Exhibit 4.2(c)
EXECUTION COPY
MEDIACOM LLC
MEDIACOM CAPITAL CORPORATION
$125,000,000
7 7/8% Senior Notes due 2011
PURCHASE AGREEMENT
------------------
February 19, 1999
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 with its direct and indirect Subsidiaries (as defined herein), and
Mediacom Capital (as defined herein), the "Company"), and Mediacom Capital
-------
Corporation, a New York corporation and a wholly-owned subsidiary of Mediacom
("Mediacom Capital" and, together with Mediacom, the "Issuers"), propose to
---------------- -------
issue and sell $125,000,000 aggregate principal amount of their 7 7/8% Senior
Notes due 2011 (the "Notes"). The Notes will be issued pursuant to an Indenture
-----
to be dated as of February 26, 1999 (the "Indenture") between the Issuers and
---------
Bank of Montreal Trust Company, as trustee (the "Trustee"). The Issuers hereby
-------
confirm their agreement with Chase Securities Inc. (the "Initial Purchaser")
-----------------
concerning the 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"), in reliance upon an exemption therefrom. The Issuers will prepare an
---
offering memorandum dated the date hereof (including the annexes thereto, the
"Offering Memorandum") setting forth information concerning the Issuers and the
-------------------
Notes. 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 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 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
-----------------------------
will agree to file with the Securities and Exchange Commission (the
"Commission") (i) a registration statement under the Securities Act (the
----------
"Exchange Offer Registration Statement") registering an issue of senior notes of
-------------------------------------
the Issuers (the "Exchange Notes") which are identical in all material respects
--------------
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 Registration Statement").
----------------------------
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 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) The Offering Memorandum, as of its 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 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 Purchaser's Information").
-------------------------------
(b) The Offering Memorandum, as of its 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").
-------------------
(d) Each of Mediacom, Mediacom California LLC ("Mediacom
--------
California"), Mediacom Arizona LLC ("Mediacom Arizona"), Mediacom Delaware LLC
---------- ----------------
("Mediacom Delaware") and Mediacom Southeast LLC ("Mediacom Southeast" and
----------------- ------------------
together with Mediacom California, Mediacom Delaware and Mediacom Arizona, the
"Subsidiaries"), has been duly formed and is validly existing as a limited
------------
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").
-----------------------
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
-2-
business and is in good standing as a foreign corporation in each jurisdicti on
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 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.
(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
-3-
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
------------------ ----
Cable Act"), the Cable Television Consumer Protection and Competition Act of
---------
1992 (the "1992 Cable Act"), the Telecommunications Act of 1996 (the "1996
-------------- ----
Telecom Act" and, together with the Communications Act, the 1984 Cable Act and
-----------
the 1992 Cable Act, the "Cable Acts") or any order, rule or regulation of the
----------
Federal Communications Commission ("FCC") is required for 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, 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 connection with the purchase and resale of the Notes by the
Initial
-4-
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 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 thereunder. The historical financial statements (including the related
notes) of the Issuers and the Subsidiaries contained in the prospectus dated
September 1, 1998 which is part of the Offering Memorandum (the "Prospectus")
----------
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) and the historical financial statements
(including the related notes) of the Issuers and the Subsidiaries contained in
the Form 10-Q for the quarter ended September 30, 1998 which is part of the
Offering Memorandum (the "Form 10-Q") comply in all material respects with the
---------
requirements applicable to Form 10-Q under the Exchange Act; 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 Prospectus 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" and in the Form 10-Q under the heading "Management's
Discussion and Analysis of Financial Condition and Results of Operations" 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
-5-
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 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 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 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 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.
-6-
(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 xxxx 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
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 Internal Revenue Code of 1986, as
-7-
amended from time to time (the "Code")) or "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 a pplicable
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
-8-
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 computed at the amount t hat, 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 separate management agreements between Mediacom Management and each of
the Subsidiaries (the "Management Agreements"), (ii) the Operating Agreement,
---------------------
(iii) 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 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 Regulation U of the Board of Governors of
the Federal Reserve System (the "Federal Reserve Board"), and none of the
---------------------
proceeds 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 Regulations
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
-9-
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) Other than the $200,000,000 8 1/2% Senior Notes due 2008 of the
Issuers, 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.
(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
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
-10-
Initial Purchaser, and the Initial Purchaser, agrees to purchase from the
Issuers, the principal amount of $125,000,000 of Notes at a purchase price equal
to 97.5% 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 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
-11-
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 Xxx
0000 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 Xxx 0000
(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 LLP, 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 February 26, 1999, 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
-12-
Offering Memorandum untrue or which requires the making of any additions to or
changes in the Offering Memorandum (as amended or supplemented 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 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 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 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
-13-
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
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.
-14-
(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 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.
-15-
(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 LLP, 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, (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 and (iii) a letter (the
"Xxxxxx Xxxxxx Initial Letter") of Xxxxxx Xxxxxx & Company, L.L.C., addressed to
----------------------------
the Initial Purchaser and dated the date hereof, in form and substance
satisfactory to the Initial Purchaser.
(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
-16-
Initial Letter are accurate and (iii) confirming in all material respects the
conclusions and findings set forth in the KPMG Initial Letter. The Issuers shall
have furnished to the Initial Purchaser a letter (the "Xxxxxx Xxxxxx Bring-Down
------------------------
Letter") of Xxxxxx Xxxxxx & Company, L.L.C., addressed to the Initial Purchaser
------
and dated the Closing Date (i) confirming that they are independent public
accountants with respect to Benchmark Acquisition Fund II Limited Partnership
(the "Predecessor Company") 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 Xxxxxx Xxxxxx Bring-Down Letter,
that the conclusions and findings of such accountants with respect to the
financial information and other matters covered by the Xxxxxx Xxxxxx Initial
Letter are accurate and (iii) confirming in all material respects the
conclusions and findings set forth in the Xxxxxx Xxxxxx Initial Letter.
(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.
-17-
(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 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).
-18-
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 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.
(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
-19-
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 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
-------- -------
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
-------- -------
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
-20-
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 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
-21-
(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
--------
(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 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 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 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,
--------
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);
-22-
provided that any notice to the Initial Purchaser pursuant to Section 8(c) shall
--------
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 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.
19. Headings. The headings herein are inserted for convenience of
--------
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
-23-
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 /s/ XXXX X. XXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
MEDIACOM CAPITAL CORPORATION
By /s/ XXXX X. XXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
Accepted:
CHASE SECURITIES INC.
