EXHIBIT 10.2
FIRST AMENDED AND RESTATED
MANAGEMENT AGREEMENT
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THIS FIRST AMENDED AND RESTATED MANAGEMENT AGREEMENT (this
"Agreement") is made and entered into as of the 27th day of December, 1996, by
and between Mediacom California LLC, a Delaware limited liability company (the
"Company"), and Mediacom Management Corporation, a Delaware corporation
("Manager").
WHEREAS, the Company owns and operates cable television systems, is on
the date hereof acquiring an additional cable television system, and has
acquired an Internet communications node, such cable television systems and
Internet communications node serving the communities listed on Schedule A hereto
(as may be amended from time to time pursuant to the terms hereof, the
"Systems"); and
WHEREAS, the Company desires to engage Manager, and Manager desires to
accept such engagement, to provide certain supervisory services as the manager
of each of the Systems on a day-to-day basis, such services to be provided by
Manager in accordance with the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree that the Management Agreement is hereby
amended and rested in its entirety as follows:
1. Definitions. Except as otherwise defined herein, the following
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terms shall have the following meanings when used in this Agreement:
"Act" shall mean the Communications Act of 1934, as amended or
modified from time to time, and any rules or regulations promulgated thereunder.
"Affiliate" shall mean, with respect to either the Company or Manager,
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such party.
"Agency Account" shall have the meaning given to it in Section 7(a) of
this Agreement.
"Effective Date" shall mean the date of this Agreement first above
written.
"FCC" shall mean the United States Federal Communications Commission.
"FCC Licenses(s)" shall mean all federal domestic satellite, business
radio and other communications licenses, permits and other authorizations (but
not including any Franchise or Permit) which are necessary to conduct the
business or operations of the Systems.
"Fiscal Year" shall mean a fiscal year of the Company.
"Franchise(s)" shall mean all municipal, county or state franchises,
or other authorizations, and applications therefor, which are necessary in
connection with the operation of the Systems.
"Franchise Areas" shall mean those areas for which the Company or its
subsidiaries holds Franchises.
"Gross Operating Revenues" shall mean the aggregate gross operating
revenues derived by the Systems from all sources as determined in accordance
with generally accepted accounting principles except those items expressly
excluded pursuant to the next sentence. The term "Gross Operating Revenues"
shall not mean revenue or income derived by the Company and its wholly-owned
companies from any of the following sources: (a) from the sale of any asset of
the Systems not in the ordinary course of business; (b) interest income; (c)
proceeds from the financing or refinancing of any indebtedness of the Company
and its subsidiaries; and (d) extraordinary gains in accordance with generally
accepted accounting principles.
"Management Fee" shall have the meaning given to it in Section 8.1(a)
of this Agreement.
"Permit(s)" shall mean any federal, state or local license, permit or
other governmental or nongovernmental authorization, other than a Franchise or
an FCC License, which is necessary to the conduct of the business or operations
of the Systems.
"Person" shall mean any individual, corporation, partnership, joint
venture, trust or unincorporated organization, or a government or any agency or
political subdivision thereof.
2. Appointment of Manager. Upon the terms and conditions and for
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the term and compensation set forth herein, the Company hereby engages Manager,
and Manager hereby accepts such engagement, as manager of the day-to-day
operations of the Systems and subject to the direction and control of the
Company.
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3. Term. The appointment of the Manager shall commence on the
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Effective Date, and shall continue until the dissolution and liquidation of the
Company, unless sooner terminated as provided in Section 9 hereof.
4. Standard of Care; Management Services;
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Other Matters.
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4.1 Standard of Care. Manager will use reasonable commercial
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efforts in managing the Systems, provided, however, that notwithstanding
anything contained herein or in applicable law to the contrary, neither Manager
(nor any of its shareholders, officers, directors, employees or agents) shall
have any liability, express or implied, for any action taken or omitted to be
taken by Manager or for any failure or delay in performing or exercising any
obligation, duty, right, power or authority possessed by Manager under this
Agreement or any other document related thereto except for actual losses, if
any, suffered by the Company and/or its subsidiary companies that are
proximately caused either by Manager's gross negligence or by Manager's willful
misconduct.
