8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 30, 2005
MEDIACOM BROADBAND LLC
MEDIACOM BROADBAND CORPORATION
(Exact names of Registrants as specified in their charters)
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Delaware
Delaware
(State of incorporation)
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333-72440
333-72440-01
(Commission File No.)
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06-1615412
06-1630167
(IRS Employer Identification Nos.) |
100 Crystal Run Road
Middletown, New York 10941
(Address of principal executive offices)
Registrants telephone number: (845) 695-2600
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the Registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
TABLE OF CONTENTS
Item 1.01. Entry into a Material Definitive Agreement.
On August 30, 2005, Mediacom Broadband LLC and Mediacom Broadband Corporation (collectively,
the Issuers), Law Debenture Trust Company of New York, as trustee, and Deutsche Bank Trust
Company Americas, as paying agent and note registrar, entered into an Indenture (the Indenture)
in connection with the issuance and sale by the Issuers of $200,000,000 aggregate principal amount
of their
8 1/2% Senior Notes due 2015 (the Notes). For a description of the material terms of the
Indenture and the Notes issued thereunder, see the information set forth below under Item 2.03,
which is incorporated by reference into this Item 1.01.
In connection with the issuance and sale of the Notes, on August 30, 2005, the Issuers entered
into a Registration Rights Agreement with the initial purchasers of the Notes. The Registration
Rights Agreement requires the Issuers to register with the Securities and Exchange Commission (the
Commission) notes having substantially identical terms as the Notes as part of an offer to
exchange non-restricted exchange notes (the Exchange Notes) for the Notes. The Issuers have
agreed to use their best efforts to file a registration statement for the Exchange Notes with the
Commission within 180 days after August 30, 2005 and to use their best efforts to cause such
registration statement to be declared effective within 300 days after August 30, 2005. Under
certain circumstances, the Company will be obligated to file a shelf registration statement with
respect to the Notes. Under the Registration Rights Agreement, if the Company fails to satisfy
certain filing and other obligations with respect to the exchange, the Company will be obligated to
pay an additional annual interest rate on the Notes of up to a maximum of 1.0% per annum. Such
additional interest would cease to accrue once such default is remedied.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant.
On August 30, 2005, the Issuers sold through a private placement (the Private Placement)
exempt from the registration requirements under the Securities Act of 1933, as amended (the
Securities Act), $200,000,000 in aggregate principal amount of Notes. The Notes were sold within
the United States only to qualified institutional buyers in reliance on Rule 144A under the
Securities Act, and outside the United States only to non-U.S. persons in reliance on Regulation S
under the Securities Act.
The Issuers issued and sold the Notes to certain initial purchasers at a purchase price of
98.36% per Note. The Notes bear interest at a rate of
8 1/2% per annum and mature on October 15,
2015. Interest on the Notes will be payable semi-annually on April 15 and October 15 of each year,
beginning October 15, 2005, to holders of record at the close of business on the April 1 or October
1, respectively, preceding such interest payment date. Interest on the Notes will be paid on the
basis of a 360-day year comprised of twelve 30-day months. The Notes are senior unsecured
obligations of the Issuers and rank equally with all of their existing and future senior unsecured
indebtedness.
The Issuers may redeem some or all of the Notes at any time on or prior to October 14, 2010 at
a redemption price equal to 100% of the principal amount of the Notes redeemed plus an applicable
premium calculated as set forth in the Indenture. The Issuers may redeem some or all
of the Notes at any time after that date at the redemption prices set forth in the Indenture.
The Issuers may also redeem up to 35% of the aggregate principal amount of the Notes using the
proceeds from certain equity offerings on or before October 15, 2008, at the redemption prices set
forth in the Indenture.
Upon a change of control, as defined in the Indenture, a holder of Notes will have the right
to require the Issuers to repurchase such holders Notes at a repurchase price equal to 101% of
their principal amount, plus accrued and unpaid interest to the date of repurchase.
The Indenture governing the Notes contains certain covenants that will limit, among other
things, the Issuers ability and the ability of their restricted subsidiaries to: incur additional
debt; pay dividends on their equity interests or repurchase their equity interests; make certain
investments; enter into certain types of transactions with affiliates; limit dividends or other
payments by their restricted subsidiaries to them; use assets as security in other transactions;
and sell certain assets or merge with or into other companies. These restrictive covenants are
subject to a number of important qualifications set forth in the Indenture.
The description of the Indenture and the Notes is qualified in its entirety by the Indenture
filed herewith as an exhibit.
Item 9.01. Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired None
(b) Pro Forma Financial Information None
(c) Exhibits:
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Exhibit No. |
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Description |
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4.1 |
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Indenture, dated as of August 30, 2005 among Mediacom
Broadband LLC, Mediacom Broadband Corporation, Law
Debenture Trust Company of New York, as trustee, and
Deutsche Bank Trust Company Americas, as paying agent
and note registrar |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: September 6, 2005
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Mediacom Broadband LLC
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By: |
/s/ Mark E. Stephan
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Mark E. Stephan |
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Executive Vice President,
Chief Financial Officer and Treasurer |
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Mediacom Broadband Corporation
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By: |
/s/ Mark E. Stephan
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Mark E. Stephan |
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Senior Vice President and
Assistant Secretary |
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EX-4.1
EXECUTION VERSION
MEDIACOM BROADBAND LLC
and
MEDIACOM BROADBAND CORPORATION,
as Issuers
and
LAW DEBENTURE TRUST COMPANY OF NEW YORK,
as Trustee
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Paying Agent and Note Registrar
Indenture
Dated as of August 30, 2005
81/2% Senior Notes due 2015
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of June 29, 20011
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Trust Indenture |
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Act Section |
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Indenture Section |
§ 310(a)(1) |
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608 |
§ 310(a)(2) |
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608 |
§ 310(b) |
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609 |
§ 311 |
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605 |
§ 312(a) |
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701 |
§ 312(b) |
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115, 702 |
§ 312(c) |
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702, 115 |
§ 313(a) |
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703 |
§ 313(b) |
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703 |
§ 313(c) |
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703 |
§ 314(a)(4) |
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1016(a) |
§ 314(c)(1) |
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102 |
§ 314(c)(2) |
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102 |
§ 314(e) |
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102 |
§ 315(a) |
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601(a) |
§ 315(b) |
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602 |
§ 315(c) |
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601(b) |
§ 315(d) |
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601(c), 603 |
§ 316(a)(last sentence) |
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908 |
§ 316(a)(1)(A) |
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502, 512 |
§ 316(a)(1)(B) |
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513 |
§ 316(b) |
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508 |
§ 316(c) |
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104(iv) |
§ 317(a)(1) |
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503 |
§ 317(a)(2) |
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504 |
§ 317(b) |
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1003 |
§ 318(a) |
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111 |
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1 |
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This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. |
TABLE OF CONTENTS
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Page |
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
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SECTION 101. |
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DEFINITIONS |
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1 |
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SECTION 102. |
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COMPLIANCE CERTIFICATES AND OPINIONS |
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23 |
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SECTION 103. |
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FORM OF DOCUMENTS DELIVERED TO TRUSTEE |
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23 |
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SECTION 104. |
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ACTS OF HOLDERS |
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24 |
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SECTION 105. |
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NOTICES, ETC., TO TRUSTEE AND THE ISSUERS |
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25 |
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SECTION 106. |
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NOTICE TO HOLDERS; WAIVER |
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25 |
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SECTION 107. |
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EFFECT OF HEADINGS AND TABLE OF CONTENTS |
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26 |
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SECTION 108. |
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SUCCESSORS AND ASSIGNS |
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26 |
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SECTION 109. |
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SEPARABILITY CLAUSE |
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26 |
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SECTION 110. |
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BENEFITS OF INDENTURE |
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26 |
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SECTION 111. |
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GOVERNING LAW |
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26 |
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SECTION 112. |
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LEGAL HOLIDAYS |
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27 |
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SECTION 113. |
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NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS OR INCORPORATORS |
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27 |
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SECTION 114. |
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COUNTERPARTS |
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27 |
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SECTION 115. |
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COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS |
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27 |
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ARTICLE TWO
NOTE FORMS |
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SECTION 201. |
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FORMS GENERALLY |
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27 |
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SECTION 202. |
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RESTRICTIVE LEGENDS |
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29 |
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SECTION 203. |
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FORM OF NOTE |
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32 |
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SECTION 204. |
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FORM OF TRUSTEES CERTIFICATE OF AUTHENTICATION |
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46 |
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ARTICLE THREE
THE NOTES |
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SECTION 301. |
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TITLE AND TERMS |
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47 |
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SECTION 302. |
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DENOMINATIONS |
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48 |
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SECTION 303. |
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EXECUTION, AUTHENTICATION, DELIVERY AND DATING |
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48 |
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SECTION 304. |
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TEMPORARY NOTES |
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50 |
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SECTION 305. |
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REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE |
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50 |
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SECTION 306. |
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BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES |
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51 |
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SECTION 307. |
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SPECIAL TRANSFER PROVISIONS |
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53 |
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SECTION 308. |
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FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS |
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55 |
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SECTION 309. |
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FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S |
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57 |
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SECTION 310. |
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MUTILATED, DESTROYED, LOST AND STOLEN NOTES |
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58 |
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SECTION 311. |
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PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED |
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59 |
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SECTION 312. |
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PERSONS DEEMED OWNERS |
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60 |
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SECTION 313. |
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CANCELLATION |
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60 |
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SECTION 314. |
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COMPUTATION OF INTEREST |
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61 |
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SECTION 315. |
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CUSIP NUMBERS |
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61 |
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ARTICLE FOUR
SATISFACTION AND DISCHARGE |
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SECTION 401. |
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SATISFACTION AND DISCHARGE OF INDENTURE |
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SECTION 402. |
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APPLICATION OF TRUST MONEY |
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62 |
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ARTICLE FIVE
REMEDIES |
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SECTION 501. |
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EVENTS OF DEFAULT |
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63 |
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SECTION 502. |
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ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT |
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65 |
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SECTION 503. |
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COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE |
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65 |
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SECTION 504. |
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TRUSTEE MAY FILE PROOFS OF CLAIM |
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66 |
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SECTION 505. |
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TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES |
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66 |
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SECTION 506. |
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APPLICATION OF MONEY COLLECTED |
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67 |
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SECTION 507. |
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LIMITATION ON SUITS |
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67 |
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SECTION 508. |
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UNCONDITIONAL RIGHT OF HOLDERS TO
RECEIVE PRINCIPAL, PREMIUM AND INTEREST |
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68 |
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SECTION 509. |
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RESTORATION OF RIGHTS AND REMEDIES |
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68 |
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SECTION 510. |
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RIGHTS AND REMEDIES CUMULATIVE |
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68 |
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SECTION 511. |
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DELAY OR OMISSION NOT WAIVER |
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68 |
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SECTION 512. |
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CONTROL BY HOLDERS |
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68 |
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SECTION 513. |
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WAIVER OF PAST DEFAULTS |
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69 |
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SECTION 514. |
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UNDERTAKING FOR COSTS |
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69 |
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ARTICLE SIX
THE TRUSTEE |
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SECTION 601. |
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CERTAIN DUTIES AND RESPONSIBILITIES |
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70 |
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SECTION 602. |
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NOTICE OF DEFAULTS |
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71 |
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SECTION 603. |
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CERTAIN RIGHTS OF TRUSTEE |
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71 |
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SECTION 604. |
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TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES |
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73 |
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SECTION 605. |
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MAY HOLD NOTES |
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73 |
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SECTION 606. |
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MONEY HELD IN TRUST |
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73 |
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SECTION 607. |
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COMPENSATION AND REIMBURSEMENT |
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73 |
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SECTION 608. |
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CORPORATE TRUSTEE REQUIRED; ELIGIBILITY |
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74 |
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SECTION 609. |
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RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR |
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74 |
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SECTION 610. |
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ACCEPTANCE OF APPOINTMENT BY SUCCESSOR |
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76 |
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SECTION 611. |
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MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS |
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76 |
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SECTION 612. |
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TRUSTEES APPLICATION FOR INSTRUCTIONS FROM THE ISSUERS |
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76 |
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY
TRUSTEE AND THE ISSUERS |
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SECTION 701. |
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THE ISSUERS TO FURNISH TRUSTEE NAMES AND ADDRESSES |
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77 |
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SECTION 702. |
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DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS |
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77 |
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SECTION 703. |
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REPORTS BY TRUSTEE |
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77 |
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ARTICLE EIGHT
MERGER, CONSOLIDATION, OR SALE OF ASSETS |
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SECTION 801. |
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THE ISSUERS AND GUARANTORS MAY CONSOLIDATE ETC. ONLY ON CERTAIN TERMS |
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78 |
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SECTION 802. |
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SUCCESSOR SUBSTITUTED |
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79 |
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ARTICLE NINE
SUPPLEMENTS, AMENDMENTS AND MODIFICATIONS TO INDENTURE |
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SECTION 901. |
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SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS |
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79 |
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SECTION 902. |
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SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS |
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80 |
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SECTION 903. |
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EXECUTION OF SUPPLEMENTAL INDENTURES |
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81 |
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SECTION 904. |
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EFFECT OF SUPPLEMENTAL INDENTURES |
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81 |
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SECTION 905. |
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CONFORMITY WITH TRUST INDENTURE ACT |
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81 |
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SECTION 906. |
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REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES |
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81 |
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SECTION 907. |
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NOTICE OF SUPPLEMENTAL INDENTURES |
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82 |
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SECTION 908. |
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TREASURY NOTES |
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82 |
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ARTICLE TEN
COVENANTS |
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SECTION 1001. |
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PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST |
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82 |
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SECTION 1002. |
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MAINTENANCE OF OFFICE OR AGENCY |
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82 |
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SECTION 1003. |
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MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST |
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83 |
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SECTION 1004. |
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CORPORATE EXISTENCE |
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84 |
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SECTION 1005. |
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PAYMENT OF TAXES AND OTHER CLAIMS |
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84 |
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SECTION 1006. |
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COMPLIANCE WITH LAWS |
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84 |
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SECTION 1007. |
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LIMITATION ON RESTRICTED PAYMENTS |
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85 |
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SECTION 1008. |
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LIMITATION ON INDEBTEDNESS |
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87 |
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SECTION 1009. |
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LIMITATION ON AFFILIATE TRANSACTIONS |
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90 |
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SECTION 1010. |
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LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES |
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92 |
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SECTION 1011. |
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LIMITATION ON LIENS |
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92 |
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SECTION 1012. |
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CHANGE OF CONTROL |
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93 |
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SECTION 1013. |
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LIMITATION ON SALES OF ASSETS |
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94 |
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SECTION 1014. |
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REPORTS |
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96 |
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SECTION 1015. |
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LIMITATION ON BUSINESS ACTIVITIES
OF MEDIACOM BROADBAND CORPORATION |
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96 |
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SECTION 1016. |
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STATEMENT BY OFFICERS AS TO DEFAULT |
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96 |
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SECTION 1017. |
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LIMITATION ON GUARANTEES OF CERTAIN INDEBTEDNESS |
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97 |
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SECTION 1018. |
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DESIGNATION OF UNRESTRICTED SUBSIDIARIES |
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98 |
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ARTICLE ELEVEN
REDEMPTION OF NOTES |
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SECTION 1101. |
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OPTIONAL REDEMPTION |
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99 |
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SECTION 1102. |
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APPLICABILITY OF ARTICLE |
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99 |
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SECTION 1103. |
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ELECTION TO REDEEM; NOTICE TO TRUSTEE |
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99 |
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SECTION 1104. |
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SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED |
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99 |
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SECTION 1105. |
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NOTICE OF REDEMPTION |
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100 |
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SECTION 1106. |
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DEPOSIT OF REDEMPTION PRICE |
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101 |
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SECTION 1107. |
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NOTES PAYABLE ON REDEMPTION DATE |
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101 |
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SECTION 1108. |
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NOTES REDEEMED IN PART |
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101 |
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ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE |
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SECTION 1201. |
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THE ISSUERS OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE |
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102 |
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SECTION 1202. |
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DEFEASANCE AND DISCHARGE |
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102 |
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SECTION 1203. |
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COVENANT DEFEASANCE |
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102 |
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SECTION 1204. |
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CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE |
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103 |
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SECTION 1205. |
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DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS |
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104 |
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SECTION 1206. |
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REINSTATEMENT |
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105 |
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ARTICLE THIRTEEN
RESTRICTED SUBSIDIARY GUARANTEE |
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SECTION 1301. |
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UNCONDITIONAL GUARANTEE |
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105 |
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SECTION 1302. |
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SEVERABILITY |
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106 |
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SECTION 1303. |
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LIMITATION OF GUARANTORS LIABILITY |
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106 |
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SECTION 1304. |
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CONTRIBUTION |
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107 |
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SECTION 1305. |
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ADDITIONAL GUARANTORS |
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107 |
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SECTION 1306. |
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SUBORDINATION OF SUBROGATION AND OTHER RIGHTS |
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107 |
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-v-
INDENTURE, dated as of August 30, 2005 among MEDIACOM BROADBAND LLC, a Delaware limited
liability company, MEDIACOM BROADBAND CORPORATION, a Delaware corporation (together, the
Issuers), as joint and several obligors, each having its principal office at 100 Crystal Run
Road, Middletown, New York 10941, LAW DEBENTURE TRUST COMPANY OF NEW YORK, a New York banking
corporation, as trustee (the Trustee), having its principal corporate trust office at 767 Third
Avenue, 31st Floor, New York, New York 10017, and DEUTSCHE BANK TRUST COMPANY AMERICAS,
as registrar (the Note Registrar) and paying agent (the Paying Agent), having its principal
office at 60 Wall Street, 27th Floor, New York, New York 10005.
RECITALS OF THE ISSUERS
The Issuers have duly authorized the creation of and issuance of (i) $200,000,000 aggregate
principal amount of 81/2% Senior Notes due 2015 (the Initial Notes), (ii) any Additional Notes (as
defined herein) that may be issued after the date hereof in the form set forth in Section 203 and
(iii) the Exchange Notes, if any (the Initial Notes, the Exchange Notes, the Private Exchange Notes
(as defined herein) and the Additional Notes are referred to herein collectively as the Notes),
of substantially the tenor and amount hereinafter set forth, and to provide therefor the Issuers
have duly authorized the execution and delivery of this Indenture. Exchange Notes and Private
Exchange Notes shall include notes issued in exchange for Additional Notes having substantially
the same tenor and amount as the Additional Notes.
Upon the issuance of the Exchange Notes, if any, or the effectiveness of the Shelf
Registration Statement (as defined herein), this Indenture will be subject to, and shall be
governed by, the provisions of the Trust Indenture Act of 1939, as amended, that are required or
deemed to be part of and to govern indentures qualified thereunder.
All things necessary have been done to make the Notes, when executed and duly issued by the
Issuers and authenticated and delivered hereunder by the Trustee or the authenticating agent, the
valid obligations of the Issuers and to make this Indenture a valid agreement of the Issuers in
accordance with their and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof,
it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the
Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this
Article, and words in the singular include the plural as well as the singular, and words in
the plural include the singular as well as the plural;
(b) all other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, or defined by SEC (as defined therein) rule and not
otherwise defined herein have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP (as defined herein);
(d) the words herein, hereof and hereunder and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision;
(e) the word or is not exclusive; and
(f) provisions of this Indenture apply to successive events and transactions.
Acquired Indebtedness means Indebtedness of a Person existing at the time such Person
becomes a Restricted Subsidiary or assumed in connection with an Asset Acquisition from such Person
and not Incurred in connection with, or in anticipation of, such Person becoming a Restricted
Subsidiary or such Asset Acquisition.
Act shall have the meaning ascribed thereto in Section 104.
Additional Interest shall have the meaning ascribed thereto in Section 203.
Additional Notes shall have the meaning ascribed thereto in Section 301.
Affiliate of any specified Person means any other Person which directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under common control with,
such specified Person. For purposes of this definition, control (including, with correlative
meaning, the terms controlling, controlled by and under common control with) when used with
respect to any Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person whether by contract, through
ownership of voting securities or otherwise.
Agent Members shall have the meaning ascribed thereto in Section 306.
Applicable Premium means, with respect to the applicable principal amount of Notes on any
applicable redemption date, the greater of:
(1) 1.0% of the then outstanding principal amount of such Notes; and
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(2) the excess of:
(a) the present value at such redemption date of (i) the redemption price of
such Notes at October 15, 2010 (such redemption price being specified in the Form of
Note (Section 203) under Optional Redemption) plus (ii) all required interest
payments due on such Notes through October 15, 2010 (excluding accrued but unpaid
interest), computed using a discount rate equal to the Treasury Rate as of such
redemption date plus 50 basis points; over
(b) the then outstanding principal amount of such Notes.
Asset Acquisition means (i) an Investment by Mediacom Broadband LLC or any Restricted
Subsidiary in any other Person pursuant to which such Person shall become a Restricted Subsidiary
or shall be consolidated or merged with or into Mediacom Broadband LLC or any Restricted Subsidiary
or (ii) any acquisition by Mediacom Broadband LLC or any Restricted Subsidiary of the assets of any
Person which constitute substantially all of an operating unit, a division or a line of business of
such Person or which is otherwise outside of the ordinary course of business.
Asset Sale means any direct or indirect sale, conveyance, transfer, lease (that has the
effect of a disposition) or other disposition (including, without limitation, any merger,
consolidation or sale-leaseback transaction) to any Person other than Mediacom Broadband LLC or any
Wholly Owned Restricted Subsidiary or any Controlled Subsidiary, in one transaction or a series of
related transactions, of: (i) any Equity Interest in any Restricted Subsidiary; (ii) any material
license, franchise or other authorization of Mediacom Broadband LLC or any Restricted Subsidiary;
(iii) any assets of Mediacom Broadband LLC or any Restricted Subsidiary which constitute
substantially all of an operating unit, a division or a line of business of Mediacom Broadband LLC
or any Restricted Subsidiary; or (iv) any other property or asset of Mediacom Broadband LLC or any
Restricted Subsidiary outside of the ordinary course of business. For the purposes of this
definition, the term Asset Sale shall not include: (i) any transaction consummated in compliance
with Sections 801 and 1012, and the creation of any Lien not prohibited under Section 1011; (ii)
the sale of property or equipment that has become worn out, obsolete or damaged or otherwise
unsuitable for use in connection with the business of Mediacom Broadband LLC or any Restricted
Subsidiary, as the case may be; (iii) any transaction consummated in compliance with Section 1007;
and (iv) Asset Swaps permitted pursuant to clause (d) of Section 1013. In addition, solely for
purposes of Section 1013, any sale, conveyance, transfer, lease or other disposition, whether in
one transaction or a series of related transactions, involving assets with a fair market value not
in excess of $5,000,000 in any fiscal year shall be deemed not to be an Asset Sale.
Asset Sale Proceeds means, with respect to any Asset Sale: (i) cash received by Mediacom
Broadband LLC or any of its Restricted Subsidiaries from such Asset Sale (including cash received
as consideration for the assumption of liabilities incurred in connection with or in anticipation
of such Asset Sale), after (a) provision for all income or other taxes measured by or resulting
from such Asset Sale, (b) payment of all brokerage commissions, underwriting, legal, accounting and
other fees and expenses related to such Asset Sale, and any relocation expenses incurred as a
result thereof, (c) provision for minority interest holders in any Restricted Subsidiary
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as a result of such Asset Sale by such Restricted Subsidiary, (d) payment of amounts
required to be applied to the repayment of Indebtedness secured by a Lien on the asset or assets
that were the subject of such Asset Sale (including, without limitation, payments made to obtain or
avoid the need for the consent of any holder of such Indebtedness), and (e) deduction of
appropriate amounts to be provided by Mediacom Broadband LLC or such Restricted Subsidiary as a
reserve, in accordance with generally accepted accounting principles consistently applied, against
any liabilities associated with the assets sold or disposed of in such Asset Sale and retained by
Mediacom Broadband LLC or such Restricted Subsidiary after such Asset Sale, including, without
limitation, pension and other post employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated with the assets sold or
disposed of in such Asset Sale; and (ii) promissory notes and other non-cash consideration received
by Mediacom Broadband LLC or any Restricted Subsidiary from such Asset Sale or other disposition
upon the liquidation or conversion of such notes or non-cash consideration into cash.
Asset Swap means the substantially concurrent purchase and sale, or exchange, of Productive
Assets between Mediacom Broadband LLC or any Restricted Subsidiary and another Person or group of
affiliated Persons (including, without limitation, any Person or group of affiliated Persons that
is an Affiliate of Mediacom Broadband LLC and the Restricted Subsidiaries; provided that such
transaction is otherwise in compliance with Section 1009) pursuant to an Asset Swap Agreement; it
being understood that an Asset Swap may include a cash equalization payment made in connection
therewith; provided that such cash payment, if received by Mediacom Broadband LLC or any of the
Restricted Subsidiaries, shall be deemed to be proceeds received from an Asset Sale and shall be
applied in accordance with Section 1013.
Asset Swap Agreement means a definitive agreement, subject only to customary closing
conditions that Mediacom Broadband LLC in good faith believes will be satisfied, providing for an
Asset Swap; provided, however, that any amendment to, or waiver of, any closing condition that
individually or in the aggregate is material to such Asset Swap shall be deemed to be a new Asset
Swap.
AT&T Acquisitions means the acquisitions by subsidiaries of Mediacom Broadband LLC on June
29, 2001 and July 18, 2001 of cable systems previously owned by AT&T Broadband LLC.
AT&T Acquisitions Contributions means the capital contributions and preferred equity
investment in the amount of $873,700,000 made in Mediacom Broadband LLC by Mediacom Communications
and/or one or more of its direct or indirect Subsidiaries in connection with the AT&T Acquisitions;
provided that AT&T Acquisitions Contributions shall be deemed not to include any additional
amounts contributed by Mediacom Communications to the extent that such amounts represent proceeds
received by Mediacom Communications from the issuance of its securities upon the exercise of
over-allotment options relating to the issuance of its Class A common stock and convertible senior
notes.
Authentication Order shall have the meaning ascribed thereto in Section 303.
Available Asset Sale Proceeds means, with respect to any Asset Sale, the aggregate Asset
Sale Proceeds from such Asset Sale that have not been applied in accordance with
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clause (iii)(a) and that have not yet been the basis for application in accordance with clause
(iii)(b) of paragraph (a) of Section 1013.
Bankruptcy Law means Title 11, U.S. Code or any similar federal or state law for relief of
debtors.
Business Day means a day other than a Saturday, Sunday or other day on which commercial
banking institutions are authorized or required by law to close in New York City.
Capitalized Lease Obligations means Indebtedness represented by obligations under a lease
that is required to be capitalized for financial reporting purposes in accordance with generally
accepted accounting principles consistently applied and the amount of such Indebtedness shall be
the capitalized amount of such obligations determined in accordance with generally accepted
accounting principles consistently applied.
Cash Equivalents means: (i) United States dollars; (ii) securities issued or directly and
fully guaranteed or insured by the United States government or any agency or instrumentality
thereof having maturities of not more than six months from the date of acquisition; (iii)
certificates of deposit and eurodollar time deposits with maturities of six months or less from the
date of acquisition, bankers acceptances with maturities not exceeding six months and overnight
bank deposits, in each case with any lender party to the Subsidiary Credit Facility or any Future
Subsidiary Credit Facility or with any domestic commercial bank having capital and surplus in
excess of $500,000,000; (iv) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (ii) and (iii) above entered into with any
financial institution meeting the qualifications specified in clause (iii) above; (v) commercial
paper having a rating of at least P-1 from Moodys or a rating of at least A-1 from S&P; and (vi)
money market mutual or similar funds having assets in excess of $100,000,000, at least 95% of the
assets of which are comprised of assets specified in clauses (i) through (v) above.
Certificated Notes shall have the meaning ascribed thereto in Section 306.
