all material respects) as may be required or as may be
necessary to permit the preparation of financial statements in accordance with
GAAP and in compliance with the regulations of any Governmental Authority
having jurisdiction over it or any of its properties.
SECTION 8.5 PAYMENT AND PERFORMANCE OF OBLIGATIONS. Pay and
perform all Obligations under this Agreement and the other Loan Documents (the
Lenders acknowledge that KNOLOGY of Georgia, Inc. has no such Obligations), and
pay or perform (a) all taxes, assessments and other governmental charges that
may be levied or assessed upon it or any of its property, and (b) all other
indebtedness (including, without limitation, Intercompany Debt), obligations
and liabilities in accordance with customary trade practices which shall
include payment of accounts payable within sixty (60) days; provided, that such
Loan Party may contest any item described in clauses (a) or (b) of this Section
8.5 in good faith so long as adequate reserves are maintained with respect
thereto in accordance with GAAP.
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SECTION 8.6 COMPLIANCE WITH LAWS AND APPROVALS. Observe and
remain in compliance with all Applicable Laws and maintain in full force and
effect all Governmental Approvals, in each case applicable to the conduct of
its business, except where the failure to so comply could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 8.7 ENVIRONMENTAL LAWS. In addition to and without
limiting the generality of Section 8.6, (a) comply with, and require such
compliance by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply with and maintain, and ensure that all
tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, except where the failure to so comply could not
reasonably be expected to result in a Material Adverse Effect, (b) conduct and
complete all investigations, studies, sampling and testing, and all remedial,
removal and other actions required under Environmental Laws, and promptly
comply with all lawful orders and directives of any Governmental Authority
regarding Environmental Laws, and (c) defend, indemnify and hold harmless the
Administrative Agent and the Lenders, and their respective parents,
Subsidiaries, Affiliates, employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under any Environmental Laws
applicable to the operations of such Loan Party or such Subsidiary, or any
orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, reasonable attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs and litigation
expenses, except to the extent that any of the foregoing directly result from
the gross negligence or willful misconduct of the party seeking indemnification
therefor.
SECTION 8.8 COMPLIANCE WITH ERISA. In addition to and without
limiting the generality of Section 8.6, (a) comply in all material respects
with all applicable provisions of ERISA and the regulations and published
interpretations thereunder with respect to all Employee Benefit Plans, (b) not
take any action or fail to take action the result of which could be a material
liability to the PBGC or to a Multiemployer Plan, (c) not participate in any
prohibited transaction that could result in any material civil penalty under
ERISA or tax under the Code, (d) operate each Employee Benefit Plan in such a
manner that will not incur any material tax liability under Section 4980B of
the Code or any material liability to any qualified beneficiary as defined in
Section 4980B of the Code and (e) furnish to the Administrative Agent upon the
Administrative Agent's request such additional information about any Employee
Benefit Plan as may be reasonably requested by the Administrative Agent.
SECTION 8.9 COMPLIANCE WITH AGREEMENTS. Comply in all respects
with each term, condition and provision of all leases, agreements and other
instruments entered into in the conduct of its business including, without
limitation, any Programming Agreement, any Network Agreement and any Material
Contract, except where the failure to so comply could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 8.10 CONDUCT OF BUSINESS. Unless otherwise agreed in
writing by the Administrative Agent and Required Lenders, engage only in a
Substantially Similar Business.
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SECTION 8.11 VISITS AND INSPECTIONS. Permit representatives of
the Administrative Agent or any Lender, from time to time and upon reasonable
notice, to: visit and inspect its properties; inspect, audit and make extracts
from its books, records and files, including, but not limited to, management
letters prepared by independent accountants; and discuss with its principal
officers, and its independent accountants, its business, assets, liabilities,
financial condition, results of operations and business prospects.
SECTION 8.12 ADDITIONAL SUBSIDIARIES; ADDITIONAL COLLATERAL; NEW
EQUITY.
(a) Upon the creation or acquisition of any Subsidiary possessing
assets in excess of One Thousand Dollars ($1,000) of any Loan Party permitted
by this Agreement and, with respect to KNOLOGY of Georgia, Inc., upon the
obtaining (but without imposing any obligation to seek such Governmental
Approval) of any Governmental Approval permitting KNOLOGY of Georgia, Inc. to
incur Debt and/or grant Liens on its assets (including, without limitation, a
change in Applicable Law such that Governmental Approval is no longer
required), cause to be executed and delivered to the Administrative Agent (i) a
joinder agreement hereto in form and substance reasonably satisfactory to the
Administrative Agent and Required Lenders in order that such Person becomes a
Borrower hereunder, (ii) a supplement substantially in the form attached as
Annex II to the Security Agreement, (iii) a supplement substantially in the
form attached as Exhibit A to the Pledge Agreement, or if applicable, a
separate pledge agreement substantially in the form of the Pledge Agreement
executed by the parent of such new Subsidiary, (v) one or more duly executed
Mortgages and/or Collateral Assignments, as applicable, with respect to any
real property owned or leased by such Subsidiary and such consents of third
parties as are required to grant a security interest in such real property
(except as cannot be obtained pursuant to the proviso set forth in Section
5.2(d)(i)), (vi) updated version of each Schedule referred to in Section 6.1(w)
to reflect all changes to such Schedules resulting from such creation or
acquisition of such Subsidiary and (vii) such other documents reasonably
requested by the Administrative Agent and Required Lenders consistent with the
terms of this Agreement which provide that such Subsidiary shall become bound
by all of the terms, covenants and agreements contained in the Loan Documents
and that the assets of such Subsidiary shall become Collateral for the
Obligations. Upon satisfaction of the conditions set forth in this Section
8.12(a), each Subsidiary shall become a Borrower hereunder and under the other
Loan Documents to the same extent as if such Subsidiary had been a party hereto
and thereto on the Closing Date. Notwithstanding the foregoing, nothing in this
Section 8.12 shall be deemed to prohibit any Lien or other encumberance
permitted pursuant to Section 10.3.
(b) Upon the acquisition by any Loan Party or Subsidiary thereof,
of any real property (whether owned in fee or leased) not listed on Schedule
6.1(r), provide to the Administrative Agent copies of the purchase or lease
documents, as applicable, with respect thereto; and if requested by the
Administrative Agent or Required Lenders, promptly execute and deliver to the
Administrative Agent and the Lenders a Mortgage, Collateral Assignment,
landlord agreement, and all documents and other items reasonably requested by
the Administrative Agent with respect to any such newly acquired real property
(except as cannot be obtained pursuant to the proviso set forth in Section
5.2(d)(i)), in each case in form and substance reasonably satisfactory to the
Administrative Agent and Required Lenders. Notwithstanding the foregoing,
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nothing in this Section 8.12 shall be deemed to prohibit any Lien or other
encumberance permitted pursuant to Section 10.3.
(c) Use best efforts to obtain consents of the applicable
Governmental Authority or third party to the security interest of the
Administrative Agent, on behalf of itself and the Lenders, in the CATV
Franchises, PUC Authorizations or Material Contracts identified on Schedule
5.2(d) (excluding any such CATV Franchise, PUC Authorization or Material
Contract for which a consent has previously been delivered or for which such
requirement has been waived), and, where required, in any CATV Franchise or PUC
Authorization acquired by any Loan Party subsequent to the date hereof and any
Material Contract executed subsequent to the date hereof which replaces,
supersedes or is entered into for substantially the same business purpose (as
reasonably determined by the Administrative Agent in consultation with the
Borrowers) as any Material Contract set forth on Schedule 5.2(d). For purposes
of this Section 8.12(c) the term "best efforts" shall mean, as applicable: (i)
the filing of an application or submission of a written request (in each case
with a copy delivered to the Administrative Agent) to the appropriate
Governmental Authority or third party for such consent within forty five (45)
days after the closing date or acquisition date, as applicable, (ii) compliance
with all applicable procedures with regard to obtaining any such consents,
(iii) good faith negotiations, (iv) payment of fees and charges necessary to
obtain such consents in such amount as are paid for such purposes in the
ordinary course of business and (v) with respect to any formal denial of any
such request by any Governmental Authority, the exhaustion of reasonable
appeals of such formal denial. Notwithstanding the foregoing, the Loan Parties
and their Subsidiaries shall have no obligation to seek such consents in those
situations where Applicable Law (other than the local municipal ordinances
creating or providing for any CATV Franchise) expressly prohibits or does not
recognize a security interest in a CATV Franchise or a PUC Authorization,
unless and until such Applicable Law changes so as to permit or recognize such
security interest.
(d) Notwithstanding anything contained in any one or more of the
Loan Documents to the contrary, it is agreed that the Loan Parties shall not be
deemed to have granted a security interest in any Communications License, CATV
Franchise, PUC Authorization or agreement with respect to which the consent or
approval of any third party is necessary for the creation of such a security
interest until such time, if ever, as the consents or approvals applicable with
respect to such Communications License, CATV Franchise, PUC Authorization or
agreement have been obtained.
(e) Upon the issuance of any new class or series of capital stock
or other equity ownership interest by any Borrower ("New Equity"), cause to be
executed and delivered to the Administrative Agent (i) a pledge agreement
substantially in the form of the Pledge Agreement and (ii) such other documents
as reasonably requested by the Administrative Agent and Lenders.
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SECTION 8.13 KNOLOGY OF GEORGIA. At any time as the book value of
all tangible assets owned by KNOLOGY of Georgia, Inc. (excluding any
Communications Licenses and/or PUC Authorizations) exceeds Three Million
Dollars ($3,000,000), cause KNOLOGY of Georgia, Inc. to promptly declare a
dividend or distribution in an amount equal to or greater than such excess
which such dividend shall be paid or distribution made within fifteen (15) days
after the declaration thereof. This Section 8.13 shall be of no further effect
upon such date, if any, as KNOLOGY of Georgia, Inc. is joined to this Agreement
as a Borrower pursuant to Section 8.12(a).
SECTION 8.14 YEAR 2000 COMPATIBILITY. Maintain and pursue with
reasonable diligence a plan of the type and extent as is customarily maintained
by similar businesses and is reasonably acceptable to the Administrative Agent,
and which is designed to assure that the Loan Parties' computer based systems
are able to operate on and after January 1, 2000 with respect to and
effectively process data which includes dates on and after January 1, 2000
("Year 200 Compatibility"). At the request of the Administrative Agent, the
Loan Parties shall provide information reasonably satisfactory to the
Administrative Agent regarding such plan, the steps taken to pursue such plan
and the Loan Parties' determinations regarding Year 2000 Compatibility.
SECTION 8.15 FURTHER ASSURANCES. Make, perform, execute and
deliver all such additional and further acts, things, deeds and instruments as
the Administrative Agent or any Lender may reasonably require to document and
consummate the transactions contemplated hereby and to vest completely in and
ensure the Administrative Agent and the Lenders of their respective rights
under this Agreement, the Notes, the Letters of Credit and the other Loan
Documents.
ARTICLE IX
FINANCIAL COVENANTS
Upon the Initial Funding Date and thereafter, until all of the
Obligations have been paid and satisfied in full and the Commitments
terminated, unless consent has been obtained in the manner set forth in Section
14.11, the Loan Parties and their Subsidiaries will not:
SECTION 9.1 MAXIMUM CONSOLIDATED SENIOR FUNDED DEBT TO
CONSOLIDATED ADJUSTED CASH FLOW RATIO. As of the end of any fiscal quarter
permit the ratio of (a) Consolidated Senior Funded Debt to (b) Consolidated
Adjusted Cash Flow to exceed 5.00 to 1.00.
SECTION 9.2 MINIMUM CONSOLIDATED ADJUSTED CASH FLOW TO CASH
INTEREST EXPENSE RATIO. As of the end of any fiscal quarter permit the ratio of
(a) Consolidated Adjusted Cash Flow to (b) Cash Interest Expense to be less
than 2.00 to 1.00.
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SECTION 9.3 MAXIMUM CONSOLIDATED SENIOR FUNDED DEBT TO
CONTRIBUTED CAPITAL RATIO. At any time permit the ratio of (a) Consolidated
Senior Funded Debt to (b) Contributed Capital to exceed 0.25 to 1.00.
SECTION 9.4 BORROWER PERFORMANCE TESTS.
(a) Minimum Number of Connections:
As of the end of any fiscal quarter, but only after an Extension of
Credit has been made under this Agreement, permit the average number of
Connections to be less than the corresponding minimum average number of
Connections for such fiscal quarter end set forth below:
12/31/98 77,500
3/31/99 86,700
6/30/99 94,900
9/30/99 104,500
12/31/99 115,800
3/31/00 127,800
6/30/00 141,000
9/30/00 157,000
12/31/00 175,000
3/31/01 195,000
6/30/01 220,000
9/30/01 240,000
12/31/01 260,000
3/31/02 280,000
6/30/02 305,000
9/30/02 325,000
12/31/02 340,000
(b) Minimum Revenue per Connection:
As of the end of any fiscal quarter, but only after an Extension of
Credit has been made under this Agreement, permit (i) the quotient of (A) total
revenue (before discounts and allowances) for such fiscal quarter (excluding
Broadband Carrier Services revenues) divided by (B) three divided by (ii) the
average number of billed Connections as of such fiscal quarter to be less than
the corresponding minimum amount for such fiscal quarter end set forth below:
12/31/98 35.22
3/31/99 36.38
6/30/99 37.14
9/30/99 38.02
12/31/99 38.85
3/31/00 40.22
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6/30/00 40.91
9/30/00 41.47
12/31/00 41.78
3/31/01 42.50
6/30/01 42.92
9/30/01 43.57
12/31/01 44.01
3/31/02 44.87
6/30/02 45.16
9/30/02 45.61
12/31/02 45.93
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 14.11 hereof, the Loan Parties will not and will not permit
their Subsidiaries to:
SECTION 10.1 LIMITATIONS ON DEBT. Create, incur, assume or suffer
to exist any Debt except:
(a) the Obligations;
(b) Subordinated Debt;
(c) Debt existing on the Closing Date and not otherwise permitted
under this Section 10.1, as set forth on Schedule 6.1(t), and the renewal and
refinancing (but not the increase) thereof;
(d) Debt of the Borrowers incurred in connection with Capital
Leases in an aggregate amount not to exceed $10,000,000 on any date of
determination and the renewal and refinancing (but not the increase if such
increase would cause the foregoing Dollar amount limitation to be exceeded)
thereof;
(e) purchase money Debt of the Borrowers in an aggregate amount
not to exceed $10,000,000 on any date of determination and the renewal and
refinancing (but not the increase if such increase would cause the foregoing
Dollar amount limitation to be exceeded) thereof;
(f) Debt consisting of Guaranty Obligations permitted by Section
10.2;
(g) Debt of the Guarantor, not otherwise permitted under this
Section 10.1, on terms and conditions reasonably acceptable to the
Administrative Agent and Required Lenders and the renewal and refinancing (but
not the increase) thereof; provided that any additional Debt in the
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form of senior notes issued by the Guarantor after the date hereof is hereby
deemed approved for all purposes of this Section 10.1(g) so long as such notes
(i) do not yield gross proceeds in excess of $275,000,000, (ii) do not provide
for any scheduled payment of principal thereunder prior to the Termination
Date, (iii) do not provide for any scheduled payment of interest thereunder
(other than out of an escrow account funded with proceeds of such notes at the
time of the issuance thereof) for a period of at least three years following
the date of issuance thereof, (iv) are unsecured (other than any security
interest in an escrow account funded with a portion of the proceeds of such
notes at the time of issuance thereof), and (v) do not contain any other
material covenants which are materially less favorable to the Guarantor than
the terms of the Senior Discount Notes;
(h) Intercompany Debt not otherwise permitted under this Section
10.1;
(i) Debt of any Loan Party not otherwise permitted under this
Section 10.1, incurred by reason of merger or otherwise assumed in connection
with any acquisition permitted pursuant to Section 10.4(c) in an aggregate
principal amount not to exceed $10,000,000 during the term of this Agreement,
the terms and conditions of which (including without limitation any collateral
security therefor) shall be reasonably acceptable to the Administrative Agent
and Lenders;
(j) Debt incurred in connection with any Hedging Agreement with a
counterparty satisfactory to the Administrative Agent (unless such counterparty
is (i) a Lender, (ii) an Affiliate of a Lender or (iii) any third party who
would qualify as an Eligible Assignee) and upon terms and conditions reasonably
satisfactory to the Administrative Agent; and
(k) Debt in respect of performance, surety or appeal bonds
provided in the ordinary course of business or in respect of indemnification or
other obligations incurred in connection with the disposition of any assets
permitted pursuant to Section 10.6.
provided, that none of the Debt permitted to be incurred by this Section shall
restrict, limit or otherwise encumber (by covenant or otherwise) the ability of
any Subsidiary of any Loan Party to make any payment to any Borrower or any of
their respective Subsidiaries (in the form of dividends, intercompany advances
or otherwise) for the purpose of enabling such Borrower to pay the Obligations.
Notwithstanding the foregoing, the Loan Parties will not and will not permit
their Subsidiaries to permit KNOLOGY of Georgia, Inc. to seek, apply or obtain
any Governmental Approval which would permit KNOLOGY of Georgia, Inc. to incur
any Debt or to grant any Lien on any of its assets, except in favor of the
Lenders.
SECTION 10.2 LIMITATIONS ON GUARANTY OBLIGATIONS. Create, incur,
assume or suffer to exist any Guaranty Obligations except:
(a) Guaranty Obligations in favor of the Administrative Agent for
the benefit of the Administrative Agent and the Lenders;
(b) Guaranty Obligations in an amount not to exceed $2,500,000 to
secure payment or performance of customer service contracts entered into in the
ordinary course of business;
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(c) Guaranty Obligations existing on the Closing Date and not
otherwise permitted under this Section 10.2, as set forth on Schedule 6.1(t)
and the renewal and refinancing (but not the increase) thereof; and
(d) Guaranty Obligations of any Loan Party of (i) Debt of any
other Loan Party permitted by Section 10.1 or (ii) contract performance
obligations of any other Loan Party that do not constitute Debt.
SECTION 10.3 LIMITATIONS ON LIENS. Create, incur, assume or
suffer to exist, any Lien on or with respect to any of its assets or properties
(including without limitation shares of capital stock or other ownership
interests), real or personal, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments, customs duties and other
governmental charges or levies (excluding any Lien imposed pursuant to any of
the provisions of ERISA or Environmental Laws) (i) which are not overdue for a
period of more than ninety (90) days or (ii) which are being contested in good
faith and by appropriate proceedings if adequate reserves are maintained to the
extent required by GAAP;
(b) common law and statutory Liens of materialmen, mechanics,
carriers, warehousemen, processors or landlords for labor, materials, supplies
or rentals incurred in the ordinary course of business, (i) which are not
overdue for a period of more than ninety (90) days or (ii) which are being
contested in good faith and by appropriate proceedings if adequate reserves are
maintained to the extent required by GAAP;
(c) Liens consisting of deposits or pledges made in the ordinary
course of business in connection with, or to secure payment of, obligations
under workers' compensation, unemployment insurance or similar legislation or
obligations (not to exceed $2,500,000) under customer service contracts,
statutory or regulatory obligations, bank acceptances, surety and appeal bonds,
government contracts, performance bonds and other obligations of a similar
nature incurred in the ordinary course of business;
(d) Liens constituting encumbrances in the nature of municipal
ordinances or zoning restrictions, easements and rights or restrictions of
record on the use of real property, title defects or other irregularities,
which in the aggregate are not substantial in amount and which do not, in any
case, detract in a material manner from the value of such property or impair
the use thereof in the ordinary conduct of business;
(e) Liens of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders;
(f) Liens not otherwise permitted by this Section 10.3 and in
existence on the Closing Date and described on Schedule 10.3;
(g) Liens securing Debt permitted under Section 10.1(d);
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(h) Liens securing Debt permitted under Section 10.1(e); provided
that (i) such Liens shall be created within six months after the latest to
occur of the acquisition, the completion of construction or the commencement of
operation of the related asset, (ii) such Liens do not at any time encumber any
property other than the property financed by such Debt and improvements
thereon, (iii) the amount of Debt secured thereby is not increased and (iv) the
principal amount of Debt secured by any such Lien shall at no time exceed one
hundred percent (100%) of the original purchase price of such property at the
time it was acquired;
(i) leases (other than operating leases referred to in clause (k)
below) or subleases granted to others that do not materially interfere with the
ordinary course of business of the Loan Parties, taken as a whole;
(j) Liens encumbering property or assets under construction
arising from progress or partial payments by a customer of any Loan Party
relating to such property or assets;
(k) any interest or title of a lessor in the property subject to
any operating lease, including Liens arising from filing Uniform Commercial
Code financing statements regarding leases;
(l) Liens securing Debt permitted pursuant to Section 10.1(h) or
Section 10.1(j);
(m) Liens securing Debt permitted in accordance with Section
10.1(i) and existing on any property or asset prior to the acquisition thereof
by any Loan Party or any Subsidiary; provided, that (i) such Lien is not
created in contemplation of or in connection with such acquisition and (ii)
such Lien does not apply to any other property or assets of any Loan Party;
(n) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by any
Loan Party in the ordinary course of business in accordance with the past
practices of such Loan Party prior to the Closing Date; provided, that the fair
market value of the assets subject to such Liens does not exceed $1,000,000 in
the aggregate at any time;
(o) Liens that secure Debt permitted pursuant to Section 10.1(g)
(excluding additional Debt in the form of senior notes issued pursuant to the
proviso set forth in such Section 10.1(g)) with an aggregate principal amount
not to exceed $5,000,000 at any time outstanding;
(p) Liens made in the ordinary course of business on assets
subject to rights-of-way, pole attachment, use of conduit, use of trenches or
similar agreements securing any Loan Party's obligations under such agreements;
provided, that such Liens apply only to the assets subject to any of the
foregoing agreements; and
(q) Liens not otherwise permitted under this Section 10.3
securing Debt permitted under Section 10.1 or consisting of final judgments or
orders not constituting a Default or Event of Default in an aggregate amount
not to exceed $5,000,000.
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SECTION 10.4 LIMITATIONS ON LOANS, ADVANCES, INVESTMENTS AND
ACQUISITIONS. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in any partnership or joint venture
(including without limitation in connection with the capitalization of any
Subsidiary), evidence of Debt or other obligation or security, substantially
all or a portion of the business or assets of any other Person or any other
investment or interest whatsoever in any other Person, or make or permit to
exist, directly or indirectly, any loans, advances or extensions of credit to,
or any investment in cash or by delivery of property in, any Person (such
loans, advances, investments and acquisitions collectively referred to as
"investments") except:
(a) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency
thereof maturing within one (1) year from the date of acquisition thereof, (ii)
commercial paper maturing no more than one (1) year from the date of creation
thereof and having a rating at the time as of which any investment therein is
made of "P-1" (or higher) according to ▇▇▇▇▇'▇ Investors Service, Inc. or "A-1"
(or higher) according to Standard & Poor's Ratings Services, (iii) time deposit
accounts, money market deposits and certificates of deposit maturing no more
than one (1) year from the date of creation thereof issued by commercial banks
or trust companies organized under the laws of the United States of America,
each having combined capital, surplus and undivided profits of not less than
$500,000,000 and having a rating of "A" or better by a nationally recognized
rating agency; provided, that the aggregate amount invested in such
certificates of deposit shall not at any time exceed $5,000,000 for any one
such certificate of deposit and $10,000,000 for any one such bank, (iv)
repurchase obligations with a term of not more than thirty (30) days for
underlying securities of the type described in clause (i) above entered into
with a commercial bank meeting the qualifications described in clause (iii)
above, or (v) securities with maturities of six months or less from the date of
acquisition issued or unconditionally guaranteed by any state, commonwealth or
territory of the United States of America, or by any political subdivision or
taxing authority thereof, and rated at least "A" by Standard & Poor's Ratings
Services or ▇▇▇▇▇'▇ Investors Service, Inc.;
(b) (i) investments of any Loan Party in any other Loan Party,
and (ii) investments existing on the Closing Date and described on Schedule
10.4;
(c) investments by a Loan Party in the form of:
(i) the creation, acquisition or capitalization of any
Borrowers after the Closing Date not otherwise permitted under this Section
10.4;
(ii) acquisitions of assets through like kind exchanges;
provided, that (A) no Default or Event of Default has occurred and is
continuing or would result therefrom, (B) such investment has been previously
approved in writing by the Required Lenders, (C) the Loan Parties shall have
delivered to the Administrative Agent financial projections in form and
substance reasonably satisfactory to the Administrative Agent, evidencing
compliance, on a pro forma basis, with the covenants contained in Articles IX
and X hereof, and evidencing the ability of the Loan Parties to meet all of
their Obligations; and (D) the Borrowers and their respective Subsidiaries
shall have complied with all applicable provisions of Section 8.12; and
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(iii) investments by the Borrowers in the form of
acquisitions of all or substantially all of the business or a line of business
of any other Person (whether by the acquisition of capital stock or other
equity ownership interests, assets or any combination thereof) which are
consummated in accordance with the following requirements of this Section
10.4(c)(iii) (any such acquisition, a "Permitted Acquisition"): (A) the
acquired Person shall be and substantially all of the acquired assets shall be
utilized in a Substantially Similar Business as the Borrower, (B) no Default or
Event of Default shall have occurred and be continuing or be created by the
relevant Permitted Acquisition as evidenced by a certificate of the Borrowers
delivered on the closing date thereof to the Administrative Agent and the
Required Lenders in form and substance satisfactory to the Administrative Agent
and demonstrating pro forma compliance with the financial covenants set forth
in Article IX and the other terms of the Loan Documents, (C) a description of
the relevant Permitted Acquisition in reasonable detail and the corresponding
documentation shall be furnished by the Borrowers to the Lenders at least
fifteen (15) Business Days prior to the closing date thereof (to be followed by
any changed pages and fully executed copies promptly after the creation
thereof) and (D) the aggregate cash or any other consideration for any such
Permitted Acquisition or series of related acquisitions does not exceed Five
Million Dollars ($5,000,000) over the term of this Agreement; provided that any
Permitted Acquisition that is approved in writing by the Administrative Agent
and Required Lenders (either prior or subsequent to the closing date of such
acquisition) shall not be counted against the Five Million Dollar ($5,000,000)
limitation.
(d) commission, payroll, travel and similar advances to cover
matters that are expected at the time of such advances ultimately to be treated
as expenses in accordance with GAAP;
(e) receipt of stock, obligations or securities received in
satisfaction of judgments in favor of any Loan Party;
(f) investments in prepaid expenses, negotiable instruments held
for collection, and lease, utility and workers' compensation, performance and
other similar deposits; and
(g) loans or advances to employees of any Loan Party made in the
ordinary course of business that do not in the aggregate exceed $500,000 at any
time outstanding.
SECTION 10.5 LIMITATIONS ON MERGERS AND LIQUIDATION. Merge,
consolidate or enter into any similar combination with any other Person or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution) except:
(a) any Loan Party (except the Guarantor) may merge with any
other Loan Party;
(b) any Subsidiary may merge with or into the Person such
Subsidiary was formed to acquire in connection with an acquisition permitted by
Section 10.4(c); and
(c) any Subsidiary of any Loan Party may wind-up into such Loan
Party or any other Subsidiary of such Loan Party.
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SECTION 10.6 LIMITATIONS ON SALE OF ASSETS. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or
assets (including, without limitation, the sale of any receivables and
leasehold interests and any sale-leaseback or similar transaction), whether now
owned or hereafter acquired except:
(a) the conveyance, sale, lease, assignment, transfer or other
disposition of assets or securities in the ordinary course of business;
(b) the conveyance, sale, lease, assignment, transfer or other
disposition of obsolete assets no longer used or usable in the business of the
applicable Loan Party;
(c) the conveyance, sale, lease, assignment, transfer or other
disposition of assets to any Loan Party (including in connection with a sale
leaseback transaction among Loan Parties); provided, that any assets
transferred to the Guarantor pursuant to this Section 10.6(c) shall at all
times be subject to a perfected first priority Lien in favor of the
Administrative Agent, on behalf of the Lenders;
(d) the conveyance, sale, lease, assignment, transfer or other
disposition or discount without recourse of accounts receivable arising in the
ordinary course of business in connection with the compromise or collection
thereof;
(e) the disposition of any asset pursuant to a like kind exchange
permitted pursuant to Section 10.4(c);
(f) issuance of equity securities by the Guarantor; provided,
that the Net Cash Proceeds from any such issuance of equity securities are used
in accordance with Section 2.5(b)(iii);
(g) any other sale of assets; provided, that (i) the aggregate
Net Cash Proceeds from any such sale of assets do not exceed $5,000,000 in any
Fiscal Year and (ii) the Net Cash Proceeds from any such sale of assets are
used in accordance with Section 2.5(b)(ii); and
(h) any sale of assets in connection with a sale leaseback
transaction not otherwise permitted under this Section 10.6; provided, that (i)
such transaction (A) does not involve the sale of any asset which constitutes
all or any portion of an Interactive Broadband Network and (B) the aggregate
salesprice in connection with all such transactions does not exceed $15,000,000
during the term hereof.
SECTION 10.7 LIMITATIONS ON DIVIDENDS AND DISTRIBUTIONS. Declare
or pay any dividends upon any of its capital stock; purchase, redeem, retire or
otherwise acquire, directly or indirectly, any shares of its capital stock, or
make any distribution of cash, property or assets among the holders of shares
of its capital stock, or make any change in its capital structure that could
reasonably be expected to have a Material Adverse Effect; provided that:
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(a) each direct and indirect Subsidiary of the Guarantor may pay
dividends or make any other distributions permitted by Applicable Law on any
capital stock of such Subsidiary owned by the Guarantor or any of its direct
and indirect Subsidiaries;
(b) any Borrower or any Subsidiary may pay dividends in shares of
its own capital stock;
(c) any Borrower or any Subsidiary may repurchase shares of its
own capital stock in an amount not to exceed $100,000 per Fiscal Year in order
to eliminate fractional shares;
(d) any Subsidiary may pay cash dividends to any Borrower;
(e) any Loan Party may (i) make payments or distributions to
dissenting stockholders pursuant to Applicable Law in connection with a
consolidation, merger or transfer of assets that complies with the provisions
of this Agreement, (ii) purchase, redeem, acquire, cancel or otherwise retire
for value shares of stock of such Loan Party to the extent necessary, in the
judgment of its board of directors, to prevent the loss or secure the renewal
or reinstatement of any license or franchise held by such Loan Party from any
governmental agency and (iii) may purchase, redeem, retire or otherwise acquire
for value shares of stock of such Loan Party, or options to purchase such
shares, held by directors, employees, or former directors or employees of such
Loan Party (or their estates or beneficiaries under their estates) upon their
death, disability, retirement, termination of employment or pursuant to the
terms of any agreement under which such shares of stock or options were issued;
provided that, the aggregate amount of all payments, distributions, purchases,
redemptions, acquisitions, cancellations or retirements shall not exceed
$1,000,000 during the term hereof;
provided, that no Event of Default (other than a Event of Default described in
Section 12.1(c)) has occurred and is continuing; provided further, that unless
an Event of Default described in Sections 12.1(a), (b), (e)(ii), (j) (with
respect to the Guarantor only), or (k) (with respect to the Guarantor only) has
occurred and is continuing, this Section 10.7 shall not prevent the direct and
indirect Subsidiaries of the Guarantor from paying dividends or making any
other distributions to the Guarantor or any of its direct or indirect
Subsidiaries to enable the Guarantor to make scheduled interest payments on the
Senior Discount Notes or any Debt permitted pursuant to the proviso in Section
10.1(g) for more than 180 days in any consecutive 360 day period.
SECTION 10.8 LIMITATIONS ON GUARANTOR. Utilize, pay, invest, or
distribute any cash, cash equivalents, securities or Investment Property (as
such term is defined in the UCC), of the Guarantor received from any Subsidiary
(including, without limitation, the proceeds of Intercompany Debt, dividends,
distributions, loans, advances or investments pursuant to Sections 10.1(h),
10.4(b), and 10.7(a)) for any reason or purpose other than:
(a) to enable the Guarantor to meet its obligations under the
Senior Discount Notes and Debt permitted pursuant to Section 10.1,
(b) for reasonable and customary corporate overhead and operating
expenses,
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(c) to make Capital Expenditures in an amount not to exceed
$10,000,000 during the term hereof
(d) for Corporate Cash Management so long as (with regard to this
clause (d) only) (i) the Administrative Agent, on behalf of the Lenders,
possesses at all times a perfected first priority Lien in all such dividends
and distributions and (ii) all such dividends and distributions (whether in the
form of cash, cash equivalents, securities or Investment Property (as such term
is defined in the UCC)), and the proceeds thereof shall be maintained in
deposit and/or brokerage accounts with (A) the Administrative Agent or
Affiliate thereof or (B) a financial institution that has delivered a bank
agency letter in form and substance satisfactory to the Administrative Agent,
(pursuant to a deposit account assignment agreement executed by the Guarantor,
in form and substance satisfactory to the Administrative Agent) with regard to
all such deposit and/or brokerage accounts at such financial institution and an
account control agreement, in form and substance satisfactory to the
Administrative Agent with regard to all such deposit and/or brokerage accounts;
and
(e) to the extent any such property is not used for the purposes
set forth in Section 10.8(a-d), the Guarantor shall promptly loan, invest, or
otherwise contribute such property to its Subsidiaries.
SECTION 10.9 LIMITATIONS ON EXCHANGE AND ISSUANCE OF CAPITAL
STOCK. Issue, sell or otherwise dispose of any class or series of capital stock
that, by its terms or by the terms of any security into which it is convertible
or exchangeable, is, or upon the happening of an event or passage of time would
be, (a) convertible or exchangeable into Debt (other than Intercompany Debt) or
(b) required to be redeemed or repurchased, including at the option of the
holder, in whole or in part for cash or property other than capital stock, or
has, or upon the happening of an event or passage of time would have, a cash
redemption or similar payment due (any such capital stock,
"Convertible/Redeemable Equity"); provided that, the foregoing restriction
shall not apply to any Convertible/Redeemable Equity which can not under any
circumstances be converted, exchanged, redeemed or repurchased at any time
prior to one (1) year after the Termination Date, as such Termination Date may
be extended.
SECTION 10.10 TRANSACTIONS WITH AFFILIATES OTHER THAN LOAN
PARTIES. Directly or indirectly: (a) make any loan or advance to, or purchase
or assume any note or other obligation to or from, any of its officers,
directors, shareholders or other Affiliates other than Loan Parties, or to or
from any member of the immediate family of any of its officers, directors,
shareholders or other Affiliates other than Loan Parties, or subcontract any
operations to any of its Affiliates other than Loan Parties (other than loans
and advances permitted pursuant to Section 10.4(g)), or (b) enter into, or be a
party to, any transaction with any of its Affiliates, other than Loan Parties,
except with respect to clauses (a) or (b), pursuant to the reasonable
requirements of its business and upon fair and reasonable terms that are no
less favorable to it than it would obtain in a comparable arm's length
transaction with a Person not its Affiliate.
SECTION 10.11 CERTAIN ACCOUNTING CHANGES. Change its Fiscal Year
end, or make any change in its accounting treatment and reporting practices
which such change would be in contravention of GAAP; provided that no change
that materially effects the calculation of
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the financial covenants set forth in Article IX hereof will be permitted
without the consent of the Administrative Agent or unless permitted pursuant to
Section 14.9.
SECTION 10.12 AMENDMENTS; PAYMENTS AND PREPAYMENTS OF SUBORDINATED
DEBT OR SENIOR DISCOUNT NOTES. Amend or modify (or permit the modification or
amendment of) any of the terms or provisions of any Subordinated Debt, the
Senior Discount Notes or Debt permitted pursuant to Section 10.1(g), or cancel
or forgive, make any voluntary or optional payment or prepayment on, or redeem
or acquire for value (including without limitation by way of depositing with
any trustee with respect thereto money or securities before due for the purpose
of paying when due) any Subordinated Debt or the Senior Discount Notes or Debt
permitted pursuant to Section 10.1(g); except (a) to the extent permitted by
Section 10.7 and (b) that amendments and modifications may be made to the terms
or provisions of the Senior Discount Notes or Debt permitted pursuant to
Section 10.1(g) that do not provide for or result in (i) any scheduled payment
of principal thereunder prior to the Termination Date, (ii) any scheduled
payment of interest thereunder (other than out of an escrow account funded with
proceeds of such notes at the time of the issuance thereof) for a period of at
least three years (3) following the date of issuance thereof, (iii) such Senior
Discount Notes or Debt being secured (other than any security interest in an
escrow account funded with a portion of the proceeds of such notes at the time
of the issuance thereof) and (iv) any material covenants which are materially
less favorable to the Guarantor than the covenants of the Senior Discount Notes
as of the date hereof.
SECTION 10.13 RESTRICTIVE AGREEMENTS. Except as may be permitted
pursuant to the proviso set forth in Section 10.1(g) above, enter into any Debt
which contains any covenants more restrictive than the provisions of Articles
VIII, IX and X hereof, or enter into any Debt, other than the Senior Discount
Notes, any Debt permitted pursuant to the proviso in Section 10.1(g) or any
refinancing (but not the increase) of any of the foregoing, which contains any
negative pledge or which restricts, limits or otherwise encumbers its ability
to incur Liens on or with respect to any of its assets or properties other than
the assets or properties securing such Debt and improvements thereon and any
proceeds thereof.
ARTICLE XI
UNCONDITIONAL GUARANTY
SECTION 11.1 GUARANTY OF OBLIGATIONS. The Guarantor hereby
unconditionally guarantees to the Administrative Agent for the ratable benefit
of the Administrative Agent and the Lenders, and their respective successors,
endorsees, transferees and assigns, the prompt payment and performance of all
Obligations of the Borrowers, whether primary or secondary (whether by way of
endorsement or otherwise), whether now existing or hereafter arising, whether
or not from time to time reduced or extinguished (except by payment thereof) or
hereafter increased or incurred, whether or not recovery may be or hereafter
become barred by the statute of limitations, whether enforceable or
unenforceable as against any such Borrower, whether or not discharged, stayed
or otherwise affected by any bankruptcy, insolvency or other similar law or
proceeding, whether created directly with any Administrative Agent or Lender or
acquired by any Administrative Agent or Lender through assignment, endorsement
or otherwise,
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whether matured or unmatured, whether joint or several, as and when the same
become due and payable (whether at maturity or earlier, by reason of
acceleration, mandatory repayment or otherwise), in accordance with the terms
of any such instruments evidencing any such obligations, including all
renewals, extensions or modifications thereof (all Obligations of each such
Borrower to any Administrative Agent or Lender, including all of the foregoing,
being hereinafter collectively referred to as the "Guaranteed Obligations").
SECTION 11.2 NATURE OF GUARANTY. The Guarantor agrees that this
Guaranty is a continuing, unconditional guaranty of payment and performance and
not of collection, and that its obligations under this Guaranty shall be
primary, absolute and unconditional, irrespective of, and unaffected by (a) the
genuineness, validity, regularity, enforceability or any future amendment of,
or change in, this Agreement or any other Loan Document or any other agreement,
document or instrument to which any such Borrower is or may become a party, (b)
the absence of any action to enforce this Guaranty, this Agreement or any other
Loan Document or the waiver or consent by the Administrative Agent or any
Lender with respect to any of the provisions of this Agreement (other than an
express written waiver of any provision of this Article XI pursuant to Section
14.11) or any other Loan Document, (c) the existence, value or condition of, or
failure to perfect its Lien against, any security for or other guaranty of the
Guaranteed Obligations or any action, or the absence of any action, by the
Administrative Agent or any Lender in respect of such security or guaranty
(including, without limitation, the release of any such security or guaranty)
or (d) any other action or circumstances which might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor; it being
agreed by the Guarantor that its obligations under this Guaranty shall not be
discharged until the final and indefeasible payment and performance, in full,
of the Guaranteed Obligations and the termination of the Commitments. The
Guarantor expressly waives all rights it may now or in the future have under
any statute (including without limitation North Carolina General Statutes
Section 26-7, et seq. or similar law), or at law or in equity, or otherwise, to
compel the Administrative Agent or any Lender to proceed in respect of the
Guaranteed Obligations against any such Borrower or any other party or against
any security for or other guaranty of the payment and performance of the
Guaranteed Obligations before proceeding against, or as a condition to
proceeding against, the Guarantor. The Guarantor further expressly waives and
agrees not to assert or take advantage of any defense based upon the failure of
the Administrative Agent or any Lender to commence an action in respect of the
Guaranteed Obligations against any such Borrower, the Guarantor or any other
party or any security for the payment and performance of the Guaranteed
Obligations. The Guarantor agrees that any notice or directive given at any
time to the Administrative Agent or any Lender which is inconsistent with the
waivers in the preceding two sentences shall be null and void and may be
ignored by the Administrative Agent or Lender, and, in addition, may not be
pleaded or introduced as evidence in any litigation relating to this Guaranty
for the reason that such pleading or introduction would be at variance with the
written terms of this Guaranty, unless the Administrative Agent and the
Required Lenders have specifically agreed otherwise in writing. The foregoing
waivers are of the essence of the transaction contemplated by the Loan
Documents and, but for this Guaranty and such waivers, the Administrative Agent
and Lenders would decline to enter into this Agreement.
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SECTION 11.3 DEMAND BY THE ADMINISTRATIVE AGENT. In addition to
the terms set forth in Section 11.2, and in no manner imposing any limitation
on such terms, if all or any portion of the then outstanding Guaranteed
Obligations under this Agreement are declared to be immediately due and
payable, then the Guarantor shall, upon demand in writing therefor by the
Administrative Agent to the Guarantor, pay all or such portion of the
outstanding Guaranteed Obligations then declared due and payable. Payment by
the Guarantor shall be made to the Administrative Agent, to be credited and
applied upon the Guaranteed Obligations, in immediately available funds to an
account designated by the Administrative Agent or at the Administrative Agent's
office or at any other address that may be specified in writing from time to
time by the Administrative Agent.
SECTION 11.4 WAIVERS. In addition to the waivers contained in
Section 11.2, the Guarantor waives, and agrees that it shall not at any time
insist upon, plead or in any manner whatever claim or take the benefit or
advantage of, any appraisal, valuation, stay, extension, marshalling of assets
or redemption laws, or exemption, whether now or at any time hereafter in
force, which may delay, prevent or otherwise affect the performance by the
Guarantor of its obligations under, or the enforcement by the Administrative
Agent or the Lenders of, this Guaranty. The Guarantor further hereby waives
diligence, presentment, demand, protest and notice of whatever kind or nature
with respect to any of the Guaranteed Obligations and waives the benefit of all
provisions of law which are or might be in conflict with the terms of this
Guaranty. The Guarantor represents, warrants and agrees that its obligations
under this Guaranty are not and shall not be subject to any counterclaims,
offsets or defenses of any kind (except the defense of payment of the
Guaranteed Obligation) against the Administrative Agent, the Lenders or any
such Borrower whether now existing or which may arise in the future.
SECTION 11.5 MODIFICATION OF LOAN DOCUMENTS ETC. If the
Administrative Agent or the Lenders shall at any time or from time to time,
with or without the consent of, or notice to, the Guarantor (a) change or
extend the manner, place or terms of payment of, or renew or alter all or any
portion of, the Guaranteed Obligations, (b) take any action under or in respect
of the Loan Documents in the exercise of any remedy, power or privilege
contained therein or available to it at law, in equity or otherwise, or waive
or refrain from exercising any such remedies, powers or privileges, (c) amend
or modify, in any manner whatsoever, the Loan Documents, (d) extend or waive
the time for performance by the Guarantor, any such Borrower or any other
Person of, or compliance with, any term, covenant or agreement on its part to
be performed or observed under a Loan Document (other than this Guaranty), or
waive such performance or compliance or consent to a failure of, or departure
from, such performance or compliance, (e) take and hold security or collateral
for the payment of the Guaranteed Obligations or sell, exchange, release,
dispose of, or otherwise deal with, any property pledged, mortgaged or
conveyed, or in which the Administrative Agent or the Lenders have been granted
a Lien, to secure any Debt of the Guarantor or any such Borrower to the
Administrative Agent or the Lenders, (f) release anyone who may be liable in
any manner for the payment of any amounts owed by the Guarantor or any such
Borrower to the Administrative Agent or any Lender, (g) modify or terminate the
terms of any intercreditor or subordination agreement pursuant to which claims
of other creditors of the Guarantor or any such Borrower are subordinated to
the claims of the Administrative Agent or any Lender or (h) apply any sums by
whomever paid or however realized to any amounts owing by the Guarantor or any
such Borrower to the
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Administrative Agent or any Lender on account of the Obligations in such manner
as the Administrative Agent or any Lender shall determine in its reasonable
discretion; then neither the Administrative Agent nor any Lender shall incur
any liability to the Guarantor as a result thereof, and no such action shall
impair or release the obligations of the Guarantor under this Guaranty.
SECTION 11.6 REINSTATEMENT. The Guarantor agrees that, if any
payment made by any such Borrower or any other Person applied to the
Obligations is at any time annulled, set aside, rescinded, invalidated,
declared to be fraudulent or preferential or otherwise required to be refunded
or repaid, or the proceeds of Collateral are required to be returned by the
Administrative Agent or any Lender to any such Borrower, its estate, trustee,
receiver or any other party, including, without limitation, the Guarantor,
under any Applicable Law or equitable cause, then, to the extent of such
payment or repayment, the Guarantor's liability hereunder (and any Lien or
Collateral securing such liability) shall be and remain in full force and
effect, as fully as if such payment had never been made, and, if prior thereto,
this Guaranty shall have been canceled or surrendered (and if any Lien or
Collateral securing the Guarantor's liability hereunder shall have been
released or terminated by virtue of such cancellation or surrender), this
Guaranty (and such Lien or Collateral) shall be reinstated in full force and
effect, and such prior cancellation or surrender shall not diminish, release,
discharge, impair or otherwise affect the obligations of the Guarantor in
respect of the amount of such payment (or any Lien or Collateral securing such
obligation).
SECTION 11.7 NO SUBROGATION. Until all amounts owing to the
Administrative Agent and Lenders on account of the Obligations are paid in full
and the Commitments are terminated, the Guarantor hereby waives any claims or
other rights which it may now or hereafter acquire against any such Borrower
that arise from the existence or performance of the Guarantor's obligations
under this Guaranty, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, any right to participate in any
claim or remedy of the Administrative Agent or the Lenders against any such
Borrower or any Collateral which the Administrative Agent or the Lenders now
have or may hereafter acquire, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, by any payment made
hereunder or otherwise, including without limitation, the right to take or
receive from any such Borrower, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account
of such claim or other rights. If any amount shall be paid to the Guarantor on
account of such rights at any time when all of the Obligations shall not have
been paid in full, such amount shall be held by the Guarantor in trust for the
Administrative Agent, segregated from other funds of the Guarantor, and shall,
forthwith upon receipt by the Guarantor, be turned over to the Administrative
Agent in the exact form received by the Guarantor (duly indorsed by the
Guarantor to the Administrative Agent, if required) to be applied against the
Obligations, whether matured or unmatured, in such order as set forth herein.