4.2 Services to be Performed by Manager. Subject to the terms
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and provisions of this Agreement and to the terms of any applicable law
(including without limitation the Act), regulation, Franchise, FCC License,
Permit, court order or administrative enactment pertaining to the Systems,
Manager is hereby granted authority to perform, or cause to be performed, for
and on behalf of the Company and its subsidiaries, such services as are
reasonably required for the management and supervision of the day-to-day
operation of the Systems, including without limitation, the following:
(a) Negotiation on behalf of the Company for programming and
transmission over the Systems, including, without limitation, retransmission,
affiliation, carriage, programming and bulk subscriber agreements;
(b) (i) Evaluating new equipment, materials and techniques and making
recommendations in accordance with its evaluations, (ii) establishing general
technical standards and procedures and directing their implementation, and (iii)
establishing programs for preventive maintenance and monitoring their
effectiveness;
(c) Supervision of all construction and development of the Systems, if
any, including, without limitation, the selection and appointment of all
subcontractors, equipment suppliers and vendors;
(d) Supervision of the purchasing of property, real, personal or
mixed, and all materials and supplies, if any, necessary to complete
construction and development of the Systems and to operate the same and to sell,
lease, trade, exchange or
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otherwise dispose of the Systems' assets in the ordinary course of business.
(e) Negotiation of contracts, leases, deeds, releases, assignments and
any other agreements on behalf of the Company or its wholly-owned companies as
appropriate, for the purchase, lease, license or use of such properties and
rights as may be necessary or reasonably desirable in connection with the
construction, operation or maintenance of the Systems, including, without
limitation, contracts relating to head end sites, office space, earth stations,
microwave relays and pole line attachments;
(f) Formulation and supervision of all advertising, marketing and
sales programs and engagement and appointing on behalf of the Systems of
advertising, marketing and public relations agencies and consultants for such
purposes;
(g) Subject to the provisions of all applicable Franchises or
ordinances or other binding contracts or legislation, the selection and pricing
of all services to be provided to the customers of the Systems;
(h) Supervision of performance of all aspects of the daily operation
and maintenance of the Systems, including, without limitation, the employment,
training, instruction and supervision of all personnel necessary to conduct
daily operations of the Systems and the setting of salaries and wages for such
personnel (with all such employees to be paid by the Company or its wholly owned
companies as appropriate) and entering into, in the name of and on behalf of the
Company or its wholly-owned companies as appropriate, any agreements, including,
without limitation, collective bargaining agreements, with employees of the
Company;
(i) Supervision of the maintenance of all accounting, bookkeeping,
billing, collections and other financial records relating to the Systems;
(j) Engaging on behalf of the Company or its subsidiaries, as
appropriate, attorneys, accountants, engineers, consultants and other qualified
professionals;
(k) Preparing and filing, or causing to be prepared and filed, all
necessary applications, filings, reports, statements and other documents as are
required in connection with the operation of the Systems with governmental and
regulatory agencies (including any income tax filings); provided that upon
request of the Company, Manager will provide to the Company a copy of all
applications, filings, reports, statements or other documents before the same
are filed or submitted; and provided further that it is understood that income
tax filings of the Company shall be signed by a nationally recognized accounting
firm selected by the Company and with whom the Manager shall cooperate;
(l) Manager shall do, or cause to be done, all such acts and things in
and about the Systems, including the making
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of all payments, taxes, assessments, fees, charges, royalties and other levies
as shall be necessary to comply in all material respects with all federal state
and local regulatory or other requirements;
(m) Purchase such policies of insurance (including Manager's blanket
coverage) as Manager may from time to time consider necessary and appropriate in
accordance with normal industry practice, with such policy naming both the
Company and Manager as insured thereunder as their interests may appear;
(n) Maintenance of a continuing liaison with federal, state and local
governmental officials regarding the Franchises, FCC Licenses, Permits, pole
line agreements, leases and other contracts, rights and licenses of the Systems
which require periodic review and/or renegotiation;
(o) Application of commercially reasonable efforts to cause the
Systems to comply in all material respects with the requirements of the statute,
ordinance, law, rule, regulation, Permit, Franchise or FCC License applicable
to, or order of, any governmental or regulatory body having jurisdiction over,
the Systems; and
(p) Taking any other action in connection with the construction,
development, operation and maintenance of the Systems which is commercially
reasonable, appropriate and necessary in order to manage and operate the
Systems.