By /s/ XXXXX X. XXXXX
--------------------------
Authorized Signatory
Address for notices pursuant to Section 8(c):
0 Xxxxx Xxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
-24-
ANNEX A
MEDIACOM LLC
MEDIACOM CAPITAL CORPORATION
$125,000,000
7 7/8% Senior Notes due 2011
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
------------------------------------------
February 26, 1999
CHASE SECURITIES INC.
c/o 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 with its direct and indirect Subsidiaries (as defined herein) and
Mediacom Capital (as defined herein), the "Company"), and Mediacom Capital
-------
Corporation, a New York corporation and a wholly-owned subsidiary of Mediacom
("Mediacom Capital" and, together with Mediacom, the "Issuers"), propose to
---------------- -------
issue and sell to Chase Securities Inc. (the "Initial Purchaser"), upon the
-----------------
terms and subject to the conditions set forth in a purchase agreement dated
February 19, 1999 (the "Purchase Agreement"), $125,000,000 aggregate principal
------------------
amount of their 7 7/8% Senior Notes due 2011 (the "Notes"). Capitalized terms
-----
used but not defined herein shall have the meanings given to such terms in the
Purchase Agreement.
As an inducement to the Initial Purchaser to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchaser thereunder, the Issuers agree with the Initial Purchaser, for the
benefit of the holders (including the Initial Purchaser) of the Notes, the
Exchange Notes (as defined herein) and the Private Exchange Notes (as defined
herein) (collectively, the "Holders"), as follows:
-------
1. Registered Exchange Offer. The Issuers shall (i) prepare and, not
-------------------------
later than 180 days following the date of original issuance of the Notes (the
"Issue Date"), file with the Commission a registration statement on Form S-1 or
----------
Form S-4, if the use of such form is then available (the "Exchange Offer
--------------
Registration Statement"), with respect to a proposed offer to the Holders of the
----------------------
Notes (the "Registered Exchange Offer") to issue and deliver to such Holders, in
-------------------------
exchange for the Notes, a like aggregate principal amount of debt securities of
the Issuers (the "Exchange Notes") that are identical in all material respects
--------------
to the Notes, except for the transfer restrictions relating to the Notes, (ii)
use their reasonable best efforts to cause the Exchange Offer Registration
Statement to become effective under the Securities Act no later than 300 days
after the Issue Date and the Registered Exchange Offer to be consummated no
later than 360 days after the Issue Date and (iii) keep the Exchange Offer
Registration Statement effective for not less than 30 days (or longer, if
required by applicable law) after the date on which notice of the Registered
Exchange Offer is mailed to the Holders (such period being called the "Exchange
--------
Offer
-----
Registration Period"). The Exchange Notes will be issued under the Indenture or
-------------------
an indenture (the "Exchange Notes Indenture") between the Issuers and the
------------------------
Trustee or such other bank or trust company that is reasonably satisfactory to
the Initial Purchaser, as trustee (the "Exchange Notes Trustee"), such indenture
----------------------
to be identical in all material respects to the Indenture, except for the
transfer restrictions relating to the Notes (as described above).
Upon the effectiveness of the Exchange Offer Registration Statement,
the Issuers shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Notes for Exchange Notes or Private Exchange Notes (assuming that such
Holder (a) is not an affiliate of the Issuers or an Exchanging Dealer (as
defined herein) not complying with the requirements of the next sentence, (b) is
not an Initial Purchaser holding Notes that have, or that are reasonably likely
to have, the status of an unsold allotment in an initial distribution, (c)
acquires the Exchange Notes in the ordinary course of such Holder's business and
(d) has no arrangements or understandings with any person to participate in the
distribution of the Exchange Notes) and to trade such Exchange Notes from and
after their receipt without any limitations or restrictions under the Securities
Act and without material restrictions under the securities laws of the several
states of the United States. The Issuers, the Initial Purchaser and each
Exchanging Dealer acknowledge that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, each Holder that is a
broker-dealer electing to exchange Notes, acquired for its own account as a
result of market-making activities or other trading activities, for Exchange
Notes (an "Exchanging Dealer"), is required to deliver a prospectus containing
-----------------
substantially the information set forth in Exhibit A hereto on the cover, in
Exhibit B hereto in the "Exchange Offer Procedures" section and the "Purpose of
the Exchange Offer" section and in Exhibit C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Notes received by such Exchanging Dealer pursuant to the Registered
Exchange Offer.
If, prior to the consummation of the Registered Exchange Offer, any
Holder holds any Notes acquired by it that have, or that are reasonably likely
to be determined to have, the status of an unsold allotment in an initial
distribution, or any Holder is not entitled to participate in the Registered
Exchange Offer, the Issuers shall, upon the request of any such Holder,
simultaneously with the delivery of the Exchange Notes in the Registered
Exchange Offer, issue and deliver to any such Holder, in exchange for the Notes
held by such Holder (the "Private Exchange"), a like aggregate principal amount
----------------
of debt securities of the Issuers (the "Private Exchange Notes") that are
----------------------
identical in all material respects to the Exchange Notes, except for the
transfer restrictions relating to such Private Exchange Notes. The Private
Exchange Notes will be issued under the same indenture as the Exchange Notes,
and the Issuers shall use their reasonable best efforts to cause the Private
Exchange Notes to bear the same CUSIP number as the Exchange Notes.
In connection with the Registered Exchange Offer, the Issuers shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days
(or longer, if required by applicable law) after the date on which notice
of the Registered Exchange Offer is mailed to the Holders;
-2-
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York City time, on the last business day on
which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are
applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer and any Private Exchange, as the case may be, the Issuers shall:
(a) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Registered Exchange Offer and the Private Exchange;
(b) deliver to the Trustee for cancellation all Notes so accepted for
exchange; and
(c) cause the Trustee or the Exchange Notes Trustee, as the case may
be, promptly to authenticate and deliver to each Holder, Exchange Notes or
Private Exchange Notes, as the case may be, equal in principal amount to
the Notes of such Holder so accepted for exchange.
The Issuers shall use their reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be used by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Notes; provided that (i) in the case where such
--------
prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the lesser of 180 days and the date on
which all Exchanging Dealers have sold all Exchange Notes held by them and (ii)
the Issuers shall make such prospectus and any amendment or supplement thereto
available to any broker-dealer for use in connection with any resale of any
Exchange Notes for a period of not less than 90 days after the consummation of
the Registered Exchange Offer.