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ARTICLE XII
DEFAULT AND REMEDIES
SECTION 12.1 EVENTS OF DEFAULT. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule or regulation
of any Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement
Obligations. The Loan Parties shall default in any payment of principal of any
Loan or Note or Reimbursement Obligation when and as due (whether at maturity,
by reason of acceleration or otherwise).
(b) Other Payment Default. The Loan Parties shall default in the
payment when and as due (whether at maturity, by reason of acceleration or
otherwise) of interest on any Loan or Note or Reimbursement Obligation or the
payment of any other Obligation, and such default shall continue unremedied for
three (3) Business Days.
(c) Misrepresentation. Any representation or warranty made or
deemed to be made by the Loan Parties or any of their Subsidiaries under this
Agreement, any Loan Document or any amendment hereto or thereto, shall at any
time prove to have been incorrect or misleading in any material respect when
made or deemed made.
(d) Default in Performance of Certain Covenants. The Loan Parties
shall default in the performance or observance of any covenant or agreement
contained in Sections 7.5(e) or Articles IX or X of this Agreement.
(e) Default under Material Contracts or Loss of Material License.
The Loan Parties or any of their Subsidiaries shall (i) default in any payment
or payments (which such payment or payments are material either individually or
in the aggregate) when due of any Material Contract or Material Contracts, or in
the performance or observance, of any material obligation or condition of any
Material Contract, unless, but only as long as, the existence of any such
default is being contested by such Loan Party in good faith by appropriate
proceedings and adequate reserves in respect thereof have been established on
the books of such Loan Party to the extent required by GAAP or (ii) allow any
Communications License or PUC Authorization of any Loan Party to be revoked,
suspended, cancelled or otherwise terminated and such revocation, suspension,
cancellation or other termination could reasonably be expected to have a
Material Adverse Effect.
(f) Default in Performance of Other Covenants and Conditions. The
Loan Parties or any Subsidiary thereof shall default in the performance or
observance of any material term, covenant, condition or agreement contained in
this Agreement (other than as specifically provided for otherwise in this
Section 12.1) or any other Loan Document and such default shall continue for a
period of thirty (30) days after written notice thereof has been given to the
Borrowers by the Administrative Agent.
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(g) Hedging Agreement. Any termination payment shall be due by any
Loan Party under any Hedging Agreement and such amount is not paid within five
(5) Business Days of the due date thereof.
(h) Debt Cross-Default. The Loan Parties or any of their
Subsidiaries shall (i) default in the payment of any Debt (other than the Notes)
or Reimbursement Obligation the aggregate outstanding amount of which Debt is in
excess of $1,000,000 beyond the period of grace if any, provided in the
instrument or agreement under which such Debt was created, or (ii) default in
the observance or performance of any other agreement or condition relating to
any Debt (other than the Notes) or Reimbursement Obligation the aggregate
outstanding amount of which Debt is in excess of $1,000,000 or contained in any
instrument or agreement evidencing, securing or relating thereto or any other
event shall occur or condition exist, in either case the effect of which default
or other event or condition is to cause, or to permit the holder or holders of
such Debt (or a trustee or agent on behalf of such holder or holders) to cause,
with the giving of notice if required, any such Debt to become due prior to its
stated maturity (any applicable grace period having expired); provided, that if
prior to the acceleration, but only prior to the acceleration, of the
Obligations by the Administrative Agent in accordance with the terms hereof, the
default referred to in clauses (i) and (ii) above, which is responsible for the
Event of Default under this paragraph (h), is cured to the satisfaction of the
Administrative Agent, then such Event of Default shall be deemed cured
hereunder.
(i) Change in Control. Any such time as (a) (i) prior to the
occurrence of a Public Market, a "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the
"Exchange Act")) becomes the ultimate "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act) of capital stock of any class or kind ordinarily
having the power to vote for the election of directors, managers or other voting
members of the governing body of the Guarantor ("Voting Stock") representing a
greater percentage of the total voting power of the Voting Stock of the
Guarantor, on a fully diluted basis, than is held by the Existing Stockholders
on such date and (ii) after the occurrence of a Public Market, a "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act)
becomes the ultimate "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of more than thirty-five percent (35%) of the total voting power
of the Voting Stock of the Guarantor, on a fully diluted basis and such
ownership represents a greater percentage of the total voting power of the
voting stock of the Guarantor, than is held by the Existing Stockholders on such
date; or (b) individuals who on the Closing Date constitute the Board of
Directors (together with any new directors whose election by the Board of
Directors or whose nomination by the Board of Directors for election by the
Guarantor's stockholders was approved by a vote of at least two-thirds of the
members of the Board of Directors then in office who either were members of the
Board of Directors on the Closing Date or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the members of the Board of Directors then in office (any such
event, a "Change in Control").
(j) Voluntary Bankruptcy Proceeding. Any Loan Party or any
Subsidiary thereof shall (i) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect), (ii) file a petition seeking to
take advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for adjustment of
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debts, (iii) consent to or fail to contest in a timely and appropriate manner
any petition filed against it in an involuntary case under such bankruptcy laws
or other laws, (iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part
of its property, domestic or foreign, (v) admit in writing its inability to pay
its debts as they become due, (vi) make a general assignment for the benefit of
creditors, or (vii) take any corporate action for the purpose of authorizing any
of the foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other proceeding
shall be commenced against any Loan Party or any Subsidiary thereof in any court
of competent jurisdiction seeking (i) relief under the federal bankruptcy laws
(as now or hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or adjustment of
debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or
the like for any Borrower or any Subsidiary thereof or for all or any
substantial part of their respective assets, domestic or foreign, and such case
or proceeding shall continue without dismissal or stay for a period of sixty
(60) consecutive days, or an order granting the relief requested in such case or
proceeding (including, but not limited to, an order for relief under such
federal bankruptcy laws) shall be entered.
(l) Failure of Agreements. Any material provision of this
Agreement or of any other Loan Document shall for any reason cease to be valid
and binding on the Loan Parties or any of their Subsidiaries party thereto or
any such Person shall so state in writing, or this Agreement or any other Loan
Document shall for any reason cease to create a valid and perfected first
priority Lien on, or security interest in, any of the collateral purported to be
covered thereby, in each case other than in accordance with the express terms
hereof or thereof.
(m) Termination Event. The occurrence of any of the following
events: (i) any Loan Party or any ERISA Affiliate fails to make full payment
when due of all amounts over $500,000 which, under the provisions of any Pension
Plan or Section 412 of the Code, such Loan Party or any ERISA Affiliate is
required to pay as contributions thereto, (ii) an accumulated funding deficiency
in excess of $500,000 occurs or exists, whether or not waived, with respect to
any Pension Plan, (iii) a Termination Event or (iv) any Loan Party or any ERISA
Affiliate as employers under one or more Multiemployer Plan makes a complete or
partial withdrawal from any such Multiemployer Plan and the plan sponsor of such
Multiemployer Plans notifies such withdrawing employer that such employer has
incurred a withdrawal liability requiring payments in an amount exceeding
$500,000.
(n) Judgment. A judgment or order for the payment of money which
causes the aggregate amount of all such judgments to exceed $5,000,000 in any
Fiscal Year shall be entered against any Loan Party or any of their respective
Subsidiaries by any court and such judgment or order shall continue without
discharge or stay for a period of thirty (30) days.
SECTION 12.2 REMEDIES. Upon the occurrence of an Event of Default,
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice
to the Loan Parties:
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(a) Acceleration; Termination of Facilities. Declare the principal
of and interest on the Loans and the Notes and the Reimbursement Obligations at
the time outstanding, and all other amounts owed to the Lenders and to the
Administrative Agent under this Agreement or any of the other Loan Documents
(other than any Hedging Agreement) (including, without limitation, all L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) and all other
Obligations (other than obligations owing under any Hedging Agreement), to be
forthwith due and payable, whereupon the same shall immediately become due and
payable without presentment, demand, protest or other notice of any kind, all of
which are expressly waived, anything in this Agreement or the other Loan
Documents to the contrary notwithstanding, and terminate the Credit Facility and
any right of the Borrowers to request borrowings or Letters of Credit
thereunder; provided, that upon the occurrence of an Event of Default specified
in Section 12.1(j) or (k), the Credit Facility shall be automatically terminated
and all Obligations (other than obligations owing under any Hedging Agreement)
shall automatically become due and payable.
(b) Letters of Credit. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, require the Borrowers at such
time to deposit in a cash collateral account opened by the Administrative Agent
an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay the
other Obligations. After all such Letters of Credit shall have expired or been
fully drawn upon, the Reimbursement Obligation shall have been satisfied and all
other Obligations shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Borrowers.
(c) Rights of Collection. Exercise on behalf of the Lenders all of
its other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrowers' Obligations.
SECTION 12.3 RIGHTS AND REMEDIES CUMULATIVE; NON-WAIVER; ETC. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of the Administrative Agent or any Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between the Borrowers, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
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ARTICLE XIII
THE ADMINISTRATIVE AGENT
SECTION 13.1 APPOINTMENT. Each of the Lenders hereby irrevocably
designates and appoints First Union as Administrative Agent of such Lender under
this Agreement and the other Loan Documents and each such Lender irrevocably
authorizes First Union as Administrative Agent for such Lender, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and such
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement or such other Loan Documents, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein and
therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or the other Loan Documents or otherwise exist
against the Administrative Agent.
SECTION 13.2 DELEGATION OF DUTIES. The Administrative Agent may
execute any of its respective duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by the Administrative Agent with
reasonable care.
SECTION 13.3 EXCULPATORY PROVISIONS. Neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or the other Loan Documents (except for actions occasioned solely by
its or such Person's own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Loan Parties or any of their
Subsidiaries or any officer thereof contained in this Agreement or the other
Loan Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under or
in connection with, this Agreement or the other Loan Documents or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or the other Loan Documents or for any failure of the Loan Parties or
any of their Subsidiaries to perform their respective obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Loan Parties or any of their Subsidiaries.
SECTION 13.4 RELIANCE BY THE ADMINISTRATIVE AGENT. The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be
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genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Loan Parties), independent accountants and other
experts selected by the Administrative Agent. The Administrative Agent may deem
and treat the payee of any Note as the owner thereof for all purposes unless
such Note shall have been transferred in accordance with Section 14.10. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement and the other Loan Documents unless it shall first
receive such advice or concurrence of the Required Lenders (or, when expressly
required hereby or by the relevant other Loan Document, all the Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action except for its own gross
negligence or willful misconduct. The Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
and the Notes in accordance with a request of the Required Lenders (or, when
expressly required hereby, all the Lenders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Notes.
SECTION 13.5 NOTICE OF DEFAULT. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any Default or Event
of Default hereunder unless it has received notice from a Lender or the Loan
Parties referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, it shall promptly give notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders; provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
SECTION 13.6 NON-RELIANCE ON THE ADMINISTRATIVE AGENT AND OTHER
LENDERS. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of the Loan Parties or any of their
Subsidiaries, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and their Subsidiaries and made
its own decision to make its Loans and issue or participate in Letters of Credit
hereunder and enter into this Agreement. Each Lender also represents 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 credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property,
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financial and other condition and creditworthiness of the Loan Parties and their
Subsidiaries. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder or by the
other Loan Documents, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Loan Parties or any of their Subsidiaries which may come
into the possession of the Administrative Agent or any of its respective
officers, directors, employees, agents, attorneys-in-fact, Subsidiaries or
Affiliates.
SECTION 13.7 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent in its capacity as such and (to the extent not reimbursed
by the Loan Parties without limiting the obligation of the Loan Parties to do
so) ratably according to the respective amounts of their Commitment Percentages,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes or any Reimbursement Obligations) be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or the other Loan Documents, or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's bad faith, gross negligence or willful misconduct. The agreements in
this Section 13.7 shall survive the payment of the Notes and all other amounts
payable hereunder and the termination of this Agreement.
SECTION 13.8 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The Administrative Agent and its respective Subsidiaries and Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Loan Parties as though the Administrative Agent were not an Administrative
Agent hereunder. With respect to any Loans made or renewed by it and any Note
issued to it and with respect to any Letter of Credit issued by it or
participated in by it, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not an Administrative Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agent in its individual
capacity.
SECTION 13.9 RESIGNATION OF THE ADMINISTRATIVE AGENT; SUCCESSOR
ADMINISTRATIVE AGENT. Subject to the appointment and acceptance of a successor
as provided below, the Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Loan Parties. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor Administrative
Agent, which successor shall have minimum capital and surplus of at least
$500,000,000. If no successor Administrative Agent shall have been so appointed
by the Required Lenders and shall have accepted such appointment within thirty
(30) days after the Administrative Agent's giving of notice of resignation, then
the Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which successor shall have minimum capital and surplus of
at least $500,000,000. Upon the acceptance of any
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appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all 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 hereunder as Administrative Agent, the provisions of this
Section 13.9 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 Administrative Agent.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 NOTICES.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to
it at the following addresses, or any other address as to which all the other
parties are notified in writing.
If to the Loan Parties: KNOLOGY Holdings, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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With copies (which shall
not constitute notice) to: ▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
Columbia Square
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to First Union as First Union National Bank
Administrative Agent: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication Agency Services
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 228202-4006
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Lender: To the Address set forth on Schedule 1 hereto
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Loan Parties and Lenders, as the Administrative Agent's Office referred to
herein, to which payments due are to be made and at which Loans will be
disbursed and Letters of Credit issued.
SECTION 14.2 EXPENSES; INDEMNITY. The Borrowers will (a) pay all
out-of-pocket expenses of the Administrative Agent in connection with (i) the
preparation, execution and delivery of this Agreement and each other Loan
Document, whenever the same shall be executed and delivered, including without
limitation all out-of-pocket syndication and due diligence expenses and
reasonable fees and disbursements of counsel for the Administrative Agent and
(ii) the preparation, execution and delivery of any waiver, amendment or consent
by the Administrative Agent or the Lenders relating to this Agreement or any
other Loan Document, including without limitation reasonable fees and
disbursements of counsel for the Administrative Agent, (b) pay all reasonable
out-of-pocket expenses of the Administrative Agent and each Lender actually
incurred in connection with the enforcement of any rights and remedies of the
Administrative Agent and Lenders under the Credit Facility, including consulting
with appraisers, accountants, engineers, attorneys and other Persons concerning
the nature, scope or value of any right or remedy of the Administrative Agent or
any Lender hereunder or under any other Loan Document or any factual matters in
connection therewith, which expenses shall
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include without limitation the reasonable fees and disbursements of such
Persons, and (c) defend, indemnify and hold harmless the Administrative Agent
and the Lenders, and their respective parents, Subsidiaries, Affiliates,
employees, agents, officers and directors, from and against any losses,
penalties, fines, liabilities, settlements, damages, costs and expenses,
suffered by any such Person in connection with any claim, investigation,
litigation or other proceeding (whether or not the Administrative Agent or any
Lender is a party thereto) and the prosecution and defense thereof, arising out
of or in any way connected with the Agreement, any other Loan Document or the
Loans, including without limitation reasonable attorney's and consultant's fees,
except to the extent that any of the foregoing directly result from the gross
negligence or willful misconduct of the party seeking indemnification therefor.
SECTION 14.3 SET-OFF. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during the continuance
thereof, the Lenders and any assignee or participant of a Lender in accordance
with Section 14.10 are hereby authorized by the Borrowers at any time or from
time to time, without notice to the Borrowers or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, time or demand, including, but not
limited to, indebtedness evidenced by certificates of deposit, whether matured
or unmatured) and any other indebtedness at any time held or owing by the
Lenders, or any such assignee or participant to or for the credit or the account
of the Borrowers against and on account of the Obligations irrespective of
whether or not (a) the Lenders shall have made any demand under this Agreement
or any of the other Loan Documents or (b) the Administrative Agent shall have
declared any or all of the Obligations to be due and payable as permitted by
Section 12.2 and although such Obligations shall be contingent or unmatured.
SECTION 14.4 GOVERNING LAW. This Agreement, the Notes and the
other Loan Documents, unless otherwise expressly set forth therein, shall be
governed by, construed and enforced in accordance with the laws of the State of
North Carolina, without reference to the conflicts or choice of law principles
thereof.
SECTION 14.5 CONSENT TO JURISDICTION. The Loan Parties hereby
irrevocably consent to the personal jurisdiction of the state and federal courts
located in Mecklenburg County, North Carolina, in any action, claim or other
proceeding arising out of any dispute in connection with this Agreement, the
Notes and the other Loan Documents, any rights or obligations hereunder or
thereunder, or the performance of such rights and obligations. The Loan Parties
hereby irrevocably consent to the service of a summons and complaint and other
process in any action, claim or proceeding brought by the Administrative Agent
or any Lender in connection with this Agreement, the Notes or the other Loan
Documents, any rights or obligations hereunder or thereunder, or the performance
of such rights and obligations, on behalf of itself or its property, in the
manner specified in Section 14.1. Nothing in this Section 14.5 shall affect the
right of the Administrative Agent or any Lender to serve legal process in any
other manner permitted by Applicable Law or affect the right of the
Administrative Agent or any Lender to bring any action or proceeding against the
Loan Parties or their properties in the courts of any other jurisdictions.
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SECTION 14.6 BINDING ARBITRATION; WAIVER OF JURY TRIAL.
(a) Binding Arbitration. Upon demand of any party, whether made
before or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to the Notes or any other
Loan Documents ("Disputes"), between or among parties to the Notes or any other
Loan Document shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the right of that
party to demand arbitration hereunder. Disputes may include, without limitation,
tort claims, counterclaims, claims brought as class actions, claims arising from
Loan Documents executed in the future, or claims concerning any aspect of the
past, present or future relationships arising out of or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association and Title 9 of the U.S. Code. All arbitration hearings
shall be conducted in Charlotte, North Carolina. The expedited procedures set
forth in Rule 51, et seq. of the Arbitration Rules shall be applicable to claims
of less than $1,000,000. All applicable statutes of limitation shall apply to
any Dispute. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding anything foregoing to the contrary, any
arbitration proceeding demanded hereunder shall begin within ninety (90) days
after such demand thereof and shall be concluded within one-hundred and twenty
(120) days after such demand. These time limitations may not be extended unless
a party hereto shows cause for extension and then such extension shall not
exceed a total of sixty (60) days. The panel from which all arbitrators are
selected shall be comprised of licensed attorneys. The single arbitrator
selected for expedited procedure shall be a retired judge from the highest court
of general jurisdiction, state or federal, of the state where the hearing will
be conducted. The parties hereto do not waive any applicable Federal or state
substantive law except as provided herein. Notwithstanding the foregoing, this
paragraph shall not apply to any Hedging Agreement that is a Loan Document.
(b) Jury Trial. TO THE EXTENT PERMITTED BY LAW, THE ADMINISTRATIVE
AGENT, EACH LENDER AND THE LOAN PARTIES HEREBY IRREVOCABLY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER
PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE
NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the
preceding binding arbitration provisions, the parties hereto and the other Loan
Documents preserve, without diminution, certain remedies that such Persons may
employ or exercise freely, either alone, in conjunction with or during a
Dispute. Each such Person shall have and hereby reserves the right to proceed in
any court of proper jurisdiction or by self help to exercise or prosecute the
following remedies: (i) all rights to foreclose against any real or personal
property or other security by exercising a power of sale granted in the Loan
Documents or under applicable law or by judicial foreclosure and sale, (ii) all
rights of self help including peaceful occupation of property and collection of
rents, set off, and peaceful possession of property, (iii) obtaining provisional
or ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and in filing an involuntary bankruptcy
proceeding, and (iv)
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when applicable, a judgment by confession of judgment. Preservation of these
remedies does not limit the power of an arbitrator to grant similar remedies
that may be requested by a party in a Dispute.
SECTION 14.7 REVERSAL OF PAYMENTS. To the extent the Borrowers
make a payment or payments to the Administrative Agent for the ratable benefit
of the Lenders or the Administrative Agent receives any payment or proceeds of
the collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
SECTION 14.8 INJUNCTIVE RELIEF; PUNITIVE DAMAGES.
(a) The Loan Parties recognize that, in the event the Loan Parties
fail to perform, observe or discharge any of its obligations or liabilities
under this Agreement, any remedy of law may prove to be inadequate relief to the
Lenders. Therefore, the Loan Parties agree that the Lenders, at the Lenders'
option, shall be entitled to temporary and permanent injunctive relief in any
such case without the necessity of proving actual damages.
(b) The Administrative Agent, Lenders and Loan Parties (on behalf
of themselves and their Subsidiaries) hereby agree that no such Person shall
have a remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
(c) The parties agree that they shall not have a remedy of
punitive or exemplary damages against any other party in any Dispute and hereby
waive any right or claim to punitive or exemplary damages they have now or which
may arise in the future in connection with any Dispute whether the Dispute is
resolved by arbitration or judicially.
SECTION 14.9 ACCOUNTING MATTERS. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by the
Loan Parties or any Subsidiary thereof to determine compliance with any covenant
contained herein, shall, except as otherwise expressly contemplated hereby or
unless there is an express written direction by the Administrative Agent to the
contrary agreed to by the Loan Parties, be performed in accordance with GAAP as
in effect on the Closing Date. In the event that changes in GAAP shall be
mandated by the Financial Accounting Standards Board, or any similar accounting
body of comparable standing, or shall be recommended by the Loan Parties'
certified public accountants, to the extent that such changes would modify such
accounting terms or the interpretation or computation thereof, such changes
shall be followed in defining such accounting terms only from and after the date
the Loan Parties and the Lenders shall have amended this Agreement to the extent
necessary to
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reflect any such changes in the financial covenants and other terms and
conditions of this Agreement.
SECTION 14.10 SUCCESSORS AND ASSIGNS; PARTICIPATIONS.
(a) Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of the Loan Parties, the Administrative Agent and the
Lenders, all future holders of the Notes, and their respective successors and
assigns, except that the Loan Parties shall not assign or transfer any of its
rights or obligations under this Agreement without the prior written consent of
each Lender.
(b) Assignment by Lenders. Each Lender may, with the consent of
the Administrative Agent and, so long as no Default or Event of Default has
occurred and is continuing, the Borrowers, which consents shall not be
unreasonably withheld, assign to one or more Eligible Assignees all or a portion
of its interests, rights and obligations under this Agreement (including,
without limitation, all or a portion of the Loans at the time owing to it and
the Extensions of Credit held by it); provided that:
(i) each such assignment shall be of a constant,
and not a varying, percentage of all the assigning Lender's rights and
obligations under this Agreement;
(ii) if less than all of the assigning Lender's
Commitment is to be assigned, the Commitment so assigned shall not be less than
$5,000,000;
(iii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance in the form of Exhibit F
attached hereto (an "Assignment and Acceptance"), together with any Note or
Notes subject to such assignment;
(iv) such assignment shall not, without the
consent of the Borrowers, require the Borrowers to file a registration statement
with the Securities and Exchange Commission or apply to or qualify the Loans or
the Notes under the blue sky laws of any state; and
(v) the assigning Lender shall pay to the
Administrative Agent an assignment fee of $3,000 upon the execution by such
Lender of the Assignment and Acceptance; provided that no such fee shall be
payable upon any assignment by a Lender to an Affiliate thereof.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
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(c) Rights and Duties Upon Assignment. By executing and delivering
an Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
set forth in such Assignment and Acceptance.
(d) Register. The Administrative Agent shall maintain 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 amount of the
Extensions of Credit with respect to each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrowers, the Administrative Agent and the Lenders may
treat each person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Loan Parties or Lenders at any reasonable time and from time
to time upon reasonable prior notice.
(e) Issuance of New Notes. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Eligible Assignee together
with any Note or Notes subject to such assignment and the written consent to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of Exhibit F:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in
the Register;
(iii) give prompt notice thereof to the Lenders
and the Borrowers; and
(iv) promptly deliver a copy of such Assignment
and Acceptance to the Borrowers.
Within five (5) Business Days after receipt of notice, the Borrowers shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Note or Notes, a new Note or Notes to the order of such Eligible Assignee in
amounts equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and a new Note or Notes to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of the assigned Notes delivered to the assigning Lender. Each surrendered Note
or Notes shall be canceled and returned to the Borrowers.
(f) Participations. Each Lender may sell participations to one or
more banks or other entities in all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Extensions of Credit and the Notes held by it); provided that:
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(i) each such participation shall be in an
amount not less than $5,000,000;
(ii) such Lender's obligations under this
Agreement (including, without limitation, its Commitment) shall remain
unchanged;
(iii) such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations;
(iv) such Lender shall remain the holder of the
Notes held by it for all purposes of this Agreement;
(v) the Loan Parties, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement;
(vi) such Lender shall not permit such
participant the right to approve any waivers, amendments or other modifications
to this Agreement or any other Loan Document other than waivers, amendments or
modifications which would reduce the principal of or the interest rate on any
Loan or Reimbursement Obligation, extend the term or increase the amount of the
Commitment, reduce the amount of any fees to which such participant is entitled,
extend any scheduled payment date for principal of any Loan or, except as
expressly contemplated hereby or thereby, release substantially all of the
Collateral; and
(vii) any such disposition shall not, without the
consent of the Loan Parties, require the Loan Parties to file a registration
statement with the Securities and Exchange Commission to apply to qualify the
Loans or the Notes under the blue sky law of any state.
(g) Disclosure of Information; Confidentiality. The Administrative
Agent and the Lenders shall hold all non-public information with respect to the
Loan Parties obtained pursuant to the Loan Documents in accordance with their
customary procedures for handling confidential information; provided, that the
Administrative Agent may disclose information relating to this Agreement to Gold
Sheets and other similar bank trade publications, such information to consist of
deal terms and other information customarily found in such publications and
provided further, that the Administrative Agent and Lenders may disclose any
such information to the extent such disclosure is required by law or request by
any regulatory authority. Any Lender may, in connection with any assignment,
proposed assignment, participation or proposed participation pursuant to this
Section 14.10, disclose to the assignee, participant, proposed assignee or
proposed participant, any information relating to the Loan Parties furnished to
such Lender by or on behalf of the Loan Parties; provided, that prior to any
such disclosure, each such assignee, proposed assignee, participant or proposed
participant shall agree with the Loan Parties or such Lender to preserve the
confidentiality of any confidential information relating to the Loan Parties
received from such Lender.
(h) Certain Pledges or Assignments. Nothing herein shall prohibit
any Lender from pledging or assigning any Note to any Federal Reserve Bank in
accordance with Applicable Law.
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SECTION 14.11 AMENDMENTS, WAIVERS AND CONSENTS. Except as set forth
below, any term, covenant, agreement or condition of this Agreement or any of
the other Loan Documents (other than any Hedging Agreement, the terms and
conditions of which, subject to the provisions of Section 10.1(j), may be
amended, modified or waived by the parties thereto) may be amended or waived by
the Lenders, and any consent given by the Lenders, if, but only if, such
amendment, waiver or consent is in writing signed by the Required Lenders (or by
the Administrative Agent with the consent of the Required Lenders) and delivered
to the Administrative Agent and, in the case of an amendment, signed by the Loan
Parties; provided, that no amendment, waiver or consent shall (a) increase the
amount or extend the time of the obligation of the Lenders to make Loans or
issue or participate in Letters of Credit (including without limitation pursuant
to Section 2.7), (b) extend the originally scheduled time or times of payment of
the principal of any Loan or Reimbursement Obligation or the time or times of
payment of interest on any Loan or Reimbursement Obligation, (c) reduce the rate
of interest or fees payable on any Loan or Reimbursement Obligation, (d) reduce
or waive the principal amount of any Loan or Reimbursement Obligation, (e)
permit any subordination of the principal or interest on any Loan or
Reimbursement Obligation, (f) permit any assignment (other than as specifically
permitted or contemplated in this Agreement) of any of the Borrowers' rights and
obligations hereunder, (g) release any material portion of the Collateral or
release any Security Document (other than as specifically permitted or
contemplated in this Agreement or the applicable Security Document) or (h) amend
or waive the provisions of Section 5.3, this Section 14.11 or the definition of
Required Lenders, without the prior written consent of each Lender. In addition,
no amendment, waiver or consent to the provisions of (a) Article XIII shall be
made without the written consent of the Administrative Agent and (b) Article III
without the written consent of the Issuing Lender. Further, upon receipt of any
revised business plan pursuant to Section 7.4(d), the Loan Parties, the
Administrative Agent and the Lenders agree to negotiate, in good faith,
amendments, if necessary, to the covenants set forth in Article IX to reflect
such revised business plan; provided that, nothing in this Section 14.11 shall
be construed to obligate the Administrative Agent or any Lender to agree to any
such amendment.
SECTION 14.12 PERFORMANCE OF DUTIES. The Loan Parties' obligations
under this Agreement and each of the Loan Documents shall be performed by the
Loan Parties at their sole cost and expense.
SECTION 14.13 ALL POWERS COUPLED WITH INTEREST. All powers of
attorney and other authorizations granted to the Lenders, the Administrative
Agent and any Persons designated by the Administrative Agent or any Lender
pursuant to any provisions of this Agreement or any of the other Loan Documents
shall be deemed coupled with an interest and shall be irrevocable so long as any
of the Obligations remain unpaid or unsatisfied or the Credit Facility has not
been terminated.
SECTION 14.14 SURVIVAL OF INDEMNITIES. Notwithstanding any
termination of this Agreement, the indemnities to which the Administrative Agent
and the Lenders are entitled under the provisions of this Article XIV and any
other provision of this Agreement and the Loan Documents shall continue in full
force and effect and shall protect the Administrative Agent and the Lenders
against events arising after such termination as well as before.
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SECTION 14.15 TITLES AND CAPTIONS. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
SECTION 14.16 SEVERABILITY OF PROVISIONS. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 14.17 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
SECTION 14.18 GUARANTOR AS AGENT FOR BORROWERS. Each Borrower
hereby irrevocably appoints and authorizes the Guarantor (a) to provide the
Agent with all notices with respect to Loans obtained for the benefit of any
Borrower and all other notices and instructions under this Agreement and (b) to
take such action on behalf of the Borrowers as the Guarantor deems appropriate
to obtain Loans and to exercise such other powers as are reasonably incidental
thereto to carry out the purposes of this Agreement.
SECTION 14.19 TERM OF AGREEMENT. This Agreement shall remain in
effect from the Closing Date through and including the date upon which all
Obligations shall have been indefeasibly and irrevocably paid and satisfied in
full. The Administrative Agent is hereby permitted to release all Liens on the
Collateral in favor of the Administrative Agent, for the ratable benefit of
itself and the Lenders, upon repayment of the outstanding principal of and all
accrued interest on the Loans, payment of all outstanding fees and expenses
hereunder and the termination of the Lenders' Commitments. No termination of
this Agreement shall affect the rights and obligations of the parties hereto
arising prior to such termination.
SECTION 14.20 INCONSISTENCIES WITH OTHER DOCUMENTS; INDEPENDENT
EFFECT OF COVENANTS. (a) In the event there is a conflict or inconsistency
between this Agreement and any other Loan Document, the terms of this Agreement
shall control; provided, that any provision of the Security Documents which
imposes additional burdens on the Borrowers or their respective Subsidiaries or
further restricts the rights of the Borrowers or their respective Subsidiaries
or gives the Administrative Agent or Lenders additional rights shall not be
deemed to be in conflict or inconsistent with this Agreement and shall be given
full force and effect.
(b) Each Borrower expressly acknowledges and agrees that each
covenant contained in Articles VIII, IX or X hereof shall be given independent
effect. Accordingly, such Borrower shall not engage in any transaction or other
act otherwise permitted under any covenant contained in Articles VIII, IX or X
if, before or after giving effect to such transaction or act, such Borrower
shall or would be in breach of any other covenant contained in Articles VIII, IX
or X.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, all as of the day and year first
written above.
[CORPORATE SEAL] KNOLOGY OF COLUMBUS, INC., as Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: CFO, Treasurer and Secretary
--------------------------------------
[CORPORATE SEAL] KNOLOGY OF ▇▇▇▇▇▇▇▇▇▇, INC., as
Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: CFO, Treasurer and Secretary
--------------------------------------
[CORPORATE SEAL] KNOLOGY OF PANAMA CITY, INC., as
Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: CFO, Treasurer and Secretary
--------------------------------------
[CORPORATE SEAL] KNOLOGY OF AUGUSTA, INC., as
Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: CFO, Treasurer and Secretary
--------------------------------------
96
[CORPORATE SEAL] KNOLOGY OF CHARLESTON, INC., as
Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: CFO, Treasurer and Secretary
--------------------------------------
[CORPORATE SEAL] KNOLOGY OF SOUTH CAROLINA, INC., as
Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: CFO, Treasurer and Secretary
--------------------------------------
[CORPORATE SEAL] KNOLOGY OF ALABAMA, INC., as
Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: CFO, Treasurer and Secretary
--------------------------------------
[CORPORATE SEAL] KNOLOGY OF FLORIDA, INC., as
Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: CFO, Treasurer and Secretary
--------------------------------------
[CORPORATE SEAL] KNOLOGY OF HUNTSVILLE, INC., as
Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: CFO and Treasurer
--------------------------------------
[Signature Pages Continue]
97
[CORPORATE SEAL] KNOLOGY OF BATON ROUGE, INC., as
Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: CFO and Treasurer
--------------------------------------
[CORPORATE SEAL] KNOLOGY OF LOUISIANA, INC., as
Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: CFO and Treasurer
--------------------------------------
[CORPORATE SEAL] KNOLOGY OF TENNESSEE, INC., as
Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: CFO and Treasurer
--------------------------------------
[CORPORATE SEAL] TTE, INC., as Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: CFO, Treasurer and Secretary
--------------------------------------
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[Signature Pages Continue]
98
[CORPORATE SEAL] KNOLOGY OF BATON ROUGE, INC., as
Borrower
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[CORPORATE SEAL] KNOLOGY OF LOUISIANA, INC., as
Borrower
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[CORPORATE SEAL] KNOLOGY OF TENNESSEE, INC., as
Borrower
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[CORPORATE SEAL] TTE, INC., as Borrower
By: /s/
-----------------------------------------
Name:
---------------------------------------
Title: Asst. Secretary
--------------------------------------
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[Signature Pages Continue]
99
[CORPORATE SEAL] KNOLOGY HOLDINGS, INC., as
Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: CFO and Secretary
--------------------------------------
[Signature Pages Continue]
100
The undersigned hereby executes this Agreement solely to acknowledge and agree
to be bound by the provisions of Articles VI, VII, VIII, IX, X, XIII and XIV but
in no way by becoming a signatory hereto shall the undersigned become obligated
for the repayment of the Loans, Obligations or the payment of any other sum
referred to herein or incur any liability as a Borrower or Guarantor hereunder
or have any Obligation to pledge any of its assets pursuant to the Loan
Documents. Notwithstanding the foregoing, the parties hereto agree that the
occurrence of any event with regard to KNOLOGY of Georgia, Inc. that would
constitute a Default or Event of Default if such event occurred with respect to
any other Loan Party shall constitute a Default or Event of Default, if
applicable.
[CORPORATE SEAL] KNOLOGY OF GEORGIA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: CFO, Treasurer and Secretary
--------------------------------------
[Signature Pages Continue]
101
FIRST UNION NATIONAL BANK, as
Administrative Agent and Lender
By: /s/ C. ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: C. ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President
--------------------------------------
102
EXHIBIT A
to
Credit Agreement dated as of December 22, 1998
by and among
KNOLOGY Holdings, Inc.,
as Guarantor,
Certain Subsidiaries of the Guarantor,
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF NOTE
103
REVOLVING CREDIT NOTE
$____________ December ____, 1998
FOR VALUE RECEIVED, the undersigned Subsidiaries of KNOLOGY Holdings,
Inc., a Delaware corporation (collectively, the "Borrowers"), hereby promise to
pay to the order of ______________________ (the "Lender"), at the times, at the
place and in the manner provided in the Credit Agreement hereinafter referred
to below, the principal sum of _____________ Dollars ($_________), or, if less,
the aggregate unpaid principal amount of all Loans (as defined in the Credit
Agreement) made by the Lender to the Borrowers from time to time pursuant to
the Credit Agreement, together with interest at the rates as in effect from
time to time with respect to each portion of the principal amount hereof,
determined and payable as provided in Article III of the Credit Agreement.
This Note is the Note referred to in, and is entitled to the benefits of,
the Credit Agreement dated as of December 22, 1998 (as amended, restated or
otherwise modified, the "Credit Agreement") by and among the Borrowers, KNOLOGY
Holdings, Inc., as Guarantor, the lenders (including the Lender) party thereto
and First Union National Bank, as Administrative Agent. The Credit Agreement
contains, among other things, provisions for the time, place and manner of
payment of this Note, the determination of the interest rate borne by and fees
payable in respect of this Note, acceleration of the payment of this Note upon
the happening of certain stated events and the mandatory repayment of this Note
under certain circumstances.
The Borrowers agree to pay on demand all costs of collection, including
reasonable attorneys' fees, if any part of this Note, principal or interest, is
collected after maturity with the aid of an attorney.
The Borrowers hereby waive all requirements as to diligence, presentment,
demand for payment, notice of dishonor, protest and notice of protest.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NORTH CAROLINA WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF
LAW PRINCIPLES THEREOF.
The Debt evidenced by this Note is senior in right of payment to all
Subordinated Debt referred to in the Credit Agreement.
104
IN WITNESS WHEREOF, the Borrowers have caused this Note to be executed
under seal by a duly authorized officer as of the day and year first above
written.
KNOLOGY OF COLUMBUS, INC.
[CORPORATE SEAL]
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
KNOLOGY OF ▇▇▇▇▇▇▇▇▇▇, INC.
[CORPORATE SEAL]
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
KNOLOGY OF PANAMA CITY, INC.
[CORPORATE SEAL]
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
KNOLOGY OF AUGUSTA, INC.
[CORPORATE SEAL]
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
KNOLOGY OF CHARLESTON, INC.
[CORPORATE SEAL]
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
[Revolving Credit Note]
105
KNOLOGY OF SOUTH CAROLINA, INC.
[CORPORATE SEAL]
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
KNOLOGY OF ALABAMA, INC.
[CORPORATE SEAL]
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
KNOLOGY OF FLORIDA, INC.
[CORPORATE SEAL]
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
KNOLOGY OF HUNTSVILLE, INC.
[CORPORATE SEAL]
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
KNOLOGY OF LOUISIANA, INC.
[CORPORATE SEAL]
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
KNOLOGY OF BATON ROUGE, INC.
[CORPORATE SEAL]
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
[Revolving Credit Note]
106
[CORPORATE SEAL] KNOLOGY OF TENNESSEE, INC.
By:
--------------------------------------
Name:
---------------------------------
Title:
-------------------------------
TTE, INC.
[CORPORATE SEAL]
By:
--------------------------------------
Name:
---------------------------------
Title:
-------------------------------
By:
--------------------------------------
Name:
---------------------------------
Title:
-------------------------------
107
EXHIBIT B
to
Credit Agreement dated as of December 22, 1998
by and among
KNOLOGY Holdings, Inc.,
as Guarantor,
Certain Subsidiaries of the Guarantor,
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF NOTICE OF BORROWING
108
NOTICE OF BORROWING
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Borrowing is delivered to you by KNOLOGY
Holdings, Inc., on behalf of the Borrowers referred to below, under Section 2.2
(a) of the Credit Agreement dated as of December 22, 1998 (as amended, restated
or otherwise modified, the "Credit Agreement), by and among KNOLOGY HOLDINGS,
INC., a Delaware corporation, as guarantor (the "Guarantor"), certain
Subsidiaries of the Guarantor, as borrowers and any Additional Borrowers who may
become party thereto (such Subsidiaries and Additional Borrowers being
collectively, the "Borrowers"), the Lenders who are or may become a party
thereto (the "Lenders"), and FIRST UNION NATIONAL BANK, as Administrative Agent
for the Lenders.
1 . The Guarantor, on behalf of the Borrowers, hereby requests that the
Lenders make a Loan to the Borrowers in the aggregate principal amount of
$___________ (the "Loan"). (Complete with an amount in accordance with Section
2.2(a) of the Credit Agreement.)
2. The Guarantor, on behalf of the Borrowers, hereby requests that the
Loan be made on the following Business Day:_______________. (Complete with a
Business Day in accordance with Section 2.2(a) of the Credit Agreement.)
3. The Guarantor, on behalf of the Borrowers, hereby requests that the
Loan bear interest at the following interest rate, plus the Applicable Margin,
as set forth below:
Principal Component Interest Rate Termination Date for
Of [Base Rate or Interest Period Interest Period (if
Loan LIBOR Rate (LIBOR Rate only) applicable)
------------------- ------------- ----------------- --------------------
4. The principal amount of all Loans and L/C Obligations outstanding as
of the date hereof (including the requested Loan) does not exceed the maximum
amount permitted to be outstanding pursuant to the terms of the Credit
Agreement.
5. All of the conditions applicable to the Loan requested herein as set
forth in the Credit Agreement have been satisfied as of the date hereof and will
remain satisfied to the date of such Loan.
6. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
109
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Borrowing this _______ day of ______________, ____.
KNOLOGY HOLDINGS, INC., on behalf
of the Borrowers
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
110
EXHIBIT C
to
Credit Agreement
dated as of December 22, 1998
by and among
KNOLOGY Holdings, Inc.,
as Guarantor,
Certain Subsidiaries of the Guarantor,
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF NOTICE OF PREPAYMENT
111
NOTICE OF PREPAYMENT
First Union National Bank,
as Administrative Agent
One First Union Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Prepayment is delivered to you by KNOLOGY
Holdings, Inc., on behalf of the Borrowers referred to below, under Section
2.3(c) of the Credit Agreement dated as of December 22, 1998 (as amended,
restated or otherwise modified (the "Credit Agreement"), by and among KNOLOGY
HOLDINGS, INC., a Delaware corporation, as guarantor (the "Guarantor"), certain
Subsidiaries of the Guarantor, as borrowers and any Additional Borrowers who may
become party thereto (such Subsidiaries and Additional Borrowers being
collectively, the "Borrowers"), the Lenders who are or may become a party
thereto (the "Lenders"), and FIRST UNION NATIONAL BANK, as Administrative Agent
for the Lenders.
1. The Guarantor, on behalf of the Borrowers, hereby provides notice to
the Administrative Agent that the Borrowers shall repay the following [Base Rate
Loans] and/or [LIBOR Rate Loans]: ___________________ (Complete with an amount
in accordance with Section 2.3 of the Credit Agreement.)
2. The Borrowers shall repay the above referenced Loans on the
following Business Day:________________. (Complete with a Business Day in
accordance with Section 2.3 of the Credit Agreement.)
3. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Prepayment this _______ day of _________, 19__.
KNOLOGY HOLDINGS, INC., on behalf
of the Borrowers
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
112
EXHIBIT D
to
Credit Agreement dated as of December 22, 1998
by and among
KNOLOGY Holdings, Inc.,
as Guarantor,
Certain Subsidiaries of the Guarantor,
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF NOTICE OF CONVERSION/CONTINUATION
113
NOTICE OF CONVERSION/CONTINUATION
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation (this "Notice") is
delivered to you by KNOLOGY Holdings, Inc., on behalf of the Borrowers referred
to below, under Section 4.2 of the Credit Agreement dated as of December 22,
1998 (as amended, restated or otherwise modified, the "Credit Agreement"), by
and among KNOLOGY HOLDINGS, INC., a Delaware corporation, as guarantor (the
"Guarantor"), certain Subsidiaries of the Guarantor, as borrowers and any
Additional Borrowers who may become party thereto (such Subsidiaries and
Additional Borrowers being collectively, the "Borrowers"), the lenders who are
or may become a party thereto (the "Lenders"), and FIRST UNION NATIONAL BANK, as
Administrative Agent for the Lenders.
1. This Notice is submitted for the purpose of: (Check one and complete
applicable information in accordance with the Credit Agreement.)
[ ]Converting all or a portion of a Base Rate Loan into a LIBOR
Rate Loan
(a) The aggregate outstanding principal balance of such Loan is
$________________.
(b) The principal amount of such Loan to be converted is $_________.
(c) The requested effective date of the conversion of such Loan is
_________________.
(d) The requested Interest Period applicable to the converted Loan
is ______________.
[ ]Converting a portion of LIBOR Rate Loan into a Base Rate Loan
(a) The aggregate outstanding principal balance of such Loan is
$____________.
(b) The last day of the current Interest Period for such Loan is
____________.
(c) The principal amount of such Loan to be converted is $_________.
114
(d) The requested effective date of the conversion of such Loan is
_____________.
[ ]Continuing all or a portion of a LIBOR Rate Loan as a LIBOR Rate
Loan
(a) The aggregate outstanding principal balance of such Loan is
_____________.
(b) The last day of the current Interest Period for such Loan is
_____________.
(c) The principal amount of such Loan to be continued is
$_____________.
(d) The requested effective date of the continuation of such Loan is
_____________.
(e) The requested Interest Period applicable to the continued Loan
is __________.
2. The principal amount of all Loans and L/C Obligations outstanding as
of the date hereof does not exceed the maximum amount permitted to be
outstanding pursuant to the terms of the Credit Agreement.
3. All of the conditions applicable to the conversion or continuation
of the Loan requested herein as set forth in the Credit Agreement have been
satisfied or waived as of the date hereof and will remain satisfied or waived to
the date of such Loan.
4. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
[Signature Page Follows]
115
IN WITNESS WHEREOF, the undersigned has executed this Notice this ____
day of ________, 19__.
KNOLOGY HOLDINGS, INC., on behalf
of the Borrowers
By:_____________________________
Name:________________________
Title:_______________________
▇▇▇
▇▇▇▇▇▇▇ ▇
to
Credit Agreement dated as of December 22, 1998
by and among
KNOLOGY Holdings, Inc.,
as Guarantor,
Certain Subsidiaries of the Guarantor,
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
117
OFFICER'S COMPLIANCE CERTIFICATE
KNOLOGY HOLDINGS, INC., a Delaware corporation, on behalf of the
Borrowers referred to below, hereby certifies to First Union National Bank, as
Administrative Agent ("First Union"), and the Lenders, each as defined in the
Credit Agreement, as follows:
1. This Certificate is delivered to you pursuant to Section 5.2 of
the Credit Agreement dated as of December 22, 1998 (as amended, restated or
otherwise modified, the "Credit Agreement"), by and among KNOLOGY Holdings,
Inc., as guarantor (the "Guarantor"), certain Subsidiaries of the Guarantor, as
borrowers and any Additional Borrowers who may become party thereto (such
Subsidiaries and Additional Borrowers being collectively, the "Borrowers"), the
lenders party thereto and First Union. Capitalized terms used herein and not
defined herein shall have the meanings assigned thereto in the Credit Agreement.
2. I have reviewed the financial statements of the Loan Parties dated
as of ____________ and for the ____________ period[s) then ended and such
statements fairly present in all material respects the financial condition of
the Loan Parties as of the dates indicated and the results of their operations
and cash flows for the period[s] indicated.
3. I have reviewed the terms of the Credit Agreement, the Notes and
the related Loan Documents and have made, or caused to be made under my
supervision, a review in reasonable detail of the transactions and the condition
of the Loan Parties during the accounting period covered by the financial
statements referred to in Paragraph 2 above. Such review has not disclosed the
existence during or at the end of such accounting period of any condition or
event that constitutes a Default or an Event of Default, nor do I have any
knowledge of the existence of any such condition or event as at the date of this
Certificate [except, [if such condition or event existed or exists, describe the
nature and period of existence thereof and what action the Loan Parties have
taken, are taking and propose to take with respect thereto]].