4.3 Compliance with FCC Licenses, Franchises and Permit
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Requirements; Payment of Expenses. Notwithstanding anything in this Agreement
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to the contrary, the Company or its subsidiaries, as appropriate, shall continue
to be the franchisee, licensee and permittee of all Franchises, FCC Licenses and
Permits, respectively, and shall retain ultimate control over the Systems and
their assets, including all Franchises, FCC Licenses and Permits. The Company
and its subsidiaries shall also retain ultimate responsibility for compliance
with the rules, regulations and policies of the FCC, and the terms of the Act,
the terms of the Franchises and applicable state and local laws, rules and
regulations. Manager agrees to comply with instructions from the Company to the
extent necessary to remain in compliance with respect to the Act and the rules,
regulations and policies of the FCC and of all franchising authorities from
which the Company or its subsidiaries have received Franchises. Manager shall
use commercially reasonable efforts to promptly forward to the Company copies of
all material correspondence, notices and the like from governmental authorities
having jurisdiction over the Company and its subsidiaries. The Company and its
subsidiaries shall be responsible for the payment of all costs, expenses and
liabilities in connection with the construction, development, operation,
maintenance, repair and ownership of the Systems.
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5. Manager's Authority and Limitations Thereon.
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Subject to the limitations contained in this Agreement, Manager shall
have authority to execute in the name and on behalf of the Company or its
subsidiaries, as appropriate, all such instruments, documents, contracts or
agreements, including, without limitation, contracts or agreements entered into
in the ordinary course, and to do all such acts and things, as may be incidental
to, or necessary, proper or advisable in furtherance of, the supervision and
management of the operation of the Systems and the rendering of services related
thereto; provided, however, that Manager shall not:
(a) Commence, institute or settle any legal action except in
accordance with established collection policies of the Systems; provided that
Manager may, without consent of the Company (1) settle any action that does not
require a settlement payment exceeding One Hundred Thousand Dollars ($100,000);
and (2) institute any action so long as Manager reasonably believes that there
will be no cross-claims or counter-claims against the Company (or its
subsidiaries) in excess of $100,000. Notwithstanding the foregoing, if any
action is taken by any Person which constitutes an immediate threat to the
business or operations of the Systems, Manager may take such emergency action as
may be reasonably required, including commencing any action requesting
affirmative relief from any court or administrative agency, provided that
Manager shall use its best efforts to communicate with the Company by telephone
prior to, or if it is unable to do so, as soon as is commercially reasonably
possible immediately after taking any such emergency action. Manager shall
promptly notify the Company in writing of any legal proceeding of which Manager
has knowledge or any legal proceeding threatened in writing or any fact known by
Manager which might result in a material adverse effect on the Systems of
material liability against the Company or its subsidiaries;
(b) Create, incur or suffer to exist any Indebtedness (as such term is
used in the Amended and Restated Credit Agreement, dated as of December 27, 1996
(the "Credit Agreement") among Mediacom Arizona, the Company, the lenders party
thereto, and The Chase Manhattan Bank (the "Administrative Agent") other than as
permitted under Section 8.07 of the Credit Agreement;
(c) Enter into any agreements or transactions or obtain any services
on behalf of the Company or the Systems with or from any Affiliate of Manager
without the prior written consent of Company except for agreements or
transactions on terms that are no less favorable to the Company, or its
subsidiaries, as appropriate, than those which might be obtained at the time
from a person or entity who is not an Affiliate of Manager in an arm's length
transaction;
(d) Sell, assign, transfer or otherwise dispose of, or hypothecate or
encumber in any way any assets belonging to the Company or its subsidiaries,
used or useful in the
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business or operations of the Systems, other than (i) sales of assets in the
ordinary course of business and permitted under loan agreements of the Company
and its subsidiaries, or (ii) the granting of purchase money security interests
attaching only to newly-acquired property or assets acquired in the ordinary
course in accordance with loan agreements of the Company and its subsidiaries;
(e) Enter into any agreement on behalf of the Company for borrowed
money; provided that nothing herein shall prohibit Manager from entering into
capitalized leases or purchase money security interests that both (i) with
respect to any particular item do not involve payments in the aggregate
exceeding $200,000; and (ii) are permitted under the terms of loan agreements of
the Company and its subsidiaries; and
(f) Enter into any agreement prohibited by applicable law,
including, without limitation, the Act.