The Indenture or the Exchange Notes Indenture, as the case may be,
shall provide that the Notes, the Exchange Notes and the Private Exchange Notes
shall vote and consent together on all matters as one class and that none of the
Notes, the Exchange Notes or the Private Exchange Notes will have the right to
vote or consent as a separate class on any matter.
Interest on each Exchange Note and Private Exchange Note issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or, if no interest has been paid on the
Notes, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Issuers that at the time of the consummation of the
Registered Exchange Offer, (i) any Exchange Notes received by such Holder will
be acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in the
-3-
distribution of the Notes or the Exchange Notes within the meaning of the
Securities Act, and (iii) such Holder is not an affiliate of the Issuers or, if
it is such an affiliate, such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable.
Notwithstanding any other provisions hereof, the Issuers will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not, as of the consummation of the
Registered Exchange Offer, 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 under which they were made, not misleading.
2. Shelf Registration. If (i) because of any change in law or
------------------
applicable interpretations thereof by the Commission's staff the Issuers are not
permitted to effect the Registered Exchange Offer as contemplated by Section 1
hereof, or (ii) any Notes validly tendered pursuant to the Registered Exchange
Offer are not exchanged for Exchange Notes within 360 days after the Issue Date,
or (iii) the Initial Purchaser so requests with respect to Notes or Private
Exchange Notes not eligible to be exchanged for Exchange Notes in the Registered
Exchange Offer and held by it following the consummation of the Registered
Exchange Offer, or (iv) any applicable law or interpretations do not permit any
Holder to participate in the Registered Exchange Offer, or (v) any Holder that
participates in the Registered Exchange Offer does not receive freely
transferable Exchange Notes in exchange for tendered Notes, or (vi) the Issuers
so elect, then the following provisions shall apply:
(a) The Issuers shall use their reasonable best efforts to file as
promptly as practicable (but in no event more than 60 days after so required or
requested pursuant to this Section 2) with the Commission, and thereafter shall
use its reasonable best efforts to cause to be declared effective, a shelf
registration statement on an appropriate form under the Securities Act relating
to the offer and sale of the Transfer Restricted Securities (as defined below)
by the Holders thereof from time to time in accordance with the methods of
distribution set forth in such registration statement (hereafter, a "Shelf
-----
Registration Statement" and, together with any Exchange Offer Registration
----------------------
Statement, a "Registration Statement").
----------------------
(b) The Issuers shall use their reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be used by Holders of Transfer Restricted
Securities for a period ending on the earlier of (i) two years from the Issue
Date or such shorter period that will terminate when all the Transfer Restricted
Securities covered by the Shelf Registration Statement have been sold pursuant
thereto and (ii) the date on which the Notes become eligible for resale without
volume restrictions pursuant to Rule 144 under the Securities Act (in any such
case, such period being called the "Shelf Registration Period"). The Issuers
-------------------------
shall be deemed not to have used their reasonable best efforts to keep the Shelf
Registration Statement effective during the requisite period if they voluntarily
take any action that would result in Holders of Transfer Restricted Securities
covered thereby not being able to offer and sell such Transfer Restricted
Securities during that period, unless such action is required by applicable law.
-4-
(c) Notwithstanding any other provisions hereof, the Issuers will
ensure that (i) any Shelf Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Shelf Registration Statement and any amendment
thereto (in either case, other than with respect to information included therein
in reliance upon or in conformity with written information furnished to the
Issuers by or on behalf of any Holder specifically for use therein (the
"Holders' Information")) does not contain an untrue statement of a material fact
--------------------
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any prospectus forming part
of any Shelf Registration Statement, and any supplement to such prospectus (in
either case, other than with respect to Holders' Information), does 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 under which they were made, not misleading.
3. Liquidated Damages. (a) The parties hereto agree that the Holders
------------------
of Transfer Restricted Securities will suffer damages if the Issuers fail to
fulfill their obligations under Section 1 or Section 2, as applicable, and that
it would not be feasible to ascertain the extent of such damages. Accordingly,
if (i) the applicable Registration Statement is not filed with the Commission on
or prior to 180 days after the Issue Date, (ii) the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, is not
declared effective within 300 days after the Issue Date (or in the case of a
Shelf Registration Statement required to be filed in response to a change in law
or the applicable interpretations of Commission's staff, if later, within 90
days after publication of the change in law or interpretation), (iii) the
Registered Exchange Offer is not consummated on or prior to 360 days after the
Issue Date, or (iv) the Shelf Registration Statement is filed and declared
effective within 300 days after the Issue Date (or in the case of a Shelf
Registration Statement required to be filed in response to a change in law or
the applicable interpretations of Commission's staff, if later, within 90 days
after publication of the change in law or interpretation) but shall thereafter
cease to be effective (at any time that the Issuers are obligated to maintain
the effectiveness thereof) without being succeeded within 120 days by an
additional Registration Statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default"), the Issuers
--------------------
will be obligated to pay liquidated damages to each Holder of Transfer
Restricted Securities, during the period of one or more such Registration
Defaults, in an amount equal to $0.192 per week per $1,000 principal amount of
Transfer Restricted Securities held by such Holder until (i) the applicable
Registration Statement is filed, (ii) the Exchange Offer Registration Statement
is declared effective and the Registered Exchange Offer is consummated, (iii)
the Shelf Registration Statement is declared effective or (iv) the Shelf
Registration Statement again becomes effective, as the case may be. Following
the cure of all Registration Defaults, the accrual of liquidated damages will
cease. As used herein, the term "Transfer Restricted Securities" means (i) each
------------------------------
Note until the date on which such Note has been exchanged for a freely
transferable Exchange Note in the Registered Exchange Offer, (ii) each Note or
Private Exchange Note until the date on which it has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iii) each Note or Private Exchange Note until the
date on which it is distributed to the public pursuant to Rule 144 under the
Securities Act or is saleable pursuant to Rule 144(k) under the Securities Act.
Notwithstanding anything to the contrary in this Section 3(a), the Issuers shall
not be required to pay liquidated damages to a Holder of Transfer Restricted
Securities if such Holder failed to comply with its obligations to make the
representations set forth in the second to last paragraph of Section 1 or failed
to provide the information required to be provided by it, if any, pursuant to
Section 4(n).