4. The Applicable Margin and calculations determining such figure are
set forth on the attached Schedule I and the Loan Parties are in compliance with
the financial covenants contained in Article IX of the Credit Agreement as shown
on such Schedule 1.
118
WITNESS the following signature as of the _____day of ______,___.
KNOLOGY HOLDINGS, INC., on behalf
of the Borrowers
By:
-----------------------------
Name:
------------------------
Title:
-----------------------
119
Schedule 1
to
Officer's Compliance Certificate
120
EXHIBIT F
to
Credit Agreement dated as of December 22, 1998
by and among
KNOLOGY Holdings, Inc.,
as Guarantor,
Certain Subsidiaries of the Guarantor,
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF ASSIGNMENT AND ACCEPTANCE
121
ASSIGNMENT AND ACCEPTANCE
Dated _______
Reference is made to the Credit Agreement dated as of December 22, 1998
(as amended, restated or otherwise modified, the "Credit Agreement"), by and
among KNOLOGY HOLDINGS, INC., a Delaware corporation, as guarantor (the
"Guarantor"), certain Subsidiaries of the Guarantor, as borrowers and any
Additional Borrowers who may become party thereto (such Subsidiaries and
Additional Borrowers being collectively, the "BORROWERS"), the lenders who are
or may become a party thereto, and FIRST UNION NATIONAL BANK, as Administrative
Agent for the Lenders. Capitalized terms used herein which are not defined
herein shall have the meanings assigned thereto in the Credit Agreement.
______________________________________________________(the "Assignor")
and ______________________________________(the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, as of the Effective
Date (as defined below), a ____% interest in and to all of the Assignor's
interest, rights and obligations with respect to its Commitment and Loans
(including such percentage of the outstanding L/C Obligations) under the Credit
Agreement and the other Loan Documents and the Assignor thereby retains ____% of
its interest therein. This Assignment and Acceptance is entered pursuant to, and
authorized by, Section 14.10(b) of the Credit Agreement.
2. The Assignor (i) represents that, as of the date hereof, its
Commitment Percentage (without giving effect to assignments thereof which have
not yet become effective) under the Credit Agreement is ____%, and the
outstanding balance of its Loans (including its Commitment Percentage of
outstanding L/C Obligations) (unreduced by any assignments thereof which have
not yet become effective) under the Credit Agreement is $_____; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto, other
than that the Assignor is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear of any adverse
claim; (iii) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Loan Parties or the performance
or observance by the Loan Parties of any of their obligations under the Credit
Agreement or any other Loan Document; and (iv) attaches the Revolving Credit
Note delivered to it under the Credit Agreement and requests that the Borrowers
exchange such Note for new Notes payable to each of the Assignor and the
Assignee as follows:
1
122
Revolving Credit Note
Payable to the Order of: Principal Amount of Note:
----------------------- -------------------------
$
---------------------- -------------------------
$
---------------------- -------------------------
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 7.1 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance;
(iii) agrees that it will, independently and without reliance upon the Assignor
or any other Lender or the Administrative Agent and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement; (iv)
confirms that it is an Eligible Assignee; (v) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (vi) agrees that it will perform in
accordance with their terms all the obligations which by the terms of the Credit
Agreement and the other Loan Documents are required to be performed by it as a
Lender; and (vii) agrees to hold all confidential information in a manner
consistent with the provision of Section 14.10(g) of the Credit Agreement.
4. The effective date for this Assignment and Acceptance shall be as
set forth in Section 1 of Schedule I hereto (the "Effective Date"). Following
the execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent to the extent required by the Credit Agreement, for consent
by the Administrative Agent and the Borrowers, acceptance and recording in the
Register.
5. Upon such consents, acceptance and recording, from and after the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and
the other Loan Documents to which Lenders are parties and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Lender under each such agreement, and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement and the other Loan
Documents; provided, that to the extent that the Assignor retains any portion of
its Commitment, its rights and obligations under the Credit Agreements and the
other Loan Documents with respect to such retained portion of its Commitment
shall continue to be of full force and effect.
6. Upon such consents, acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the interest assigned hereby (including payments of principal, interest, fees
and other amounts) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
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7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE DEEMED TO BE A CONTRACT
UNDER SEAL AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
ASSIGNOR:
________________________________
By:_____________________________
Title:__________________________
ASSIGNEE:
________________________________
By:_____________________________
Title:__________________________
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Acknowledged and Consented to:
KNOLOGY HOLDINGS, INC., on behalf
of the Borrowers
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
Consented to and Accepted:
FIRST UNION NATIONAL BANK,
as Administrative Agent
By:
-------------------------------
Title:
-------------------------
125
Schedule I
to
Assignment and Acceptance
1. Effective Date ____________,___
2. Assignor's Interest
Prior to Assignment
(a) Commitment Percentage ______%
(b) Outstanding balance of Loans $____________
(c) Outstanding balance of
Assignor's Commitment Percentage of the L/C Obligations $____________
3. Assigned Interest (from Section 1 of the Assignment
and Acceptance) of Loans ______%
4. Assignee's Extensions of Credit
After Effective Date
(a) Total Outstanding balance of
Assignee's Loans
(line 2(b) times line 3) $____________
(b) Total Outstanding balance of
Assignee's Commitment Percentage
of the L/C Obligations
(line 2(c) times line 3) $____________
5. Retained Interest of Assignor after
Effective Date
(a) Retained Interest (from Section 1 of the
Assignment and Acceptance) of
Commitment Percentage ______%
(b) Outstanding balance of Assignor's Loans
(line 2(b) times line 5(a)) $____________
(c) Outstanding balance of Assignor's
Commitment Percentage of L/C Obligations
(line 2(c) times line 5(a)) $____________
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6. Payment Instructions
(a) If payable to Assignor,
to the account of Assignor to:
-------------------------------------
-------------------------------------
ABA No.:
------------------------------
Account Name:
---------------------------
Acct. No.
----------------------------
Attn:
--------------------------------
Ref:
---------------------------------
(b) If payable to Assignee, to the account
of Assignee to:
-------------------------------------
ABA No.:
------------------------------
Account Name:
---------------------------
Account. No.:
---------------------------
Ref:
---------------------------------
127
EXHIBIT G
to
Credit Agreement dated as of December 22, 1998
by and among
KNOLOGY Holdings, Inc.,
as Guarantor,
Certain Subsidiaries of the Guarantor,
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF NOTICE OF ACCOUNT DESIGNATION
128
NOTICE OF ACCOUNT DESIGNATION
Dated ______
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Syndication Agency Services
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you by KNOLOGY
Holdings, Inc., on behalf of the Borrowers referred to below, under Section
2.2(b) of the Credit Agreement dated as of December 22, 1998 (as amended,
restated or otherwise modified, the "Credit Agreement") by and among KNOLOGY
HOLDINGS, INC., a Delaware corporation, as guarantor (the "Guarantor"), certain
Subsidiaries of the Guarantor, as borrowers and any Additional Borrowers who may
become party thereto (such Subsidiaries and Additional Borrowers being
collectively, the "Borrowers"), the Lenders who are or may become a party
thereto, and FIRST UNION NATIONAL BANK, as Administrative Agent for the Lenders.
The Administrative Agent is hereby authorized to disburse all Loan
proceeds into the following account(s):
Bank:
-------------------------------------
ABA Routing Number:
-----------------------
Account number:
---------------------------
2. This authorization shall remain in effect until revoked or until a
subsequent Notice of Account Designation is provided to the Administrative
Agent.
3. Capitalized terms used herein and not defined herein shall have
the meanings assigned thereto in the Credit Agreement.
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IN WITNESS WHEREOF, the undersigned has executed this Notice of Account
Designation this ____ day of _________,____.
KNOLOGY HOLDINGS, INC., on behalf
of the Borrowers
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
130
EXHIBIT H
to
Credit Agreement dated as of December 22, 1998
by and among
KNOLOGY Holdings, Inc.,
as Guarantor,
Certain Subsidiaries of the Guarantor,
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF COLLATERAL ASSIGNMENT
131
COLLATERAL ASSIGNMENT
This COLLATERAL ASSIGNMENT (as amended, restated, or otherwise
modified, this "Assignment"), dated as of_________ __, 199_ by and among
[____________], a corporation organized under the laws of [____________] (the
"Assignor"), and FIRST UNION NATIONAL BANK, a national banking association, as
Administrative Agent, for the benefit of the Administrative Agent and the
Lenders under the Credit Agreement (as hereinafter defined).
STATEMENT OF PURPOSE
Pursuant to the Credit Agreement of even date herewith (as amended,
restated or otherwise modified, the "Credit Agreement"), by and among KNOLOGY
HOLDINGS, INC., a Delaware corporation, as guarantor (the "Guarantor"), certain
Subsidiaries of the Guarantor, as borrowers and any Additional Borrowers who may
become party thereto (such Subsidiaries and Additional Borrowers being
collectively, the "Borrowers"), the Lenders who are or may become a party
thereto, and FIRST UNION NATIONAL BANK, as Administrative Agent for the Lenders,
the Lenders will provide certain credit facilities to the Borrowers as more
specifically described in the Credit Agreement.
Assignor is the occupant under one or more leases, easements or other
agreements for the use of real property, which leases, easements or agreements
and which real property are more particularly described on the attached Exhibit
I (which leases, easements and/or agreements, together with any and all
renewals, extensions, amendments, restatements and supplements thereto, are
collectively referred to in this Assignment as the "Agreements"). The owners of
the real estate under the Agreements (collectively referred to herein as the
"Owner") are as identified on Exhibit I.
In connection with the transactions contemplated by the Credit
Agreement and as a condition precedent thereto, the Lenders have requested that
the Assignor execute this Assignment, and the Assignor has agreed to do so
pursuant to the terms hereof.
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into and make available Loans
pursuant to the Credit Agreement, the Assignor hereby agrees with the
Administrative Agent for the ratable benefit of the Administrative Agent and
Lenders as follows:
SECTION 1. Defined Terms. Capitalized terms used and not otherwise
defined in this Assignment, including in the preambles and recitals hereof,
shall have the meaning assigned thereto in the Credit Agreement. In the event of
a conflict between capitalized terms defined herein and in the Credit Agreement,
the Credit Agreement shall control.
SECTION 2. Assignment of Agreements. As collateral security for the
payment and performance of the Obligations, Assignor grants, assigns, transfers
and sets over to the Administrative Agent, ratably for the benefit of itself and
the Lenders, a security interest in (a) all of Assignor's right, title and
interest, powers, privileges and other benefits under the Agreements, including,
without limitation, the right of use of, and where applicable, to take
possession of and use
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any and all of, the premises covered by the Agreements and related facilities
(the "Facilities") made available for use to Assignor, and the right to make all
waivers and agreements, to give all notices, consents and releases, to take all
action upon the happening of any default giving rise to a right in favor of
Assignor under the Agreements, and to do any and all other things whatsoever
which Assignor is or may become entitled to do under the Agreements, and (b)
Assignor's renewal and extension options, if any, under the Agreements or any
other agreement to extend the term of the Agreements.
SECTION 3. No Transfer of Agreements. This Assignment is executed as
partial security for Assignor's obligations and liabilities under the Security
Documents and, therefore, the execution and delivery of this Assignment shall
not subject the Administrative Agent or any Lender to, or transfer or pass to
the Administrative Agent or any Lender, or in any way affect or modify, the
liability of the Assignor under the Agreements, it being understood and agreed
that, notwithstanding this Assignment or any subsequent assignment, and subject
to the provisions of Section 2 of this Assignment, all of the obligations of the
Assignor to each and every other party under the Agreements, including without
limitation the Owner, shall be and remain enforceable by such other party, its
successors and assigns, against, but only against, the Assignor and not the
Administrative Agent or the Lenders or any of their successors and assigns.
SECTION 4. Representations and Warranties. The Assignor represents and
warrants as follows:
(a) The Assignor has the corporate power and authority and the
legal right to execute and deliver, to perform its obligations under, and to
assign the Agreements pursuant to, this Assignment and has taken all necessary
corporate action to authorize its execution, delivery and performance of, and
assignment of the Agreements pursuant to, this Assignment.
(b) This Assignment constitutes a legal, valid and binding
obligation of the Assignor enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
(c) Except as set forth in Sections 8.12(c) and 8.12(d) of the
Credit Agreement, the execution, delivery and performance of this Assignment
will not violate any provision of any material Applicable Law or material
contractual obligation of the Assignor and will not result in the creation or
imposition of any Lien on any of the material properties or revenues of the
Assignor pursuant to any Applicable Law or contractual obligation of the
Assignor, except as contemplated hereby and except for such Liens which could
not be reasonably expected to have a Material Adverse Effect.
(d) Except as set forth in Sections 8.12(c) and 8.12(d) of the
Credit Agreement and as provided for in Section 13 hereof, no consent or
authorization of, filing with any arbitrator or Governmental Authority and no
consent of any other Person (including, without limitation, any equity owner,
partner, member or creditor of the Assignor) against the Assignor, is required
in connection with the execution, delivery, performance, validity or
enforceability of this Assignment, except filings with the Uniform Commercial
Code or any applicable real estate filings.
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133
(e) Except as set forth on Schedule 6.1(u) of the Credit
Agreement, no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Assignor after due inquiry, threatened by or against the Assignor or against any
of its properties or revenues with respect to this Assignment or any of the
transactions contemplated hereby.
(f) The Assignor has good and marketable title to the Agreements,
free and clear of any Liens other than Permitted Liens (as defined in the
Security Agreement).
(g) No financing statement, mortgage, security agreement or
similar or equivalent document or instrument covering all or any part of the
Agreements is on file or of record in any jurisdiction, other than those
respecting Permitted Liens.
(h) All of the information set forth in the Perfection Certificate
(as defined in the Security Agreement) is true and correct as of the date
hereof.
(i) The UCC-1 financing statements naming the Assignor as Debtor
are in appropriate form and when filed in the offices specified in the
Perfection Certificate, the Administrative Agent, on behalf of itself and the
Lenders, will have a valid and perfected security interest in the Agreements,
prior to all other Liens and rights of others therein except for any Permitted
Liens (to the extent that a security interest therein may be created pursuant to
the UCC and perfected by filing pursuant to the UCC) and all filings and other
actions necessary or desirable to so perfect and protect such Assignment,
including any applicable real estate filings, have been duly taken.
SECTION 5. Further Assurances; Covenants. To protect the
security afforded by this Assignment, the Assignor agrees as follows:
(a) Assignor will, perform and comply with all of its material
obligations under the Agreements.
(b) Without the written consent of the Administrative Agent on
behalf of the Lenders (such consent not to be unreasonably withheld), the
Assignor will not amend, modify, or otherwise change any material portion of the
Agreements in a manner which could reasonably be expected to cause a Material
Adverse Effect or terminate the Agreements. Any amendment, modification, other
change or termination made in violation of the provisions of this Section 5(b)
shall be void.
(c) At Assignor's sole cost and expense, Assignor shall appear in
and defend any action or proceedings arising under, growing out of or in any
manner connected with the obligations of Assignor under the Agreements unless
the failure to so appear and defend could not reasonably be expected to cause a
Material Adverse Effect.
(d) Should Assignor fail to perform or discharge its obligations
or duties under the Agreements as required under this Assignment, then the
Administrative Agent may, but shall have no obligation to (and shall not thereby
release Assignor from any obligation hereunder), perform or discharge any such
obligation or duty to such extent as the Administrative Agent may deem
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134
reasonably necessary or advisable to protect the security provided hereby,
including appearing in and defending any action or proceeding purporting to
affect the security hereof and the rights or powers of Administrative Agent, on
behalf of itself and the Lenders hereunder. In exercising any such powers, the
Administrative Agent may pay necessary or advisable costs, and reasonable
attorneys fees (including attorneys' fees, paralegals' fees and expenses) and
all such expenses paid or incurred by Administrative Agent shall be additional
Obligations of the Assignor payable upon demand, and shall bear interest at the
default rate of interest set forth in the Credit Agreement.
(e) Upon the Administrative Agent's exercise of its rights
hereunder or any other succession of the Administrative Agent, on behalf of the
Lenders, to the role of "occupant" under the Agreements, the Administrative
Agent, on behalf of the Lenders, shall have the right to assign its rights and
interest in the Agreements.
(f) Assignor will, from time to time, do and perform any other act
or acts and will execute, acknowledge, deliver and file, register, record and
deliver (and will refile, reregister, rerecord and deliver whenever required)
any and all further instruments, including any extensions and renewals thereof,
required by law or reasonably requested by the Administrative Agent in order to
confirm, or further assure, the interests of Administrative Agent, on behalf of
the Lenders hereunder. In addition, upon the written request of the
Administrative Agent, Assignor shall use its best efforts to obtain the written
consent to this Assignment of the Owner and any other lender, mortgagee, or any
other party having an interest in the premises in form and substance reasonably
satisfactory to the Administrative Agent as the Administrative Agent may from
time to time require.
(g) The Assignor agrees to pay, and to indemnify and save the
Administrative Agent and the Lenders harmless from, any and all liabilities,
costs and expenses (including, without limitation, reasonable legal fees and
expenses) (i) with respect to, or resulting from, any and all excise, sales or
other taxes which may be payable or determined to be payable with respect to the
Agreements, (ii) with respect to, or resulting from, complying with any
Applicable Law applicable to the Agreements or (iii) in connection with any of
the transactions contemplated by this Assignment; provided, that said
indemnification shall not apply to the extent any such liabilities, costs and
expenses result from the gross negligence or willful misconduct of the
Administrative Agent or any Lender. The obligations of the Assignor under this
Section 5(g) shall survive the termination of the other provisions of this
Assignment.
SECTION 6. Reporting and Recordkeeping. The Assignor covenants and
agrees with the Administrative Agent and the Lenders that from and after the
date of this Assignment and until the Commitments have terminated and all
Obligations have been fully satisfied, the Assignor will keep and maintain at
its own cost and expense complete and accurate records of all transactions and
events involving or relating to the Agreements, all in a manner consistent with
Assignor's past practice.
SECTION 7. General Authority.
(a) The Assignor hereby irrevocably appoints the Administrative
Agent its true and lawful attorney, with full power of substitution, in the name
of the Assignor, the Administrative Agent, the Lenders or otherwise, for the
sole use and benefit of the Administrative Agent and the
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135
Lenders, but at the Assignor's expense, at any time and from time to time all
authority to ask, require, demand, receive and give acquittance for each and
every payment under or arising out of the Agreements to which Assignor is or may
become entitled, to enforce compliance by each or any other party with each or
any term or provision of the Agreements, to endorse each and every check or
other instrument or order in connection therewith, or any one or more of them,
and to file any claim or claims, take any action or actions or institute any
proceedings which the Administrative Agent may deem to be reasonably necessary
or advisable; provided that the Administrative Agent shall not take any of the
actions described above in this Section 7 unless an Event of Default shall have
occurred and be continuing.
Notwithstanding the foregoing provisions of this Section 7, no Person
shall be entitled to take any action with respect to any part or all of the
Agreements which would constitute a transfer of control in or an assignment by
the Assignor of its right, title or interest in and to any CATV Franchise,
Communications License, PUC Authorization or other Governmental Approval, (each
as defined in the Security Agreement) in violation of the then-applicable rules,
regulations and written policies of the FCC, any applicable PUC (as defined in
Section 13 below), or any other Governmental Authority, until any required
consents, approvals or authorizations of such Person are obtained in accordance
with provisions of Section 13 hereof.
(b) Ratification. The Assignor hereby ratifies all that said
attorney shall lawfully do or cause to be done by virtue hereof. This power of
attorney is a power coupled with an interest and shall be irrevocable.
SECTION 8. Remedies Upon Event of Default. Upon the occurrence and
during the continuance of any Event of Default or any failure of Assignor to
perform or comply with all of its material obligations, covenants, agreements or
duties hereunder or under any of the Security Documents or the Agreements (which
shall continue beyond any applicable cure period permitted under the Credit
Agreement), at the option of Administrative Agent and the Lenders, in addition
to such other rights and remedies as may be afforded to the Administrative Agent
and the Lenders under the Security Documents and by law or in equity, Assignor
agrees that Administrative Agent and the Lenders shall have the rights, powers,
privileges, authorizations or benefits assigned and transferred to
Administrative Agent on behalf of itself and the Lenders pursuant to this
Assignment (all of which rights shall be subject to the terms and conditions of
the Agreements), including, without limitation, the right to take possession of
any portion of the Facilities to which Assignor has possessory rights itself or
by or through any agents or assigns, in which event Assignor agrees to
peacefully surrender the Facilities to the Administrative Agent, on behalf of
the Administrative Agent and the Lenders or its designees, together with all
improvements, appurtenances, machinery, equipment, furniture, furnishings,
fixtures and other property of Assignor then situated thereon or attached
thereto. Thereafter, any reasonable expenses including, without limitation,
rent, incurred by Administrative Agent in connection with its entry upon and/or
the taking of possession of this portion of the Facilities and appurtenances
thereto and improvements thereon shall be deemed to be additional obligations of
Assignor pursuant to the Security Documents, payable on demand, and shall bear
interest at the default rate of interest set forth in the Credit Agreement.
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SECTION 9. Termination. Upon the full discharge and satisfaction of all
of the Obligations, this Assignment and all rights herein assigned to
Administrative Agent and the Lenders shall terminate.
SECTION 10. Limitation on Duties of the Administrative Agent Regarding
Collateral. Beyond reasonable care in the custody thereof, the Administrative
Agent shall have no duty as to any Collateral (as defined in the Security
Agreement) in its possession or control or in the possession or control of any
agent or bailee or any income thereon or as to the preservation of rights
against prior parties or any other rights pertaining thereto. The Administrative
Agent shall be deemed to have exercised reasonable care in the custody of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which it accords its own property, and the
Administrative Agent shall not be liable or responsible for any loss or damage
to any of the Collateral, or for any diminution in the value thereof, by reason
of the act or omission of any warehouseman, carrier, forwarding agency,
consignee or other agent or bailee selected by the Administrative Agent in good
faith.
SECTION 11. Application of Proceeds. Upon the occurrence and during the
continuance of an Event of Default, the proceeds of any sale of, or other
realization upon, all or any part of the Agreements shall be applied by the
Administrative Agent in accordance with the terms of Section 4.5 of the Credit
Agreement. The Administrative Agent may make distribution hereunder in cash or
in kind or, on a ratable basis, in any combination thereof.
SECTION 12. Concerning the Administrative Agent. The provisions of
Article XIII of the Credit Agreement shall inure to the benefit of the
Administrative Agent in respect of this Assignment and shall be binding upon the
Assignor and the Lenders. In furtherance and not in derogation of the rights,
privileges and immunities of the Administrative Agent therein set forth:
(a) The Administrative Agent is authorized to take all
such action as is provided to be taken by it as Administrative Agent
hereunder and all other action incidental thereto. As to any matters
not expressly provided for herein, the Administrative Agent may request
instructions from the Lenders and shall act or refrain from acting in
accordance with written instructions from the Required Lenders (or,
when expressly required by this Assignment or the Credit Agreement, all
the Lenders) or, in the absence of such instructions, in accordance
with its discretion.
(b) The Administrative Agent shall not be responsible for
the existence, genuineness or value of any of the Collateral or for the
validity, perfection, priority or enforceability of the security
interests therein purported to be granted by this Assignment, whether
impaired by operation of law or by reason of any action or omission to
act on its part (other than any such action or inaction constituting
gross negligence or willful misconduct). The Administrative Agent shall
have no duty to ascertain or inquire as to the performance or
observance of any of the terms of this Assignment by the Assignor.
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SECTION 13. Regulatory Approval.
(a) Notwithstanding anything herein to the contrary, this
Assignment, the other Loan Documents, and the transactions contemplated hereby
and thereby, prior to a foreclosure of the Liens granted under this Assignment
and the other Loan Documents, do not and will not (i) constitute, create or have
the effect of constituting or creating, directly or indirectly, (A) actual or
practical ownership of Assignor or any Subsidiary of Assignor by the
Administrative Agent or the Lenders, or (B) control by the Administrative Agent
or Lenders over the management or any other aspect of the operation of Assignor
or any Subsidiary of Assignor which ownership and control remains exclusively
and at all times in Assignor or such Subsidiary of Assignor, or (ii) constitute
(A) the transfer, assignment or disposition in any manner of any CATV Franchise,
Communications License, PUC Authorization or other Governmental Approval issued
to Assignor or any Subsidiary of Assignor or (B) the transfer of control of
Assignor or any Subsidiary of Assignor within the meaning of the
Telecommunications Act of 1996, as amended, or any other Applicable Law.
(b) Notwithstanding any other provision of this
Assignment, any foreclosure on, sale, transfer or other disposition of, or the
exercise of any right to vote or consent with respect to, any of the Agreements
or any of the other collateral referenced in any of the other Loan Documents,
or any other action taken or proposed to be taken by the Administrative Agent
hereunder or under any of the other Loan Documents which would affect the
operational, voting or other control of any CATV Franchise, Communications
License, PUC Authorization or other Governmental Approval of Assignor or any
Subsidiary of Assignor shall be in accordance with Applicable Law.
(c) The Assignor will, at its expense, promptly execute
and deliver, or cause the execution and delivery of, all applications,
certificates, instruments, registration statements, and all other documents and
papers the Administrative Agent may reasonably request and as may be required by
law in connection with the obtaining of any consent, approval, registration,
qualification, or authorization of the FCC, any state, provincial or other local
regulatory agency or body that exercises jurisdiction over the rates or services
or the ownership, construction or operation of any telecommunications systems or
over Persons who own, construct or operate telecommunications systems, by reason
of the nature or type of business subject to regulation and not pursuant to laws
and regulations of general applicability (a "PUC") or of any other Person deemed
necessary or appropriate for the effective exercise of any rights under this
Assignment or the Security Documents. Without limiting the generality of the
foregoing, if an Event of Default shall have occurred and be continuing, the
Assignor shall take any action which the Administrative Agent may reasonably
request in order to transfer and assign to the Administrative Agent, or to such
one or more third parties as the Administrative Agent may designate, or to a
combination of the foregoing, each Communications License, CATV Franchise, PUC
Authorization or other Governmental Approval. To enforce the provisions of this
Section 13, upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent is empowered to request the appointment of a
receiver from any court of competent jurisdiction. Such receiver shall be
instructed to seek from the FCC, any applicable PUC or other Governmental
Authority an involuntary transfer of control of each such Communications License
or other Governmental Approval for the purpose of seeking a bona fide purchaser
to whom control will ultimately be transferred. The Assignor hereby agrees to
authorize such an involuntary transfer of control upon the request of the
receiver so appointed and, if the Assignor shall refuse to authorize the
transfer, its
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approval may be required by the court. Upon the occurrence and continuance of an
Event of Default, the Assignor shall further use its best efforts to assist in
obtaining approval of the FCC, any applicable PUC or other Governmental
Authority, if required, for any action or transactions contemplated by this
Assignment or the Security Documents including, without limitation, the
preparation, execution and filing with the FCC, any applicable PUC or other
Governmental Authority of the assignor's or transferor's portion of any
application or applications for consent to the assignment of any Communications
License, CATV Franchise, PUC Authorization or other Governmental Approval or
transfer of control necessary or appropriate under the rules and regulations of
the FCC, any applicable PUC or other Governmental Authority for the approval of
the transfer or assignment of any portion of the assets of the Assignor,
together with any Communications License, CATV Franchise, PUC Authorization or
other Governmental Approval. Because the Assignor agrees that the Administrative
Agent's remedy at law for failure of the Assignor to comply with the provisions
of this Section 13 would be inadequate and that such failure would not be
adequately compensable in damages, the Assignor agrees that the covenants
contained in this Section 13 may be specifically enforced, and the Assignor
hereby waives and agrees not to assert any defenses against an action for
specific performance of such covenants.
SECTION 14. Notices. All notices and communications hereunder shall be
given to the addresses and otherwise made in accordance with Section 14.1 of the
Credit Agreement.
SECTION 15. Rights and Remedies Cumulative, Non-Waiver, etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Assignment is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of the Administrative Agent or any Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between the Borrowers, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Assignment or any of the other Loan Documents or to
constitute a waiver of any Event of Default. This Assignment is a Loan Document
executed pursuant to the Credit Agreement.
SECTION 16. Successors and Assigns. This Assignment is for the benefit
of the Administrative Agent and the Lenders and their permitted successors and
assigns. This Assignment shall be binding on the Assignor and its successors and
assigns; provided that the Assignor may not assign any of its rights or
obligations hereunder without the prior written consent of the Administrative
Agent and the Lenders.
SECTION 17. Amendments, Waivers and Consents. No term, covenant,
agreement or condition of this Assignment may be amended or waived, nor may any
consent be given, except in the manner set forth in Section 14.11 of the Credit
Agreement.
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SECTION 18. Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Agreements are irrevocable and
powers coupled with an interest.
SECTION 19. GOVERNING LAW. THIS ASSIGNMENT SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES
THEREOF, EXCEPT AS AN ASSIGNMENT MAY BE GOVERNED BY LOCAL LAW.
SECTION 20. Consent to Jurisdiction. The Assignor hereby irrevocably
consents to the personal jurisdiction of the state and federal courts located in
Mecklenburg County, North Carolina, in any action, claim or other proceeding
arising out of or any dispute in connection with this Assignment, any rights or
obligations hereunder, or the performance of such rights and obligations. The
Assignor hereby irrevocably consents to the service of a summons and complaint
and other process in any action, claim or proceeding brought by the
Administrative Agent or any Lender in connection with this Assignment, any
rights or obligations hereunder, or the performance of such rights and
obligations, on behalf of itself or its property, in the manner provided in
Section 14.1 of the Credit Agreement. Nothing in this Section 20 shall affect
the right of the Administrative Agent or any Lender to serve legal process in
any other manner permitted by Applicable Law or affect the right of the
Administrative Agent or any Lender to bring any action or proceeding against the
Assignor or its properties in the courts of any other jurisdictions.
SECTION 21. Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party,
whether made before or after institution of any judicial proceeding,
any dispute, claim or controversy arising out of, connected with or
relating to the Notes or any other Loan Documents ("Disputes"), between
or among parties to the Notes or any other Loan Documents shall be
resolved by binding arbitration as provided herein. Institution of a
judicial proceeding by a party does not waive the right of that party
to demand arbitration hereunder. Disputes may include, without
limitation, tort claims, counterclaims, claims brought as class
actions, claims arising from supplements to this Assignment executed in
the future, or claims concerning any aspect of the past, present or
future relationships arising out of or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the
Commercial Financial Disputes Arbitration Rules (the "Arbitration
Rules") of the American Arbitration Association and Title 9 of the U.S.
Code. All arbitration hearings shall be conducted in Charlotte, North
Carolina. The expedited procedures set forth in Rule 51, et seq. of
the Arbitration Rules shall be applicable to claims of less than
$1,000,000. All applicable statutes of limitation shall apply to any
Dispute. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding anything foregoing to the contrary, any
arbitration proceeding demanded hereunder shall begin within ninety
(90) days after such demand thereof and shall be concluded within
one-hundred and twenty (120) days after such demand. These time
limitations may not be extended unless a party hereto shows cause for
extension and then such extension shall not exceed a total of sixty
(60) days. The panel from which all arbitrators are selected shall be
comprised of licensed attorneys. The single arbitrator selected for
expedited procedure shall be a retired judge
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from the highest court of general jurisdiction, state or federal, of
the state where the hearing will be conducted. Notwithstanding the
foregoing, this Section shall not apply to any Hedging Agreement that
is a Loan Document.
(b) Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW,
THE ADMINISTRATIVE AGENT, EACH LENDER, AND THE ASSIGNOR, BY THEIR
ACCEPTANCE OF THIS ASSIGNMENT OR THE BENEFITS HEREOF, HEREBY
IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT
TO ANY ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF OR ANY DISPUTE
IN CONNECTION WITH THIS ASSIGNMENT, ANY RIGHTS OR OBLIGATIONS
HEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the
preceding binding arbitration provisions, the parties hereto preserve,
without diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a Dispute.
Each such Person shall have and hereby reserves the right to proceed in
any court of proper jurisdiction or by self help to exercise or
prosecute the following remedies: (i) all rights to foreclose against
any real or personal property or other security by exercising a power
of sale granted in this Assignment or under applicable law or by
judicial foreclosure and sale, (ii) all rights of self help including
peaceful occupation of property and collection of rents, set off, and
peaceful possession of property, (iii) obtaining provisional or
ancillary remedies including injunctive relief, sequestration,
garnishment, attachment, appointment of receiver and in filing an
involuntary bankruptcy proceeding, and (iv) when applicable, a judgment
by confession of judgment. Preservation of these remedies does not
limit the power of an arbitrator to grant similar remedies that may be
requested by a party in a Dispute.
SECTION 22. Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Administrative
Agent and the Lenders in order to carry out the intentions of the parties hereto
as nearly as may be possible; and (b) the invalidity or unenforceability of any
provisions hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
SECTION 23. Headings. The various headings of this Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Assignment or any provisions hereof.
SECTION 24. Counterparts. This Assignment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be executed under seal by their duly authorized officers, all as of the day and
year first written above.
[ASSIGNOR]
[SEAL]
By:
----------------------------
ATTEST: Name:
--------------------------
Title:
------------------------ -------------------------
Secretary
---------------
STATE OF ___________, COUNTY OF ________________
This ____ day of _____________________ 199_, personally came before me
[__________________], who being by me duly sworn, says that he is the [_________
_______] of [_____________], a [_____________] [INSERT CORPORATION] and that the
seal affixed to the foregoing instrument in writing is the seal of the
[CORPORATION], and that the writing was signed and sealed by him in behalf of
the [CORPORATION], by its authority duly given. And the said [_________________]
acknowledged the writing to be the act and deed of the [CORPORATION].
Witness my hand and notary seal this ______ day of___________, 199__.
--------------------------------------
NOTARY PUBLIC
142
EXHIBIT I
(To Collateral Assignment)
143
EXHIBIT I
to
Credit Agreement dated as of December 22, 1998
by and among
KNOLOGY Holdings, Inc.,
as Guarantor,
Certain Subsidiaries of the Guarantor,
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF PLEDGE AGREEMENT
144
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (as amended, restated or otherwise modified, this
"Agreement"), dated as of December 22, 1998, is made by _______________________,
a corporation organized under the laws of Delaware (the "Pledge"), in favor of
FIRST UNION NATIONAL BANK, a national banking association (the "Administrative
Agent"), as Administrative Agent for the ratable benefit of the Administrative
Agent and the financial institutions (the "Lenders") as are, or may from time to
time become, parties to the Credit Agreement (as defined below).
STATEMENT OF PURPOSE
Pursuant to the Credit Agreement of even date herewith (as amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), by and
among KNOLOGY HOLDINGS, INC., a Delaware corporation, as guarantor (the
"Guarantor"), certain Subsidiaries of the Guarantor, as borrowers and any
Additional Borrowers who may become party thereto (such Subsidiaries and
Additional Borrowers being collectively, the "Borrowers"), the Lenders who are
or may become a party thereto, and FIRST UNION NATIONAL BANK, as Administrative
Agent for the Lenders, the Lenders will provide certain Extensions of Credit to
the Borrowers as more specifically described therein.
The Pledgor is the legal and beneficial owner of (a) the shares of
Pledged Stock (as hereinafter defined), (b) the Partnership Interests (as
hereinafter defined) in the partnerships (the "Partnerships") listed on Schedule
I hereto, (c) the Ownership Interests (as hereinafter defined) in the limited
liability companies (the "LLCs") listed on Schedule I hereto and (d) the Pledged
Debt (as hereinafter defined), in each case issued by the issuers (the
"Issuers") listed on Schedule I hereto.
In connection with the transactions contemplated by the Credit
Agreement and as a condition precedent thereto, the Lenders have requested that
the Pledgor execute this Agreement, and the Pledgor has agreed to do so pursuant
to the terms hereof.
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into and make available Extensions
of Credit pursuant to the Credit Agreement, the Pledgor hereby agrees with the
Administrative Agent for the ratable benefit of the Administrative Agent and
Lenders as follows:
SECTION 27. Defined Terms. Capitalized terms used herein and not
otherwise defined in this Agreement, including the preambles and recitals hereof
shall have the meaning assigned thereto in the Credit Agreement. In the event of
a conflict between capitalized terms defined herein and in the Credit Agreement,
the Credit Agreement shall control. The following terms shall have the following
meanings:
"Code" means the Uniform Commercial Code from time to time in
effect in the State of North Carolina; provided that if by reason of
mandatory provisions of
145
law, the perfection or the effect of perfection or non-perfection of
the security interests in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than North
Carolina, "Code" means the Uniform Commercial Code as in effect in such
other jurisdiction for purposes of the provisions hereof relating to
such perfection or effect of perfection or non-perfection.
"Collateral" means the Stock Collateral, the Partnership
Collateral, the LLC Collateral and the Pledged Debt.
"LLC Collateral" means all of the Ownership Interests of the
Pledgor in the LLCs and all Proceeds therefrom.
"Ownership Interests" means the entire ownership interest of
the Pledgor in each LLC listed on Schedule I hereto, including, without
limitation, the Pledgor's capital account, its interest as an owner or
member in the net cash flow, net profit and net loss, and items of
income, gain, loss, deduction and credit of the LLCS, its interest in
all distributions made or to be made by the LLCs to the Pledgor and all
of the other rights, titles and interests of the Pledgor as an owner or
a member of the LLCS, whether set forth in the operating or membership
agreement of the LLCS, by separate agreement or otherwise.
"Partnership Collateral" means all of the Partnership
Interests of the Pledgor in the Partnerships and all Proceeds
therefrom.
"Partnership Interests" means the entire partnership interest
of the Pledgor in each Partnership listed on Schedule I hereto,
including, without limitation, the Pledgor's capital account, its
interest as an owner or a partner in the net cash flow, net profit and
net loss, and items of income, gain, loss, deduction and credit of the
Partnerships, its interest in all distributions made or to be made by
the Partnerships to the Pledgor and all of the other rights, titles and
interests of the Pledgor as an owner or a partner of the Partnerships,
whether set forth in the partnership agreement of the Partnerships, by
separate agreement or otherwise.
"Pledged Debt" means the indebtedness evidenced by the notes
made by each Issuer of such notes listed on Schedule I hereto, together
with all rights of any nature whatsoever that may be issued or granted
by such Issuer while this Agreement is in effect, and all Proceeds
therefrom.
"Pledged Stock" means the shares of capital stock of each
Issuer with respect to such stock listed on Schedule I hereto, together
with all stock certificates, options or rights of any nature whatsoever
that may be issued or granted by such Issuer to the Pledgor while this
Agreement is in effect.
"Proceeds" means all "proceeds" as such term is defined in
Section 9-306(L) of the Code on the date hereof and, in any event,
shall include, without limitation, all dividends or other income from
the Pledged Stock, collections thereon, proceeds of sale thereof or
distributions with respect thereto.
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"Secured Obligations" means [the Obligations as defined in the
Credit Agreement and any renewals or extensions of any of such
Obligations] [the Guaranty Obligations as defined in the Credit
Agreement and any renewals or extension of any such Guaranty
Obligations.) (1)
"Stock Collateral" means the Pledged Stock and all Proceeds
therefrom.
SECTION 2. Pledge and Grant of Security Interests. In connection with
the creation and perfection of a security interest in the Collateral, the
Pledgor hereby delivers to the Administrative Agent, for the ratable benefit of
the Administrative Agent and the Lenders, all of the Pledged Stock and all
promissory notes evidencing the Pledged Debt and hereby grants to the
Administrative Agent, for the ratable benefit of the Administrative Agent and
the Lenders, a first priority security interest in such Pledged Stock, Pledged
Debt and all other Collateral, as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Secured Obligations.
SECTION 3. Stock Powers; Register of Pledge.
(a) Concurrently with the execution of this Agreement and
delivery to the Administrative Agent of each certificate representing
one or more shares of Pledged Stock, (i) the Pledgor shall deliver an
undated stock power covering such certificate, duly executed in blank
by the Pledgor with, if the Administrative Agent so requests, signature
guaranteed and (ii) the Pledgor shall cause each Issuer of such Pledged
Stock to, and each such Issuer shall, deliver to the Administrative
Agent an Acknowledgment and Consent substantially in the form of
Exhibit A hereto.
(b) Concurrently with the execution of this Agreement,
the Pledgor shall send to each Issuer of Ownership Interests and each
Issuer of Partnership Interests an Authorization Statement
substantially in the form of Exhibit B hereto and shall cause each such
Issuer to, and each such Issuer shall, deliver to the Administrative
Agent a Transaction Statement substantially in the form of Exhibit C
hereto, confirming that each such Issuer has registered the pledge
effected by this Agreement on its books.
SECTION 4. Pledgor Remains Liable. Anything herein to the contrary
notwithstanding, (a) the Pledgor shall remain liable to perform all of its
duties and obligations to the same extent as if this Agreement had not been
executed, (b) the exercise by the Administrative Agent or any Lender of any of
its rights hereunder shall not release the Pledgor from any of its duties or
obligations, and (c) neither the Administrative Agent nor any Lender shall have
any obligation or liability as a partner, or member of the Partnerships or LLCS,
by reason of this Agreement.
SECTION 5. Representations and Warranties. To induce the Administrative
Agent and the Lenders to execute the Credit Agreement, provide any Loans and
accept the security contemplated hereby, the Pledgor hereby represents and
warrants that:
-------------------------------
(1) Delete as applicable.
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147
(a) the Pledgor has the corporate, company or partnership power,
authority and legal right, as applicable, to execute and deliver, to perform its
obligations under, and to grant the Lien on the Collateral pursuant to, this
Agreement, and has taken all necessary corporate action to authorize its
execution, delivery and performance of, and grant of the Lien on the Collateral
pursuant to, this Agreement;
(b) this Agreement constitutes a legal, valid and binding
obligation of the Pledgor enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies;
(c) the execution, delivery and performance of this Agreement will
not violate any provision of any material Applicable Law or material contractual
obligation of the Pledgor and will not result in the creation or imposition of
any Lien on any of the material properties or revenues of the Pledgor pursuant
to any Applicable Law or contractual obligation, except as contemplated hereby
and except for such Liens as are permitted under the Credit Agreement;
(d) except as contemplated in Sections 5, 10 and 16 hereof or as
set forth in Sections 8.12(c) and 8.12(d) of the Credit Agreement, no consent or
authorization of, filing with any arbitrator or Governmental Authority and no
consent of any other Person (including, without limitation, any stockholder,
member, partner or other owner or creditor of the Pledgor or any Issuer), is
required in connection with the execution, delivery, performance, validity or
enforceability against the Pledgor of this Agreement, except (i) as may be
required in connection with the disposition of the Collateral by laws affecting
the offering and sale of securities generally and (ii) filings under the Uniform
Commercial Code;
(e) the jurisdictions in which the Pledgor is located for purposes
of Sections 9-103 and 9-104 of the UCC are set forth in the Perfection
Certificate;
(f) except as set forth on Schedule 6.1(u) of the Credit
Agreement, no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Pledgor, threatened by or against the Pledgor or against any of its properties
or revenues with respect to this Agreement or any of the transactions
contemplated hereby;
(g) the shares of Pledged Stock listed on Schedule I constitute
all the issued and outstanding shares of all classes of the capital stock of
each of the Borrowers;
(h) all the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable;
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148
(i) the Pledged Debt has been duly authorized,
authenticated, issued and delivered, and is the legal, valid and
binding obligation of the issuers thereof, and is not in default;
(j) the Pledged Debt constitutes all of the outstanding
Debt of the respective Issuers thereof owed to the Pledgor and is
outstanding in the principal amount indicated on Schedule I;
(k) Pledgor has delivered to the Administrative Agent
true and complete copies of the partnership or membership or ownership
agreements, as applicable, for each of the Partnerships and LLCS, which
agreements are currently in full force and effect and have not been
amended or modified except as disclosed to the Administrative Agent in
writing;
(1) the Pledgor is the record and beneficial owner of,
and has good and marketable title to, the Collateral listed on Schedule
I, free of any and all Liens or options in favor of, or claims of, any
other Person, except the Lien created by this Agreement and Permitted
Liens;
(m) upon (i) delivery to the Administrative Agent of the
stock certificates evidencing the Pledged Stock, (ii) the delivery to
the Administrative Agent of the promissory notes evidencing the Pledged
Debt, (iii) the filing of properly completed financing statements in
all necessary jurisdictions, (iv) the registration of the interest
created by this Agreement on the books of each Partnership identified
on Schedule I hereto and (v) the registration of the interest created
by this Agreement on the books of each LLC identified on Schedule I
hereto, the Lien granted pursuant to this Agreement will constitute a
valid, perfected first priority Lien on the Pledged Stock and the
Proceeds related thereto, enforceable as such against all creditors of
the Pledgor and any Persons purporting to purchase any of the Pledged
Stock from the Pledgor.
SECTION 6. Certain Covenants. The Pledgor covenants and agrees with the
Administrative Agent for the ratable benefit of the Administrative Agent and the
Lenders that, from and after the date of this Agreement until the Secured
Obligations are paid in full and the Commitments are terminated:
(a) The Pledgor will not, without thirty (30) days' prior
written notice to the Administrative Agent, change its name, identity
or corporate structure so as to make any financing or other statement
filed as provided herein become seriously misleading. The Pledgor will,
upon request of the Administrative Agent, execute such financing
statements, notices of lien, notices of assignment and continuations or
amendments to any of the foregoing, and other documents (and pay the
costs of filing or recording the same in all public offices deemed
necessary by the Administrative Agent) and do such other acts and
things, all as the Administrative Agent may from time to time
reasonably request to establish and maintain a valid perfected pledge
and security interest in the Collateral. Pledgor hereby constitutes and
appoints the Administrative Agent (and any of its officers) as its
attorney-in-fact with full power and authority to execute and deliver
all documents necessary to perfect and keep perfected the security
interests created hereby. This power of
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149
attorney hereby granted is a special power of attorney coupled with an
interest and shall be irrevocable by Pledgor.
(b) The Pledgor will pledge hereunder, immediately upon
its acquisition (directly or indirectly) thereof, any and all
additional Debt owed to the Pledgor by any obligor in an amount
exceeding $100,000.
(c) If the Pledgor shall, as a result of its ownership
of the Collateral, become entitled to receive or shall receive any
stock or other certificate (including, without limitation, any
certificate representing a dividend or a distribution in connection
with any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option or
rights, whether in addition to, in substitution of, as a conversion of,
or in exchange for any portion of the Collateral, or otherwise in
respect thereof, the Pledgor shall accept the same as the agent of the
Administrative Agent, hold the same in trust for the Administrative
Agent and deliver the same forthwith to the Administrative Agent in the
exact form received, duly indorsed by the Pledgor to the Administrative
Agent, if required, together with an undated stock power covering such
certificate duly executed in blank by the Pledgor, and with, if the
Administrative Agent so requests, signature guaranteed, to be held by
the Administrative Agent, subject to the terms hereof, as additional
collateral security for the Secured Obligations. In addition, any sums
paid upon or in respect of the Collateral upon the liquidation or
dissolution of any Issuer shall be held by the Administrative Agent as
additional collateral security for the Secured Obligations. If any sums
of money or property so paid or distributed in respect of any
Collateral shall be received by any Pledgor, such Pledgor shall, until
such money or property is paid or delivered to the Administrative
Agent, hold such money or property in trust for the Administrative
Agent, segregated from other funds of such Pledgor, as additional
collateral securing the Secured Obligations.