Change of Control means the occurrence of any of the following events: (i) any Person (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act, including any group acting for
the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1)
under the Exchange Act), other than one or more Permitted Holders, is or becomes the beneficial
owner (as defined in Rule 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be
deemed to have beneficial ownership of all shares that any such Person has the right to acquire,
whether such right is exercisable immediately or only after the passage of time, upon the happening
of an event or otherwise), directly or indirectly, of more than 50% of the total voting power of
the then outstanding Voting Equity Interests in Mediacom Broadband LLC; (ii) Mediacom Broadband LLC
consolidates with, or merges with or into, another Person (other than a Wholly Owned Restricted
Subsidiary) or Mediacom Broadband LLC or any of its Subsidiaries sells, assigns, conveys,
transfers, leases or otherwise disposes of all or substantially all of the assets of Mediacom
Broadband LLC and its Subsidiaries (determined on a consolidated basis) to any Person (other than
Mediacom Broadband LLC or any Wholly Owned Restricted Subsidiary), other than any such transaction
where immediately after such transaction
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the Person or Persons that beneficially owned (as defined in Rule 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have beneficial ownership of all shares
that any such Person has the right to acquire, whether such right is exercisable immediately or
only after the passage of time, upon the happening of an event or otherwise) immediately prior to
such transaction, directly or indirectly, a majority of the total voting power of the then
outstanding Voting Equity Interests in Mediacom Broadband LLC, beneficially own (as so
determined), directly or indirectly, more than 50% of the total voting power of the then
outstanding Voting Equity Interests in the surviving or transferee Person; (iii) Mediacom Broadband
LLC is liquidated or dissolved or adopts a plan of liquidation or dissolution (whether or not
otherwise in compliance with the provisions of this Indenture); (iv) a majority of the members of
the Executive Committee of Mediacom Broadband LLC shall consist of Persons who are not Continuing
Members; or (v) Mediacom Broadband LLC ceases to own 100% of the issued and outstanding Equity
Interests of Mediacom Broadband Corporation, other than by reason of a merger of Mediacom Broadband
Corporation into and with a corporate successor to Mediacom Broadband LLC; provided, however, that
a Change of Control will be deemed not to have occurred in any of the circumstances described in
clauses (i) through (iv) above if after the occurrence of any such circumstance (A) Mediacom
Communications (or any successor thereto), or a Person (or successor thereto) more than 50% of the
total voting power of the then outstanding Voting Equity Interests of which is beneficially owned,
directly or indirectly, by Mediacom Communications (or any successor thereto), continues to be the
manager of Mediacom Broadband LLC (or the surviving or transferee Person in the case of clause (ii)
above) pursuant to the Operating Agreement and Rocco B. Commisso continues to be the chief
executive officer or chairman of Mediacom Communications (or any successor thereto), (B) Rocco B.
Commisso, or a Person more than 50% of the total voting power of the then outstanding Voting Equity
Interests of which is beneficially owned, directly or indirectly, by Rocco B. Commisso and the
other Permitted Holders together with their respective designees, becomes the manager of Mediacom
Broadband LLC (or the surviving or transferee Person in the case of clause (ii) above) or (C) Rocco
B. Commisso becomes and thereafter continues to be the chief executive officer or chairman of
Mediacom Broadband LLC (or the surviving or transferee Person in the case of clause (ii) above).
Change of Control Offer shall have the meaning ascribed thereto in Section 1012.
Change of Control Payment shall have the meaning ascribed thereto in Section 1012.
Clearstream shall have the meaning ascribed thereto in Section 307.
Code means the Internal Revenue Code of 1986, as amended.
Committee Resolution means with respect to Mediacom Broadband LLC, a duly adopted resolution
of the Executive Committee of Mediacom Broadband LLC.
Comparable Restriction Provisions shall have the meaning ascribed thereto in Section 1010.
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Consolidated Income Tax Expense means, with respect to Mediacom Broadband LLC for any
period, the provision for federal, state, local and foreign income taxes payable by Mediacom
Broadband LLC and the Restricted Subsidiaries for such period as determined on a consolidated basis
in accordance with generally accepted accounting principles consistently applied.
Consolidated Interest Expense means, with respect to Mediacom Broadband LLC and the
Restricted Subsidiaries for any period, without duplication, the sum of: (i) the interest expense
of Mediacom Broadband LLC and the Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with generally accepted accounting principles consistently
applied, including, without limitation, amortization of original issue discount on any Indebtedness
and the interest portion of any deferred payment obligation and after taking into account the
effect of elections made under any Hedging Agreements, however denominated, with respect to such
Indebtedness; (ii) the interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by Mediacom Broadband LLC and the Restricted Subsidiaries during
such period as determined on a consolidated basis in accordance with generally accepted accounting
principles consistently applied; and (iii) dividends and distributions in respect of Disqualified
Equity Interests actually paid in cash by Mediacom Broadband LLC and the Restricted Subsidiaries
during such period as determined on a consolidated basis in accordance with generally accepted
accounting principles consistently applied. For purposes of this definition, interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by
Mediacom Broadband LLC to be the rate of interest implicit in such Capitalized Lease Obligation in
accordance with generally accepted accounting principles consistently applied.
Consolidated Net Income means, with respect to any period, the net income (loss) of Mediacom
Broadband LLC and the Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with generally accepted accounting principles consistently applied, adjusted, to the
extent included in calculating such net income (loss), by excluding, without duplication: (i) all
extraordinary, unusual or nonrecurring items of income or expense and of gains or losses and all
gains and losses from the sale or other disposition of assets out of the ordinary course of
business (net of taxes, fees and expenses relating to the transaction giving rise thereto) for such
period; (ii) that portion of such net income (loss) derived from or in respect of Investments in
Persons other than any Restricted Subsidiary, except to the extent actually received in cash by
Mediacom Broadband LLC or any Restricted Subsidiary; (iii) the portion of such net income (loss)
allocable to minority interests in unconsolidated Persons for such period, except to the extent
actually received in cash by Mediacom Broadband LLC or any Restricted Subsidiary; (iv) net income
(loss) of any other Person combined with Mediacom Broadband LLC or any Restricted Subsidiary on a
pooling of interests basis attributable to any period prior to the date of combination; (v) net
income (loss) of any Restricted Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of that net income (loss) is not
at the date of determination permitted without any prior governmental approval (which has not been
obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or the holders of its Equity Interests; (vi) the cumulative effect of a
change in accounting principles after the Existing Notes Issue Date; (vii) net income (loss)
attributable to discontinued operations; (viii) management fees payable to
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Mediacom Communications and its Affiliates pursuant to management agreements with Mediacom
Broadband LLC or its Subsidiaries accrued for such period that have not been paid during such
period; and (ix) any other item of expense, other than interest expense, which appears on
Mediacom Broadband LLCs consolidated statement of income (loss) below the line item Operating
Income, determined on a consolidated basis in accordance with generally accepted accounting
principles consistently applied.
Consolidated Total Indebtedness means, as at any date of determination, an amount equal to
the aggregate amount of all outstanding Indebtedness and the aggregate liquidation preference or
redemption payment value of all Disqualified Equity Interests in Mediacom Broadband LLC and the
Restricted Subsidiaries outstanding as of such date of determination, less the obligations of
Mediacom Broadband LLC or any Restricted Subsidiary under any Hedging Agreement as of such date of
determination that would appear as a liability on the balance sheet of such Person, in each case
determined on a consolidated basis in accordance with generally accepted accounting principles
consistently applied.
Continuing Member means, as of the date of determination, any Person who: (i) was a member
of the Executive Committee of Mediacom Broadband LLC on the date of this Indenture; (ii) was
nominated for election or elected to the Executive Committee of Mediacom Broadband LLC with the
affirmative vote of a majority of the Continuing Members who were members of the Executive
Committee at the time of such nomination or election; or (iii) is a representative of, or was
approved by, a Permitted Holder.
Controlled Subsidiary means a Restricted Subsidiary which is engaged in a Related Business:
(i) 80% or more of the outstanding Equity Interests of which (other than Equity Interests
constituting directors qualifying shares to the extent mandated by applicable law) are owned by
Mediacom Broadband LLC or by one or more Wholly Owned Restricted Subsidiaries or Controlled
Subsidiaries or by Mediacom Broadband LLC and one or more Wholly Owned Restricted Subsidiaries or
Controlled Subsidiaries; (ii) of which Mediacom Broadband LLC possesses, directly or indirectly,
the power to direct or cause the direction of the management or policies, whether through the
ownership of Voting Equity Interests, by agreement or otherwise; and (iii) all of whose
Indebtedness is Non-Recourse Indebtedness.
Corporate Trust Office means the office of the Trustee which initially is located at 767
Third Avenue, 31st Floor, New York, New York 10017.
Covenant Defeasance shall have the meaning ascribed thereto in Section 1203.
Cumulative Credit means the sum of: (i) $25,000,000; plus (ii) the aggregate Net Cash
Proceeds received by Mediacom Broadband LLC or a Restricted Subsidiary from the issue or sale
(other than to a Restricted Subsidiary) of Equity Interests in Mediacom Broadband LLC or a
Restricted Subsidiary (other than Disqualified Equity Interests and other than Equity Interests
issued in connection with the AT&T Acquisitions Contributions) on or after the Existing Notes Issue
Date; plus (iii) the principal amount (or accreted amount (determined in accordance with generally
accepted accounting principles), if less) of any Indebtedness, or the liquidation preference or
redemption payment value of any Disqualified Equity Interests, of Mediacom Broadband LLC or any
Restricted Subsidiary which has been converted into or exchanged for
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Equity Interests in Mediacom Broadband LLC or a Restricted Subsidiary (other than Disqualified
Equity Interests and other than Equity Interests issued in connection with the AT&T Acquisitions
Contributions) on or after the Existing Notes Issue Date; plus (iv) cumulative Operating Cash Flow
from and after the Existing Notes Issue Date, to the end of the fiscal quarter immediately
preceding the date of the proposed Restricted Payment, or, if cumulative Operating Cash Flow for
such period is negative, minus the amount by which cumulative Operating Cash Flow is less than
zero; plus (v) to the extent not already included in Operating Cash Flow, if any Investment
constituting a Restricted Payment that was made after the Existing Notes Issue Date is sold or
otherwise liquidated or repaid or any Unrestricted Subsidiary which was designated as an
Unrestricted Subsidiary after the Existing Notes Issue Date is sold or otherwise liquidated, the
fair market value of such Restricted Payment (less the cost of disposition, if any) on the date of
such sale, liquidation or repayment, as determined in good faith by the Executive Committee, whose
determination shall be conclusive and evidenced by a Committee Resolution; plus (vi) if any
Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the value of the Restricted
Payment that would result if such Subsidiary were redesignated as an Unrestricted Subsidiary at
such time, determined in accordance with Section 1018.
Cumulative Interest Expense means the aggregate amount of Consolidated Interest Expense paid
or accrued by the Issuers and the Restricted Subsidiaries from and after the Existing Notes Issue
Date, to the end of the fiscal quarter immediately preceding the proposed Restricted Payment.
Debt to Operating Cash Flow Ratio means the ratio of (i) the Consolidated Total Indebtedness
as of the date of calculation (the Determination Date) to (ii) four times the Operating Cash Flow
for the latest three months for which financial information is available immediately preceding such
Determination Date (the Measurement Period). For purposes of calculating Operating Cash Flow for
the Measurement Period immediately prior to the relevant Determination Date: (I) any Person that
is a Restricted Subsidiary on the Determination Date (or would become a Restricted Subsidiary on
such Determination Date in connection with the transaction that requires the determination of such
Operating Cash Flow) will be deemed to have been a Restricted Subsidiary at all times during such
Measurement Period; (II) any Person that is not a Restricted Subsidiary on such Determination Date
(or would cease to be a Restricted Subsidiary on such Determination Date in connection with the
transaction that requires the determination of such Operating Cash Flow) will be deemed not to have
been a Restricted Subsidiary at any time during such Measurement Period; and (III) if Mediacom
Broadband LLC or any Restricted Subsidiary shall have in any manner (x) acquired (including,
without limitation, through an Asset Acquisition or the commencement of activities constituting
such operating business) or (y) disposed of (including by way of an Asset Sale or the termination
or discontinuance of activities constituting such operating business) any operating business during
such Measurement Period or after the end of such period and on or prior to such Determination Date,
such calculation will be made on a pro forma basis in accordance with generally accepted accounting
principles consistently applied, as if, in the case of an Asset Acquisition or the commencement of
activities constituting such operating business, all such transactions had been consummated on the
first day of such Measurement Period, and, in the case of an Asset Sale or termination or
discontinuance of activities constituting such operating business, all such transactions had been
consummated prior to the first day of such Measurement Period.
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Default means any event which is, or after notice or passage of time or both would be, an
Event of Default.
Defaulted Interest shall have the meaning ascribed thereto in Section 311.
Depositary means The Depository Trust Company, its nominees and their respective successors
and assigns, or such other depositary institution hereafter appointed by Mediacom Broadband LLC.
Designation shall have the meaning ascribed thereto in Section 1018.
Disqualified Equity Interest means (i) any Equity Interest issued by Mediacom Broadband LLC
which, by its terms (or by the terms of any security into which it is convertible or for which it
is exchangeable at the option of the holder thereof), or upon the happening of any event, matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof (except, in each such case, upon the occurrence of a Change of
Control), in whole or in part, or is exchangeable into Indebtedness, on or prior to the earlier of
the maturity date of the Notes or the date on which no Notes remain outstanding; and (ii) any
Equity Interest issued by any Restricted Subsidiary which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in
whole or in part, or is exchangeable into Indebtedness.
Distribution Compliance Period means the 40-day distribution compliance period as defined in
Regulation S under the Securities Act.
Equity Interest in any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
corporate stock or other equity participations, including, without limitation, partnership
interests, whether general or limited, and membership interests in such Person, including, without
limitation, any Preferred Equity Interests.
Equity Offering means a public or private offering or sale (including, without limitation,
to any Affiliate) by Mediacom Broadband LLC or a Restricted Subsidiary for cash of its respective
Equity Interests (other than Disqualified Equity Interests) or options, warrants or rights with
respect to such Equity Interests.
Euroclear shall have the meaning ascribed thereto in Section 307.
Event of Default shall have the meaning ascribed thereto in Section 501.
Excess Proceeds means, with respect to any Asset Sale, the then Available Asset Sale
Proceeds less any such Available Asset Sale Proceeds that are required to be applied and are
applied in accordance with clause (iii)(b)(1) of paragraph (a) of Section 1013.
Excess Proceeds Offer shall have the meaning ascribed thereto in Section 1013.
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Exchange Act means the Securities Exchange Act of 1934, as amended.
Exchange Notes means the 81/2% Notes due 2015 to be issued pursuant to this Indenture in
connection with a registration pursuant to the Registration Rights Agreement.
Exchange Offer means the offer by the Issuers to exchange all of the Initial Notes for a
like aggregate principal amount of Exchange Notes, as provided in the Registration Rights
Agreement, and the offer by the Issuers to exchange all of the Additional Notes for a like
aggregate principal amount of Exchange Notes, in each case as provided in this Indenture.
Exchange Offer Registration Statement has the meaning ascribed thereto in the Registration
Rights Agreement.
Executive Committee means: (i) so long as Mediacom Broadband LLC is a limited liability
company, (x) while the Operating Agreement is in effect, the Executive Committee authorized
thereunder, and (y) at any other time, the manager or board of managers of Mediacom Broadband LLC,
or management committee, board of directors or similar governing body responsible for the
management of the business and affairs of Mediacom Broadband LLC or any committee of such governing
body; (ii) if Mediacom Broadband LLC were to be reorganized as a corporation, the board of
directors of Mediacom Broadband LLC; and (iii) if Mediacom Broadband LLC were to be reorganized as
a partnership, the board of directors of the corporate general partner of such partnership (or if
such general partner is itself a partnership, the board of directors of such general partners
corporate general partner).
Existing Notes Issue Date means June 29, 2001.
Funding Guarantor shall have the meaning ascribed thereto in Section 1304.
Future Subsidiary Credit Facilities means one or more debt facilities (other than the
Subsidiary Credit Facility) entered into from time to time after the date of this Indenture by one
or more Restricted Subsidiaries or groups of Restricted Subsidiaries with banks or other
institutional lenders, together with all loan documents and instruments thereunder (including,
without limitation, any guarantee agreements and security documents), including, without
limitation, any amendment (including, without limitation, any amendment and restatement),
modification or supplement thereto or any refinancing, refunding, deferral, renewal, extension or
replacement thereof (including, in any such case and without limitation, adding or removing
Subsidiaries of Mediacom Broadband LLC as borrowers or guarantors thereunder), whether by the same
or any other lender or group of lenders.
GAAP or generally accepted accounting principles means generally accepted accounting
principles in the United States of America as in effect as of the date of this Indenture, including
those set forth in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other entity as approved
by a significant segment of the accounting profession. All ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity with GAAP.
Global Notes shall have the meaning ascribed thereto in Section 201.
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Guarantor means any Subsidiary of Mediacom Broadband LLC that guarantees the Issuers
obligations under this Indenture and the Notes issued after the date of this Indenture pursuant to
Section 1017.
Hedging Agreement means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement or other similar agreement providing for the transfer or mitigation
of interest rate risks either generally or under specific contingencies.
Holder or Noteholder means the Person in whose name a Note is registered in the Note
Register.
Incur means, with respect to any Indebtedness or other obligation of any Person, to create,
issue, incur (including by conversion, exchange or otherwise), assume, guarantee or otherwise
become liable in respect of such Indebtedness or other obligation or the recording, as required
pursuant to generally accepted accounting principles or otherwise, of any such Indebtedness or
other obligation on the balance sheet of such Person (and Incurrence, Incurred and Incurring
shall have meanings correlative to the foregoing). Indebtedness of any Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary (or is merged into or
consolidates with Mediacom Broadband LLC or any Restricted Subsidiary), whether or not such
Indebtedness was incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary (or being merged into or consolidated with Mediacom Broadband LLC or any
Restricted Subsidiary), shall be deemed Incurred at the time any such Person becomes a Restricted
Subsidiary or merges into or consolidates with Mediacom Broadband LLC or any Restricted Subsidiary.
Indebtedness means, with respect to any Person, without duplication, any indebtedness,
secured or unsecured, contingent or otherwise, in respect of borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a portion thereof),
or evidenced by bonds, notes, debentures or similar instruments or letters of credit or
representing the deferred and unpaid balance of the purchase price of property or services (but
excluding trade payables incurred in the ordinary course of business and non interest bearing
installment obligations and other accrued liabilities arising in the ordinary course of business)
if and to the extent any of the foregoing indebtedness would appear as a liability upon a balance
sheet of such Person prepared in accordance with generally accepted accounting principles
consistently applied, and shall also include, to the extent not otherwise included (but without
duplication): (i) any Capitalized Lease Obligations; (ii) obligations secured by a lien to which
any property or assets owned or held by such Person is subject, whether or not the obligation or
obligations secured thereby shall have been assumed; (iii) guarantees of items of other Persons
which would be included within this definition for such other Persons (whether or not such items
would appear upon the balance sheet of the guarantor); and (iv) obligations of Mediacom Broadband
LLC or any Restricted Subsidiary under any Hedging Agreement applicable to any of the foregoing (if
and only to the extent any amount due in respect of such Hedging Agreement would appear as a
liability upon a balance sheet of such Person prepared in accordance with generally accepted
accounting principles consistently applied). Indebtedness (i) shall not include obligations under
performance bonds, performance guarantees, surety bonds and appeal bonds, letters of credit or
similar obligations, Incurred in the ordinary course of business, including in connection with pole
rental or conduit attachments and the like or the requirements
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of cable television franchising authorities, and otherwise consistent with industry practice;
(ii) shall not include obligations of any Person (x) arising from the honoring by a bank or other
financial institution of a check, draft or other similar instrument inadvertently drawn against
insufficient funds in the ordinary course of business, provided such obligations are extinguished
within five Business Days of their Incurrence, (y) resulting from the endorsement of negotiable
instruments for collection in the ordinary course of business and consistent with past practice and
(z) under stand-by letters of credit to the extent collateralized by cash or Cash Equivalents; and
(iii) which provides that an amount less than the principal amount thereof shall be due upon any
declaration of acceleration thereof shall be deemed to be Incurred or outstanding in an amount
equal to the accreted value thereof at the date of determination.
Indenture means this Indenture, as amended or supplemented from time to time.
Initial Notes shall have the meaning ascribed thereto in the introductory paragraph to this
Indenture.
Institutional Accredited Investor Certificated Note shall have the meaning ascribed thereto
in Section 201.
Institutional Accredited Investor Note shall have the meaning ascribed thereto in Section
201.
Interest Payment Date shall have the meaning ascribed thereto in Section 301.
Investment means, directly or indirectly, any advance, loan or other extension of credit
(including, without limitation, by means of a guarantee) or capital contribution to (by means of
transfers of property to others, payments for property or services for the account or use of others
or otherwise), the acquisition, by purchase or otherwise, of any stock, bonds, notes, debentures,
partnership, membership or joint venture interests or other securities or other evidence of
beneficial interest of any Person; provided that the term Investment shall not include any such
advance, loan or extension of credit having a term not exceeding 90 days arising in the ordinary
course of business or any pledge of Equity Interests pursuant to the Subsidiary Credit Facility or
any Future Subsidiary Credit Facility. If Mediacom Broadband LLC or any Restricted Subsidiary
sells or otherwise disposes of any Voting Equity Interest in any direct or indirect Restricted
Subsidiary such that, after giving effect to such sale or disposition, Mediacom Broadband LLC no
longer owns, directly or indirectly, greater than 50% of the outstanding Voting Equity Interests in
such Restricted Subsidiary, Mediacom Broadband LLC shall be deemed to have made an Investment on
the date of any such sale or disposition equal to the fair market value of the Voting Equity
Interests in such former Restricted Subsidiary not sold or disposed of.
Issuers means, the parties named as such in this Indenture, until a successor replaces
either such party in accordance with the terms of this Indenture.
Issuers Request shall have the meaning ascribed thereto in Section 102.
Legal Defeasance shall have the meaning ascribed thereto in Section 1202.
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Lien means any mortgage, pledge, lien, charge, security interest, hypothecation, assignment
for security or encumbrance of any kind (including any conditional sale or capital lease or other
title retention agreement, any lease in the nature thereof or any agreement to give a security
interest).
Management Agreements means the Management Agreements dated as of June 6, 2001 by and
between Mediacom Communications and each of MCC Georgia, MCC Illinois, MCC Iowa and MCC Missouri,
as the same may be amended, supplemented or modified from time to time.
MCC Georgia means MCC Georgia LLC, a Delaware limited liability company and a wholly owned
Subsidiary of Mediacom Broadband LLC.
MCC Illinois means MCC Illinois LLC, a Delaware limited liability company and a wholly owned
Subsidiary of Mediacom Broadband LLC.
MCC Iowa means MCC Iowa LLC, a Delaware limited liability company and a wholly owned
Subsidiary of Mediacom Broadband LLC.
MCC Missouri means MCC Missouri LLC, a Delaware limited liability company and a wholly owned
Subsidiary of Mediacom Broadband LLC.
Mediacom Broadband Corporation means Mediacom Broadband Corporation, a Delaware
corporation, and a wholly owned Subsidiary of Mediacom Broadband LLC.
Mediacom Broadband Group Credit Agreement means the credit agreement dated as of July 18,
2001, as amended and restated as of December 16, 2004 and as further modified and supplemented by
that certain incremental facility agreement dated as of May 3, 2005, all by and among MCC Georgia,
MCC Illinois, MCC Iowa and MCC Missouri and JPMorgan Chase Bank N.A., as Administrative Agent, and
the Lenders party thereto establishing a reducing revolving credit facility and term loans.
Mediacom Broadband LLC means Mediacom Broadband LLC, a Delaware limited liability company.
Mediacom Broadband Preferred Membership Interest means the $150.0 million 12.0% preferred
membership interest of Mediacom Broadband LLC issued to Mediacom Communications and/or one or more
of its direct or indirect Subsidiaries in connection with the AT&T Acquisitions.
Mediacom Communications means Mediacom Communications Corporation, a Delaware corporation.
Moodys means Moodys Investors Service, Inc.
Net Cash Proceeds means, with respect to any issuance or sale of Equity Interests, the
proceeds in the form of cash or Cash Equivalents received by Mediacom Broadband LLC or any
Restricted Subsidiary of such issuance or sale and net of attorneys fees, accountants
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fees, underwriters or placement agents fees, discounts or commissions and brokerage,
consultant and other fees actually incurred in connection with such issuance or sale and net of
taxes paid or payable as a result thereof.
Non-Recourse Indebtedness means Indebtedness of a Person (i) as to which neither the Issuers
nor any of the Restricted Subsidiaries (other than such Person or any Subsidiaries of such Person)
(a) provides any guarantee or credit support of any kind (including any undertaking, guarantee,
indemnity, agreement or instrument that would constitute Indebtedness) or (b) is directly or
indirectly liable (as a guarantor or otherwise); and (ii) the incurrence of which will not result
in any recourse against any of the assets of either the Issuers or the Restricted Subsidiaries
(other than to such Person or to any Subsidiaries of such Person and other than to the Equity
Interests in such Person or in another Restricted Subsidiary or an Unrestricted Subsidiary pledged
by Mediacom Broadband LLC, a Restricted Subsidiary or an Unrestricted Subsidiary); provided,
however, that Mediacom Broadband LLC or any Restricted Subsidiary may make a loan to a Controlled
Subsidiary or an Unrestricted Subsidiary, or guarantee a loan made to a Controlled Subsidiary or an
Unrestricted Subsidiary, if such loan or guarantee is permitted under Section 1007 at the time of
the making of such loan or guarantee, and such loan or guarantee shall not constitute Indebtedness
which is not Non-Recourse Indebtedness.
Note Register shall have the meaning ascribed thereto in Section 305.
Note Registrar shall have the meaning ascribed thereto in Section 305.
Notes means the 81/2% Senior Notes due 2015 issued by Mediacom Broadband LLC and Mediacom
Broadband Corporation.
Offering Memorandum means the Offering Memorandum dated August 16, 2005 pursuant to which
the Notes were initially offered.
Office of the Registrar means the office of the Note Registrar which shall initially be
located at 60 Wall Street, 27th Floor, New York, New York 10005.
Officer means the Chairman, the Chief Executive Officer, any Senior Vice President, the
Treasurer or the Secretary of Mediacom Broadband Corporation, or in the case of Mediacom Broadband
LLC, of its managing member.
Officers Certificate means a certificate signed by two Officers of each Issuer.
Operating Agreement means the Amended and Restated Operating Agreement of Mediacom Broadband
LLC dated as of June 29, 2001 as the same may be amended, supplemented or modified from time to
time.
Operating Cash Flow means, with respect to Mediacom Broadband LLC and the Restricted
Subsidiaries on a consolidated basis, for any period, an amount equal to Consolidated Net Income
for such period increased (without duplication) by the sum of: (i) Consolidated Income Tax
Expense accrued for such period to the extent deducted in determining Consolidated Net Income for
such period; (ii) Consolidated Interest Expense for such period to the extent deducted in
determining Consolidated Net Income for such period; and (iii) depreciation,
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amortization and any other non-cash items for such period to the extent
deducted in determining Consolidated Net Income for such period (other than any non-cash item
(other than the management fees referred to in clause (viii) of the definition of Consolidated Net
Income) which requires the accrual of, or a reserve for, cash charges for any future period) of
Mediacom Broadband LLC and the Restricted Subsidiaries, including, without limitation, amortization
of capitalized debt issuance costs for such period and any non-cash compensation expense realized
from grants of equity instruments or other rights (including, without limitation, stock options,
stock appreciation or other rights, restricted stock, restricted stock units, deferred stock and
deferred stock units) to officers, directors and employees of such Person, all of the foregoing
determined on a consolidated basis in accordance with generally accepted accounting principles
consistently applied, and decreased by non-cash items to the extent they increase Consolidated Net
Income (including the partial or entire reversal of reserves taken in prior periods) for such
period.
