EXHIBIT 4.1(c)
MEDIACOM LLC
MEDIACOM CAPITAL CORPORATION
$200,000,000
8 1/2% Senior Notes due 2008
PURCHASE AGREEMENT
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March 27, 1998
CHASE SECURITIES INC.
000 Xxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Mediacom LLC, a New York limited liability company ("Mediacom" and, together
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with its direct and indirect Subsidiaries (as defined herein), and Mediacom
Capital (as defined herein), the "Company"), and Mediacom Capital Corporation, a
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New York corporation and a wholly-owned subsidiary of Mediacom ("Mediacom
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Capital" and, together with Mediacom, the "Issuers"), propose to issue and sell
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$200,000,000 aggregate principal amount of their 8 1/2% Senior Notes due 2008
(the "Notes"). The Notes will be issued pursuant to an Indenture to be dated as
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of April 1, 1998 (the "Indenture") between the Issuers and Bank of Montreal
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Trust Company, as trustee (the "Trustee"). The Issuers hereby confirm their
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agreement with Chase Securities Inc. (the "Initial Purchaser") concerning the
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purchase of the Notes from the Issuers by the Initial Purchaser.
The Notes will be offered and sold to the Initial Purchaser without being
registered under the Securities Act of 1933, as amended (the "Securities Act"),
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in reliance upon an exemption therefrom. The Issuers have prepared a
preliminary offering memorandum dated March 12, 1998 (the "Preliminary Offering
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Memorandum") and will prepare an offering memorandum dated the date hereof (the
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"Offering Memorandum") setting forth information concerning the Issuers and the
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Notes. Copies of the Preliminary Offering Memorandum have been, and copies of
the Offering Memorandum will be, delivered by the Issuers to the Initial
Purchaser pursuant to the terms of this Agreement. Any references herein to the
Preliminary Offering Memorandum and the Offering Memorandum shall be deemed to
include all amendments and supplements thereto, unless otherwise noted. The
Issuers hereby confirm that they have authorized the use of the Preliminary
Offering Memorandum and the Offering Memorandum in connection with the offering
and resale of the Notes by the Initial Purchaser in accordance with Section 2.
Holders of the Notes (including the Initial Purchaser and its direct and
indirect transferees) will be entitled to the benefits of an Exchange and
Registration Rights Agreement, substantially in the form attached hereto as
Annex A (the "Registration Rights Agreement"), pursuant to which the Issuers
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will agree to file with the Securities and Exchange Commission (the
"Commission") (i) a registration statement under the Securities Act (the
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"Exchange Offer Registration Statement") registering an issue of senior notes of
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the Issuers (the "Exchange Notes") which are identical in all material respects
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to the Notes (except that the Exchange Notes will not contain terms with respect
to transfer restrictions) and (ii) under certain circumstances, a shelf
registration statement pursuant to Rule 415 under the Securities Act (the "Shelf
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Registration Statement").
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Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Offering Memorandum.
1. Representations, Warranties and Agreements of the Issuers. The Issuers
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represent and warrant to, and agree with, the Initial Purchaser on and as of the
date hereof and the Closing Date (as defined in Section 3) that:
(a) Each of the Preliminary Offering Memorandum and the Offering Memorandum,
as of its respective date, did not, and on the Closing Date the Offering
Memorandum will not, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the Issuers make no representation or warranty as to
information contained in or omitted from the Preliminary Offering Memorandum or
the Offering Memorandum in reliance upon and in conformity with written
information relating to the Initial Purchaser furnished to the Issuers by or on
behalf of the Initial Purchaser specifically for use therein (the "Initial
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Purchaser's Information").
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(b) Each of the Preliminary Offering Memorandum and the Offering Memorandum,
as of its respective date, contains all of the information that, if requested by
a prospective purchaser of the Notes, would be required to be provided to such
prospective purchaser pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Assuming the accuracy of the representations and warranties of the
Initial Purchaser contained in Section 2 and its compliance with the agreements
set forth therein, it is not necessary, in connection with the issuance and sale
of the Notes to the Initial Purchaser and the offer, resale and delivery of the
Notes by the Initial Purchaser in the manner contemplated by this Agreement and
the Offering Memorandum, to register the Notes under the Securities Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act").
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(d) Each of Mediacom, Mediacom California LLC ("Mediacom California"),
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Mediacom Arizona LLC ("Mediacom Arizona"), Mediacom Delaware LLC ("Mediacom
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Delaware") and Mediacom Southeast LLC ("Mediacom Southeast" and together with
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Mediacom California, Mediacom Delaware and Mediacom Arizona, the
"Subsidiaries"), has been duly formed and is validly existing as a limited
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liability company in good standing under the laws of its respective jurisdiction
of formation, is duly qualified to do business and is in good standing as a
foreign limited liability company in each jurisdiction in which its respective
ownership or lease of property or the conduct of its businesses requires such
qualification, and has all power and authority necessary to own or hold its
properties and to conduct the businesses in which it is engaged, except where
the failure to so qualify or have such power or authority would not, singularly
or in the aggregate, have a material adverse effect on the condition (financial
or otherwise), or in the results of operations, business affairs, management or
business prospects of the Issuers and the Subsidiaries taken as a whole, whether
or not arising in the ordinary course of business (a "Material Adverse Effect").
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Mediacom's only subsidiaries are Mediacom Capital and the Subsidiaries.
(e) Mediacom Capital has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of New York, is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which its ownership or lease of property or the conduct of
its businesses requires such qualification, and has all power and authority
necessary to own or hold its properties and to conduct the businesses in which
it is engaged, except where the failure to so qualify or have such power or
authority would not, singularly or in the aggregate, have a Material Adverse
Effect. Mediacom Capital has no subsidiaries.
(f) The Issuers and the Subsidiaries have an authorized capitalization as set
forth in the Offering Memorandum under the heading "Capitalization"; all of the
limited liability membership interests in Mediacom have been duly and validly
authorized and issued and are fully paid and non-assessable and were not issued
in violation of any preemptive or similar rights; the limited liability
membership interests in Mediacom conform in all material respects to the
description thereof contained in the Offering Memorandum. Except as described
in the Offering Memorandum, all of the limited liability membership interests in
Mediacom California, Mediacom Southeast, Mediacom Arizona and Mediacom Delaware
have been duly and validly authorized and issued, are fully paid and non-
assessable and are owned directly by Mediacom, free and clear of any lien,
charge, encumbrance, security interest, restriction upon voting or transfer or
any other claim of any third party. All of the outstanding shares of capital
stock of Mediacom Capital have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly by Mediacom, free and clear
of any lien, charge, encumbrance, security interest, restriction upon voting or
transfer or any other claim of any third party.
(g) The Issuers have full right, power and authority to execute and deliver
this Agreement, the Indenture, the Registration Rights Agreement, the Notes and
the Exchange Notes (collectively, the "Transaction Documents") and to perform
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their obligations hereunder and thereunder; and all corporate action required to
be taken for the due and proper authorization, execution and delivery of each of
the Transaction Documents and the consummation of the transactions contemplated
thereby have been duly and validly taken.
(h) This Agreement has been duly authorized, executed and delivered by the
Issuers.
