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Exhibit
10.6
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, dated as of April 3, 2007, by Knology, Inc. (the “
Borrower ”) and each of the entities listed on the
signature pages hereof or that becomes a party hereto pursuant to
Section 24 (Additional Guarantors) hereof (each a
“ Subsidiary Guarantor ” and, together with the
Borrower, collectively, the “ Guarantors ” and
individually a “ Guarantor ”), in favor of the
Administrative Agent, the Collateral Agent, each Lender, each
Issuer and each other holder of an Obligation (as each such term is
defined in the Credit Agreement referred to below) (each, a “
Guarantied Party ” and, collectively, the “
Guarantied Parties ”).
W I
T N E S
S E T
H
W HEREAS , the
Borrower, the lenders and issuers party thereto from time to time,
Credit Suisse, as administrative agent and collateral agent (in
such capacity, the “ Existing Agent ”) are
parties to the First Lien Credit Agreement, dated as of
June 29, 2005 (as amended, supplemented or otherwise modified
from time to time prior to the date hereof, the “ Existing
Credit Agreement ”), and the Borrower has requested, and
the other parties to the Credit Agreement (as defined below) have
agreed, that the Existing Credit Agreement would be amended and
restated to, among other things, to increase the term loan facility
thereunder in the aggregate principal amount of
$345,000,000;
W HEREAS ,
pursuant to the Amended and Restated Credit Agreement, dated as of
March 14, 2007 (together with all appendices, exhibits and
schedules thereto and as the same may be amended, restated,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”; capitalized terms defined therein
and used herein having the meanings given to them in the Credit
Agreement), among the Borrower, the Lenders and Issuers party
thereto, Credit Suisse, acting through one or more of its branches,
as administrative agent and collateral agent for the lenders and
issuers named therein (in such capacity, the “Agent
”), Jefferies & Company, Inc., as syndication agent
and Royal Bank of Canada and CIT Lending Services Corporation, as
co-documentation agents, the lenders and issuers have severally
agreed to make extensions of credit to the Borrower upon the terms
and subject to the conditions set forth therein;
W HEREAS ,
each Subsidiary Guarantor is a direct or indirect Subsidiary of the
Borrower;
W HEREAS ,
each Guarantor will receive substantial direct and indirect
benefits from the making of the Loans, the issuance of the Letters
of Credit and the granting of the other financial accommodations to
the Borrower under the Credit Agreement;
W HEREAS , a
condition precedent to the obligation of the Lenders and the
Issuers to make their respective extensions of credit to the
Borrower under the Credit Agreement is that the Guarantors shall
have executed and delivered this Guaranty for the benefit of the
Guarantied Parties; and
Whereas, this Guaranty, on
the terms and subject to the conditions set forth herein, shall
amend and restate, in its entirety, the guaranty, dated as of June
29, 2005 (as amended, supplemented or otherwise modified from time
to time prior to the date hereof, the
A MENDED A
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“Existing Guaranty” )
entered into by the guarantors from time to time party thereto and
(ii) from and after the Effective Date, the Existing Guaranty
shall be of no further force or effect, except to evidence the
obligations incurred, the representations and warranties made, and
the actions or omissions performed or required to be performed,
thereunder prior to the Effective Date;
N OW , T
HEREFORE , in consideration of the premises set
forth above, the terms and conditions contained herein, and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1
Guaranty
(a) To induce the Lenders to
make the Loans and the Issuers to issue Letters of Credit, each
Guarantor hereby absolutely, unconditionally and irrevocably
guarantees, jointly with the other Guarantors and severally, as
primary obligor and not merely as surety, the full and punctual
payment when due and in the currency due, whether at stated
maturity or earlier, by reason of acceleration, mandatory
prepayment or otherwise in accordance herewith or any other Loan
Document, of all the Obligations, whether or not from time to time
reduced or extinguished or hereafter increased or incurred, whether
or not recovery may be or hereafter may become barred by any
statute of limitations, whether or not enforceable as against the
Borrower, whether now or hereafter existing, and whether due or to
become due, including principal, interest (including interest at
the contract rate applicable upon default accrued or accruing after
the commencement of any proceeding under the Bankruptcy Code, or
any applicable provisions of comparable state or foreign law,
whether or not such interest is an allowed claim in such
proceeding), fees and costs of collection. This Guaranty
constitutes a guaranty of payment and not of collection.
(b) Each Guarantor further
agrees that, if (i) any payment made by Borrower or any other
Person and applied to the Obligations is at any time annulled,
avoided, set aside, rescinded, invalidated, declared to be
fraudulent or preferential or otherwise required to be refunded or
repaid, or (ii) the proceeds of Collateral are required to be
returned by any Guarantied Party to the Borrower, its estate,
trustee, receiver or any other party, including any Guarantor,
under any bankruptcy law, equitable cause or any other Requirement
of Law, then, to the extent of such payment or repayment, any such
Guarantor’s liability hereunder (and any Lien or other
Collateral securing such liability) shall be and remain in full
force and effect, as fully as if such payment had never been made.