Opinion of Counsel means a written opinion from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or external counsel to Mediacom Broadband LLC or the
Trustee.
Other Indebtedness shall have the meaning ascribed thereto in Section 1017.
Other Pari Passu Debt means Indebtedness of Mediacom Broadband LLC or any Restricted
Subsidiary that does not constitute Subordinated Obligations and that is not senior in right of
payment to the Notes.
Other Pari Passu Debt Pro Rata Share means the amount of the applicable Available Asset Sale
Proceeds obtained by multiplying the amount of such Available Asset Sale Proceeds by a fraction,
(i) the numerator of which is the aggregate principal amount and/or accreted value, as the case may
be, of all Other Pari Passu Debt outstanding at the time of the applicable Asset Sale with respect
to which Mediacom Broadband LLC or any Restricted Subsidiary is required to use Available Asset
Sale Proceeds to repay or make an offer to purchase, prepay or repay and (ii) the denominator of
which is the sum of (a) the aggregate principal amount of all Notes outstanding at the time of the
applicable Asset Sale and (b) the aggregate principal amount and/or accreted value, as the case may
be, of all Other Pari Passu Debt outstanding at the time of the applicable Asset Sale Offer with
respect to which Mediacom Broadband LLC or any Restricted Subsidiary is required to use the
applicable Available Asset Sale Proceeds to offer to repay or make an offer to purchase, prepay or
repay.
Other Permitted Liens means: (i) Liens imposed by law, such as carriers, warehousemens
and mechanics liens and other similar liens arising in the ordinary course of business which
secure payment of obligations that are not yet delinquent or that are being contested in good faith
by appropriate proceedings promptly instituted and diligently conducted and for which an
appropriate reserve or provision shall have been made in accordance with generally accepted
accounting principles consistently applied; (ii) Liens for taxes, assessments or governmental
charges or claims that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted and for which an appropriate
reserve or provision shall have been made in accordance with generally accepted accounting
principles consistently applied; (iii) easements, rights of way, and other restrictions on use of
property or minor imperfections of title that in the aggregate are not material in amount and
do
-16-
not in any case materially detract from the property subject thereto or interfere with the
ordinary conduct of the business of Mediacom Broadband LLC or its Subsidiaries; (iv) Liens related
to Capitalized Lease Obligations, mortgage financings or purchase money obligations (including
refinancings thereof), in each case Incurred for the purpose of financing all or any part of the
purchase price or cost of construction or improvement of property, plant or equipment used in the
business of Mediacom Broadband LLC or any Restricted Subsidiary or a Related Business, provided
that any such Lien encumbers only the asset or assets so financed, purchased, constructed or
improved; (v) Liens resulting from the pledge by Mediacom Broadband LLC of Equity Interests in a
Restricted Subsidiary in connection with the Subsidiary Credit Facility or a Future Subsidiary
Credit Facility or in an Unrestricted Subsidiary in any circumstance, in each such case where
recourse to Mediacom Broadband LLC is limited to the value of the Equity Interests so pledged; (vi)
Liens resulting from the pledge by Mediacom Broadband LLC of intercompany indebtedness owed to
Mediacom Broadband LLC in connection with the Subsidiary Credit Facility or a Future Subsidiary
Credit Facility; (vii) Liens incurred or deposits made in the ordinary course of business in
connection with workers compensation, unemployment insurance and other types of social security;
(viii) Liens to secure the performance of statutory obligations, surety or appeal bonds,
performance bonds, deposits to secure the performance of bids, trade contracts, government
contracts, leases or licenses or other obligations of a like nature incurred in the ordinary course
of business (including, without limitation, landlord Liens on leased properties); (ix) leases or
subleases granted to third Persons not interfering with the ordinary course of business of Mediacom
Broadband LLC; (x) deposits made in the ordinary course of business to secure liability to
insurance carriers; (xi) Liens securing reimbursement obligations with respect to letters of credit
which encumber documents and other property relating to such letters of credit and the products and
proceeds thereof; (xii) Liens on the assets of Mediacom Broadband LLC to secure hedging agreements
with respect to Indebtedness permitted by this Indenture to be Incurred; (xiii) attachment or
judgment Liens not giving rise to a Default or an Event of Default; and (xiv) any interest or title
of a lessor under any capital lease or operating lease.
Paying Agent means the party named as such in this Indenture until a successor replaces it
and, thereafter, means the successor.
Permitted Holder means: (i) Rocco B. Commisso or his spouse or siblings, any of their
lineal descendants and their spouses; (ii) any controlled Affiliate of any individual described in
clause (i) above; (iii) in the event of the death or incompetence of any individual described in
clause (i) above, such Persons estate, executor, administrator, committee or other personal
representative, in each case who at any particular date will beneficially own or have the right to
acquire, directly or indirectly, Equity Interests in Mediacom Broadband LLC; (iv) any trust or
trusts created for the benefit of each Person described in this definition, including, without
limitation, any trust for the benefit of the parents or siblings of any individual described in
clause (i) above; or (v) any trust for the benefit of any such trust.
Permitted Indebtedness shall have the meaning ascribed thereto in Section 1008.
Permitted Investments means: (i) Cash Equivalents; (ii) Investments in prepaid expenses,
negotiable instruments held for collection and lease, utility and workers compensation, performance and other similar deposits; (iii) the extension of credit to vendors,
suppliers
-17-
and customers in the ordinary course of business; (iv) Investments existing as of August
30, 2005, and any amendment, modification, extension or renewal thereof to the extent such
amendment, modification, extension or renewal does not require Mediacom Broadband LLC or any
Restricted Subsidiary to make any additional cash or non-cash payments or provide additional
services in connection therewith; (v) Hedging Agreements; (vi) any Investment for which the sole
consideration provided is Equity Interests (other than Disqualified Equity Interests) of Mediacom
Broadband LLC; (vii) any Investment consisting of a guarantee permitted under clause (e) of the
second paragraph of Section 1008; (viii) Investments in Mediacom Broadband LLC, in any Wholly Owned
Restricted Subsidiary or in any Controlled Subsidiary or any Person that, as a result of or in
connection with such Investment, becomes a Wholly Owned Restricted Subsidiary or a Controlled
Subsidiary or is merged with or into or consolidated with Mediacom Broadband LLC or a Wholly Owned
Restricted Subsidiary or a Controlled Subsidiary; (ix) loans and advances to officers, directors
and employees of Mediacom Communications, Mediacom Broadband LLC and the Restricted Subsidiaries
for business-related travel expenses, moving expenses and other similar expenses in each case
incurred in the ordinary course of business; (x) any acquisition of assets solely in exchange for
the issuance of Equity Interests (other than Disqualified Equity Interests) of Mediacom Broadband
LLC; (xi) Related Business Investments; and (xii) other Investments made pursuant to this clause
(xii) at any time, and from time to time, after August 30, 2005, in addition to any Permitted
Investments described in clauses (i) through (xi) above, in an aggregate amount at any one time
outstanding not to exceed $25,000,000.
Person means any individual, corporation, partnership, limited liability company, joint
venture, association, joint stock company, trust, unincorporated organization, government or agency
or political subdivision thereof or any other entity.
Preferred Equity Interest means, in any Person, an Equity Interest of any class or classes,
however designated, which is preferred as to the payment of dividends or distributions, or as to
the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over Equity Interests of any other class in such Person.
Private Exchange means the issuance by the Issuers of a like amount of Private Exchange
Notes in exchange for Initial Notes or Additional Notes held by a Holder which holds Initial Notes
or Additional Notes acquired by it that have, or that are reasonably likely to have, the status of
an unsold allotment in an initial distribution, or which is not entitled to participate in the
Exchange Offer, pursuant to the Registration Rights Agreement or similar agreement with respect to
the Additional Notes.
Private Exchange Notes means the Issuers 8 1/2% Senior Notes due 2015, if and when issued
pursuant to a Private Exchange for Initial Notes or Additional Notes.
Private Placement Legend shall have the meaning ascribed thereto in Section 202.
Productive Assets means assets of a kind used or useable by Mediacom Broadband LLC and the
Restricted Subsidiaries in any Related Business and specifically includes assets acquired through
Asset Acquisitions (it being understood that assets may include Equity
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Interests in a Person that owns such Productive Assets; provided that after giving effect to
such transaction, such Person would be a Restricted Subsidiary).
QIB shall have the meaning ascribed thereto under Rule 144A of the Securities Act.
Redemption Date shall have the meaning ascribed thereto in Section 1103.
refinancing shall have the meaning ascribed thereto in Section 1008.
Registration Rights Agreement means the Registration Rights Agreement dated as of August 30,
2005 by and among Mediacom Broadband LLC, Mediacom Broadband Corporation and J.P. Morgan Securities
Inc., Banc of America Securities LLC, Citigroup Global Markets Inc., Credit Suisse First Boston
LLC, Wachovia Capital Markets, LLC, Deutsche Bank Securities Inc., and Harris Nesbitt Corp.
Regular Record Date means, with respect to any Interest Payment Date, the April 1 or October
1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.
Registration Statement means either an Exchange Offer Registration Statement or a Shelf
Registration Statement.
Regulation S Global Note shall have the meaning ascribed thereto in Section 201.
Regulation S Note shall have the meaning ascribed thereto in Section 201.
Reinvestment Date shall have the meaning ascribed thereto in Section 1013.
Related Business means a cable television, media and communications, telecommunications or
data transmission business, and businesses ancillary, complementary or reasonably related thereto,
and reasonable extensions thereof.
Related Business Investment means: (i) any Investment related to the business of Mediacom
Broadband LLC and its Restricted Subsidiaries as conducted on the date of this Indenture and as
such business may thereafter evolve in the fields of Related Businesses; (ii) any Investment in any
other Person (including, without limitation, any Affiliate of Mediacom Broadband LLC) primarily
engaged in a Related Business; and (iii) any customary deposits or earnest money payments made by
Mediacom Broadband LLC or any Restricted Subsidiary in connection with or in contemplation of the
acquisition of a Related Business.
Required Filing Dates shall have the meaning ascribed thereto in Section 1014.
Restricted Payment means: (i) any dividend (whether made in cash, property or securities)
on or with respect to any Equity Interests in Mediacom Broadband LLC or of any Restricted
Subsidiary (other than with respect to Disqualified Equity Interests and other than any dividend
made to Mediacom Broadband LLC or another Restricted Subsidiary or any dividend
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payable in Equity Interests (other than Disqualified Equity Interests) in Mediacom Broadband
LLC or any Restricted Subsidiary); (ii) any distribution (whether made in cash, property or
securities) on or with respect to any Equity Interests in Mediacom Broadband LLC or of any
Restricted Subsidiary (other than with respect to Disqualified Equity Interests and other than any
distribution made to Mediacom Broadband LLC or another Restricted Subsidiary or any distribution
payable in Equity Interests (other than Disqualified Equity Interests) in Mediacom Broadband LLC or
any Restricted Subsidiary); (iii) any redemption, repurchase, retirement or other direct or
indirect acquisition of any Equity Interests in Mediacom Broadband LLC (other than Disqualified
Equity Interests), or any warrants, rights or options to purchase or acquire any such Equity
Interests or any securities exchangeable for or convertible into any such Equity Interests; (iv)
any redemption, repurchase, retirement or other direct or indirect acquisition for value or other
payment of principal, prior to any scheduled final maturity, scheduled repayment or scheduled
sinking fund payment, of any Subordinated Obligations; or (v) any Investment other than a Permitted
Investment.
Restricted Subsidiary means any Subsidiary of Mediacom Broadband LLC that has not been
designated by the Executive Committee of Mediacom Broadband LLC by a Committee Resolution delivered
to the Trustee as an Unrestricted Subsidiary pursuant to Section 1018. Any such designation may be
revoked by a Committee Resolution delivered to the Trustee, subject to the provisions of such
Section.
Restricted Subsidiary Guarantee shall have the meaning ascribed thereto in Section 1017.
Revocation shall have the meaning ascribed thereto in Section 1018.
Rule 144A Global Note shall have the meaning ascribed thereto in Section 201.
Rule 144A Note shall have the meaning ascribed thereto in Section 201.
S&P means Standard & Poors, a division of The McGraw-Hill Companies, Inc.
SEC means the Securities and Exchange Commission.
Securities Act means the Securities Act of 1933, as amended.
Shelf Registration Statement shall have the meaning ascribed thereto in the Registration
Rights Agreement.
Significant Subsidiary means any Restricted Subsidiary which at the time of determination
had: (A) total assets which, as of the date of Mediacom Broadband LLCs most recent quarterly
consolidated balance sheet, constituted at least 10% of Mediacom Broadband LLCs total assets on a
consolidated basis as of such date; or (B) revenues for the three-month period ending on the date
of Mediacom Broadband LLCs most recent quarterly consolidated statement of income which
constituted at least 10% of Mediacom Broadband LLCs total revenues on a consolidated basis for
such period; or (C) Subsidiary Operating Cash Flow for the three-month period ending on the date of
Mediacom Broadband LLCs most recent quarterly
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consolidated statement of income which constituted at least 10% of Mediacom Broadband LLCs
total Operating Cash Flow on a consolidated basis for such period.
Special Interest Payment Date shall have the meaning ascribed thereto in Section 311.
Special Record Date shall have the meaning ascribed thereto in Section 311.
Specified Action shall have the meaning ascribed thereto in Section 1010.
Specified Affiliate Transaction shall have the meaning ascribed thereto in Section 1009.
Stated Maturity means, with respect to any security, the date specified in such security as
the fixed date on which the payment of principal of such security is due and payable, including
pursuant to any mandatory redemption provision.
Subordinated Obligations means, with respect to either of the Issuers, any Indebtedness of
either of the Issuers which is expressly subordinated in right of payment to the Notes.
Subsidiary means with respect to any Person, any other Person the majority of whose voting
stock, membership interests or other Voting Equity Interests is or are owned by such Person or
another Subsidiary of such Person. Voting stock in a corporation is Equity Interests having voting
power under ordinary circumstances to elect directors.
Subsidiary Credit Facility means the Mediacom Broadband Group Credit Agreement, together
with all loan documents and instruments thereunder (including, without limitation, any guarantee
agreements and security documents), including, without limitation, any amendment (including,
without limitation, any amendment and restatement), modification or supplement thereto or any
refinancing, refunding, deferral, renewal, extension or replacement thereof (including, in any such
case and without limitation, adding or removing Subsidiaries of Mediacom Broadband LLC as borrowers
or guarantors thereunder), whether by the same or any other lender or group of lenders, pursuant to
which (i) an aggregate amount of Indebtedness up to $1,400,000,000 may be Incurred pursuant to
clause (c)(i) of the second paragraph of Section 1008 and (ii) any additional amount of
Indebtedness in excess of $1,400,000,000 may be Incurred pursuant to the first paragraph or
pursuant to clause (c)(ii) or any other applicable clause (other than clause (c)(i)) of the second
paragraph of Section 1008.
Subsidiary Operating Cash Flow means, with respect to any Subsidiary for any period, the
Operating Cash Flow of such Subsidiary and its Subsidiaries for such period determined by
utilizing all of the elements of the definition of Operating Cash Flow in this Indenture,
including the defined terms used in such definition, consistently applied only to such Subsidiary
and its Subsidiaries on a consolidated basis for such period.
Successor Company shall have the meaning ascribed thereto in Section 801.
Successor Guarantor shall have the meaning ascribed thereto in Section 801.
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TIA or Trust Indenture Act means the Trust Indenture Act of 1939 (15 U.S.C. §§
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided in Section 905.
Treasury Rate means, as of the applicable redemption date, the yield to maturity as of such
redemption date of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least two Business Days prior to such redemption date (or, if such
Statistical Release is no longer published, any publicly available source of similar market data))
most nearly equal to the period from such redemption date to October 15, 2010; provided, however,
that if the period from such redemption date to October 15, 2010 is less than one year, the weekly
average yield on actually traded United States Treasury securities adjusted to a constant maturity
of one year will be used.
Trust Officer means an officer of the Trustee assigned by the Trustee to administer its
corporate trust matters or to any other officer of the Trustee to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
Trustee means the party named as such in this Indenture until a successor replaces it and,
thereafter, means the successor.
Unrestricted Subsidiary means any Subsidiary of Mediacom Broadband LLC designated as such
pursuant to the provisions of Section 1018, and any Subsidiary of an Unrestricted Subsidiary. Any
such designation may be revoked by a Committee Resolution delivered to the Trustee, subject to the
provisions of such Section.
U.S. Government Obligations means direct obligations (or certificates representing an
ownership interest in such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of the United States of
America is pledged and which are not callable or redeemable at the issuers option.
Voting Equity Interests means Equity Interests in any Person with voting power under
ordinary circumstances entitling the holders thereof to elect the Executive Committee, the board of
managers, board of directors or other governing body of such Person.
Weighted Average Life to Maturity means, when applied to any Indebtedness at any date, the
number of years obtained by dividing (i) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial maturity or other required
scheduled payment of principal, including payment at final maturity, in respect thereof by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between such date and the
making of such payment, by (ii) the then outstanding aggregate principal amount of such
Indebtedness.
Wholly Owned Restricted Subsidiary means a Restricted Subsidiary 99% or more of the
outstanding Equity Interests of which (other than Equity Interests constituting directors
qualifying shares to the extent mandated by applicable law) are owned by Mediacom Broadband LLC or
by one or more Wholly Owned Restricted Subsidiaries or by Mediacom Broadband LLC and one or more
Wholly Owned Restricted Subsidiaries.
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SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Issuers (an Issuers Request) to the Trustee to take
any action under any provision of this Indenture, the Issuers and any other obligor on the Notes
shall furnish to the Trustee an Officers Certificate in form and substance reasonably acceptable
to the Trustee stating that all conditions precedent, if any, provided for in this Indenture
(including any covenant compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than certificates provided pursuant to Section 1016(a)) shall include:
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual or such firm, he or it has
made such examination or investigation as is necessary to enable him or it to express an
informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Issuers or any other obligor on the Notes may
be based, insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such certificate or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Issuers or any other obligor on the Notes
stating that the
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information with respect to such factual matters is in the possession of the Issuers or any other
obligor on the Notes unless such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders.
(i) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such Holders
in person or by agents duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the Issuers. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the Act of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the
Issuers, if made in the manner provided in this Section 104.
(ii) The fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute sufficient proof of
authority. The fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other manner that the
Trustee deems sufficient.
(iii) The principal amount and serial numbers of Notes held by any Person, and the date
of holding the same, shall be proved by the Note Register.
(iv) If the Issuers shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Issuers may, at their option, by or
pursuant to a Committee Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Issuers shall have no obligation to do so. Notwithstanding TIA
§ 316(c), such record date shall be the record date specified in or pursuant to such
Committee Resolution, which shall be a date not earlier than the date 30 days prior to the
first solicitation of Holders generally in connection therewith and not later than the date
such solicitation is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on such record
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date shall be deemed to be Holders for the purposes of determining whether Holders of
the requisite proportion of outstanding Notes have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the outstanding Notes shall be computed as of such record date; provided that
no such authorization, agreement or consent by the Holders on such record date shall be
deemed effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
(v) Any request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Note shall bind every future Holder of the same Note and the Holder of
every Note issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof (including in accordance with Section 310) in respect of anything done, omitted
or suffered to be done by the Trustee, any Paying Agent or the Issuers in reliance thereon,
whether or not notation of such action is made upon such Note.
SECTION 105. Notices, Etc., to Trustee and the Issuers.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee by any Holder or by the Issuers or any other obligor on the Notes shall
be sufficient for every purpose hereunder if made, given, furnished or delivered in writing
and mailed, first-class postage prepaid, or delivered by recognized overnight courier, to or
with the Trustee and received at its Corporate Trust Office, Attention: Corporate Trust
Administration. Any such request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document given to the Trustee shall be sent in duplicate to the
Paying Agent if the Paying Agent is not the Trustee, or
(2) the Issuers by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if made, given, furnished or
delivered, in writing, or mailed, first-class postage prepaid, or delivered by recognized
overnight courier, to the Issuers addressed to them and received at the address of their
principal office specified in the first paragraph of this Indenture, Attention: General
Counsel, or at any other address previously furnished in writing to the Trustee by the
Issuers.
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SECTION 106. |
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Notice to Holders; Waiver. |
Where this Indenture provides for notice of any event to Holders by the Issuers or the
Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder, at his address as it appears in
the Note Register, not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. Neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such Holder actually
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receives such notice. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall
be filed with the Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in regular mail service or by reason
of any other cause, it shall be impracticable to mail notice of any event to Holders when such
notice is required to be given pursuant to any provision of this Indenture, then any manner of
giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient
giving of such notice for every purpose hereunder.
If the Issuers mail any notice or communication to any Holder, they shall mail a copy to the
Trustee at the same time.
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SECTION 107. |
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Effect of Headings and Table of Contents. |
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
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SECTION 108. |
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Successors and Assigns. |
All covenants and agreements in this Indenture by the Issuers shall bind each of their
successors and assigns, whether so expressed or not.
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SECTION 109. |
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Separability Clause. |
In case any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
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SECTION 110. |
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Benefits of Indenture. |
Nothing in this Indenture or in the Notes, express or implied, shall give to any Person (other
than the parties hereto, any agent and their successors hereunder and each of the Holders) any
benefit or any legal or equitable right, remedy or claim under this Indenture.
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SECTION 111. |
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Governing Law. |
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK EXCLUDING (TO THE GREATEST EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK. UPON
THE ISSUANCE OF THE EXCHANGE NOTES OR THE EFFECTIVENESS OF THE SHELF REGISTRATION STATEMENT, THIS
INDENTURE SHALL BE SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT THAT ARE REQUIRED TO BE
PART OF THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE
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GOVERNED BY SUCH PROVISIONS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK AND THE U.S. FEDERAL COURTS, IN EACH CASE SITTING IN THE
BOROUGH OF MANHATTAN, AND WAIVES ANY OBJECTION AS TO VENUE OR FORUM NON CONVENIENS.
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SECTION 112. |
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Legal Holidays. |
In any case where any interest payment date, any date established for payment of Defaulted
Interest pursuant to Section 311 or Redemption Date or Stated Maturity of any Note shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of the Notes) payment
of principal (or premium, if any) or interest need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on the interest payment date
or date established for payment of Defaulted Interest pursuant to Section 311, Redemption Date, or
at the Stated Maturity or maturity; provided that no interest shall accrue on the payment so
deferred for the period from and after such interest payment date, Redemption Date or date
established for payment of Defaulted Interest pursuant to Section 311, Stated Maturity or maturity,
as the case may be, to the next succeeding Business Day.
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SECTION 113. |
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No Personal Liability of Directors, Officers, Employees, Stockholders or Incorporators. |
No manager, director, officer, employee, member, shareholder, partner or incorporator of
either Issuer or any Subsidiary, as such, shall have any liability for any obligations of the
Issuers under the Notes, this Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder by accepting a Note waives and releases all such
liability. Such waiver and release are part of the consideration for the issuance of the Notes.
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SECTION 114. |
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Counterparts. |
This Indenture may be signed in any number of counterparts each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute but one and the same
Indenture.
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SECTION 115. |
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Communications by Holders with Other Holders. |
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Issuers, the Trustee, the Note Registrar and anyone
else shall have the protection of TIA § 312(c).
ARTICLE TWO
NOTE FORMS
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SECTION 201. |
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Forms Generally. |
The Notes and the Trustees certificate of authentication shall be in substantially the forms
set forth in this Article, with such appropriate insertions, omissions, substitutions and
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other variations as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed thereon as may be
required to comply with applicable laws or the rules of any securities exchange or Depositary or as
may, consistently herewith, be determined by the officers executing such Notes, as evidenced by
their execution of the Notes. Any portion of the text of any Note may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the Note. Each Note shall be dated
the date of its authentication.
Initial Notes offered and sold to QIBs in the United States of America (Rule 144A Note)
shall be issued on the date of this Indenture, and Additional Notes offered and sold to QIBs in the
United States of America shall be issued, in the form of a permanent global Note, without interest
coupons, substantially in the form set forth in Sections 203 and 204 (the Rule 144A Global Note)
deposited with the Trustee, as custodian for the Depositary, duly executed by the Issuers and
authenticated by the Trustee as hereinafter provided. The Rule 144A Global Note may be represented
by more than one certificate, if so required by the Depositarys rules regarding the maximum
principal amount to be represented by a single certificate. The aggregate principal amount of the
Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.
Initial Notes offered and sold in offshore transactions to Non-U.S. Persons (as defined in
Regulation S under the Securities Act) (Regulation S Note) in reliance on Regulation S shall be
issued on the date of this Indenture, and Additional Notes offered and sold in offshore
transactions to Non-U.S. Persons in reliance on Regulation S shall be issued, in the form of a
global Note, without interest coupons, substantially in the form set forth in Sections 203 and 204
(the Regulation S Global Note). The Regulation S Global Note will be deposited with the Trustee,
as custodian for the Depositary, duly executed by the Issuers and authenticated by the Trustee as
hereinafter provided. The Regulation S Global Note may be represented by more than one
certificate, if so required by the Depositarys rules regarding the maximum principal amount to be
represented by a single certificate. The aggregate principal amount of the Regulation S Global
Note may from time to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.
Initial Notes subsequently offered and sold to institutional accredited investors (as
defined in Rule 501(a)(1), (2), (3) and (7) under the Securities Act) in the United States of
America (Institutional Accredited Investor Note) shall be issued, and if offered and sold to
institutional accredited investors in the United States of America shall be issued, in the form of
one or more permanent certificated Notes substantially in the form set forth in Sections 203 and
204 (an Institutional Accredited Investor Certificated Note), duly executed by the Issuers and
authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the
Institutional Accredited Investor Certificated Notes may from time to time be increased or
decreased as hereinafter provided.
The Rule 144A Global Note and the Regulation S Global Note are sometimes collectively herein
referred to as the Global Notes.
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The definitive Notes shall be printed, lithographed or engraved on steel-engraved borders or
may be produced in any other manner, all as determined by the officers of the Issuers (or in the
case of Mediacom Broadband LLC, of its sole member) executing such Notes, as evidenced by their
execution of such Notes.
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SECTION 202. |
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Restrictive Legends. |
Unless and until (i) an Initial Note or Additional Note is sold under an effective
Registration Statement or (ii) an Initial Note or Additional Note is exchanged for an Exchange Note
in connection with an effective Registration Statement, in each case pursuant to the Registration
Rights Agreement, such Rule 144A Global Note and the Institutional Accredited Investor Certificated
Note shall bear the following legend (the Private Placement Legend) on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE SECURITIES ACT) AND NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN (OR THEREIN) MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS SECURITY, AGREES FOR THE BENEFIT OF THE
ISSUERS THAT THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE THERETO UNDER
RULE 144(k) UNDER THE SECURITIES ACT WHICH IS APPLICABLE TO THIS SECURITY (THE
RESALE RESTRICTION TERMINATION DATE) OTHER THAN (1) TO THE ISSUERS OR THEIR
RESPECTIVE SUBSIDIARIES, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (RULE 144A), TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY IF THIS SECURITY IS NOT IN BOOK-ENTRY FORM), (3) INSIDE THE UNITED STATES
TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(A) (1), (2), (3)
OR (7) UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING VARIOUS REPRESENTATIONS AND AGREEMENTS (THE FORM
OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (4) TO A NON-U.S.
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PERSON IN AN OFFSHORE TRANSACTION (AS SUCH TERMS ARE DEFINED IN REGULATION S
UNDER THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT
(AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS SECURITY IF THIS SECURITY IS NOT IN BOOK-ENTRY FORM), (5)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, INCLUDING THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT, IF AVAILABLE, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW
THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR
ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL, AND SUBJECT TO THE RIGHT OF
THE ISSUERS OR THE TRUSTEE FOR THE SECURITIES PRIOR TO ANY SUCH SALE, PLEDGE OR
OTHER TRANSFER PURSUANT TO CLAUSE (5) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS
LEGEND WILL BE REMOVED UPON REQUEST OF THE HOLDER ON OR AFTER THE RESALE RESTRICTION
TERMINATION DATE.