-5-
(b) The Issuers shall notify the Trustee and the Paying Agent under
the Indenture immediately upon the happening of each and every Registration
Default. The Issuers shall pay the liquidated damages due on the Transfer
Restricted Securities by depositing with the Paying Agent (which may not be the
Issuers for these purposes), in trust, for the benefit of the Holders thereof,
prior to 10:00 a.m., New York City time, on the next interest payment date
specified by the Indenture and the Notes, sums sufficient to pay the liquidated
damages then due. The liquidated damages due shall be payable on each interest
payment date specified by the Indenture and the Notes to the record holder
entitled to receive the interest payment to be made on such date. Each
obligation to pay liquidated damages shall be deemed to accrue from and
including the date of the applicable Registration Default.
(c) The parties hereto agree that the liquidated damages provided
for in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Securities by reason of the failure of (i) the Shelf Registration
Statement or the Exchange Offer Registration Statement to be filed, (ii) the
Shelf Registration Statement to remain effective or (iii) the Exchange Offer
Registration Statement to be declared effective and the Registered Exchange
Offer to be consummated, in each case to the extent required by this Agreement.
4. Registration Procedures. In connection with any Registration
-----------------------
Statement, the following provisions shall apply:
(a) The Issuers shall (i) furnish to the Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Registration Statement and
each amendment thereof and each supplement, if any, to the prospectus included
therein and shall use its reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as the Initial
Purchaser may reasonably propose; (ii) include the information set forth in
Exhibit A hereto on the cover, in Exhibit B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section and in
Exhibit C hereto in the "Plan of Distribution" section of the prospectus forming
a part of the Exchange Offer Registration Statement, and include the information
set forth in Exhibit D hereto in the Letter of Transmittal delivered pursuant to
the Registered Exchange Offer; and (iii) if requested by the Initial Purchaser,
include the information required by Items 507 or 508 of Regulation S-K, as
applicable, in the prospectus forming a part of the Exchange Offer Registration
Statement.
(b) The Issuers shall advise the Initial Purchaser, each Exchanging
Dealer and the Holders (if applicable) and, if requested by any such person,
confirm such advice in writing (which advice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i) when any Registration Statement and any amendment thereto has
been filed with the Commission and when such Registration Statement or any post-
effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements
to any Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of any Registration Statement or the initiation of any
proceedings for that purpose;
-6-
(iv) of the receipt by the Issuers of any notification with respect
to the suspension of the qualification of the Notes, the Exchange Notes or the
Private Exchange Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the making of any
changes in any Registration Statement or the prospectus included therein in
order that the statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(c) The Issuers will make every reasonable effort to obtain the
withdrawal at the earliest possible time of any order suspending the
effectiveness of any Registration Statement.
(d) The Issuers will furnish to each Holder of Transfer Restricted
Notes included within the coverage of any Shelf Registration Statement, without
charge, at least one conformed copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
and, if any such Holder so requests in writing, all exhibits thereto (including
those, if any, incorporated by reference).
(e) The Issuers will, during the Shelf Registration Period, promptly
deliver to each Holder of Transfer Restricted Securities included within the
coverage of any Shelf Registration Statement, without charge, as many copies of
the prospectus (including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Issuers consent to the use of such prospectus or
any amendment or supplement thereto by each of the selling Holders of Transfer
Restricted Securities in connection with the offer and sale of the Transfer
Restricted Securities covered by such prospectus or any amendment or supplement
thereto.
(f) The Issuers will furnish to the Initial Purchaser and each
Exchanging Dealer, and to any other Holder who so requests, without charge, at
least one conformed copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
and, if the Initial Purchaser or Exchanging Dealer or any such Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
(g) The Issuers will, during the Exchange Offer Registration Period
or the Shelf Registration Period, as applicable, promptly deliver to the Initial
Purchaser, each Exchanging Dealer and such other persons that are required to
deliver a prospectus following the Registered Exchange Offer, without charge, as
many copies of the final prospectus included in the Exchange Offer Registration
Statement or the Shelf Registration Statement and any amendment or supplement
thereto as the Initial Purchaser, Exchanging Dealer or other persons may
reasonably request; and the Issuers consent to the use of such prospectus or any
amendment or supplement thereto by the Initial Purchaser, Exchanging Dealer or
other persons, as applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement, the
Issuers will use their reasonable best efforts to register or qualify, or
cooperate with the Holders of Notes, Exchange Notes or Private Exchange Notes
included therein and their respective counsel in connection with the
registration or qualification of, such Notes, Exchange Notes or Private Exchange
Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions as any such Holder reasonably requests in writing and do any and
all other acts or things necessary or
-7-
advisable to enable the offer and sale in such jurisdictions of the Notes,
Exchange Notes or Private Exchange Notes covered by such Registration Statement;
provided that the Issuers will not be required to qualify generally to do
--------
business in any jurisdiction where they are not then so qualified or to take any
action which would subject them to general service of process or to taxation in
any such jurisdiction where they are not then so subject.
(i) The Issuers will cooperate with the Holders of Notes, Exchange
Notes or Private Exchange Notes to facilitate the timely preparation and
delivery of certificates representing Notes, Exchange Notes or Private Exchange
Notes to be sold pursuant to any Registration Statement free of any restrictive
legends and in such denominations and registered in such names as the Holders
thereof may request in writing prior to sales of Notes, Exchange Notes or
Private Exchange Notes pursuant to such Registration Statement.
(j) If any event contemplated by Section 4(b)(ii) through (v) occurs
during the period for which the Issuers are required to maintain an effective
Registration Statement, the Issuers will promptly prepare and file with the
Commission a post-effective amendment to the Registration Statement or a
supplement to the related prospectus or file any other required document so
that, as thereafter delivered to purchasers of the Notes, Exchange Notes or
Private Exchange Notes from a Holder, the prospectus 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 under which
they were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Issuers will provide a CUSIP number for the Notes, the Exchange
Notes and the Private Exchange Notes, as the case may be, and provide the
applicable trustee with printed certificates for the Notes, the Exchange Notes
or the Private Exchange Notes, as the case may be, in a form eligible for
deposit with The Depository Trust Company.
(l) The Issuers will comply with all applicable rules and
regulations of the Commission and will make generally available to their
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earning statement satisfying the provisions
of Section 11(a) of the Securities Act; provided that in no event shall such
--------
earning statement be delivered later than 45 days after the end of a 12-month
period (or 90 days, if such period is a fiscal year) beginning with the first
month of the Issuers' first fiscal quarter commencing after the effective date
of the applicable Registration Statement, which statement shall cover such 12-
month period.
(m) The Issuers will cause the Indenture or the Exchange Notes
Indenture, as the case may be, to be qualified under the Trust Indenture Act as
required by applicable law in a timely manner.