6. Financial and Systems Reports.
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Manager acknowledges that the Credit Agreement contains various
financial reporting requirements of the Company and Manager hereby agrees to
cause to prepare and deliver to the Company, at the expense of the Company, the
following in a timely fashion so that the Company can deliver the same to the
lenders as required by the Credit Agreement:
(a) statements of income, retained earnings and cash flows of the
Company for each quarterly fiscal period of each fiscal year of the Company and
for the period from the beginning of the respective fiscal year to the end of
such period, and the related balance sheets of the Company as at the end of such
period setting forth, in each case (other than financial statements for any
period ending on or prior to December 31, 1996) in comparative form the
corresponding consolidated figures for the corresponding period in the preceding
fiscal year (except that, in the case of balance sheets, such comparison shall
be to the last day of the prior fiscal year);
(b) statements of income, retained earnings and cash flows of the
Company for each fiscal year of the Company, fiscal year and the related balance
sheets of the Company as at the end of such fiscal year, setting forth, in each
case (other than financial statements for the fiscal year ending on December 31,
1996) in comparative form the corresponding consolidated figures for the
preceding fiscal year;
(c) copies of all registration statements and regular periodic
reports, if any, that the Company shall have filed with the Securities and
Exchange Commission (or any governmental agency substituted therefor) or any
national securities exchange;
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(d) promptly upon the mailing thereof to the members of the Company
generally or to holders of Indebtedness to Affiliates generally, copies of all
financial statements, reports and proxy statements so mailed;
(e) any information pertaining to any multiemployer plan, employee
benefit or other plan established or maintained by the Company or an Affiliate
which is covered by Title VII of ERISA;
(f) a quarterly report with respect to the number of subscribers to
the Systems, homes passed, revenues per subscriber and units;
(g) promptly after the Manager knows or has reason to believe that any
Default (as defined in the Credit Agreement) is likely to occur or has occurred,
a notice of such Default describing the same in reasonable detail and, together
with such notice or as soon thereafter as possible a description of the action
that the Manager recommends that the Company should take with respect thereto;
and
(h) from time to time such other information regarding the financial
condition, operations, business or prospects of the Company as requested by the
Company or any lender to the Company may reasonably request.
7. Agency Accounts; Working Funds.
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(a) Agency Accounts. Manager will, maintain on behalf of, and as
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agent for, the Company and/or its subsidiaries, as appropriate, checking
accounts in the name of the Company and/or its subsidiaries, as appropriate (the
"Agency Accounts") at a bank or banks selected by Manager and reasonably
acceptable to the Company. All receipts derived from the operation of the
Systems shall be collected on behalf of the Company, as appropriate and promptly
deposited in an Agency Account. All disbursements made by Manager on behalf of
the Company as appropriate as permitted under this Agreement shall be made by
checks drawn by Manager on the Agency Accounts. Manager will have the right and
authority to make deposits to and disbursements and withdrawals from the Agency
Accounts. Manager will have the right and authority to disburse or have
disbursed from the Agency Accounts payments for all expenses, costs and
liabilities in connection with the construction, development, operation,
maintenance, repair and ownership of the Systems and the Company and its
subsidiaries, including, without limitation:
(i) all costs and expenses of employees of the Company and of the
Systems and reasonable fees and expenses of outside counsel, consultants,
engineers, accountants or other professionals whose services are used in the
operation or management of the Systems (including, without limitation, costs and
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expenses of any accounting firm selected to sign tax filings for the Company);
and
(ii Management Fees earned by Manager under this Agreement,
reimbursement of expenses of Manager, and interest in respect of deferred
Management Fees, in each case as contemplated in Section 8 below.
(b) In no event will Manager be responsible for the payment from its
own funds of any sums in connection with the construction, development,
operation, maintenance, repair and ownership of the Systems and the Company and
its subsidiaries (including without limitation, any taxes) and the Company and
its subsidiaries shall be solely responsible for the payment of all such
amounts.