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(i) The Registration Rights Agreement has been duly authorized by the Issuers
and, when duly executed and delivered in accordance with its terms by each of
the parties thereto, will constitute a valid and legally binding agreement of
the Issuers enforceable against the Issuers in accordance with its terms, except
to the extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law); provided that no
representation or warranty is made with respect to any provision of such
agreement purporting to require indemnification of, or contribution to, the
liability, losses, damages or claims of any person to the extent that such
provision may be limited by applicable law.
(j) The Indenture has been duly authorized by the Issuers and, when duly
executed and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of the Issuers
enforceable against the Issuers in accordance with its terms, except to the
extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law). On the Closing Date,
the Indenture will conform in all material respects to the requirements of the
Trust Indenture Act and the rules and regulations of the Commission applicable
to an indenture which is qualified thereunder.
(k) The Notes, the Private Exchange Notes (as defined in the Registration
Rights Agreement) and the Exchange Notes have been duly authorized by the
Issuers and, when duly executed, authenticated, issued and delivered as provided
in the Indenture and paid for as provided herein, will be duly and validly
issued and outstanding and will constitute valid and legally binding obligations
of the Issuers entitled to the benefits of the Indenture and enforceable against
the Issuers in accordance with their terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
(l) Each Transaction Document, the Operating Agreement, the Management
Agreements (as defined below), the agreements comprising the Subsidiary Credit
Facilities and the Seller Note conform in all material respects to the
descriptions thereof contained in the Offering Memorandum.
(m) The execution, delivery and performance by the Issuers of each of the
Transaction Documents, the issuance, authentication, sale and delivery of the
Notes, the Private Exchange Notes and the Exchange Notes and compliance by the
Issuers with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default or Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Issuers or the Subsidiaries pursuant to, any material indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument to which
the Issuers or the Subsidiaries is a party or by which the Issuers or the
Subsidiaries is bound or to which any of the property or assets of the Issuers
or the Subsidiaries is subject, nor will such actions result in any violation of
the provisions of the charter, memorandum of association, by-laws, operating
agreement, certificate of formation, articles of organization or limited
liability company agreement, as applicable, of the Issuers or the Subsidiaries
or any statute or any judgment, order, decree, rule or regulation of any court
or arbitrator or governmental agency or body having jurisdiction over the
Issuers or the Subsidiaries or any of their properties or assets including,
without limitation, any law, statute, rule or regulation or any judgement,
decree or order applicable to the cable television industry in general; and no
consent, approval, authorization or order of, or filing or registration with,
any such court or arbitrator or governmental agency or body under any such
statute, judgment, order, decree, rule or regulation, including, without
limitation, under the Communications Act of 1934, as amended (the
"Communications Act"), the Cable Communications Policy Act of 1984 (the "1984
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Cable Act"), the Cable Television Consumer Protection and Competition Act of
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1992 (the "1992 Cable Act"), the Telecommunications Act of 1996 (the "1996
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Telecom Act" and, together with the Communications Act, the 1984 Cable Act and
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the 1992 Cable Act, the "Cable Acts") or any order, rule or regulation of the
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Federal Communications Commission ("FCC") is required for the execution,
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delivery and performance by the Issuers of each of the Transaction Documents,
the issuance, authentication, sale and delivery of the Notes, the Private
Exchange Notes and the Exchange Notes and compliance by the Issuers with the
terms thereof and the consummation of the transactions contemplated by the
Transaction Documents, except for such consents, approvals, authorizations,
orders, licenses, filings, registrations or qualifications (i) as have been
obtained and are in full force and effect under the Cable Acts or any order,
rule or regulation of the FCC and such as may be required under state securities
or Blue Sky laws in
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connection with the purchase and resale of the Notes by the Initial Purchaser
and (ii) as may be required to be obtained or made under the Securities Act and
applicable state securities laws as provided in the Registration Rights
Agreement. As used herein, a "Repayment Event" means any event or condition
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which gives the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by
any of the Issuers or the Subsidiaries.
(n) Xxxxxx Xxxxxxxx LLP are independent certified public accountants with
respect to the Issuers and the Subsidiaries within the meaning of the Securities
Act and Rule 101 of the Code of Professional Conduct of the American Institute
of Certified Public Accountants ("AICPA") and its interpretations and rulings
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thereunder. The historical financial statements (including the related notes)
of the Issuers and the Subsidiaries contained in the Offering Memorandum comply
in all material respects with the requirements applicable to a registration
statement on Form S-1 under the Securities Act (except that certain supporting
schedules are omitted); such financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods covered thereby and fairly present the financial position
of the entities purported to be covered thereby at the respective dates
indicated and the results of their operations and their cash flows for the
respective periods indicated; and the financial information contained in the
Offering Memorandum under the headings "Summary--Summary Historical and Pro
Forma Financial and Operating Data", "Capitalization", "Selected Historical and
Pro Forma Consolidated Financial and Operating Data", "Unaudited Pro Forma
Consolidated Financial Data", "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and "Management--Executive Compensation"
are derived from the accounting records of the Company and the Cablevision
Systems and fairly present the information purported to be shown thereby. The
pro forma financial information contained in the Offering Memorandum has been
prepared on a basis consistent with the historical financial statements
contained in the Offering Memorandum (except for the pro forma adjustments
specified therein), includes all material adjustments to the historical
financial information required by Rule 11-02 of Regulation S-X under the
Securities Act and the Exchange Act to reflect the transactions described in the
Offering Memorandum, gives effect to assumptions made on a reasonable basis and
fairly presents the historical and proposed transactions contemplated by the
Offering Memorandum and the Transaction Documents. The other historical
financial and statistical information and data included in the Offering
Memorandum are, in all material respects, fairly presented.
(o) There are no legal or governmental proceedings pending to which the
Issuers or the Subsidiaries is a party or of which any property or assets of the
Issuers or the Subsidiaries is the subject which, singularly or in the
aggregate, if determined adversely to the Issuers or the Subsidiaries, could
reasonably be expected to have a Material Adverse Effect; and to the best
knowledge of the Issuers, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(p) No action has been taken and no statute, rule, regulation or order has
been enacted, adopted or issued by any governmental agency or body which
prevents the issuance of the Notes, the Private Exchange Notes or the Exchange
Notes or suspends the sale of the Notes, the Private Exchange Notes or the
Exchange Notes in any jurisdiction; no injunction, restraining order or order of
any nature by any federal or state court of competent jurisdiction has been
issued with respect to the Issuers or the Subsidiaries which would prevent or
suspend the issuance or sale of the Notes, the Private Exchange Notes or the
Exchange Notes or the use of the Preliminary Offering Memorandum or the Offering
Memorandum in any jurisdiction; no action, suit or proceeding is pending against
or, to the best knowledge of the Issuers, threatened against or affecting the
Issuers or the Subsidiaries before any court or arbitrator or any governmental
agency, body or official, domestic or foreign, which could reasonably be
expected to interfere with or adversely affect the issuance of the Notes, the
Private Exchange Notes or the Exchange Notes or in any manner draw into question
the validity or enforceability of any of the Transaction Documents or any action
taken or to be taken pursuant thereto; and the Issuers have complied with any
and all requests by any securities authority in any jurisdiction for additional
information to be included in the Preliminary Offering Memorandum and the
Offering Memorandum.