(n) The Issuers may require each Holder of Transfer Restricted
Securities to be registered pursuant to any Shelf Registration Statement to
furnish to the Issuers such information concerning the Holder and the
distribution of such Transfer Restricted Notes as the Issuers may from time to
time reasonably require for inclusion in such Shelf Registration Statement, and
the Issuers may exclude from such registration the Transfer Restricted
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer
-8-
Restricted Securities that, upon receipt of any notice from the Issuers pursuant
to Section 4(b)(ii) through (v), such Holder will discontinue disposition of
such Transfer Restricted Securities until such Holder's receipt of copies of the
supplemental or amended prospectus contemplated by Section 4(j) or until advised
in writing (the "Advice") by the Issuers that the use of the applicable
------
prospectus may be resumed. If the Issuers shall give any notice under Section
4(b)(ii) through (v) during the period that the Issuers are required to maintain
an effective Registration Statement (the "Effectiveness Period"), such
--------------------
Effectiveness Period shall be extended by the number of days during such period
from and including the date of the giving of such notice to and including the
date when each seller of Transfer Restricted Securities covered by such
Registration Statement shall have received (x) the copies of the supplemental or
amended prospectus contemplated by Section 4(j) (if an amended or supplemental
prospectus is required) or (y) the Advice (if no amended or supplemental
prospectus is required).
(p) In the case of a Shelf Registration Statement, the Issuers shall
enter into such customary agreements (including, if requested, an underwriting
agreement in customary form) and take all such other action, if any, as Holders
of a majority in aggregate principal amount of the Notes, Exchange Notes and
Private Exchange Notes being sold or the managing underwriters (if any) shall
reasonably request in order to facilitate any disposition of Notes, Exchange
Notes or Private Exchange Notes pursuant to such Shelf Registration Statement.
(q) In the case of a Shelf Registration Statement, the Issuers shall
(i) make reasonably available for inspection by a representative of, and Special
Counsel (as defined below) acting for, Holders of a majority in aggregate
principal amount of the Notes, Exchange Notes and Private Exchange Notes being
sold and any underwriter participating in any disposition of Notes, Exchange
Notes or Private Exchange Notes pursuant to such Shelf Registration Statement,
all relevant financial and other records, pertinent corporate documents and
properties of the Issuers and the Subsidiaries and (ii) use their reasonable
best efforts to have its officers, directors, employees, accountants and counsel
supply all relevant information reasonably requested by such representative,
Special Counsel or any such underwriter (an "Inspector") in connection with such
---------
Shelf Registration Statement.
(r) In the case of a Shelf Registration Statement, the Issuers
shall, if Notes, Exchange Notes and Private Exchange Notes being sold, their
Special Counsel or the managing underwriters (if any) in connection with such
Shelf Registration Statement, use their reasonable best efforts to cause (i)
their counsel to deliver an opinion relating to the Shelf Registration Statement
and the Notes, Exchange Notes or Private Exchange Notes, as applicable, in
customary form, (ii) their officers to execute and deliver all customary
documents and certificates requested by Holders of a majority in aggregate
principal amount of the Notes, Exchange Notes and Private Exchange Notes being
sold, their Special Counsel or the managing underwriters (if any) and (iii)
their independent public accountants to provide a comfort letter or letters in
customary form, subject to receipt of appropriate documentation as contemplated,
and only if permitted, by Statement of Auditing Standards No. 72.
5. Registration Expenses. The Issuers will bear all expenses
---------------------
incurred in connection with the performance of their obligations under Sections
1, 2, 3 and 4 and the Issuers will reimburse the Initial Purchaser and the
Holders for the reasonable fees and disbursements of one firm of attorneys (in
addition to any local counsel) chosen by the Holders of a majority in aggregate
principal amount of the Notes, the Exchange Notes and the Private Exchange Notes
to be sold pursuant to each Registration Statement (the "Special Counsel")
---------------
acting for the Initial
-9-
Purchaser or Holders in connection therewith (other than reimbursement in
connection with the Registered Exchange Offer).
6. Indemnification. (a) In the event of a Shelf Registration
---------------
Statement or in connection with any prospectus delivery pursuant to an Exchange
Offer Registration Statement by the Initial Purchaser or Exchanging Dealer, as
applicable, the Issuers shall indemnify and hold harmless each Holder
(including, without limitation, the Initial Purchaser or Exchanging Dealer), its
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls such Holder within the meaning of
the Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 6 and Section 7 as a Holder) 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 Notes, Exchange Notes or Private Exchange
Notes), to which that Holder 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
any such Registration Statement or any prospectus forming part thereof 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, and shall reimburse each Holder promptly
upon demand for any legal or other expenses reasonably incurred by that Holder
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 any
Holders' Information; and provided, further, that with respect to any such
-------- -------
untrue statement in or omission from any related preliminary prospectus, the
indemnity agreement contained in this Section 6(a) shall not inure to the
benefit of any Holder from whom the person asserting any such loss, claim,
damage, liability or action received Notes, Exchange Notes or Private Exchange
Notes to the extent that such loss, claim, damage, liability or action of or
with respect to such Holder results from the fact that both (A) a copy of the
final prospectus was not sent or given to such person at or prior to the written
confirmation of the sale of such Notes, Exchange Notes or Private Exchange Notes
to such person and (B) the untrue statement in or omission from the related
preliminary prospectus was corrected in the final prospectus unless, in either
case, such failure to deliver the final prospectus was a result of non-
compliance by the Issuers with Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder
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
6(b) and Section 7 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 any such Registration
Statement or any prospectus forming part thereof or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein
-10-
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 any Holders' Information furnished to
the Issuers by such Holder, and shall reimburse the Issuers 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; provided, however, that no such Holder
-------- -------
shall be liable for any indemnity claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Notes, Exchange Notes or
Private Exchange Notes pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 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 6(a) or 6(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 6 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
-------- -------
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 6. 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 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than the reasonable costs of investigation; provided, however,
-------- -------
that an 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 6(a) and 6(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
-11-
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 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.
7. Contribution. If the indemnification provided for in Section 6 is
------------
unavailable or insufficient to hold harmless an indemnified party under Section
6(a) or 6(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 from the offering and sale of the Notes, on the
one hand, and a Holder with respect to the sale by such Holder of Notes,
Exchange Notes or Private Exchange Notes, on the other, 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 such Holder 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 a Holder on the
other with respect to such offering and such sale shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Notes (before
deducting expenses) received by or on behalf of the Issuers as set forth in the
table on the cover of the Offering Memorandum, on the one hand, bear to the
total proceeds received by such Holder with respect to its sale of Notes,
Exchange Notes or Private Exchange Notes, on the other. 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 any Holders' Information supplied by such Holder
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 parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 7 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 7 shall be deemed
to include, for purposes of this Section 7, 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 7, an indemnifying party that is a Holder of
Notes, Exchange Notes or Private Exchange Notes shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Notes, Exchange Notes or Private Exchange Notes sold by such indemnifying
party to any purchaser exceeds the amount of any damages which such indemnifying
party 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.