(d) Without the prior written consent of the
Administrative Agent, the Pledgor will not (i) vote to enable, or take
any other action to permit, any Issuer to issue any stock or other
equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any
stock or other equity securities of any nature of such Issuer, (ii)
except as expressly provided to the contrary herein, consent to any
modification, extension or alteration of the terms of any partnership,
membership or operating agreement of the LLCs or the Partnerships,
(iii) accept a surrender of any partnership, membership or operating
agreement of any of the Partnerships or LLCS, as applicable, or waive
any breach of or default under any such agreement by any other party
thereto, (iv) sell, assign, transfer, exchange, or otherwise dispose
of, or grant any option with respect to, the Collateral, or (v) create,
incur or permit to exist any Lien or option in favor of, or any claim
of any Person with respect to, any of the Collateral, or any interest
therein, except for the Lien provided for by this Agreement. The
Pledgor will defend the right, title and interest of the Administrative
Agent in and to the Collateral against the claims and demands of all
Persons whomsoever.
(e) Such Pledgor will advise the Administrative Agent
promptly, in reasonable detail, (i) of any Lien or claim made or
asserted against any material part of the Collateral,
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150
(ii) of any material change in the composition of the Collateral, and
(iii) of the occurrence of any other event relating specifically to
such Pledgor or its assets which could reasonably be expected to have a
material adverse effect on the aggregate value of the Collateral or on
the security interests created hereunder.
(f) Subject to the provisions of Section 16(c) hereof, at
any time and from time to time, upon the written request of the
Administrative Agent, and at the sole expense of the Pledgor, the
Pledgor will promptly and duly execute and deliver such further
instruments and documents and take such further actions as the
Administrative Agent may reasonably request for the purposes of
obtaining or preserving the full benefits of this Agreement and of the
rights and powers herein granted. If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by
any promissory note, other instrument or chattel paper, such note,
instrument or chattel paper shall be immediately delivered to the
Administrative Agent, duly endorsed in a manner satisfactory to the
Administrative Agent, to be held as Collateral pursuant to this
Agreement.
(g) The Pledgor agrees to pay, and to save the
Administrative Agent and the Lenders harmless from, any and all
liabilities with respect to, or resulting from any delay in paying,
any and all stamp, excise, sales or other similar taxes which may be
payable or determined to be payable with respect to any of the
Collateral or in connection with any of the transactions contemplated
by this Agreement.
(h) On or prior to the formation or acquisition of any
Subsidiary of the Pledgor possessing assets in excess of One Thousand
Dollars ($1,000), the Pledgor agrees to execute such amendments and
supplements to this Agreement, including without limitation the Pledge
Agreement Supplement attached hereto, and such other documents and
instruments and to take any and all actions, all as shall be necessary,
in the reasonable judgment of the Administrative Agent, to pledge the
Pledgor's interest therein to the Administrative Agent for the ratable
benefit of itself and the Lenders.
SECTION 7. Cash Dividends and Other Payments; Voting Rights. Unless an
Event of Default shall have occurred and be continuing and the Administrative
Agent shall have given notice to the Pledgor of the Administrative Agent's
intent to exercise its rights pursuant to Section 8 below, the Pledgor shall be
permitted to receive all cash dividends, distributions or other payments paid in
accordance with the terms of the Credit Agreement in respect of the Collateral
and to exercise all voting and corporate, company or partnership rights with
respect to the Collateral; provided, that no vote shall be cast or corporate,
company or partnership right exercised or other action taken which, in the
Administrative Agent's reasonable judgment, would impair the Collateral or which
would result in any material violation of any provision of the Credit Agreement,
the Notes, any other Loan Documents or this Agreement.
SECTION 8. Rights of the Administrative Agent.
(A) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
the Pledgor, (i) the Administrative Agent shall have the right to receive any
and all cash dividends, distributions or other payments paid in
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151
respect of the Collateral and make application thereof to the Secured
Obligations, in the order set forth in Section 4.5 of the Credit Agreement and
(ii) if applicable, all of the Collateral shall be registered in the name of the
Administrative Agent or its nominee, and the Administrative Agent or its nominee
may thereafter exercise (A) all voting, corporate and other rights pertaining to
such Collateral at any meeting of shareholders, partners, members or other
owners of the applicable Issuer or otherwise and (B) any and all rights of
conversion, exchange, subscription and any other rights, privileges or options
pertaining to such Collateral as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion any and
all of the Collateral upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate, company or
partnership structure of the applicable Issuer, or upon the exercise by the
Pledgor or the Administrative Agent of any right, privilege or option pertaining
to such Collateral, and in connection therewith, the right to deposit and
deliver any and all of the Collateral with any committee, depositary, transfer
agent, registrar or other designated agency upon such terms and conditions as it
may determine), all without liability except to account for property actually
received by it, but the Administrative Agent shall have no duty to the Pledgor
to exercise any such right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing.
(b) The rights of the Administrative Agent and the Lenders
hereunder shall not be conditioned or contingent upon the pursuit by the
Administrative Agent or any Lender of any right or remedy against the Pledgor or
against any other Person which may be or become liable in respect of all or any
part of the Secured Obligations or against any collateral security therefor,
guarantee therefor or right of offset with respect thereto. Neither the
Administrative Agent nor any Lender shall be liable for any failure to demand,
collect or realize upon all or any part of the Collateral or for any delay in
doing so, nor shall the Administrative Agent be under any obligation to sell or
otherwise dispose of any Collateral upon the request of the Pledgor or any other
Person or to take any other action whatsoever with regard to the Collateral or
any part thereof.
SECTION 9. Remedies. If an Event of Default shall occur and be
continuing, with the consent of the Required Lenders, the Administrative Agent
may, and upon the request of the Required Lenders, the Administrative Agent
shall, exercise on behalf of itself and the Lenders, all rights and remedies
granted in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Secured Obligations, and in addition thereto, all
rights and remedies of a secured party under the Code. Without limiting the
generality of the foregoing with regard to the scope of the Administrative
Agent's remedies, the Administrative Agent, without demand of performance or
other demand, presentment, protest, advertisement or notice of any kind (except
any notice required by law referred to below) to or upon the Pledgor, or any
Issuer (all and each of which demands, defenses, advertisements and notices are
hereby waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, assign, give option or options to purchase or otherwise dispose
of and deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, in the
over-the-counter market, at any exchange, broker's board or office of the
Administrative Agent or any Lender or elsewhere upon such terms and conditions
as it may deem advisable and at such prices as it may deem best, for cash or on
credit or for future delivery without assumption of any credit risk. The
Administrative Agent or any Lender shall have the right upon any such public
sale or sales, and, to the extent permitted by law, upon any such private sale
or sales, to purchase the whole or any part of the Collateral so sold, free of
any
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right or equity of redemption in the Pledgor, which right or equity is hereby
waived or released. The Administrative Agent shall apply any Proceeds from time
to time held by it and the net proceeds of any such collection, recovery,
receipt, appropriation, realization or sale, after deducting all reasonable
costs and expenses of every kind incurred in respect thereof or incidental to
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Administrative Agent and the Lenders hereunder,
including, without limitation, reasonable attorneys' fees and disbursements of
counsel thereto, to the payment in whole or in part of the Secured Obligations,
in the order set forth in Section 10 of the Security Agreement, and only after
such application and after the payment by the Administrative Agent of any other
amount required by any provision of law, including, without limitation, Section
9-504(l)(c) of the Code, need the Administrative Agent account for the surplus,
if any, to the Pledgor. To the extent permitted by applicable law, the Pledgor
waives all claims, damages and demands it may acquire against the Administrative
Agent or any Lender arising out of the exercise by them of any rights hereunder.
If any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition.
SECTION 10. Registration Rights; Private Sales.
(a) If the Administrative Agent shall determine to exercise its
right to sell any or all of the Pledged Stock pursuant to Section 9 hereof, and
if in the opinion of the Administrative Agent it is necessary or advisable to
have the Pledged Stock, or that portion thereof to be sold, registered under the
provisions of the Securities Act of 1933, as amended (the "Securities Act"), the
Pledgor will cause the applicable Issuer to (i) execute and deliver, and cause
the directors and officers of the applicable Issuer to execute and deliver, all
such instruments and documents, and do or cause to be done all such other acts
as may be, in the reasonable opinion of the Administrative Agent, necessary or
advisable to register such Pledged Stock, or that portion thereof to be sold,
under the provisions of the Securities Act, (ii) to use its best efforts to
cause the registration statement relating thereto to become effective and to
remain effective for a period of one year from the date of the first public
offering of such Pledged Stock, or that portion thereof to be sold, and (iii) to
make all amendments thereto and/or to the related prospectus which, in the
opinion of the Administrative Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto. The
Pledgor agrees to cause the applicable Issuer to comply with the provisions of
the securities or "Blue Sky" laws of any and all jurisdictions which the
Administrative Agent shall designate and to make available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of the Securities
Act. For purposes of this Section 10(a), "applicable Issuer" shall mean each
Issuer which is a Subsidiary of the Pledgor.
(b) The Pledgor recognizes that the Administrative Agent may be
unable to effect a public sale of any or all of the Collateral, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that, in the event the Administrative
Agent is
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unable to effect a public sale, any such private sale shall be deemed to have
been made in a commercially reasonable manner. The Administrative Agent shall be
under no obligation to delay a sale of any of the Collateral for the period of
time necessary to permit the applicable Issuer to register such securities for
public sale under the Securities Act, or under applicable state securities laws,
even if the applicable Issuer would agree to do so.
(c) The Pledgor further agrees to use its best efforts to do or
cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Collateral pursuant to this Section 10 valid
and binding and in compliance with any and all other Applicable Laws. The
Pledgor further agrees that a breach of any of the covenants contained in this
Section 10 will cause irreparable injury to the Administrative Agent and the
Lenders not compensable in damages, that the Administrative Agent and the
Lenders have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this Section 10 shall be
specifically enforceable against the Pledgor, and the Pledgor hereby waives and
agrees not to assert any defenses against an action for specific performance of
such covenants except for a defense that no Event of Default has occurred under
the Credit Agreement.
SECTION 11. Amendments, etc. With Respect to the Secured
Obligations. The Pledgor shall remain obligated hereunder, and the Collateral
shall remain subject to the Lien granted hereby, notwithstanding that, without
any reservation of rights against the Pledgor, and without notice to or further
assent by the Pledgor, any demand for payment of any of the Secured Obligations
made by the Administrative Agent or any Lender may be rescinded by the
Administrative Agent or such Lender, and any of the Secured Obligations
continued, and the Secured Obligations, or the liability of the Pledgor or any
other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered, or released by the Administrative Agent or any
Lender, and the Credit Agreement, the Notes, any other Loan Documents and any
other documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or part, as the Lenders (or the
Required Lenders, as the case may be) may deem advisable from time to time, and
any guarantee, right of offset or other collateral security at any time held by
the Administrative Agent or any Lender for the payment of the Secured
Obligations may be sold, exchanged, waived, surrendered or released. Neither
the Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any other Lien at any time held by it as security for
the Secured Obligations or any property subject thereto. The Pledgor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Secured Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon this Agreement; the Secured Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred
in reliance upon this Agreement; and all dealings between the Pledgor, on the
one hand, and the Administrative Agent and the Lenders, on the other, shall
likewise be conclusively presumed to have been had or consummated in reliance
upon this Agreement. The Pledgor waives diligence, presentment, protest, demand
for payment and notice of default or nonpayment to or upon the Pledgor with
respect to any of the Secured Obligations.
SECTION 12. Irrevocable Authorization and Instruction to Issuers.
The Pledgor hereby authorizes and instructs each Issuer to comply with any
instruction received by it from the
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Administrative Agent in writing that (a) states that an Event of Default has
occurred and is continuing and (b) is otherwise in accordance with the terms of
this Agreement, without any other or further instructions from the Pledgor, and
the Pledgor agrees that such Issuer shall be fully protected in so complying.
SECTION 13. Limitation on Duties of the Administrative Agent
Regarding Collateral. The Administrative Agent's sole duty with respect to the
custody, safekeeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the Code or otherwise, shall be to deal with
it in the same manner as the Administrative Agent deals with similar securities
and property for its own account. Neither the Administrative Agent, any Lender
nor any of their respective directors, officers, employees or agents shall be
liable for failure to demand, collect or realize upon any of the Collateral or
for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Pledgor or otherwise.
SECTION 14. Application of Proceeds. Upon the occurrence and
during the continuance of an Event of Default, the proceeds of any sale of, or
other realization upon, all or any part of the Collateral shall be applied by
the Administrative Agent in accordance with the terms of Section 4.5 of the
Credit Agreement. The Administrative Agent may make distribution hereunder in
cash or in kind or, on a ratable basis, in any combination thereof.
SECTION 15. Concerning the Administrative Agent. The provisions
of Article XIII of the Credit Agreement shall inure to the benefit of the
Administrative Agent in respect of this Agreement and shall be binding upon the
Pledgor and the Lenders. In furtherance and not in derogation of the rights,
privileges and immunities of the Administrative Agent therein set forth:
(a) The Administrative Agent is authorized to take all such
action as is provided to be taken by it as Administrative Agent
hereunder and all other action incidental thereto. As to any matters
not expressly provided for herein, the Administrative Agent may request
instructions from the Lenders and shall act or refrain from acting in
accordance with written instructions from the Required Lenders (or,
when expressly required by this Agreement or the Credit Agreement, all
the Lenders) or, in the absence of such instructions, in accordance
with its discretion.
(b) The Administrative Agent shall not be responsible for the
existence, genuineness or value of any of the Collateral or for the
validity, perfection, priority or enforceability of the security
interests therein purported to be granted by this Agreement, whether
impaired by operation of law or by reason of any action or omission to
act on its part (other than any such action or inaction constituting
gross negligence or willful misconduct). The Administrative Agent shall
have no duty to ascertain or inquire as to the performance or
observance of any of the terms of this Agreement by the Pledgor.
SECTION 16. Retained Control; Regulatory Approval.
(a) Notwithstanding anything herein to the contrary, this
Agreement, the other Loan Documents, and the transactions contemplated hereby
and thereby, prior to a foreclosure of
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the Liens granted under this Agreement and the other Loan Documents, do not and
will not (i) constitute, create or have the effect of constituting or creating,
directly or indirectly, (A) actual or practical ownership of Pledgor, any Issuer
of any Collateral or any Subsidiary of Pledgor by the Administrative Agent or
the Lenders, or (B) control by the Administrative Agent or the Lenders over the
management or any other aspect of the operation of Pledgor, any Issuer of
Collateral or any Subsidiary of Pledgor which ownership and control remains
exclusively and at all times in Pledgor, such Subsidiary of Pledgor or any
Issuer of Collateral, or (ii) constitute (A) the transfer, assignment or
disposition in any manner of any CATV Franchise, Communications License, PUC
Authorization or other Governmental Approval issued to Pledgor, any Issuer of
Collateral or any Subsidiary of Pledgor or (B) the transfer of control of
Pledgor, any Issuer of Collateral or any Subsidiary of Pledgor within the
meaning of the Telecommunications Act of 1996, as amended, or any other
Applicable Law.
(b) Notwithstanding any other provision of this
Agreement, any foreclosure on, sale, transfer or other disposition of, or the
exercise of any right to vote or consent with respect to, any of the Collateral
or any of the other collateral referenced in any of the other Loan Documents, or
any other action taken or proposed to be taken by the Administrative Agent
hereunder or under any of the other Loan Documents which would affect the
operational, voting or other control of any CATV Franchise, Communications
License, PUC Authorization or other Governmental Approval of Pledgor, any
Subsidiary of Pledgor or any Issuer of Collateral shall be in accordance with
Applicable Law.
(c) The Pledgor will, at its expense, promptly execute
and deliver, or cause the execution and delivery of, all applications,
certificates, instruments, registration statements, and all other documents and
papers the Administrative Agent may reasonably request and as may be required by
law in connection with the obtaining of any consent, approval, registration,
qualification, or authorization of the FCC, any state, provincial or other local
regulatory agency or body that exercises jurisdiction over the rates or services
or the ownership, construction or operation of any telecommunications systems or
over Persons who own, construct or operate telecommunications systems, by reason
of the nature or type of business subject to regulation and not pursuant to laws
and regulations of general applicability (a "PUC") or of any other Person deemed
necessary or appropriate for the effective exercise of any rights under this
Agreement or the Security Documents. Without limiting the generality of the
foregoing, if an Event of Default shall have occurred and be continuing, the
Pledgor shall take any action which the Administrative Agent may reasonably
request in order to transfer and assign to the Administrative Agent, or to such
one or more third parties as the Administrative Agent may designate, or to a
combination of the foregoing, each CATV Franchise, Communications License, PUC
Authorization or other Governmental Approval. To enforce the provisions of this
Section 16, upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent is empowered to request the appointment of a
receiver from any court of competent jurisdiction. Such receiver shall be
instructed to seek from the FCC, any applicable PUC or other Governmental
Authority an involuntary transfer of control of each such CATV Franchise,
Communications License, PUC Authorization or other Governmental Approval for the
purpose of seeking a bona fide purchaser to whom control will ultimately be
transferred. The Pledgor hereby agrees to authorize such an involuntary transfer
of control upon the request of the receiver so appointed and, if the Pledgor
shall refuse to authorize the transfer, its approval may be required by the
court. Upon the occurrence and
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continuance of an Event of Default, the Pledgor shall further use its best
efforts to assist in obtaining approval of the FCC, any applicable PUC or other
Governmental Authority, if required, for any action or transactions contemplated
by this Agreement or the Security Documents including, without limitation, the
preparation, execution and filing with the FCC, any applicable PUC or other
Governmental Authority of the assignor's or transferor's portion of any
application or applications for consent to the assignment of any CATV Franchise,
Communications License, PUC Authorization or other Governmental Approval or
transfer of control necessary or appropriate under the rules and regulations of
the FCC, any applicable PUC or other Governmental Authority for the approval of
the transfer or assignment of any portion of the assets of the Pledgor, together
with any CATV Franchise, Communications License, PUC Authorization or other
Governmental Approval. Because the Pledgor agrees that the Administrative
Agent's remedy at law for failure of the Pledgor to comply with the provisions
of this Section 16 would be inadequate and that such failure would not be
adequately compensable in damages, the Pledgor agrees that the covenants
contained in this Section 16 may be specifically enforced, and the Pledgor
hereby waives and agrees not to assert any defenses against an action for
specific performance of such covenants.
SECTION 17. Notices. All notices and communications hereunder
shall be given to the addresses and otherwise made in accordance with Section
14.1 of the Credit Agreement.
SECTION 18. Rights and Remedies Cumulative; Non-Waiver, etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of the Administrative Agent or any Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between the Borrowers, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default. This Agreement is a Loan Document
executed pursuant to the Credit Agreement.
SECTION 19. Successors and Assigns. This Agreement is for the
benefit of the Administrative Agent and the Lenders and their permitted
successors and assigns. This Agreement shall be binding on the Pledgor and its
successors and assigns; provided that the Pledgor may not assign any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and the Lenders.
SECTION 20. Control Agreement Acknowledgement by Issuers and
Partnership/LLC. (a) The Pledgor hereby authorizes and instructs each Issuer
and Partnership/LLC to comply, and each Issuer and Partnership/LLC hereby agrees
to so comply, with any instruction received thereby from the Administrative
Agent in accordance with the terms of this Agreement with respect to the
Collateral, without any consent or further instructions from the Pledgor and the
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Pledgor agrees that such Issuer and Partnership/LLC shall be fully protected in
so complying. Each Partnership/LLC agrees that its agreement set forth in the
preceding sentence shall be sufficient to create in favor of the Administrative
Agent, for the benefit of the Lenders, "control" of the Partnership/LLC
Interests within the meaning of such term under Section 8-106(c) of the Code.
(Notwithstanding the foregoing, nothing in this Pledge Agreement is intended or
shall be construed to mean or imply that the Partnership/LLC Interests
constitute "securities" within the meaning of such term under Section
8-102(a)(15) of the Code or otherwise to limit or modify the application of
Section 8-103(c)of the Code. Rather, the Administrative Agent has requested that
this provision be included in this Pledge Agreement solely out of an abundance
of caution in the event the Partnership/LLC Interests are, nevertheless, deemed
to constitute "securities" under the Code).
(b) Each Issuer and Partnership/LLC acknowledges receipt of a copy
of this Pledge Agreement and agrees to be bound thereby and to comply with the
terms thereof insofar as such terms are applicable to it. Each Issuer and
Partnership/LLC agrees to notify the Administrative Agent promptly in writing of
the occurrence of any of the events described in Section 6(c) of this Pledge
Agreement. Each Issuer and Partnership/LLC further agrees that the terms of
Section 10 of this Pledge Agreement shall apply to it with respect to all
actions that may be required of it under or pursuant to or arising out of
Section 9 of this Pledge Agreement.
SECTION 21. Amendments, Waivers and Consents. No term, covenant,
agreement or condition of this Agreement may be amended or waived, nor may any
consent be given, except in the manner set forth in Section 14.11 of the Credit
Agreement.
SECTION 22. Powers Coupled with an Interest. All powers of
attorney herein contained with respect to the Collateral constitute irrevocable
powers coupled with an interest.
SECTION 23. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES
THEREOF.
SECTION 24. Consent to Jurisdiction. The Pledgor hereby
irrevocably consents to the personal jurisdiction of the state and federal
courts located in Mecklenburg County, North Carolina, in any action, claim or
other proceeding arising out of or any dispute in connection with this
Agreement, any rights or obligations hereunder, or the performance of such
rights and obligations. The Pledgor hereby irrevocably consents to the service
of a summons and complaint and other process in any action, claim or proceeding
brought by the Administrative Agent or any Lender in connection with this
Agreement, any rights or obligations hereunder, or the performance of such
rights and obligations, on behalf of itself or its property, in the manner
provided in Section 14.1 of the Credit Agreement. Nothing in this Section 24
shall affect the right of the Administrative Agent or any Lender to serve legal
process in any other manner permitted by Applicable Law or affect the right of
the Administrative Agent or any Lender to bring any action or proceeding against
the Pledgor or its properties in the courts of any other jurisdictions.
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SECTION 25. Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party, whether
made before or after institution of any judicial proceeding, any
dispute, claim or controversy arising out of, connected with or
relating to the Notes or any other Loan Documents ("Disputes"), between
or among parties to the Notes or any other Loan Documents shall be
resolved by binding arbitration as provided herein. Institution of a
judicial proceeding by a party does not waive the right of that party
to demand arbitration hereunder. Disputes may include, without
limitation, tort claims, counterclaims, claims brought as class
actions, claims arising from supplements to this Agreement executed in
the future, or claims concerning any aspect of the past, present or
future relationships arising out of or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the
Commercial Financial Disputes Arbitration Rules (the "Arbitration
Rules") of the American Arbitration Association and Title 9 of the U.S.
Code. All arbitration hearings shall be conducted in Charlotte, North
Carolina. The expedited procedures set forth in Rule 51, et seq. of
the Arbitration Rules shall be applicable to claims of less than
$1,000,000. All applicable statutes of limitation shall apply to any
Dispute. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding anything foregoing to the contrary, any
arbitration proceeding demanded hereunder shall begin within ninety
(90) days after such demand thereof and shall be concluded within
one-hundred and twenty (120) days after such demand. These time
limitations may not be extended unless a party hereto shows cause for
extension and then such extension shall not exceed a total of sixty
(60) days. The panel from which all arbitrators are selected shall be
comprised of licensed attorneys. The single arbitrator selected for
expedited procedure shall be a retired judge from the highest court of
general jurisdiction, state or federal, of the state where the hearing
will be conducted. Notwithstanding the foregoing, this Section 25(a)
shall not apply to any Hedging Agreement that is a Loan Document.
(b) Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, THE
ADMINISTRATIVE AGENT, EACH LENDER, AND THE PLEDGOR HEREBY ACKNOWLEDGE
THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION,
CLAIM OR OTHER PROCEEDING ARISING OUT OF OR ANY DISPUTE IN CONNECTION
WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER, OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the
preceding binding arbitration provisions, the parties hereto preserve,
without diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a Dispute.
Each such Person shall have and hereby reserves the right to proceed in
any court of proper jurisdiction or by self help to exercise or
prosecute the following remedies: (i) all rights to foreclose against
any real or personal property or other security by exercising a power
of sale granted in this Agreement or under applicable law or by
judicial foreclosure and sale, (ii) all rights of self help including
peaceful occupation of property and collection of rents, set off, and
peaceful possession of property, (iii) obtaining provisional or
ancillary
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remedies including injunctive relief, sequestration, garnishment
attachment, appointment of receiver and in filing an involuntary
bankruptcy proceeding, and (iv) when applicable, a judgment by
confession of judgment. Preservation of these remedies does not limit
the power of an arbitrator to grant similar remedies that may be
requested by a party in a Dispute.
SECTION 26. Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Administrative
Agent and the Lenders in order to carry out the intentions of the parties hereto
as nearly as may be possible; and (b) the invalidity or unenforceability of any
provisions hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
SECTION 27. Headings. The various headings of this Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement or any provisions hereof.
SECTION 28. Counterparts. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the undersigned as caused this Agreement to
be executed under seal by its duly authorized officers, all as of the day and
year first written above.
, as Pledgor
----------------------------
[CORPORATE SEAL]
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
Acknowledged and agreed to by the following
with respect to Section 20 hereof:
, as Issuer
------------------------------
[CORPORATE SEAL]
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
161
SCHEDULE I
----------
(to Pledge Agreement)
DESCRIPTION OF PLEDGED STOCK
Issuer Class of Stock Certificate No. No. of Shares
------ -------------- --------------- -------------
DESCRIPTION OF PARTNERSHIP INTERESTS
Partnership Partnership Interest
----------- --------------------
DESCRIPTION OF LLC INTERESTS
LLC LLC Interest
--- ------------
DESCRIPTION OF PLEDGED DEBT
Debtor Description of Debt Date Original Principal Amount
------ ------------------- ---- -------------------------
162
PLEDGE AGREEMENT SUPPLEMENT
PLEDGE AGREEMENT SUPPLEMENT, dated as of __________________, ____ (the
"Supplement"), made by ____________________, a _________________ corporation
(the "Pledgor"), in favor of First Union National Bank, a national banking
corporation, as Administrative Agent (in such capacity, the "Administrative
Agent"), under the Credit Agreement (as defined in the Pledge Agreement referred
to below) for the benefit of itself and the Lenders (as so defined).
1. Reference is hereby made to that Pledge Agreement, dated as of
________ _______, 1998, made by the Pledgor in favor of the Administrative Agent
(as further amended, restated or otherwise modified, the "Pledge Agreement").
This Supplement supplements the Pledge Agreement, forms a part thereof and is
subject to the terms thereof. Terms defined in the Pledge Agreement are used
herein as therein defined.
[2. The Pledgor hereby confirms and reaffirms the security interest in
the Collateral granted to the Administrative Agent for the ratable benefit of
itself and the Lenders under the Pledge Agreement, and, as additional collateral
security for the prompt and complete payment when due (whether at stated
maturity, by acceleration or otherwise) of the Secured Obligations and in order
to induce the Lenders to make their Loans under the Credit Agreement, the
Pledgor hereby delivers to the Administrative Agent, for the ratable benefit of
the Administrative Agent and the Lenders, all of the issued and outstanding
shares of capital stock of [INSERT NAME OF NEW SUBSIDIARY] (the "New Issuer")
listed below, together with all stock certificates, options, or rights of any
nature whatsoever which may be issued or granted by the New Issuer in respect to
such stock which the Pledge Agreement, as supplemented hereby, is in force (the
"Additional Pledged Stock"; as used in the Pledge Agreement as supplemented by
this Supplement, "Pledged Stock" shall be deemed to include the Additional
Pledged Stock) and hereby grants to the Administrative Agent, for the ratable
benefit of itself and the Lenders, a first priority security interest in the
Additional Pledged Stock and all Proceeds thereof.]
or
[2. The Pledgor hereby confirms and reaffirms the security interest in
the Collateral granted to the Administrative Agent for the ratable benefit of
itself and the Lenders under the Pledge Agreement, and, as additional collateral
security for the prompt and complete payment when due (whether at stated
maturity, by acceleration or otherwise) of the Secured Obligations and in order
to induce the Lenders to make their Loans under the Credit Agreement, the
Pledgor hereby grants to the Administrative Agent, for the ratable benefit of
itself and the Lenders, a first priority security interest in the entire
[partnership] [membership] or other ownership interest of Pledgor (the
"Additional Interest") in [INSERT NAME OF NEW SUBSIDIARY] (the "New
[Partnership] ["LLCI"]) listed below and all Proceeds thereof, as used in the
Pledge Agreement as supplemented by this Supplement, "Partnership Interests" and
"Ownership Interests," as applicable, shall be deemed to include the Additional
Interest.]
or
163
[2. The Pledgor hereby confirms and reaffirms the security interest in
the Collateral granted to the Administrative Agent for the ratable benefit of
itself and the Lenders under the Pledge Agreement, and, as additional collateral
security for the prompt and complete payment when due (whether at stated
maturity, by acceleration or otherwise) of the Secured Obligations and in order
to induce the Lenders to make their Loans under the Credit Agreement, the
Pledgor hereby delivers to the Administrative Agent, for the benefit of the
Lenders, all of the Pledged Debt listed below (the "Additional Pledged Debt;" as
used in the Pledge Agreement as supplemented by this Supplement, "Pledged Debt"
shall be deemed to include the Additional Pledged Debt) and hereby grants to the
Administrative Agent, for the ratable benefit of itself and the Lenders, a first
priority security interest in the Additional Pledged Debt and all Proceeds
thereof.]
3. The Pledgor hereby represents and warrants that the representations
and warranties contained in Section 5 of the Pledge Agreement are true and
correct on the date of this Supplement with references therein to the ["Pledged
Stock" to include the Additional Pledged Stock] or ["Partnership Interests" or
"Ownership Interests," as applicable, to include the Additional Interest] or
["Pledged Debt" to include the Additional Pledged Debt], with references therein
to the "Issuer" to include the New Issuer, and with references to the
"Agreement" to mean the Pledge Agreement as supplemented by this Supplement.
4. The Pledgor shall deliver to the Administrative Agent the
Acknowledgement and Consent substantially in the form of Exhibit A to the Pledge
Agreement attached hereto duly executed by the [New Issuer] [New Partnership]
[New LLC]. The Additional [Pledged Stock] [Interest] [Pledged Debt] pledged
hereby is described as follows which such description shall be deemed part of
Schedule I thereto:
DESCRIPTION OF PLEDGED STOCK
Issuer Class of Stock Certificate No. No. of Shares
------ -------------- --------------- -------------
[New Issuer]
DESCRIPTION OF PARTNERSHIP/LLC INTEREST
Partnership Partnership Interest
----------- --------------------
DESCRIPTION OF PLEDGED DEBT
Debtor Description of Debt Date Original Principal Amount
------ ------------------- ---- -------------------------
5. The Pledgor hereby agrees to deliver to the Administrative Agent
such certificates and other documents and take such other action as shall be
reasonably requested by the Administrative Agent in order to effectuate the
terms hereof and the Pledge Agreement.
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IN WITNESS WHEREOF, the undersigned has caused this Supplement to be duly
executed under seal and delivered as of the date first above written.
[CORPORATE SEAL] [NEW SUBSIDIARY]
By:
-------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
165
EXHIBIT J
to
Credit Agreement dated as of December 22, 1998
by and among
KNOLOGY Holdings, Inc.,
as Guarantor,
Certain Subsidiaries of the Guarantor,
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF SECURITY AGREEMENT
166
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (as amended, restated or otherwise modified,
this "Agreement") dated as of December 22, 1998 made by KNOLOGY HOLDINGS, INC.,
a Delaware corporation, and certain undersigned Subsidiaries of KNOLOGY
Holdings, Inc. (collectively, the "Grantors") in favor of FIRST UNION NATIONAL
BANK, a national banking association, as Administrative Agent, for the ratable
benefit of the itself and the Lenders under the Credit Agreement (as hereinafter
defined).
STATEMENT OF PURPOSE
Pursuant to the Credit Agreement of even date herewith (as amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), by and
among KNOLOGY HOLDINGS, INC., a Delaware corporation, as guarantor (the
"Guarantor"), certain Subsidiaries of the Guarantor, as borrowers and any
Additional Borrowers who may become party thereto (such Subsidiaries and
Additional Borrowers being collectively, the "Borrowers", the Lenders who are or
may become a party thereto, and FIRST UNION NATIONAL BANK, as Administrative
Agent for the Lenders, the Lenders will provide certain Extension of Credit to
the Borrowers as more specifically described therein.
In connection with the transactions contemplated by the Credit
Agreement and as a condition precedent thereto, the Lenders have requested that
the Grantors grant a continuing security interest in and to the "Collateral" (as
hereinafter defined) to secure the "Secured Obligations" (as hereinafter
defined), and the Grantors have agreed to do so pursuant to the terms hereof.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and to induce the Administrative Agent and the Lenders to enter
into and make available Extension of Credit pursuant to the Credit Agreement,
the Grantors hereby agree with the Administrative Agent for the ratable benefit
of the Administrative Agent and Lenders as follows:
SECTION 1. Definitions. Capitalized terms used herein and not otherwise
defined in this Agreement, including the preambles and recitals hereof, shall
have the meaning assigned thereto in the Credit Agreement. In the event of a
conflict between capitalized terms defined herein and in the Credit Agreement,
the Credit Agreement shall control. The following additional terms when used in
this Agreement shall have the following meanings:
"Account Debtor" means any Person who is or may become obligated to any
Grantor under, with respect to, or on account of, an Account.
"Accounts" means all "accounts" (as defined in the UCC) of any Grantor
now or hereafter acquired, including without limitation all present or future
accounts receivable, all rights to payment for goods sold or leased or to be
sold or leased or for services rendered or to be rendered, whether or
167
not earned by performance, all rights in any merchandise or goods which any of
the same may represent, all notes receivable, book debts, notes, bills, drafts,
acceptances, choses in action, contract rights, instruments and documents and
all sums of money due or to become due thereon and all proceeds thereof and all
rights, title, security interests and guarantees with respect to each of the
foregoing.
"Collateral" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Collateral Account" means a cash collateral account established by the
Grantors with the Administrative Agent, in the name and under the exclusive
dominion and control of the Administrative Agent, pursuant to Section 6 hereof.
"Copyright License" means any written agreement now or hereafter in
existence granting to any Grantor any right to use any Copyright.
"Copyrights" means, collectively, all of the following of any Grantor
whether now owned or hereafter acquired or created by Grantor: (a) all
copyrights, rights and interests in copyrights, works protectable by copyright,
copyright registrations and copyright applications anywhere in the world,
including, without limitation, any thereof referred to on Schedule I hereto, (b)
all reissues, extensions, continuations (in whole or in part) and renewals of
any of the foregoing, (c) all income, royalties, damages and payments now or
hereafter due and/or payable under any of the foregoing or with respect to any
of the foregoing, including, without limitation, damages or payments for past or
future infringements of any of the foregoing, (d) the right to ▇▇▇ for past,
present and future infringements of any of the foregoing and (e) all rights
corresponding to any of the foregoing throughout the world.
"Documents" means all "documents" (as defined in the UCC) or other
receipts of any Grantor covering, evidencing or representing goods or services,
whether now or hereafter owned or acquired by any Grantor.
"Equipment" means all "equipment" (as defined in the UCC) of any
Grantor, wherever located, and all other machinery, furniture, equipment and
goods (other than Inventory) and all other tangible assets of any Grantor used
or bought for use primarily in the business of such Grantor, including all
accessions, additions, attachments, improvements, alterations, modifications,
substitutions, repairs and replacements thereto and therefor, in all such cases
whether now owned or hereafter acquired by any Grantor.
"Financing Statements" shall mean the UCC Form UCC-1 Financing
Statements executed by any Grantor with respect to the Collateral and to be
filed in the jurisdictions set forth in the Perfection Certificate.
"Fixtures" shall mean all "fixtures" (as defined in the UCC) of any
Grantor, whether now owned or hereafter acquired.
"General Intangibles" means all "general intangibles" (as defined in
the UCC) of any Grantor whether now owned or thereafter acquired by any Grantor,
including, without limitation, all
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rights to indemnification, and all rights, title and interest which such Grantor
may now or hereafter have in or under all contracts (other than contracts
described in the definition of Accounts), agreements, permits, licenses
(subject, however, with respect to CATV Franchises, Communications Licenses and
PUC Authorizations, to the limitation set forth in Subsection 2(a)(ix) hereof),
causes of action, franchises, tax refund claims, customer lists, Intellectual
Property, license royalties, goodwill, trade secrets, data bases, business
records, and all other intangible property of every kind and nature.
"Instruments" means all "instruments", "chattel paper" or "letters of
credit" (each as defined in the UCC) of any Grantor, including, without
limitation, instruments, chattel paper and letters of credit evidencing,
representing, arising from or existing in respect of, relating to, securing or
otherwise supporting the payment of, any of the Accounts, including (but not
limited to) promissory notes, drafts, bills of exchange and trade acceptances,
now or hereafter owned or acquired by any Grantor.
"Intellectual Property" means, collectively, all of the following of
any Grantor: (a) all systems software and applications software, including,
without limitation, screen displays and formats, program structures, sequence
and organization, all documentation for such software, including, without
limitation, user manuals, flowcharts, programmer's notes, functional
specifications, and operations manuals, all formulas, processes, ideas and
know-how embodied in any of the foregoing, and all program materials,
flowcharts, notes and outlines created in connection with any of the foregoing,
whether or not patentable or copyrightable, (b) concepts, discoveries,
improvements and ideas, (c) any useful information relating to the items
described in clause (a) or (b), including know-how, technology, engineering
drawings, reports, design information, trade secrets, practices, laboratory
notebooks, specifications, test procedures, maintenance manuals, research,
development, manufacturing, marketing, merchandising, selling, purchasing and
accounting, (d) Patents and Patent Licenses, Copyrights and Copyright Licenses,
Trademarks and Trademark Licenses, and (e) other licenses to use any of the
items described in the foregoing clauses (a), (b), (c) and (d) or any other
similar items of such Grantor necessary for the conduct of its business.
"Inventory" means all "inventory" (as defined in the UCC) of any
Grantor, including without limitation, all raw materials, inventory and other
materials and supplies, work-in-process, finished goods, all accessions thereto,
documents therefor and any products made or processed therefrom and all
substances, if any, commingled therewith or added thereto.
"Investment Property" means all "securities" (whether certificated or
uncertificated), "security entitlements", securities accounts", "commodity
contracts" and "commodity accounts" (in each case as defined in the UCC) of any
Grantor, whether now owned or hereafter acquired.
"Lockbox Letter" means a lockbox letter, substantially in the form of
Exhibit A hereto, duly executed by the Grantor and a bank in accordance with
Section 6.
"Patent License" means any written agreement now or hereafter in
existence granting to any Grantor any right to use any invention on which a
Patent is in existence.
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"Patents" means, collectively, all of the following of any Grantor: (a)
all patents, rights and interests in patents, patentable inventions and patent
applications anywhere in the world, including, without limitation, any thereof
referred to on Schedule ii hereto, (b) all reissues, extensions, continuations
(in whole or in part) and renewals of any of the foregoing, (c) all income,
royalties, damages or payments now or hereafter due and/or payable under any of
the foregoing or with respect to any of the foregoing, including, without
limitation, damages or payments for past or future infringements of any of the
foregoing, (d) the right to ▇▇▇ for past, present and future infringements of
any of the foregoing and (e) all rights corresponding to any of the foregoing
throughout the world.
"Perfection Certificate" means the perfection certificate dated as of
even date herewith, substantially in the form of Exhibit B hereto, in form and
substance satisfactory to the Administrative Agent, and duly certified by a
Responsible Officer of the Guarantor so authorized to act.
"Permitted Liens" means all liens and encumbrances respecting the
Collateral permitted pursuant to Section 10.3 of the Credit Agreement.
"Proceeds" means all "proceeds" (as defined by the UCC) of, and all
other profits, rentals or receipts, in whatever form, arising from the
collection, sale, lease, exchange, assignment, licensing or other disposition
of, or realization upon, the Collateral, including, without limitation, all
claims of any Grantor against third parties for loss of, damage to or
destruction of, or for proceeds payable under, or unearned premiums with respect
to, policies of insurance in respect of, any Collateral, and any condemnation or
requisition payments with respect to any Collateral and the following types of
property acquired with cash proceeds: Accounts, Inventory, Documents, Fixtures,
Instruments, General Intangibles, Equipment and Vehicles.
"Secured Obligations" means (a) with regard to any Grantor that is a
Borrower, the Obligations of the Borrowers as defined in the Credit Agreement
and any renewals or extensions thereof and (b) with regard to the Guarantor, the
Guaranteed Obligations as defined in the Credit Agreement and any renewals or
extensions thereof
"Security Interests" means the security interests granted pursuant to
Section 2, as well as all other security interests created or assigned as
additional security for the Secured Obligations pursuant to the provisions of
this Agreement.
"Trademark License" means any written agreement now or hereafter in
existence granting to any Grantor any right to use any Trademark.
"Trademarks" means, collectively, all of the following of any Grantor:
(a) all trademarks, rights and interests in trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles,
service marks, logos, other business identifiers, prints and labels on which any
of the foregoing have appeared or appear, all registrations and recordings
thereof, and all applications in connection therewith anywhere in the world,
including without limitation any thereof referred to on Schedule II hereto, (b)
all reissues, extensions, continuations (in whole or in part) and renewals of
any of the foregoing, (c) all income, royalties, damages and
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payments now or hereafter due and/or payable under any of the foregoing or with
respect to any of the foregoing, including, without limitation, damages or
payments for past or future infringements of any of the foregoing, (d) the right
to ▇▇▇ for past, present and future infringements of any of the foregoing and
(e) all rights corresponding to any of the foregoing throughout the world.
"UCC" means the Uniform Commercial Code as in effect on the date hereof
in the State of North Carolina; provide that if by reason of mandatory
provisions of law, the perfection or the effect of perfection or non-perfection
of the Security Interests in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than North Carolina, "UCC"
means the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such perfection or effect of
perfection or non-perfection.
"Vehicles" means all cars, trucks, trailers, construction and earth
moving equipment of any Grantor and other vehicles covered by a certificate of
title law of any state, and all tires and other appurtenances to any of the
foregoing.
SECTION 2. The Security Interests.
(a) To secure the Credit Agreement in accordance with the terms
thereof, and to secure the payment and performance of all of the Secured
Obligations, each Grantor hereby grants to the Administrative Agent, for the
ratable benefit of the Administrative Agent and the Lenders, a continuing
security interest in and to all of such Grantor's estate, right title and
interest in and to all of the following property, whether now or hereafter owned
or acquired by such Grantor or in which such Grantor may now or hereafter have
or acquire any estate right, title or interest, and wherever located
(collectively, along with any other property of such Grantor which may from time
to time secure the Secured Obligations, the "Collateral"):
(i) Accounts;
(ii) Inventory;
(iii) Documents;
(iv) Equipment;
(v) Fixtures;
(vi) Instruments;
(vii) General Intangibles;
(viii) Investment Property;
(ix) Vehicles;
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(x) The Collateral Account, all cash deposited therein
from time to time and other monies and property of any kind of any
Grantor in the possession or under the control of the Administrative
Agent and any Lender;
(xi) All CATV Franchises, Communications Licenses and PUC
Authorizations (collectively, the "Communications Licenses") of such
Grantor and all goodwill and going concern value relating thereto;
provided, however, that such security interest shall include such CATV
Franchises, Communications Licenses and PUC Authorizations only at such
times and to the extent, that such Grantor is permitted to grant a
security interest therein pursuant to the Telecommunications Act of
1996 as amended, and the policies and regulations promulgated
thereunder and all other Applicable Laws, and shall include, to the
maximum extent permitted by Applicable Law, all rights incident or
appurtenant to any such CATV Franchises, Communications Licenses and
PUC Authorizations, and the rights to receive all proceeds derived from
or in connection with the sale, assignment or transfer of any such CATV
Franchises, Communications Licenses and PUC Authorizations; and
provided further, to the extent that such Grantor is prohibited from
granting a security interest in any CATV Franchise, Communications
License or PUC Authorization, such Grantor agrees that a security
interest shall automatically attach to any such CATV Franchise,
Communications License or PUC Authorization, all rights incident or
appurtenant thereto, and the rights to receive proceeds derived from or
in connection with the sale, assignment or transfer of any such CATV
Franchise, Communications License or PUC Authorization, at such time
that such a security interest is permitted by Applicable Law;
(xii) Except as set forth in Section 8.12(c) of the Credit
Agreement, all Interactive Broadband Networks, as defined in the Credit
Agreement; provided, however, that such security interest shall include
such Interactive Broadband Networks only at such times and to the
extent, that such Grantor is permitted to grant a security interest
therein pursuant to the Telecommunications Act of 1996 as amended, and
the policies and regulations promulgated thereunder and all other
Applicable Laws, and shall include, to the maximum extent permitted by
Applicable Law, all rights incident or appurtenant to any such
Interactive Broadband Networks, and the rights to receive all proceeds
derived from or in connection with the sale, assignment or transfer of
any, such Interactive Broadband Networks; and provided further, to the
extent that such Grantor is prohibited from granting a security
interest in any Interactive Broadband Networks, such Grantor agrees
that a security interest shall automatically attach to any such
Interactive Broadband Networks, all rights incident or appurtenant
thereto, and the rights to receive proceeds derived from or in
connection with the sale, assignment or transfer of any such
Interactive Broadband Networks, at such time that such a security
interest is permitted by Applicable Law;
(xiii) All books and records (including, without limitation,
customer lists, credit files, computer programs, printouts and other
computer materials and records) of such Grantor pertaining to any of
the Collateral;
(xiv) All other goods and personal property of such Grantor,
whether tangible or intangible; and
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(xv) All products and Proceeds of all or any of the Collateral
described in clauses (i) through (xiv) hereof.
Notwithstanding anything contained in any one or more of the Loan
Documents to the contrary, it is agreed that the Loan Parties shall not be
deemed to have granted a security interest in any Communications License, CATV
Franchise, PUC Authorization or agreement with respect to which the consent or
approval of any third party is necessary for the creation of such a security
interest until such time, if ever, as the consents or approvals applicable with
respect to such Communications License, CATV Franchise, PUC Authorization or
agreement have been obtained.
(b) The Security Interests are granted as security only and shall not
subject the Administrative Agent or any Lender to, or transfer to the
Administrative Agent or any Lender, or in any way affect or modify, any
obligation or liability of any Grantor with respect to any of the Collateral or
any transaction in connection therewith.