(q) None of the Issuers or the Subsidiaries is (i) in violation of its
charter, by-laws, memorandum of association, certificate of formation, articles
of organization, operating agreement or limited liability company agreement, as
applicable, (ii) in default in any material respect, and no event has occurred
which, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which it is a party or by which it is bound
or to which any of its property or assets is subject or (iii) in violation in
any material respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets
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may be subject, except in the case of clauses (ii) and (iii) above, such default
or violation which would not, individually or in the aggregate, have a Material
Adverse Effect.
(r) The Issuers and each of the Subsidiaries possess all material franchises,
licenses, certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate federal, state or local
regulatory agencies, authorities or bodies, including the FCC, which are
necessary or desirable for the ownership of their respective properties or the
conduct of their respective businesses as described in the Offering Memorandum,
except where the failure to possess or make the same would not, singularly or in
the aggregate, have a Material Adverse Effect, and, except as described in the
Offering Memorandum, none of the Issuers or the Subsidiaries has received
notification of any revocation or modification of any such franchise, license,
certificate, authorization or permit or has any reason to believe that any such
franchise, license, certificate, authorization or permit will not be renewed in
the ordinary course.
(s) The Issuers and each of the Subsidiaries have filed all federal, state
and local income and franchise tax returns required to be filed through the date
hereof and have paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Issuers or the Subsidiaries which has had (nor do
the Issuers or the Subsidiaries have any knowledge of any tax deficiency which,
if determined adversely to the Issuers or the Subsidiaries, could reasonably be
expected to have) a Material Adverse Effect.
(t) None of the Issuers or the Subsidiaries is (i) an "investment company" or
a company "controlled by" an investment company within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
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the rules and regulations of the Commission thereunder or (ii) a "holding
company" or a "subsidiary company" of a holding company or an "affiliate"
thereof within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
(u) The Issuers and each of the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(v) The Issuers and each of the Subsidiaries have insurance covering their
respective properties, operations, personnel and businesses, which insurance is
in amounts and insures against such losses and risks as are commercially
reasonable in light of their respective business and properties. None of the
Issuers or the Subsidiaries has received notice from any insurer or agent of
such insurer that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance.
(w) The Issuers and each of the Subsidiaries own or possess adequate rights
to use all material patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service mark registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses, except where such
ownership or possession would not have a Material Adverse Effect; and the
conduct of their respective businesses will not conflict in any material respect
with, and the Issuers and the Subsidiaries have not received any notice of any
claim of conflict with, any such rights of others which would have a Material
Adverse Effect.
(x) The Issuers and the Subsidiaries have good and sufficient and legal title
in fee simple to, or have valid rights to lease or otherwise use, all items of
real and personal property which are material to the business of the Issuers and
the Subsidiaries, in each case free and clear of all liens, encumbrances, claims
and defects and imperfections of title except as described in the Offering
Memorandum and except such as (i) do not materially interfere with the use made
and proposed to be made of such property by the Issuers and the Subsidiaries or
(ii) could not reasonably be expected to have a Material Adverse Effect; and all
of the easements, rights-of-way, leases and subleases material to the business
of the Issuers and the Subsidiaries, and under which the Issuers and the
Subsidiaries hold properties described in the Offering Memorandum, are in full
force and effect, and none of the Issuers or the Subsidiaries has any notice of
any material claim of any sort that has been asserted by anyone adverse to the
rights of the Issuers or the Subsidiaries
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under any of the easements, rights-of-way, leases or subleases mentioned above,
or affecting or questioning the rights of the Issuers or the Subsidiaries to the
continued possession of the leased or subleased premises under any such lease or
sublease, or to the continued use of the property under any such easement or
right-of-way except such as could not reasonably be expected to have a Material
Adverse Effect.
(y) No labor disturbance by or dispute with the employees of the Issuers or
the Subsidiaries or, to the best knowledge of the Issuers is contemplated or
threatened.
(z) No "prohibited transaction" (as defined in Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"), or Section 4975 of the
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Internal Revenue Code of 1986, as amended from time to time (the "Code")) or
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"accumulated funding deficiency" (as defined in Section 302 of ERISA) or any of
the events set forth in Section 4043(b) of ERISA (other than events with respect
to which the 30-day notice requirement under Section 4043 of ERISA has been
waived) has occurred with respect to any employee benefit plan of the Issuers or
the Subsidiaries which could reasonably be expected to have a Material Adverse
Effect; each such employee benefit plan is in compliance in all material
respects with applicable law, including ERISA and the Code; the Issuers and the
Subsidiaries have not incurred and do not expect to incur liability under Title
IV of ERISA with respect to the termination of, or withdrawal from, any pension
plan for which the Issuers or the Subsidiaries would have any liability; and
each such pension plan that is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which could reasonably be expected to
cause the loss of such qualification.
(aa) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission or other release of any kind of toxic
or other wastes or other hazardous substances by, due to or caused by the
Issuers or the Subsidiaries (or, to the best knowledge of the Issuers, any other
entity (including any predecessor) for whose acts or omissions the Issuers or
the Subsidiaries is or could reasonably be expected to be liable) upon any of
the property now or previously owned or leased by the Issuers or the
Subsidiaries, or upon any other property, in violation of any statute or any
ordinance, rule, regulation, order, judgment, decree or permit or which would,
under any statute or any ordinance, rule (including rule of common law),
regulation, order, judgment, decree or permit, give rise to any liability,
except for any violation or liability could not reasonably be expected to have,
singularly or in the aggregate with all such violations and liabilities, a
Material Adverse Effect; and there has been no disposal, discharge, emission or
other release of any kind onto such property or into the environment surrounding
such property of any toxic or other wastes or other hazardous substances with
respect to which the Issuers have knowledge, except for any such disposal,
discharge, emission or other release of any kind which could not reasonably be
expected to have, singularly or in the aggregate with all such discharges and
other releases, a Material Adverse Effect.
(bb) None of the Issuers or, to the best knowledge of the Issuers, any
director, officer, agent, employee or other person associated with or acting on
behalf of the Issuers has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(cc) On and immediately after the Closing Date, the Company (after giving
effect to the issuance of the Notes, the Private Exchange Notes and the Exchange
Notes and to the other transactions related thereto as described in the Offering
Memorandum) will be Solvent. As used in this paragraph, the term "Solvent"
means, with respect to a particular date, that on such date (i) the present fair
market value (or present fair saleable value) of the assets of the Company is
not less than the total amount required to pay the probable liabilities of the
Company on its total existing debts and liabilities (including contingent
liabilities) as they become absolute and matured, (ii) the Company is able to
realize upon its assets and pay its debts and other liabilities, contingent
obligations and commitments as they mature and become due in the normal course
of business, (iii) assuming the sale of the Notes , the Private Exchange Notes
and the Exchange Notes as contemplated by this Agreement and the Offering
Memorandum, the Company is not incurring debts or liabilities beyond its ability
to pay as such debts and liabilities mature and (iv) the Company is not engaged
in any business or transaction, and is not about to engage in any business or
transaction, for which its property would constitute unreasonably small capital
after giving due consideration to the prevailing practice in the industry in
which the Company is engaged. In computing the amount of such contingent
liabilities at any time, it is intended that such liabilities will be
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computed at the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
(dd) Except as disclosed in the Offering Memorandum and except as would
not reasonably be expected to have a Material Adverse Effect, to the best of the
Issuers' knowledge, none of Mediacom, Mediacom Capital, Mediacom Management or
any of the Subsidiaries party (a "Principal Agreement Party") to (i) the
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separate management agreements between Mediacom Management and each of the
Subsidiaries (the "Management Agreements"), (ii) the Operating Agreement, (iii)
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the agreements comprising the Western Credit Facility and (iv) the agreements
comprising the Southeast Credit Facility (collectively, the foregoing are herein
called the "Principal Agreements"), is in breach of, or in default in any
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material respect in the performance or observance of, any material obligation,
term, covenant or condition contained therein. Each of the Principal Agreements
that Mediacom has previously delivered to the Initial Purchaser is a true and
correct copy, and there have been no additional amendments, alterations,
modifications or waivers thereto or in the exhibits or schedules thereto. Each
Principal Agreement Party has duly and validly authorized, executed and
delivered each of the Principal Agreements to which it is a party and, assuming
due and valid authorization, execution and delivery by the other parties
thereto, each of the Principal Agreements is a valid and legally binding
agreement of such Principal Agreement Party.