8. Rules 144 and 144A. The Issuers shall use their reasonable best
------------------
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time the Issuers are not
required to file such reports, it will, upon the written
-12-
request of any Holder of Transfer Restricted Securities, make publicly available
other information so long as necessary to permit sales of such Holder's
securities pursuant to Rules 144 and 144A. The Issuers covenant that they will
take such further action as any Holder of Transfer Restricted Securities may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Transfer Restricted Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144 and
144A (including, without limitation, the requirements of Rule 144A(d)(4)). Upon
the written request of any Holder of Transfer Restricted Securities, the Issuers
shall deliver to such Holder a written statement as to whether it has complied
with such requirements. Notwithstanding the foregoing, nothing in this Section 8
shall be deemed to require the Issuers to register any of their securities
pursuant to the Exchange Act.
9. Underwritten Registrations. If any of the Transfer Restricted
--------------------------
Securities covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders of
a majority in aggregate principal amount of such Transfer Restricted Securities
included in such offering, subject to the consent of the Issuers (which shall
not be unreasonably withheld or delayed), and such Holders shall be responsible
for all underwriting commissions and discounts in connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
10. Miscellaneous. (a) Amendments and Waivers. The provisions of
------------- ----------------------
this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Issuers have obtained the written consent of Holders of a majority in aggregate
principal amount of the Notes, the Exchange Notes and the Private Exchange
Notes, taken as a single class. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Notes, Exchange Notes or
Private Exchange Notes are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect the rights of other Holders may be
given by Holders of a majority in aggregate principal amount of the Notes, the
Exchange Notes and the Private Exchange Notes being sold by such Holders
pursuant to such Registration Statement.
(b) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Issue in accordance with the provisions of this Section 10(b), which
address initially is, with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture, with a copy in like manner to
Chase Securities Inc.;
(2) if to the Initial Purchaser, initially at its address set forth
in the Purchase Agreement; and
-13-
(3) if to the Issuers, initially at the address of the Issuers set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall be binding upon
----------------------
the Issuers and their successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
------------
counterparts (which may be delivered in original form or by telecopier) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York.
(h) Remedies. In the event of a breach by the Issuers or by any
--------
Holder of any of their obligations under this Agreement, each Holder or the
Issuers, as the case may be, in addition to being entitled to exercise all
rights granted by law, including recovery of damages (other than the recovery of
damages for a breach by the Issuers of their obligations under Sections 1 or 2
hereof for which liquidated damages have been paid pursuant to Section 3
hereof), will be entitled to specific performance of its rights under this
Agreement. The Issuers and each Holder agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by them of any
of the provisions of this Agreement and hereby further agree that, in the event
of any action for specific performance in respect of such breach, they shall
waive the defense that a remedy at law would be adequate.
(i) No Inconsistent Agreements. The Issuers represent, warrant and
--------------------------
agree that (i) they have not entered into, shall not, on or after the date of
this Agreement, enter into any agreement that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof, (ii) they have not previously entered into any agreement
which remains in effect granting any registration rights with respect to any of
their debt securities to any person and (iii) without limiting the generality of
the foregoing, without the written consent of the Holders of a majority in
aggregate principal amount of the then outstanding Transfer Restricted Notes,
they shall not grant to any person the right to request the Issuers to register
any debt securities of the Issuers under the Securities Act unless the rights so
granted are not in conflict or inconsistent with the provisions of this
Agreement.
-14-
(j) No Piggyback on Registrations. Neither the Issuers nor any of
-----------------------------
their security holders (other than the Holders of Transfer Restricted Securities
in such capacity) shall have the right to include any securities of the Issuers
in any Shelf Registration or Registered Exchange Offer other than Transfer
Restricted Notes.
(k) Severability. The remedies provided herein are cumulative and
------------
not exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
-15-
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 /s/ XXXX X. XXXXXXX
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
MEDIACOM CAPITAL CORPORATION
By /s/ XXXX X. XXXXXXX
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
Accepted:
CHASE SECURITIES INC.
By /s/ XXXXX X. XXXXX
-----------------------------
Authorized Signatory
Addresses for notices pursuant to Section 8(c):
0 Xxxxx Xxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
EXHIBIT A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Issuers have agreed that, for a period of 180 days
after the Expiration Date (as defined herein), they will make this Prospectus
available to any broker-dealer for use in connection with any such resale. See
"Plan of Distribution."
-A1-
EXHIBIT B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Notes, where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution."
-B1-
EXHIBIT C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Issuers have agreed that, for a
period of 180 days after the Expiration Date, they will make this prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until _______________, 199_, all dealers
effecting transactions in the Exchange Notes may be required to deliver a
prospectus.
The Issuers will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Registered Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or at negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Notes. Any broker-dealer that resells Exchange Notes that were received by it
for its own account pursuant to the Registered Exchange Offer and any broker or
dealer that participates in a distribution of such Exchange Notes may be deemed
to be an "underwriter" within the meaning of the Securities Act and any profit
on any such resale of Exchange Notes and any commission or concessions received
by any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Issuers will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Issuers have agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the Holders of the Notes) other than commissions or concessions of any
broker-dealers and will indemnify the Holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
-C1-
EXHIBIT D
[_] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
-D1-
ANNEX B
[Form of Opinion of Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx, P.C.]