The Regulation S Global Note shall bear the following legend on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE SECURITIES ACT), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN
AN OFFSHORE TRANSACTION, (2) BY ITS ACCEPTANCE HEREOF AGREES FOR THE BENEFIT OF THE
ISSUERS THAT THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE THERETO UNDER
RULE 144(k) UNDER THE SECURITIES ACT WHICH IS APPLICABLE TO THIS SECURITY (THE
RESALE RESTRICTION TERMINATION DATE) OTHER THAN (1) TO THE ISSUERS OR THEIR
RESPECTIVE SUBSIDIARIES, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (RULE 144A), TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN
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RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY IF THIS SECURITY IS NOT IN
BOOK-ENTRY FORM), (3) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT)
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
VARIOUS REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE), (4) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION (AS SUCH
TERMS ARE DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY IF THIS
SECURITY IS NOT IN BOOK-ENTRY FORM), (5) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THE EXEMPTION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT, IF AVAILABLE, OR (6) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR
THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR
THEIR CONTROL, AND SUBJECT TO THE RIGHT OF THE ISSUERS OR THE TRUSTEE FOR THE
SECURITIES PRIOR TO ANY SUCH SALE, PLEDGE OR OTHER TRANSFER PURSUANT TO CLAUSE (5)
ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON REQUEST
OF THE HOLDER ON OR AFTER THE RESALE RESTRICTION TERMINATION DATE. THIS LEGEND WILL
BE REMOVED AFTER 40 CONSECUTIVE DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE
DAY ON WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS
DEFINED IN REGULATION S) AND (B) THE DATE OF THE CLOSING OF THE ORIGINAL OFFERING.
AS USED HEREIN, THE TERMS OFFSHORE TRANSACTION, UNITED STATES AND U.S. PERSON
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
The Global Notes, whether or not an Initial Note or Additional Note, shall also bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUERS OR THEIR
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO.
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OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 306 AND 307
OF THE INDENTURE.
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SECTION 203. |
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Form of Note.
81/2% Senior Notes due 2015 |
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No. ___
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Principal Amount $ |
CUSIP NO.
Mediacom Broadband LLC, a Delaware limited liability company, and Mediacom Broadband
Corporation, a Delaware corporation, as joint and several obligors promise to pay to , or registered assigns, the principal sum of Dollars on October 15, 2015.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
This Note shall bear interest from August 30, 2005 through October 15, 2015.
Additional provisions of this Note are set forth on the other side of this Note.
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IN WITNESS WHEREOF, the Issuers have caused this Note to be signed manually or by facsimile by
their authorized Officers.
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MEDIACOM BROADBAND LLC |
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By:
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Mediacom Communications Corporation,
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its Managing Member |
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Title: |
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MEDIACOM BROADBAND CORPORATION |
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-33-
TRUSTEES CERTIFICATE OF AUTHENTICATION
Dated: , 2005
This is one of the Notes referred to in the within-mentioned Indenture.
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LAW DEBENTURE TRUST COMPANY OF NEW YORK, |
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as Trustee |
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By: |
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Authorized Signatory |
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-34-
[FORM OF REVERSE SIDE OF SENIOR NOTE]
81/2% Senior Notes due 2015
1. Interest
Mediacom Broadband LLC, a Delaware limited liability company, and Mediacom Broadband
Corporation, a Delaware corporation (such entities, and their successors and assigns under the
Indenture hereinafter referred to, being herein called the Issuers), jointly and severally
promise to pay interest on the principal amount of this Note as described below.
Interest on the 81/2% Senior Notes due 2015 (the Notes) will accrue at a rate of 81/2% per
annum, payable semiannually, to Holders of record on each April 1 and October 1 immediately
preceding the interest payment date on April 15 and October 15 of each year during which any
portion of the Notes shall be outstanding (each an Interest Payment Date), commencing October 15,
2005. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.
2. Additional Interest
The Holder of this Note is entitled to the benefits of the Registration Rights Agreement dated
as of August 30, 2005 by and among the Issuers and the initial purchasers of the Notes.
Capitalized terms used in this paragraph 2 but not defined herein have the meanings assigned to
them in the Registration Rights Agreement. In the event that (i) neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been filed with the Commission on
or prior to the 180th day following the date of the original issuance of the Notes, (ii)
the Exchange Offer Registration Statement has not been declared effective on or prior to the
300th day following the date of the original issuance of the Notes, (iii) the Registered
Exchange Offer has not been consummated on or prior to the 360th day following the date
of the original issuance of the Notes, (iv) notwithstanding the fact that the Issuers have or may
consummate a Registered Exchange Offer, the Issuers are required to file a Shelf Registration
Statement and such Shelf Registration Statement is not filed on or prior to the 180th
day following the date when the Issuers first become obligated to file such Shelf Registration
Statement, (v) notwithstanding the fact that the Issuers have or may consummate a Registered
Exchange Offer, the Issuers are required to file a Shelf Registration Statement and such Shelf
Registration Statement is not declared effective on or prior to the 300th day following
the date when the Issuers first become obligated to file such Shelf Registration Statement, or (vi)
after the Exchange Offer Registration Statement or the Shelf Registration Statement has been
declared effective, such Registration Statement thereafter ceases to be effective or usable in
connection with exchanges or resales, as the case may be, of the Notes at any time that the Issuers
are obligated to maintain the effectiveness thereof pursuant to the Registration Rights Agreement
(each such event referred to in clauses (i) through (vi) above being referred to herein as a
Registration Default), interest (Additional Interest) shall accrue (in addition to stated
interest on the Notes) from and including the date on which the first such Registration Default
shall occur to but excluding the date on which all Registration Defaults have been cured, at a rate
per annum equal to 0.25% of the principal amount of the Notes; provided, however, that such rate
per annum shall increase by an additional 0.25% per annum from and including the 91st
day after the first such Registration
-35-
Default (and each successive 91st day thereafter) unless and until all Registration
Defaults have been cured; provided further, however, that in no event shall the Additional Interest
accrue at a rate in excess of 1.00% per annum. The Additional Interest will be payable in cash
semiannually in arrears each Interest Payment Date. Whenever in this Note or in the Indenture a
reference is made to interest on the Notes, such reference shall be deemed to also be a reference
to Additional Interest, if any, due on the Notes.
3. Method of Payment
By at least 10:00 a.m. (New York City time) on the date on which any principal of, premium, if
any, or interest on the Notes is due and payable, the Issuers shall irrevocably deposit with the
Paying Agent via wire transfer of immediately available funds money sufficient to pay such
principal, premium, if any, and/or interest. The Issuers will pay interest (except defaulted
interest) to the Persons who are registered Holders of Notes at the close of business on the April
1 or October 1 next preceding the Interest Payment Date even if the Notes are cancelled,
repurchased or redeemed after the record date and on or before the Interest Payment Date. Holders
must surrender Notes to a Paying Agent to collect principal payments. The Issuers will pay
principal, premium, if any, and interest in money of the United States that at the time of payment
is legal tender for payment of public and private debts. All payments with respect to Global Notes
and certificated Notes the Holders of which have given written wire transfer instructions to the
Paying Agent by no later than five Business Days prior to the relevant payment date shall be
required to be made by wire transfer of immediately available funds to the accounts specified by
the Holders thereof.
4. Trustee, Paying Agent and Note Registrar
Initially, Law Debenture Trust Company of New York, a New York banking corporation
(Trustee), will act as Trustee, and, initially, Deutsche Bank Trust Company Americas will act as
Paying Agent and Note Registrar. The Issuers may appoint and change any Paying Agent, Note
Registrar or co-registrar without notice to any Holder of the Notes.
5. Indenture
The Issuers issued the Notes under an Indenture dated as of August 30, 2005 (as it may be
amended or supplemented from time to time in accordance with the terms thereof, the Indenture),
among the Issuers and the Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§
77aaa-77bbbb) (the TIA). Capitalized terms used herein and not defined herein have the meanings
ascribed thereto in the Indenture. The Notes are subject to all such terms, and Holders of the
Notes are referred to the Indenture and the TIA for a statement of those terms.
The Notes are unsecured senior obligations of the Issuers initially limited to $200,000,000,
and, subject to compliance with the covenants contained in this Indenture, including Section 1008
as a new Incurrence of Indebtedness by the Issuers, the Issuers may issue Additional Notes having
substantially identical terms and conditions as the Initial Notes in unlimited principal amounts.
This Note is one of the Initial Notes referred to in the Indenture. The Notes
-36-
include the Notes and any Exchange Notes or Private Exchange Notes issued in exchange for the
Initial Notes or Additional Notes pursuant to the Indenture. The Initial Notes, the Additional
Notes, the Exchange Notes and the Private Exchange Notes are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the Incurrence of
Indebtedness by the Issuers, and the Issuers Restricted Subsidiaries, the payment of dividends on,
and the purchase or redemption of Equity Interests of Mediacom Broadband LLC and its Restricted
Subsidiaries, the sale or transfer of assets, investments of Mediacom Broadband LLC and its
Restricted Subsidiaries and transactions with Affiliates. In addition, the Indenture limits the
ability of Mediacom Broadband LLC and its Restricted Subsidiaries to restrict distributions and
dividends from Restricted Subsidiaries.
6. Optional Redemption
Except as set forth below, the Notes are not redeemable prior to October 15, 2010.
Thereafter, the Notes will be redeemable, in whole or in part, from time to time at the option of
the Issuers, on not less than 30 and not more than 60 days notice prior to the redemption date by
first class mail to each holder of Notes to be redeemed at such holders address appearing in the
Note Register maintained by the Note Registrar at the following redemption prices (expressed as
percentages of principal amount) if redeemed during the twelve-month period beginning with October
15 in the year indicated below, in each case together with accrued and unpaid interest and
Additional Interest, if any, thereon to the date of redemption:
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2010 |
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104.250 |
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2011 |
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102.833 |
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2012 |
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101.417 |
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2013 and thereafter |
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100.000 |
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Notwithstanding the foregoing, at any time prior to October 15, 2010, the Issuers may also
redeem the Notes, in whole or in part from time to time, at the option of the Issuers, upon not
less than 30 and not more than 60 days notice prior to the redemption date by first class mail to
each holder of Notes to be redeemed at such holders address appearing in the register of Notes
maintained by the Note Registrar, at a redemption price equal to 100% of the principal amount of
the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and
Additional Interest, if any, thereon, to the date of redemption.
In addition, at any time and from time to time, on or prior to October 15, 2008, the Issuers
may redeem up to 35% of the original principal amount of the Notes (calculated to give effect to
any issuance of Additional Notes) with the Net Cash Proceeds of one or more Equity Offerings, at a
redemption price in cash equal to 108.5% of the principal to be redeemed plus accrued and unpaid
interest and Additional Interest, if any, thereon to the date of redemption; provided that at least
65% of the original principal amount of the Notes (as so calculated) remains outstanding
immediately after each such redemption. Any such redemption will be required to occur within 90
days following the closing of any such Equity Offering.
-37-
7. Selection
If fewer than all the Notes are to be redeemed, the Trustee will select the Notes to be
redeemed, if the Notes are listed on a national securities exchange, in accordance with the rules
of such exchange or, if the Notes are not so listed, on a pro rata basis or by lot or by such other
method that the Trustee deems to be fair and equitable to Holders; provided that, if a partial
redemption is made with the proceeds of any Equity Offering, selection of the Notes or portions
thereof for redemption shall be made by the Trustee only on a pro rata basis or on as nearly a pro
rata basis as is practicable (subject to DTC procedures). If any Note is to be redeemed in part
only, the notice of redemption that relates to such Note shall state the portion of the principal
amount thereof to be redeemed and a new Note or Notes in principal amount equal to the unredeemed
principal portion thereof will be issued; provided that no Notes of a principal amount of $1,000 or
less shall be redeemed in part. On and after the redemption date, interest will cease to accrue on
Notes or portions thereof called for redemption as long as the Issuers have deposited with the
Paying Agent for the Notes funds in satisfaction of the applicable redemption price pursuant to the
Indenture.
8. Change of Control
Upon the occurrence of a Change of Control, each Holder shall have the right to require the
Issuers to repurchase all or any part of such Holders Notes pursuant to a Change of Control Offer
at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest
and Additional Interest, if any, to the date of purchase (subject to the right of Holders of record
on the relevant record date to receive interest due on the relevant Interest Payment Date).
9. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations of principal amount of
$1,000 and whole multiples of $1,000. A Holder may transfer or exchange Notes in accordance with
the Indenture. The Note Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Note Registrar need not register the transfer of or exchange of (i) any Note
selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the
Note not to be redeemed) for a period beginning 15 days before the mailing of a notice of
redemption of Notes to be redeemed and ending on the date of such selection or (ii) any Notes for a
period beginning 15 days before an Interest Payment Date and ending on such Interest Payment Date.
10. Persons Deemed Owners
The registered holder of this Note may be treated as the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two years, the Trustee
or Paying Agent shall pay the money back to the Issuers at their written request
-38-
unless an abandoned property law designates another Person. After any such payment, Holders
entitled to the money must look only to the Issuers and not to the Trustee for payment.
12. Defeasance
Subject to certain conditions set forth in the Indenture, the Issuers at any time may
terminate some or all of their obligations under the Notes and the Indenture if the Issuers deposit
with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if
any, and interest on the Notes to redemption or maturity, as the case may be. The Issuers in their
sole discretion can defease the Notes.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture, the Notes or the
Restricted Subsidiary Guarantees may be amended with the written consent of the Holders of at least
a majority in aggregate principal amount of the then outstanding Notes and (ii) any default or
noncompliance with any provision may be waived with the consent of the Holders of a majority in
principal amount of the outstanding Notes. Without the consent of any Noteholder, the Issuers and
the Trustee may amend the Indenture or the Notes to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article Eight of the Indenture, or to provide for uncertificated
Notes in addition to or in place of certificated Notes or to add guarantees with respect to the
Notes or to secure the Notes, or to add additional covenants or surrender rights and powers
conferred on the Issuers, or to comply with any request of the SEC in connection with qualifying
the Indenture under the TIA, or to make any change that does not adversely affect the rights of any
Noteholder.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) a default in the payment of principal of,
or premium, if any, on the Notes when due at their Stated Maturity, upon optional redemption, upon
required repurchase, upon declaration or otherwise, (ii) a default in any payment of interest or
Additional Interest, if any, on the Notes when due, continued for 30 days, (iii) the failure by
either of the Issuers or the Guarantors to comply for 60 days after written notice by holders of
not less than 25% in principal amount of the Notes then outstanding with any other covenant,
representation, warranty or other agreement contained in the Indenture or the Notes, (iv) default
in the payment at maturity (continued for the longer of any applicable grace period or 30 days) of
any Indebtedness aggregating $25,000,000 or more of the Issuers or any Significant Subsidiary or
any group of Restricted Subsidiaries of Mediacom Broadband LLC which, if merged into each other,
would constitute a Significant Subsidiary, or the acceleration of any such Indebtedness which
default shall not be cured or waived, or such acceleration shall not be rescinded or annulled,
within 30 days after written notice by the holders of not less than 25% in principal amount of the
Notes then outstanding, (v) any final judgment or judgments for the payment of money in excess of
$25,000,000 (net of amounts covered by insurance) is rendered against the Issuers or a Significant
Subsidiary or any group of Restricted Subsidiaries of Mediacom Broadband LLC, which, if merged into
each other, would constitute a Significant Subsidiary, and such judgment or judgments remain
undischarged for any period of 60 consecutive days, during which a stay of enforcement of such
judgment shall not be in effect, or (vi) the guarantee
-39-
of any Guarantor ceasing to be in full force and effect. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Notes being due and payable immediately
upon the occurrence of such Events of Default. The failure by any Restricted Subsidiary Guarantee
to be in full force and effect (except as contemplated by the terms thereof) or any Guarantor to
deny or disaffirm its obligations under the Indenture or any Restricted Subsidiary Guarantee shall
also be an Event of Default.
If an Event of Default occurs and is continuing (other than an Event of Default resulting from
certain events of bankruptcy, insolvency or reorganization), the Trustee or the Holders of not less
than 25% in principal amount of the outstanding Notes may declare the principal of and accrued and
unpaid interest, if any, on all the Notes to be due and payable immediately. Upon such a
declaration, such principal and accrued and unpaid interest shall be due and payable immediately.
Under limited circumstances, the Holders of a majority in principal amount of the outstanding Notes
may rescind any such acceleration with respect to the Notes and its consequences. Notwithstanding
the foregoing, in the case of an Event of Default resulting from certain events of bankruptcy,
insolvency or reorganization, all outstanding Notes shall be due and payable immediately without
further action or notice.
Holders of the Notes may not enforce the Indenture or the Notes except as provided in the
Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives
indemnity or security satisfactory to it. Subject to certain limitations, Holders of a majority in
principal amount of the Notes may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default in payment of principal interest) if it determines that
withholding notice is in the interest of the Holders.
15. Trustee Dealings with the Issuers
Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise
deal with and collect obligations owed to it by the Issuers or their affiliates and may otherwise
deal with the Issuers or their affiliates with the same rights it would have if it were not
Trustee.
16. No Recourse Against Others
A manager, director, officer, employee, member, shareholder, partner or incorporator of either
Issuer or any Subsidiary, as such, shall not have any liability for any obligations of the Issuers
under the Notes or the Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. By accepting a Note, each Noteholder waives and releases all such
liability.
17. Authentication
This Note shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent acting on its behalf) manually signs the certificate of authentication on the
other side of this Note.
-40-
18. Abbreviations
Customary abbreviations may be used in the name of a Noteholder or an assignee, such as TEN
COM (=tenants in common), TEN ENT (=tenants by the entirety), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors
Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Issuers have caused CUSIP numbers to be printed on the Notes and have directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders of the Notes. No
representation is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
20. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK EXCLUDING (TO THE GREATEST EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
21. Restricted Subsidiary Guarantees
This Note may after the date hereof be entitled to certain Restricted Subsidiary Guarantees
made for the benefit of the Holders. Reference is hereby made to the Indenture for the terms of
any Restricted Subsidiary Guarantee.
Mediacom Broadband LLC will furnish to any Noteholder upon written request and without charge
to the Noteholder a copy of the Indenture. Requests may be made to:
Mediacom Broadband LLC
100 Crystal Run Road
Middletown, New York 10941
Attention: Chief Financial Officer
-41-
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignees name, address and zip code)
(Insert assignees soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Issuers. The agent may
substitute another to act for him.
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Signature Guarantee: |
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(Signature must be guaranteed) |
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in the Securities Transfer Agents
Medallion Program (STAMP) or such other signature guarantee medallion program as may be approved
by the Note Registrar in addition to or substitution for, STAMP), pursuant to SEC Rule 17Ad-15.
[In connection with any transfer or exchange of any of the Notes evidenced by this certificate
occurring prior to the date that is two years after the later of the date of original issuance of
such Notes and the last date, if any, on which such Notes were owned by the Issuers or any
Affiliate of the Issuers, the undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
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___
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1 |
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acquired for the undersigneds own account, without transfer; or |
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___
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transferred to the Issuers; or |
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3 |
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transferred pursuant to and in compliance with Rule 144A under the Securities Act of
1933; or |
-42-
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transferred pursuant to an effective registration statement under the Securities Act of
1933; or |
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transferred pursuant to and in compliance with Regulation S under the Securities Act of
1933 (provided that the holder of such Note shall have furnished to the Trustee a signed letter
containing certain representations and agreements (the form of which letter appears as Section 309
of the Indenture)); or |
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transferred to an institutional accredited investor (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act of 1933), that has fur- nished to the Trustee a signed
letter containing certain representations and agreements (the form of which letter appears as
Section 309 of the Inden ture); or |
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transferred pursuant to another available exemption from the Registration requirements
of the Securities Act of 1933. |
Unless one of the boxes is checked, the Trustee may refuse to register any of the Notes evidenced
by this certificate in the name of any person other than the registered holder thereof; provided,
however, that if box (5), (6) or (7) is checked, the Trustee or the Issuers may require to the
extent provided in this Indenture, prior to registering any such transfer of the Notes, in their
sole discretion, such legal opinions, certifications and other information as the Trustee or the
Issuers may reasonably request to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the Securities Act of
1933, such as the exemption provided by Rule 144 under such Act.
Signature Guarantee:
(Signature must be guaranteed)
Signature
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions) with membership in the Securities Transfer Agents
Medallion Program (STAMP) or such other signature guarantee medallion program as
-43-
may be approved by the Note Registrar in addition to or substitution for STAMP, pursuant to SEC
Rule 17Ad-15.]2
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Include only for the Initial Notes,
Additional Notes and Private Exchange Notes. |
-44-
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
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Amount of decrease in |
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Amount of increase in |
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Principal Amount of this |
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Signature of authorized |
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Principal Amount of this |
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Principal Amount of this |
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Global Note following |
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signatory of Trustee or |
Date of Exchange |
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Global Note |
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Global Note |
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such decrease or increase |
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Notes custodian |
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-45-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers pursuant to Section 1012 or
1013 of the Indenture, check the box:
If you want to elect to have only part of this Note purchased by the Issuers pursuant to
Section 1012 or 1013 of the Indenture, state the amount in principal amount (must be integral
multiple of $1,000): $ .
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Date:
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Your Signature:
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(Sign exactly as your name
appears on the other side of the
Note) |
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Signature Guarantee: |
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(Signature must be guaranteed) |
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions) with membership in the Securities Transfer Agents
Medallion Program (STAMP) or such other signature guarantee medallion program as may be approved
by the Note Registrar in addition to or substitution for STAMP, pursuant to SEC Rule 17Ad-15.
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SECTION 204. |
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Form of Trustees Certificate of Authentication. |
The Trustees certificate of authentication shall be in substantially the following form:
TRUSTEES CERTIFICATE OF AUTHENTICATION.
This is one of the Notes referred to in the within-mentioned Indenture.
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LAW DEBENTURE TRUST COMPANY OF NEW YORK, as Trustee |
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By |
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Authorized Signatory |
-46-
ARTICLE THREE
THE NOTES
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SECTION 301. |
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Title and Terms. |
The aggregate principal amount of Notes which may be authenticated and delivered under this
Indenture on the date of this Indenture is limited to $200,000,000 aggregate principal amount at
maturity of Initial Notes. The Notes may be issued in more than one series. All Notes of any one
series shall be substantially identical except as to denomination.
The Issuers may from time to time after the date of this Indenture issue additional Notes (the
Additional Notes) having substantially identical terms and conditions to the Initial Notes in
unlimited principal amount so long as (i) the Incurrence of Indebtedness represented by such
Additional Notes is at such time permitted by Section 1008 and (ii) such Additional Notes are
issued in compliance with the other applicable provisions of this Indenture. Any Additional Notes
shall constitute part of the same issue as the Initial Notes offered on the date of this Indenture
and shall be treated as Notes for all purposes of this Indenture. With respect to any Additional
Notes issued after the date of this Indenture (except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section
304, 305, 306, 307, 310, 906, 1012, 1013 or 1108, pursuant to an Exchange Offer or pursuant to a
Private Exchange Offer), there shall be established (a) in or pursuant to a Committee Resolution
and (b)(i) set forth or determined in the manner provided in an Officers Certificate or (ii)
established pursuant to one or more indentures supplemental hereto, prior to the issuance of such
Additional Notes:
(i) whether such Additional Notes shall be issued as part of a new or existing series
of Notes and the title of such Additional Notes (which shall distinguish the Additional
Notes of the series from Notes of any other series);
(ii) the aggregate principal amount of such Additional Notes which may be authenticated
and delivered under this Indenture,
(iii) the issue price and issuance date of such Additional Notes, including the date
from which interest on such Additional Notes shall accrue; and
(iv) if applicable, that such Additional Notes shall be issuable in whole or in part in
the form of one or more Global Securities and, in such case, the respective depositaries for
such Global Securities, the form of any legend or legends which shall be borne by such
Global Securities; and any circumstances in which any such Global Securities may be
exchanged in whole or in part for Additional Notes registered, or any transfer of such
Global Securities in whole or in part may be registered, in the name or names of Persons
other than the depositary for such Global Securities or a nominee thereof.
If any of the terms of any Additional Notes are established by action taken pursuant to a
Committee Resolution, a copy of an appropriate record of such action shall be certified by the
Secretary or any Assistant Secretary of the Issuers and delivered to the Trustee at or prior
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to the delivery of the Officers Certificate or the indenture supplemental hereto setting
forth the terms of the Additional Notes.
The Initial Notes and the Additional Notes shall be known and designated as the 81/2% Senior
Notes due 2015, and the Exchange Notes shall be known and designated as the 81/2% Senior Notes due
2015, in each case, of the Issuers. Interest on the Notes will accrue at a rate per annum of 81/2%
and will be payable semiannually in cash and in arrears to the Holders of record on each April 1
and October 1 immediately preceding the interest payment date on April 15 and October 15 of each
year during which any portion of the Notes shall be outstanding (each, an Interest Payment Date),
commencing October 15, 2005. Interest on the Notes will accrue from the most recent interest
payment date to which interest has been paid or, if no interest has been paid, from August 30,
2005. All references to the principal amount of the Notes herein are references to the principal
amount at final maturity. Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months, until the principal thereof is paid or duly provided for Interest on any
overdue principal, interest (to the extent lawful) or premium, if any, shall be payable on demand.
The principal of (and premium, if any) and interest on the Notes shall be payable at the
office or agency of the Issuers maintained for such purpose in the Borough of Manhattan, The City
of New York, or at such other office or agency of the Issuers as may be maintained for such
purpose; provided, however, that, at the option of the Issuers, interest may be paid by check
mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Note
Register.
Holders shall have the right to require the Issuers to purchase their Notes, in whole or in
part, in the event of a Change of Control pursuant to Section 1012 and in connection with an Excess
Proceeds Offer as provided in Section 1013.
The Notes shall be redeemable as provided in Article Eleven and in the Notes.
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SECTION 302. |
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Denominations. |
The Notes shall be issuable only in fully registered form, without coupons, and only in
denominations of $1,000 and any integral multiple thereof.
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SECTION 303. |
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Execution, Authentication, Delivery and Dating. |
The Notes shall be executed by each of the Issuers by two Officers. The signature of any
Officer on the Notes may be manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the Notes.
Notes bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Issuers (or in the case of Mediacom Broadband LLC, of its sole member) shall
bind the Issuers, notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold such offices at the
date of such Notes.
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At any time and from time to time after the execution and delivery of this Indenture, the
Issuers may deliver Initial Notes or Additional Notes executed by the Issuers to the Trustee for
authentication, together with an order for the authentication and delivery of such Notes (the
Authentication Order) directing the Trustee to authenticate the Notes and certifying that all
conditions precedent to the issuance of Notes contained herein have been fully complied with, and
the Trustee in accordance with such Authentication Order shall authenticate and deliver such
Initial Notes or Additional Notes. Upon receipt of the Authentication Order, the Trustee shall
authenticate for original issue Exchange Notes and Private Exchange Notes; provided that such
Exchange Notes and Private Exchange Notes shall be issuable only upon the valid surrender for
cancellation of Initial Notes or Additional Notes of a like aggregate principal amount. The
Trustee shall be entitled to receive an Officers Certificate and an Opinion of Counsel of the
Issuers that it may reasonably request in connection with such authentication of Notes. Such order
shall specify the amount of Notes to be authenticated and the date on which the original issue of
Initial Notes, Additional Notes, Exchange Notes or Private Exchange Notes is to be authenticated.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Note a certificate of authentication substantially in the
form provided for herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder and is entitled to the benefits
of this Indenture.