(ee) Except as described in the Offering Memorandum, there are no
outstanding subscriptions, rights, warrants, calls or options to acquire, or
instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any membership interests
or shares of capital stock of or other equity or other ownership interest in the
Issuers or the Subsidiaries.
(ff) None of the Issuers or the Subsidiaries owns any "margin securities"
as that term is defined in Regulations G and U of the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board"), and none of the proceeds
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of the sale of the Notes will be used, directly or indirectly, for the purpose
of purchasing or carrying any margin security, for the purpose of reducing or
retiring any indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which might cause any of the Notes to
be considered a "purpose credit" within the meanings of Regulation G, T, U or X
of the Federal Reserve Board.
(gg) None of the Issuers or the Subsidiaries is a party to any contract,
agreement or understanding with any person that would give rise to a valid claim
against the Issuers or the Initial Purchaser for a brokerage commission,
finder's fee or like payment in connection with the offering and sale of the
Notes, the Private Exchange Notes or the Exchange Notes.
(hh) The Notes satisfy the eligibility requirements of Rule 144A(d)(3)
under the Securities Act.
(ii) None of the Issuers, any of their affiliates or any person acting on
their behalf has engaged or will engage in any directed selling efforts (as such
term is defined in Regulation S under the Securities Act ("Regulation S")) with
------------
respect to the Notes, the Private Exchange Notes or the Exchange Notes, and all
such persons have complied and will comply with the offering restrictions
requirement of Regulation S to the extent applicable. No representation is
herein made with respect to the Initial Purchaser, any affiliate thereof or any
person acting on its behalf, or with respect to any obligation thereof.
(jj) None of the Issuers or any of their affiliates has, directly or
through any agent, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as such term is defined in the
Securities Act), which is or will be integrated with the sale of the Notes, the
Private Exchange Notes or the Exchange Notes in a manner that would require
registration of the Notes under the Securities Act.
(kk) None of the Issuers or any of their affiliates or any other person
acting on their behalf has engaged, in connection with the offering of the
Notes, the Private Exchange Notes or the Exchange Notes, in any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the
Securities Act.
(ll) There are no securities of the Issuers registered under the Exchange
Act, or listed on a national securities exchange or quoted in a U.S. automated
inter-dealer quotation system.
-7-
(mm) The Issuers have not taken and will not take, directly or indirectly,
any action prohibited by Regulation M under the Exchange Act in connection with
the offering of the Notes, the Private Exchange Notes or the Exchange Notes.
(nn) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in the
Preliminary Offering Memorandum or the Offering Memorandum has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good
faith.
(oo) None of the Issuers or the Subsidiaries does business with the
government of Cuba or with any person or affiliate located in Cuba within the
meaning of Florida Statutes Section 517.075.
(pp) Since the date as of which information is given in the Offering
Memorandum, except as otherwise stated therein, (i) there has been no material
adverse change or any development involving a prospective material adverse
change in the condition (financial or otherwise) or in the results of
operations, business affairs, management or business prospects of the Issuers
and the Subsidiaries taken as a whole, whether or not arising in the ordinary
course of business, (ii) none of the Issuers and the Subsidiaries has incurred
any material liability or obligation, direct or contingent, other than in the
ordinary course of business, which would have a Material Adverse Effect, (iii)
none of the Issuers and the Subsidiaries has entered into any material
transaction other than in the ordinary course of business, which would have a
Material Adverse Effect and (iv) there has not been any change in the capital
stock, membership interests or long-term debt of the Issuers or any of the
Subsidiaries, or any dividend or distribution of any kind declared, paid or made
by the Issuers or the Subsidiaries on any class of its capital stock or
membership interests.
2. Purchase and Resale of the Notes.
--------------------------------
(a) On the basis of the representations, warranties and agreements
contained herein, and subject to the terms and conditions set forth herein, the
Issuers agree to issue and sell to the Initial Purchaser, and the Initial
Purchaser, agrees to purchase from the Issuers, the principal amount of
$200,000,000 of Notes at a purchase price equal to 97.25% of the principal
amount thereof. The Issuers shall not be obligated to deliver any of the Notes
except upon payment for all of the Notes to be purchased as provided herein.
(b) The Initial Purchaser has advised the Issuers that it proposes to
offer the Notes for resale upon the terms and subject to the conditions set
forth herein and in the Offering Memorandum. The Initial Purchaser represents,
warrants and agrees that (i) it is purchasing the Notes pursuant to a private
sale exempt from registration under the Securities Act, (ii) it has not
solicited offers for, or offered or sold, and will not solicit offers for, or
offer or sell, the Notes by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) of Regulation D under the
Securities Act ("Regulation D") or in any manner involving a public offering
------------
within the meaning of Section 4(2) of the Securities Act and it has not engaged,
and will not engage, in any directed selling efforts within the meaning of Rule
902 under the Securities Act in connection with any of the Notes, and it will
comply with the offering restrictions and requirements of Regulation S, (iii) it
has solicited and will solicit offers for the Notes only from, and has offered
or sold and will offer, sell or deliver the Notes, as part of its initial
offering, only (A) within the United States to persons whom it reasonably
believes to be qualified institutional buyers ("Qualified Institutional Buyers")
------------------------------
as defined in Rule 144A under the Securities Act ("Rule 144A"), or if any such
---------
person is buying for one or more institutional accounts for which such person is
acting as fiduciary or agent, only when such person has represented to it that
each such account is a Qualified Institutional Buyer to whom notice has been
given that such sale or delivery is being made in reliance on Rule 144A and in
each case, in transactions in accordance with Rule 144A and (B) outside the
United States to persons other than U.S. persons (as defined in Rule 902 under
the Securities Act) and to whom the Initial Purchaser reasonably believes offers
and sales of the Notes may be made in reliance on Rule 903 under the Securities
Act in transactions meeting the requirements of Regulation S, and (iv) it is a
Qualified Institutional Buyer. The Initial Purchaser agrees that prior to or
simultaneously with the confirmation of sale by it to any purchaser of any of
the Notes purchased by the Initial Purchaser pursuant hereto, it shall furnish
to that purchaser a copy of the Offering Memorandum (and any amendment or
supplement thereto that the Issuers shall have furnished to it prior to the date
of such confirmation of sale). In addition to the foregoing, the Initial
Purchaser acknowledges and agrees that the Issuers and, for the purposes of the
opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d),
(e), (f) and (g), counsel for the Issuers and for the Initial Purchaser,
respectively, may rely upon the accuracy of the representations and warranties
of the Initial Purchaser and its compliance with the agreements contained in
this Section 2, and the Initial Purchaser hereby consents to such reliance. The
Initial Purchaser will advise the Issuers of the completion of the
-8-
distribution of Notes pursuant to Regulation S. The Initial Purchaser agrees
that, at or prior to confirmation of sale of Notes (other than a sale pursuant
to Rule 144A), it will have sent to each distributor, dealer or person receiving
a selling concession, fee or other remuneration that purchases Notes from it
during the restricted period a confirmation of notice to substantially the
following effect:
"The Notes covered hereby have not been registered under the U.S. Securities
Act of 1933, as amended (the "Securities Act"), and may not be offered or
sold within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering of the
Notes and the date of original issuance of the Notes, except in accordance
with Regulation S or Rule 144A or any other available exemption from
registration under the Securities Act. Terms used above have the meanings
given to them by Regulation S."