8. Compensation of Manager.
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8.1 Management Fee.
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(a) As compensation to Manager for the performance of its services
hereunder, the Company shall pay to Manager a fee (the "Management Fee") each
year equal to five percent (5%) of Gross Operating Revenues.
(b) Monthly installments of the Management Fee at the rate of five
percent (5%) of the Gross Operating Revenues for such month (subject in all
events to any limitations imposed under applicable loan agreements) shall be
paid by the Company to Manager within ten (10) days after the end of each month.
Within twenty (20) days of the receipt by the Company of the annual audited
financial statements, a final determination of the Gross Operating Revenues, for
the preceding Fiscal Year shall be made by the parties, and the parties shall
then determine the Management Fee for the preceding Fiscal Year. In the event
that such final determination indicates that the Company has paid Manager less
than the Management Fee, the Company shall owe to Manager an amount in addition
to that paid by the Company to Manager pursuant to the first sentence of this
Section 8.1(b), and the Company shall pay such additional amount to Manager
within ten (10) days of such final determination. In the event that such final
determination indicates that the Company has paid Manager more than Management
Fee, Manager shall owe to the Company such amount, and such amount shall be
applied as a credit to the immediately succeeding monthly installment of the
Management Fee, and, to the extent the amount owed by Manager to the Company
exceeds such installment, Manager shall pay such excess amount to the Company
within ten (10) days of such final determination.
(c) Manager acknowledges and agrees that notwithstanding anything else
contained herein, payment of the Management Fee may be restricted or limited by
the provisions of loan agreements of the Company, including without limitation
the Credit Agreement, and that the Management Fee shall be paid if and
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only to the extent that at the time of such payment no default has occurred or
is continuing under applicable loan agreements. To the extent that all or any
portion of the Management Fee may not be paid because of the terms of the loan
agreements, the amount which may not be paid shall not be paid, but shall be
deferred (and such deferral shall not constitute a breach of the Company's
obligations hereunder), and the deferred portion shall bear interest from the
date due until paid at a rate per annum equal to the lower of (i) one percent
(1%) above the rate announced from time to time by The Chase Manhattan Bank at
its main office in New York, New York as its prime or base lending rate or (ii)
the highest rate then permitted by applicable law. Subject to the terms of the
preceding sentence, Manager may deduct the Management Fee and such other amounts
to which it may be entitled under this Agreement from funds in the Agency
Accounts. Any portion of the Management Fee that is deferred) shall be paid
(together with interest thereon) as soon as the same may be paid without
violating the provisions of the loan agreements. Payments of any outstanding
Management Fees (whether or not deferred) shall be paid prior to payment of any
dividends or distributions or similar payments to the members of the Company.
8.2 Reimbursement of Manager. (a) Manager acknowledges and
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agrees that Manager and not the Company shall be responsible for the
compensation, including salaries, withholding taxes, unemployment insurance
contributions, pension, health and other benefits of Manager's executive
management personnel (all such compensation being herein collectively called
"Executive Compensation"). For purposes hereof, "executive management
personnel" shall not include any individual (such as a system manager) who is
employed solely in connection with the day-to-day operations of a System.
Except for Executive Compensation (intended to be covered by the Management
Fee), Manager shall be entitled to reimbursement by the Company for the
allocable costs (including, without limitation, salaries, withholding taxes,
unemployment insurance contributions and the like) of employees of Manager or
its Affiliates who perform services that would ordinarily be performed by
employees of the Systems. Manager shall act in good faith in making such
allocation. Manager shall have the right to use such shared employees without
pre-approval of the Company and receive reimbursement therefor; provided,
however, the Company shall have the right, after consultation with Manager, to
direct the Manager no longer to continue using such shared employees in such
situations as Company shall determine.