In case either of the Issuers, pursuant to Article Eight, shall be consolidated or merged with
or into any other Person or shall convey, transfer, lease or otherwise dispose of substantially all
of its assets to any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which such Issuer shall have been merged, or the Person which shall
have received a conveyance, transfer, lease or other disposition as aforesaid, shall have executed
an indenture supplemental hereto with the Trustee pursuant to Article Eight, any of the Notes
authenticated or delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor Person, be exchanged for
other Notes executed in the name of the successor Person with such changes in phraseology and form
as may be appropriate, but otherwise in substance of like tenor as the Notes surrendered for such
exchange and of like principal amount; and the Trustee, upon the Issuers Request of the successor
Person, shall authenticate and deliver Notes as specified in such request for the purpose of such
exchange. If Notes shall at any time be authenticated and delivered in any new name of a successor
Person pursuant to this Section 303 in exchange or substitution for or upon registration of
transfer of any Notes, such successor Person, at the option of the Holders but without expense to
them, shall provide for the exchange of all Notes at the time outstanding for Notes authenticated
and delivered in such new name.
The Trustee may appoint an authenticating agent acceptable to the Issuers to authenticate
Notes on behalf of the Trustee. Unless limited by the terms of such appointment, an authenticating
agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such authenticating
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agent. An authenticating agent has the same rights as any Note Registrar or Paying Agent to
deal with the Issuers and their Affiliates hereunder.
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SECTION 304. |
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Temporary Notes. |
Pending the preparation of definitive Notes, the Issuers may execute, and upon Authentication
Order the Trustee shall authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination. Temporary Notes
shall be substantially of the tenor of the definitive Notes in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as conclusively evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuers will cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of
the Issuers designated for such purpose pursuant to Section 1002, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Notes, the Issuers shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal amount of
definitive Notes of authorized denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive Notes.
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SECTION 305. |
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Registration, Registration of Transfer and Exchange. |
The Issuers shall cause to be kept at the Office of the Note Registrar a register (the
register maintained in such office or in any other office or agency designated pursuant to Section
1002 being herein sometimes referred to as the Note Register) in which, subject to such
reasonable regulations as they may prescribe, the Issuers shall provide for the registration of
Notes and of transfers of Notes. The Note Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. At all reasonable times,
the Note Register shall be open to inspection by the Trustee. Deutsche Bank Trust Company Americas
is hereby initially appointed as security registrar (in such capacity, together with any successor
of Deutsche Bank Trust Company Americas in such capacity, the Note Registrar) for the purpose of
registering Notes and transfers of Notes as herein provided.
Upon surrender for registration of transfer of any Note at the office or agency of the Issuers
designated pursuant to Section 1002, the Issuers shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or more new Notes of any
authorized denomination or denominations of a like aggregate principal amount.
Furthermore, any Holder of a Global Note shall, by acceptance of such Global Note, agree that
transfers of beneficial interest in such Global Note may be effected only through a book-entry
system maintained by the Holder of such Global Note (or its agent), and that ownership of a
beneficial interest in the Note shall be required to be reflected in a book entry.
At the option of the Holder, Notes may be exchanged for other Notes of any authorized
denomination (not less than $1,000) and of a like aggregate principal amount, upon sur
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render of the Notes to be exchanged at such office or agency. Whenever any Notes are so
surrendered for exchange (including an exchange of Initial Notes or Additional Notes for Exchange
Notes or Private Exchange Notes), the Issuers shall execute, and the Trustee shall authenticate and
deliver, the Notes which the Holder making the exchange is entitled to receive; provided that (i)
no exchange of Initial Notes for Exchange Notes shall occur until an Exchange Offer Registration
Statement shall have been declared effective by the SEC, the Trustee shall have received an
Officers Certificate confirming that the Exchange Offer Registration Statement has been declared
effective by the SEC and the Initial Notes to be exchanged for the Exchange Notes shall be
cancelled by the Trustee and (ii) no exchange of Additional Notes for Exchange Notes shall occur
until a registration statement shall have been declared effective by the SEC, the Trustee shall
have received an Officers Certificate confirming that the registration statement has been declared
effective by the SEC and the Additional Notes to be exchanged for the Exchange Notes shall be
cancelled by the Trustee.
All Notes issued upon any registration of transfer or exchange of Notes shall be the valid
obligations of the Issuers, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or for exchange shall (if so
required by the Issuers or the Note Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Issuers and the Note Registrar, duly executed
by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange or redemption of
Notes, but the Issuers may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of transfer or exchange
of Notes, other than exchanges pursuant to Section 304, 906, 1012, or 1108, not involving any
transfer.
The Note Register shall be in written form in the English language or in any other form
including computerized records, capable of being converted into such form within a reasonable time.
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SECTION 306. |
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Book-Entry Provisions for Global Notes. |
(a) Each Global Note initially shall (i) be registered in the name of the Depositary for such
Global Note or the nominee of such Depositary, (ii) be delivered to the Trustee as custodian for
such Depositary and (iii) bear legends as set forth in Section 202.
Members of, or participants in, the Depositary (Agent Members) shall have no rights under
this Indenture with respect to any Global Note held on their behalf by the Depositary, or the
Trustee as its custodian, or under the Global Note, and the Depositary may be treated by the
Issuers, the Trustee and any agent of the Issuers or the Trustee as the absolute owner of such
Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuers, the Trustee or any agent of the Issuers or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the Depositary or shall
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impair, as between the Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Note.
(b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, but
not in part, to the Depositary, its successors or their respective nominees. Interests of
beneficial owners in a Global Note may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 307. If required to do so pursuant to any
applicable law or regulation, beneficial owners may obtain Notes in definitive form (Certificated
Notes) in exchange for their beneficial interests in a Global Note upon written request in
accordance with the Depositarys and the Note Registrars procedures. In addition, Certificated
Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in a
Global Note if (i) the Depositary notifies the Issuers that it is unwilling or unable to continue
as Depositary for such Global Note or the Depositary ceases to be a clearing agency registered
under the Exchange Act, at a time when the Depositary is required to be so registered in order to
act as Depositary, and in each case a successor depositary is not appointed by the Issuers within
90 days of such notice or (ii) an Event of Default has occurred and is continuing and the Note
Registrar has received a request from the Depositary.
(c) In connection with any transfer of a portion of the beneficial interest in a Global Note
pursuant to subsection (b) of this Section to beneficial owners who are required to hold
Certificated Notes, the Note Registrar shall reflect on its books and records the date and a
decrease in the principal amount of such Global Note in an amount equal to the principal amount of
the beneficial interest in the Global Note to be transferred, and the Issuers shall execute, and
the Trustee shall authenticate and deliver, one or more Certificated Notes of like tenor and
amount.
(d) In connection with the transfer of an entire Global Note to beneficial owners pursuant to
subsection (b) of this Section, such Global Note shall be deemed to be surrendered to the Trustee
for cancellation, and the Issuers shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depositary in exchange for its beneficial interest in such
Global Note, an equal aggregate principal amount of Certificated Notes of authorized denominations.
(e) Any Certificated Note delivered in exchange for an interest in a Global Note pursuant to
subsection (c) or subsection (d) of this Section shall, except as otherwise provided by paragraph
(c) of Section 307, bear the applicable legend regarding transfer restrictions applicable to the
Certificated Note set forth in Section 202.
(f) The registered holder of a Global Note may grant proxies and otherwise authorize any
person, including Agent Members and persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under this Indenture or the Notes.
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SECTION 307. |
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Special Transfer Provisions. |
(a) The following provisions shall apply with respect to any proposed transfer of a Rule 144A
Note or an Institutional Accredited Investor Note prior to the expiration of the Resale Restriction
Termination Date (as defined in Section 202):
(i) a transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a
beneficial interest therein to a QIB (as defined herein) shall be made upon the
representation of the transferee that it is purchasing the Note for its own account or an
account with respect to which it exercises sole investment discretion and that it and any
such account is a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuers as the undersigned
has requested pursuant to Rule 144A or has determined not to request such information and
that it is aware that the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Rule 144A;
(ii) a transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a
beneficial interest therein to an institutional accredited investor shall be made upon
receipt by the Trustee or its agent of a certificate substantially in the form set forth in
Section 308 from the proposed transferee and, if requested by the Issuers or the Trustee,
the delivery of certification and/or other information satisfactory to each of them;
(iii) a transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a
beneficial interest therein to a Non-U.S. Person shall be made upon receipt by the Trustee
or its agent of a certificate substantially in the form set forth in Section 309 from the
transferor and, if requested by the Issuers or the Trustee, the delivery of certification
and/or other information satisfactory to each of them; and
(iv) a transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a
beneficial interest therein pursuant to any other available exemption from the registration
requirements of the Securities Act, including the exemption provided by Rule 144 under the
Securities Act, shall be made upon receipt by the Trustee or its agent, if requested by the
Issuers or the Trustee, of an opinion of counsel, certification and/or other information
satisfactory to each of them.
(b) The following provisions shall apply with respect to any proposed transfer of a Regulation
S Note prior to the expiration of the Distribution Compliance Period:
(i) a transfer of a Regulation S Note or a beneficial interest therein to a QIB shall
be made upon the representation of the transferee that it is purchasing the Note for its own
account or an account with respect to which it exercises sole investment discretion and that
it and any such account is a qualified institutional buyer, within the meaning of Rule
144A under the Securities Act and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the Issuers as
the undersigned has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
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foregoing representations in order to claim the exemption from registration provided by
Rule 144A;
(ii) a transfer of a Regulation S Note or a beneficial interest therein to an
institutional accredited investor shall be made upon receipt by the Trustee or its agent of
a certificate substantially in the form set forth in Section 308 from the proposed
transferee and, if requested by the Issuers or the Trustee, the delivery of certification
and/or other information satisfactory to each of them;
(iii) a transfer of a Regulation S Note or a beneficial interest therein to a Non-U.S.
Person shall be made upon receipt by the Trustee or its agent of a certificate substantially
in the form set forth in Section 309 from the transferor and, if requested by the Issuers or
the Trustee, receipt by the Trustee or its agent of certification and/or other information
satisfactory to each of them; and
(iv) a transfer of a Regulation S Note or a beneficial interest therein pursuant to any
other available exemption from the registration requirements of the Securities Act,
including the exemption provided by Rule 144 under the Securities Act, shall be made upon
receipt by the Trustee or its agent, if requested by the Issuers or the Trustee, of an
opinion of counsel, certification and/or other information satisfactory to each of them.
Prior to or on the expiration of the Distribution Compliance Period, beneficial interests in a
Regulation S Global Note may only be held through Euroclear Bank S.A./N.V., as operator of the
Euroclear System (Euroclear) or Clearstream Banking, société anonyme (Clearstream) (as indirect
participants in DTC) or another agent member of Euroclear and Clearstream acting for and on behalf
of them, unless exchanged for interests in the Rule 144A Global Note in accordance with the
certification requirements hereof. During the Distribution Compliance Period, interests in the
Regulation S Global Note, if any, may be exchanged for interests in the Rule 144A Global Note or
for Certificated Notes only in accordance with the requirements described in Section 201.
After the expiration of the Distribution Compliance Period, interests in the Regulation S Note
may be transferred without requiring certification set forth in Section 308 or 309 or any
additional certification.
(c) Private Placement Legend. Upon the transfer, exchange or replacement of Notes not
bearing the Private Placement Legend, the Note Registrar shall deliver Notes that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Note Registrar shall deliver only Notes that bear the Private Placement
Legend unless there is delivered to the Note Registrar an Opinion of Counsel reasonably
satisfactory to the Issuers and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the provisions of the
Securities Act.
(d) General. By its acceptance of any Note bearing the Private Placement Legend, each
Holder of such a Note acknowledges the restrictions on transfer of such Note set
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forth in this Indenture and in the Private Placement Legend and agrees that it will transfer
such Note only as provided in this Indenture.
(e) The Issuers shall deliver to the Trustee an Officers Certificate setting forth the dates
on which the Distribution Compliance Period terminates.
The Note Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 306 or this Section 307. The Issuers shall have the
right to inspect and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable written notice to the Note Registrar.
(f) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global
Note, a member of, or a participant in the Depositary or other Person with respect to any ownership
interest in the Notes, with respect to the accuracy of the records of the Depositary or its nominee
or of any participant or member thereof or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of any notice (including any notice of
redemption) or the payment of any amount, under or with respect to such Notes. All notices and
communications to be given to the Holders and all payments to be made to Holders under the Notes
shall be given or made only to the registered Holders (which shall be the Depositary or its nominee
in the case of a Global Note). The rights of beneficial owners in any Global Note in global form
shall be exercised only through the Depositary subject to the applicable rules and procedures of
the Depositary. The Trustee may rely and shall be fully protected and indemnified pursuant to
Section 607 in relying upon information furnished by the Depositary with respect to any beneficial
owners, its members and participants.
(ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Note (including without limitation any
transfers between or among Depositary participants, members or beneficial owners in any Global
Note) other than to require delivery of such certificates and other documentation of evidence as
are expressly required by, and to do so if and when expressly required by, the terms of this
Indenture, and to examine the same to determine substantial compliance as to form with the express
requirements hereof.
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SECTION 308. |
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Form of Certificate to Be Delivered in Connection with
Transfers to Institutional Accredited Investors. |
[date]
MEDIACOM BROADBAND LLC
MEDIACOM BROADBAND CORPORATION
c/o Law Debenture Trust Company of New York
767 Third Avenue, 31st Floor
New York, NY 10017
Attention: Corporate Trust Administration
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Ladies and Gentlemen:
This certificate is delivered to request a transfer of $___principal amount of the 81/2%
Senior Notes due 2015 (the Notes) of Mediacom Broadband LLC and Mediacom Broadband Corporation
(the Issuers).
Upon transfer, the Notes would be registered in the name of the new beneficial owner as
follows:
Name:
Address:
Taxpayer ID Number:
The undersigned represents and warrants to you that:
(1) We are an institutional accredited investor (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933, as amended (the Securities Act)), purchasing for our own
account or for the account of an institutional accredited investor, and we are acquiring the
Notes not with a view to, or for offer or sale in connection with, any distribution in violation of
the Securities Act. We have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the Notes and invest in or
purchase securities similar to the Notes in the normal course of our business. We and any accounts
for which we are acting are each able to bear the economic risk of our or its investment.
(2) We understand that the Notes have not been registered under the Securities Act and, unless
so registered, may not be sold except as permitted in the following sentence. We agree on our own
behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the expiration of the holding period applicable thereto
under Rule 144(k) under the Securities Act which is applicable to this security (the Resale
Restriction Termination Date) other than (1) to the Issuers or their respective Subsidiaries, (2)
so long as this security is eligible for resale pursuant to Rule 144A under the Securities Act
(Rule 144A), to a person who the seller reasonably believes is a qualified institutional buyer
within the meaning of Rule 144A purchasing for its own account or for the account of a qualified
institutional buyer, in each case to whom notice is given that the resale, pledge or other transfer
is being made in reliance on Rule 144A (as indicated by the box checked by the transferor on the
certificate of transfer on the reverse of the security if this security is not in book-entry form),
(3) inside the United States to an institutional accredited investor (as defined in Rule 501(a)
(1), (2), (3) or (7) under the Securities Act) that, prior to such transfer, furnishes to the
Trustee a signed letter containing various representations and agreements (the form of which letter
can be obtained from the trustee), (4) to a non-U.S. Person in an offshore transaction (as such
terms are defined in Regulation S under the Securities Act) in accordance with Regulation S under
the Securities Act (as indicated by the box checked by the transferor on the certificate of
transfer on the reverse of the security if the security is not in book-entry form), (5) pursuant to
any other available exemption from the registration requirements of the Securities Act, including
the exemption provided by Rule 144 under the Securities Act, if available, or (6) pursuant to an
effective registration statement under the Securities Act, subject in each of the
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foregoing cases to any requirement of law that the disposition of its property or the property of
such investor account or accounts be at all times within its or their control, and subject to the
right of the Issuers or the Trustee for the Notes prior to any such sale, pledge or other transfer
pursuant to clause (5) above to require the delivery of an opinion of counsel, certifications
and/or other information satisfactory to each of them.
TRANSFEREE: __________________________________
BY:____________________________________________
Upon transfer the Notes would be registered in the name of the new beneficial owner as follows:
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Very truly yours,
[Name of Transferor]
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Name:
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Signature Medallion Guaranteed |
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SECTION 309. |
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Form of Certificate to Be Delivered in Connection with Transfers Pursuant to Regulation S. |
[date]
Law Debenture Trust Company of New York
767 Third Avenue, 31st Floor
New York, NY 10017
Attention: Corporate Trust Administration
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Re: |
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Mediacom Broadband LLC and Mediacom Broadband Corporation (the Issuers) 81/2% Senior Notes due 2015 (the Notes) |
Ladies and Gentlemen:
In connection with our proposed sale of $___aggregate principal amount of the Notes,
we confirm that such sale has been effected pursuant to and in accordance with Regulation S under
the United States Securities Act of 1933, as amended (the Securities Act), and, accordingly, we
represent that:
(a) the offer of the Notes was not made to a person in the United States;
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(b) either (i) at the time the buy order was originated, the transferee was outside the
United States or we and any person acting on our behalf reasonably believed that the
transferee was outside the United States or (ii) the transaction was executed in, on or
through the facilities of a designated off-shore securities market and neither we nor any
person acting on our behalf knows that the transaction has been pre-arranged with a buyer in
the United States;
(c) no directed selling efforts have been made in the United States in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.
In addition, if the sale is made during a distribution compliance period and the provisions of
Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable thereto, we confirm that such sale
has been made in accordance with the applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as
the case may be.
You and the Issuers are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
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Authorized Signature
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Signature Medallion Guaranteed |
SECTION 310. Mutilated, Destroyed, Lost and Stolen Notes.
If (i) any mutilated Note is surrendered to the Trustee, or (ii) the Issuers and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any Note, and there is
delivered to the Issuers and the Trustee such security or indemnity, in each case, as may be
required by them to save each of them harmless, then, in the absence of notice to the Issuers or
the Trustee that such Note has been acquired by a bona fide purchaser, the Issuers shall execute
and upon Authentication Order the Trustee shall authenticate and deliver, in exchange for any such
mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and
principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is about to become
due and payable, the Issuers in their discretion may, instead of issuing a new Note, pay such Note.
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Upon the issuance of any new Note under this Section, the Issuers may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Note issued pursuant to this Section in lieu of any mutilated, destroyed, lost or
stolen Note shall constitute an original additional contractual obligation of the Issuers and any
other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be
at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Notes.
SECTION 311. Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Note (or one or more
predecessor Notes) is registered at the close of business on the Regular Record Date for such
interest at the office or agency of the Issuers maintained for such purpose pursuant to Section
1002; provided, however, that each installment of interest may at the Issuers option be paid by
(i) mailing a check for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 312, to the address of such Person as it appears in the Note Register
or (ii) wire transfer to an account located in the United States maintained by the payee. Whenever
in this Indenture or the Notes a reference is made to interest on the Notes, such reference shall
be deemed to also be a reference to Additional Interest, if any, due on the Notes.
Any interest on any Note which is payable, but is not paid when the same becomes due and
payable and such nonpayment continues for a period of 30 days shall forthwith cease to be payable
to the Holder on the Regular Record Date by virtue of having been such Holder, and such defaulted
interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the
Notes (such defaulted interest and interest thereon herein collectively called Defaulted
Interest) shall be paid by the Issuers, at their election in each case, as provided in clause (a)
or (b) below:
(a) The Issuers may elect to make payment of any Defaulted Interest to the Persons in
whose names the Notes (or their respective predecessor Notes) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Issuers shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Note and the date (not less than 30
days after such notice) of the proposed payment (the Special Interest Payment Date), and
at the same time the Issuers shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
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Thereupon the Trustee shall fix a record date (the Special Record Date) for the
payment of such Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the Special Interest Payment Date and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the
Issuers of such Special Record Date, and in the name and at the expense of the Issuers,
shall cause notice of the proposed payment of such Defaulted Interest and the Special Record
Date and Special Interest Payment Date therefor to be given in the manner provided for in
Section 106, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date and Special Interest
Payment Date therefor having been so given, such Defaulted Interest shall be paid on the
Special Interest Payment Date to the Persons in whose names the Notes (or their respective
predecessor Notes) are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (b).
(b) The Issuers may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, if, after notice given by
the Issuers to the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 312. Persons Deemed Owners.
Prior to the due presentment of a Note for registration of transfer, the Issuers, the Trustee
and any agent of the Issuers or the Trustee may treat the Person in whose name such Note is
registered as the owner of such Note for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Sections 305 and 311) interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the Issuers, the Trustee nor
any agent of the Issuers or the Trustee shall be affected by notice to the contrary.
SECTION 313. Cancellation.
All Notes surrendered for payment, redemption, registration of transfer, exchange or
cancellation shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by it. All Notes surrendered for payment, redemption,
registration of transfer, exchange or cancellation to the Trustee shall promptly be cancelled by
it. If the Issuers shall acquire any of the Notes other than as set forth in the first sentence of
this Section 313, the acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for
cancellation pursuant to this Section 313. No Notes shall be authenticated in lieu of or in
exchange for any Notes cancelled as provided in this Section, except as expressly permitted by this
Indenture.
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All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures.
SECTION 314. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 315. CUSIP Numbers.
The Issuers in issuing Notes may use CUSIP numbers (if then generally in use) in addition to
serial numbers; if so, the Trustee shall use such CUSIP numbers in addition to serial numbers in
notices of redemption and repurchase as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such CUSIP numbers, either as printed
on the Notes or as contained in any notice of a redemption or repurchase and that reliance may be
placed only on the serial or other identification numbers printed on the Notes, and any such
redemption or repurchase shall not be affected by any defect in or omission of such CUSIP numbers.
The Issuers will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon the Issuers Request cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of Notes expressly provided for herein or
pursuant hereto) and the Trustee, at the expense of the Issuers, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(i) either
(A) all Notes theretofore authenticated and delivered (other than (1) Notes which have
been lost, stolen or destroyed and which have been replaced or paid as provided in Section
310 and (2) Notes for whose payment money has theretofore been deposited in trust with the
Trustee or any Paying Agent or segregated and held in trust by the Issuers and thereafter
repaid to the Issuers or discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Notes not theretofore delivered to the Trustee for cancellation
(1) have become due and payable by reason of the making of a notice of
redemption or otherwise; or
(2) will become due and payable at their Stated Maturity within one year; or
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(3) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Issuers,
and the Issuers in the case of (1), (2) or (3) above, have irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust for such purpose an amount in cash
or U.S. Government Obligations sufficient, in the opinion of a nationally recognized firm of
independent public accountants selected by the Issuers, to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the Trustee for cancellation, for
principal of (and premium, if any) and interest to the date of such deposit (in the case of
Notes which have become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(ii) no Default or Event of Default with respect to this Indenture or the Notes shall
have occurred and be continuing on the date of such deposit or shall occur as a result of
such deposit and such deposit will not result in a breach or violation of, or constitute a
default under, any other instrument or agreement to which the Issuers is a party or by which
it is bound;
(iii) the Issuers have paid or caused to be paid all sums payable hereunder by the
Issuers in connection with all the Notes including all fees and expenses of the Trustee;
(iv) the Issuers have delivered irrevocable instructions to the Trustee to apply the
deposited money toward the payment of such Notes at maturity or the Redemption Date, as the
case may be; and
(v) the Issuers have delivered to the Trustee an Officers Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture and the termination of the Issuers obligation
hereunder have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Issuers to the Trustee under Section 607 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (i) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive any such satisfaction and
discharge.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Issuers acting as their own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment
such money has been deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
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If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in
accordance with Section 401 by reason of any legal proceeding or by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, the Issuers obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 401; provided that if the Issuers
have made any payment of principal of, premium, if any, or interest on any Notes because of the
reinstatement of its obligations, the Issuers shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Event of Default, wherever used herein, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) a default in the payment of principal of or premium, if any, on any Note when due
at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration
or otherwise;
(ii) a default in any payment of interest or Additional Interest, if any, on any Note
when due, continued for 30 days;
(iii) the failure by either of the Issuers or any Guarantor to comply for 60 days after
written notice by holders of not less than 25% in principal amount of the Notes then
outstanding with any other covenant, representation, warranty or other agreement contained
in this Indenture or the Notes;
(iv) default in the payment at maturity (continued for the longer of any applicable
grace period or 30 days) of any Indebtedness aggregating $25,000,000 or more of the Issuers
or any Significant Subsidiary or any group of Restricted Subsidiaries of Mediacom Broadband
LLC which, if merged into each other, would constitute a Significant Subsidiary, or the
acceleration of any such Indebtedness which default shall not be cured or waived, or such
acceleration shall not be rescinded or annulled, within 30 days after the written notice by
the holders of not less than 25% in principal amount of the Notes then outstanding;
(v) any final judgment or judgments for the payment of money in excess of $25,000,000
(net of amounts covered by insurance) is rendered against the Issuers or any Significant
Subsidiary or any group of Restricted Subsidiaries of Mediacom Broadband LLC, which, if
merged into each other, would constitute a Significant Subsidiary, and such judgment or
judgments remain undischarged for any period of 60 consecutive days, during which a stay of
enforcement of such judgment shall not be in effect;
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(vi) either of the Issuers or a Significant Subsidiary or any group of Restricted
Subsidiaries of Mediacom Broadband LLC which, if merged into each other, would constitute a
Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an involuntary
case;
(C) consents to the appointment of a custodian of it or for all or
substantially all of its property;
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to insolvency; or
(vii) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(A) is for relief against either of the Issuers or any Significant Subsidiary
or any group of Restricted Subsidiaries of Mediacom Broadband LLC which, if merged
into each other, would constitute a Significant Subsidiary, in an involuntary case;
(B) appoints a custodian of either of the Issuers or any Significant Subsidiary
or any group of Restricted Subsidiaries of Mediacom Broadband LLC which, if merged
into each other, would constitute a Significant Subsidiary, for all or substantially
all of its property; or
(C) orders the winding up or liquidation of either of the Issuers or any
Significant Subsidiary or any group of Restricted Subsidiaries of Mediacom Broadband
LLC which, if merged into each other, would constitute a Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or decree remains
unstayed and in effect for 90 consecutive days; or
(viii) the guarantee of any Guarantor ceases to be in full force and effect (except as
contemplated by the terms of this Indenture) or any Guarantor denies or disaffirms its
obligations under this Indenture or the guarantee of such Guarantor.
The Issuers are required to deliver to the Trustee, within 120 days after the end of
each fiscal year of Mediacom Broadband LLC, in accordance with Section 1016, an Officers
Certificate stating whether or not the signers know of any Event of Default, a description
of the Event of Default and its status and what action the Issuers are taking or propose to
take in respect thereof.
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If a Default occurs and is continuing and is known to the Trustee, the Trustee must
mail to each holder, in accordance with Section 602, notice of the Default within 90 days
after it occurs. Except in the case of a Default in the payment of principal of, premium,
if any, or interest on any Note, the Trustee may withhold notice if and so long as a
committee of its Trust Officers in good faith determines that withholding notice is in the
interests of the Holders of the Notes.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than by reason of an Event of Default specified in clause (vi)
or (vii) of the first paragraph of Section 501) occurs and is continuing, the Trustee or the
Holders of not less than 25% in principal amount of the Notes then outstanding may declare the
principal and accrued and unpaid interest on all the Notes to be due and payable immediately, by a
notice in writing to the Issuers (and to the Trustee if given by Holders). Upon the effectiveness
of such declaration, such principal will be due and payable immediately. Notwithstanding the
foregoing, in the case of an Event of Default specified in clause (vi) or (vii) of the first
paragraph of Section 501 occurs and is continuing, then the principal amount of all the Notes shall
ipso facto become and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
The Holders of a majority in principal amount of the Notes then outstanding by notice to the
Trustee may rescind an acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default have been cured or waived (except
nonpayment of principal, interest and premium, if any, that has become due solely because of
acceleration). The Trustee may rely upon such notice of rescission without any independent
investigation as to the satisfaction of the conditions in the preceding sentence. No such
rescission shall affect any subsequent Default or impair any right consequent thereto.