The Initial Purchaser represents that it has not entered into and
agrees that it will not enter into any contractual arrangement with respect to
the distribution or delivery of the Notes, except with the prior written consent
of the Issuers.
(c) The Initial Purchaser represents, warrants and agrees that (i) it
has not offered or sold and will not offer or sell, in the United Kingdom by
means of any document, any Notes offered hereby, other than to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 (the "Regulations"), (ii) it has complied
-----------
and will comply with all applicable provisions of the Financial Services Act
1986 and the Regulations with respect to anything done by it in relation to the
Notes in, from or otherwise involving the United Kingdom, and (iii) it has only
issued or passed on and will only issue or pass on in the United Kingdom any
document received by it in connection with the issue of the Notes to a person
who is of a kind described in Article 11(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1996 or is a person to whom such
document may otherwise lawfully be issued or passed on.
(d) The Issuers acknowledge and agree that the Initial Purchaser may
sell Notes to any affiliate of the Initial Purchaser and that any such affiliate
may sell Notes purchased by it to the Initial Purchaser.
3. Delivery of and Payment for the Notes.
-------------------------------------
(a) Delivery of and payment for the Notes shall be made at the
offices of Milbank, Tweed, Xxxxxx & XxXxxx, New York, New York, or at such other
place as shall be agreed upon by the Initial Purchaser and the Issuers, at 10:00
A.M., New York City time, on April 1, 1998, or at such other time or date, not
later than seven full business days thereafter, as shall be agreed upon by the
Initial Purchaser and the Issuers (such date and time of payment and delivery
being referred to herein as the "Closing Date").
------------
(b) On the Closing Date, payment of the purchase price for the Notes
shall be made to Mediacom by wire or book-entry transfer of same-day funds to
such account or accounts as Mediacom shall specify prior to the Closing Date or
by such other means as the parties hereto shall agree prior to the Closing Date
against delivery to the Initial Purchaser of the certificates evidencing the
Notes. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of the Initial Purchaser hereunder. Upon delivery, the Notes shall be in global
form, registered in such names and in such denominations as the Initial
Purchaser shall have requested in writing not less than two full business days
prior to the Closing Date. The Issuers agree to make one or more global
certificates evidencing the Notes available for inspection by the Initial
Purchaser in New York, New York at least 24 hours prior to the Closing Date.
4. Further Agreements of the Issuers. The Issuers agree with the
---------------------------------
Initial Purchaser:
(a) To advise the Initial Purchaser promptly and, if requested,
confirm such advice in writing, of the happening of any event which makes any
statement of a material fact made in the Offering Memorandum untrue or which
requires the making of any additions to or changes in the Offering Memorandum
(as amended or supplemented
-9-
from time to time) in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; to advise the Initial
Purchaser promptly of any order preventing or suspending the use of the
Preliminary Offering Memorandum or the Offering Memorandum, of any suspension of
the qualification of the Notes for offering or sale in any jurisdiction and of
the initiation or threatening of any proceeding for any such purpose; and to use
its best efforts to prevent the issuance of any such order preventing or
suspending the use of the Preliminary Offering Memorandum or the Offering
Memorandum or suspending any such qualification and, if any such suspension is
issued, to obtain the lifting thereof at the earliest possible time.
(b) To furnish promptly to the Initial Purchaser and counsel for the
Initial Purchaser, without charge, as many copies of the Preliminary Offering
Memorandum and the Offering Memorandum (and any amendments or supplements
thereto) as may be reasonably requested.
(c) Prior to making any amendment or supplement to the Offering
Memorandum, to furnish a copy thereof to the Initial Purchaser and counsel for
the Initial Purchaser and not to effect any such amendment or supplement to
which the Initial Purchaser shall reasonably object by notice to the Issuers
after a reasonable period to review.
(d) If, at any time prior to completion of the resale of the Notes by
the Initial Purchaser, any event shall occur or condition exist as a result of
which it is necessary, in the opinion of counsel for the Initial Purchaser or
counsel for the Issuers, to amend or supplement the Offering Memorandum in order
that the Offering Memorandum will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time it is delivered
to a purchaser, not misleading, or if it is necessary to amend or supplement the
Offering Memorandum to comply with applicable law, to promptly prepare such
amendment or supplement as may be necessary to correct such untrue statement or
omission or so that the Offering Memorandum, as so amended or supplemented, will
comply with applicable law.
(e) For so long as the Notes are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, to
furnish to holders of the Notes and prospective purchasers of the Notes
designated by such holders, upon request of such holders or such prospective
purchasers, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act, unless the Issuers are then subject to and in
compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement
being for the benefit of the holders from time to time of the Notes and
prospective purchasers of the Notes designated by such holders).
(f) To promptly take from time to time such actions as the Initial
Purchaser may reasonably request to qualify the Notes for offering and sale
under the securities or Blue Sky laws of such jurisdictions as the Initial
Purchaser may designate and to continue such qualifications in effect for so
long as required for the resale of the Notes, and to arrange for the
determination of the eligibility for investment of the Notes under the laws of
such jurisdictions as the Initial Purchaser may reasonably request; provided
--------
that the Issuers and the Subsidiaries shall not be obligated to qualify as
foreign corporations in any jurisdiction in which they are not so qualified or
to file a general consent to service of process in any jurisdiction.
(g) To assist the Initial Purchaser in arranging for the Notes to be
designated Private Offerings, Resales and Trading through Automated Linkages
("PORTAL") Market securities in accordance with the rules and regulations
--------
adopted by the National Association of Securities Dealers, Inc. ("NASD")
----
relating to trading in the PORTAL Market and for the Notes to be eligible for
clearance and settlement through The Depository Trust Company ("DTC"), the
---
Euroclear System and Cedel Bank, societe anonyme.
(h) Not to, and to cause their affiliates not to, sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any security
(as such term is defined in the Securities Act) which could be integrated with
the sale of the Notes in a manner which would require registration of the Notes
under the Securities Act.