SECTION 3. Representations and Warranties. Each Grantor represents and
warrants as follows:
(a) Such Grantor has the corporate power and authority and the legal
right to execute and deliver, to perform its obligations under, and to grant the
Security Interests in the Collateral pursuant to, this Agreement and has taken
all necessary corporate action to authorize its execution, delivery and
performance of, and grant of the Security Interests on the Collateral pursuant
to, this Agreement.
(b) This Agreement constitutes a legal, valid and binding obligation of
such Grantor enforceable in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement creditors' rights generally and by the
availability of equitable remedies.
(c) Except as set forth in Sections 8.12(c) and 8.12(d) of, the Credit
Agreement, the execution, delivery and performance of this Agreement will not
violate any provision of any material Applicable Law or material contractual
obligation of such Grantor and will not result in the creation or imposition of
any Lien on any of the material properties or revenues of such Grantor pursuant
to any Applicable Law or contractual obligation of such Grantor, except as
contemplated hereby and except for such Liens as are permitted under the Credit
Agreement.
(d) Except as set forth in Sections 8.12(c) and 8.12(d) of the Credit
Agreement, as provided for in Section 13, no consent or authorization of, filing
with any arbitrator or Governmental Authority and no consent of any other Person
(including, without limitation, any stockholder or creditor of such Grantor), is
required in connection with the execution, delivery, performance, validity or
enforceability against the Grantor of this Agreement, except filings under the
Uniform Commercial Code.
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(e) Except as set forth on Schedule 6.1 (u) to the Credit Agreement, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of such Grantor after due
inquiry, threatened by or against such Grantor or against any of its properties
or revenues with respect to this Agreement or any of the transactions
contemplated hereby.
(f) Such Grantor has good and marketable title to all of its
Collateral, free and clear of any Liens other than the Permitted Liens.
(g) No Grantor has performed any acts that would prevent or hinder the
Administrative Agent from enforcing any of the terms of this Agreement. Other
than financing statements or other similar or equivalent documents or
instruments with respect to Permitted Liens, no financing statement, mortgage,
security agreement or similar or equivalent document or instrument covering all
or any part of the Collateral is on file or of record in any jurisdiction. No
Collateral is in the possession of any Person (other than such Grantor)
asserting any claim thereto or security interest therein, except that the
Administrative Agent or its designee may have possession of Collateral as
contemplated hereby.
(h) All of the information set forth in the Perfection Certificate is
true and correct as of the date hereof
(i) Such Grantor has, contemporaneously herewith, delivered to the
Administrative Agent possession of all originals of all negotiable Instruments,
documents and chattel paper constituting Collateral currently owned or held by
such Grantor, if any (duly endorsed in blank, if requested by the Administrative
Agent).
(j) With respect to any Intellectual Property the loss, impairment or
infringement of which could have a Material Adverse Effect on any Grantor:
(i) such Intellectual Property is subsisting and has not been
adjudged invalid or unenforceable, in whole or in part;
(ii) such Intellectual Property is valid and enforceable;
(iii) except for those items of Intellectual Property listed
on Schedule I and identified as unregistered, such Grantor has made all
necessary filings and recordations to protect its interest in such
Intellectual Property, including, without limitation, recordations of
all of its interests in the Patents and Trademarks in the United States
Patent and Trademark Office and its claims to the Copyrights in the
United States Copyright Office;
(iv) such Grantor is the exclusive owner of the entire and
unencumbered right, title and interest in and to such Intellectual
Property and no claim has been made that the use of such Intellectual
Property does or may violate the asserted rights of any third party;
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(v) except for those items of Intellectual Property listed on
Schedule I and identified as unregistered, such Grantor has performed
all acts and has paid all required fees and taxes to maintain such
Intellectual Property in full force and effect; and
(vi) with respect to any unregistered Intellectual Property
which has been listed on Schedule I and identified as unregistered, at
such time as any currently unregistered Intellectual Property becomes
registered, the Grantor shall comply with subsections (iii) and (v)
hereof.
(k) The Financing Statements naming each Grantor as Debtor are in
appropriate form and when filed in the offices specified in the Perfection
Certificate, the Administrative Agent, on behalf of itself and the Lenders, will
have a valid and perfected security interest in the Collateral of such Grantor,
prior to all other Liens and rights of others therein except for the Permitted
Liens (to the extent that a security interest therein may be created pursuant to
the UCC and perfected by filing pursuant to the UCC) and all filings and other
actions necessary or desirable to so perfect and protect such Security Interests
have been duly taken.
(l) The Inventory, Fixtures, Equipment and Vehicles are insured in
accordance with the requirements hereof and of the Credit Agreement.
(m) All Inventory, if any, has or will have been produced in
compliance with the applicable requirements of the Fair Labor Standards Act, as
amended, to the extent applicable.
SECTION 4. Further Assurances; Covenants.
(a) General.
(i) No Grantor shall change the location of its chief
executive office or principal place of business in any state unless it
shall have given the Administrative Agent thirty (30) days prior
written notice thereof, executed and delivered to the Administrative
Agent all financing statements and financing statement amendments which
the Administrative Agent may request in connection therewith and
delivered evidence of perfection with respect thereto in accordance
with Section 4(a)(vi). No Grantor shall change the locations where it
keeps or holds any material Collateral or any material records relating
thereto from the applicable location described in the Perfection
Certificate unless such Grantor shall have given the Administrative
Agent thirty (30) days prior written notice of such change of location,
executed and delivered to the Administrative Agent all financing
statements and financing statement amendments which the Administrative
Agent may request in connection therewith and, if requested by the
Administrative Agent, delivered an opinion of counsel with respect
thereto in accordance with Section 4(a)(vii) hereof; provided, however,
that such Grantor may keep Inventory at, or in transit to, any location
described in the Perfection Certificate. No Grantor shall in any event
change the location of any Collateral if such change would cause the
Security Interests in such Collateral to lapse or cease to be perfected
unless such Grantor has complied with the foregoing proviso of this
Section 4(a)(i).
(ii) No Grantor shall change its name, identity or corporate
structure in any manner such that any UCC financing statements would
become seriously misleading unless
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it shall have given the Administrative Agent thirty (30) days prior
written notice thereof, executed and delivered to the Administrative
Agent all financing statements and financing statement amendments which
the Administrative Agent may request in connection therewith, and
delivered an opinion of counsel with respect thereto in accordance with
Section 4(a)(vii) hereof
(iii) The Grantors shall maintain the Administrative Agent's
Lien on the Collateral as a first priority perfected Lien thereon,
subject to Permitted Liens. Except as set forth in Sections 8.12(c) and
8.12(d) of the Credit Agreement, each Grantor will, from time to time,
at its expense, execute, deliver, file and record any statement,
assignment, instrument, document, agreement or other paper and take any
other action (including, without limitation, any filings of financing
or continuation statements under the UCC and any filings with the
United States Patent and Trademark Office and United States Copyright
Office) that from time to time may be necessary, or that the
Administrative Agent may reasonably request, in order to create,
preserve, upgrade in rank (to the extent required hereby), perfect,
confirm or validate the Security Interests or to enable the
Administrative Agent and the Lenders to obtain the full benefits of
this Agreement, or to enable the Administrative Agent to exercise and
enforce any of its rights, powers and remedies hereunder with respect
to any of the Collateral. Prior to the irrevocable payment in full of
the Secured Obligations, each Grantor hereby authorizes the
Administrative Agent, upon the failure of such Grantor to so do within
three (3) Business Days after receipt of written notice from the
Administrative Agent to execute and file financing statements,
financing statement amendments or continuation statements without such
Grantor's signature appearing thereon. Each Grantor agrees that a
carbon, photographic, photostatic or other reproduction of this
Agreement or of a financing statement is sufficient as a financing
statement. The Grantors shall pay the costs of, or incidental to, any
recording or filing of the Financing Statements and any other financing
statements, financing statement amendments or continuation statements
concerning the Collateral.
(iv) If any Collateral exceeding in value $50,000 in the
aggregate is at any time in the possession or control of any
warehouseman, bailee (other than a carrier transporting Inventory to a
purchaser in the ordinary course of business), or any Grantor's agents
or processors, such Grantor shall notify in writing such warehouseman,
bailee, agent or processor of the Security Interests created hereby,
shall obtain such warehouseman's, bailee's, agent's or processor's
agreement in writing to hold all such Collateral for the Administrative
Agent's account subject the Administrative Agent's instructions, and
shall cause such warehouseman, bailee, agent or processor to issue and
deliver to the Administrative Agent warehouse receipts, bills of lading
or any similar documents relating to such Collateral in the
Administrative Agent's name and in form and substance acceptable to the
Administrative Agent
(v) Each Grantor will cause the Administrative Agent, for the
ratable benefit of the Lenders, to be named as loss payee on each
insurance policy covering risks relating to any of its Inventory,
Fixtures, Equipment and Vehicles, as reasonably requested by the
Administrative Agent. Each Grantor will deliver to the Administrative
Agent certificates of insurance, evidence of payment of all insurance
premiums for the current policy year, and, if
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requested by the Administrative Agent, copies (certified by a
responsible Officer of the applicable Grantor) of each such insurance
policy. Each such insurance policy shall provide that all insurance
proceeds shall be adjusted with and payable to the Administrative Agent
and provide that no cancellation or termination thereof shall be
effective until at least thirty (30) days have elapsed after receipt by
the Administrative Agent of written notice thereof.
(vi) Each Grantor will, promptly upon request, provide to the
Administrative Agent all information and evidence the Administrative
Agent may reasonably request concerning the Collateral, and in
particular the Accounts, to enable the Administrative Agent to enforce
the provisions of this Agreement.
(vii) Prior to each date on which any Grantor proposes to take
any action contemplated by Section 4(a)(i) or Section 4 (a)(ii) hereof,
such Grantor shall, as reasonably requested by the Administrative
Agent, at its cost and expense, cause to be delivered to the
Administrative Agent and the Lenders an opinion of counsel, in form and
content reasonably satisfactory to the Administrative Agent.
(viii) Each Grantor will comply in all material respects with
all Applicable Laws and maintain in full force and effect all
Governmental Approvals, in each case applicable to the Collateral or
any part thereof or to the operation of such Grantor's business.
(ix) Each Grantor will pay promptly when due all taxes,
assessments and governmental charges or levies imposed upon the
Collateral or in respect of its income or profits therefrom, as well as
all claims of any kind (including, without limitation, claims for
labor, materials and supplies) against or with respect to the
Collateral, except that no such tax. assessment, governmental charge,
levy or claim need be paid if (A) the validity thereof is being
contested in good faith by appropriate proceedings and (B) such charge
is adequately reserved against on such Grantor's books in accordance
with GAAP.
(x) No Grantor shall:
(1) sell, assign (by operation of law or otherwise)
or otherwise dispose of any of the Collateral, except as
permitted by the Credit Agreement; or
(2) create or suffer to exist any Lien or other
charge or encumbrance upon or with respect to any of the
Collateral to secure indebtedness of any Person or entity,
except for Permitted Liens and except as permitted by the
Credit Agreement.
(xi) Each Grantor will, upon request by the Administrative
Agent, deliver to the Administrative Agent possession of all originals
of all negotiable Instruments and Documents constituting Collateral
currently owned or held by such Grantor, if any (duly endorsed in
blank, if requested by the Administrative Agent).
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(b) Accounts, Etc.
(i) Each Grantor shall use all reasonable efforts to cause to
be collected from its Account Debtors, as and when due in accordance
with prudent business practices generally customary in businesses
similar to those of such Grantor, any and all amounts owing under or on
account of each Account (including, without limitation, Accounts which
are delinquent, such Accounts to be collected in accordance with lawful
collection procedures) and to apply forthwith upon receipt thereof all
such amounts as are so collected to the outstanding balance of such
Account. The costs and expenses (including, without limitation,
reasonable attorneys' fees), of collection of Accounts incurred by such
Grantor or the Administrative Agent shall be borne by such Grantor.
(ii) Upon the occurrence and during the continuance of any
Event of Default, upon request of the Administrative Agent each Grantor
will promptly notify (and each Grantor hereby authorizes the
Administrative Agent so to notify) each Account Debtor in respect of
any Account that such Account has been assigned to the Administrative
Agent hereunder and that any payments due or to become due in respect
of such Account are to be made directly to the Administrative Agent or
its designee.
(iii) Each Grantor will perform and comply with all of its
material obligations in respect of Accounts and General Intangibles and
the exercise by the Administrative Agent of any of its rights hereunder
shall not release such Grantor from any of its duties or obligations.
(iv) No Grantor will (A) amend, modify, terminate or waive any
material provision of any agreement giving rise to a material Account
in any manner which could reasonably be expected to materially
adversely affect the value of such Account as Collateral, (B) fail to
exercise promptly and diligently each and every material right which it
may have under each agreement giving rise to a material Account (other
than any right of termination) or (C) fail to deliver to the
Administrative Agent a copy of each material demand, notice or document
received by it relating in any way to any agreement giving rise to a
material Account.
(v) Other than in the ordinary course of business as generally
conducted by each Grantor over a period of time, such Grantor will not
grant any extension of the time of payment of any of the Accounts with
a face amount in excess of $50,000 or compromise, compound or settle
the same for less than the full amount thereof, release, wholly or
partially, any Person liable for the payment thereof, or allow any
credit or discount whatsoever thereon.
(c) Inventory, Etc. At the request of the Administrative Agent or any
Lender, each Grantor shall deliver to the Administrative Agent and each Lender a
schedule of Inventory. Unless otherwise indicated in writing by such Grantor,
each schedule of Inventory delivered by such Grantor to the Administrative Agent
and each Lender shall constitute a representation with respect to the Inventory
listed thereon or referred to therein that: (A) all such Inventory is located at
places of business listed in the Perfection Certificate or as to which such
Grantor has complied with the
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provisions of Section 4(a)(i) hereof or on the premises identified on the then
current schedule of Inventory or is Inventory in transit from one such location
to another such location; (B) no such Inventory is subject to any Lien
whatsoever, except for Permitted Liens and as permitted by the Credit Agreement;
(C) no such Inventory in aggregate value exceeding $50,000 at any time is, nor
shall at any time or times be, kept, stored or maintained with a bailee,
warehouseman, carrier or similar party (other than a carrier delivering
Inventory to a purchaser in the ordinary course of such Grantor's business)
unless the Administrative Agent has given its prior written consent and such
Grantor has complied with the provision of Section 4 (a)(iv) hereof
(d) Equipment, Etc. Each Grantor will maintain each material item of
Equipment in the same condition, repair and working order as when acquired,
ordinary wear and tear excepted, and in accordance with any manufacturer's
manual, and will as quickly as practicable provide all maintenance, service and
repairs necessary for such purpose and will promptly furnish to the
Administrative Agent a statement respecting any material loss or damage to any
material portion of the Equipment.
(e) Intellectual Property.
(i) Each Grantor shall notify the Administrative Agent
promptly (a) of its acquisition after the Closing Date of any material
Copyright, Copyright License, Patent, Patent License, Trademark or
Trademark License and (b) if it knows, or has reason to know of any
adverse determination or development (including, without limitation,
the institution of, or any such determination or development in, any
proceeding in the United States Copyright Office or United States
Patent and Trademark Office, as applicable, or any court) regarding
such Grantor's ownership of any material Copyright, Patent or
Trademark, its material right to register the same, or to keep and
maintain the same. In the event that any material Copyright, Copyright
License, Patent, Patent License, Trademark or Trademark License is
infringed, misappropriated or diluted by a third party, such Grantor
shall notify the Administrative Agent promptly after it learns thereof
and shall, unless such Grantor and the Administrative Agent shall
jointly determine that any such action would be of immaterial economic
value, promptly ▇▇▇ for infringement, misappropriation or dilution and
to recover any and all damages for such infringement, misappropriation
or dilution, and take such other actions as may be appropriate under
the circumstances to protect such Copyright, Copyright License, Patent,
Patent License, Trademark or Trademark License. If any Grantor, either
itself or through any agent, employee or licensee, files an application
for the registration of any Copyright, Patent or Trademark with the
United States Copyright Office or United States Patent and Trademark
Office, as applicable, or any similar office or agency in any other
country or any political subdivision thereof, such Grantor will so
inform the Administrative Agent, and, upon issuance of such Copyright,
Patent or Trademark, execute and deliver any and all agreements,
instrument, documents and papers the Administrative Agent may
reasonably request to evidence the Security Interests in such
Copyright, Patent or Trademark and the goodwill and general intangibles
of such Grantor relating thereto or represented thereby. Each Grantor
hereby constitutes the Administrative Agent its attorney-in-fact to
execute and file all such writings for the foregoing purposes, all acts
of such attorney being hereby ratified and confirmed, and such power,
being coupled with an
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interest, shall be irrevocable until the Secured Obligations have been
paid in full and satisfied.
(ii) Each Grantor shall: (a) preserve and maintain in all
material respects rights in the Intellectual Property (including,
without limitation, the payment of all required fees and taxes to
maintain such Intellectual Property in full force and effect); and (b)
upon and after the occurrence of an Event of Default, use its best
efforts to obtain any consents, waivers or agreements necessary to
enable the Administrative Agent to exercise its remedies with respect
to the Intellectual Property. No Grantor shall abandon any right to
file a Copyright, Patent or Trademark application that is material to
the business of such Grantor nor shall such Grantor abandon any such
pending Copyright, Patent or Trademark application, or Copyright,
Copyright License, Patent, Patent License, Trademark or Trademark
License without the prior written consent of the Administrative Agent.
(iii) Each Grantor hereby assigns, transfers and conveys to
the Administrative Agent, effective upon the occurrence and during the
continuance of any Event of Default, the nonexclusive right and license
to use all Intellectual Property owned or used by such Grantor,
together with any goodwill associated therewith, all to the extent
necessary to enable the Administrative Agent to realize on the
Collateral (including, without limitation, completing production of,
advertising for sale and selling the Collateral) and any successor or
assign to enjoy the benefits of the Collateral. This right and license
shall inure to the benefit of all successors, assigns and transferees
of the Administrative Agent and its successors, assigns and
transferees, whether by voluntary conveyance, operation of law,
assignment, transfer, foreclosure, deed in lieu of foreclosure or
otherwise. Such right and license is granted free of charge, without
requirement that any monetary payment whatsoever be made to such
Grantor by the Administrative Agent.
(f) Vehicle. Upon the reasonable request of the Administrative Agent,
all applications for certificates of title or ownership indicating the
Administrative Agent's first priority Lien (subject to Permitted Liens) on the
Vehicle covered by such certificate, and any other necessary documentation,
shall be filed in each office in each jurisdiction which the Administrative
Agent shall deem advisable to perfect its Liens on the Vehicles. Prior thereto,
each certificate of title or ownership relating to each Vehicle shall be
maintained by the applicable Grantor in accordance with Applicable Law to
reflect the ownership interest of such Grantor.
(g) Indemnification. The Grantors agree to pay, and to save the
Administrative Agent and the Lenders harmless from, any and all liabilities,
costs and expenses (including, without limitation, reasonable legal fees and
expenses) (i) with respect to, or resulting from, any and all excise, sales or
other taxes which may be payable or determined to be payable with respect to any
of the Collateral, (ii) with respect to, or resulting from, complying with any
Applicable Law applicable to any of the Collateral or (iii) in connection with
any of the transactions contemplated by this Agreement; provided, however, said
indemnifications shall not apply to the extent any such liabilities, costs and
expenses result from the gross negligence or willful misconduct of the
Administrative Agent or any Lender. In any suit, proceeding or action brought by
the Administrative Agent under any Account for any sum owing thereunder, or to
enforce any provisions of any Account, each Grantor will save, indemnify and
keep the Administrative Agent
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and the Lenders harmless from and against all expense, loss or damage suffered
by reason of any defense, setoff, counterclaim, recoupment or reduction or
liability whatsoever the Account Debtor or any other obligor thereunder, arising
out of a breach by such Grantor of any obligation thereunder or arising out of
any other agreement, indebtedness or liability at any time owing to or in favor
of such Account Debtor or obligor or its successors from such Grantor (except to
the extent any such expense, loss or damage results from the gross negligence or
willful misconduct of the Administrative Agent or any Lender). The obligations
of the Grantors under this Section 4(g) shall survive the termination of the
other provisions of this Agreement.
SECTION 5. Reporting and Recordkeeping. Each Grantor respectively
covenants and agrees with the Administrative Agent and the Lenders that from and
after the date of this Agreement and until the Secured Obligations have been
paid in full and satisfied:
(a) Maintenance of Records Generally. Such Grantor will keep and
maintain at its own cost and expense complete and accurate records of the
Collateral, including, without limitation, a record of all payments received and
all credits granted with respect to the Collateral and all other dealings with
the Collateral, all in a manner consistent with such Grantor's past practice.
All chattel paper given to such Grantor with respect to any Accounts will be
marked with the following legend: "This writing and the obligations evidenced or
secured hereby are subject to the security interest of First Union National
Bank, as Administrative Agent". For the Administrative Agent's and the Lenders'
further security, such Grantor agrees that upon the occurrence and during the
continuation of any Event of Default, such Grantor shall deliver and turn over
any such books and records directly to the Administrative Agent or its designee.
Such Grantor shall permit any representative of the Administrative Agent to
inspect such books and records in accordance with Section 8.11 of the Credit
Agreement and will provide photocopies thereof to the Administrative Agent upon
its reasonable request.
(b) Certain Provisions Regarding Maintenance of Records and Reporting
Re: Accounts.
(i) In the event any amounts due and owing in excess of
$50,000 individually or $100,000 in the aggregate are in dispute
between any Account Debtor and any Grantor, such Grantor shall provide
the Administrative Agent with written notice thereof promptly after
such Grantor's learning thereof, explaining in detail the reason for
the dispute, all claims related thereto and the amount in controversy.
(ii) Each Grantor will promptly notify the Administrative
Agent in writing if any Account, the face value of which exceeds
$50,000 arises out of a contract with the United States of America, or
any department, agency, subdivision or instrumentality thereof, or of
any state (or department, agency, subdivision or instrumentality
thereof) where such state has a state assignment of claims act or other
law comparable to the Federal Assignment of Claims Act, and will take
any action required or requested by the Administrative Agent or give
notice of the Administrative Agent's Security Interest in such Accounts
under the provisions of the Federal Assignment of Claims Act or any
comparable law or act enacted by any state or local Governmental
Authority. Any notifications or other documents executed and delivered
to the Administrative Agent in connection with the Federal Assignment
of Claims Act or any comparable state law may be promptly filed with
the
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appropriate Governmental Authority by the Administrative Agent or held
by the Administrative Agent until the Administrative Agent decides in
its sole discretion to make any such filing.
(iii) Each Grantor will promptly upon, but in no event later
than five (5) Business Days after: (A) such Grantor's learning thereof,
inform the Administrative Agent, in writing, of any material delay in
such Grantor's performance of any of its obligations to any Account
Debtor and of any assertion of any claims, offsets or counterclaims by
any Account Debtor and of any allowances, credits and/or other monies
granted by such Grantor to any Account Debtor, in each case involving
amounts in excess of $50,000 for any single Account or Account Debtor
or in excess of $100,000 in the aggregate for all Accounts and Account
Debtors; and (B) such Grantor's receipt or learning thereof, furnish to
and inform the Administrative Agent of all adverse information of a
material nature relating to the financial condition of any Account
Debtor with respect to Accounts exceeding $50,000 individually or
$100,000 in the aggregate.
(c) Further Identification of Collateral. Each Grantor will, if so
requested by the Administrative Agent, furnish to the Administrative Agent
statements and schedules further identifying and describing the Collateral and
such other reports in connection with the Collateral as the Administrative Agent
may reasonably request, all in reasonable detail.
(d) Notices. In addition to the notices required by Section 5(b hereof,
each Grantor will advise the Administrative Agent promptly, in reasonable
detail, (i) of any material Lien or claim made or asserted against any of the
Collateral, (ii) of any material adverse change in the composition of the
Collateral, and (iii) of the occurrence of any other event which could have a
Material Adverse Effect on the Collateral or on the validity, perfection or
priority of the Security Interests.
SECTION 6. Collateral Account.
(a) There is hereby established with the Administrative Agent a
Collateral Account in the name and under the exclusive dominion and control of
the Administrative Agent. There shall be deposited from time to time into such
account the cash proceeds of the Collateral required to be delivered to the
Administrative Agent pursuant to Section 6(b) hereof or any other provision of
this Agreement. Any income received by the Administrative Agent with respect to
the balance from time to time standing to the credit of the Collateral Account,
shall remain, or be deposited, in the Collateral Account, shall vest in the
Administrative Agent, shall constitute part of the Collateral hereunder and
shall not constitute payment of the Secured Obligations until applied thereto as
hereinafter provided.
(b) Upon the occurrence and during the continuance of an Event of
Default, if requested by the Administrative Agent, each Grantor shall instruct
all Account Debtors and other Persons obligated in respect of all Accounts to
make all payments in respect of the Accounts either (i) directly to the
Administrative Agent (by instructing that such payments be remitted to a post
office box which shall be in the name and under the exclusive dominion and
control of the Administrative Agent) or (ii) to one or more other banks in any
state in the United States (by instructing that such
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payments be remitted to a post office box which shall be in the name and under
the exclusive dominion and control of such bank) under a Lockbox Letter
substantially in the form of Exhibit A hereto duly executed by such Grantor and
such bank or under other arrangements, in form and substance satisfactory to the
Administrative Agent, pursuant to which such Grantor shall have irrevocably
instructed such other bank (and such other bank shall have agreed) to remit all
proceeds of such payments directly to the Administrative Agent for deposit into
the Collateral Account or as the Administrative Agent may otherwise instruct
such bank, and thereafter if the proceeds of any Collateral shall be received by
such Grantor, such Grantor will promptly deposit such proceeds into the
Collateral Account and until so deposited, all such proceeds shall be held in
trust by such Grantor for and as the property of the Administrative Agent, for
the benefit of itself and the Lenders and shall not be commingled with any other
funds or property of such Grantor. At any time after the occurrence and during
the continuance of an Event of Default, the Administrative Agent may itself so
instruct such Grantor's Account Debtors. All such payments made to the
Administrative Agent shall be deposited in the Collateral Account.
(c) Upon the occurrence and during the continuance of an Event of
Default, amounts on deposit in the Collateral Account shall be promptly
liquidated and applied to the payment of the Secured Obligations in the manner
specified in Section 10 hereof.
SECTION 7. General Authority.
(a) Each Grantor hereby irrevocably appoints the Administrative Agent
its true and lawful attorney, with full power of substitution, in the name of
such Grantor, the Administrative Agent, the Lenders or otherwise, for the sole
use and benefit of the Administrative Agent and the Lenders, but at such
Grantor's expense, to exercise, at any time and from time to time all or any of
the following powers:
(i) to file the Financing Statements and any financing
statements, financing statement amendments and continuation statements
referred to in Sections 4(a)(i), 4(a)(ii), and 4(a)(iii) hereof,
(ii) to demand, ▇▇▇ for, collect, receive and give
acquittance for any and all monies due or to become due with respect to
any Collateral or by virtue thereof,
(iii) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect to any Collateral,
(iv) to sell, transfer, assign or otherwise deal in or with
the Collateral and the Proceeds thereof, as fully and effectually as if
the Administrative Agent were the absolute owner thereof, and
(v) to extend the time of payment of any or all thereof and to
make any allowance and other adjustments with reference to the
Collateral;
provided that the Administrative Agent shall not take any of the actions
described in this Section 7 except those described in clause (i) above unless an
Event of Default shall have occurred and be
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continuing and the Administrative Agent shall give such Grantor not less than
ten (10) days' prior written notice of the time and place of any sale or other
intended disposition of any of the Collateral, except any Collateral which is
perishable or threatens to decline speedily in value. Each Grantor agrees that
any such notice constitutes "reasonable notification" within the meaning of
Section 9-504(3) of the UCC (to the extent such Section is applicable).
Notwithstanding the foregoing provisions of this Section 7, no Person
shall be entitled to take any action with respect to any part or all of the
Collateral which would constitute a transfer of control in or an assignment by
such Grantor of its right, title or interest in and to any Communications
License in violation of Applicable Law or the then applicable rules, regulations
and written policies of the FCC or any applicable PUC or other Governmental
Authority until any required consents, approvals or authorizations of the FCC or
such PUC or Governmental Authority are obtained.
(b) Each Grantor hereby ratifies all that said attorney shall lawfully
do or cause to be done by virtue hereof. This power of attorney is a power
coupled with an interest and shall be irrevocable.
(c) Each Grantor also authorizes the Administrative Agent at any time
and from time to time, to execute, in connection with the sale provided for in
Section 8 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
SECTION 8. Remedies Upon Event of Default.
(a) If any Event of Default has occurred and is continuing, the
Administrative Agent may exercise on behalf of itself and the Lenders all rights
of a secured party under the UCC (whether or not in effect in the jurisdiction
where such rights are exercised) and, in addition, the Administrative Agent may
(i) withdraw all cash, if any, in the Collateral Account and investments made
with amounts on deposit in the Collateral Account, and apply such monies,
investments and other cash, if any, then held by it as Collateral as specified
in Section 10 hereof and (ii) if there shall be no such monies, investments or
cash or if such monies, investments or cash shall be insufficient to pay all the
Secured Obligations in full, sell the Collateral or any part thereof at public
or private sale, for cash, upon credit or for future delivery, and at such price
or prices as the Administrative Agent may deem satisfactory. The Administrative
Agent or any Lender may be the purchaser of any or all of the Collateral so sold
at any public sale (or, if the Collateral is of a type customarily sold in a
recognized market or is of a type which is the subject of widely distributed
standard price quotations or if otherwise permitted under applicable law, at any
private sale) and thereafter hold the same, absolutely, free from any right or
claim of whatsoever kind. Each Grantor will execute and deliver such documents
and take such other action as the Administrative Agent deems reasonably
necessary or advisable in order that any such sale may be made in compliance
with law. Upon any such sale the Administrative Agent shall have the right to
deliver, assign and transfer to the purchaser thereof the Collateral so sold
(without warranty). The purchaser at any such sale shall hold the Collateral so
sold to it absolutely, free from any claim or right of whatsoever kind,
including any equity or right of redemption of any Grantor. To the extent
permitted by law, such Grantor hereby specifically waives all rights of
redemption, stay or appraisal which it has or may have under any law now
existing or hereafter adopted. The notice of such sale shall be given to
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such Grantor ten (10) days prior to such sale and (A) in case of a public sale,
state the time and place fixed for such sale, and (B) in the case of a private
sale, state the day after which sale may be consummated. Any such public sale
shall be held at such time or times within ordinary business hours and at such
place or places as the Administrative Agent may fix in the notice of such sale.
At any such sale the Collateral may be sold in one lot as an entirety or in
separate parcels, as the Administrative Agent may determine. The Administrative
Agent shall not be obligated to make any such sale pursuant to any such notice.
The Administrative Agent may, without notice or publication, adjourn any public
or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale may be made
at any time or place to which the same may be so adjourned. In case of any sale
of all or any part of the Collateral on credit or for future delivery, the
Collateral so sold may be retained by the Administrative Agent until the selling
price is paid by the purchaser thereof, but the Administrative Agent shall not
incur any liability in case of the failure of such purchaser to take up and pay
for the Collateral so sold and, in case of any such failure, such Collateral may
again be sold upon like notice. The Administrative Agent, instead of exercising
the power of sale herein conferred upon it, may proceed by a suit or suits at
law or in equity to foreclose the Security Interests and sell the Collateral, or
any portion thereof, under a judgment or decree of a court or courts of
competent jurisdiction. The Grantors shall remain liable for any deficiency.
(b) For the purpose of enforcing any and all rights and remedies under
this Agreement, the Administrative Agent may (i) require each Grantor to, and
such Grantor agrees that it will, at its expense and upon the request of the
Administrative Agent, forthwith assemble all or any part of the Collateral as
directed by the Administrative Agent and make it available at a place designated
by the Administrative Agent which is, in the Administrative Agent's opinion,
reasonably convenient to the Administrative Agent and such Grantor, whether at
the premises of such Grantor or otherwise, (ii) to the extent permitted by
Applicable Law, enter, with or without process of law and without breach of the
peace, any premise where any of the Collateral is or may be located and, without
charge or liability to the Administrative Agent, seize and remove such
Collateral from such premises, (iii) have access to and use such Grantor's books
and records relating to the Collateral and (iv) prior to the disposition of the
Collateral, store or transfer such Collateral without charge in or by means of
any storage or transportation facility owned or leased by such Grantor, process,
repair or recondition such Collateral or otherwise prepare it for disposition in
any manner and to the extent the Administrative Agent deems appropriate and, in
connection with such preparation and disposition, use without charge any
Trademark, trade name, Copyright, Patent or technical process used by such
Grantor.
(c) Without limiting the generality of the foregoing, if any Event of
Default has occurred and is continuing,
(i) the Administrative Agent may license, or sublicense,
whether general, special or otherwise, and whether on an exclusive or
non-exclusive basis, any Copyright, Patents or Trademarks included in
the Collateral throughout the world for such term or terms, on such
conditions and in such manner as the Administrative Agent shall in its
sole discretion determine;
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(ii) the Administrative Agent may (without assuming any
obligations or liability thereunder), at any time and from time to
time, enforce (and shall have the exclusive right to enforce) against
any licensee or sublicensee all rights and remedies of each Grantor in,
to and under any Copyright License, Patent Licenses or Trademark
Licenses and take or refrain from taking any action under any thereof,
provided, however, that the Administrative Agent shall not take any
such actions that shall result in the failure of such Copyright
License, Patent Licenses or Trademark Licenses to remain in compliance
with all Applicable Laws, and each Grantor hereby releases the
Administrative Agent and each of the Lenders free and harmless from and
against any claims arising out of any action so taken or omitted to be
taken in compliance with the foregoing provisions; and
(iii) upon request by the Administrative Agent, each Grantor
will execute and deliver to the Administrative Agent a power of
attorney, in form and substance satisfactory to the Administrative
Agent, for the implementation of any lease, assignment, license,
sublicense, grant or option, sale or other disposition of a Copyright,
Patent or Trademark. In the event of any such disposition pursuant to
this Section, each Grantor shall supply its know-how and expertise
relating to such Copyrights, the manufacture and sale of the products
bearing Trademarks or the products or services made or rendered in
connection with Patents, and its customer lists and other records
relating to such Copyrights, Patents or Trademarks and to the
distribution of said products, to the Administrative Agent.
SECTION 9. Limitation on Duties of the Administrative Agent Regarding
Collateral. Beyond reasonable care in the custody thereof, the Administrative
Agent shall have no duty as to any Collateral in its possession or control or in
the possession or control of any agent or bailee or any income thereon or as to
the preservation of rights against prior parties or any other rights pertaining
thereto. The Administrative Agent shall be deemed to have exercised reasonable
care in the custody of the Collateral in its possession if the Collateral is
accorded treatment substantially equal to that which it accords its own
property, and the Administrative Agent shall not be liable or responsible for
any loss or damage to any of the Collateral, or for any diminution in the value
thereof, by reason of the act or omission of any warehouseman, carrier,
forwarding agency, consignee or other agent or bailee selected by the
Administrative Agent in good faith.
SECTION 10. Application of Proceeds. Upon the occurrence and during
the continuance of an Event of Default, the proceeds of any sale of, or other
realization upon, all or any part of the Collateral shall be applied by the
Administrative Agent in accordance with the terms of Section 4.5 of the Credit
Agreement. The Administrative Agent may make distribution hereunder in cash or
in kind or, on a ratable basis, in any combination thereof.
SECTION 11. Concerning the Administrative Agent. The provisions of
Article XIII of the Credit Agreement shall inure to the benefit of the
Administrative Agent in respect of this Agreement and shall be binding upon the
Grantors and the Lenders. In furtherance and not in derogation of the rights,
privileges and immunities of the Administrative Agent therein set forth:
(a) The Administrative Agent is authorized to take all such
action as is provided to be taken by it as Administrative Agent
hereunder and all other action incidental thereto. As to any matters
not expressly provided for herein, the Administrative Agent may request
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instructions from the Lenders and shall act or refrain from acting in
accordance with written instructions from the Required Lenders (or,
when expressly required by this Agreement or the Credit Agreement, all
the Lenders) or, in the absence of such instructions, in accordance
with its discretion.
(b) The Administrative Agent shall not be responsible for the
existence, genuineness or value of any of the Collateral or for the
validity, perfection, priority or enforceability of the Security
Interests, whether impaired by operation of law or by reason of any
action or omission to act on its part (other than any such action or
inaction constituting gross negligence or willful misconduct). The
Administrative Agent shall have no duty to ascertain or inquire as to
the performance or observance of any of the terms of this Agreement by
any Grantor.
SECTION 12. Appointment of Administrative Agents. At any time or
times, in order to comply with any legal requirement in any jurisdiction or in
order to effectuate any provision of the Loan Documents, the Administrative
Agent may appoint another bank or trust company or one or more other Persons,
either to act as collateral agent or agents, jointly with the Administrative
Agent or separately, on behalf of the Administrative Agent and the Lenders with
such power and authority as may be necessary for the effectual operation of the
provisions hereof and specified in the instrument of appointment (which may, in
the discretion of the Administrative Agent, include provisions for the
protection of such collateral agent similar to the provisions of Section 11
hereof).
SECTION 13. Regulatory Approval.
(a) Notwithstanding anything herein to the contrary, this Agreement,
the other Loan Documents, and the transactions contemplated hereby and thereby,
prior to a foreclosure of the Liens granted under this Agreement and the other
Loan Documents, do not and will not (i) constitute, create or have the effect of
constituting or creating, directly or indirectly, (A) actual or practical
ownership of any Grantor or any Subsidiary of any Grantor by the Administrative
Agent or the Lenders, or (B) control by the Administrative Agent or the Lenders
over the management or any other aspect of the operation of any Grantor or any
Subsidiary of any Grantor which ownership and control remains exclusively and at
all times in any Grantor or such Subsidiary of any Grantor, or (ii) constitute
(A) the transfer, assignment or disposition in any manner of any CATV Franchise,
Communications License, PUC Authorization or other Governmental Approval issued
to any Grantor or any Subsidiary of any Grantor or (B) the transfer of control
of any Grantor or any Subsidiary of any Grantor within the meaning of the
Telecommunications Act of 1996, as amended, or any other Applicable Law.
(b) Notwithstanding any other provision of this Agreement, any
foreclosure on, sale, transfer or other disposition of, or the exercise of any
right to vote or consent with respect to, any of the Collateral or any of the
other collateral referenced in any of the other Loan Documents, or any other
action taken or proposed to be taken by the Administrative Agent hereunder or
under any of the other Loan Documents which would affect the operational, voting
or other control of any CATV Franchise, Communications License, PUC
Authorization or other Governmental Approval of any Grantor or any Subsidiary of
any Grantor shall be in accordance with Applicable Law.
21
187
(c) Each Grantor will, at its expense, promptly execute and deliver, or
cause the execution and delivery of, all applications, certificates,
instruments, registration statements, and all other documents and papers the
Administrative Agent may reasonably request and as may be required by law in
connection with the obtaining of any consent, approval, registration,
qualification, or authorization of the FCC, any state, provincial or other local
regulatory agency or body that exercises jurisdiction over the rates or services
or the ownership, construction or operation of any telecommunications systems or
over Persons who own, construct or operate telecommunications systems, by reason
of the nature or type of business subject to regulation and not pursuant to laws
and regulations of general applicability (a "PUC") or of any other Person deemed
necessary or appropriate for the effective exercise of any rights under this
Agreement or the Security Documents. Without limiting the generality of the
foregoing, if an Event of Default shall have occurred and be continuing, each
Grantor shall take any action which the Administrative Agent may reasonably
request in order to transfer and assign to the Administrative Agent, or to such
one or more third parties as the Administrative Agent may designate, or to a
combination of the foregoing, each CATV Franchise, Communications License, PUC
Authorization or other Governmental Approval. To enforce the provisions of this
Section 13, upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent is empowered to request the appointment of a
receiver from any court of competent jurisdiction. Such receiver shall be
instructed to seek from the FCC, any applicable PUC or other Governmental
Authority an involuntary transfer of control of each such CATV Franchise,
Communications License, PUC Authorization or other Governmental Approval for the
purpose of seeking a bona fide purchaser to whom control will ultimately be
transferred. Each Grantor hereby agrees to authorize such an involuntary
transfer of control upon the request of the receiver so appointed and, if such
Grantor shall refuse to authorize the transfer, its approval may be required by
the court. Upon the occurrence and continuance of an Event of Default, such
Grantor shall further use its best efforts to assist in obtaining approval of
the FCC, any applicable PUC or other Governmental Authority, if required, for
any action or transactions contemplated by this Agreement or the Security
Documents including, without limitation, the preparation, execution and filing
with the FCC, any applicable PUC or other Governmental Authority of the
assignor's or transferor's portion of any application or applications for
consent to the assignment of any CATV Franchise, Communications License, PUC
Authorization or other Governmental Approval or transfer of control necessary
or appropriate under the rules and regulations of the FCC, any applicable PUC or
other Governmental Authority for the approval of the transfer or assignment of
any portion of the assets of such Grantor, together with any CATV Franchise,
Communications License, PUC Authorization or other Governmental Approval.
Because such Grantor agrees that the Administrative Agent's remedy at law for
failure of such Grantor to comply with the provisions of this Section 13 would
be inadequate and that such failure would not be adequately compensable in
damages, such Grantor agrees that the covenants contained in this Section 13 may
be specifically enforced, and such Grantor hereby waives and agrees not to
assert any defenses against an action for specific performance of such
covenants.
SECTION 14. Expense. In the event that any Grantor fails to comply with
the provisions of the Credit Agreement, this Agreement or any other Loan
Document, such that the value of any Collateral or the validity, perfection,
rank or value of the Security Interests are thereby diminished or potentially
diminished or put at risk, the Administrative Agent may, but shall not be
required to, effect such compliance on behalf of such Grantor, and the Grantors
shall reimburse the Administrative Agent for the costs thereof on demand. All
insurance expenses and all expenses of
22
188
protecting, storing, warehousing, appraising, insuring, handling, maintaining
and shipping the Collateral, any and all excise, stamp, intangibles, transfer,
property, sales, and use taxes imposed by any state, federal, or local authority
or any other Governmental Authority on any of the Collateral, or in respect of
the sale or other disposition thereof, shall be borne and paid by the Grantors;
and if the Grantors fail promptly to pay any portion thereof when due, the
Administrative Agent or any Lender may, at its option, but shall not be required
to, pay the same and charge the Grantors' account therefor, and the Grantors
agree to reimburse the Administrative Agent or such Lender therefor on demand.
All sums so paid or incurred by the Administrative Agent or any Lender for any
of the foregoing and any and all other sums for which any Grantor may become
liable hereunder and all costs and expenses (including reasonable attorneys'
fees, legal expenses and court costs) incurred by the Administrative Agent or
any Lender in enforcing or protecting the Security Interests or any of their
rights or remedies thereon shall be payable by the Grantors on demand and shall
bear interest (after as well as before judgment) until paid at the rate then
applicable to Base Rate Loans under the Credit Agreement and shall be additional
Secured Obligations hereunder.
SECTION 15. Notices. All notices and communications hereunder shall be
given to the addresses and otherwise made in accordance with Section 14.1 of the
Credit Agreement.
SECTION 16. Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of the Administrative Agent or any Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between the Borrowers, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default. This Agreement is a Loan Document
executed pursuant to the Credit Agreement.
SECTION 17. Successors and Assigns. This Agreement is for the benefit
of the Administrative Agent and the Lenders and their permitted successors and
assigns, and in the event of an assignment of all or any of the Secured
Obligations, the rights hereunder, to the extent applicable to the indebtedness
so assigned, may be transferred with such indebtedness. This Agreement shall be
binding on each Grantor and its successors and assigns; provide that no Grantor
may assign any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and the Lenders.
SECTION 18. Amendments, Waivers and Consents. No term, covenant,
agreement or condition of this Agreement may be amended or waived, nor may any
consent be given, except in the manner set forth in Section 14.11 of the Credit
Agreement.
23
189
SECTION 19. Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
SECTION 20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES
THEREOF.
SECTION 21. Consent to Jurisdiction. Each Grantor hereby irrevocably
consents to the personal jurisdiction of the state and federal courts located in
Mecklenburg County, North Carolina, in any action, claim or other proceeding
arising out of or any dispute in connection with this Agreement, any rights or
obligations hereunder, or the performance of such rights and obligations. Each
Grantor hereby irrevocably consents to the service of a summons and complaint
and other process in any action, claim or proceeding brought by the
Administrative Agent or any Lender in connection with this Agreement, any rights
or obligations hereunder, or the performance of such rights and obligations, on
behalf of itself or its property, in the manner provided in Section 14.1 of the
Credit Agreement. Nothing in this Section 21 shall affect the right of the
Administrative Agent or any Lender to serve legal process in any other manner
permitted by Applicable Law or affect the right of the Administrative Agent or
such Lender to bring any action or proceeding against any Grantor or its
properties in the courts of any other jurisdictions.
SECTION 22. Binding Arbitration, Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party, whether made before
or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to this Agreement or any
of the Loan Documents ("Disputes"), between or among the parties thereto shall
be resolved by binding arbitration as provided herein. Institution of a judicial
proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims,
counterclaims, claims brought as class actions, claims arising from Loan
Documents executed in the future, or claims concerning any aspect of the past,
present or future relationships arising out or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association and Title 9 of the U.S. Code. All arbitration hearings
shall be conducted in Charlotte, North Carolina. The expedited procedures set
forth in Rule 51, et seq. of the Arbitration Rules shall be applicable to claims
of less than $1,000,000. All applicable statutes of limitation shall apply to
any Dispute. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding anything foregoing to the contrary, any
arbitration proceeding demanded hereunder shall begin within ninety (90) days
after such demand thereof and shall be concluded within one-hundred and twenty
(120) days after such demand. These time limitations may not be extended unless
a party hereto shows cause for extension and then such extension shall not
exceed a total of sixty (60) days. The panel from which all arbitrators are
selected shall be comprised of licensed attorneys. The single arbitrator
selected for expedited procedure shall be a retired judge from the highest court
of general jurisdiction, state or federal, of the state where the hearing will
be conducted. Notwithstanding the foregoing, this paragraph shall not apply to
any interest rate swap agreement that is a Loan Document.
24
190
(b) Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, THE
ADMINISTRATIVE AGENT, EACH LENDER, AND EACH GRANTOR, HEREBY ACKNOWLEDGE THAT BY
AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING
ARISING OUT OF OR ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR
OBLIGATIONS HEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties hereto and the other Loan Documents
preserve, without diminution, certain remedies that such Person may employ or
exercise freely, either alone, in conjunction with or during a Dispute. Each
such Person shall have and hereby reserves the right to proceed in any court of
proper jurisdiction or by self help to exercise or prosecute the following
remedies: (i) all rights to foreclose against any real or personal property or
other security by exercising a power of sale granted in the Loan Documents or
under applicable law or by judicial foreclosure and sale, (ii) all rights of
self help including peaceful occupation of property and collection of rents, set
off, and peaceful possession of property, (iii) obtaining provisional or
ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and in filing an involuntary bankruptcy
proceeding, and (iv) when applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of an arbitrator to
grant similar remedies that may be requested by a party in a Dispute.