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SECTION 503. |
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Collection of Indebtedness and Suits for Enforcement by Trustee. |
If an Event of Default specified in clause (i) or (ii) of the first paragraph of Section 501
occurs and is continuing, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute
such proceeding to judgment or final decree and may enforce the same against the Issuers or any
other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Issuers or any other obligor upon the Notes, wherever
situated.
If an Event of Default occurs and is continuing the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders under this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce
any such rights, whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper
remedy, subject however to Section 513. No recovery of any such judgment upon any property of the
Issuers shall affect or impair any rights, powers or remedies of the Trustee or the Holders.
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SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Issuers or any other obligor, upon the Notes or the property of the Issuers or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Notes shall
then be due and payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Issuers for the payment of overdue principal,
premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of principal (and premium, if any),
interest and Additional Interest, if any, owing and unpaid in respect of the Notes, to take
such other actions (including participating as a member, voting or otherwise, of any
official committee of creditors appointed in such matter) and to file such other papers or
documents and take such other actions as the Trustee (including, participation as a member
of any creditors committee) may deem necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;
and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided, however, that the
Trustee may, on behalf of such Holders, vote for the election of a trustee in bankruptcy or other
similar official.
SECTION 505. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes may be prosecuted and
enforced by the Trustee without the possession of any of the Notes or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes in
respect of which such judgment has been recovered.
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SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon presentation of the Notes and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of (and
premium and Additional Interest, if any) and interest on the Notes in respect of which or
for the benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such Notes for principal
(and premium and Additional Interest, if any), and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto, including the
Issuers or any other obligor on the Notes, as their interests may appear or as a court of
competent jurisdiction may direct, provided that all sums due and owing to the Holders and
the Trustee have been paid in full as required by this Indenture.
SECTION 507. Limitation on Suits.
Except to enforce the right to receive payment of principal, premium, if any, or interest when
due, no holder may pursue any remedy with respect to this Indenture or the Notes unless:
(i) such holder has previously given the Trustee notice that an Event of Default is
continuing;
(ii) holders of at least 25% in principal amount of the outstanding Notes have
requested the Trustee to pursue the remedy;
(iii) such holders have offered the Trustee security or indemnity satisfactory to it
against any loss, liability or expense;
(iv) the Trustee has not complied with such request within 60 days after the receipt of
the request and the offer of security or indemnity; and
(v) the holders of a majority in principal amount of the outstanding Notes have not
given the Trustee a direction that, in the opinion of the Trustee, is inconsistent with such
request within such 60-day period.
it being understood and intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture or any Note to affect,
disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture or any Note, except
in the manner herein provided and for the equal and ratable benefit of all the Holders.
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SECTION 508. |
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Unconditional Right of Holders to Receive Principal, Premium and Interest. |
Notwithstanding any other provision in this Indenture the Holder of any Note shall have the
right, which is absolute and unconditional, to receive payment, as provided herein (including, if
applicable, Article Eleven) and in such Note of the principal of (and premium, if any) and (subject
to Section 311) interest and Additional Interest, if any, on such Note on the respective Stated
Maturities expressed in such Note (or, in the case of redemption or repurchase, on the Redemption
Date or applicable repurchase date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Issuers, any other obligor on the Notes, the Trustee and
the Holders shall be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in the last paragraph of Section 310, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
Subject to Section 908, the holders of a majority in principal amount of the outstanding Notes
are given the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on the Trustee,
provided that
(i) such direction shall not be in conflict with any rule of law or this Indenture;
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(ii) the Trustee need not take any action which might be unduly prejudicial to the
rights of any other Holder or would involve the Trustee in personal liability; and
(iii) subject to the provisions of TIA § 315, the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.
Prior to taking any action under this Indenture, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against all losses and expenses caused by
taking or not taking such action.
SECTION 513. Waiver of Past Defaults.
Subject to Sections 508 and 902, the Holders of a majority in aggregate principal amount of
the outstanding Notes (including consents obtained in connection with a tender offer or exchange
offer for the Notes) may on behalf of the Holders of all the Notes, by written notice to the
Trustee, waive any existing Default or Event of Default and its consequences under this Indenture
except a continuing Default or Event of Default in the payment of interest or Additional Interest,
if any, on or the principal of, any such Note held by a non-consenting Holder, or in respect of a
covenant or a provision which cannot be amended or modified without the consent of the Holders of
each outstanding Note affected thereby.
In the event that any Event of Default specified in clause (iv) of the first paragraph of
Section 501 shall have occurred and be continuing, such Event of Default and all consequences
thereof (including without limitation any acceleration or resulting payment default) shall be
annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders
of the Notes, if within 30 days after such Event of Default arose (i) the Indebtedness that is the
basis for such Event of Default has been discharged, or (ii) the holders thereof have rescinded or
waived the acceleration, notice or action (as the case may be) giving rise to such Event of
Default, or (iii) if the Default that is the basis for such Event of Default has been cured.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Note by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder or group of Holders, holding in the aggregate more
than 10% in principal amount of the outstanding Notes, or to any suit instituted by any Holder for
the enforcement of the payment of the principal of or interest or Additional Interest, if
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any, on any Note on or after the respective Stated Maturities expressed in such Note (or, in
the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of a Default or an Event of Default,
(i) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and the Trustee should not be liable except for
the performance of such duties as specifically set forth in this Indenture and no others;
and no implied covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are required to be delivered to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture, but not to verify the contents thereof.
(b) In case a Default or an Event of Default has occurred and is continuing of which a Trust
Officer of the Trustee has actual knowledge or of which written notice of such Default or Event of
Default shall have been given to the Trustee of the Issuers, any other obligor of the Notes or by
any Holder, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that
(i) this paragraph (c) shall not be construed to limit the effect of paragraph (a)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by
a Trust Officer, unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the direction of the Holders of a
majority in aggregate principal amount of the outstanding Notes relating to the time,
method and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture, and
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(iv) the Trustee shall not be required to examine any of the reports, information or
documents filed with it pursuant to Section 1014 to determine whether there has been any
breach of the covenants of the Issuers set forth in Sections 1004 through 1013.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the TIA.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder, the Trustee shall transmit in
the manner and to the extent provided in TIA § 313(c), notice of such Default hereunder actually
known to a Trust Officer of the Trustee, unless such Default shall have been cured or waived;
provided, however, that, except in the case of a Default in the payment of the principal of (or
premium, if any) or interest on any Note, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust committee of directors
and/or Trust Officers of the Trustee in good faith determine that the withholding of such notice is
in the interest of the Holders. Notwithstanding anything to the contrary expressed in this
Indenture, the Trustee shall not be deemed to have knowledge of any Default or Event of Default
hereunder unless and until the Trustee shall have received written notice thereof from the Issuers
at its principal Corporate Trust Office as specified in Section 105, except in the case of an Event
of Default under clause (i) or (ii) of the first paragraph of Section 501 (provided that the
Trustee is the Paying Agent).
SECTION 603. Certain Rights of Trustee.
(a) Subject to the provisions of TIA §§ 315(a) through 315(d):
(i) the Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon (whether in its original or facsimile form) any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or parties and the
Trustee need not investigate any fact or matter stated in the documents;
(ii) any request or direction of the Issuers mentioned herein shall be sufficiently
evidenced by a Issuers Request or Authentication Order and any resolution of the
Executive Committee may be sufficiently evidenced by a Committee Resolution;
(iii) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith or willful misconduct on its part, request
and rely upon an Officers Certificate or an Opinion of Counsel and shall not liable for
any action it takes or omits to take in good faith reliance on such Officers Certificate
or Opinion of Counsel;
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(iv) the Trustee may consult with counsel of its selection and any advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(v) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders pursuant
to this Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee against the costs, expenses, losses and liabilities
which might be incurred by it in compliance with such request or direction;
(vi) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Issuers, personally or by
agent or attorney;
(vii) the Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(viii) the Trustee shall not be liable for any action taken, suffered or omitted by
it in good faith and reasonably believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Indenture; provided, however, that the
Trustees conduct does not constitute willful misconduct or negligence;
(ix) the rights, privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities hereunder, and to each
agent, custodian and other Person employed to act hereunder; and
(x) the Trustee may request that the Issuers deliver an Officers Certificate
setting forth the names of individuals and/or titles of officers authorized at such time
to take specified actions pursuant to this Indenture, which Officers Certificate may be
signed by any person authorized to sign an Officers Certificate, including any person
specified as so authorized in any such certificate previously delivered and not
superseded.
(b) The Trustee shall not be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured to it.
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SECTION 604. Trustee Not Responsible for Recitals or Issuance of
Notes.
The recitals contained herein and in the Notes, except for the Trustees certificates of
authentication, shall be taken as the statements of the Issuers, and the Trustee assumes no
responsibility for their correctness and it shall not be responsible for Mediacom Broadband LLCs
use of the proceeds from the Notes. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Notes and perform its
obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1
supplied to the Issuers are true and accurate, subject to the qualifications set forth therein.
The Trustee shall not be accountable for the use or application by the Issuers of the proceeds of
the Notes.
SECTION 605. May Hold Notes.
The Trustee, any Paying Agent, any Note Registrar, any authenticating agent or any other agent
of the Issuers or of the Trustee, in its individual or any other capacity, may become the owner or
pledgee of Notes and, subject to TIA §§ 310(b) and 311, may otherwise deal with the Issuers with
the same rights it would have if it were not Trustee, Paying Agent, Note Registrar, authenticating
agent or such other agent.
SECTION 606. Money Held in Trust.
All moneys received by the Trustee shall, until used or applied as herein provided, be held in
trust hereunder for the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed in writing with the
Issuers.
SECTION 607. Compensation and Reimbursement.
The Issuers agree:
(i) to pay to the Trustee from time to time such compensation as shall be agreed to
in writing between the Issuers and the Trustee for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents, consultants and counsel
and costs and expenses of collection), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(iii) to indemnify each of the Trustee or any predecessor Trustee (and their
respective directors, officers, stockholders, employees and agents) for, and to hold them
harmless against, any and all loss, damage, claim, liability or expense, including taxes
(other than taxes based on the income of the Trustee) incurred without negligence,
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willful misconduct or bad faith on their part, arising out of or in connection with
the acceptance or administration of this trust, including the costs and expenses of
defending themselves against any claim (whether asserted by the Issuers, a Holder or any
other Person) or liability in connection with the exercise or performance of any of the
Trustees powers or duties hereunder.
The obligations of the Issuers under this Section to compensate the Trustee, to pay or
reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless
the Trustee shall constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. As security for the performance of such obligations of the
Issuers, the Trustee shall have a lien prior to the Holders of the Notes upon all property and
funds held or collected by the Trustee as such, except funds held in trust for the payment of
principal of (and premium, if any) or interest on particular Notes.
When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in clause (vi) or (vii) of Section 501, the expenses (including the reasonable charges
and expenses of its counsel) of and the compensation for such services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy, insolvency or other
similar law.
The provisions of this Section shall survive the termination of this Indenture.
SECTION 608. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall be eligible to act as Trustee
under TIA § 310(a)(1), and which may have an office in The City of New York and shall have
individually, or on a consolidated basis with a bank holding company of which it is a direct or
indirect wholly owned subsidiary, a combined capital and surplus of at least $50,000,000. If the
Trustee does not have an office in The City of New York, the Trustee may appoint an agent in The
City of New York reasonably acceptable to the Issuers to conduct any activities which the Trustee
may be required under this Indenture to conduct in The City of New York. If such corporation or
its parent holding company publishes reports of condition at least annually, pursuant to law or to
the requirements of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section 608, the combined capital and surplus of such
corporation or its parent shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 608, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
SECTION 609. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of this Section.
(b) The Trustee may resign at any time by giving written notice thereof to the Issuers. Upon
receiving such notice of resignation, the Issuers shall promptly appoint a successor trustee by
written instrument executed by authority of the Executive Committee, a copy of
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which shall be delivered to the resigning Trustee and a copy to the successor trustee. If an
instrument of acceptance required by this Section shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning Trustee may petition,
at the expense of the Issuers, any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of not less than a majority
in principal amount of the outstanding Notes, delivered to the Trustee and to the Issuers. The
Trustee so removed may, at the expense of the Issuers, petition any court of competent jurisdiction
for the appointment of a successor Trustee if no successor Trustee is appointed within 30 days of
such removal.
(d) If at any time:
(i) the Trustee shall fail to comply with the provisions of TIA § 310(b) after
written request therefor by the Issuers or by any Holder who has been a bona fide Holder
of a Note for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 608 and shall fail to
resign after written request therefor by the Issuers or by any Holder who has been a bona
fide Holder of a Note for at least six months, or
(iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt
or insolvent or a custodian of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Issuers, by a Committee Resolution, may remove the Trustee, or (B)
subject to TIA § 315(e), any Holder who has been a bona fide Holder of a Note for at least six
months may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Issuers, by a Committee Resolution, shall
promptly appoint a successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the outstanding Notes delivered to the Issuers and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee and supersede the successor Trustee appointed by the
Issuers. If no successor Trustee shall have been so appointed by the Issuers or the Holders and
accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder
of a Note for at least six months may, at the expense of the Issuers on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Issuers shall give notice of each resignation and each removal of the Trustee and each
appointment of a successor Trustee to the Holders of Notes in the manner
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provided for in Section 106. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
SECTION 610. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the
Issuers and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request of the Issuers or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder. Notwithstanding the replacement of the Trustee pursuant to
this Section 610, the Issuers obligations under Section 607 shall continue for the benefit of the
retiring Trustee with regard to expenses and liabilities incurred by it and compensation earned by
it prior to such replacement or otherwise under this Indenture. Upon request of any such successor
Trustee, the Issuers shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.
SECTION 611. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if such successor
Trustee had itself authenticated such Notes. In case at that time any of the Notes shall not have
been authenticated, any successor Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates
shall have the full force and effect which this Indenture provides for the certificate of
authentication of the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate Notes in the name of
any predecessor Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 612. Trustees Application for Instructions from the Issuers.
Any application by the Trustee for written instructions from the Issuers may, at the option of
the Trustee, set forth in writing any action proposed to be taken or omitted by the
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Trustee under this Indenture and the date on and/or after which such action shall be taken or
such omission shall be effective. Subject to Section 610, the Trustee shall not be liable for any
action taken by, or omission of, the Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Issuers actually receives such application,
unless any such officer shall have consented in writing to any earlier date) unless prior to taking
any such action (or the effective date in the case of an omission), the Trustee shall have received
written instructions in response to such application specifying the action to be taken or omitted.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY
TRUSTEE AND THE ISSUERS
SECTION 701. The Issuers to Furnish Trustee Names and Addresses.
The Issuers will furnish or cause to be furnished to the Trustee
(a) semiannually, not more than 10 days after each Regular Record Date, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the Holders as of
such Regular Record Date; and
(b) at such other times as the Trustee may reasonably request in writing, within 30
days after receipt by the Issuers of any such request, a list of similar form and content to
that in Subsection (a) hereof as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee shall be the Note Registrar, no such list
need be furnished.
SECTION 702. Disclosure of Names and Addresses of Holders.
Every Holder of Notes, by receiving and holding the same, agrees with the Issuers and the
Trustee that none of the Issuers or the Trustee or any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names and addresses of
the Holders in accordance with TIA § 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA § 312(b).
SECTION 703. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May after the first
issuance of Notes, the Trustee shall transmit to the Holders, in the manner and to the extent
provided in TIA § 313(c), a brief report dated as of such May 15 if required by TIA § 313(a).
The Trustee also shall comply with TIA § 313(b). A copy of each report at the time of its
mailing to Holders shall be filed by the Trustee with the SEC and each stock exchange
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(if any) on which the Notes are listed. The Issuers agrees to notify promptly the Trustee
whenever the Notes become listed on any stock exchange and of any delisting thereof.
ARTICLE EIGHT
MERGER, CONSOLIDATION, OR SALE OF ASSETS
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SECTION 801. |
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The Issuers and Guarantors May Consolidate Etc.
Only on Certain Terms. |
Neither of the Issuers shall in a single transaction or series of related transactions
consolidate with or merge with or into, or convey all or substantially all its assets to, another
Person, unless:
(i) either (A) such Issuer shall be the continuing Person, or (B) the Person formed by
or surviving any such consolidation or merger (if other than such Issuer), or to which any
such transfer shall have been made (the Successor Company), shall be a corporation,
limited liability company or limited partnership organized and existing under the laws of
the United States, any State thereof or the District of Columbia (provided that for so long
as Mediacom Broadband LLC or any successor Person is a limited liability company or
partnership there must be a co-issuer of the Notes that is a Wholly Owned Restricted
Subsidiary of Mediacom Broadband LLC and that is a corporation organized and existing under
the laws of the United States, any State thereof or the District of Columbia);
(ii) the Successor Company shall expressly assume, by supplemental indenture, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of
such Issuer under the Notes and this Indenture;
(iii) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing;
(iv) immediately after giving effect to such transaction, the surviving Person would be
able to Incur $1.00 of additional Indebtedness under the Debt to Operating Cash Flow Ratio
contained in the first paragraph of Section 1008; and
(v) Mediacom Broadband LLC shall have delivered to the Trustee prior to the proposed
transaction an Officers Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture comply with this
Indenture, both in the form required by this Indenture; provided that in giving such opinion
such counsel may rely on such Officers Certificate as to any matters of fact (including
without limitation as to compliance with the foregoing clauses (iii) and (iv)).
No Guarantor shall in a single transaction or series of related transactions consolidate or
merge with or into, or transfer all or substantially all of its assets to, another Person unless
either the guarantee of such Guarantor is being released in accordance with Section 1017 or:
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(i) either (A) such Guarantor shall be the continuing Person, or (B) the Person formed
by or surviving any such consolidation or merger (if other than such Guarantor) or to which
any such transfer shall have been made (a Successor Guarantor), is a corporation, limited
liability company or limited partnership organized and existing under the laws of the United
States, any State thereof or the District of Columbia;
(ii) the Successor Guarantor shall expressly assume by supplemental indenture executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of
such Guarantor under its guarantee of the Notes and this Indenture;
(iii) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; and
(iv) Mediacom Broadband LLC shall have delivered to the Trustee prior to the proposed
transaction an Officers Certificate, and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture comply with this
Indenture, both in the form required by this Indenture; provided that in giving such opinion
such counsel may rely on such Officers Certificate as to any matters of fact (including
without limitation as to compliance with the foregoing clause (iii)).
SECTION 802. Successor Substituted.
Upon any consolidation of the Issuers or the Guarantors with or merger of the Issuers or the
Guarantors with or into any other Person or any conveyance, transfer or other disposition of all or
substantially all of the assets of the Issuers or the Guarantors to any Person in accordance with
Section 801, the Successor Company or Successor Guarantor will succeed to, and be substituted for,
and may exercise every right and power of, the Issuers or the Guarantors hereunder and thereafter
the predecessor shall be released from all obligations and covenants hereunder, or under the
guarantee of the Notes, as applicable, but, in the case of conveyance or transfer of all or
substantially all its assets, the predecessor, as applicable, will not be released from the
obligation to pay the principal of and interest on the Notes.
ARTICLE NINE
SUPPLEMENTS, AMENDMENTS AND MODIFICATIONS TO INDENTURE
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Issuers, the Guarantors and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(i) to cure any ambiguity, omission, defect or inconsistency; or
(ii) to provide for uncertificated Notes in addition to or in place of certificated
Notes (provided that the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code, or in a manner such that the uncertificated Notes are described
in Section 163(f)(2)(B) of the Code); or
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(iii) to add Restricted Subsidiary Guarantees with respect to the Notes; or
(iv) to release Guarantors pursuant to Section 1017; or
(v) to provide for the assumption by a successor corporation, limited liability company
or limited partnership of the obligations of the Issuers or any Guarantor hereunder; or
(vi) to secure the Notes; or
(vii) to add to the covenants of the Issuers for the benefit of the Holders or to
surrender any right or power conferred upon the Issuers; or
(viii) to make any other change that does not adversely affect the rights of any
Holder; or
(ix) to comply with any requirement of the SEC in connection with the qualification of
this Indenture under the Trust Indenture Act; or
(x) to surrender any right or power conferred upon the Issuers under this Indenture.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of at least a majority in aggregate principal amount of the
then outstanding Notes (including consents obtained in connection with a tender offer or exchange
offer for the Notes), the Issuers, the Guarantors and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each outstanding Note affected thereby (with respect to
any Notes held by a nonconsenting Holder of the Notes):
(i) change or extend the fixed maturity of any Notes, reduce the rate or extend the
time of payment of interest or Additional Interest thereon, reduce the principal amount
thereof or premium, if any, thereon or change the currency in which the Notes are payable;
or
(ii) reduce the premium payable upon any redemption of Notes in accordance with the
optional redemption provisions of the Notes and Section 1101 or change the time before which
the Notes may be redeemed; or
(iii) waive a default in the payment of principal or interest or Additional Interest on
the Notes (except that holders of a majority in aggregate principal amount of the Notes at
the time outstanding may (a) rescind an acceleration of the Notes that resulted from a
non-payment default and (b) waive the payment default that resulted from such acceleration)
or alter the rights of Holders of the Notes to waive defaults; or
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(iv) adversely affect the ranking of the Notes or the guarantees, if any; or
(v) reduce the aforesaid percentage of Notes, the consent of the holders of which is
required for any such modification; or
(vi) modify the Restricted Subsidiary Guarantees or Article Thirteen (except as
contemplated by the terms of this Indenture) in any manner adverse to the Holders.
Any existing Event of Default, other than a default in the payment of principal or interest or
Additional Interest on the Notes, or compliance with any provision of the Notes or this Indenture,
other than any provision related to the payment of principal or interest or Additional Interest on
the Notes, may be waived with the consent of holders of at least a majority in aggregate principal
amount of the Notes at the time outstanding. The consent of the Holders is not necessary under
this Indenture to approve the particular form of any proposed amendment or supplemental indenture.
It is sufficient if such consent approves the substance of the proposed amendment or supplemental
indenture.
SECTION 903. Execution of Supplemental Indentures.
The Trustee may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustees own rights, duties or immunities, as determined by the Trustee in its
sole discretion under this Indenture or otherwise. In signing or refusing to sign any supplemental
indenture permitted by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon,
an Officers Certificate and an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby (except as provided in Section 902).
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental indenture pursuant
to this Article may, and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the Issuers or the
Trustee shall so determine, new Notes so modified as to conform to any such supplemental indenture
may be prepared and executed by the Issuers, and the Issuers shall issue and the Trustee shall
authenticate a new Note that reflects the changed terms, the cost and expense of which will be
borne by the Issuers in exchange for outstanding Notes.
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SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Issuers and the Trustee of any supplemental indenture
pursuant to the provisions of Section 902, the Issuers shall give notice thereof to the Holders of
each outstanding Note affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture. The failure to give such notice to all the
Holders, or any defect therein, will not impair or affect the validity of the supplemental
indenture.
SECTION 908. Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver, consent or notice, Notes owned by any Issuer or any of its Affiliates shall
be considered as though they are not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver or consent, only
Notes which a Trust Officer of the Trustee actually knows are so owned shall be so considered. Each
Issuer shall notify the Trustee, in writing, when it or any of its Affiliates repurchases or
otherwise acquires Notes and of the aggregate principal amount of such Notes so repurchased or
otherwise acquired.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest.
The Issuers, as joint and several obligors, covenant and agree for the benefit of the Holders
that they will duly and punctually pay the principal of (and premium, if any) and interest and
Additional Interest, if any, on the Notes in accordance with the terms of the Notes and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Issuers will maintain in the Borough of Manhattan, The City of New York, an office or
agency where the Notes may be presented or surrendered for payment, where, if applicable, the Notes
may be surrendered for registration of transfer or exchange and where notices and demands to or
upon the Issuers in respect of the Notes and this Indenture may be served. The principal corporate
trust office of the Trustee at 767 Third Avenue, 31st Floor, New York, New York 10017,
shall be such office or agency of the Issuers, unless the Issuers shall designate and maintain some
other office or agency for one or more of such purposes. The Issuers will give prompt written
notice to the Trustee of any change in the location of any such office or agency. If at any time
the Issuers shall fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office, and the Issuers hereby appoint the Trustee as their agent
to receive all such presentations, surrenders, notices and demands.
The Issuers may also from time to time designate one or more other offices or agencies (in or
outside of The City of New York) where the Notes may be presented or
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surrendered for any or all such purposes and may from time to time rescind any such designation;
provided, however, that no such designation or rescission shall in any manner relieve any Issuer of
its obligation to maintain an office or agency in The City of New York for such purposes. The
Issuers will give prompt written notice to the Trustee of any such designation or rescission and
any change in the location of any such other office or agency.
SECTION 1003. Money for Note Payments to Be Held in Trust.
If the Issuers shall at any time act as their own Paying Agent, they will, on or before each
due date of the principal of (or premium, if any) or interest on any of the Notes, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal
of (or premium, if any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee of their action or
failure to so act.
Whenever the Issuers shall have one or more Paying Agents for the Notes, they will, on or
before each due date of the principal of (or premium, if any) or interest on any Notes, deposit
with a Paying Agent a sum in same day funds (or New York Clearing House funds if such deposit is
made prior to the date on which such deposit is required to be made) that shall be available to the
Trustee by 10:00 a.m. Eastern Standard Time on such due date sufficient to pay the principal (and
premium, if any) or interest (and Additional Interest, if any) so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Issuers will promptly notify the Trustee of such
action or any failure to so act.
The Issuers will cause each Paying Agent (other than the Trustee) to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of the principal of (and premium, if any)
or interest (and Additional Interest, if any) on Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(ii) give the Trustee notice of any default by the Issuers (or any other obligor upon
the Notes) in the making of any payment of principal (and premium, if any) or interest (and
Additional Interest, if any); and
(iii) at any time during the continuance of any such default, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Issuers may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Authentication Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Issuers or such Paying Agent, such sums to be
held by the Trustee upon the same trusts as those upon which such sums were held by the Issuers or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such sums.
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Any money deposited with the Trustee or any Paying Agent, or by the Issuers, in trust for the
payment of the principal of (or premium, if any) or interest (or Additional Interest, if any) on
any Note and remaining unclaimed for two years after such principal, premium, interest or
Additional Interest has become due and payable shall be paid to the Issuers on the Issuers
Request, or (if then held by the Issuers) shall be discharged from such trust; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the Issuers for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Issuers as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such repayment to the Issuers,
may at the expense of the Issuers cause to be published once, in a leading daily newspaper (if
practicable, The Wall Street Journal (Eastern Edition)) printed in the English language and of
general circulation in New York City, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Issuers.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Issuers will do or cause to be done all things necessary to
preserve and keep in full force and effect their limited liability company or corporate existence,
as the case may be, and that of each Restricted Subsidiary and the limited liability company or
corporate rights, as the case may be (charter and statutory), licenses and franchises of the
Issuers and each Restricted Subsidiary; provided, however, that the Issuers shall not be required
to preserve any such existence (except the Issuers) right, license or franchise if the Executive
Committee of Mediacom Broadband LLC shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Issuers and each of Mediacom Broadband LLCs
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not, and will not be,
disadvantageous in any material respect to the Holders.
SECTION 1005. Payment of Taxes and Other Claims.
The Issuers will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all material taxes, assessments and governmental charges levied or imposed
upon the Issuers or any Subsidiary or upon the income, profits or property of the Issuers or any
Subsidiary and (ii) all lawful claims for labor, materials and supplies, which, if unpaid, might by
law become a material liability or lien upon the property of the Issuers or any Restricted
Subsidiary; provided, however, that the Issuers shall not be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate proceedings and for which appropriate
reserves, if necessary (in the good faith judgment of management of the Issuers) are being
maintained in accordance with GAAP.
SECTION 1006. Compliance with Laws.
The Issuers shall comply, and shall cause each of their respective Restricted Subsidiaries to
comply, with all applicable statutes, rules, regulations, orders and restrictions of the United
States of America, all states and municipalities thereof, and of any governmental regulatory
authority, in respect of the conduct of their respective businesses and the ownership of their
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respective properties, except for such noncompliances as would not in the aggregate have a
material adverse effect on the financial condition or results of operations of the Issuers and
their respective Restricted Subsidiaries, taken as a whole.