If, prior to any of the foregoing, this Guaranty shall have been
cancelled or surrendered (and if any Lien or other Collateral
securing such Guarantor’s liability hereunder shall have been
released or terminated by virtue of such cancellation or
surrender), this Guaranty (and such Lien or other 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 any such Guarantor in respect
of the amount of such payment (or any Lien or other Collateral
securing such obligation).
Section 2
Limitation of Guaranty
Any term or provision of this
Guaranty or any other Loan Document to the contrary
notwithstanding, the maximum aggregate amount of the Obligations
for which any Subsidiary Guarantor shall be liable shall not exceed
the maximum amount for which such Subsidiary Guarantor can be
liable without rendering this Guaranty or any other Loan Document,
as it relates to such Subsidiary Guarantor, subject to avoidance
under applicable law relating to fraudulent conveyance or
fraudulent transfer (including Section 548 of the Bankruptcy Code
or
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any applicable provisions of comparable
state law) (collectively, “ Fraudulent Transfer Laws
”), in each case after giving effect (a) to all other
liabilities of such Subsidiary Guarantor, contingent or otherwise,
that are relevant under such Fraudulent Transfer Laws (specifically
excluding, however, any liabilities of such Subsidiary Guarantor in
respect of intercompany Indebtedness to the Borrower to the extent
that such Indebtedness would be discharged in an amount equal to
the amount paid by such Subsidiary Guarantor hereunder) and
(b) to the value as assets of such Subsidiary Guarantor (as
determined under the applicable provisions of such Fraudulent
Transfer Laws) of any rights to subrogation, contribution,
reimbursement, indemnity or similar rights held by such Subsidiary
Guarantor pursuant to (i) applicable Requirements of Law,
(ii) Section 3 (Contribution) of this Guaranty or
(iii) any other Contractual Obligations providing for an
equitable allocation among such Subsidiary Guarantor and other
Subsidiaries or Affiliates of the Borrower of obligations arising
under this Guaranty or other guaranties of the Obligations by such
parties.
Section 3
Contribution
To the extent that any
Subsidiary Guarantor shall be required hereunder to pay a portion
of the Obligations exceeding the greater of (a) the amount of
the economic benefit actually received by such Subsidiary Guarantor
from the Revolving Loans and the Term Loans and the other financial
accommodations provided to the Borrower under the Loan Documents
and (b) the amount such Subsidiary Guarantor would otherwise
have paid if such Subsidiary Guarantor had paid the aggregate
amount of the Obligations (excluding the amount thereof repaid by
the Borrower) in the same proportion as such Subsidiary
Guarantor’s net worth at the date enforcement is sought
hereunder bears to the aggregate net worth of all the Subsidiary
Guarantors at the date enforcement is sought hereunder, then such
Guarantor shall be reimbursed by such other Subsidiary Guarantors
for the amount of such excess, pro rata, based on the respective
net worths of such other Subsidiary Guarantors at the date
enforcement hereunder is sought.
Section 4
Authorization; Other Agreements
The Guarantied Parties are
hereby authorized, without notice to, or demand upon, any
Guarantor, which notice and demand requirements each are expressly
waived hereby, and without discharging or otherwise affecting the
obligations of such Guarantor hereunder (which obligations shall
remain absolute and unconditional notwithstanding any such action
or omission to act), from time to time, to do each of the
following:
(a) supplement, renew,
extend, accelerate or otherwise change the time for payment of, or
other terms relating to, the Obligations, or any part of them, or
otherwise modify, amend or change the terms of any promissory note
or other agreement, document or instrument (including the other
Loan Documents) now or hereafter executed by the Borrower and
delivered to the Guarantied Parties or any of them, including any
increase or decrease of principal or the rate of interest
thereon;
(b) waive or otherwise
consent to noncompliance with any provision of any instrument
evidencing the Obligations, or any part thereof, or any other
instrument or agreement in respect of the Obligations (including
the other Loan Documents) now or hereafter executed by the Borrower
and delivered to the Guarantied Parties or any of them;
(c) accept partial payments
on the Obligations;
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(d) receive, take and hold
additional security or collateral for the payment of the
Obligations or any part of them and exchange, enforce, waive,
substitute, liquidate, terminate, abandon, fail to perfect,
subordinate, transfer, otherwise alter and release any such
additional security or collateral;
(e) settle, release,
compromise, collect or otherwise liquidate the Obligations or
accept, substitute, release, exchange or otherwise alter, affect or
impair any security or collateral for the Obligations or any part
of them or any other guaranty therefor, in any manner;
(f) add, release or
substitute any one or more other guarantors, makers or endorsers of
the Obligations or any part of them and otherwise deal with the
Borrower or any other guarantor, maker or endorser;