(b) Manager shall be entitled to reimbursement from the Company for
reasonable out-of-pocket expenses incurred by Manager (excluding Executive
Compensation and overhead allocated in respect of the executive management of
the business or operations at the Company or any of its subsidiaries, including
rent, utilities, telephone and telecopy charges, furniture, fixtures and the
like) in connection with (i) the operation of the business of the Company,
including without limitation, travelling to and visiting the Systems, and (ii)
investigating, analyzing, negotiating or otherwise acting for or on behalf of
the Company or its subsidiaries in connection with any potential acquisition by
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the Company or its subsidiaries of a System. Manager shall provide to the
Company notice and an accounting at any time the reimbursable amount of the
foregoing expenses exceeds $10,000 over the amount previously reported.
(c) Neither the Company nor any of its subsidiaries shall employ or
retain any executive management personnel, (or pay any Person, other than the
Manager, in respect of executive management personnel or matters, for the
Company or any of its subsidiaries), it being the intention of the parties
hereto that all executive management personnel (as defined in Section 8.1(a)
above) required in connection with the business or operations of the Company and
its subsidiaries shall be employees of the Manager (and that the Executive
Compensation for such employees shall be covered by the Management Fees payable
hereunder.
9. Termination.
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9.1 (a) If Manager materially breaches this Agreement and
Manager fails to cure such breach within 20 days after receipt of written notice
from the Company advising Manager of the action allegedly resulting in such
breach (or, if such breach is not susceptible of cure within such period, fails
to cure such breach as promptly as possible, but in any event, within 60 days
after receipt of written notice from the Company), provided that the foregoing
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60 day cure period will not apply to any willful breach of this Agreement by
Manager; (b) if Manager, or any employee or consultant thereof, engages in any
act of gross negligence, dishonesty, willful malfeasance or gross misconduct
that is materially injurious to the Company and its subsidiaries taken as a
whole; (c) if any lender shall, following default under any loan agreement
(including, without limitation, the Credit Agreement) consummate foreclosure
proceedings with respect to the equity interests or assets of the Company; or
(d) if the Manager will be unable to pay its debts as such debts become due
(whether upon maturity, acceleration or otherwise), then the Company (or in the
case of clause (c), such lender) may elect, by written notice to Manager, to
terminate this Agreement. Any such termination shall be effective as of the
date specified in the notice of termination.
9.2 Effect of Termination. Subject to the provisions of this
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Agreement, termination of this Agreement in accordance with Section 9.1 shall
not affect the rights of either Manager or the Company with respect to any
damages either shall have suffered as a result of any breach of this Agreement,
nor shall it affect the rights of Manager or the Company with respect to any
liabilities or claims accruing, or based upon events occurring, prior to the
date of termination.
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10. Indemnification.
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(a) By the Company. The Company will indemnify and hold harmless
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Manager, its Affiliates, and all officers, directors, employees, stockholders,
partners and agents of Manager and its Affiliates (individually, a "Manager
Indemnitee") from and against any and all claims, demands, costs, damages,
losses, liabilities, joint and several, expenses of any nature (including
reasonable attorneys', accountants' and experts' fees and disbursements),
judgments, fines, settlements and other amounts (collectively, "Damages")
arising from any and all claims, demands, actions, suits or proceedings, civil,
criminal, administrative, or investigative (collectively, "Claims") in which the
Manager Indemnitee may be involved or threatened to be involved, as a party or
otherwise, arising out of Manager's performance under this Agreement or the
ownership or operation of the Systems or the Company (and its subsidiaries),
regardless of whether this Agreement continues to be in effect or the Manager
Indemnitee continues to be an Affiliate, or an officer, director, employee,
stockholder, contractor, subcontractor, partner or agent of Manager, at the time
any such Claims are made or Damages incurred, provided that such indemnity shall
not apply to any claims or Damages incurred due to the Manager Indemnitee's
gross negligence or willful misconduct.
(b) By Manager. Manager will indemnify and hold harmless the Company,
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its Affiliates, and all of their officers, managers, employees, members,
partners and agents of Company or its Affiliates (individually, a "Company
Indemnitee") and its subsidiaries from and against any and all Damages arising
from any and all Claims in which the Company Indemnitee may be involved or
threatened to be involved, as a party or otherwise, arising out of either
Manager's gross negligence or willful misconduct regardless of whether this
Agreement continues to be in effect or the Company Indemnitee continues to be an
Affiliate, or an officer, director, employee, stockholders, partner or agent of
the Company or its Affiliates at the time any such Claims are made or Damages
incurred.