(i) Except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
not to, and to cause their affiliates not to, authorize or knowingly permit any
person acting on their behalf to, solicit any offer to buy or offer to sell the
Notes, the Private Exchange Notes or the Exchange Notes by means of any form of
general solicitation or general advertising within the meaning of Regulation D,
by means of any directed selling efforts (as defined in Regulation S under the
Securities Act) in connection with the Notes or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act; and not to
-10-
offer, sell, contract to sell or otherwise dispose of, directly or indirectly,
any securities under circumstances where such offer, sale, contract or
disposition would cause the exemption afforded by Section 4(2) of the Securities
Act to cease to be applicable to the offering and sale of the Notes to the
Initial Purchaser as contemplated by this Agreement and the Offering Memorandum.
(j) During the period from the Closing Date until two years after the
Closing Date or the effectiveness of the Exchange Offer Registration Statement
or Shelf Registration Statement, without the prior written consent of the
Initial Purchaser, not to, and not permit any of their affiliates (as defined in
Rule 144 under the Securities Act) which they control to, resell any of the
Notes, the Private Exchange Notes or Exchange Notes that have been reacquired by
them, except for Notes, the Private Exchange Notes or Exchange Notes purchased
by the Issuers or any of their affiliates and resold in a transaction registered
under the Securities Act.
(k) Not to, for so long as the Notes are outstanding, be or become,
or be or become owned by, an open-end investment company, unit investment trust
or face-amount certificate company that is or is required to be registered under
Section 8 of the Investment Company Act, and to not be or become, or be or
become owned by, a closed-end investment company required to be registered, but
not registered thereunder.
(l) In connection with the offering of the Notes, until the Initial
Purchaser shall have notified the Issuers of the completion of the resale of the
Notes, not to, and to cause their affiliated purchasers (as defined in
Regulation M under the Exchange Act) not to, either alone or with one or more
other persons, bid for or purchase, for any account in which they or any of
their affiliated purchasers has a beneficial interest, any Notes, or attempt to
induce any person to purchase any Notes; and not to, and to cause their
affiliated purchasers not to, make bids or purchase for the purpose of creating
actual, or apparent, active trading in or of raising the price of the Notes.
(m) In connection with the offering of the Notes, to make their
officers, employees, independent accountants and legal counsel reasonably
available upon request by the Initial Purchaser.
(n) To furnish to the Initial Purchaser on the date hereof a copy of
the independent accountants' report included in the Offering Memorandum signed
by the accountants rendering such report.
(o) To do and perform all things required to be done and performed by
them under this Agreement that are within their control prior to or after the
Closing Date, and to use their best efforts to satisfy all conditions precedent
on their part to the delivery of the Notes.
(p) To not take any action prior to the execution and delivery of the
Indenture that, if taken after such execution and delivery, would have violated
any of the covenants contained in the Indenture.
(q) Prior to the Closing Date, not to issue any press release or
other communication directly or indirectly or hold any press conference with
respect to the Issuers, their condition (financial or otherwise) or results of
operations, business affairs, management or business prospects (except for
routine oral marketing communications in the ordinary course of business and
consistent with the past practices of the Issuers and of which the Initial
Purchaser is notified), without the prior written consent of the Initial
Purchaser, unless in the judgment of the Issuers and their counsel, and after
notification to the Initial Purchaser, such press release or communication is
required by law.
(r) To apply the net proceeds from the sale of the Notes as set forth
in the Offering Memorandum under the heading "Use of Proceeds".
5. Conditions of Initial Purchaser's Obligations. The obligations of
---------------------------------------------
the Initial Purchaser hereunder are subject to the accuracy, on and as of the
date hereof and the Closing Date, of the representations and warranties of the
Issuers contained herein, to the accuracy of the statements of the Issuers and
their officers made in any certificates delivered pursuant hereto, to the
performance by the Issuers of their obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial Purchaser
as promptly as practicable on or following the date of this Agreement or at such
other date and time as to which the Initial Purchaser may agree; and no stop
order suspending the
-11-
sale of the Notes in any jurisdiction shall have been issued and no proceeding
for that purpose shall have been commenced or shall be pending or threatened.
(b) The Initial Purchaser shall not have discovered and disclosed to
the Issuers on or prior to the Closing Date that the Offering Memorandum or any
amendment or supplement thereto contains an untrue statement of a fact which, in
the opinion of counsel for the Initial Purchaser, is material or omits to state
any fact which, in the opinion of such counsel, is material and is required to
be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of the Transaction Documents and the
Offering Memorandum, and all other legal matters relating to the Transaction
Documents and the transactions contemplated thereby, shall be satisfactory in
all material respects to the Initial Purchaser, and the Issuers shall have
furnished to the Initial Purchaser all documents and information that it or its
counsel may reasonably request to enable them to pass upon such matters.
(d) Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx, P.C. shall have
furnished to the Initial Purchaser their written opinion, as counsel to the
Issuers, addressed to the Initial Purchaser and dated the Closing Date, in form
and substance reasonably satisfactory to the Initial Purchaser, substantially to
the effect set forth in Annex B hereto.
(e) Xxxxxxxxxx & Xxxxx L.L.P. shall have furnished to the Initial
Purchaser their written opinion, as special regulatory counsel for the Issuers,
addressed to the Initial Purchaser and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchaser, substantially to the
effect set forth in Annex C hereto.
(f) Dow, Xxxxxx & Xxxxxxxxx, PLLC shall have furnished to the Initial
Purchaser their written opinion, as special regulatory counsel for the Initial
Purchaser, addressed to the Initial Purchaser and dated the Closing Date, in
form and substance satisfactory to the Initial Purchaser, substantially to the
effect set forth in Annex D hereto.
(g) The Initial Purchaser shall have received from Milbank, Tweed,
Xxxxxx & XxXxxx, counsel for the Initial Purchaser, such opinion or opinions,
dated the Closing Date, with respect to such matters as the Initial Purchaser
may reasonably require, and the Issuers shall have furnished to such counsel
such documents and information as they request for the purpose of enabling them
to pass upon such matters.
(h) The Issuers shall have furnished to the Initial Purchaser (i) a
letter (the "AA Initial Letter") of Xxxxxx Xxxxxxxx LLP, addressed to the
-----------------
Initial Purchaser and dated the date hereof, in form and substance satisfactory
to the Initial Purchaser, substantially to the effect set forth in Annex E-1
hereto and (ii) a letter (the "KPMG Initial Letter") of KPMG Peat Marwick LLP,
-------------------
addressed to the Initial Purchaser and dated the date hereof, in form and
substance satisfactory to the Initial Purchaser, substantially to the effect set
forth in Annex E-2 hereto.