(g) apply to the Obligations
any payment or recovery (x) from the Borrower, from any other
guarantor, maker or endorser of the Obligations or any part of them
or (y) from any Guarantor in such order as provided herein, in
each case whether such Obligations are secured or unsecured or
guaranteed or not guaranteed by others;
(h) apply to the Obligations
any payment or recovery from any Guarantor of the Obligations or
any sum realized from security furnished by such Guarantor upon its
indebtedness or obligations to the Guarantied Parties or any of
them, in each case whether or not such indebtedness or obligations
relate to the Obligations; and
(i) refund at any time any
payment received by any Guarantied Party in respect of any
Obligation, and payment to such Guarantied Party of the amount so
refunded shall be fully guaranteed hereby even though prior thereto
this Guaranty shall have been cancelled or surrendered (or any
release or termination of any Collateral by virtue thereof), and
such prior cancellation or surrender shall not diminish, release,
discharge, impair or otherwise affect the obligations of any
Guarantor hereunder in respect of the amount so refunded (and any
Collateral so released or terminated shall be reinstated with
respect to such obligations);
even if any right of reimbursement or
subrogation or other right or remedy of any Guarantor is
extinguished, affected or impaired by any of the foregoing
(including any election of remedies by reason of any judicial,
non-judicial or other proceeding in respect of the Obligations that
impairs any subrogation, reimbursement or other right of such
Guarantor).
Section 5 Guaranty
Absolute and Unconditional
Each Guarantor hereby waives
any defense of a surety or guarantor or any other obligor on any
obligations arising in connection with or in respect of any of the
following and hereby agrees that its obligations under this
Guaranty are absolute and unconditional and shall not be discharged
or otherwise affected as a result of any of the
following:
(a) the invalidity or
unenforceability of any of the Borrower’s obligations under
the Credit Agreement or any other Loan Document or any other
agreement or instrument relating thereto, or any security for, or
other guaranty of the Obligations or any part of them, or the lack
of perfection or continuing perfection or failure of priority of
any security for the Obligations or any part of them;
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(b) the absence of any
attempt to collect the Obligations or any part of them from the
Borrower or other action to enforce the same;
(c) failure by any Guarantied
Party to take any steps to perfect and maintain any Lien on, or to
preserve any rights to, any Collateral;
(d) any Guarantied
Party’s election, in any proceeding instituted under chapter
11 of the Bankruptcy Code, of the application of
Section 1111(b)(2) of the Bankruptcy Code or any applicable
provisions of comparable state or foreign law;
(e) any borrowing or grant of
a Lien by the Borrower, as debtor-in-possession, or extension of
credit, under Section 364 of the Bankruptcy Code or any
applicable provisions of comparable state or foreign
law;
(f) the disallowance, under
Section 502 of the Bankruptcy Code, of all or any portion of
any Guarantied Party’s claim (or claims) for repayment of the
Obligations;
(g) any use of cash
collateral under Section 363 of the Bankruptcy
Code;
(h) any agreement or
stipulation as to the provision of adequate protection in any
bankruptcy proceeding;
(i) the avoidance of any Lien
in favor of the Guarantied Parties or any of them for any
reason;
(j) any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt,
liquidation or dissolution proceeding commenced by or against the
Borrower, any Guarantor or any of the Borrower’s other
Subsidiaries, including any discharge of, or bar or stay against
collecting, any Obligation (or any part of them or interest
thereon) in or as a result of any such proceeding;
(k) failure by any Guarantied
Party to file or enforce a claim against the Borrower or its estate
in any bankruptcy or insolvency case or proceeding;
(l) any action taken by any
Guarantied Party if such action is authorized hereby;
(m) any election following
the occurrence of an Event of Default by any Guarantied Party to
proceed separately against the personal property Collateral in
accordance with such Guarantied Party’s rights under the UCC
or, if the Collateral consists of both personal and real property,
to proceed against such personal and real property in accordance
with such Guarantied Party’s rights with respect to such real
property; or
(n) any other circumstance
that might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor or any other obligor on any
obligations, other than the payment in full of the
Obligations.
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Section 6
Waivers
Each Guarantor hereby waives
diligence, promptness, presentment, demand for payment or
performance and protest and notice of protest, notice of acceptance
and any other notice in respect of the Obligations or any part of
them, and any defense arising by reason of any disability or other
defense of the Borrower. Each Guarantor shall not, until the
Obligations are irrevocably paid in full and the Revolving Credit
Commitments have been terminated, assert any claim or
counterclaim
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