(c) Right to Indemnification Not Exclusive Remedy. The
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indemnification rights contained in this Section 10 will be cumulative of and in
addition to any and all other rights, remedies and recourse to which the Manager
Indemnitee or a Company Indemnitee, as applicable, its respective heirs,
successors, assigns and administrators are entitled, whether pursuant to some
other provision of this Agreement, at law or in equity; provided, however, that
it is understood and agreed that notwithstanding anything contained herein or
applicable law to the contrary, neither Manager (nor any of its shareholders,
officers, directors, employees or agents) shall have any liability with respect
to a breach of, or non-performance under this Agreement except as expressly
specified in this Agreement. The indemnification provided in this Section 10
will inure to the benefit of heirs, successors, assigns and administrators of
the Manager Indemnitee or Company Indemnitee, as applicable.
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(d) Insurance. Manager may purchase, at the Company's expense, and
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maintain insurance on behalf of Manager and such other persons as Manager may
reasonably determine, against any liability that may be asserted against it or
them in connection with the performance of Manager's obligations under this
Agreement; provided that if Manager elects not to purchase such insurance its
indemnity hereunder shall not be affected.
(e) Interested Transactions. A Manager Indemnitee or a Company
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Indemnitee, as applicable, will not be denied indemnification in whole or in
part under this Section 10 solely because such Indemnitee had an interest in the
transaction with respect to which the Indemnification applies if this
transaction was otherwise permitted by the terms of this Agreement.
11. Credit Agreement and Subordination Agreement. Manager hereby
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acknowledges the terms and provisions of the Credit Agreement and Amended and
Restated Management Fee Subordination Agreement executed and delivered pursuant
to the Credit Agreement (the "Subordination Agreement"), among Manager, Mediacom
Arizona, the Company and the Administrative Agent and agrees that if any
provision of this Agreement conflicts with any of the terms contained in the
Credit Agreement or Subordination Agreement, the provisions of said agreements
shall govern and the provisions hereof shall be modified or negated accordingly.
12. Representations and Warranties of the Parties.
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12.1 Representations of Manager. Manager hereby represents and
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warrants to the Company as follows:
(a) Organization and Standing. Manager is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware.
(b) Authorization and Binding Obligation. Manager has full power and
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authority to enter into, deliver and perform fully this Agreement. This
Agreement has been duly executed and delivered by Manager, and constitutes the
valid and binding obligation thereof, enforceable against Manager in accordance
with its terms, except to the extent such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally, and by the application of equitable principles.
(c) No Conflict. The execution, delivery and performance by Manager
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of this Agreement does not conflict with or result in a breach of, or require
any consent under, the charter or by-laws of the Manager, or any applicable
material law or regulation, or any order, writ, injunction or decree of any
court or governmental authority or agency, or any material agreement or
instrument to which the Manager is a party or by which it is bound or to which
it is subject, or constitute a default under any such agreement or instrument.
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12.2 Representations and Warranties of the Company. The Company
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hereby represents and warrants to Manager as follows:
(a) Organization and Standing. The Company is a limited liability
-------------------------
company duly organized, validly existing and in good standing under the laws of
the State of Delaware.
(b) Authorization and Binding Obligation. The Company has full power
------------------------------------
and authority to enter into, deliver and perform fully this Agreement. This
Agreement has been duly executed and delivered by the Company, and constitutes
the valid and binding obligation thereof, enforceable against the Company in
accordance with its terms, except to the extent such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally, and by the application of equitable remedies.
(c) No Conflict. The execution, delivery and performance by the
-----------
Company of this Agreement does not conflict with or result in a breach of, or
require any consent under, the charter or by-laws of the Company, or any
applicable material law or regulation, or any order, writ, injunction or decree
of any court or governmental authority or agency, or any material agreement or
instrument to which the Company is a party or by which it is bound or to which
it is subject, or constitute a default under any such agreement or instrument.