(i) The Issuers shall have furnished to the Initial Purchaser a
letter (the "AA Bring-Down Letter") of Xxxxxx Xxxxxxxx LLP, addressed to the
--------------------
Initial Purchaser and dated the Closing Date (i) confirming that they are
independent public accountants with respect to the Issuers and the Subsidiaries
within the meaning of Rule 101 of the Code of Professional Conduct of the AICPA
and its interpretations and rulings thereunder, (ii) stating, as of the date of
the AA Bring-Down Letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Offering Memorandum, as of a date not more than
three business days prior to the date of the AA Bring-Down Letter), that the
conclusions and findings of such accountants with respect to the financial
information and other matters covered by the AA Initial Letter are accurate and
(iii) confirming in all material respects the conclusions and findings set forth
in the AA Initial Letter. The Issuers shall have furnished to the Initial
Purchaser a letter (the "KPMG Bring-Down Letter") of KPMG Peat Marwick LLP,
----------------------
addressed to the Initial Purchaser and dated the Closing Date (i) confirming
that they are independent public accountants with respect to the Cablevision
Systems within the meaning of Rule 101 of the Code of Professional Conduct of
the AICPA and its interpretations and rulings thereunder, (ii) stating, as of
the date of the KPMG Bring-Down Letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Offering Memorandum, as of a date not more
than three business days prior to the date of the KPMG Bring-Down Letter), that
the conclusions and findings of such accountants with respect to the financial
information and other matters covered by the KPMG Initial Letter are accurate
and (iii) confirming in all material respects the conclusions and findings set
forth in the KPMG Initial Letter.
-12-
(j) The Issuers shall have furnished to the Initial Purchaser a
certificate, dated the Closing Date, of their respective chief executive
officers and chief financial officers stating that (A) such officers have
carefully examined the Offering Memorandum, (B) in their opinion, the Offering
Memorandum, as of its date, did not include any untrue statement of a material
fact and did not omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and since the date of
the Offering Memorandum, no event has occurred which should have been set forth
in a supplement or amendment to the Offering Memorandum so that the Offering
Memorandum (as so amended or supplemented) would not include any untrue
statement of a material fact and would not omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and (C) as of the Closing Date, the representations and warranties of
the Issuers in this Agreement are true and correct in all material respects, the
Issuers have complied with all agreements, in all material respects, and
satisfied all conditions on their part to be performed or satisfied hereunder on
or prior to the Closing Date, and subsequent to the date of the most recent
financial statements contained in the Offering Memorandum, there has been no
material adverse change or any development involving a prospective material
adverse change in the condition (financial or otherwise), or in the results of
operations, business affairs, management or business prospects of the Issuers
and the Subsidiaries taken as a whole, except as set forth in the Offering
Memorandum.
(k) The Initial Purchaser shall have received a counterpart of the
Registration Rights Agreement which shall have been executed and delivered by a
duly authorized officer of each of the Issuers.
(l) The Indenture shall have been duly executed and delivered by the
Issuers and the Trustee, and the Notes shall have been duly executed and
delivered by the Issuers and duly authenticated by the Trustee.
(m) The Notes shall have been approved by the NASD for trading in the
PORTAL Market.
(n) If any event shall have occurred that requires the Issuers under
Section 4(d) to prepare an amendment or supplement to the Offering Memorandum,
such amendment or supplement shall have been prepared, the Initial Purchaser
shall have been given a reasonable opportunity to comment thereon, and copies
thereof shall have been delivered to the Initial Purchaser reasonably in advance
of the Closing Date.
(o) There shall not have occurred any invalidation of Rule 144A or
Regulation S under the Securities Act by any court or any withdrawal or proposed
withdrawal of any rule or regulation under the Securities Act or the Exchange
Act by the Commission or any amendment or proposed amendment thereof by the
Commission which in the judgment of the Initial Purchaser would materially
impair the ability of the Initial Purchaser to purchase, hold or effect resales
of the Notes as contemplated hereby.
(p) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Offering Memorandum
(exclusive of any amendment or supplement thereto), there shall not have been
any change in the capital stock or membership interests, as applicable, or long-
term debt or any change, or any development involving a prospective change, in
or affecting the condition (financial or otherwise), results of operations,
business affairs, management, or business prospects of the Issuers and the
Subsidiaries taken as a whole, whether or not arising in the ordinary course of
business, the effect of which, in any such case described above, is, in the
judgment of the Initial Purchaser, so material and adverse as to make it
impracticable or inadvisable to proceed with the sale or delivery of the Notes
on the terms and in the manner contemplated by this Agreement and the Offering
Memorandum (exclusive of any amendment or supplement thereto).
(q) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental agency
or body which would, as of the Closing Date, prevent the issuance or sale of the
Notes, the Private Exchange Notes or Exchange Notes; and no injunction,
restraining order or order of any other nature by any federal or state court of
competent jurisdiction shall have been issued as of the Closing Date which would
prevent the issuance or sale of the Notes, the Private Exchange Notes or
Exchange Notes.
(r) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Notes by any
"nationally recognized statistical rating organization", as such term is defined
by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of
the Commission under the
-13-
Securities Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of the Notes.
(s) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or limited, or minimum prices
shall have been established on any such exchange or market by the Commission, by
any such exchange or by any other regulatory body or governmental authority
having jurisdiction, or trading in any securities of the Issuers on any exchange
or in the over-the-counter market shall have been suspended or (ii) any
moratorium on commercial banking activities shall have been declared by federal
or New York state authorities or (iii) an outbreak or escalation of hostilities
or a declaration by the United States of a national emergency or war or (iv) a
material adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in the
United States shall be such) the effect of which, in the case of this clause
(iv), is, in the judgment of the Initial Purchaser, so material and adverse as
to make it impracticable or inadvisable to proceed with the sale or the delivery
of the Notes on the terms and in the manner contemplated by this Agreement and
in the Offering Memorandum (exclusive of any amendment or supplement thereto).
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchaser.
6. Termination. The obligations of the Initial Purchaser hereunder
-----------
may be terminated by the Initial Purchaser, in its absolute discretion, by
notice given to and received by the Issuers prior to delivery of and payment for
the Notes if, prior to that time, any of the events described in Section 5(o),
(p), (q), (r) or (s) shall have occurred and be continuing.
7. Reimbursement of Initial Purchaser's Expenses. If (a) this
---------------------------------------------
Agreement shall have been terminated pursuant to Section 6, (b) the Issuers
shall fail to tender the Notes for delivery to the Initial Purchaser for any
reason permitted under this Agreement or shall fail to fulfill a condition
stated in Section 5, or (c) the Initial Purchaser shall decline to purchase the
Notes for any reason permitted under this Agreement, the Issuers shall reimburse
the Initial Purchaser for such out-of-pocket expenses (including reasonable fees
and disbursements of counsel) as shall have been reasonably incurred by the
Initial Purchaser in connection with this Agreement and the proposed purchase
and resale of the Notes.
8. Indemnification.
---------------
(a) The Issuers shall indemnify and hold harmless the Initial
Purchaser, its affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls the Initial
Purchaser within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 8(a) and Section 9 as an
Initial Purchaser), from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof (including, without limitation, any
loss, claim, damage, liability or action relating to purchases and sales of the
Notes), to which the Initial Purchaser may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
the Preliminary Offering Memorandum or the Offering Memorandum or in any
amendment or supplement thereto or any information provided by the Issuers to
the holders of the Notes pursuant to Section 4(e) in connection with the initial
distribution of the Notes or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and shall reimburse the Initial Purchaser promptly
upon demand for any legal or other expenses reasonably incurred by the Initial
Purchaser in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
--------
however, that the Issuers shall not be liable in any such case to the extent
-------
that any such loss, claim, damage, liability or action arises out of, or is
based upon, an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with the Initial Purchaser's Information; and provided, further, that with
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respect to any such untrue statement in or omission from the Preliminary
Offering Memorandum, the indemnity agreement contained in this Section 8(a)
shall not inure to the benefit of the Initial Purchaser to the extent that the
sale to the person asserting any
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such loss, claim, damage, liability or action was an initial resale by the
Initial Purchaser and any such loss, claim, damage, liability or action of or
with respect to the Initial Purchaser results from the fact that both (A) to the
extent required by applicable law, a copy of the Offering Memorandum was not
sent or given to such person at or prior to the written confirmation of the sale
of such Securities to such person and (B) the untrue statement in or omission
from the Preliminary Offering Memorandum was corrected in the Offering
Memorandum unless, in either case, such failure to deliver the Offering
Memorandum was a result of non-compliance by the Issuers with Section 4(b).