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 below:
(i) each of Mediacom and the Subsidiaries has been duly formed and
is validly existing as a limited liability company in good standing under
the laws of its respective jurisdiction of formation, 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) and perform its obligations under the
Purchase Agreement, and is duly qualified to do business and is in good
standing as a foreign limited liability company in the respective
jurisdictions indicated on Exhibit A hereto. Based solely upon a
---------
certificate of an officer of Mediacom as to where each of Mediacom and the
Subsidiaries presently owns or leases property or conducts business, we
know of no other jurisdiction where the failure to be so qualified or be in
good standing would, individually or in the aggregate, have a Material
Adverse Effect; and Mediacom's only subsidiaries are Mediacom Capital and
the Subsidiaries;
(ii) 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, has the power and authority necessary to own or hold its
properties and to conduct the business 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, and perform
its obligations under the Purchase Agreement, and is duly qualified to do
business and is in good standing as a foreign corporation in the respective
jurisdictions indicated on Exhibit B hereto. Based solely upon a
---------
certificate of an officer of Mediacom Capital as to where Mediacom Capital
presently owns or leases property or conducts business, we know of no other
jurisdiction where the failure to be so qualified or be in good standing
would, individually or in the aggregate, have a Material Adverse Effect;
and Mediacom Capital has no subsidiaries;
(iii) the Issuers and the Subsidiaries have an authorized
capitalization as set forth in the Offering Memorandum under the "Pro
Forma" column below the caption "Capitalization," and all of the limited
liability membership interests of Mediacom have been duly and validly
authorized and issued and are fully paid and non-assessable and, to such
counsel's knowledge, were not issued in violation of any preemptive or
similar rights; the limited liability membership interests of 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,
to such counsel's knowledge, are owned directly or indirectly 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; and 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, to such
counsel's knowledge, are owned directly or indirectly 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;
(iv) the statements in the Prospectus under the heading "Tax
Considerations," to the extent that they constitute summaries of matters of
law or regulation or legal conclusions, have been reviewed by such counsel
and fairly present the matters described therein in all material respects;
(v) the Indenture conforms in all material respects with the
requirements of the Trust Indenture Act and the rules and regulations of
the Commission applicable to an indenture which is qualified thereunder;
(vi) each of the Issuers has all requisite limited liability
company or corporate, as the case may be, power and authority to execute
and deliver each of the Transaction Documents and to perform its
obligations thereunder; and all requisite limited liability company or
corporate, as the case may be, 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;
(vii) each of the Purchase Agreement and the Registration Rights
Agreement has been duly authorized, executed and delivered by the Issuers;
and the Registration Rights Agreement, assuming due authorization,
execution and delivery by the Initial Purchaser, constitutes 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) and except to the extent that the
indemnification and contribution provisions thereof may be limited by
applicable law and public policy considerations;
(viii) the Indenture has been duly authorized, executed and delivered
by the Issuers and, assuming due authorization, execution and delivery
thereof by the Trustee, constitutes 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), and such counsel expresses no opinion as to the
enforceability of the waiver as to usury, extension or stay laws;
(ix) the Notes have been duly authorized and issued by the Issuers
and, assuming due authentication thereof by the Trustee and upon payment
and delivery in accordance with the Purchase Agreement and the Indenture,
will constitute valid and legally binding
-2-
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), and such counsel expresses no opinion as to the enforceability of the
waiver as to usury, extension or stay laws;
(x) each Transaction Document, the Operating Agreement, the
Management Agreements, 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;
(xi) the execution, delivery and performance by the Issuers of each
of the Transaction Documents, the issuance, authentication, sale and
delivery of the 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
under, or result in the creation or imposition of any lien, charge or other
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 known to such counsel
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 (assuming compliance with all applicable
state securities or Blue Sky laws and assuming the accuracy of the
representations and warranties of the Initial Purchaser in Section 2 of the
Purchase Agreement) any statute or any judgment, order, decree, rule or
regulation known to such counsel 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 except for any such conflict, default,
encumbrance or violation which would not, individually or in the aggregate,
have a Material Adverse Effect; and, to such counsel's knowledge, no
consent, approval, authorization or order of any such court or arbitrator
or governmental agency or body under any such statute, judgment, order,
decree, rule or regulation is required for 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, except for such consents, approvals or
authorizations (i) which have been obtained or made prior to the Closing
Date, (ii) as may be required under state securities laws in connection
with the purchase and resale of the Notes by the Initial Purchaser, and
(iii) 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;
-3-
(xii) to the best knowledge of such counsel, there are no pending
actions or suits or judicial, arbitral, rule-making, administrative or
other proceedings 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 (A) singularly or in the aggregate, if determined adversely
to the Issuers or the Subsidiaries, could reasonably be expected to have a
Material Adverse Effect or (B) 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 questions the validity or
enforceability of any of the Transaction Documents or any action taken or
to be taken pursuant thereto; and to the best knowledge of such counsel, no
such proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(xiii) to the best knowledge of such counsel, none of the Issuers or
the Subsidiaries is (A) 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, (B) in
default, 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 indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known to
such counsel to which it is a party or by which it is bound or to which any
of its property or assets is subject, except for any such default or event
which would not, individually or in the aggregate, have a Material Adverse
Effect or (C) in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its property
or assets may be subject, except for any such violation which would not,
individually or in the aggregate, have a Material Adverse Effect;
(xiv) none of the Issuers or the Subsidiaries is (A) an "investment
company" or a company "controlled by" an investment company within the
meaning of the Investment Company Act and the rules and regulations of the
Commission thereunder, without taking account of any exemption under the
Investment Company Act arising out of the number of holders of the
Company's securities or (B) 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;
(xv) neither the consummation of the transactions contemplated by
this Agreement nor the sale, issuance, execution or delivery of the Notes
will violate Regulations T, U or X of the Federal Reserve Board; and
(xvi) assuming the accuracy of the representations, warranties and
agreements of the Issuers and of the Initial Purchaser contained in the
Purchase Agreement and their compliance with the agreements set forth
therein, no registration of the Notes under the Securities Act or (prior to
the commencement of the Registered Exchange Offer or the effectiveness of a
Shelf Registration Statement) qualification of the Indenture under the
Trust Indenture Act is required in connection with the issuance and sale of
the Notes by the Issuers and the initial offer, resale and delivery of the
Notes by the Initial Purchaser in the manner contemplated by the Purchase
Agreement and the Offering Memorandum.
-4-
Such counsel shall also state that they have participated in conferences
with representatives of the Issuers, representatives of its independent
accountants and counsel and representatives of the Initial Purchaser at which
conferences the contents of the Offering Memorandum and related matters were
discussed and, although such counsel has not independently checked or verified
and are not passing upon or assuming responsibility for the accuracy,
completeness or fairness of the statements contained in the Offering Memorandum
(except as expressly provided in paragraphs (iv) and (x) above), on the basis of
the foregoing, nothing has come to the attention of such counsel to cause such
counsel to believe that the Offering Memorandum (other than the financial
statements and related notes thereto and other financial information contained
therein, as to which such counsel need express no belief), as of the date
thereof and as of the Closing Date, contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact, to
the extent such counsel deems proper, on certificates of responsible officers of
the Issuers and public officials which are furnished to the Initial Purchaser.