SECTION 23. Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Administrative
Agent and the Lenders in order to carry out the intentions of the parties hereto
as nearly as may be possible; and (b) the invalidity or unenforceability of any
provisions hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
SECTION 24. Heading. The various headings of this Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement or any provisions hereof.
SECTION 25. Counterparts. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
[Signature Page Follows]
25
191
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed under seal by their duly authorized officers, all as of the day and
year first written above.
GRANTORS:
KNOLOGY OF COLUMBUS, INC.
[CORPORATE SEAL]
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
KNOLOGY OF ▇▇▇▇▇▇▇▇▇▇, INC.
[CORPORATE SEAL]
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
KNOLOGY OF PANAMA CITY, INC.
[CORPORATE SEAL]
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
KNOLOGY OF AUGUSTA, INC.
[CORPORATE SEAL]
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
KNOLOGY OF CHARLESTON, INC.
[CORPORATE SEAL]
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
192
KNOLOGY OF SOUTH CAROLINA, INC.
[CORPORATE SEAL]
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
KNOLOGY OF ALABAMA, INC.
[CORPORATE SEAL]
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
KNOLOGY OF FLORIDA, INC.
[CORPORATE SEAL]
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
KNOLOGY OF HUNTSVILLE, INC.
[CORPORATE SEAL]
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
KNOLOGY OF LOUISIANA, Inc.
[CORPORATE SEAL]
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
KNOLOGY OF TENNESSEE, INC.
[CORPORATE SEAL]
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
193
KNOLOGY OF BATON ROUGE, INC.
[CORPORATE SEAL]
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
TTE, INC.
[CORPORATE SEAL]
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
KNOLOGY HOLDINGS, INC.
[CORPORATE SEAL]
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
194
ADMINISTRATIVE AGENT:
FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
195
SCHEDULE I
(to Security Agreement)
Copyrights and Related Rights
196
SCHEDULE II
(to Security Agreement)
Patents, Trademarks and Related Rights
197
EXHIBIT A
(to Security Agreement)
[FORM OF LOCKBOX LETTER]
__________________, ___
[Name and Address of Lockbox Bank)
Re: [GRANTOR]
Ladies and Gentlemen:
We hereby notify you that effective __________, __, we have transferred
exclusive ownership and control of our lock-box account(s) no[s]. ______________
________ (the "Lockbox Account[s]") maintained with you under the terms of the
[Lockbox Agreement] attached hereto as Exhibit A (the "Lockbox Agreement[s]") to
First Union National Bank, as Administrative Agent (the "Administrative Agent").
We hereby irrevocably instruct you to make all payments to be made by
you out of or in connection with the Lockbox Account(s) (i) to the
Administrative Agent for credit to account no. __________ maintained by it at
its office at ____________________________ or (ii) as you may otherwise be
instructed by the Administrative Agent.
We also hereby notify you that the Administrative Agent shall be
irrevocably entitled to exercise any and all rights in respect of or in
connection with the Lockbox Account(s), including, without limitation, the right
to specify when payments are to be made out of or in connection with the Lockbox
Account(s).
All funds deposited into the Lockbox Account(s) will not be subject to
deduction, set-off, banker's lien or any other right in favor of any other
person than the Administrative Agent, except that you may set-off against the
Lockbox Account(s) the face amount of any check deposited in and credited to
such Lockbox Account(s) which is subsequently returned for any reason. Your
compensation for providing the service contemplated herein shall be mutually
agreed between you and us from time to time and we will continue to pay such
compensation.
198
Please confirm your acknowledgment of and agreement to the foregoing
instructions by signing in the space provided below.
Very truly yours,
--------------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Acknowledged and agreed
to as of this ________ day of
_______________, ___.
[LOCKBOX BANK]
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
199
EXHIBIT B
(to Security Agreement)
[FORM OF PERFECTION CERTIFICATE]
Reference is made to that certain Security Agreement dated as of ______
___, 1997, executed by the entities set forth on the signature pages thereto
(collectively, the "Grantors" and each, a "Grantor"), in favor of FIRST UNION
NATIONAL BANK, as Administrative Agent (the "Agent"), for the ratable benefit of
the Administrative Agent and the lenders who are or may become a party to the
Credit Agreement referred to below (collectively, the "Lenders"). Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Credit Agreement dated as of ________ ____, 1998, by and among
KNOLOGY HOLDINGS, INC., a Delaware Corporation, as guarantor (the "Guarantor"),
certain Subsidiaries of the Guarantor, as borrowers and any Additional Borrowers
who may become party thereto (such Subsidiaries and Additional Borrowers being
collectively, the "Borrowers"), the Lenders who are or may become a party
thereto, and FIRST UNION NATIONAL BANK, as Administrative Agent for the Lenders
(as amended, restated, or otherwise modified, the "Credit Agreement").
The Grantors hereby certify to the Administrative Agent and each Lender
as follows:
1. Names, etc.
(a) The exact name of each Grantor as it appears in its Articles or
Certificate of Incorporation is as follows:
(b) Except as set forth in Schedule I attached hereto, no Grantor has
changed its identity or structure in any way within the past five years.
(c) The following is a list of all other names (including trade names
or similar appellations) used by any Grantor or any of their respective
divisions or other business units at any time during the past five years:
(d) The taxpayer identification numbers of the Grantors are as follows:
2. Current Locations.
(a) The chief executive offices of each of the Grantors are located at
the following addresses:
Mailing Address Country State
200
(b) The following are the only locations at which the Grantors maintain
any books or records relating to any Accounts:
Mailing Address Country State
(c) The following are all the locations not identified above where the
Grantors maintain any Inventory or Equipment:
3. Unusual Transactions. Other than as set forth below, all Accounts
have been originated by the Grantors and all Inventory and Equipment have been
acquired by the Grantors in the ordinary course of business.
4. Reliance. The undersigned acknowledges that the Administrative Agent
and the Lenders are entitled to rely and have, in fact, relied on the
information contained herein, and any successor or assign of the Agent or the
Lenders is entitled to rely on the information contained therein.
IN WITNESS WHEREOF, the undersigned have executed this Perfection
Certificate, this ___ day of ______________, 1998.
KNOLOGY of Columbus, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
KNOLOGY of ▇▇▇▇▇▇▇▇▇▇, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
201
KNOLOGY of Panama City, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
KNOLOGY of Augusta, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
KNOLOGY of Charleston, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
KNOLOGY of South Carolina, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
KNOLOGY of Alabama, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
202
KNOLOGY Florida, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
KNOLOGY Huntsville, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
KNOLOGY of Louisiana, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
KNOLOGY of Tennessee, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
KNOLOGY of Baton Rouge, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
203
TTE, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
KNOLOGY Holdings, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
204
EXHIBIT K-1
to
Credit Agreement dated as of December 22, 1998
by and among
KNOLOGY Holdings, Inc.,
as Guarantor,
Certain Subsidiaries of the Guarantor,
as Borrowers,
the Lenders party thereto,
and
First Union National Bank
as Administrative Agent
FORM OF COMMITMENT INCREASE SUPPLEMENT
205
AGGREGATE COMMITMENT INCREASE SUPPLEMENT
THIS AGGREGATE COMMITMENT INCREASE SUPPLEMENT, dated as of the
___________, day of 199 ___ (this "Commitment Increase Supplement"), to the
Credit Agreement referred to below is entered into by and among KNOLOGY
HOLDINGS, INC., a Delaware corporation, on behalf of the Borrowers referred to
below, FIRST UNION NATIONAL BANK, as Administrative Agent (the "Administrative
Agent") and ____________________________ (the "Increasing Lender").
Statement of Purpose
The Borrowers are party to a Credit Agreement dated as of December 22,
1998 (as supplemented hereby and as further amended, supplemented or otherwise
modified, the "Credit Agreement"), by and among KNOLOGY HOLDINGS, INC., as
guarantor (the "Guarantor"), certain Subsidiaries of the Guarantor, as
borrowers and any Additional Borrowers who may become party to this Agreement
(such Subsidiaries and Additional Borrowers being collectively, the
"Borrowers"), the Increasing Lender, the other Lenders who are or may become
party thereto and the Administrative Agent.
Pursuant to Section 2.7 of the Credit Agreement, the Borrowers are
entitled to increase the total amount of the Aggregate Commitment thereunder by
accepting the offer of a Lender to increase its Aggregate Commitment thereunder
(such Lender being the "Increasing Lender"). Pursuant to Section 2.7 of the
Credit Agreement, the Increasing Lender, the Borrowers and the Administrative
Agent hereby agree that the Aggregate Commitment of the Increasing Lender under
the Credit Agreement shall be increased as set forth herein and in connection
therewith shall execute this Commitment Increase Supplement. All capitalized
terms used and not defined herein shall have the meanings given thereto in the
Credit Agreement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
SECTION 1. Aggregate Commitment Increase.
Section 1.1 Aggregate Commitment Increase. Pursuant to Section 2.7 of
the Credit Agreement, the Increasing Lender hereby agrees that its Aggregate
Commitment under the Credit Agreement shall be increased to $______________.
Section 1.2 Commitment Adjustment. If any Loans are outstanding on the
date hereof, the Administrative Agent shall make such transfer of funds as are
necessary in order that the outstanding balance of such Loans reflects the
Commitment Percentages of the Lenders after giving effect to the increase in the
Aggregate Commitment of the Increasing Lender and the corresponding increase in
the Aggregate Commitments pursuant hereto.
206
Section 1.3 Updated Schedule. Attached hereto is an updated Schedule 1
to the Credit Agreement revised to include the increase in the Increasing
Lender's Commitment thereunder and the corresponding increase in the total
amount of the Aggregate Commitments.
SECTION 2. Representations and Warranties of the Borrower.
The Guarantor, on behalf of itself and the Borrowers hereby confirms
that each of the representations and warranties under the Loan Documents is true
and correct in all material respects as of the date hereof unless such
representation or warranty relates to an earlier date, in which such case it was
true and correct as of such earlier date, and that no Default or Event of
Default has occurred or is continuing under the Credit Agreement.
SECTION 3. General Provisions.
Section 3.1 Limited Effect. Except as supplemented hereby, the Credit
Agreement and each other Loan Document shall continue to be, and shall remain,
in full force and effect. This Agreement shall not be deemed (i) to be a waiver
of, or consent to, or a modification or amendment of, any other term or
condition of the Credit Agreement or (ii) to prejudice any right or rights which
the Agents or Lenders may now have or may have in the future under or in
connection with the Credit Agreement or the Loan Documents or any of the
instruments or agreements referred to therein, as the same may be amended or
modified from time to time.
Section 3.2 Costs and Expenses. The Borrowers hereby agree to pay or
reimburse the Administrative Agent for all reasonable and customary
out-of-pocket costs and expenses incurred in connection with the preparation,
negotiation and execution of this Agreement including, without limitation, the
reasonable fees and disbursements of counsel.
Section 3.3 Counterparts. This Agreement may be executed by one or more
of the parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
Section 3.4 Governing Law . THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH
CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES
THEREOF.
[SIGNATURE PAGES FOLLOW]
207
IN WITNESS WHEREOF the undersigned have duly executed this Aggregate
Term Loan Commitment Increase Supplement as of the date first above written.
KNOLOGY HOLDINGS, INC. on behalf of
the Borrowers
[CORPORATE SEAL]
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
[SIGNATURE PAGES CONTINUE]
208
FIRST UNION NATIONAL BANK, as
Administrative Agent
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
[SIGNATURE PAGES CONTINUE]
209
[NEW LENDER]
[CORPORATE SEAL]
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
210
EXHIBIT K-2
to
Credit Agreement dated as of December 22, 1998
by and among
KNOLOGY Holdings, Inc.,
as Guarantor,
Certain Subsidiaries of the Guarantor,
as Borrowers,
the Lenders party thereto,
and
First Union National Bank
as Administrative Agent
FORM OF NEW LENDER SUPPLEMENT
211
NEW LENDER SUPPLEMENT
THIS NEW LENDER SUPPLEMENT dated as of the _____ day of_______, 19
(this "New Lender Supplement" ), to the Credit Agreement referred to below is
entered into by and among KNOLOGY HOLDINGS, INC., a Delaware corporation on
behalf of the Borrowers referred to below, FIRST UNION NATIONAL BANK, as
Administrative Agent (the "Administrative Agent") and ________________ (the "New
Lender).
Statement of Purpose
The Borrowers are party to a Credit Agreement dated as of December 22,
1998 (as supplemented hereby and as further amended, supplemented or otherwise
modified, the "Credit Agreement"), by and among KNOLOGY HOLDINGS, INC., as
guarantor (the "Guarantor"), certain Subsidiaries of the Guarantor, as
borrowers and any Additional Borrowers who may become party to this Agreement
(such Subsidiaries and Additional Borrowers being collectively, the "Borrower"),
the Lenders who are or may become party thereto and the Administrative Agent.
Pursuant to Section 2.7 of the Credit Agreement, the Borrowers are
entitled to increase the total amount of the Aggregate Commitment thereunder by
accepting the offer of any Person (other than a Lender) constituting an Eligible
Assignee to become a new Lender thereunder. Pursuant to Section 2.7 of the
Credit Agreement, the New Lender, the Borrowers and the Administrative Agent
hereby agree that the New Lender shall be a Lender under the Credit Agreement
and in connection therewith execute this New Lender Supplement. All capitalized
terms used and not defined herein shall have the meanings given thereto in the
Credit Agreement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
SECTION 1. Joinder of New Lender.
Section 1.1 Joinder. Pursuant to Section 2.7 of the Credit Agreement,
the New Lender hereby agrees that it is a Lender under the Credit Agreement as
if a signatory thereto on the Closing Date, and the New Lender shall comply
with and be subject to and have the benefit of all of the terms, conditions,
covenants, agreements and obligations set forth therein. The New Lender hereby
agrees that each reference to a "Lender" or the "Lenders" in the Credit
Agreement shall include the New Lender. The New Lender acknowledges that it has
received a copy of the Credit Agreement and that it has read and understands the
terms thereof.
Section 1.2 Commitment Adjustment. If any Loans are outstanding on the
date hereof, the Administrative Agent shall make such transfers of funds as are
necessary in order that the outstanding balance of such Loans reflects the
Commitment Percentages of the Lenders after giving effect to the joinder of the
New Lender pursuant to this New Lender Supplement and any increase in the
Aggregate Commitments pursuant hereto.
212
Section 1.3 Updated Schedule. Attached hereto is an updated Schedule I
to the Credit Agreement revised to include the joinder of the New Lender as a
Lender and its Commitment thereunder and the corresponding increase in the total
amount of the Aggregate Commitments.
SECTION 2. Representations and Warranties.
Section 2.1 The Guarantor hereby confirms on behalf of itself and the
Borrowers that each representation and warranty under the Loan Documents is true
and correct in all material respects as of the date hereof unless such
representation or warranty relates to an earlier date, in which case it was true
and correct as of such earlier date and that no Default or Event of Default has
occurred or is continuing under the Credit Agreement.
Section 2.2 Representations and Warranties of the New Lender. The New
Lender hereby represents and warrants that it is an Eligible Assignee, and it
has complied with the provisions of Section 4.11(e) if applicable thereto.
SECTION 3. General Provisions.
Section 3.1 Limited Effect. Except as supplemented hereby, the Credit
Agreement and each other Loan Document shall continue to be, and shall remain,
in full force and effect. This Agreement shall not be deemed (i) to be a waiver
of, or consent to, or a modification or amendment of, any other term or
condition of the Credit Agreement or (ii) to prejudice any right or rights which
the Agents or Lenders may now have or may have in the future under or in
connection with the Credit Agreement or the Loan Documents or any of the
instruments or agreements referred to therein, as the same may be amended or
modified from time to time.
Section 3.2 Costs and Expenses . The Borrowers hereby agree to pay or
reimburse the Administrative Agent for all reasonable and customary
out-of-pocket costs and expenses incurred in connection with the preparation,
negotiation and execution of this Agreement including, without limitation, the
reasonable fees and disbursements of counsel.
Section 3.3 Counterparts. This Agreement may be executed by one or more
of the parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
Section 3.4 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH
CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES
THEREOF.
[SIGNATURE PAGES FOLLOW]
2
213
IN WITNESS WHEREOF the undersigned have duly executed this Aggregate
Term Loan Commitment Increase Supplement as of the date first above written.
KNOLOGY HOLDINGS, INC. on behalf
of the Borrowers
[CORPORATE SEAL]
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
[SIGNATURE PAGES CONTINUE]
214
FIRST UNION NATIONAL BANK, as
Administrative Agent
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
[SIGNATURE PAGES CONTINUE]
215
[NEW LENDER]
[CORPORATE SEAL]
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
216
SCHEDULE 1.1(a): LENDERS AND COMMITMENTS
COMMITMENT
LENDER PERCENTAGE COMMITMENT
------ ---------- ----------
First Union National Bank 100% $50,000,000
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication Agency Services
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇)▇▇▇-▇▇▇▇
217
SCHEDULE 1.1(b)
DESIGNATED BORROWERS
None.
218
SCHEDULE 2.5(b)
AFFILIATED PARTIES
ITC Holding Company, Inc. Affiliates
KNOLOGY Holdings, Inc. Affiliates
AT&T Ventures
Century Telephone Enterprises, Inc.
Globe Telecommunications, Inc.
HeadHunter, Inc.
ITC Deltacom, Inc.
ITC Globe, Inc.
ITC Service Company
InterCall, Inc.
Interstate Telephone Company
▇. ▇▇▇▇▇ ▇▇▇▇▇▇ & Co.
MindSpring
Powertel, Inc.
SCANA Communications, Inc. and Affiliates
South Atlantic Ventures
Valley Telephone Company
219
SCHEDULE 5.2(d)
(Schedule of Required Consents to the Granting of Security Interest)
REGULATORY MATTERS
------------------
1. SOUTH CAROLINA
A. CATV Franchises
---------------------------------------------------------------------------------------------------
Consent to Date by which
Franchising Security Interest Consent to Consent is
Authority Franchise Holder Required Security Obtained Required
---------------------------------------------------------------------------------------------------
Charleston KNOLOGY of N N/A N/A
Charleston
--------------------------------------------------------------------------------------------------
North Charleston KNOLOGY of N (Controlling N/A N/A
Charleston Regulations are
silent)(1)
--------------------------------------------------------------------------------------------------
Charleston County KNOLOGY of N N/A N/A
(pending - Charleston
anticipated
12/15/98)
--------------------------------------------------------------------------------------------------
Hanahan KNOLOGY of N (Document N/A N/A
Charleston silent on
assignment)(1)
--------------------------------------------------------------------------------------------------
Summerville KNOLOGY of N (Document N/A N/A
Charleston silent on
assignment)(1)
--------------------------------------------------------------------------------------------------
Lincolnville KNOLOGY of N (Document N/A N/A
Charleston silent on
assignment)(1)
--------------------------------------------------------------------------------------------------
Goose Creek KNOLOGY of N N/A N/A
Charleston
--------------------------------------------------------------------------------------------------
Dorchester KNOLOGY of N (Document N/A N/A
Charleston silent on
assignment)(1)
--------------------------------------------------------------------------------------------------
Berkley County KNOLOGY of N (Document N/A N/A
Charleston silent on
assignment)(1)
--------------------------------------------------------------------------------------------------
------------
(1) Local counsel to confirm that lack of assignment provisions permits granting
of security interest.
220
B. PUC Authorizations
----------------------------------------------------------------------------------------------------------
Consent to Consent to Date by which
Security Interest Security Interest Consent is
Certificate Purpose Certificate Holder Required Obtained Required
----------------------------------------------------------------------------------------------------------
Local Exchange Held by Y N Borrowers to use
KNOLOGY of Best Efforts to
South Carolina for Obtain Consent
the Benefit of TTE After Closing Date
----------------------------------------------------------------------------------------------------------
Inter-exchange Held by Y N Borrowers to use
KNOLOGY of Best Efforts to
South Carolina for Obtain Consent
the Benefit of TTE After Closing Date
----------------------------------------------------------------------------------------------------------
221
11. ▇▇▇▇▇▇▇
▇. CATV Franchises
-------------------------------------------------------------------------------------------------------------
Consent to Consent to Date by which
Franchising Security Interest Security Interest Consent is
Authority Franchise Holder Required Obtained Required
-------------------------------------------------------------------------------------------------------------
Augusta/ KNOLOGY of N N/A N/A
Richmond County Augusta
-------------------------------------------------------------------------------------------------------------
Town of ▇▇▇▇ City KNOLOGY of Y Waived-- N/A
Columbus Borrower used
(▇▇▇▇▇▇▇▇ in name best efforts to
American Cable, obtain consent, but
Inc. due to request was
Municipality's denied.
refusal to assign.)
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ County KNOLOGY of Y Waived-- N/A
Columbus Borrower used
(▇▇▇▇▇▇▇▇ in name best efforts to
American Cable, obtain consent, but
nc. due to request was
Municipality's denied.
refusal to assign.)
-------------------------------------------------------------------------------------------------------------
Columbia County KNOLOGY of N N/A N/A
Augusta
-------------------------------------------------------------------------------------------------------------
Columbus KNOLOGY of Consent contained N Borrowers to use
(Renewal) Columbus in Renewal Best Efforts to
Application Obtain Renewal
After Closing Date
-------------------------------------------------------------------------------------------------------------
222
III. FLORIDA
A. CATV Franchises
---------------------------------------------------------------------------------------------------
Consent to Consent to Date by which
Franchising Security Interest Security Interest Consent is
Authority Franchise Holder Required Obtained Required
---------------------------------------------------------------------------------------------------
Panama City KNOLOGY of Y Y 1/23/98 N/A
Beach Panama City
---------------------------------------------------------------------------------------------------
Panama City KNOLOGY of N N/A N/A
Panama City
---------------------------------------------------------------------------------------------------
Bay County KNOLOGY of N Y 1/23/98 N/A
Panama City
---------------------------------------------------------------------------------------------------
▇▇▇▇ Haven KNOLOGY of N N/A N/A
Panama City
---------------------------------------------------------------------------------------------------
Cedar Grove KNOLOGY of N N/A N/A
Panama City
---------------------------------------------------------------------------------------------------
B. PUC Authorizations
-------------------------------------------------------------------------------------------------------------
Consent to Consent to Date by which
Security Interest Security Interest Consent is
Certificate Purpose Certificate Holder Required Obtained Required
-------------------------------------------------------------------------------------------------------------
Local Exchange KNOLOGY of Y N Borrowers to use
Florida Best Efforts to
Obtain Consent
After Closing Date
-------------------------------------------------------------------------------------------------------------
Inter-exchange KNOLOGY of Y N Borrowers to use
Florida Best Efforts to
Obtain Consent
After Closing Date
-------------------------------------------------------------------------------------------------------------
223
IV. ALABAMA
A. CATV Franchises
-------------------------------------------------------------------------------------------------------------
Consent to Consent to Date by which
Franchising Security Interest Security Interest Consent is
Authority Franchise Holder Required Obtained Required
-------------------------------------------------------------------------------------------------------------
Montgomery KNOLOGY of N N/A N/A
▇▇▇▇▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
Prattville KNOLOGY of N N/A N/A
Montgomery
-------------------------------------------------------------------------------------------------------------
Autauga County KNOLOGY of N N/A N/A
Montgomery
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ AFB KNOLOGY of N N/A N/A
Montgomery
-------------------------------------------------------------------------------------------------------------
Huntsville KNOLOGY of N N/A N/A
Huntsville
-------------------------------------------------------------------------------------------------------------
Madison KNOLOGY of Y N Borrowers to use
Huntsville Best Efforts to
Obtain Consent
After Closing Date
-------------------------------------------------------------------------------------------------------------
Madison County KNOLOGY of Y N Borrowers to use
Huntsville Best Efforts to
Obtain Consent
After Closing Date
-------------------------------------------------------------------------------------------------------------
Limestone County KNOLOGY of N (Document is N/A N/A
Huntsville silent on
assignment)1
-------------------------------------------------------------------------------------------------------------
Redstone Arsenal KNOLOGY of Franchise not N/A N/A
Huntsville presently
documented or
required to be
documented
-------------------------------------------------------------------------------------------------------------
B. PUC Authorizations
-------------------------------------------------------------------------------------------------------------
Consent to Consent to Date by which
Security Interest Security Interest Consent is
Certificate Purpose Certificate Holder Required Obtained Required
-------------------------------------------------------------------------------------------------------------
Local Exchange KNOLOGY of Y N Borrowers to use
Montgomery Best Efforts to
Obtain Consent
After Closing Date
-------------------------------------------------------------------------------------------------------------
Inter-exchange KNOLOGY of Y N Borrowers to use
Montgomery Best Efforts to
Obtain Consent
After Closing Date
-------------------------------------------------------------------------------------------------------------
224
HEADEND AND OTHER MATERIAL LEASES
(KCLH in the process of reviewing)
---------------------------------------------------------------------------------------------------------
Date by which
Landlord Waiver Landlord Waiver
Collateral and Estoppel and Estoppel
CATV System or Assignment Agreement Agreement is
Headend Site Lease Property Delivered Obtained Required
---------------------------------------------------------------------------------------------------------
Panama City Panama City Y Y, 12/18/98 Closing Date
Montgomery ▇▇▇▇▇▇▇▇▇▇ Y Y, 12/21/98 Borrowers to use
Form Provided by Best Efforts to
Landlord Obtain Form
Consent Prepared
by Lender After
Closing Date
---------------------------------------------------------------------------------------------------------
Columbus (Lot 96, Columbus Y, 12/22/98 Y, 12/23/98 Borrowers to use
Coweta Reserve, Best Efforts to
Muscogee County) Obtain Form
Consent Prepared
by Lender After
Closing Date
---------------------------------------------------------------------------------------------------------
West Point (lease Network Y Y, 12/21/98 Closing Date
with Interstate Operations Center
FiberNet dated as
of 8/23/97)
---------------------------------------------------------------------------------------------------------
Georgia Power POP Site N N Borrowers to use
Lease Agreement Best Efforts to
10/5/98 Obtain Consent
After Closing
Date.
---------------------------------------------------------------------------------------------------------
225
OTHER MATERIAL CONTRACTS
------------------------
---------------------------------------------------------------------------------------------------
Consent to
Assignment or
Security Interest Date by which
Material Contract Required Consent Obtained Consent is Required
---------------------------------------------------------------------------------------------------
MEAG Fiber Capacity Y Y 1/23/98 N/A
Lease
---------------------------------------------------------------------------------------------------
ITC Deltacom Fiber Y Y 1/23/98 and N/A
Capacity Lease Blanket Consent
Dated 12/16/98
---------------------------------------------------------------------------------------------------
ITC Deltacom Y Y 1/23/98 and Closing Date
Telecomm. Agreement Blanket Consent
Dated 12/16/98
---------------------------------------------------------------------------------------------------
First Amendment to Y Y 1/23/98 N/A
Service Agreement
Above dated 7/7/97
---------------------------------------------------------------------------------------------------
ITC Deltacom Internet Y Y 1/23/98 and N/A
Access (Vipernet) Blanket Consent
Contract (9/1/98) Dated 12/16/98
---------------------------------------------------------------------------------------------------
Interstate FiberNet Y Y 1/23/98 and N/A
Collocation Agreement Blanket Consent
dated 7/1/97 Dated 12/16/98
---------------------------------------------------------------------------------------------------
Interstate FiberNet N Blanket Consent N/A
Collocation Agreement Dated 12/16/98
dated 10/5/98
---------------------------------------------------------------------------------------------------
Palmetto Net Fiber N/A N/A N/A
Capacity Lease
(This is an oral contract.
Knology will attempt to
get a consent.)
---------------------------------------------------------------------------------------------------
BTI Fiber Capacity Y Y 12/16/98 Closing Date
Lease
---------------------------------------------------------------------------------------------------
BTI Operator Services Y Y 12/16/98 Closing Date
Agreement
---------------------------------------------------------------------------------------------------
BTI Toll Agreement Y Y 12/16/98 Closing Date
---------------------------------------------------------------------------------------------------
SCNet Toll Agreement N (Document silent N/A N/A
on assignment)1
---------------------------------------------------------------------------------------------------
Switching Agreement Y Y 12/16/98 Closing Date
with Interstate/Valley
Telephone dated 5/l/98
---------------------------------------------------------------------------------------------------
Interstate Telephone N (Document silent Y 1/23/98 N/A
Company Billing on assignment)1
Company Billing and
Collection Contract
(4/2/97)
---------------------------------------------------------------------------------------------------
Operations & Related Y Y 1/23/98 N/A
Services Agreement with
Eastern Telecom, Inc.
d/b/a Interquest dated as
of 4/14/97
---------------------------------------------------------------------------------------------------
BellSouth Y Waived N/A
Interconnection
---------------------------------------------------------------------------------------------------
226
-----------------------------------------------------------------------------
Agreement
-----------------------------------------------------------------------------
7/14/96 Interconnection Y Waived N/A
Agreement with
Illuminet
-----------------------------------------------------------------------------
Network access N N/A N/A
agreement dated as of
July 1, 1998 between
SCANA and
KNOLOGY Holdings
-----------------------------------------------------------------------------
RAILROAD CROSSING LICENSES
--------------------------
-----------------------------------------------------------------------------------------------
Landlord
▇▇▇▇▇ and Date by which
Collateral Estoppel Landlord Waver and
Assignment Agreement Estoppel Agreement is
Licenses Delivered Obtained Required
-----------------------------------------------------------------------------------------------
Agreement between Borrower to Deliver N Borrowers to use Best
Central of Georgia after Closing Date if Efforts to Obtain
Railroad Company Landlord Waiver Consent After Closing
(Norfolk Southern) and Obtained Date.
American Cable
Company for wireline
crossings at 3181' NE of
MP R-4 and 1417' NE of
MP R-4 dated / /90
-----------------------------------------------------------------------------------------------
Agreement between Borrower to Deliver N Borrowers to use Best
Central of Georgia after Closing Date if Efforts to Obtain
Railroad Company Landlord Waiver Consent After Closing
(Norfolk Southern) and Obtained Date.
American Cable
Company for wireline
crossing at 1630' NE of
MP R-4 dated / -/90
-----------------------------------------------------------------------------------------------
Agreement between Borrower to Deliver N Borrowers to use Best
Central of Georgia after Closing Date if Efforts to Obtain
Railroad Company Landlord Waiver Consent After Closing
(Norfolk Southern) and Obtained Date.
American Cable
Company for wireline
crossing at MP M-285
plus 800' dated 10/15/92
-----------------------------------------------------------------------------------------------
Railroad Crossing Borrower to Deliver N Borrowers to use Best
Agreement at MP 340-A after Closing Date if Efforts to Obtain
plus 1,236 feet (listed in Landlord Waiver Consent After Closing
No. 7 on Schedule 3.14) Obtained Date.
between Norfolk
Southern Railway Co.
and Cable Alabama
dated 5/1/97
-----------------------------------------------------------------------------------------------
License to construct and Borrower to Deliver N Borrowers to use Best
maintain communication after Closing Date if Efforts to Obtain
-----------------------------------------------------------------------------------------------
227
---------------------------------------------------------------------------------------------------
cable crossing property Landlord Waiver Consent After Closing
at 179' W of MP 347-A Obtained Date.
and at 1,865' E of MP
▇▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇. (▇▇▇▇▇▇▇▇)
and Satellite Cable TV
Corp. (licensee) dated
1/29/79
---------------------------------------------------------------------------------------------------
License to construct and Borrower to Deliver N Borrowers to use Best
maintain CATV wires after Closing Date if Efforts to Obtain
over property at Milepost Landlord Waiver Consent After Closing
340-A plus 1236 feet at Obtained Date.
or near Huntsville,
Madison County, AL
between Norfolk
Southern Railway Co.
(licensor) and Cable
Alabama Corp. (licensee)
dated 5/l/97
---------------------------------------------------------------------------------------------------
License to install & Borrower to Deliver N Borrowers to use Best
maintain CATV wires after Closing Date if Efforts to Obtain
over property at 179' W Landlord Waiver Consent After Closing
of MP 347-A and 1,864' Obtained Date.
E of MP 349-A between
Norfolk Southern
Railway Co. (licensor)
and Cable Alabama
Corp. (licensee) dated
3/17/94
---------------------------------------------------------------------------------------------------
License to install & Borrower to Deliver N Borrowers to use Best
maintain CATV wires after Closing Date if Efforts to Obtain
over property at 940' W Landlord Waiver Consent After Closing
of MP 344-A between Obtained Date.
Norfolk Southern
Railway Co. (licensor)
and Cable Alabama
Corp. (licensee) dated
2/3/94
---------------------------------------------------------------------------------------------------
License to construct & Borrower to Deliver N Borrowers to use Best
maintain aerial television after Closing Date if Efforts to Obtain
cable over property at Landlord Waiver Consent After Closing
280' W of MP 346-A Obtained Date.
between Norfolk
Southern Railway Co.
(licensor) and Cable
Alabama (licensee) dated
4/30/87
---------------------------------------------------------------------------------------------------
Wireline Crossing Borrower to Deliver N Borrowers to use Best
Agreement dated as of after Closing Date if Efforts to Obtain
April 29,1998 with CSX Landlord Waiver Consent After Closing
Obtained Date.
---------------------------------------------------------------------------------------------------
228
SCHEDULE 6.1(a)
JURISDICTIONS OF ORGANIZATION AND QUALIFICATION
TO DO BUSINESS AS FOREIGN CORPORATION
Jurisdiction Jurisdiction
Guarantor of Organization of Qualification
--------- --------------- ----------------
KNOLOGY Holdings, Inc. Delaware Alabama
Georgia
South Carolina
Subsidiaries
------------
KNOLOGY of Alabama, Inc. Delaware Alabama
KNOLOGY of Augusta, Inc. Delaware Georgia
KNOLOGY of Baton Rouge, Inc. Delaware N/A
KNOLOGY of Charleston, Inc. Delaware South Carolina
KNOLOGY of Columbus, Inc. Delaware Georgia
KNOLOGY of Florida, Inc. Delaware Florida
KNOLOGY of Georgia, Inc. Delaware Georgia
KNOLOGY of Huntsville, Inc. Delaware Alabama
KNOLOGY of Louisiana, Inc. Delaware Louisiana
KNOLOGY of Montgomery, Inc. Alabama N/A
KNOLOGY of Panama City, Inc. Florida N/A
KNOLOGY of South Carolina, Inc. Delaware North Carolina
South Carolina
KNOLOGY of Tennessee, Inc. Delaware Tennessee
TTE, Inc. South Carolina N/A
229
SCHEDULE 6.1(b)
SUBSIDIARIES AND CAPITALIZATION
Guarantor Shares of Stock Shares of Stock Issued
--------- Authorized and Outstanding
--------------- ----------------------
KNOLOGY Holdings, Inc. 16,000,000 common stock; 49,852 preferred stock;
100,000 preferred stock 444,100 warrants to
purchase 1,658 preferred
stock; SCANA warrants
to purchase 753 preferred
stock; options to
purchase 569,250 common
stock
SUBSIDIARY Shares of Authorized Shares Issued
---------- -------------------- and Outstanding
---------------
KNOLOGY of Alabama, Inc. (1) 1,000 (Common Stock) 1,000 (Common Stock)
KNOLOGY of Augusta, Inc. (1) 1,000 (Common Stock) 1,000 (Common Stock)
KNOLOGY of Baton Rouge, Inc. (1) 1,000 (Common Stock) 1,000 (Common Stock)
KNOLOGY of Charleston, Inc. (1) 1,000 (Common Stock) 1,000 (Common Stock)
KNOLOGY of Columbus, Inc. (1) 1,000 (Common Stock) 1,000 (Common Stock)
KNOLOGY of Florida, Inc. (1) 1,000 (Common Stock) 1,000 (Common Stock)
KNOLOGY of Georgia, Inc. (1) 1,000 (Common Stock) 1,000 (Common Stock)
KNOLOGY of Huntsville, Inc. (1) 1,000 (Common Stock) 1,000 (Common Stock)
KNOLOGY of Louisiana, Inc. (1) 1,000 (Common Stock) 1,000 (Common Stock)
KNOLOGY of Montgomery, Inc. (1) 200,000 (Common Stock) 1,000 (Common Stock)
1,000 (Preferred Stock) 197 (Preferred Stock)
KNOLOGY of Panama City, Inc. (1) 1,000 (Common Stock) 1,000 (Common Stock)
KNOLOGY of South Carolina, Inc. (1) 1,000 (Common Stock) 1,000 (Common Stock)
KNOLOGY of Tennessee, Inc. (1) 1,000 (Common Stock) 1,000 (Common Stock)
TTE, Inc. (2) 1,000 (Common Stock) 837.4 (Common Stock)
-------------------
(1) Wholly-owned by KNOLOGY Holdings, Inc.
(2) Wholly-owned by KNOLOGY of South Carolina, Inc.
230
SCHEDULE 6.1(e)
COMPLIANCE WITH LAWS; GOVERNMENTAL APPROVALS
The CATV Franchise in Columbus, Georgia is operating under an extension.
KNOLOGY of Huntsville, Inc.
WNHN243 currently is operating under Special Temporary Authorization until
4/30/99.
231
SCHEDULE 6.1(h)
ENVIRONMENTAL
(1) KNOLOGY of Charleston, Inc.
Report of Final Geotechnical Exploration
for
KNOLOGY Office Building & Communications Complex
North Charleston, South Carolina
S&ME JOB NO. ▇▇▇▇-▇▇-▇▇▇
Prepared By: S&ME, Inc.
July 7, 1998
(2) KNOLOGY of Augusta, Inc.
Report of Phase I Environmental Site Assessment
Proposed KNOLOGY Office Building Site
Augusta, Georgia
Prepared By: ▇▇▇▇▇▇ Engineering Services, Inc.
March 2, 1998
(3) KNOLOGY of Huntsville, Inc,
Report of Phase I & II Environmental Site Assessment
CABLE ALABAMA ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Prepared By: Law Engineering And Environmental Services, Inc.
October 21, 1998 & November 24, 1998
(4) KNOLOGY of Huntsville, Inc.
Report of Phase I Environmental Site Assessment
CABLE ALABAMA ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Prepared By: Law Engineering And Environmental Services, Inc.
October 21, 1998
232
SCHEDULE 6.1(i)
SUMMARY OF ERISA PLANS
Plan Location Plan Year
---- -------- ---------
Medical/Dental All locations except Montgomery February 1
Medical/Dental ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 1
Dental ▇▇▇▇▇▇▇▇▇▇ March 1
401(k) All locations January 1
Flexible Spending All locations January 1
Plan Eligibility Third Party Provider
---- ----------- --------------------
Medical/Dental Full-time/1st of month after 30 days Mid-South Insurance Company
Medical/Dental Full-time/1st of month after 30 days United Healthcare-Insurance Company
Dental Full-time/1st of month after 30 days Guardian Insurance Company
401(k) Full-time/part-time/3 months Benefit Elect
Flexible Spending Full-time/part-time/1st of month after 30 days Benefit Elect
233
SCHEDULE 6.1(1)
MATERIAL CONTRACTS - PART I
1. Placement Agreement dated October 16, 1997 between KNOLOGY Holdings,
Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, for itself and the other
Placement Agents.
2. Agreement and Plan of Merger dated December 5, 1997 among KNOLOGY
Holdings, Inc., KNOLOGY of Panama City, Inc., Beach Cable, Inc. and L.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
3. Indenture dated as of October 22, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New York, as Trustee, relating to
the 11 7/8% Senior Discount Notes Due 2007 of KNOLOGY Holdings, Inc.
4. Registration Rights Agreement dated October 22, 1997 between KNOLOGY
Holdings, Inc., the Placement Agents and SCANA Communications, Inc.
5. Unit Purchase Agreement dated as of October 16, 1997 between KNOLOGY
Holdings, Inc. and SCANA Communications, Inc.
6. Warrant Agreement dated as of October 22, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New York.
7. Warrant Registration Rights Agreement dated as of October 22, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New
York.
8. Sub-Lease Indenture dated November 1, 1995 between ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ &
Co. Financial Services, Inc. and ITC Holding Company, Inc.
9. Lease Agreement dated April 15, 1996 between ▇.▇. ▇▇▇▇▇▇ and American
Cable Company, Inc.
10. Lease Agreement dated April 19, 1996 between B.E. ▇▇▇▇▇▇▇▇▇▇▇ and
American Cable Company, Inc.
11. Pole Attachment Agreement dated January 1, 1998 between Gulf Power
Company and Beach Cable, Inc.
12. Lease Agreement dated August 19, 1996 between ▇▇▇▇▇▇/▇▇▇▇▇▇, L.L.C. and
▇▇▇▇▇▇▇▇▇▇ Cablevision and Entertainment, Inc.
13. Lease Agreement dated August 20, 1996 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇▇ Cablevision and Entertainment, Inc.
14. Lease Agreement dated November 7, 1996 between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
American Cable Company, Inc.
15. Site Agreement dated November 19, 1996 between ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇▇ Cablevision and Entertainment, Inc.
16. Office Lease Agreement dated February 15, 1997 between ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ and Cybernet Holdings, Inc.
1
234
17. Lease Agreement dated April 2, 1997 between Interstate Telephone
Company and Cybernet Holding, Inc.
18. Lease Agreement dated May 15, 1997 between Southern Boulevard
Corporation and Cybernet Holding d/b/a Montgomery Cablevision and
Entertainment, Inc.
19. Lease Agreement dated August 23, 1997 between Interstate FiberNet,
Inc. and KNOLOGY Holdings, Inc.
20. Telecommunications Facility Lease and Capacity Agreement, dated
September 10, 1996, between ▇▇▇▇▇ EMC Communications, Inc. and Cybernet
Holding, Inc.
21. Master Pole Attachment Agreement dated January 12, 1998 between South
Carolina Electric and Gas and KNOLOGY Holdings, Inc. d/b/a/ KNOLOGY of
Charleston.
22. Pole Attachment Agreement dated May 21, 1990 between the Georgia Power
Company and American Cable Company.
23. License Agreement for Pole Attachments dated June 19, 1990 between
South Central ▇▇▇▇ Telephone Company and ▇▇▇▇▇▇▇▇▇▇ Cablevision and
Entertainment, Inc.
24. Agreement for Attachments of Cables, Amplifiers, and Associated
Equipment for the Provision of Cable Television Service dated March 1,
1993 between Alabama Power Company and ▇▇▇▇▇▇▇▇▇▇ Cablevision and
Entertainment, Inc.
25. License Agreement for Pole Attachments and/or Conduit Occupancy dated
July 28, 1993 between BellSouth Telecommunications, Inc. d/b/a Southern
▇▇▇▇ Telephone and Telegraph Company and American Cable Company.
26. License Agreement dated September 29, 1995 between ▇▇▇▇▇▇▇▇▇▇
Cablevision and Entertainment, Inc. and American Communications
Services of Montgomery, Inc.
27. License Agreement dated January 17, 1996 between American Cable, Inc.
and American Communication Services of Columbus, Inc.
28. Addendum to License Agreement dated April 21, 1997 between American
Cable, Inc. and American Communication Services of Columbus, Inc.
29. Lease Agreement, dated December 5, 1997 between The Hilton Company and
KNOLOGY of Panama City, Inc.
30. Billing and Collection Services Agreement dated April 2, 1997 between
Interstate Telephone Company and Cybernet Holding, Inc.
31. Operator and Related Services Agreement dated April 14, 1997 between
Eastern Telecom Inc. d/b/a Inter Quest and Cybernet Holding, Inc.
32. Agreement for Telecommunication Services dated May 1, 1997 between
Cybernet Holding, Inc. and DeltaCom, Inc.
33. First Addendum to Service Agreement dated July 7,1997 between KNOLOGY
Holdings, Inc. and DeltaCom, Inc.
2
235
34. Interconnection Agreement among BellSouth Communications, Inc.,
Cybernet Holding, Inc., American Cable, Inc. and ▇▇▇▇▇▇▇▇▇▇ Cablevision
& Entertainment, Inc., dated April 15, 1997.
35. Amendment To Interconnection Agreement among BellSouth
Telecommunications, Inc., Cybernet Holding, Inc., American Cable, Inc.
and ▇▇▇▇▇▇▇▇▇▇ Cablevision & Entertainment, dated May 1, 1997.
36. Second Amendment To Interconnection Agreement among BellSouth
Telecommunications, Inc., Cybernet Holding, Inc., American Cable, Inc.
and Montgomery Cablevision & Entertainment, dated July 7, 1997.
37. Commitment Letter from First Union National Bank to KNOLOGY Holdings,
Inc., dated October 16, 1998.
38. Certificate of Membership with National Cable Television Cooperative
dated January 29, 1996 of Cybernet Holding, Inc.
39. Stockholders' Agreement among KNOLOGY Holdings, Inc. and certain
stockholders thereof dated as of December 8, 1995 as amended by
Amendment No. 1 to Stockholders' Agreement dated as of January 25, 1996
and Amendment No. 2 to Stockholders' Agreement dated as of April 18,
1996.
40. Amended and Restated Agreement Among Shareholders among KNOLOGY
Holdings, Inc. and certain shareholders thereof dated as of July 28,
1997.
41. Ordinance (▇▇▇▇▇▇ County, Georgia) dated April 6, 1982.
42. Ordinance (▇▇▇▇▇▇ County, Georgia) to Amend Cable Franchise Ordinance
of April 6, 1982, dated November 5, 1996.
43. Ordinance (▇▇▇▇ City, Georgia) dated October 5, 1990.
44. Ordinance No. 88-53 (Columbus, Georgia) dated May 17, 1988.
45. Ordinance ▇▇. ▇▇-▇ (▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇) dated January 10, 1989.
46. Ordinance No. 16-90 (Montgomery, Alabama) dated March 6, 1990.
47. Ordinance No. 50-76 (Montgomery, Alabama).
48. Ordinance No. 9-90 (Montgomery, Alabama) dated January 16, 1990.
49. Resolution ▇▇. ▇▇-▇▇ (▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇) dated April 6, 1995.
50. Resolution ▇▇. ▇▇-▇ (▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇) dated July 23, 1992.
51. License (Bay County, Florida) dated January 5, 1993.
52. Resolution ▇▇. ▇▇-▇▇ (▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇) dated December 3,
1997.
53. Resolution No. 2075 (Bay County, Florida) dated November 18, 1997.
54. Collocation Agreement between Interstate FiberNet and Cybernet Holding,
Inc., dated July 1, 1997.
3
236
55. License Agreement for Pole Attachments and/or Conduit Occupancy in
Florida dated September l5, 1993 between BellSouth Telecommunications,
Inc. d/b/a Southern ▇▇▇▇ Telephone and Telegraph and Beach Cable, Inc.
56. Ordinance No. 5999 (Augusta, Georgia) dated January 20, 1998.
57. Ordinance No. 1723 (Panama City, Florida) dated March 10, 1998.
58. Lease dated March 1, 1989 (DACA 01-1-90-264) between the Department of
the Army and Cable Alabama Corporation (Satellite Cable TV
Corporation). Supplemental Agreement No. 1 to Lease No. DACA
01-l-90-264 dated January 8, 1997.
59. Ground and Tower Sublease between Satellite Cable TV Corporation (d/b/a
Cable Alabama) and ▇▇▇▇▇▇▇ Cellular Telecommunications Huntsville, Inc.
dated February 2, 1994.