SECTION 1007. Limitation on Restricted Payments.
(a) So long as any of the Notes remain outstanding, Mediacom Broadband LLC shall not, and
shall not permit any Restricted Subsidiary to, make any Restricted Payment if: (i) at the time of
such proposed Restricted Payment, a Default or Event of Default shall have occurred and be
continuing or shall occur as a consequence of such Restricted Payment; (ii) immediately after
giving effect to such proposed Restricted Payment, Mediacom Broadband LLC would not be able to
Incur $1.00 of additional Indebtedness under the Debt to Operating Cash Flow Ratio of the first
paragraph of Section 1008, or (iii) immediately after giving effect to any such Restricted Payment,
the aggregate of all Restricted Payments which shall have been made on or after the Existing Notes
Issue Date (the amount of any Restricted Payment, if other than cash, to be based upon the fair
market value thereof on the date of such Restricted Payment (without giving effect to subsequent
changes in value) as determined in good faith by the Executive Committee, whose determination shall
be conclusive and evidenced by a Committee Resolution) would exceed an amount equal to the
difference between (a) the Cumulative Credit and (b) 1.2 times Cumulative Interest Expense.
(b) The provisions of paragraph (a) of this Section 1007 shall not prevent any of the
following, each of which shall be given independent effect: (1) the retirement of any of Mediacom
Broadband LLCs Equity Interests in exchange for, or out of the proceeds of, the substantially
concurrent sale (other than to a Subsidiary of Mediacom Broadband LLC or an employee stock
ownership plan or to a trust established by Mediacom Broadband LLC or any Subsidiary of Mediacom
Broadband LLC for the benefit of its employees) of Equity Interests (other than Equity Interests
issued in connection with the AT&T Acquisitions Contributions) in Mediacom Broadband LLC; (2) the
payment of any dividend or distribution on, or redemption of Equity Interests within 60 days after
the date of declaration of such dividend or distribution or the giving of formal notice of such
redemption, if at the date of such declaration or giving of such formal notice such payment or
redemption would comply with the provisions of this Indenture; (3) Investments constituting
Restricted Payments made as a result of the receipt of non-cash consideration from any Asset Sale
made pursuant to and in compliance with the provisions described under Section 1013; (4) payments
of compensation to officers, directors and employees of Mediacom Broadband LLC or any Restricted
Subsidiary so long as the Executive Committee or the manager of Mediacom Broadband LLC in good
faith shall have approved the terms thereof; (5)(a) the payment of dividends on any Equity
Interests in Mediacom Broadband LLC following the issuance thereof in an amount per annum of up to
6% of the net proceeds received by Mediacom Broadband LLC from an Equity Offering of such Equity
Interests and (b) the payment of cash dividends on the amount of the Mediacom Broadband Preferred
Membership Interest at a rate not to exceed 6% per annum; (6)(a) the payment of management fees,
and any related reimbursement of expenses, to Mediacom Communications or any Affiliate thereof
pursuant to the Management Agreements and (b) the reimbursement of expenses and the making of
payments in respect of indemnification obligations to Mediacom Communications or any Affiliate
thereof pursuant to the Operating Agreement; (7) the payment of amounts in connection with any
merger, consolidation, or sale of assets effected in accordance with
Article Eight, provided that
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no such payment may be made pursuant to this clause (7) unless, after giving effect to such
transaction (and the Incurrence of any Indebtedness in connection therewith and the use of the
proceeds thereof), Mediacom Broadband LLC would be able to Incur $1.00 of additional Indebtedness
under the Debt to Operating Cash Flow Ratio in the first paragraph of Section 1008 such that after
incurring that $1.00 of additional Indebtedness, the Debt to Operating Cash Flow Ratio would be
less than or equal to 6.5 to 1.0; (8) the redemption, repurchase, retirement, defeasance or other
acquisition of any Subordinated Obligations in exchange for, or out of net cash proceeds of the
substantially concurrent sale (other than to a Subsidiary of Mediacom Broadband LLC or an employee
stock ownership plan or to a trust established by Mediacom Broadband LLC or any Subsidiary of
Mediacom Broadband LLC (for the benefit of its employees) of Equity Interests (other than Equity
Interests issued in connection with the AT&T Acquisitions Contributions) in Mediacom Broadband LLC
or Subordinated Obligations of Mediacom Broadband LLC; (9) the payment of any dividend or
distribution on or with respect to any Equity Interests in any Restricted Subsidiary to the holders
of its Equity Interests on a pro rata basis; (10) the making and consummation of (A) an Excess
Proceeds Offer in accordance with the provisions of this Indenture with any Excess Proceeds or (B)
a Change of Control Offer with respect to the Notes in accordance with the provisions of this
Indenture or (C) any offer similar to the offer described in clause (A) or (B) set forth in any
other indenture governing debt securities; (11) during the period Mediacom Broadband LLC is treated
as a partnership for U.S. federal income tax purposes and after such period to the extent relating
to the liability for such period, the payment of distributions in respect of members or partners
income tax liability with respect to Mediacom Broadband LLC in an amount not to exceed the
aggregate amount of tax distributions, if any, permitted to be made by Mediacom Broadband LLC to
its members under the Operating Agreement (such amount not to include amounts in respect of taxes
resulting from Mediacom Broadband LLCs reorganization as or change in the status to a
corporation); (12) the payment by any Restricted Subsidiary to Mediacom Broadband LLC or another
Restricted Subsidiary of principal and interest due in respect of intercompany Indebtedness and
dividends and other distributions in respect of Preferred Equity Interests in such Restricted
Subsidiary; (13) the distribution of any Investment originally made by Mediacom Broadband LLC or
any Restricted Subsidiary pursuant to clause (a) of this Section 1007 to holders of Equity
Interests in Mediacom Broadband LLC or such Restricted Subsidiary, as the case may be; (14)
payments to Mediacom Communications to effect the redemption, repurchase, retirement or defeasance
of up to $172.5 million in the aggregate of the 5.25% convertible senior notes due July 2006 of
Mediacom Communications, in any case at a price not to exceed 100% of the outstanding principal
amount thereof plus accrued and unpaid interest thereon through the date of such redemption,
repurchase, retirement or defeasance; and (15) additional Restricted Payments in an aggregate
amount not to exceed $25,000,000; provided, however, that in the case of clauses (2), (5), (7),
(9), (10), (13), (14) and (15) of this paragraph, no Default or Event of Default shall have
occurred and be continuing at the time of such Restricted Payment or as a result thereof. In
calculating the aggregate amount of Restricted Payments made on or after the Existing Notes Issue
Date for purposes of clause (iii) of paragraph (a) of this Section 1007, (x) Restricted Payments
made pursuant to clauses (1),(2) and (8) of this paragraph and any Restricted Payment deemed to
have been made pursuant to Section 1009 shall be included in such calculation and (y) Restricted
Payments made pursuant to any of clauses (3) through (7) or (9) through (15) of this paragraph
shall be excluded from such calculation.
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(c) Not later than the date of making any Restricted Payment, Mediacom Broadband LLC shall
deliver to the Trustee an Officers Certificate stating that such Restricted Payment is permitted
and setting forth the basis upon which the calculations required by this Section 1007 were
computed, which calculations may be based upon Mediacom Broadband LLCs latest available financial
statements. The Trustee shall have no duty to recompute or recalculate or verify the accuracy of
the information set forth in such Officers Certificate.
SECTION 1008. Limitation on Indebtedness.
Mediacom Broadband LLC shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, Incur any Indebtedness (including Acquired Indebtedness) or issue any Disqualified
Equity Interests except for Permitted Indebtedness; provided, however, that Mediacom Broadband LLC
or any Restricted Subsidiary may Incur Indebtedness or issue Disqualified Equity Interests if, at
the time of and immediately after giving pro forma effect to such Incurrence of Indebtedness or
issuance of Disqualified Equity Interests and the application of the proceeds therefrom, the Debt
to Operating Cash Flow Ratio would be less than or equal to 8.5 to 1.0.
The limitations contained in the foregoing paragraph shall not apply to the Incurrence of any
of the following (collectively, Permitted Indebtedness), each of which shall be given independent
effect:
(a) Indebtedness under the Initial Notes issued on the date of this Indenture, the
Exchange Notes issued in exchange for such Initial Notes, the Private Exchange Notes issued
in exchange for such Initial Notes and this Indenture;
(b) Indebtedness of and Disqualified Equity Interests in Mediacom Broadband LLC and the
Restricted Subsidiaries outstanding on August 30, 2005 other than Indebtedness described in
clause (a), (c), (d) or (f) of this paragraph;
(c) (i) Indebtedness of the Restricted Subsidiaries under the Subsidiary Credit
Facility (including, without limitation, any refinancing thereof), and (ii) Indebtedness of
the Restricted Subsidiaries (including, without limitation, any refinancing thereof) if
(solely for purposes of this clause (ii)), at the time of and immediately after giving pro
forma effect to the Incurrence of such Indebtedness and the application of the proceeds
therefrom, the Debt to Operating Cash Flow Ratio would be less than or equal to 6.5 to 1.0;
provided, however, that for purposes of the calculation of such Ratio, the term
Consolidated Total Indebtedness shall refer only to the Consolidated Total Indebtedness of
the Restricted Subsidiaries (including, without limitation, Indebtedness Incurred under the
Subsidiary Credit Facility and the Future Subsidiary Credit Facilities but not including
Indebtedness of any Restricted Subsidiary payable solely to Mediacom Broadband LLC that
qualifies as Affiliate Subordinated Indebtedness (as defined in the Subsidiary Credit
Facility in effect as of August 30, 2005)) outstanding as of the Determination Date (as
defined in the definition of term Debt to Operating Cash Flow Ratio in Section 101) and
the term Operating Cash Flow shall refer only to the Subsidiary Operating Cash Flow of the
Restricted Subsidiaries for the related Measurement Period (as defined in the definition of
term Debt to Operating Cash Flow Ratio in Section 101);
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(d) Indebtedness of and Disqualified Equity Interests in (x) any Restricted Subsidiary
owed to or issued to and held by Mediacom Broadband LLC or any other Restricted Subsidiary
and (y) Mediacom Broadband LLC owed to and held by any Restricted Subsidiary which is
unsecured and subordinated in right of payment to the payment and performance of the
Issuers obligations under this Indenture and the Notes; provided, however, that an
Incurrence of Indebtedness and Disqualified Equity Interests that is not permitted by this
clause (d) shall be deemed to have occurred upon (i) any sale or other disposition of any
Indebtedness or Disqualified Equity Interests in Mediacom Broadband LLC or a Restricted
Subsidiary referred to in this clause (d) to any Person (other than Mediacom Broadband LLC
or a Restricted Subsidiary), (ii) any sale or other disposition of Equity Interests in a
Restricted Subsidiary which holds Indebtedness or Disqualified Equity Interests in Mediacom
Broadband LLC or another Restricted Subsidiary such that such Restricted Subsidiary ceases
to be a Restricted Subsidiary or (iii) any designation of a Restricted Subsidiary which
holds Indebtedness or Disqualified Equity Interests in Mediacom Broadband LLC as an
Unrestricted Subsidiary;
(e) guarantees by any Restricted Subsidiary of Indebtedness of Mediacom Broadband LLC
or any other Restricted Subsidiary Incurred in accordance with the provisions of this
Indenture;
(f) Hedging Agreements of Mediacom Broadband LLC or any Restricted Subsidiary relating
to any Indebtedness of Mediacom Broadband LLC or such Restricted Subsidiary, as the case may
be, Incurred in accordance with the provisions of this Indenture; provided that such Hedging
Agreements have been entered into for bona fide business purposes and not for speculation;
(g) Indebtedness or Disqualified Equity Interests in Mediacom Broadband LLC or any
Restricted Subsidiary to the extent representing a replacement, renewal, refinancing or
extension (collectively, a refinancing) of outstanding Indebtedness or Disqualified Equity
Interests in Mediacom Broadband LLC or any such Restricted Subsidiary, as the case may be,
Incurred in compliance with the Debt to Operating Cash Flow Ratio of the first paragraph of
this covenant or clause (a) or (b) of this paragraph of this covenant; provided, however,
that (i) Indebtedness or Disqualified Equity Interests in Mediacom Broadband LLC may not be
refinanced under this clause (g) with Indebtedness or Disqualified Equity Interests in any
Restricted Subsidiary, (ii) any such refinancing shall not exceed the sum of the principal
amount or liquidation preference or redemption payment value (or, if such Indebtedness or
Disqualified Equity Interests provides for a lesser amount to be due and payable upon a
declaration of acceleration thereof at the time of such refinancing, an amount no greater
than such lesser amount) of the Indebtedness or Disqualified Equity Interests being
refinanced plus the amount of accrued interest or dividends thereon and the amount of any
reasonably determined prepayment premium necessary to accomplish such refinancing and such
reasonable fees and expenses incurred in connection therewith, (iii) Indebtedness
representing a refinancing of Indebtedness of Mediacom Broadband LLC shall have a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of
the Indebtedness being refinanced, (iv) Subordinated Obligations of Mediacom Broadband LLC
or Disqualified Equity Interests in Mediacom Broadband LLC may only be refinanced with
Subordinated Obliga-
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tions of Mediacom Broadband LLC or Disqualified Equity Interests in Mediacom Broadband
LLC, and (v) Other Pari Passu Debt which is unsecured may only be refinanced with unsecured
Indebtedness, which is either Other Pari Passu Debt or Subordinated Obligations, or with
Disqualified Equity Interests;
(h) Indebtedness of Mediacom Broadband LLC or a Restricted Subsidiary Incurred as a
result of the pledge by Mediacom Broadband LLC or such Restricted Subsidiary of intercompany
Indebtedness or Equity Interests in another Restricted Subsidiary or Equity Interests in an
Unrestricted Subsidiary in the circumstance where recourse to Mediacom Broadband LLC or such
Restricted Subsidiary is limited to the value of the intercompany Indebtedness or the Equity
Interests so pledged;
(i) Indebtedness of Mediacom Broadband LLC or a Restricted Subsidiary represented by
Capitalized Lease Obligations, mortgage financings, purchase money obligations or letters of
credit, in each case Incurred for the purpose of financing all or any part of the purchase
price or cost of construction or improvement of property, plant or equipment used in the
business of Mediacom Broadband LLC or such Restricted Subsidiary or a Related Business in an
aggregate principal amount not to exceed $25,000,000 at any time outstanding;
(j) Indebtedness of Mediacom Broadband LLC or a Restricted Subsidiary in an aggregate
amount not to exceed two times the sum of (i) the aggregate Net Cash Proceeds to Mediacom
Broadband LLC from (x) the issuance (other than to a Subsidiary of Mediacom Broadband LLC or
an employee stock ownership plan or a trust established by Mediacom Broadband LLC or any
Subsidiary of Mediacom Broadband LLC (for the benefit of its employees)) of any class of
Equity Interests in Mediacom Broadband LLC (other than Disqualified Equity Interests and
other than Equity Interests issued in connection with the AT&T Acquisitions Contributions)
on or after the Existing Notes Issue Date or (y) contributions (other than the AT&T
Acquisitions Contributions) to the equity capital of Mediacom Broadband LLC on or after the
Existing Notes Issue Date which do not themselves constitute Disqualified Equity Interests
and (ii) the fair market value, as determined by an independent nationally recognized
accounting, appraisal or investment banking firm experienced in similar types of
transactions, of any assets (other than cash or Cash Equivalents) that are used or useful in
a Related Business or Equity Interests in a Person engaged in a Related Business that is or
becomes a Restricted Subsidiary of Mediacom Broadband LLC, in each case received by Mediacom
Broadband LLC after the Existing Notes Issue Date in exchange for the issuance (other than
to a Subsidiary of Mediacom Broadband LLC) of its Equity Interests (other than Disqualified
Equity Interests and other than Equity Interests issued in connection with the AT&T
Acquisitions Contributions); provided that (A) the amount of such Net Cash Proceeds with
respect to which Indebtedness is incurred pursuant to this clause (j) shall not be deemed
Net Cash Proceeds from the issue or sale of Equity Interests for purposes of clause (ii) of
the definition of Cumulative Credit in Section 101 and (B) the issuance of Equity
Interests with respect to which Indebtedness is incurred pursuant to this clause (j) shall
not also be used to effect a Restricted Payment pursuant to clauses (1) or (8) of paragraph
(b) of Section 1007, and
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(k) In addition to any Indebtedness described in clauses (a) through (j) above,
Indebtedness of Mediacom Broadband LLC or any of the Restricted Subsidiaries so long as the
aggregate principal amount of all such Indebtedness incurred pursuant to this clause (k)
does not exceed $50,000,000 at any one time outstanding.
For purposes of determining compliance with this Section 1008, in the event that an item of
Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness
described in clauses (a) through (k) above or is entitled to be incurred pursuant to the first
paragraph of this Section 1008, Mediacom Broadband LLC shall, in its sole discretion, be permitted
to classify such item of Indebtedness, or to later reclassify all or a portion of such item of
Indebtedness, in any manner that complies with this Section 1008 and such item of Indebtedness
shall be treated as having been Incurred as so classified or reclassified as the case may be.
SECTION 1009. Limitation on Affiliate Transactions.
Mediacom Broadband LLC shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, engage in any transaction (or series of related transactions) involving in the
aggregate $5,000,000 or more with any Affiliate unless such transaction (or series of related
transactions) shall have been approved pursuant to a Committee Resolution rendered in good faith by
the Executive Committee or, if applicable, a committee comprising the disinterested members of the
Executive Committee, which approval in each case shall be conclusive, to the effect that such
transaction (or series of related transactions) is (a) in the best interest of Mediacom Broadband
LLC or such Restricted Subsidiary and (b) upon terms which would be obtainable by Mediacom
Broadband LLC or such Restricted Subsidiary in a comparable arms-length transaction with a Person
which is not an Affiliate, except that the foregoing shall not apply in the case of any of the
following transactions (the Specified Affiliate Transactions): (i) the making of any Restricted
Payment (including, without limitation, the making of any Restricted Payment that is permitted
pursuant to subclauses (1) through (15) of paragraph (b) of Section 1007) and the making of any
Permitted Investment; (ii) any transaction or series of transactions between Mediacom Broadband LLC
and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries; (iii) the
payment of compensation (including, without limitation, amounts paid pursuant to employee benefit
plans) for the personal services of, and indemnity provided on behalf of, officers, members,
directors and employees of Mediacom Broadband LLC or any Restricted Subsidiary, and management,
consulting or advisory fees and reimbursements of expenses and indemnity in each case so long as
the Executive Committee in good faith shall have approved the terms thereof and deemed the services
theretofore or thereafter to be performed for such compensation or fees to be fair consideration
therefor; (iv) any payments for goods or services purchased in the ordinary course of business,
upon terms which would be obtainable by Mediacom Broadband LLC or a Restricted Subsidiary in a
comparable arms-length transaction with a Person which is not an Affiliate; (v) any transaction
pursuant to any agreement with any Affiliate in effect on the date of this Indenture (including,
but not limited to, the Management Agreements, the Operating Agreement and other agreements
relating to the payment of management fees, acquisition fees and expense reimbursements),
including, without limitation, any amendments thereto entered into after the date of this
Indenture, provided that the terms of any such amendment are not less favorable to Mediacom
Broadband LLC than the terms of the relevant agreement in effect prior to any such amendment, as
determined in good faith by the Executive Committee whose determination shall be conclusive and
evidenced by a
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Committee Resolution; (vi) any transaction or series of transactions between Mediacom
Broadband LLC or any of its Restricted Subsidiaries, on the one hand, and Mediacom Communications
or any of its direct or indirect Subsidiaries, on the other hand, which relate to (a) the sharing
of centralized services, personnel, facilities, headends and plant, (b) the joint procurement of
goods and services, (c) the allocation of costs and expenses (other than taxes based on income) and
(d) matters reasonably related to any of the foregoing, in each case, which are undertaken pursuant
to an established plan of Mediacom Communications the primary purpose of which is to result in cost
savings and related synergies for Mediacom Broadband LLC, its Restricted Subsidiaries, Mediacom
Communications and each of Mediacom Communications other direct or indirect Subsidiaries involved
in such transaction or series of transactions; provided that, in the case of this clause (vi), such
plan shall have been approved pursuant to a Committee Resolution, rendered in good faith by the
Executive Committee, which approval in each case shall be conclusive, to the effect that such plan
is in the best interest of Mediacom Broadband LLC or such Restricted Subsidiary; and provided,
further, that such transaction or series of related transactions is fair and reasonable to Mediacom
Broadband LLC or such Restricted Subsidiary, on the one hand, and to Mediacom Communications and
each such other Subsidiary of Mediacom Communications, on the other hand; and (vii) the receipt
from any Affiliate of any payment, Investment, distribution, loan or other extension of credit or
any other consideration if the payment or making thereof would, if made by Mediacom Broadband LLC
or by any Restricted Subsidiary to an Affiliate thereof, constitute a Specified Affiliate
Transaction under any of the foregoing clauses (i) through (vi) of this paragraph or would comply
with the last two sentences of this Section 1009. Except in the case of a Specified Affiliate
Transaction, Mediacom Broadband LLC shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, engage in any transaction (or series of related transactions) involving in
the aggregate (y) $25,000,000 or more in all instances except in the case of Asset Sales or Asset
Swaps and (z) $50,000,000 or more in the case of any Asset Sale or Asset Swap, in each case, with
any Affiliate unless (i) such transaction (or series of related transactions) shall have been
approved pursuant to a Committee Resolution rendered in good faith by the Executive Committee or,
if applicable, a committee comprising the disinterested members of the Executive Committee to the
effect set forth in clauses (a) and (b) above, which approval in each case shall be conclusive and
evidenced by a Committee Resolution; and (ii) Mediacom Broadband LLC shall have received an opinion
from an independent nationally recognized accounting, appraisal or investment banking firm
experienced in the review of similar types of transactions stating that the terms of such
transaction (or series of related transactions) are fair to Mediacom Broadband LLC or such
Restricted Subsidiary, as the case may be, from a financial point of view, which opinion shall be
conclusive. Notwithstanding the foregoing, any transaction (or series of related transactions)
entered into by Mediacom Broadband LLC or any Restricted Subsidiary with any Affiliate without
complying with the foregoing provisions of this Section 1009 shall not constitute a violation of
the provisions of this Section 1009 if Mediacom Broadband LLC or such Restricted Subsidiary would
be permitted to make a Restricted Payment pursuant to paragraph (a) of Section 1007 at the time of
the completion of such transaction (or series of related transactions) in an amount equal to the
fair market value of such transaction (or series of related transactions), as determined in good
faith by the Executive Committee, whose determination shall be conclusive and evidenced by a
Committee Resolution. In such a case, Mediacom Broadband LLC or such Restricted Subsidiary, as the
case may be, shall be deemed to have made a Restricted Payment in an amount equal to the fair
market value of such transaction
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for purposes of the calculation of Restricted Payments pursuant to clause (iii) of paragraph
(a) of Section 1007.
SECTION 1010. Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries.
Mediacom Broadband LLC shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to: (a) pay
dividends or make any other distributions to Mediacom Broadband LLC or any other Restricted
Subsidiary on its Equity Interests; (b) pay any Indebtedness owed to Mediacom Broadband LLC or any
other Restricted Subsidiary; (c) make loans or advances, or guarantee any such loans or advances,
to Mediacom Broadband LLC or any other Restricted Subsidiary; (d) transfer any of its properties or
assets to Mediacom Broadband LLC or any other Restricted Subsidiary; (e) grant Liens on the assets
of Mediacom Broadband LLC or any other Restricted Subsidiary in favor of the holders of the Notes;
or (f) guarantee the Notes or any renewals or refinancings thereof (any of the actions described in
clauses (a) through (f) above is referred to herein as a Specified Action), except for (i) such
encumbrances or restrictions arising by reason of Acquired Indebtedness of any Restricted
Subsidiary existing at the time such Person became a Restricted Subsidiary; provided that such
encumbrances or restrictions were not created in anticipation of such Person becoming a Restricted
Subsidiary and are not applicable to Mediacom Broadband LLC or any other Restricted Subsidiary,
(ii) such encumbrances or restrictions arising under refinancing Indebtedness permitted by clause
(g) of the second paragraph under Section 1008; provided that the terms and conditions of any such
restrictions are no less favorable to the Holders of Notes than those under the Indebtedness being
refinanced, (iii) customary provisions restricting the assignment of any contract or interest of
Mediacom Broadband LLC or any Restricted Subsidiary, (iv) restrictions contained in this Indenture
or any other indenture governing debt securities that are no more restrictive than those contained
in this Indenture, and (v) restrictions under the Subsidiary Credit Facility and under the Future
Subsidiary Credit Facilities; provided that, in the case of any Future Subsidiary Credit Facility,
Mediacom Broadband LLC shall have used commercially reasonable efforts to include in the agreements
relating to such Future Subsidiary Credit Facility provisions concerning the encumbrance or
restriction on the ability of any Restricted Subsidiary to take any Specified Action that are no
more restrictive than those in effect in the Subsidiary Credit Facility on the date of the creation
of the applicable restriction in such Future Subsidiary Credit Facility (Comparable Restriction
Provisions); and provided, further, that if Mediacom Broadband LLC shall conclude in its sole
discretion based on then prevailing market conditions that it is not in the best interest of
Mediacom Broadband LLC and the Restricted Subsidiaries to comply with the foregoing proviso, the
failure to include Comparable Restriction Provisions in the agreements relating to such Future
Subsidiary Credit Facility shall not constitute a violation of the provisions of this Section 1010.
SECTION 1011. Limitation on Liens.
Mediacom Broadband LLC shall not Incur any Indebtedness secured by a Lien against or on any of
its property or assets now owned or hereafter acquired by Mediacom Broadband LLC unless
contemporaneously therewith effective provision is made to secure the Notes equally and ratably
with such secured Indebtedness. This restriction does not, however, apply to
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Indebtedness secured by: (i) Liens, if any, in effect on the date of this Indenture; (ii)
Liens in favor of governmental bodies to secure progress or advance payments; (iii) Liens on Equity
Interests or Indebtedness existing at the time of the acquisition thereof (including, without
limitation, acquisition through merger or consolidation); provided that such Liens were not
Incurred in anticipation of such acquisition; (iv) Liens securing industrial revenue or pollution
control bonds; (v) Liens securing the Notes; (vi) Liens securing Indebtedness of Mediacom Broadband
LLC in an amount not to exceed $10,000,000 at any time outstanding; (vii) Other Permitted Liens;
and (viii) any extension, renewal or replacement of any Lien referred to in the foregoing clauses
(i) through (vii), inclusive.
SECTION 1012. Change of Control.
(a) Upon the occurrence of a Change of Control, each holder of Notes shall have the right to
require the Issuers to repurchase all or any part of such holders Notes pursuant to an offer
described in this Section 1012 (the Change of Control Offer) at a purchase price equal to 101% of
the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any,
thereon to the date of repurchase (the Change of Control Payment).
(b) Within 30 days of the occurrence of a Change of Control, the Issuers shall send by
first-class mail, postage prepaid, to the Trustee and to each Holder of the Notes, at the address
appearing in the Note Register, a notice stating: (1) that the Change of Control Offer is being
made pursuant to this Section 1012 and that all Notes tendered will be accepted for payment; (2)
the purchase price and the purchase date, which shall be a Business Day no earlier than 30 days nor
later than 60 days from the date such notice is mailed (the Change of Control Payment Date); (3)
that any Note not tendered will continue to accrue interest; (4) that, unless the Issuers default
in the payment of the Change of Control Payment, any Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(5) that holders accepting the offer to have their Notes purchased pursuant to a Change of Control
Offer will be required to surrender the Notes to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day preceding the Change of Control Payment
Date; (6) that holders will be entitled to withdraw their acceptance if the Paying Agent receives,
not later than the close of business on the third Business Day preceding the Change of Control
Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Notes delivered for purchase, and a statement that such holder is
withdrawing its election to have such Notes purchased; (7) that Holders whose Notes are being
purchased only in part will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, provided that each Note purchased and each such new Note issued
shall be in an original principal amount in denominations of $1,000 and integral multiples thereof;
(8) any other procedures that a Holder must follow to accept a Change of Control Offer or effect
withdrawal of such acceptance; and (9) the name and address of the Paying Agent.