13. Miscellaneous.
-------------
13.1 Manager an Agent. Manager shall serve as an agent of the
----------------
Company in rendering the services set forth herein. Nothing herein shall be
construed as an agreement by Manager to bear any losses of the Systems or the
Company; provided that this provision shall not be deemed to limit Manager's
responsibility for any liability to the Company arising under this Agreement in
accordance with the terms hereof. All debts and liabilities to third parties
incurred by Manager in the course of the management of the Systems shall be the
debts and liabilities of the Company and Manager shall not be liable for any
such obligations by reason of its management of the Systems.
13.2 Other Activities. Nothing in this Agreement shall limit or
----------------
restrict the right of Manager to engage in any other business or to devote its
time and attention to the management or other aspects of any other business or
to render services of any kind.
13.3 Notices. All notices, demands, and requests required or
-------
permitted to be given under this Agreement shall be in writing and shall be
deemed duly given if (i) personally delivered, (ii) sent by registered or
certified mail, postage pre-paid, return receipt requested, or (iii) transmitted
by a recognized overnight courier service, addressed as follows:
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If to the Company: Mediacom California LLC
c/o Mediacom LLC
90 Crystal Run Road, Suite 406A
Middletown, New York 10940
Attention: Rocco B. Commisso
If to Manager: Mediacom Management Corporation
90 Crystal Run Road, Suite 406A
Middletown, New York 10940
Attention: President
or to any such other additional persons and addresses as the parties may from
time to time designate in writing delivered in accordance with this Section
13.3.
13.4 Benefit and Binding Effect. Neither party hereto may assign
--------------------------
this Agreement without the prior written consent of the other party; provided,
however, Manager may assign its rights an obligations under this Agreement to
any wholly-owned subsidiary of Manager; provided that in such event Manager
shall remain liable hereunder and shall remain entitled to the rights provided
it hereunder. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
13.5 Governing Law. This Agreement shall be governed by the laws
-------------
of the State of New York as to all matters, including but not limited to matters
of validity, construction, effect, performance and remedies (without giving
effect to the principles of conflicts of law).
13.6 Headings. The headings preceding the text of sections and
--------
subsections of this Agreement are included for ease of reference only and shall
not be deemed part of this Agreement.
13.7 Gender and Number. Words used herein regardless of the
-----------------
gender and number specifically used, shall be deemed and construed to include
any other gender, masculine, feminine or neuter, and any other number, singular
or plural, as the context requires.
13.8 Entire Agreement. This Agreement, and all schedules hereto,
----------------
collectively represent the entire understanding and agreement between the
Company and Manager with respect to the specific subject matter hereof. All
schedules attached to this Agreement shall be deemed part of this Agreement and
incorporated herein, where applicable, as if fully set forth herein. This
Agreement supersedes all prior negotiations between the parties and cannot be
amended, supplemented or changed except by an agreement in writing which makes
specific reference to this Agreement or an agreement delivered pursuant hereto,
as the case may be, and which is signed by the party against which enforcement
of any such amendment, supplement or modification is sought.
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13.9 Further Assurances. The parties shall take any actions and
------------------
execute any documents that may be necessary or desirable to the implementation
and consummation of this Agreement or that may be reasonably requested by any
other party hereto. Each party will cooperate with the other parties and provide
any assistance reasonably requested by any other party to effectuate the terms
of this Agreement.
13.10 Severability. If any provision of this Agreement or the
------------
application thereof to any person or circumstance shall be held invalid or
unenforceable to any extent by any court of competent jurisdiction, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected thereby and shall be enforced to
the greatest extent permitted by law.
13.11 Counterparts. This Agreement may be signed in counterparts,
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each of which shall be deemed to be an original but which, when taken together,
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this First Amended and Restated Management
Agreement has been executed by the parties hereto as of the date first above
written.
MEDIACOM CALIFORNIA LLC
BY: MEDIACOM LLC, A MEMBER
By: /s/ Rocco B. Commisso
---------------------------
Name: Rocco B. Commisso
Title: Chairman and
Chief Executive Officer
MEDIACOM MANAGEMENT CORPORATION
By: /s/ Rocco B. Commisso
----------------------------
Name: Rocco B. Commisso
Title: President
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SCHEDULE A
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City of Ridgecrest, California - CATV System
and Internet Communications Node
County of Kern, California
County of San Bernardino, California
China Lake Navel Station, California
Valley Center and Pauma, California and located
in the County of San Diego, California
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