60. Ground and Tower Sublease between Cable Alabama Corporation and the
City of Huntsville dated February 2, 1995.
61. Contract between Huntsville Utilities and Cable Alabama Corporation
dated August 15, 1977.
62. License Agreement for Pole Attachments dated December 23, 1977 between
South Central ▇▇▇▇ Telephone Company and Satellite Systems Corp.
/Redstone Cable TV Co.
63. Agreement for Attachments of Cables, Amplifiers and Associated
Equipment for the Distribution of Television Signals dated May 22, 1990
between the Electric Department of the City of Athens Utilities and
Cable Alabama Corporation.
64. Agreement between Cable Alabama Corporation and ▇▇▇▇▇ Broadcasting
Corporation dated July 26, 1996.
65. Letter notification dated August 15, 1996 from WAAY-TV, Channel 31,
electing retransmission consent.
66. Letter notification Dated September 6, 1996 from WAFF-TV. Channel 48,
electing retransmission consent.
67. Retransmission Consent Agreement as of September 21, 1993 between AFLAC
Broadcast Partners and Cable Alabama Corporation.
68. Notice of Designation of Principal Headend of Cable Alabama Corporation
to Alabama Educational Television Commission and WHIQ-TV dated April
28, 1993.
69. Retransmission Consent Agreement dated August 9, 1993 between the New
York Times Broadcasting Service, Inc. and Cable Alabama Corporation.
Letter of Agreement dated July 29, 1996 extending the terms of the
Retransmission Consent Agreement.
70. Service Contract between Huntsville Radio Service, Incorporated and the
Cable Alabama Corporation dated August 1, 1988.
71. Channel Service Agreement dated October 7, 1994 between the Cable
Alabama Corporation and Teledyne ▇▇▇▇▇ Engineering.
4
237
72. License Agreement between Southern Railway Company and Satellite Cable
TV Corp. effective as of January 29, 1979.
73. License Agreement between Southern Railway Company and Cable Alabama
Corporation effective as of April 10, 1987.
74. License Agreement between Norfolk Southern Railway Company and Cable
Alabama Corporation dated as of February 3, 1994.
75. License Agreement and between Norfolk Southern Railway Company and
Cable Alabama Corporation dated as of March 17, 1994.
76. License Agreement between Norfolk Southern Railway Company and Cable
Alabama Corporation dated as of May 1, 1997.
77. Cable Television Franchise Agreement dated September 14, 1998 between
the City of Hanahan, South Carolina and KNOLOGY of Charleston, Inc.
(with Unconditional Acceptance of Cable Television Franchise).
78. Ordinance No. 284 dated June 9, 1998 adopted by the Town of Cedar
Grove, Florida, granting franchise to KNOLOGY of Panama City, Inc.
79. Ordinance No. 647 dated May 12, 1998 adopted by the City of Lynn
Haven, Florida granting a non-exclusive franchise to KNOLOGY of Panama
City, Inc.
80. Franchise Agreement for Cable Television (CATV) Services dated as of
October 1, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ and KNOLOGY of
Montgomery, Inc. (▇▇▇▇▇▇▇ AFB and ▇▇▇▇▇▇▇ AFB-▇▇▇▇▇▇ Annex).
81. An Ordinance (Ratification Number 1998-77) dated April 28, 1998
adopted by the City of Charleston, South Carolina granting a
non-exclusive franchise to KNOLOGY of Charleston, Inc.
82. An Ordinance (1998-47) dated May 28, 1998 adopted by the City of North
Charleston, South Carolina granting a franchise to KNOLOGY of
Charleston, Incorporated.
83. Franchise Agreement dated as of May 28, 1998 between the City of North
Charleston, South Carolina and KNOLOGY of Charleston, Incorporated.
84. Ordinance 98-4 dated March 26, 1998 adopted by the Board of
Commissioners of Columbia County, Georgia, inter alia, granting a
franchise to KNOLOGY of Augusta, Inc.
85. Ordinance dated July 7, 1998 adopted by the City Council of the City of
Prattville, Alabama granting a franchise to KNOLOGY of Montgomery, Inc.
86. Ordinance adopted in December, 1998 by the County of Dorchester, South
Carolina granting a non-exclusive right and franchise to KNOLOGY of
Charleston, Inc.
87. Ordinance dated September 1, 1998 adopted by the Town Council of the
Town of Summerville, South Carolina granting a non-exclusive right and
franchise to KNOLOGY of Charleston, Inc.
88. Operator and Related Services Agreement dated March 6, 1995 between
Farmers Long Distance, Inc. and TTE, Inc.
5
238
89. Asset Purchase Agreement dated as of October 19, 1998 between Cable
Alabama Corporation and KNOLOGY of Huntsville, Inc.
90. Purchase and Sale Agreement dated as of October 16, 1998 between
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and KNOLOGY of Huntsville,
Inc.
91. On/Line Operating & License Agreement dated [March 18, 1998] between
Cabledata, Inc. and KNOLOGY Holdings, Inc. with Amendment to On/Line
Operating & License Agreement dated March 18, 1998
92. On/Line Operating & License Agreement Attachment A Amendment dated May
20, 1998 between Cabledata, Inc. and KNOLOGY Holdings, Inc.
93. Memorandum of Agreement and Easement dated as of September 10, 1998
between CP Limited Partnership d/b/a Saddlebrook and KNOLOGY of
Charleston, Inc.
94. Ordinance No. 1751 dated September 22, 1998 adopted by the city of
Panama City, Florida.
95. Ordinance No. 1753 dated September 22, 1998 adopted by the city of
Panama City, Florida.
96. Ordinance No. 1754 dated September 22, 1998 adopted by the city of
Panama City, Florida.
97. Ordinance No. 1756 dated October 13, 1998 adopted by the city of Panama
City, Florida.
6
239
MATERIAL CONTRACTS - PART II
NOTE: SOME OR ALL OF THE FOLLOWING AGREEMENTS MAY BE DUPLICATIVE OF AGREEMENTS
LISTED IN PART I
MISC. SERVICE AGREEMENTS
CORPORATE
Abbreviated Form of Agreement is between Knology and ▇▇▇▇▇▇-▇▇▇▇ Company
First Addendum to Collocation Agreement is between Knology Inc. and Interstate
FiberNet Inc.
Master Capacity Lease is between Interstate FiberNet and CyberNet Holding
Standard Terms and Conditions is between Illuminet Inc. and Agreement Customer
Agreement for 800 Database Service is between Illuminet Inc. and Customer
Software License Agreement is between ▇▇ ▇▇▇▇▇▇▇ and Knology Holding Inc.
Telecommunications Facility Lease and Capacity Agreement between ▇▇▇▇▇ EMC
Communications
RIGHT-AWAY
COLUMBUS
License Agreement between ▇▇▇▇ South Communications Inc. and American Cable
Company
PANAMA CITY
Assignment Agreement between Gulf Power Company and Knology of Panama City Inc,
AUGUSTA
Natural Gas Extension Contact between Atlanta Gas Light and Knology Right of
Entry Agreement between Enterprise Mill LLC and Knology of Augusta Inc.
CABLE PROGRAMMING
CORPORATE
Lease Agreement between Southern Company Services Inc, and Knology Holding Inc.
Lease Agreement for Internet Local Transport between Knology of Alabama Inc.
and MindSpring Enterprises Inc.
7
240
SCHEDULE 6.1(m)
LABOR AND COLLECTIVE BARGAINING AGREEMENTS
None.
241
SCHEDULE 6.1(r)
REAL PROPERTY
REAL ESTATE OWNED
(1) KNOLOGY of Charleston, Inc. - Corp. Offices
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(2) KNOLOGY of Charleston Inc. - Headend
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(3) KNOLOGY of Augusta, Inc. - Headend & Corp Offices
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(4) KNOLOGY Holdings, Inc. - Corp. Offices
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(5) KNOLOGY of Huntsville, Inc.- Headend
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(6) KNOLOGY of Huntsville Inc. - Const. Building
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
242
SCHEDULE 6.1(r) -- (Continued)
REAL PROPERTY
MATERIAL LEASES
(7) KNOLOGY of Panama City, Inc.- ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Lessor- The Hilton Company ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(8) KNOLOGY of Montgomery, Inc. - ▇▇▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Leasing & Development ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(9) KNOLOGY of Columbus, Inc.- Headend and Corp. Offices
Lessor- ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(10) Easements set forth in agreements with multiple Dwelling Units as set
forth in Schedule 6.1(1)
(11) Railroad Crossing Licenses as listed in Schedule 5.2(d)
(12) Hub Site Leases as listed in Schedule 6.1 (1) and as entered into by
KNOLOGY Holdings, Inc. and its subsidiaries from time to time.
243
SCHEDULE 6.1(t)
DEBT AND GUARANTY OBLIGATIONS
Dec. 31 Sept. 30
1997 1998
------------------ ----------------
Senior Debt Notes, with a face value of $444,100,000,
bearing interest at 11.875% beginning October 15, 2002,
payable semi-annually beginning April 15, 2003 with principal
and any unpaid interest due October 15, 2007 $ 249,910,431 $ 249,716,303
▇▇▇▇▇ capitalized lease obligation, at a rate of 10%, Payable
in quarterly installments of $6,304 through December 2006, secured 145,898 137,729
Accrued interest thereon $ 3,201,688 $ 16,355,125
------------------- ----------------
Total Debt $ 253,258,017 $ 276,209,157
=================== ================
In the fourth quarter of 1997, the Company issued units consisting of senior
discount notes due 2007 and warrants to purchase Preferred Stock for gross
proceeds of approximately $250 million. The notes were offered at a substantial
discount from face value, with no interest payment for the first five years.
Approximately $2.5 million of the gross proceeds has been allocated to warrants.
Each warrant allows the holder to purchase .003734 shares of the Company's
preferred stock.
Subordinated Debt -- None.
Guaranty Obligations -- None.
244
SCHEDULE 6.1(u)
LITIGATION
(1) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ vs KNOLOGY of Montgomery, Inc. for
compensatory and punitive damages for late fee charges.
245
SCHEDULE 6.1(w)(i)
INTERACTIVE BROADBAND NETWORKS
Two-way, interactive high-capacity hybrid fiber coaxial networks, including
those being constructed or to be converted or upgraded to meet such criteria,
owned or leased by any Loan Party or Subsidiary pursuant to an agreement with
any person, and which provides Broadband Services are as follows:
Metropolitan Area Loan Party of Subsidiary
----------------- ------------------------
Columbus, Georgia KNOLOGY of Columbus, Inc.
Montgomery, Alabama KNOLOGY of ▇▇▇▇▇▇▇▇▇▇, Inc.
Panama City and Panama City Beach, Florida KNOLOGY of Panama City, Inc.
Augusta, Georgia KNOLOGY of Augusta, Inc.
Charleston, South Carolina KNOLOGY of Charleston, Inc.
Huntsville, Alabama KNOLOGY of Huntsville, Inc.
246
SCHEDULE 6.1(w)(ii)
CATV FRANCHISES
FRANCHISING AUTHORITY FRANCHISE HOLDER
South Carolina
--------------
Charleston KNOLOGY of Charleston, Inc.
North Charleston KNOLOGY of Charleston, Inc.
Charleston County KNOLOGY of Charleston, Inc.
Hanahan KNOLOGY of Charleston, Inc.
Summerville KNOLOGY of Charleston, Inc.
Lincolnville KNOLOGY of Charleston, Inc.
Goose Creek KNOLOGY of Charleston, Inc.
Dorchester KNOLOGY of Charleston, Inc.
Berkley County KNOLOGY of Charleston, Inc.
Georgia
-------
Augusta/Richmond County KNOLOGY of Augusta, Inc.
Town of ▇▇▇▇ City KNOLOGY of Columbus, Inc.
(franchise in name of American
Cable, Inc.)
▇▇▇▇▇▇ County KNOLOGY of Columbus, Inc.
(franchise in name of American
Cable, Inc.)
Columbia County KNOLOGY of Augusta, Inc.
Columbus (renewal)* KNOLOGY of Columbus, Inc.
----------------------------------------
* See Schedule 6.1(e)
Florida
-------
Panama City Beach KNOLOGY of Panama City, Inc.
Panama City KNOLOGY of Panama City, Inc.
Bay County KNOLOGY of Panama City, Inc.
▇▇▇▇ Haven KNOLOGY of Panama City, Inc.
Cedar Grove KNOLOGY of Panama City, Inc.
Alabama
-------
Montgomery KNOLOGY of Montgomery, Inc.
Prattville KNOLOGY of ▇▇▇▇▇▇▇▇▇▇, Inc.
Autauga County KNOLOGY of ▇▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇▇▇ AFB KNOLOGY of Montgomery, Inc.
Huntsville KNOLOGY of Huntsville, Inc.
Madison KNOLOGY of Huntsville, Inc.
Madison County KNOLOGY of Huntsville, Inc.
Limestone County KNOLOGY of Huntsville, Inc.
Redstone Arsenal KNOLOGY of Huntsville, Inc.
247
SCHEDULE 6.1(w)(iii)
LOCAL SERVICE COMMUNICATIONS LICENSES/PUC AUTHORIZATIONS
South Carolina
KNOLOGY of South Carolina, Inc. (held for TTE, Inc.)
Georgia
KNOLOGY of Georgia, Inc.
Florida
KNOLOGY of Florida, Inc.
Alabama
KNOLOGY of Montgomery, Inc.
248
SCHEDULE 6.1(w)(iv)
LONG DISTANCE SERVICE COMMUNICATIONS LICENSES/PUC AUTHORIZATIONS
South Carolina
KNOLOGY of South Carolina, Inc. (held for TTE, Inc.)
Georgia
KNOLOGY of Georgia, Inc.
Florida
KNOLOGY of Florida, Inc.
Alabama
KNOLOGY of Montgomery, Inc.
249
SCHEDULE 6.1(w)(v)
OTHER COMMUNICATIONS LICENSES/PUC AUTHORIZATIONS
BUSINESS RADIO LICENSES:
KNOLOGY of Columbus, Inc.
WNXY245
KNOLOGY of Montgomery, Inc.
WNTG868
KNOLOGY of Panama City
WPFC985
KNOLOGY of Huntsville, Inc.
WNHN243 1/
214 AUTHORIZATIONS:
-------------------
Entity File No. Date Granted
------ -------- ------------
KNOLOGY Holdings, Inc. 2/ I-T-C-97-213 June 5, 1997
KNOLOGY of Alabama, Inc. 3/ I-T-C-97-664 December 29, 1997
KNOLOGY of Georgia, Inc. 4/ I-T-C-97-717 January 9, 1998
KNOLOGY of Florida, Inc. I-T-C-98-400 July 16, 1998
KNOLOGY of South Carolina, Inc. I-T-C-98-619-TC October 1, 1998
Inter-exchange (alternate operator services)
KNOLOGY of Georgia, Inc.
--------------------
1/ Currently operating under Special Temporary Authorization until 4/30/99.
2/ Originally granted to CyberNet Holding, Inc.; FCC was notified of name
change to KNOLOGY Holdings, AS Inc. on Oct. 15, 1997.
3/ Originally granted to KNOLOGY of Montgomery, Inc.; transfer effective
11/6/98.
4/ Originally granted to KNOLOGY of Columbus, Inc.; transfer effective 11/6/98.
250
SCHEDULE 6.1(w)(vi)
NETWORK AGREEMENTS - PART I
1. Pole Attachment Agreement dated January 1, 1998 between Gulf Power
Company and Beach Cable, Inc.
2. Lease Agreement dated August 23, 1997 between Interstate FiberNet, Inc.
and KNOLOGY Holdings, Inc.
3. Telecommunications Facility Lease and Capacity Agreement, dated
September 10, 1996, between ▇▇▇▇▇ EMC Communications, Inc. and Cybernet
Holding, Inc.
4. Master Pole Attachment Agreement dated January 12, 1998 between South
Carolina Electric and Gas and KNOLOGY Holdings, Inc. d/b/a/ KNOLOGY of
Charleston.
5. Pole Attachment Agreement dated May 21, 1990 between the Georgia Power
Company and American Cable Company.
6. License Agreement for Pole Attachments dated June 19, 1990 between
South Central ▇▇▇▇ Telephone Company and Montgomery Cablevision and
Entertainment, Inc.
7. Agreement for Attachments of Cables, Amplifiers, and Associated
Equipment for the Provision of Cable Television Service dated March 1,
1993 between Alabama Power Company and Montgomery Cablevision and
Entertainment, Inc.
8. License Agreement for Pole Attachments and/or Conduit Occupancy dated
July 28, 1993 between BellSouth Telecommunications, Inc. d/b/a Southern
▇▇▇▇ Telephone and Telegraph Company and American Cable Company.
9. License Agreement dated September 29, 1995 between Montgomery
Cablevision and Entertainment, Inc. and American Communications
Services of Montgomery, Inc.
10. License Agreement dated January 17, 1996 between American Cable, Inc.
and American Communication Services of Columbus, Inc.
11. Addendum to License Agreement dated April 21, 1997 between American
Cable, Inc. and American Communication Services of Columbus, Inc.
12. Billing and Collection Services Agreement dated April 2, 1997 between
Interstate Telephone Company and Cybernet Holding, Inc.
13. Operator and Related Services Agreement dated April 14, 1997 between
Eastern Telecom Inc. d/b/a Inter Quest and Cybernet Holding, Inc.
14. Agreement for Telecommunication Services dated May 1, 1997 between
Cybernet Holding, Inc. and DeltaCom, Inc.
15. First Addendum to Service Agreement dated July 7, 1997 between KNOLOGY
Holdings, Inc. and DeltaCom, Inc.
1
251
16. Interconnection Agreement among BellSouth Communications, Inc.,
Cybernet Holding, Inc., American Cable, Inc. and Montgomery Cablevision
& Entertainment, Inc., dated April 15, 1997.
17. Amendment To Interconnection Agreement among BellSouth
Telecommunications, Inc., Cybernet Holding, Inc., American Cable, Inc.
and Montgomery Cablevision & Entertainment, dated May 1, 1997.
18. Second Amendment To Interconnection Agreement among BellSouth
Telecommunications, Inc., Cybernet Holding, Inc., American Cable, Inc.
and Montgomery Cablevision & Entertainment, dated July 7, 1997.
19. Ordinance (▇▇▇▇▇▇ County, Georgia) dated April 6, 1982.
20. Ordinance (▇▇▇▇▇▇ County, Georgia) to Amend Cable Franchise Ordinance
of April 6, 1982, dated November 5, 1996.
21. Ordinance (▇▇▇▇ City, Georgia) dated October 5, 1990.
22. Ordinance No. 88-53 (Columbus, Georgia) dated May 17, 1988.
23. Ordinance ▇▇. ▇▇-▇ (▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇) dated January 10, 1989.
24. Ordinance No. 16-90 (Montgomery, Alabama) dated March 6, 1990.
25. Ordinance No. 50-76 (Montgomery, Alabama).
26. Ordinance No. 9-90 (Montgomery, Alabama) dated January 16, 1990.
27. Resolution ▇▇. ▇▇-▇▇ (▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇) dated April 6, 1995.
28. Resolution ▇▇. ▇▇-▇ (▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇) dated July 23, 1992.
29. License (Bay County, Florida) dated January 5, 1993.
30. Resolution ▇▇. ▇▇-▇▇ (▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇) dated December 3,
1997.
31. Resolution No. 2075 (Bay County, Florida) dated November 18, 1997.
32. Collocation Agreement between Interstate FiberNet and Cybernet Holding,
Inc., dated July 1, 1997.
33. License Agreement for Pole Attachments and/or Conduit Occupancy in
Florida dated September 15, 1993 between BellSouth Telecommunications,
Inc. d/b/a Southern ▇▇▇▇ Telephone and Telegraph and Beach Cable, Inc.
34. Ordinance No. 5999 (Augusta, Georgia) dated January 20, 1998.
35. Ordinance No. 1723 (Panama City, Florida) dated March 10, 1998.
36. Lease dated March 1, 1989 (DACA 01-1-90-264) between the Department of
the Army and Cable Alabama Corporation (Satellite Cable TV
Corporation). Supplemental Agreement No. 1 to Lease No. DACA
01-1-90-264 dated January 8, 1997.
37. Ground and Tower Sublease between Satellite Cable TV Corporation (d/b/a
Cable Alabama) and ▇▇▇▇▇▇▇ Cellular Telecommunications Huntsville, Inc.
dated February 2, 1994.
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252
38. Ground and Tower Sublease between Cable Alabama Corporation and the
City of Huntsville dated February 2, 1995.
39. Contract between Huntsville Utilities and Cable Alabama Corporation
dated August 15, 1977.
40. License Agreement for Pole Attachments dated December 23, 1977 between
South Central ▇▇▇▇ Telephone Company and Satellite Systems
Corp./Redstone Cable TV Co.
41. Agreement for Attachments of Cables, Amplifiers and Associated
Equipment for the Distribution of Television Signals dated May 22, 1990
between the Electric Department of the City of Athens Utilities and
Cable Alabama Corporation.
42. Agreement between Cable Alabama Corporation and ▇▇▇▇▇ Broadcasting
Corporation dated July 26, 1996.
43. Letter notification dated August 15, 1996 from WAAY-TV, Channel 31,
electing retransmission consent.
44. Letter notification Dated September 6, 1996 from WAFF-TV. Channel 48,
electing retransmission consent.
45. Retransmission Consent Agreement as of September 21, 1993 between AFLAC
Broadcast Partners and Cable Alabama Corporation.
46. Retransmission Consent Agreement dated August 9, 1993 between the New
York Times Broadcasting Service, Inc. and Cable Alabama Corporation.
Letter of Agreement dated July 29, 1996 extending the terms of the
Retransmission Consent Agreement.
47. Service Contract between Huntsville Radio Service, Incorporated and the
Cable Alabama Corporation dated August 1, 1988.
48. Home Ticket ANI Custom Service Agreement dated January 3, 1994 between
the Cable Alabama Corporation and Telecorp Systems, Inc.
49. Channel Service Agreement dated October 7, 1994 between the Cable
Alabama Corporation and Teledyne ▇▇▇▇▇ Engineering.
50. License Agreement dated July 22, 1983 between ▇▇▇▇▇▇▇ Mobile Home
Services, Inc. d/b/a West Valley Trailer Park and Satellite Cable TV
Corp.
51. Cable Television Service and Easement Agreement effective as of
November 1, 1996 between Cable Alabama Corporation d/b/a CableAlabama
Corporation and ▇▇▇▇▇▇ Realty.
52. Cable Television Service and Easement Agreement effective as of May 1,
1998 between Cable Alabama Corporation d/b/a CableAlabama Corporation
and Southeastern Property Management d/b/a Cambridge Court.
53. Cable Television Service and Easement Agreement effective as of May 1,
1998 between Cable Alabama Corporation d/b/a CableAlabama Corporation
and Flagstone.
54. Cable Television Service and Easement Agreement effective as of May 1,
1998 between Cable Alabama Corporation d/b/a CableAlabama Corporation
and The Landing.
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253
55. Cable Television Service and Easement Agreement effective as of March
7, 1995 between Cable Alabama Corporation d/b/a CableAlabama
Corporation and Mayfair Village Associates L.P. d/b/a Whispering Hills
Apartments.
56. Cable Television Service and Easement Agreement effective as of April
10, 1995 between Cable Alabama Corporation d/b/a CableAlabama
Corporation and Westbrooke Apartments, Ltd. d/b/a Westbrooke Apartment
Complex.
57. Cable Television Service and Easement Agreement dated as of August 30,
1995 between Cable Alabama Corporation d/b/a CableAlabama Corporation
and Alaprop Corporation d/b/a ▇▇▇▇▇ ▇▇▇▇ Terrace.
58. Cable Television Service and Easement Agreement effective as of July 1,
1996 between Cable Alabama Corporation d/b/a CableAlabama Corporation
and Jamison Park Apartments, Ltd.
59. Cable Television Service and Easement Agreement effective as of July 1,
1996 between Cable Alabama Corporation d/b/a CableAlabama Corporation
and Oaks Apartments, Ltd.
60. Cable Television Service and Easement Agreement effective as of July 1,
1996 between Cable Alabama Corporation d/b/a CableAlabama Corporation
and Ridgecrest Apartments, Ltd.
61. Cable Television Service and Easement Agreement effective as of
September 1, 1996 between Cable Alabama Corporation d/b/a CableAlabama
Corporation and Sentry Asset Management d/b/a Westland Park Apartments.
62. Cable Television Service and Easement Agreement effective as of
September 1, 1996 between Cable Alabama Corporation d/b/a CableAlabama
Corporation and Sentry Asset Management d/b/a Westgate II Apartments,
Ltd.
63. Cable Television Service and Easement Agreement effective as of
December 1, 1996 between Cable Alabama Corporation d/b/a CableAlabama
Corporation and Executive Lodge Suite Hotel.
64. Cable Television Service and Easement Agreement dated as of August 20,
1997 between Cable Alabama Corporation d/b/a CableAlabama Corporation
and Sunrise, Inc. d/b/a Sunrise Point Apartments.
65. Installation and Sales Agreement dated July 3, 1996 between the Cable
Alabama and Interconnect Systems Corporation.
66. License Agreement between Southern Railway Company and Satellite Cable
TV Corp. effective as of January 29, 1979.
67. License Agreement between Southern Railway Company and Cable Alabama
Corporation effective as of April 10, 1987.
68. License Agreement between Norfolk Southern Railway Company and Cable
Alabama Corporation dated as of February 3, 1994.
69. License Agreement and between Norfolk Southern Railway Company and
Cable Alabama Corporation dated as of March 17, 1994.
70. License Agreement between Norfolk Southern Railway Company and Cable
Alabama Corporation dated as of May 1, 1997.
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254
71. Disney Channel Toon Disney Affiliation Agreement dated April 1, 1998
between Disney Channel and KNOLOGY, as amended by Amendment Letters
dated July 20, 1998.
72. Adultvision Television License Agreement dated June 1, 1998 between
Adultvision Communication, Inc. and KNOLOGY Holdings, Inc.
73. Playboy Television License Agreement dated December 1, 1997 between
Playboy Entertainment Group, Inc. and KNOLOGY Holdings, Inc.
74. MTV Networks Power Pack Agreement dated July 10, 1998 (effective June
30, 1998) between MTV Networks, a division of Viacom International,
Inc., and KNOLOGY Holdings, Inc.
75. TVData Licensed Materials Agreement dated June 1, 1998 between TV Data
Technologies, L.P., and KNOLOGY Holdings, Inc.
76. Amendment to ESPN Agreement dated as of May 21, 1998 between ESPN, Inc.
and KNOLOGY Holdings, Inc.
77. Construction Agreement dated as of June 22, 1998 between KNOLOGY
Holdings, Inc. and Premier Cable Communications (Augusta, GA system).
78. Construction Agreement dated as of June 25, 1998 between KNOLOGY
Holdings, Inc. and Premier Cable Communications (Panama City and Panama
City Beach, FL systems).
79. Agreement for 800 Database Services dated July 14, 1997 between
Illuminet, Inc. and KNOLOGY Holdings, Inc.
80. Non-Residential Gas Extension Contract dated May 7, 1998 between
Atlanta Gas Light Company and KNOLOGY of Augusta, Inc.
81. Non-residential Gas Extension Contract dated June 19, 1998 between
Atlanta Gas Light Company and KNOLOGY of Augusta, Inc.
82. Non-residential Gas Extension Contract dated July 9, 1998 between
Atlanta Gas Light and KNOLOGY of Augusta, Inc. (▇▇▇▇▇▇ ▇▇.).
83. Non-residential Gas Extension Contract dated July 14, 1998 between
Atlanta Gas Light and KNOLOGY of Augusta, Inc. (Silverdale Rd.).
84. Non-residential Gas Extension Contract dated July 14, 1998 between
Atlanta Gas Light and KNOLOGY of Augusta, Inc. (▇▇▇▇▇▇▇ ▇▇.).
85. Non-residential Gas Extension Contract dated July 23, 1998 between
Atlanta Gas Light and KNOLOGY of Augusta, Inc. (Fury's Ferry Road).
86. Easement Agreement dated May 19, 1998 between TTE Group, Inc. and
KNOLOGY of Charleston, Inc.
87. Construction Agreement dated February 17, 1998 between KNOLOGY
Holdings, Inc. and Cable Constructors, Inc.
88. Construction Agreement dated as of April 21, 1998 between KNOLOGY
Holdings, Inc. and ProMark Utility Locators, Inc.
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255
89. Construction Agreement dated April 2, 1998 between KNOLOGY Holdings,
Inc. and First South Utility Const., Inc.
90. Construction Agreement dated April 1, 1998 between KNOLOGY Holdings,
Inc. and Gateway CATV Const., Inc.
91. Headend In The Sky(R) Programming Transport Agreement dated as of May
1, 1998 between National Digital Television Center, Inc. d/b/a Headend
In The Sky(R) and KNOLOGY Holdings, Incorporated.
92. AIA Abbreviated Form of Agreement between Owner and Contractor dated as
of July 17, 1997 between KNOLOGY and ▇▇▇▇▇▇-▇▇▇▇ Company.
93. Wireline Crossing Agreement dated as of April 29, 1998 between CSX
Transportation, Inc. and KNOLOGY of Augusta, Inc.
94. Showtime Networks Service Agreement dated April 1, 1998 between
Showtime Networks Inc. and KNOLOGY Holdings Inc.
95. Cable Television and Telephone Services Agreement dated June 26, 1998
between ▇▇▇▇▇▇ Builders, Inc. and KNOLOGY Holdings, Inc. (with
Memorandum of Agreement and Easement).
96. Cable Television and Telephone Services Agreement dated June 1, 1998
between ▇▇▇▇▇▇ Monday and KNOLOGY of Montgomery, Inc. (with Memorandum
of Agreement and Easement) (Fair Manor Apartments).
97. Cable Television and Telephone Services Agreement dated June 1, 1998
between ▇▇▇▇▇▇ Monday and KNOLOGY of Montgomery, Inc. (with Memorandum
of Agreement and Easement) (Fairview Villa Apartments).
98. Cable Television and Telephone Services Agreement dated June 2, 1998
between ▇▇▇▇▇▇▇ Rentals, LTD and KNOLOGY of Columbus, Inc. (with
Memorandum of Agreement and Easement) (Cusseta Road).
99. Cable Television and Telephone Services Agreement dated June 2, 1998
between ▇▇▇▇▇▇▇ Rentals, LTD and KNOLOGY of Columbus, Inc. (with
Memorandum of Agreement and Easement) (▇▇▇▇▇▇▇ Road).
100. Cable Television and Telephone Services Agreement dated May 29, 1998
between Three Flags Apartments LLC and KNOLOGY Holdings, Inc. (with
Memorandum of Agreement and Easement).
101. Cable Television and Telephone Services Agreement dated June 23, 1998
between Harbour's Edge Condominiums and KNOLOGY of Panama City, Inc.
(with Memorandum of Agreement and Easement).
102. Cable Television and Telephone Services Agreement dated May 18, 1998
between Big "D" Inc. and KNOLOGY of Panama City, Inc. (with Memorandum
of Agreement and Easement).
103. Cable Television and Telephone Services Agreement dated June 29, 1998
between ▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ Associates, Ltd. d/b/a The ▇▇▇▇ Apartments and
KNOLOGY of Montgomery, Inc. (with Memorandum of Agreement and
Easement).
104. Cable Television and Telephone Services Agreement dated June 1, 1998
between ▇▇▇▇▇▇ Monday and KNOLOGY of Montgomery, Inc. (with Memorandum
of Agreement and Easement) (▇▇▇▇▇▇▇ Court Apartments).
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256
105. Cable Television Agreement dated July 9, 1998 between UDRT of Alabama,
Inc. and KNOLOGY of Montgomery, Inc.
106. Memorandum of Agreement dated July 9, 1998 between UDRT of Alabama and
KNOLOGY of ▇▇▇▇▇▇▇▇▇▇.
107. Cable Television and Telephone Services Agreement dated July 9, 1998
between The ▇▇▇▇▇▇ Development Company and KNOLOGY Holdings, Inc. (with
Memorandum of Agreement and Easement).
108. Cable Television and Telephone Services Agreement dated April 29, 1998
between Laurmest Montgomery Corporation and KNOLOGY Holdings, Inc.
109. Installation Agreement dated as of September 14, 1998 between KNOLOGY
Holdings, Inc. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ d/b/a ▇▇▇▇▇▇▇ Contractors.
110. Agreement dated August 7, 1998 between Bravo Company and KNOLOGY
Holdings, Inc.
1ll. Release regarding QVC/Q2 Charter Affiliation Agreement and Addendum
dated September 2, 1998 between QVC and KNOLOGY Holdings, Inc.
112. Letter Agreement - Loan of the Weather Star III Unit Pending Delivery
of the Weather Star XL Unit dated July 2, 1998 between The Weather
Channel and KNOLOGY Holdings, Inc.
113. The Weather Star XL Agreement dated August 17, 1998 between The Weather
Channel, Inc. and KNOLOGY Holdings, Inc.
114. Service Affiliation Agreement dated August 31, 1998 between The Box
Worldwide, Inc. and KNOLOGY Holdings, Inc.
115. Affiliation Agreement dated July 31, 1998 (effective April 1, 1998)
between FOX SPORTS WORLD L.L.C. and KNOLOGY.
116. Cable Television and Telephone Services Agreement dated September 10,
1998 between CP Limited Partnership d/b/a Saddlebrook and KNOLOGY OF
Charleston, INC.
117. Cable Television and Telephone Service Agreement dated September 4,
1998 between Southgate, Inc. and KNOLOGY OF COLUMBUS, INC. (with
Memorandum of Agreement and Easement).
118. Cable Television and Telephone Services Agreement dated August 4, 1998
between CP Limited Partnership d/b/a Woodland Hills and KNOLOGY of
Montgomery, Inc. (with Memorandum of Agreement and Easement).
119. Cable Television and Telephone Services Agreement dated August 19, 1998
between KNOLOGY Holdings, Inc. and Montgomery Alabama Hotel Limited
Partnership.
120. Cable Television and Telephone Services Agreement dated August 24, 1998
between Coliseum Properties and KNOLOGY of Montgomery, Inc. (with
Memorandum of Agreement and Easement).
121. Cable Television and Telephone Services Agreement dated August 24, 1998
between ▇▇▇▇▇▇ Crest Company and KNOLOGY of Montgomery, Inc.
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257
122. Cable Television and Telephone Services Agreement dated July 10, 1998
between Narrow Lane, LTD d/b/a Narrow Lane Apartments and KNOLOGY of
Montgomery, Inc. (with Memorandum of Agreement and Easement).
123. Cable Television and Telephone Services Agreement dated July 10, 1998
between ▇▇▇▇ Station Associates, LTD d/b/a ▇▇▇▇ Station Apartments and
KNOLOGY of Montgomery, Inc. (with Memorandum of Agreement and
Easement).
124. Cable Television and Telephone Services Agreement dated July 10, 1998
between Turtle Place, LTD d/b/a Turtle Place Apartments and KNOLOGY of
Montgomery, Inc. (with Memorandum of Agreement and Easement).
125. Cable Television and Telephone Services Agreement dated August 5, 1998
between Turtle Lake Associates, LTD d/b/a Turtle Lake Apartments and
KNOLOGY of Panama City, Inc. (with Memorandum of Agreement and
Easement).
126. Exclusive Cable Television Services Agreement dated August 3, 1998
between ▇▇▇ ▇▇▇▇▇▇▇ and KNOLOGY of Panama City, Inc. (with Memorandum
of Agreement and Easement).
127. Cable Television and Telephone Services Agreement dated June 6, 1998
between ▇▇▇▇ ▇. ▇▇▇▇▇▇ and KNOLOGY of Panama City, Inc. (with
Memorandum of Agreement and Easement).
128. Construction Agreement dated as of August 17, 1998 between KNOLOGY
Holdings, Inc. and Checkmate Communications, Inc.
129. Ordinance No. 1746 dated August 25, 1998 adopted by City of Panama
City, Florida.
130. Home Ticket(TM)/Home Ticket(TM) Express Service Agreement dated August
31, 1998 between Syntellect Interactive Services, Inc. and KNOLOGY
Holdings, Inc.
131. Agreement for Attachments of Cables, Amplifiers and Associated
Equipment dated August 25, 1998 between Central Alabama Electric
Cooperative and KNOLOGY Holding, Inc.
132. Cable Television Franchise Agreement dated September 14, 1998 between
the City of Hanahan, South Carolina and KNOLOGY of Charleston, Inc.
(with Unconditional Acceptance of Cable Television Franchise).
133. Ordinance No. 294 dated June 9, 1998 adopted by the Town of Cedar
Grove, Florida, granting franchise to KNOLOGY of Panama City, Inc.
134. Ordinance No. 647 dated May 12, 1998 adopted by the City of Lynn Haven,
Florida granting a non-exclusive franchise to KNOLOGY of Panama City,
Inc.
135. Franchise Agreement for Cable Television (CATV) Services dated as of
October 1, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ and KNOLOGY of
Montgomery, Inc. (▇▇▇▇▇▇▇ AFB and ▇▇▇▇▇▇▇ AFB-▇▇▇▇▇▇ Annex).
136. An Ordinance (Ratification Number 1998-77) dated April 28, 1998 adopted
by the City of Charleston, South Carolina granting a non-exclusive
franchise to KNOLOGY of Charleston, Inc.
137. An Ordinance (1998-47) dated May 28, 1998 adopted by the City of North
Charleston, South Carolina granting a franchise to KNOLOGY of
Charleston, Incorporated.
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258
138. Franchise Agreement dated as of May 28, 1998 between the City of North
Charleston, South Carolina and KNOLOGY of Charleston, Incorporated.
139. Ordinance 98-4 dated March 26, 1998 adopted by the Board of
Commissioners of Columbia County, Georgia, inter alia, granting a
franchise to KNOLOGY of Augusta, Inc.
140. Ordinance dated July 7, 1998 adopted by the City Council of the City of
Prattville, Alabama granting a franchise to KNOLOGY of Montgomery, Inc.
141. Ordinance adopted in December, 1998 by the County of Dorchester, South
Carolina granting a non-exclusive right and franchise to KNOLOGY of
Charleston, Inc.
142. Ordinance dated September 1, 1998 adopted by the Town Council of the
Town of Summerville, South Carolina granting a non-exclusive right and
franchise to KNOLOGY of Charleston, Inc.
143. CAS End-User Object Code License Agreement and RealWorld(R) Software
Sublicense Agreement dated March 21, 1997 between TTE, Inc. and
Highland Lakes Software.
144. CAS Installation and Support Agreement dated March 21, 1997 between
TTE, Inc. and Highland Lakes Software.
145. Agreement regarding the Sale of BST's Telecommunications Services to
Reseller for the Purposes of Resale effective April 1, 1997 between
BellSouth Telecommunications, Inc. and TTE Group, Inc.
146. Reseller Services Agreement dated May 8, 1997 between Business Telecom,
Inc. and TTE Group.
147. Telecommunications Agreement dated December 11, 1992 between Enterprise
Telephone Company, Inc., d/b/a Tel Tec Exchange of Charleston (TTE) and
Dial 1 Long Distance, Inc.
148. Operator and Related Services Agreement dated March 6, 1995 between
Farmers Long Distance, Inc. and TTE, Inc.
149. Agreement dated July 22, 1997 between TTE, Inc. and The Club @
Seabrook, Inc.
150. Interconnection, Resale and Unbundling Agreement dated December 5, 1997
between GTE South Incorporated and TTE, Inc.
151. Pole Attachment Agreement between GTE, Inc. and TTE, Inc.
152. Conduit Occupance Agreement between GTE, Inc. and TTE, Inc.
153. Lease dated February 22, 1996 between Alabama Christian Academy, Inc.
and Montgomery Cablevision Inc.
154. Right of Entry Agreement dated as of February 4, 1998 between ▇▇▇▇▇▇
▇▇▇▇▇ and KNOLOGY Holdings, Inc.
155. Right of Entry Agreement dated as of January 30, 1998 between ▇▇▇▇▇▇
Realty and KNOLOGY Holdings, Inc.
156. Right of Entry Agreement dated as of December 12, 1997 between [Narrow
Lane Ltd. d/b/a Narrow Lane Villas] and KNOLOGY Holdings, Inc.
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259
157. Standard Commercial Agreement (Hotel-Motel) dated as of August 12, 1996
between Montgomery Cablevision and Entertainment, Inc. and Alabama Inns
Associates [d/b/a Ramada Inn].
158. Standard Commercial Agreement (Hotel-Motel) dated as of August 26, 1996
between Montgomery Cablevision and Entertainment, Inc. and Eastern
Bypass Inns, Ltd. [Eastern Bypass Inn L.P.] [d/b/a Hampton Inn].
159. Bulk Cable Communications Service and Access Agreement dated as of
April 10, 1997 between Montgomery Cablevision and Entertainment, Inc.
and ▇▇▇▇▇▇ Builders, Inc.
160. Multi-Unit Service Agreement dated as of December 31, 1997 between
KNOLOGY Holdings, Inc. and Lynwood Terrace LLC.
161. Multi-Unit Service Agreement dated as of November 12, 1997 between
KNOLOGY Holdings, Inc. and Festival Apartments LLC.
162. Multi-Unit Service Agreement dated as of November 10, 1997 between
KNOLOGY Holdings, Inc. and March Management Company [d/b/a Eden East
Apartments].
163. Bulk Cable Communications Service and Access Agreement dated as of
October 3, 1998 between Montgomery Cablevision and Entertainment, Inc.
and USA Hotel Corporation.
164. Right of Entry Agreement dated September 22, 1997 between [Turtle
Place, Ltd.] Turtle Place Apartments and KNOLOGY.
165. Right of Entry Agreement dated April as of 24, 1996 between ▇▇▇▇▇▇
Construction and Montgomery CableVision and Entertainment.
166. Multi-Unit Service Agreement dated November 12, 1998 between KNOLOGY
Holdings, Inc. and Park Towne Apartments.
167. Right of Entry and Easement between Montgomery CableVision and
Entertainment, Inc. and Montgomery Partners, Ltd. [d/b/a Oxford Gardens
and Spanish Gardens] dated March 23/24, 1992.
168. Bulk Cable Television Multiple-Unit Agreement dated as of June 13, 1998
between ▇▇▇▇▇▇▇▇▇▇ Motel Associates d/b/a Montgomery Days Inn and
Montgomery Cablevision & Entertainment Inc.
169. Multi-Unit Service Agreement dated as of January 5, 1997 [or 1998]
between KNOLOGY Holdings, Inc. and ▇▇▇▇▇▇ Gardens.
170. Multi-Unit Service Agreement dated as of December 31, 1997 between
KNOLOGY Holdings, Inc. and Lynwood Terrace LLC.
171. Multi-Unit Service Agreement dated October 28, 1997 between KNOLOGY
Holdings, Inc. and Whisperwood Spa & Club LP.
172. Right of Entry Agreement dated as of August 13, 1997 between WLB, LLC
and American Cable Company.
173. Right of Entry Agreement dated as of May 22, 1997 between Bellewood
Square Apartments [the Spanish Quarter Group, Limited Partnership?] and
Montgomery CableVision and Entertainment, Inc.
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260
174. Right of Entry Agreement dated as of April 24, 1997 between ▇▇▇▇
Station Apartments and Montgomery CableVision and Entertainment, Inc.
175. Cable Television Services Agreement dated as of October 26, 1990
between Montgomery CableVision and Entertainment, Inc. and C&E
Enterprises [Cambridge Park Apartment Investors, Ltd.].
176. Service Agreement dated as of December 31, 1998 between KNOLOGY
Holdings, Inc. and Columbia Doctor's Hospital.
177. Right of Entry granted by ▇▇▇▇▇▇ Pointe Apartments to Montgomery
CableVision and Entertainment, Inc. dated [October 28, 1993].
178. Cable Television Services Agreement dated as of March 18, 1991 between
Montgomery CableVision and Entertainment, Inc. and Stratford Village
Realty Trust.
179. Multi-Unit Service Agreement dated as of November 6, 1997 between
KNOLOGY Holdings, Inc. and Efficiency Lodge of Columbus, Inc.
180. Cable Television Services Agreement dated as of [June/July] 10, 1997
between KNOLOGY and Alabama State University.
191. Multi-Unit Service Agreement dated December 17, 1997 between KNOLOGY
Holdings, Inc. and Cloverland Apartments LLC.
182. Multiple Unit Service Agreement dated as of March 1, [ ] between
American Cable Company Partnership and [▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇].
183. Agreement for the Sale and Installation of Equipment dated March 18,
1998 between Cabledata, Inc. and KNOLOGY Holdings, Inc. with Amendment
to Sale & Installation of Equipment Agreement of even date.
184. On/Line Operating & License Agreement dated [March 18, 1998] between
Cabledata, Inc. and KNOLOGY Holdings, Inc. with Amendment to On/Line
Operating & License Agreement dated March 18, 1998.
185. On/Line Operating & License Agreement Attachment A Amendment dated May
20, 1998 between Cabledata, Inc. and KNOLOGY Holdings, Inc.
186. License Agreement dated July 1, 1998 between Berkeley Electric
Cooperative, Inc. and KNOLOGY of Charleston, Inc. (Charleston, Berkeley
and Dorchester Counties)
187. Software License Agreement dated May 5, 1998 between ▇. ▇. ▇▇▇▇▇▇▇
World Solutions Company and KNOLOGY Holdings, Inc. with Addendum to
Software License Agreement of even date.
188. Maintenance Agreement dated May 5, 1998 between ▇.▇. ▇▇▇▇▇▇▇ World
Solutions Company and KNOLOGY Holdings, Inc.
189. Construction Agreement dated as of June 1, 1998 between KNOLOGY
Holdings, Inc. and First Coast Cable Construction, Inc. (Charleston,
SC)
190. Construction Agreement dated as of June 4, 1998 between KNOLOGY
Holdings, Inc. and First Coast Cable Construction, Inc. (Montgomery,
AL)
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261
191. Construction Agreement dated as of June 17, 1998 between KNOLOGY
Holdings, Inc. and First Coast Cable Construction, Inc. (Columbus, GA)
192. Construction Agreement dated as of May 19, 1998 between KNOLOGY
Holdings, Inc. and Sub Aqueous Engineering Services, Inc. (Panama City
and Panama City Beach, FL)
193. Construction Agreement dated as of April 20, 1998 between KNOLOGY
Holdings, Inc. and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Co., Inc. (Augusta, GA)
194. Construction Agreement dated as of May 4, 1998 between KNOLOGY
Holdings, Inc. and Lexus Cabling Corp. (Columbus, GA)
195. Construction Agreement dated as of May 4, 1998 between KNOLOGY
Holdings, Inc. and A-Com Protection Services (Columbus, GA)
196. Construction Agreement dated as of July 3, 1998 between KNOLOGY
Holdings, Inc. and ▇▇▇▇▇ ▇. ▇▇▇▇, Inc. (Columbus, GA)
197. FIRST COLLECTION SERVICES Client Service Agreement dated July 2, 1998
between International Computer Systems, Inc. d/b/a First Collection
Services and KNOLOGY (unpaid account recovery).