Such counsel may also state that in rendering such opinion, such counsel
expresses no opinion as to the Cable Acts, Section 111 of the Copyright of 1976,
as amended, or the published orders, rules and regulations of the FCC or the
U.S. Copyright Office.
-5-
ANNEX C
[Form of Opinion of Xxxxxxxxxx & Xxxxx L.L.P.]
Xxxxxxxxxx & Xxxxx L.L.P. shall have furnished to the Initial
Purchaser their written opinion, as special regulatory 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 below.
(i) The communities listed in Attachment 1 to such counsel's
opinion have been registered with the FCC in connection with the operation
of the Systems. The filing of a registration statement constitutes initial
FCC authorization for the commencement of cable television operations in
the community registered.
(ii) The Subsidiaries hold certain FCC licenses, as that term is
defined below ("FCC Licenses"). All FCC Licenses and receive-only earth
station registrations held by the Subsidiaries in connection with the
operation of the Systems are listed on such Attachment 1. To the best of
such counsel's knowledge, all such FCC Licenses have been validly issued or
assigned to the present licensee and are currently in full force and
effect. Such counsel has no knowledge of any event which would allow, or
after notice or lapse of time which would allow, revocation or termination
of any FCC License held by the Subsidiaries or would result in any other
material impairment of the rights of the holder of such license. To the
best of such counsel's knowledge, no other FCC Licenses are required in
connection with the operation of the Systems by the Subsidiaries in the
manner such counsel has been advised they are presently being operated. For
the purposes of such counsel's opinion, an "FCC License" is defined as an
authorization, or renewal thereof, issued by the FCC authorizing the
transmission of radio energy through the airwaves.
(iii) Other than proceedings affecting the cable television industry
generally, there is no action, suit or proceeding pending before or, to the
best of such counsel's knowledge, threatened by the FCC which is reasonably
likely to have a Material Adverse Effect.
(iv) The Subsidiaries hold all authorizations and/or have filed all
notifications required by the FCC in connection with their operation on all
frequencies in the 108-137 MHz and 225-550 MHz bands which such counsel has
been advised are currently being utilized on the Systems. The geographic
and technical parameters with respect to the authorized use of these
frequencies are listed on such Attachment 1.
(v) The execution, delivery and performance by the Issuers of each
of the Transaction Documents, the issuance, authentication, sale and
delivery of the 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 any of the Cable Acts or Section 111 of the
Copyright Act of 1976, as amended (the "Copyright Act") or any judgment,
order, decree,
rule or regulation of the FCC or the U.S. Copyright Office, except for
conflicts, breaches and violations which individually or in the aggregate
would not reasonably be expected to have a Material Adverse Effect.
(vi) No consent, approval, authorization or order of, or filing or
registration with the FCC or the U.S. Copyright Office under any of the
Cable Acts or Section 111 of the Copyright Act, or the published orders,
rules and regulations of the FCC or the U.S. Copyright Office is required
for the execution, delivery and performance by the Issuers of each of the
Transaction Documents, the issuance, authentication, sale and delivery of
the Notes and compliance by the Issuers with the terms thereof and the
consummation of the transactions contemplated by the Transaction Documents.
(vii) The statements in the Prospectus under the captions "Risk
Factors--Non-Exclusive Franchises; Non-Renewal or Termination of
Franchises," "Risk Factors--Regulation in the Cable Television Industry,"
"Business--Competition" and "Legislation and Regulation," and in the
Offering Memorandum under the caption "Risk Factors--Recent Developments
Relating to Competition in the Cable Television Industry," insofar as such
statements summarize applicable provisions of the Cable Acts and the
published orders, rules and regulations of the FCC, are accurate summaries
in all material respects of the provisions purported to be summarized under
such captions in the Prospectus; and the FCC statutes and regulations
summarized under such captions are the FCC statutes and regulations that
are material to the business of the Issuers and the Subsidiaries as
described in the Offering Memorandum.
(viii) In the course of such counsel's representation of the Issuers
and the Subsidiaries, no matters have come to such counsel's attention,
other than matters affecting the cable television industry generally, which
would reasonably be expected to have a Material Adverse Effect.
In rendering such opinion, such counsel may state that such opinion is
limited to such counsel's review of the Cable Acts, Section 111 of the Copyright
Act and the published orders, rules and regulations of the FCC and the U.S.
Copyright Office.
-2-
ANNEX D
[Form of Opinion of Dow, Xxxxxx & Xxxxxxxxx, PLLC]
Dow, Xxxxxx & Xxxxxxxxx, PLLC shall have furnished to the Initial Purchaser
their written opinion, as special regulatory counsel to the Initial Purchaser,
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 below.
(i) The execution, delivery and performance by the Issuers of each
of the Transaction Documents, the issuance, authentication, sale and
delivery of the 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 any of the Cable Acts, or any judgment,
order, decree, rule or regulation of the FCC, except for conflicts,
breaches and violations which individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect.
(ii) No consent, approval, authorization, order, license,
registration or qualification of or with the FCC is required under the
Cable Acts or the published orders, rules and regulations of the FCC is
required for the execution, delivery and performance by the Issuers of each
of the Transaction Documents, the issuance, authentication, sale and
delivery of the Notes and compliance by the Issuers with the terms thereof
and the consummation of the transactions contemplated by the Transaction
Documents except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications (i) as have been obtained and are
in full force and effect under the Communications Act, the Cable Acts or
any order, rule or regulation of the FCC or (ii) that may be required in
the future due to the operations or actions of the Company, the Company's
cable television systems or affiliated parties.
(iii) The statements in the Prospectus under the captions "Risk
Factors--Non-Exclusive Franchises; Non-Renewal or Termination of
Franchises," "Risk Factors--Regulation in the Cable Television Industry,"
"Business--Competition" and "Legislation and Regulation," and in the
Offering Memorandum under the caption "Risk Factors--Recent Developments
Relating to Competition in the Cable Television Industry," insofar as such
statements summarize applicable provisions of the Cable Acts and the
published orders, rules and regulations of the FCC, are accurate summaries
in all material respects of the provisions purported to be summarized under
such captions in the Prospectus and the Offering Memorandum; and the FCC
statutes and regulations summarized under such captions are the FCC
statutes and regulations that are material to the business of the Issuers
and the Subsidiaries as described in the Offering Memorandum.
In rendering such opinion, such counsel may state that such opinion is
limited to such counsel's review of the Cable Acts and the published orders,
rules and regulations of the FCC.