(b) The Initial Purchaser shall indemnify and hold harmless the
Issuers, their affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls the Issuers
within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 8(b) and Section 9 as the Issuers),
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Issuers may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Memorandum or the Offering Memorandum
or in any amendment or supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with the Initial
Purchaser's Information, and shall reimburse the Issuers promptly upon demand
for any legal or other expenses reasonably incurred by the Issuers in connection
with investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 8(a) or 8(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
--------
however, that the failure to notify the indemnifying party shall not relieve it
-------
from any liability which it may have under this Section 8 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and, provided, further, that the failure to
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notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 8. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that an
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indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 8(a) and 8(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No
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indemnifying party shall, without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld), effect any settlement
of any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
The obligations of the Issuers and the Initial Purchaser in this
Section 8 and in Section 9 are in addition to any other liability that the
Issuers or the Initial Purchaser, as the case may be, may otherwise have,
including in respect of any breaches of representations, warranties and
agreements made herein by any such party.
9. Contribution. If the indemnification provided for in Section 8 is
------------
unavailable or insufficient to hold harmless an indemnified party under Section
8(a) or 8(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Issuers on the one hand and the Initial Purchaser on
the other from the offering of the Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Issuers on the one hand and the Initial
Purchaser on the other with respect to the statements or omissions that resulted
in such loss, claim, damage or liability, or action in respect thereof, as well
as any other relevant equitable considerations. The relative benefits received
by the Issuers on the one hand and the Initial Purchaser on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes purchased under this Agreement
(before deducting expenses) received by or on behalf of the Issuers, on the one
hand, and the total discounts and commissions received by the Initial Purchaser
with respect to the Notes purchased under this Agreement, on the other, bear to
the total gross proceeds from the sale of the Notes under this Agreement, in
each case as set forth in the table on the cover page of the Offering
Memorandum. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to the Issuers or
information supplied by the Issuers on the one hand or to the Initial
Purchaser's Information on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Issuers and the Initial Purchaser agree
that it would not be just and equitable if contributions pursuant to this
Section 9 were to be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of
the loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 9 shall be deemed to include, for purposes of this Section
9, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 9, the Initial
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total discounts and commissions received by the Initial Purchaser
with respect to the Notes purchased by it under this Agreement exceeds the
amount of any damages which the Initial Purchaser has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
10. Persons Entitled to Benefit of Agreement. This Agreement shall
----------------------------------------
inure to the benefit of and be binding upon the Initial Purchaser, the Issuers
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except as provided in
Sections 8 and 9 with respect to affiliates, officers, directors, employees,
representatives, agents and controlling persons of the Issuers and the Initial
Purchaser and in Section 4(e) with respect to holders and prospective purchasers
of the Notes during and at the end of the initial distribution of the Notes.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Section 10, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
11. Expenses. The Issuers agree with the Initial Purchaser to pay
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(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Notes and any taxes payable in that connection; (b) the costs
incident to the preparation, printing and distribution of the Preliminary
Offering Memorandum, the Offering Memorandum and any amendments or supplements
thereto; (c) the costs of reproducing and distributing each of the Transaction
Documents; (d) the costs incident to the preparation, printing and delivery of
the certificates evidencing the Notes, including stamp duties and transfer
taxes, if any, payable upon issuance of the Notes; (e) the fees and expenses of
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the Issuers' counsel and independent accountants; (f) the fees and expenses of
qualifying the Notes under the securities laws of the several jurisdictions as
provided in Section 4(f) and of preparing, printing and distributing Blue Sky
Memoranda (including related fees and expenses of counsel for the Initial
Purchaser); (g) any fees charged by rating agencies for rating the Notes; (h)
the fees and expenses of the Trustee and any paying agent (including related
fees and expenses of any counsel to such parties); (i) all expenses and
application fees incurred in connection with the application for the inclusion
of the Notes on the PORTAL Market and the approval of the Notes for book-entry
transfer by DTC; and (j) all other costs and expenses incident to the
performance of the obligations of the Issuers under this Agreement which are not
otherwise specifically provided for in this Section 11; provided, however, that
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except as provided in this Section 11 and Section 7, the Initial Purchaser shall
pay its own costs and expenses.
12. Survival. The respective indemnities, rights of contribution,
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representations, warranties and agreements of the Issuers and the Initial
Purchaser contained in this Agreement or made by or on behalf of the Issuers or
the Initial Purchaser pursuant to this Agreement or any certificate delivered
pursuant hereto shall survive the delivery of and payment for the Notes and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
of them or any of their respective affiliates, officers, directors, employees,
representatives, agents or controlling persons.
13. Notices, etc. All statements, requests, notices and agreements
-------------
hereunder shall be in writing, and:
(a) if to the Initial Purchaser, shall be delivered or sent by mail or
telecopy transmission to Chase Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxx X. Xxxxx (telecopier no.: (000) 000-0000); or
(b) if to the Issuers, shall be delivered or sent by mail or telecopy
transmission to the address of Mediacom set forth in the Offering Memorandum,
Attention: Xxxxx X. Xxxxxxxx (telecopier no.: (000) 000-0000);
provided that any notice to the Initial Purchaser pursuant to Section 8(c) shall
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also be delivered or sent by mail to the Initial Purchaser at its address set
forth on the signature page hereof. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Issuers shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Initial Purchaser.
14. Definition of Terms. For purposes of this Agreement, (a) the
-------------------
term "business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
15. Initial Purchaser's Information. The parties hereto acknowledge
-------------------------------
and agree that, for all purposes of this Agreement, the Initial Purchaser's
Information consists solely of the following information in the Preliminary
Offering Memorandum and the Offering Memorandum: (i) the last paragraph on the
front cover page concerning the terms of the offering by the Initial Purchaser;
(ii) the first paragraph on page (i) of the Offering Memorandum concerning over-
allotment and trading activities by the Initial Purchaser; and (iii) the
statements concerning the Initial Purchaser contained in the third, fourth,
fifth, sixth, seventh, ninth, eleventh and twelfth paragraphs under the heading
"Plan of Distribution".
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. Counterparts. This Agreement may be executed in one or more
------------
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
18. Amendments. No amendment or waiver of any provision of this
----------
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
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19. Headings. The headings herein are inserted for convenience of
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reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Issuers and the Initial
Purchaser in accordance with its terms.
Very truly yours,
MEDIACOM LLC
By______________________________
Name:
Title:
MEDIACOM CAPITAL CORPORATION
By______________________________
Name:
Title:
Accepted:
CHASE SECURITIES INC.
By____________________________
Authorized Signatory
Address for notices pursuant to Section 8(c):
0 Xxxxx Xxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
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