198. FIRST COLLECTION Client Service Agreement dated July 2, 1998 between
International Computer Systems, Inc. d/b/a First Collection Services
and KNOLOGY (account processing).
199. Cable Television and Telephone Services Agreement dated April 20, 1998
between Calvary Community, Inc. and Calvary Community II, Inc. and
KNOLOGY of Columbus, Inc. with Memorandum of Agreement and Easement
(▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇)
200. Network Access Agreement dated July 1, 1998 between SCANA
Communications, Inc. f/k/a MPX Systems, Inc. and KNOLOGY Holdings, Inc.
201. Right of Entry Agreement dated January 14, 1998 between Colonial
Properties and KNOLOGY Holdings, Inc.
202. Carriage Agreement dated as of May 11, 1998 between ZDTV, L.L.C. and
KNOLOGY Holdings, Inc.
203. Letter dated June 5, 1998 from United Video Network Sales to KNOLOGY
Holdings, Inc. regarding notice of assignment of rights under WGN
Affiliate Agreement dated March 1, 1996 to UVTV, Inc.
204. Great American Country Launch Incentive offer letter dated June 12,
1998 from Great American Country, Inc. to KNOLOGY Holdings, Inc.
205. Name Change Amendment Letter dated as of June 1, 1997 between Home Box
Office, a division of Time Warner Entertainment Company, L.P., CyberNet
Holding, Inc. and KNOLOGY Holdings, Inc. amending HBO Service Network
Affiliation Agreement and CINEMAX Service Network Affiliation
Agreement, both dated as of April 28, 1995, among Home Box Office and
CyberNet Holding, Inc. (Montgomery CableVision and American Cable
Company name changes)
206. Amendment to Affiliate Agreement dated June 1, 1997 between Cable News
Network, Inc. and KNOLOGY Holdings, Inc. and CyberNet Holding, Inc.
amending Affiliate Agreement for CNNfn/CNN International and CNN/SI
between Cable News Network, Inc. and CyberNet Holding, Inc. dated as of
September 3, 1996.
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262
207. Assignment dated November 9, 1995 by American Cable Company to CyberNet
Holding, L.L.C. of rights under Affiliate Agreement dated as of
September 30, 1994 between American Cable Company and Cable News
Network, Inc. (CNN and Headline News)
208. Assignment dated November 9, 1995 by American Cable Company to CyberNet
Holding, L.L.C. of rights under Affiliate Agreement dated as of August
30, 1994 between American Cable Company and ▇▇▇▇▇▇ Network Television
(TNT)
209. Assignment dated November 9, 1995 by American Cable Company to CyberNet
Holding, L.L.C. of rights under Affiliate Agreement dated as of July
27, 1992 between American Cable Company and Cartoon Network (Cartoon
Network)
210. Assignment dated November 9, 1995 by American Cable Company to CyberNet
Holding, L.L.C. of rights under Affiliate Agreement dated as of March
1, 1994 between American Cable Company and ▇▇▇▇▇▇ Classic Movies, Inc.
(▇▇▇▇▇▇ Classic Movies)
211. Right of Entry Agreement dated as of September 1, 1998 between
Enterprise Mill, LLC and KNOLOGY of Augusta, Inc.
212. Cable Television and Telephone Services Agreement dated as of October
15, 1998 between ▇▇▇▇▇▇ Investment Company and KNOLOGY of Augusta, Inc.
213. Memorandum of Agreement and Easement dated as of September 10, 1998
between CP Limited Partnership d/b/a Saddlebrook and KNOLOGY of
Charleston, Inc.
214. Ordinance No. 1751 dated September 22, 1998 adopted by the city of
Panama City, Florida.
215. Ordinance No. 1753 dated September 22, 1998 adopted by the city of
Panama City, Florida.
216. Ordinance No. 1754 dated September 22, 1998 adopted by the city of
Panama City, Florida.
217. Ordinance No. 1756 dated October 13, 1998 adopted by the city of Panama
City, Florida.
218. Form of Change Order dated October 16, 1998 to "Agreement for
Construction Work dated July 3, 1998 between KNOLOGY Holdings, Inc. and
▇.▇. ▇▇▇▇, Inc. (Columbus, Georgia).
219. License Agreement for Rights of Way (Row), Conduits, and Pole
Attachments, dated March 3, 1998 between BellSouth Telecommunications,
Inc. and KNOLOGY Holdings, Inc.
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263
NETWORK AGREEMENTS - PART II
Note: Some or all of the following agreements may be duplicative of
agreements listed in Part I
CABLE PROGRAMMERS
CORPORATE
Affiliate Agreement to Arts and Entertainment Network
License Agreement between American Movie Classics Company and Cybernet
Holdings, Inc.
Agreement dated August 10, 1998 between Bravo Company and KNOLOGY Holdings, Inc.
Affiliation Agreement between DMX Inc. and KNOLOGY Holdings, Inc.
Verification of eligibility for KNOLOGY Holdings, Inc. and Encore Media
Group LLC.
ESPN between ESPN, Inc. and KNOLOGY Holdings, Inc.
Affiliation Agreement between KNOLOGY Holdings, Inc. and Home Box Office
Headend in the Sky Programming Transport Agreement
Programming Transport Agreement between KNOLOGY Holdings, Inc. and National
Digital Television Center, Inc.
Affiliation Agreement between Home Shopping Club, Inc. and
Cybernet Holding, Inc.
Affiliation Agreement between Nick At Nite's TV Land and KNOLOGY Holdings, Inc.
Affiliation Agreement between National Cable Television Cooperative, Inc.
and KNOLOGY Holdings, Inc.
Agreement between Romance Classics and Cybernet Holdings, Inc.
Affiliation Agreement between Charter Spice Networks and KNOLOGY Holdings, Inc.
Affiliate Agreement for SportsSouth Network and Cybernet Holding, Inc.
Non-disclosure Agreement between United Video Network Sales and
KNOLOGY Holdings, Inc.
UVTV/WGN Satellite Transmission Service Agreement and CyberNet Holdings, Inc.
Affiliate Agreement between the Weather Channel, Inc. (TWC) and
KNOLOGY Holdings, Inc.
COLUMBUS
Affiliate Agreement between Arts and Entertainment Network and
CyberNet Holding LLC
Retransmission Consent Agreement between Aflac Broadcast Partners, WTVM and
American Cable Company Partnership
Charter Affiliate Agreement between CyberNet Holding, Inc. and American Cable
c/o CyberNet
Affiliation Agreement for Cable News Network with American Cable Co
Partnership
Affiliate Agreement for HeadLine News and American Cable Co. Partnership
Contractual Agreement between CNBC, Inc. and American Cable Management
The Disney Channel Affiliation Agreement with American Cable Company,
Partnership
Affiliation Agreement between ESPN, INC and American Cable Management Part.
Agreement between Eternal ▇▇▇▇ Television Network, Inc. and
American Cable Company
Affiliate Agreement between TNN and American Cable Management
Affiliation Agreement ICN Enterprises and American Cable
Retransmission Agreement between ▇▇▇▇▇ Broadcasting Corporation and American
Cable Co.
Letter of Acceptance with Prevue networks, Inc and CyberNet Holding, Inc.
Affiliation Agreement between QVC/Q2 and KNOLOGY Holdings, Inc. Columbus
Retransmission Consent Agreement between Spartan Communications, Inc and
CyberNet d/b/a American Cable
Retransmission Agreement with WRBL and American Cable
Affiliation Agreement with ▇▇▇▇▇▇ Network Television and American Cable
Co. Partnership
Affiliation Agreement between USA Networks and Cable American Cable Company
Partnership
MONTGOMERY
Distributor Agreement between Cable News Network, Inc, and Montgomery Cable
Vision & Entertainment, Inc.
Affiliation Agreement ESPN Inc and Montgomery Cablevision & Entertainment, Inc.
Executed Contract for Montgomery Cablevision and Entertainment Inc.
Affiliation Agreement with Disney Channel and Montgomery Cablevision and
Entertainment, Inc.
Flix Service Agreement between ShowTime Networks, Inc. and Montgomery
Cablevision.
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264
Affiliation Agreement between Home Shopping Club, Inc. and CyberNet
Holding, Inc.
Affiliation Agreement between Lifetime and Cybernet Holdings, Inc.
Service Agreement between Prevue Networks, Inc and Montgomery Cablevision and
Entertainment, Inc.
Preliminary Agreement between The Box Worldwide, Inc, and Montgomery Cablevision
and Entertainment, Inc.
Affiliation Agreement between The USA Network Service and Montgomery
Cablevision and Entertainment, Inc.
Retransmission Consent Agreement between WCOV-TV20 and CyberNet Holding, Inc.
America's Talking Agreement between ▇▇▇▇▇▇ broadcasting's Cable News Network
and Headline News and Montgomery Cablevision
License Agreement between Country Music Television, Inc, and Montgomery
Cablevision and Entertainment, Inc.
Affiliation Agreement between CNBC and America's Talking and Montgomery
Cablevision and Entertainment, Inc.
Affiliation Agreement with The Disney Channel and Montgomery Cablevision
PANAMA CITY (BEACH CABLE)
Affiliation Agreement between Hearst/ABC/NBC and Beach Cable, Inc.
Affiliate Agreement between Animal Planet and Beach Cable
Affiliate Agreement between Cable News Network, Inc, and Beach Cable, Inc.
Affiliate Agreement between Headline News and Beach Cable, Inc.
Affiliate Agreement between the Cartoon Network and Beach Cable, Inc.
Affiliation Agreement between CNBC Inc and Beach Cable, Inc.
Affiliation Agreement between Comedy Central and Beach Cable, Inc.
Affiliation Agreement Between Courtroom Television Network and Beach
Cable, Inc.
Affiliate Renewal Agreement between Discovery Channel and Beach Cable, Inc.
Affiliation Agreement between The Disney Channel and Beach Cable, Inc.
Affiliation Agreement between Cable Television Network and Beach Cable, Inc.
Affiliation Letter Agreement between Encore Media Corporation and Beach Cable,
Inc.
Affiliation Agreement between ESPN2 and Beach Cable, Inc.
Affiliate Agreement between Flix Service Agreement and Beach Cable, Inc.
Affiliate Agreement between The Golf Channel and Beach Cable, Inc.
Affiliate and Retransmission Agreement between HGTV/MSO and Beach Cable, Inc.
HBO Service
Affiliation Agreement between Home Box Office and Beach Cable
Cinemax Service Affiliation Agreement between Home Box Office and
Beach Cable
Affiliation Agreement between Home Shopping Club, Inc., and Beach Cable, Inc.
Affiliation Agreement between International Cablecasting Technologies Inc. and
Beach Cable, Inc.
Affiliation Agreement between National Cable Satellite Corporation and
Beach Cable, Inc.
Affiliate Renewal Agreement between Discovery Communications, Inc. and Beach
Cable, Inc.
Affiliation Agreement between Lifetime Entertainment Services and Beach
Cable, Inc.
Affiliation Agreement between MSNBC Cable and Beach Cable, Inc.
Affiliate Agreement between Opryland USA Inc, and Beach Cable Inc.
Affiliate Agreement between Nick at Nite's TV Land Co, MTV Networks and
beach Cable, Inc.
Affiliation Agreement between Outdoor Life Network and Speedvision
and Beach Cable, Inc.
System Service Agreement between Prevue Networks, Inc. and Beach Cable, Inc.
Affiliation Agreement between QVC Network Inc. and Beach Cable, Inc.
Affiliation Agreement between STT Video Partners and Beach Cable, Inc.
Service Agreement between ShowTime networks Sales and Marketing and Beach
Cable, Inc.
ShowTime Service Agreement between ShowTime Networks Sales and Marketing
and Beach Cable, Inc.
Five Year Service Agreement between Southern Satellite Systems, Inc. and
Beach Cable, Inc.
Agreement between Beach Cable and Sports Channel Florida Associates
Affiliation Agreement between Sunshine Network and Beach Cable, Inc.
Affiliate Agreement for TBS Superstation between ▇▇▇▇▇▇ Network Sales, Inc
and Beach Cable, Inc.
Affiliate Agreement between Television food Network and Beach Cable
Affiliation Agreement between The Travel, Inc and Beach Cable, Inc.
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265
Affiliate Agreement for ▇▇▇▇▇▇ Network Television Inc. and Beach Cable, Inc.
Affiliate Agreement for ▇▇▇▇▇▇ Classic Movies Inc, and Beach Cable, Inc.
Transmission Service Agreement between United Video and Beach Cable, Inc.
Affiliate Agreement for Cable Exhibition between USA Networks and Beach
Cable, Inc.
Affiliation Agreement between The Weather Channel, Inc. and Beach Cable, Inc.
Affiliation Agreement between Z Music, Inc and Beach Cable, Inc.
Letter of Proposal pertaining to Playboy TV and AdulTVision Carriage by KNOLOGY
Holdings, Inc.
Knowledge TV Launch Incentive
Affiliate Agreement between Great American Country and Beach Cable, Inc.
PROVISION OF SERVICE AGREEMENTS
AUGUSTA
Cable Televisions and Telephone Services Agreement between ▇▇▇▇▇▇ Investment
Company and KNOLOGY of Augusta, Inc.
CHARLESTON
Agreement between CP Limited Partnership, Saddlebrook and KNOLOGY of
Charleston, Inc.
CORPORATE
Cable Television and Telephone Service Agreement between Azalea Hills Apts. And
KNOLOGY Holdings, Inc
Multi-Unit Service Agreement between KNOLOGY Holdings, Inc. and Cloverland
Apartments
Multi-Unit Service Agreement between KNOLOGY Holdings, Inc. and Festival
Apartments
Cable Television and Telephone Service Agreement between ▇▇▇▇▇▇ Builders, Inc.
and KNOLOGY Holdings, Inc.
Services Agreement between ▇▇▇▇▇▇ Properties and KNOLOGY Holdings, Inc.
Services Agreement between ▇▇▇▇▇▇ ▇▇▇▇▇▇ Co. Inc. and KNOLOGY Holdings, Inc
Right of Entry Agreement between Lake forest Trailer Park, Inc and
KNOLOGY Holdings, Inc
Multi-Unit Service Agreement between KNOLOGY Holdings, Inc. and Lynwood Terrace.
Multi-Unit Service Agreement between KNOLOGY Holdings, Inc. and March
Management Co.
Right of Entry Agreement between Narrow Lane Villa, and KNOLOGY Holdings, Inc.
Cable and Telephone Services Agreement between The ▇▇▇▇▇▇ Development Company
and KNOLOGY Holdings, Inc.
Multi-Unit Service Agreement between KNOLOGY Holdings, Inc. and ▇▇▇ ▇.
▇▇▇▇▇▇ Inc.
Right of Entry Agreement between ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, and KNOLOGY Holdings, Inc.
Multi-Unit Service Agreement between KNOLOGY Holdings, Inc. and Shady Oaks
Apartments
Multi-Unit Service Agreement between KNOLOGY Holdings, Inc. and Sunvil, Inc.
Right of Entry Agreement between ▇▇▇▇▇▇ Realty and KNOLOGY Holdings, Inc.
Right of Entry Agreement between Caches Apartments and KNOLOGY Holdings, Inc.
Multi-Unit Service Agreement between KNOLOGY Holdings, Inc. and ▇▇▇▇▇▇ Gardens
Right of Entry Agreement between Colonial Properties and KNOLOGY Holdings, Inc.
Doctor's Hospital Service Agreement between KNOLOGY Holdings, Inc. and
Columbia Doctors Hospital.
Right of Entry Agreement between Narrow Lane Villa and KNOLOGY Holdings, Inc.
Multi-Unit Service Agreement between KNOLOGY Holdings, Inc. and Shady
Oaks Apartments
Right of Entry Agreement between ▇▇▇▇▇▇ Halcyon LLC Corporation of Peppertree
Center an KNOLOGY Holdings, Inc.
Right of Entry Agreement between Caches Apartments and KNOLOGY Holdings, Inc.
COLUMBUS
Cable Television and Telephone Agreement between the Argus Group and KNOLOGY of
Columbus, Inc.
Cable Television and Telephone Agreement between Country Club Properties and
KNOLOGY of Columbus, Inc.
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266
Cable Televisions and Telephone Agreement between Columbus Properties LTD and
KNOLOGY of Columbus, Inc.
Multi-Unit Services Agreement between KNOLOGY Holdings, Inc. and Efficiency
Lodge of Columbus, Inc.
Multi-Unit Service Agreement between American Cable Company Partnership and
▇▇▇▇▇ ▇▇▇▇▇▇.
Cable Television and Telephone Services Agreement between Huckleberry
Hill, LTD and KNOLOGY of Columbus, Inc.
Cable Television and Telephone Services Agreement between Mccorlew Realty Inc.
and KNOLOGY of Columbus, Inc.
Cable Television and Telephone Services Agreement between Mid-America Apartment
Communities, Inc. and KNOLOGY of Columbus, Inc.
Cable Television and Telephone Services Agreement between Oak Hill
Associates, d.b.a. Oak Hill Mobile Home Park and KNOLOGY of Columbus, Inc.
Cable Television and Telephone Services Agreement between Redding
Rentals, LTD and KNOLOGY of Columbus, Inc.
Cable Television and Telephone Services Agreement between ▇▇▇▇▇▇ ▇▇▇▇▇ and
KNOLOGY of Columbus, Inc.
Cable Television and Telephone Services Agreement between Southgate, Inc. and
KNOLOGY of Columbus, Inc.
Multi-Unit Service Agreement between American Cable Company Partnership
and ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇.
Multiple Unit Service Agreement between American Cable Company Partnership
and Country Club Properties, Inc.
Right of Entry Agreement between Lake Forest Trailer Park, Inc. and KNOLOGY
Holding, Inc.
Right of Entry Agreement between ▇▇▇▇▇▇ Realty and KNOLOGY Holding, Inc.
Bulk Rate Multiple Unit between ▇▇▇▇▇▇ Development and KNOLOGY Holdings, Inc.
Multi-Unit Service Agreement between KNOLOGY Holdings, Inc. and
▇▇▇ ▇. ▇▇▇▇▇▇ Inc.
Cable Television and Telephone Service Agreement between WLB, LLC, and
KNOLOGY of Columbus, Inc,
PROVISION OF SERVICES
MONTGOMERY
Standard Commercial Agreement between Montgomery Cable Vision and
Entertainment, Inc. and Alabama Inns Associates.
Cable Television Services Agreement between KNOLOGY in Montgomery and Alabama
State University of Montgomery, AL.
Right of Entry Agreement between ▇▇▇▇ Station Apartments and Montgomery Cable
Vision and Entertainment, Inc.
Cable Television and Telephone Service Agreement between ▇▇▇▇ Station
Associates, LTD and KNOLOGY of Montgomery, Inc.
Cable Television and Telephone Service Agreement between ▇▇▇▇▇▇ Crest
Company and KNOLOGY of Montgomery, Inc.
Cable Television and Telephone Service Agreement between Montgomery Cablevision
and Entertainment, Inc. and ▇▇▇▇▇ Development CO Inc.
Cable Television and Telephone Service Agreement between Montgomery Cablevision
and Entertainment Inc. and Born Toaks United a limited partnership.
Cable Television and Telephone Service Agreement between Coliseum Properties
and KNOLOGY of Montgomery, Inc.
Right of Entry Agreement between Carriage Hills Apartments of Montgomery and
Montgomery Cablevision and Entertainment, Inc.
Cable Television and Telephone Services Agreement between Montgomery Cablevision
and Entertainment Inc. and C&E Enterprise.
Agreement for Attachments between Central Alabama Electric Cooperative and
KNOLOGY Holding Inc.
Pole Attachment Bond between KNOLOGY Holdings, Inc. and Pacific Insurance
Company.
Right of Entry between Jonean Deal and Eagle Landing.
Standard Commercial Agreement between Montgomery Cablevision and
Entertainment, Inc. and Eastern Bypass Inns, LTD
Right of Entry between Montgomery Cablevision and Entertainment and Eagle
Landing Apartment Complex
Bulk Cable Communications Service and Access Agreement between Montgomery
Cablevision and Entertainment Inc. and ▇▇▇▇▇▇ Builders Inc.
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267
Cable Television Service Agreement between Montgomery Cablevision and
Entertainment and Foxcroft.
Cable Television Service Agreement between Montgomery Cablevision and
Entertainment Inc, and Hillwood Apartments
Service Agreement between International Computer Systems, Inc. and Montgomery
Cablevision
Multi-Unit Service Agreement between KNOLOGY Holdings, Inc. and March Management
Company
Cable Television and Telephone Services Agreement between ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Associates, LTD and KNOLOGY of Montgomery, Inc.
Cable Television and Telephone Services Agreement between ▇▇▇▇▇▇ Monday and
KNOLOGY of Montgomery, Inc.
Cable Television and Telephone Services Agreement between Mid-America Apartments
Communities, Inc. and KNOLOGY of Montgomery, Inc.
Service Agreements between KNOLOGY Holdings, Inc. and Montgomery Alabama Hotel
Limited Partnership
Multiple-Unit Agreement between Montgomery Motel Associates Montgomery Day Inn
and Montgomery Cablevision and Entertainment, Inc.
Right of Entry Agreement between ▇▇▇▇▇▇ Construction and Montgomery Cablevision
and Entertainment, Inc.
Cable Television and Telephone Service Agreement between Narrow Lane, LTD
Narrow Lane Apartments and KNOLOGY of Montgomery, Inc.
Multi-Unit Service Agreement between KNOLOGY Holding Inc. and Park Towne
Apartments LTD
Bulk Rate Multiple-Unit between ▇▇▇▇▇▇ Development Company and KNOLOGY
Holdings, Inc.
Non-Exclusive Cable Television and Telephone Services Agreement between
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and KNOLOGY of Montgomery, Inc.
Cable Television Services Agreement between Montgomery Cablevision and
Entertainment Inc. and Stratford Village Realty Trust
Cable Television and Telephone Service Agreement between Three Flags
Apartments LLC and KNOLOGY Holdings, Inc.
Right of Entry Agreement between Turtle Place Apartments and KNOLOGY
Cable Television and Telephone Services Agreement between UDRT of Alabama Inc.
and KNOLOGY of Montgomery, Inc.
Memorandum of Agreement between UDRT of Alabama and KNOLOGY of Montgomery
Service and Access Agreement between Montgomery Cablevision and
Entertainment, Inc. and USA Hotel Corporation
Right of Entry between ▇▇▇▇▇▇ Pointe Apartments and Montgomery Cablevision and
Entertainment, Inc.
Multi-Unit Service Agreement between KNOLOGY Holdings, Inc. and ▇▇▇▇▇▇ Gardens
Service Agreement between CP Limited Partnership Woodland Hills and
KNOLOGY of Montgomery, Inc.
PROVISION OF SERVICE
PANAMA CITY
Service Subscription Agreement between Lollye on the Beach and Beach Cable Inc.
Installation and Service Subscription Agreement between Mariner West Owners
Assoc. Inc. and Beach Cable, Inc.
Installation and Service Subscription Agreement between ▇▇▇ ▇▇▇▇▇▇▇▇ and
Beach Cable Inc.
Installation and Service Subscription Agreement between ▇▇▇▇▇▇▇▇ Inn and
Beach Cable Inc.
Installation and Service Subscription Agreement between ▇▇▇▇▇▇▇ ▇. Means and
Beach Cable Inc.
Cable Television and Telephone Services Agreement between Mid-America and
KNOLOGY of Panama City, Inc.
Installation and Service Subscription Agreement between Miracle Strip
Beach Motel and Beach Cable, Inc.
Installation and Service Subscription Agreement between ▇▇▇▇▇ ▇▇▇▇▇▇▇
Condominiums and Beach Cable Inc.
Installation and Service Subscription Agreement between Nautical Watch
Homeowners Assoc.
Installation and Service Subscription Agreement between Beach Cable, Inc.
and Nautilus Condominiums Homeowners Asso.
Installation and Service Subscription Agreement between ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇
Installation and Service Subscription Agreement between Ospray Hotel and Beach
Cable Inc.
Installation and Service Subscription Agreement between Oxygen Zone Motel Inc.
and KNOLOGY of Bay County Inc.
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268
Installation and Service Subscription Agreement between The Palms Homeowners
Association and Beach Cable Inc.
Installation and Service Subscription Agreement between Panama Palms Inc.
and Beach Cable Inc.
Installation and Service Subscription Agreement between ▇▇▇▇▇▇'▇ Place and
Beach Cable Inc.
Installation and Service Subscription Agreement between Raj. ▇▇▇▇▇ and
Beach Cable Inc.
Installation and Service Subscription Agreement between PCB Properties and
Beach Cable Inc.
Installation and Service Subscription Agreements between Peachtree Place Inc.
and Beach Cable Inc.
Installation and Service Subscription Agreements between Peachtree Place I
Homeowners Association and Beach Cable Inc.
Installation and Services Subscription Agreements between Pier 99 Beachfront
Motel and Beach Cable Inc.
Installation and Service Subscription Agreements between Polynesian Village
and Beach Cable Inc.
Installation and Service Subscription Agreements between Port of Call Motel
and Beach Cable Inc.
Installation and Service Subscription Agreements between Ramsgate Harbour
Condos Homeowners Assoc. and Beach Cable Inc.
Installation and Service Subscription Agreement between The Reef Motel
and Beach Cable Inc.
Installation and Service Subscription Agreement between Regency Towers Owners
Assn. and Beach Cable Inc.
Installation and Service Subscription Agreement between ▇▇▇▇▇▇▇▇ Cottages
and Beach Cable Inc.
Installation and Service Subscription Agreement between ▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇ Inc. d.b.a. Palmetto Court Motel and Beach Cable Inc.
Installation and Service Subscription Agreement between RI Panama City, LTD
and Beach Cable Inc.
Installation and Service Subscription Agreement between Sandpiper Villas
Condominiums and Beach Cable Inc.
Installation and Service Subscription Agreement between Sands of Laguna and
Beach Cable Inc.
Installation and Service Subscription Agreement between ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇ and
Beach Cable Inc.
Installation and Service Subscription Agreement between Sea Starr Inn and
Beach Cable Inc.
Installation and Service Subscription Agreement between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
Beach Cable Inc.
Installation and Service Subscription Agreement between Siesta Motel and
Beach Cable Inc.
Installation and Service Subscription Agreement between Skyway Motel and
Beach Cable Inc.
Installation and Service Subscription Agreement between Mr. ▇▇▇▇▇▇ ▇▇▇▇▇ and
Beach Cable Inc.
Installation and Service Subscription Agreement between Spain Apartments and
Cottages and Beach Cable Inc.
Installation and Service Subscription Agreement between Sugar Beach and
Beach Cable Inc.
Installation and Service Subscription Agreement between Sugar Sands Motel and
Beach Cable Inc.
Installation and Service Subscription Agreement between Summer Breeze Inn Inc.
and Beach Cable Inc.
Installation and Service Subscription Agreement between Summer House Of
P.C. Assn. Inc. and Beach Cable Inc.
Installation and Service Subscription Agreement between The Summit Owners
Association Inc. and Beach Cable Inc.
Installation and Service Subscription Agreement between Sun Dial Motel and
Beach Cable Inc.
Installation and Service Subscription Agreement between Surf High Inn Inc.
and Beach Cable Inc.
Service Agreement between ▇▇▇▇ ▇. ▇▇▇▇▇▇ and KNOLOGY of Panama City Inc.
Installation and Service Subscription Agreement between Tradewinds of Bay
County Inc. and KNOLOGY of Panama City Inc.
Installation and Service Subscription Agreement between Twin Palms Motel
of PCB Inc. and Beach Cable Inc.
Installation and Service Subscription Agreement between ▇▇▇▇ and/or ▇▇▇▇▇▇
▇▇▇▇ and Beach Cable Inc.
Installation and Service Subscription Agreement between Vero Mar
Development LTD. and Beach Cable Inc.
Installation and Service Subscription Agreement between Beach Cable Inc. and
Villas Bahama West Homeowners Assoc.
Installation and Service Subscription Agreement between Wendwood Condominiums
and Beach Cable Inc.
Installation and Service Subscription Agreement between ▇▇▇▇ ▇▇▇▇▇▇▇▇ and
Beach Cable Inc.
Installation and Service Subscription Agreement between Admiral Imperial and
Beach Cable Inc.
Installation and Service Subscription Agreement between Altan's Beach Motel
and Beach Cable Inc.
Installation and Service Subscription Agreement between American Valley of
Panama City LTD and Beach Cable Inc.
Installation and Service Subscription Agreement between Arquette
Development Inc. and Beach Cable Inc.
Installation and Service Subscription Agreement between ▇▇▇▇▇ ▇▇▇▇▇▇ and
Beach Cable Inc.
Cable Television Easement Agreement between Bayside Partnership and
Beach Cable Inc.
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269
Installation and Service Subscription Agreement between Beachcomber by the
Sea Inc. and KNOLOGY of Bay County Inc.
Installation and Service Subscription Agreement between Beachtime Cottages
and Beach Cable Inc.
Installation and Service Subscription Agreement between ▇▇▇▇▇▇▇'▇ Reef Inc.
and Beach Cable Inc.
Installation and Service Subscription Agreement between Blue Water Town Houses
Assoc. and Beach Cable Inc.
Installation and Service Subscription Agreement between Bright Starr Motel
and Beach Cable Inc.
Installation and Service Subscription Agreement between Catalina Court and
Beach Cable Inc.
Installation and Service Subscription Agreement between Coconut Grove Inn. Inc.
and Beach Cable Inc.
Installation and Service Subscription Agreement between ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
and Beach Cable Inc.
Services Agreement between Big "D" Inc. and KNOLOGY of Panama City Inc.
Installation and Service Subscription Agreement between Mr. ▇▇▇ ▇▇▇▇▇▇ and
Beach Cable Inc.
Installation and Service Subscription Agreement ▇▇▇▇▇ ▇▇▇▇▇, BBA Big D Inc.
and Beach Cable Inc.
Installation and Service Subscription Agreement between Dockside North
Condominiums and Beach Cable Inc.
Installation and Service Subscription Agreement between Driftwood Lodge and
Beach Cable Inc.
Installation and Service Subscription Agreement between Edge Water
Construction and Beach Cable Inc.
Installation and Service Subscription Agreement between El Centro Condo
Association and Beach Cable Inc.
Installation and Service Subscription Agreement between Emerald Beach Motel
and Beach Cable Inc.
Installation and Service Subscription Agreement between Emerald Coast Club and
Beach Cable Inc.
Installation and Service Subscription Agreement between Emerald Coast RV Park
and Beach Cable Inc.
Installation and Service Subscription Agreement between Fiesta Motel and Beach
Cable Inc.
Installation and Service Subscription Agreement between Gateway Ventures Inc.
and Beach Cable Inc.
Installation and Service Subscription Agreement between Gemini Beach Condo
and Beach Cable Inc.
Installation and Service Subscription Agreement between Georgian ▇▇▇▇▇▇▇▇ Motel
and Beach Cable Inc.
Installation and Service Subscription Agreement between ▇▇▇▇ ▇▇▇▇▇▇▇ and Beach
Cable Inc.
Installation and Exclusive Cable Provider Agreement between Beach Cable Inc.
Installation and Service Subscription Agreement between ▇▇▇▇ ▇▇▇▇▇▇▇ and
Beach Cable Inc.
Installation and Service Subscription Agreement between Grande Gulf Motel and
Beach Cable Inc.
Installation and Service Subscription Agreement between Mr. ▇▇▇▇▇ ▇▇▇▇▇ and
Beach Cable Inc.
Installation and Service Subscription Agreement between Gulf Edge Court and
Beach Cable Inc.
Installation and Service Subscription Agreement between Gulf Highlands Beach
Resort Homeowners Association Inc. and Beach Cable Inc.
Installation and Service Subscription Agreement between Gulf Winds and
Beach Cable Inc.
Installation and Service Subscription Agreement between ▇▇▇▇ ▇▇▇▇▇▇▇▇ and Beach
Cable Inc.
Service Agreement between Harbour's Edge Condominiums and KNOLOGY of Panama City
Installation between Hilton Inc. and Beach Cable Inc.
Installation and Service Subscription Agreement between Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇ and
Beach Cable Inc.
Exclusive Cable Television Services Agreement between ▇▇▇ ▇▇▇▇▇▇▇ and
KNOLOGY of Panama City Inc.
Installation and Service Subscription Agreement between ▇▇▇▇ ▇▇▇▇ ▇▇. and
Beach Cable Inc.
Installation and Service Subscription Agreement between ▇▇▇▇▇▇▇ ▇▇▇▇ and
Beach Cable Inc.
Installation and Service Subscription Agreement between LaBrisa Inn and Beach
Cable Inc.
Installation and Service Subscription Agreement between Laguna Beach Christian
Retreat and Beach Cable Inc.
Installations and Service Subscription Agreement between ▇▇ ▇▇▇▇▇▇▇▇ Beach
Resort Owner's Association Inc. and KNOLOGY of Panama City Inc.
HUB LEASES
COLUMBUS
Lease Agreement between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and American Cable Company Inc.
Non-Disturbance and Attornment Agreement with Mortgage between American
Cable Company Inc. and First Alabama Bank of Columbus.
Lease Agreement B.E. ▇▇▇▇▇▇ White and American Cable Company Inc.
MONTGOMERY
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270
Lease Agreement between WMH ▇▇▇▇▇▇▇▇ and Montgomery Cablevision and
Entertainment
Lease Agreement between ▇▇▇▇▇▇/▇▇▇▇▇▇, LLC and Montgomery Cablevision
and Entertainment
PANAMA CITY
Lease Agreement between Coulliett's Auto Mall Inc. and KNOLOGY of Panama
City Inc.
Lease Agreement between ▇▇▇▇ ▇. ▇▇▇▇▇/Assign and KNOLOGY of Panama City Inc.
EQUIPMENT AND OTHER
MONTGOMERY
Lease Agreement between Southern Boulevard Corporation and Cybemet Holding
d/b/a/ Montgomery Cablevision and Entertainment Inc.
Equipment Lease between ▇▇▇▇▇ Equipment Leasing Co. and Montgomery Cablevision
and Entertainment Inc.
MISC. SERVICE AGREEMENTS
CORPORATE
Independent Contractor's Agreement is between KNOLOGY Holdings Inc.and
Communications Cable Inc.
First Addendum to Collocation Agreement is between KNOLOGY Inc. and
Interstate FiberNet Inc.
Master Capacity Lease is between Interstate FiberNet and CyberNet Holding
Standard Terms and Conditions is between Illuminet Inc. and Agreement Customer
Agreement for 800 Database Service is between Illuminet Inc. and Customer
Software License Agreement is between ▇▇ ▇▇▇▇▇▇▇ and KNOLOGY Holding Inc.
Lease Agreement is between Interstate Telephone Company and CyberNet
Holding Inc.
Agreement regarding Co Delivery is between Mind Spring Enterprises Inc.
and KNOLOGY Holding Inc.
Client Service Agreement is between International Computer Systems Inc.
and KNOLOGY
Product Attachment between Northern Telecom Inc. and KNOLOGY Holding Inc.
Executed Contract between Syntellect Inc. and KNOLOGY Holding Inc.
Contractual Agreement between ▇▇▇▇▇ ▇▇▇▇▇ Associates Inc. and KNOLOGY
CONSTRUCTION AGREEMENTS
AUGUSTA
Construction Agreement between KNOLOGY Holdings Inc. and Cable Constructors Inc.
Form of Change Order Agreement between KNOLOGY Holdings Inc. and Cable
Construction Inc.
Construction Agreement between KNOLOGY Holdings Inc. and Premier Cable
Communications
Construction Agreements between KNOLOGY Holdings Inc. and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Co Inc.
Construction Agreements between KNOLOGY Holdings Inc. and ▇▇▇▇▇ Communications
Construction Agreements between KNOLOGY Holdings Inc. and ProMark Utility
Locators Inc.
Construction Agreements between KNOLOGY Holdings Inc. and P&T Electric Inc.
COLUMBUS
Construction Agreement between Holding Inc. and A-Com Protection Services
Construction Agreement between KNOLOGY Holding Inc. and Cable
Constructors Inc.
Construction Agreement between KNOLOGY Holdings Inc. and ▇▇▇▇▇ ▇. ▇▇▇▇ Inc.
Construction Agreements between KNOLOGY Holdings Inc. and Control Technologies
Inc.
Installations Agreement between KNOLOGY Holdings Inc. and Gateway CATV
Construction Inc.
Construction Agreement between KNOLOGY Holdings Inc. and First Coast
Cable Construction Inc.
Construction Agreements between KNOLOGY Holdings Inc. and Lexus Cabling Corp.
Installation Agreement between KNOLOGY Of Columbus Inc. and Major Cable
Installation Agreement between American Cable Inc. and Professional Cable
Installations Inc.
21
271
MONTGOMERY
Construction Agreement between KNOLOGY Holding Inc. and Cable Constructors Inc.
Construction Agreement between KNOLOGY Holding Inc, and First Coast Cable
Construction Inc.
Accordance with the Agreements for construction between Mich-Com Cable
Services Inc. and KNOLOGY Holdings Inc.
Construction Agreement between KNOLOGY Holdings Inc. and ▇▇▇▇▇ Communications
PANAMA CITY
Construction Agreement between KNOLOGY Holding Inc. and Cable Constructors Inc.
Construction Agreement between KNOLOGY Holding Inc. and ▇▇▇▇▇ Communications
Construction Agreement between KNOLOGY Holding Inc. and Premier Cable
Communications
Installation Agreement between KNOLOGY Holding Inc. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
d/b/a/ ▇▇▇▇▇▇▇ Contr.
Construction Agreement between KNOLOGY Holdings Inc. and Sub Aqueous Engineering
Services Inc.
CHARLESTON
Construction Agreements between KNOLOGY Holdings Inc. and First Coast Cable
Construction
Construction Agreements between KNOLOGY Holding Inc. and First South Utility
Construction
CONSTRUCTION AGREEMENTS
COLUMBUS
Installation Agreement between American Cable Inc. and Gateway CATV Contruction
Construction Agreement between KNOLOGY Holdings Inc. and Professional
Cable Installation
Agreement between KNOLOGY Of Columbus Inc. and ▇▇▇▇▇▇▇▇ Underground Services
MONTGOMERY
Installation Agreement between KNOLOGY of Montgomery Inc. and Amerilink Corp.
Installation Agreement between KNOLOGY of Montgomery Inc. and Cable Constructors
RIGHT-AWAY
COLUMBUS
License Agreement between American Cable Inc. and American Communications
Services of Columbus Inc.
Addendum to license Agreement between American Cable Inc. and American
Communications Services of Columbus Inc.
Pole Attachment Agreement between Georgia Power Company and American Cable
Company
License Agreement between ▇▇▇▇ South Communications Inc. and American Cable
Company
Consent to Assignment between American Cable Inc. and Georgia Power
MONTGOMERY
Agreement for Attachments between Montgomery Cablevision and Entertainment Inc.
and Alabama Power Company
22
272
License Agreement for Pole Attachments between South Central ▇▇▇▇ Telephone
Company and Montgomery Cablevision and Entertainment Inc.
PANAMA CITY
License Agreement between ▇▇▇▇ South Telecommunications Inc. and Beach
Cable Inc.
Pole Attachment Agreement between Gulf Power Company and Beach Cable Inc.
Assignment Agreement between Gulf Power Company and KNOLOGY of Panama City Inc.
CHARLESTON
License Agreement between Berkeley Electric Cooperative, Inc and KNOLOGY of
Charleston, Inc.
Facilities Transfer Agreement between South Carolina Electric and Gas Company
and KNOLOGY of Charleston
Master Pole Attachment Agreement between South Carolina Electric and Gas
and KNOLOGY Holdings Inc.
Network Access Agreement between SCANA Communications, Inc. and KNOLOGY
AUGUSTA
Right of Entry Agreement between Enterprise Mill LLC and KNOLOGY of Augusta Inc.
RIGHT AWAY
Georgia Power Standard Pole Agreement
SCANA
CABLE PROGRAMMING
CORPORATE
Discovery Communications Inc. Showcase Services Affiliation Agreement
ESPN2 Affiliate Agreement
ESPN Inc. News Affiliate Agreement
Great American Country Launch Affiliate Agreement
Home and Garden Network Television
KNOLOGY TV Launch Affiliate Agreement
Playboy Entertainment Group Inc. Carriage Agreement
Show Time Network Service Agreement
Value Vision Enervation Inc. Carriage Agreement
Value Vision Short Form Agreement
ZDTV LLC Carriage Agreement
COLUMBUS
Country Music Television Inc.
America's Health Network Affiliate Launch
United Video Satellite Transmission Service Agreement
MONTGOMERY
Cable News Network Inc. Affiliate Agreement
ESPN Inc, Affiliation Agreement
Eternal Worlds Television Network
QVC Affiliate Agreement
Show Time Network Inc. July 9, 1990
23
273
The Movie Channel Service Agreement
CORPORATE
Interstate Office Park Agreement
Laurmest Montgomery Corp. Service Agreement
Montgomery Alabama Hotel Limited d.b.a. Days Inn
Three Flags Apartments Service Agreement
▇▇▇▇▇ ▇▇▇▇▇▇ Right of Entree
Whisperwood Spa and Club LP Multi-Unit
COLUMBUS
Calvary Community Inc, Service Agreement
The Argus Group Garden Brook Apt. Comm.
Country Club Properties Hillcrest Apt. Service Agreement
Winthrop Apartments Service Agreement
MONTGOMERY
Cambridge Park Apartments Service Agreement
▇▇▇▇▇▇▇ Court Service Agreement
USA Hotel Corp. Service Agreement
Hillwood Apartments and Service Agreement
Oxford Gardens and Spanish Gardens
PANAMA CITY
The Disney Channel Affiliation Agreement
Driftwood Lodge Provider Agreement
E! Entertainment Television Inc, Affiliation Agreement
Encore Media Corporation Affiliation Letter Agreement
ESPN Inc. Affiliation Agreement
ESPN News Affiliation Agreement
ESPN 2 Affiliation Agreement June 1, 1994
ESPN 2 Amendment to Affiliation Agreement
The Family Channel Affiliation Agreement
Flix Service Agreement
The Golf Channel Affiliation Agreement
Headline News Affiliation Agreement
HGTV Affiliate and Retransmission Consent
The History Channel Affiliation Agreement
Home Shopping Club Inc, Affiliation Agreement
TCT Inc. Affiliation Agreement
The Learning Channel Affiliate Renewal
Life Time Affiliation Agreement
MSNBC Affiliation Agreement
MTV Networks Affiliate Agreement
The Nashville Network Affiliate Agreement
The Television Food Network Extended Affiliate Agreement
The Travel Channel Affiliation Agreement
▇▇▇▇▇▇ Network Television Affiliate Agreement
▇▇▇▇▇▇ Classics Movies Affiliate Agreement
Turtle Lake Associates LTD Turtle Lake Service Agreement
24
274
United Transmission Service Agreement
The Weather Channel Affiliation Agreement
The Weather Channel Inc. Affiliation Agreement
The Weather Star XL Addendum Amendment
▇▇▇▇ ▇▇▇▇▇▇▇▇ Provider Agreement
Nick at Nites TV Land Affiliate Agreement
Oxygen Zone Motel Inc, Provider Agreement
Outdoor Life Speed Vision Affiliation Agreement
Prevue Guide Channel Service Agreement
QVC Network Inc. Affiliation Agreement
Science Fiction Channel Affiliation Agreement
Summer House of P.C. Assn. Inc, Provider Agreement
Southern Satellite Systems Five Year Agreement
Sunshine Network Affiliation Agreement
TBS Superstation Affiliate Agreement
Sports Channel Affiliate Agreement
Show Time Networks Service Agreement October 10, 1994
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Site Agreement
▇▇▇▇▇▇▇▇ Leasing and Development Co. Construction Agreements
▇▇▇▇▇▇▇▇ Cable Inc. Construction Agreements
Construction Agreement between KNOLOGY Holdings Inc. and Hal-Tec
Construction Inc.
Lease Agreement between Interstate Telephone Company and KNOLOGY Holding Inc.
Make Ready Agreement between KNOLOGY of Columbus Inc. and ACSI Communications
Service of Columbus
License Agreement between KNOLOGY Holdings Inc. and ITC Globe Inc.
Site Agreement between Hub G and Montgomery Cablevision and Entertainment Inc.
Option and Lease Agreement between ▇▇▇▇ ▇▇▇▇▇▇▇▇ Builder LLC and KNOLOGY of
Montgomery Inc.
Collocation Agreement for Multiples Sites between Interstate FiberNet Inc.
and [Fiber Net Inc.]
Hub Lease Agreement between ▇▇▇▇▇▇▇ ▇▇▇▇ and KNOLOGY of Charleston Inc.
Installation Agreement between American Cable Inc. and ▇▇▇▇▇▇▇
Communication Inc.
Release and Indemnity Agreement NPAC/SMS User Agreement between and by
KNOLOGY Holdings Inc.
Master Service Agreement and Illuminate LPN Service Order Administrator
Exclusive Cable Television Service Agreement between Couch Family Trust and
KNOLOGY of PC Cable Television and Telephone Service Agreement
La Femme Inc. KNOLOGY of Montgomery
Service Agreement between Regency Towers Owners Association and KNOLOGY of
Panama City
Service Agreement between ▇▇▇▇▇▇ ▇. Mix and KNOLOGY of Panama City Inc.
Service Agreement between ▇▇▇▇▇▇▇▇ Rentals and KNOLOGY of Charleston Inc.
Lease Agreement between Southern Company Services Inc. and KNOLOGY Holding Inc.
25
275
SCHEDULE 6. 1 (w)(x)
NOTICES OF RATE REGULATION
None.
276
SCHEDULE 10.3
EXISTING LIENS
1 . Colonial South Corp. assigned to Southtrust Bank of Charleston, N.A. its
interest in and to certain Leased Equipment of TTE, Inc., South Carolina
Secretary of State UCC filing #135153B, dated December 17, 1993.
2. Colonial South Corp. assigned to Southtrust Bank of Charleston, N.A. its
interest in and to certain Leased Equipment of TTE, Inc., South Carolina
Secretary of State UCC filing #133602A, dated February 4, 1994.
277
Schedule 10.4
EXISTING LOANS, ADVANCES AND INVESTMENTS(3)
Employee
Advances/Loans Investments
-------------- -----------
Knology Holdings $ 3,400 885,000 (1)(2)
Knology of ▇▇▇▇▇▇▇▇▇▇ 15,500 None
Knology of Columbus 1,000 None
Knology of Panama City 4,500 None
Knology of Charleston 3,000 None
Knology of Augusta 200 None
Knology of Huntsville 12,500 None
Knology of TTE 1,000 None
Knology of Baton Rouge None None
Knology of Alabama None None
Knology of Florida None None
Knology of Georgia None None
Knology of Louisiana None None
Knology of South Carolina None None
Knology of Tennessee None None
(1) Consisting of $60,000 co-ownership of Corporate jet, $825,000
investment in ClearSource
(2) Excludes commitment to fund additional S4,250,000 investment in
ClearSource, existing at closing and agreed to by the Lenders under Section
10.4(b) of Credit Agreement
(3) Excludes intercompany investments between Loan Parties allowed under
Section 10.4(b) of Credit Agreement and prepaids and similar deposits
allowed under Section 10.4(f) of Credit Agreement