(c) On the Change of Control Payment Date, the Issuers shall, to the extent lawful (i) accept
for payment Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii)
deposit with the Paying Agent money sufficient to pay the purchase price of all Notes or portions
thereof so tendered and (iii) deliver or cause to be delivered to the Trustee Notes so accepted
together with an Officers Certificate stating the Notes or
portions thereof
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tendered to the Issuers. The Paying Agent shall promptly mail to each holder of Notes so
accepted payment in an amount equal to the purchase price for such Notes, and the Issuers shall
execute and issue, and the Trustee shall promptly authenticate and mail to such holder, a new Note
equal in principal amount to any unpurchased portion of the Notes surrendered; provided that each
such new Note shall be issued in an original principal amount in denominations of $1,000 and
integral multiples thereof. The Issuers shall send to the Trustee and the holders of Notes on or
as soon as practicable after the Change of Control Payment Date a notice setting forth the results
of the Change of Control Offer.
(d) The Issuers shall not be required to make a Change of Control Offer if a third party makes
the Change of Control Offer in the manner, at the time and otherwise in compliance with the
requirements set forth herein applicable to a Change of Control Offer made by the Issuers and
purchases all Notes or portions thereof validly tendered and not withdrawn under such Change of
Control Offer.
(e) The Issuers shall comply, to the extent applicable, with the requirements of Section 14(e)
of the Exchange Act and any other securities laws or regulations in connection with the repurchase
of Notes pursuant to this covenant.
SECTION 1013. Limitation on Sales of Assets.
(a) Mediacom Broadband LLC shall not, and shall not permit any Restricted Subsidiary to,
consummate an Asset Sale unless (i) Mediacom Broadband LLC or such Restricted Subsidiary, as the
case may be, receives consideration at the time of such sale or other disposition at least equal to
the fair market value thereof (as determined in good faith by the Executive Committee, whose
determination shall be conclusive and evidenced by a Committee Resolution); (ii) not less than 75%
of the consideration received by Mediacom Broadband LLC or such Restricted Subsidiary, as the case
may be, is in the form of cash or Cash Equivalents; and (iii) the Asset Sale Proceeds received by
Mediacom Broadband LLC or such Restricted Subsidiary are applied (a) first, to the extent Mediacom
Broadband LLC elects, or is required, to prepay, repay or purchase debt under any then existing
Indebtedness of Mediacom Broadband LLC or any Restricted Subsidiary within 360 days following the
receipt of the Asset Sale Proceeds from any Asset Sale or, to the extent Mediacom Broadband LLC
elects to make, or commits pursuant to a written agreement to make, an investment in assets
(including, without limitation, Equity Interests or other securities purchased in connection with
the acquisition of Equity Interests or property of another Person) used or useful in a Related
Business, to make such an investment, provided that such investment occurs and such Asset Sale
Proceeds are so applied within 360 days following the receipt of such Asset Sale Proceeds or, in
the case of funds committed to be reinvested in such assets pursuant to a written agreement dated
within 360 days following the receipt of such Asset Sale Proceeds, such investment occurs within
540 days following the receipt of such Asset Sale Proceeds (such 360th day or
540th day, as the case may be, the Reinvestment Date), and (b) second, on a pro rata
basis (1) to the repayment of an amount of Other Pari Passu Debt not exceeding the Other Pari Passu
Debt Pro Rata Share (provided that any such repayment shall result in a permanent reduction of any
commitment in respect thereof in an amount equal to the principal amount so repaid) and (2) if on
the Reinvestment Date with respect to any Asset Sale the Excess Proceeds exceed $15,000,000, the
Issuers shall apply an amount equal to such Excess Proceeds to an offer to repurchase the Notes, at
a purchase price in cash
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equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional
Interest, if any, thereon to the date of repurchase (an Excess Proceeds Offer). If an Excess
Proceeds Offer is not fully subscribed, the Issuers may retain the portion of the Excess Proceeds
not required to repurchase Notes. For purposes of determining in clause (ii) above the percentage
of cash consideration received by Mediacom Broadband LLC or any Restricted Subsidiary, the amount
of any (x) liabilities (as shown on Mediacom Broadband LLCs or such Restricted Subsidiarys most
recent balance sheet) of Mediacom Broadband LLC or any Restricted Subsidiary that are actually
assumed by the transferee in such Asset Sale and from which Mediacom Broadband LLC and the
Restricted Subsidiaries are fully released shall be deemed to be cash, and (y) securities, notes or
other similar obligations received by Mediacom Broadband LLC or such Restricted Subsidiary from
such transferee that are immediately converted (or are converted within 30 days of the related
Asset Sale) by Mediacom Broadband LLC or such Restricted Subsidiary into cash shall be deemed to be
cash in an amount equal to the net cash proceeds realized upon such conversion.
(b) If the Issuers are required to make an Excess Proceeds Offer within 30 days following the
Reinvestment Date, the Issuers shall send by first class mail, postage prepaid, to the Trustee and
to each holder of the Notes, at the address appearing in the register of the Notes maintained by
the Note Registrar, a notice stating, among other things: (1) that such holders have the right to
require the Issuers to apply the Excess Proceeds to repurchase such Notes at a purchase price in
cash equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional
Interest, if any, thereon to the date of purchase; (2) the purchase date, which shall be a Business
Day no earlier than 30 days nor later than 60 days from the date such notice is mailed; (3) the
instructions, determined by the Issuers, that each holder must follow in order to have such Notes
repurchased; and (4) the calculations used in determining the amount of Excess Proceeds to be
applied to the repurchase of such Notes. If the aggregate principal amount of Notes surrendered by
holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be
purchased on a pro rata basis or by lot or by such other method that the Trustee deems to be fair
and equitable to holders. Upon completion of the Excess Proceeds Offer, the amount of Excess
Proceeds shall be reset to zero.
(c) The Issuers shall comply, to the extent applicable, with the requirements of Section 14(e)
of the Exchange Act and any other securities laws or regulations in connection with the repurchase
of Notes pursuant to this covenant.
(d) Notwithstanding the foregoing, Mediacom Broadband LLC or any Restricted Subsidiary shall
be permitted to consummate an Asset Swap if (i) at the time of entering into the related Asset Swap
Agreement or immediately after giving effect to such Asset Swap no Default or Event of Default
shall have occurred and be continuing or would occur as a consequence thereof and (ii) such Asset
Swap shall have been approved in good faith by the Executive Committee, whose approval shall be
conclusive and evidenced by a Committee Resolution, which states that such Asset Swap is fair to
Mediacom Broadband LLC or such Restricted Subsidiary, as the case may be, from a financial point of
view.
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SECTION 1014. Reports.
Commencing with the fiscal quarter of the Issuers ending on September 30, 2005, whether or not
the Issuers are subject to Section 13(a) or 15(d) of the Exchange Act or any successor provision
thereto, the Issuers shall file with the SEC (if permitted by SEC practice and applicable law and
regulations) so long as the Notes are outstanding the annual reports, quarterly reports and other
periodic reports which the Issuers would have been required to file with the SEC pursuant to
Section 13(a) or 15(d) or any successor provision thereto if the Issuers were so subject on or
prior to the respective dates (the Required Filing Dates) by which the Issuers would have been
required to file such documents if the Issuers were so subject. The Issuers shall also in any
event within 15 days of each Required Filing Date (whether or not permitted or required to be filed
with the SEC) file with the Trustee, copies of the annual reports, quarterly reports and other
documents described in the preceding sentence. In addition, for so long as any Notes remain
outstanding and prior to the later of the consummation of the Exchange Offer and the effectiveness
of the Shelf Registration Statement, if required, the Issuers shall furnish to holders and to
securities analysts and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustees receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Issuers compliance with any of its covenants hereunder (as to which the Trustee is entitled to
conclusively rely exclusively on Officers Certificates).
SECTION 1015. Limitation on Business Activities of Mediacom Broadband Corporation.
Mediacom Broadband Corporation shall not hold any material assets, become liable for any
material obligations, engage in any trade or business, or conduct any business activity, other than
the issuance of Equity Interests to Mediacom Broadband LLC or any Wholly Owned Restricted
Subsidiary, the Incurrence of Indebtedness as a co-obligor or guarantor of Indebtedness Incurred by
Mediacom Broadband LLC, including, without limitation, the Notes and the Exchange Notes, if any,
that is permitted to be Incurred by Mediacom Broadband LLC under Section 1008 (provided that the
net proceeds of such Indebtedness are retained by Mediacom Broadband LLC or loaned to or
contributed as capital to one or more of the Restricted Subsidiaries other than Mediacom Broadband
Corporation), and activities incidental thereto. Neither Mediacom Broadband LLC nor any Restricted
Subsidiary shall engage in any transactions with Mediacom Broadband Corporation in violation of
the immediately preceding sentence.
SECTION 1016. Statement by Officers as to Default.
(a) The Issuers will deliver to the Trustee, within 120 days after the end of each fiscal
year, an Officers Certificate, signed by, at a minimum, the principal executive officer, principal
financial officer or principal accounting officer of each Issuer, and otherwise meeting the
requirements of Section 314(a)(4) of the Trust Indenture Act, stating that a review of the
activities of the Issuers and the Restricted Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing officers with a view to
determining whether they have
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kept, observed, performed and fulfilled, and have caused each of the Restricted Subsidiaries
to keep, observe, perform and fulfill its obligations under this Indenture and further stating, as
to each such officer signing such certificate, that, to the best of his or her knowledge, the
Issuers during such preceding fiscal year have kept, observed, performed and fulfilled, and have
caused each of the Restricted Subsidiaries to keep, observe, perform and fulfill each and every
such covenant contained in this Indenture and no Event of Default occurred during such year and at
the date of such certificate there is no Event of Default which has occurred and is continuing or,
if such signers do know of such Event of Default, the certificate shall describe its status with
particularity and shall state what action the Issuers are taking or propose to take in respect
thereof and that, to the best of his or her knowledge, no event has occurred and remains by reason
of which payments on the account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what action each is taking
or proposes to take with respect thereto. The Officers Certificate shall also notify the Trustee
should either or both of the Issuers elect to change the manner in which either of them fix their
fiscal year end. For purposes of this Section 1016(a), such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
(b) When any Default has occurred and is continuing under this Indenture, or if the trustee
for or the holder of any other evidence of Indebtedness of the Issuers or any Significant
Subsidiary gives any notice or takes any other action with respect to a claimed Default (other than
with respect to Indebtedness in the principal amount of less than $25,000,000), the Issuers shall
deliver to the Trustee by registered or certified mail or facsimile transmission an Officers
Certificate specifying such event, notice or other action within five Business Days of its
occurrence.
SECTION 1017. Limitation on Guarantees of Certain Indebtedness.
(a) Mediacom Broadband LLC shall not (i) permit any Restricted Subsidiary to guarantee any
Indebtedness of either Issuer other than the Notes (the Other Indebtedness) or (ii) pledge any
intercompany Indebtedness representing obligations of any of its Restricted Subsidiaries to secure
the payment of Other Indebtedness, in each case unless such Restricted Subsidiary, the Issuers and
the Trustee execute and deliver a supplemental indenture pursuant to Section 901 causing such
Restricted Subsidiary to guarantee (the Restricted Subsidiary Guarantee) the Issuers obligations
under this Indenture and the Notes to the same extent that such Restricted Subsidiary guaranteed
the Issuers obligations under the Other Indebtedness (including waiver of subrogation, if any).
Thereafter, such Restricted Subsidiary shall be a Guarantor for all purposes of this Indenture.
(b) The guarantee of a Restricted Subsidiary shall be released upon: (i) the sale of all of
the Equity Interests, or all or substantially all of the assets, of the applicable Guarantor (in
each case other than to Mediacom Broadband LLC or a Subsidiary); (ii) the designation by Mediacom
Broadband LLC of the applicable Guarantor as an Unrestricted Subsidiary pursuant to Section 1018;
or (iii) the release of the guarantee of such Guarantor with respect to the obligations which
caused such Guarantor to deliver the Restricted Subsidiary Guarantee in accordance with the
preceding paragraph, in each case in compliance with this Indenture (including, without limitation,
in the event of a sale of Equity Interests or assets described in clause (i)
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above, that the Net Cash Proceeds are applied in accordance with the requirements of Section
1013).
(c) The Trustee shall, at the sole cost and expense of the Issuers, upon receipt of a request
by the Issuers accompanied by an Officers Certificate certifying as to the compliance with
paragraph (b) of this Section and, with respect to clause (i) or (ii) of paragraph (b) of this
Section, upon receipt at the reasonable request of the Trustee of an Opinion of Counsel that the
provisions of this Section have been complied with, deliver an appropriate instrument evidencing
such release. Any Guarantor not so released remains liable for the full amount of principal of and
interest on the Notes and the other obligations of the Issuers provided herein.
SECTION 1018. Designation of Unrestricted Subsidiaries.
(a) Mediacom Broadband LLC may designate any Subsidiary (including, without limitation, any
newly acquired or newly formed Subsidiary or a Person becoming a Subsidiary through merger or
consolidation or Investment therein) as an Unrestricted Subsidiary under this Indenture (a
Designation) only if: (a) no Default or Event of Default shall have occurred and be continuing
at the time of or after giving effect to such Designation; (b) at the time of and after giving
effect to such Designation, Mediacom Broadband LLC would be able to Incur $1.00 of additional
Indebtedness under the Debt to Operating Cash Flow Ratio under the first paragraph of Section 1008;
and (c) Mediacom Broadband LLC would be permitted to make a Restricted Payment at the time of
Designation (assuming the effectiveness of such Designation) pursuant to paragraph (a) of Section
1007 in an amount equal to Mediacom Broadband LLCs proportionate interest in the fair market value
of such Subsidiary on such date (as determined in good faith by the Executive Committee, whose
determination shall be conclusive and evidenced by a Committee Resolution). Notwithstanding the
foregoing, neither Mediacom Broadband Corporation nor any of its Subsidiaries may be designated as
Unrestricted Subsidiaries.
(b) At the time of Designation all of the Indebtedness of such Unrestricted Subsidiary shall
consist of, and shall at all times thereafter consist of, Non-Recourse Indebtedness, and neither
Mediacom Broadband LLC nor any Restricted Subsidiary shall at any time have any direct or indirect
obligation to: (x) make additional Investments (other than Permitted Investments) in any
Unrestricted Subsidiary; or (y) maintain or preserve the financial condition of any Unrestricted
Subsidiary or cause any Unrestricted Subsidiary to achieve any specified levels of operating
results; or (z) be party to any agreement, contract, arrangement or understanding with any
Unrestricted Subsidiary unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to Mediacom Broadband LLC or such Restricted Subsidiary than
those that might be obtained, in light of all the circumstances, at the time from Persons who are
not Affiliates of Mediacom Broadband LLC. If, at any time, any Unrestricted Subsidiary would
violate the foregoing requirements, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be Incurred
as of such date.
(c) Mediacom Broadband LLC may revoke any Designation of a Subsidiary as an Unrestricted
Subsidiary (a Revocation) if: (a) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Revocation; (b) at the time of and after
giving effect to such Revocation, Mediacom Broadband LLC would be able to
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Incur $1.00 of additional Indebtedness under the Debt to Operating Cash Flow Ratio of the
first paragraph of Section 1008; and (c) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if Incurred at such time, have been
permitted to be Incurred for all purposes of this Indenture.
(d) All Designations and Revocations must be evidenced by Committee Resolutions delivered to
the Trustee certifying compliance with the foregoing provisions.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Optional Redemption.
The Notes may or shall, as the case may be, be redeemed, as a whole or from time to time in
part, subject to the conditions and at the redemption prices specified in the Form of Note (Section
203), together with accrued and unpaid interest and Additional Interest, if any, thereon to the
date of redemption.
SECTION 1102. Applicability of Article.
Redemption of Notes at the election of the Issuers or otherwise, as permitted or required by
any provision of this Indenture, shall be made in accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Issuers to redeem any Notes pursuant to Section 1101 shall be evidenced by
a Committee Resolution. In case of any redemption at the election of the Issuers, the Issuers
shall, at least 90 days prior to the date of redemption (the Redemption Date) fixed by the
Issuers (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Notes to be redeemed and shall deliver to the
Trustee such documentation and records as shall enable the Trustee to select the Notes to be
redeemed pursuant to Section 1104.
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.
If fewer than all the Notes are to be redeemed, the Trustee will select the Notes to be
redeemed, if the Notes are listed on a national securities exchange, in accordance with the rules
of such exchange or, if the Notes are not so listed, on a pro rata basis or by lot or by such other
method that the Trustee deems to be fair and equitable to holders;
provided that, if a partial
redemption is made with the proceeds of any Equity Offering, selection of the Notes or portions
thereof for redemption shall be made by the Trustee only on a
pro rata basis or on as nearly a
pro
rata basis as is practicable (subject to the procedures of the Depositary). If any Note is to be
redeemed in part only, the notice of redemption that relates to such Note shall state the portion
of the principal amount thereof to be redeemed and a new Note or Notes in principal amount equal to
the unredeemed principal portion thereof will be issued;
provided, that no Notes of a principal
amount of $1,000 or less shall be redeemed in part. On and after the Redemption Date, interest
will cease to accrue on Notes or portions thereof called for redemption as long as the Issuers
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have deposited with the Paying Agent for the Notes funds in satisfaction of the applicable
redemption price pursuant to this Indenture.
The Trustee shall promptly notify the Issuers in writing of the Notes selected for redemption
and, in the case of any Notes selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed
only in part, to the portion of the principal amount of such Note which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given in the manner provided for in Section 106 not less than 30
nor more than 60 days prior to the Redemption Date by first class mail to each Holder of Notes to
be redeemed at such Holders address appearing in the Note Register. The Trustee shall give notice
of redemption in the Issuers name and at the Issuers expense; provided, however, that the Issuers
shall deliver to the Trustee, at least 45 days prior to the Redemption Date, an Officers
Certificate requesting that the Trustee give such notice and setting forth the information to be
stated in such notice as provided in the following items.
All notices of redemption shall state:
(i) the Redemption Date,
(ii) the Redemption Price and the amount of accrued interest to the Redemption Date
payable as provided in Section 1107, if any,
(iii) if less than all outstanding Notes are to be redeemed, the identification of the
particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal
amount of Notes to be redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption,
(iv) in case any Note is to be redeemed in part only, the notice which relates to such
Note shall state that on and after the Redemption Date, upon surrender of such Note, the
holder will receive, without charge, a new Note or Notes of authorized denominations for the
principal amount thereof remaining unredeemed,
(v) that on the Redemption Date the Redemption Price (and accrued interest, if any, to
the Redemption Date payable as provided in Section 1107) will become due and payable upon
each such Note, or the portion thereof, to be redeemed, and, unless the Issuers defaults in
making the redemption payment, that interest on Notes called for redemption (or the portion
thereof) will cease to accrue on and after said date,
(vi) the place or places where such Notes are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
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(vii) the name and address of the Paying Agent,
(viii) that Notes called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price,
(ix) the CUSIP number, and that no representation is made as to the accuracy or
correctness of the CUSIP number, if any, listed in such notice or printed on the Notes, and
(x) the paragraph of the Notes or Section of this Indenture pursuant to which the Notes
are to be redeemed.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Issuers shall deposit with the Paying Agent (or, if the
Issuers are acting as their own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money sufficient to pay the Redemption Price of, and accrued interest on, all
the Notes which are to be redeemed on that date. Promptly after the calculation of the Redemption
Price, the Issuers will give the Trustee and the Paying Agent notice thereof.
SECTION 1107. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein specified (together with
accrued interest, if any, to the Redemption Date), and from and after such date (unless the Issuers
shall default in the payment of the Redemption Price and accrued interest) such Notes shall cease
to bear interest. Upon surrender of any such Note for redemption in accordance with said notice,
such Note shall be paid by the Issuers at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of interest whose Stated Maturity
is on or prior to the Redemption Date shall be payable to the Holders of such Notes, or one or more
predecessor Notes, registered as such at the close of business on the relevant Regular Record Date
or Special Record Date, as the case may be, according to their terms and the provisions of Section
311.
If any Note called for redemption shall not be so paid upon surrender thereof for redemption,
the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at
the rate borne by the Notes.
SECTION 1108. Notes Redeemed in Part.
Any Note which is to be redeemed only in part (pursuant to the provisions of this Article)
shall be surrendered at the office or agency of the Issuers maintained for such purpose pursuant to
Section 1002 (with, if the Issuers or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuers and the Trustee duly executed by, the
Holder thereof or such Holders attorney duly authorized in writing), and the Issuers shall
execute, and the Trustee shall authenticate and deliver to the Holder of such Note at the expense
of the Issuers, a new Note or Notes, of any authorized denomination as requested by such Holder, in
an aggregate principal amount equal to and in exchange for the
unredeemed portion of
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the principal of the Note so surrendered, provided, that each such new Note will be in a
principal amount of $1,000 or integral multiple thereof.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. The Issuers Option to Effect
Defeasance or Covenant Defeasance.
The Issuers may, at their option, at any time, with respect to the Notes, elect to have either
Section 1202 or Section 1203 be applied to all outstanding Notes upon compliance with the
conditions set forth in this Article Twelve. The Issuers in their sole discretion can defease the
Notes.
SECTION 1202. Defeasance and Discharge.
Upon the Issuers exercise under Section 1201 of the option applicable to this Section 1202,
the Issuers shall be deemed to have been discharged from any and all obligations with respect to
all outstanding Notes on the date the conditions set forth in Section 1204 are satisfied
(hereinafter, Legal Defeasance). For this purpose, such Legal Defeasance means that the Issuers
shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be outstanding only for the purposes of Section 1205
and the other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied
all its other obligations under such Notes and this Indenture insofar as such Notes are concerned
(and the Trustee, at the expense of the Issuers, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of outstanding Notes to receive, solely from the trust fund
described in Section 1204 and as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any, on) and interest on such Notes when such payments are due, (ii)
the Issuers obligations with respect to such Notes under Sections 304, 305, 310, 1002 and 1003,
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and the Issuers
obligations in connection therewith and (iv) this Article Twelve.
If the Issuers exercise their Legal Defeasance option, payment of the Notes may not be
accelerated because of an Event of Default.
Subject to compliance with this Article Twelve, the Issuers may exercise their option under
this Section 1202 notwithstanding the prior exercise of their option under Section 1203 with
respect to the Notes.
SECTION 1203. Covenant Defeasance.
Upon the Issuers exercise under Section 1201 of the option applicable to this Section 1203,
the Issuers may terminate (i) its obligations under any covenant contained in Sections 1007 through
1015 and Section 1017, (ii) the operation of Section 501(iv), Section 501(v), Section 501(vi) (with
respect only to Significant Subsidiaries), Section 501(vii) (with respect only to Significant
Subsidiaries) and Section 501(iii) (with respect to the covenants described in clause (i) above)
and (iii) the limitations contained in Sections 801(iii) and 801(iv) (hereinafter,
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Covenant Defeasance), and the Notes shall thereafter be deemed not to be outstanding for
the purposes of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall continue to be deemed
outstanding for all other purposes hereunder (it being understood that such Notes will not be
outstanding for accounting purposes). If the Issuers exercise their covenant defeasance option,
payment of the Notes may not be accelerated because of an Event of Default specified under Section
501(iv), (v), (vi) (with respect only to Significant Subsidiaries), (vii) (with respect only to
Significant Subsidiaries) and Section 501(viii) (with respect to the covenants described in clause
(i) above) or because of the failure of the Issuers to comply with Section 801(iii) and 801(iv).
For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the
Issuers may omit to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 501(iii), but, except as specified above,
the remainder of this Indenture and such Notes shall be unaffected thereby.
SECTION 1204. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 1202 or Section 1203 to
the outstanding Notes:
(i) the Issuers shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of this Indenture who shall agree to
comply with the provisions of this Article Twelve applicable to it) as trust funds in trust
money or U.S. Government Obligations, in such amounts as will be sufficient, in the opinion
of a nationally recognized firm of independent public accountants selected by the Issuers,
to pay the principal of, premium, if any, and Additional Interest, if any, and interest due
on the outstanding Notes on the Stated Maturity or on the applicable Redemption Date as the
case may be, of such principal, premium, if any, or interest on the outstanding Notes;
(ii) in the case of Legal Defeasance, the Issuers shall have delivered to the Trustee
an Opinion of Counsel in the United States reasonably acceptable to the Trustee (which
opinion may be subject to customary assumptions and exclusions) confirming that (A) the
Issuers have received from, or there has been published by, the United States Internal
Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in
the applicable U.S. federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel in the United States (which opinion may be subject to
customary assumptions and exclusions) shall confirm that the Holders of the outstanding
Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a
result of such Legal Defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(iii) Mediacom Broadband LLC shall have delivered to the Trustee an Opinion of Counsel
in the United States reasonably acceptable to the Trustee confirming
that, subject
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to customary assumptions and exclusions, the Holders of the outstanding Notes will
not recognize income, gain or loss for U.S. federal income tax purposes as a result of such
Legal Defeasance or Covenant Defeasance and will be subject to such tax on the same amounts,
in the same manner and at the same times as would have been the case if such Legal
Defeasance or Covenant Defeasance had not occurred;
(iv) no Default or Event of Default shall have occurred and be continuing on the date
of such deposit or insofar as Events of Default from bankruptcy or insolvency events are
concerned, at any time in the period ending on the 91st day after the date of deposit;
(v) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture) to which the Issuers is a party or by which the Issuers is bound;
(vi) Mediacom Broadband LLC shall have delivered to the Trustee an Opinion of Counsel
to the effect that, (A) as of the date of such opinion and subject to customary assumptions
and exclusions following the deposit, the trust funds will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors
rights generally under any applicable U.S. federal or state law, and that the Trustee has a
perfected security interest in such trust funds for the ratable benefit of the Holders and
(B) such Legal Defeasance or Covenant Defeasance, as the case may be, will not require
registration of the Issuers, the Trustee or the trust fund under the Investment Company Act
of 1940, as amended or the Investment Advisors Act of 1940, as amended;
(vii) The Issuers shall have delivered to the Trustee an Officers Certificate stating
that the deposit was not made by the Issuers with the intent of defeating, hindering,
delaying or defrauding any creditors of the Issuers or others;
(viii) The Issuers shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel in the United States (which Opinion of Counsel may be subject to
customary assumptions and exclusions) each stating that all conditions precedent provided
for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have
been complied with; and
(ix) The Issuers shall have delivered to the Trustee the opinion of a nationally
recognized firm of independent public accountants stating the matters set forth in paragraph
(i) above.
SECTION 1205. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 1205, the Trustee) pursuant to Section 1204 in
respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Notes and this Indenture, to the payment,
either
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directly or through any Paying Agent (including the Issuers acting as their own Paying Agent) as
the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon
in respect of principal (and premium, if any) and interest, but such money need not be segregated
from other funds except to the extent required by law.
The Issuers shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the Government Obligations deposited pursuant to Section 1204 or the
principal and interest received in respect thereof.
Anything in this Article Twelve to the contrary notwithstanding, the Trustee shall deliver or
pay to the Issuers from time to time upon the Issuers Request any money or U.S. Government
Obligations held by it as provided in Section 1204 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance, as applicable, in accordance with this
Article.
SECTION 1206. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money or U.S. Government Obligations
in accordance with Section 1205 by reason of any legal proceeding or by any reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Issuers obligations under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 1202 or 1203, as the case may
be, until such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1205; provided, however, that if the Issuers makes any payment of principal
of (or premium, if any) or interest on any Note following the reinstatement of its obligations, the
Issuers shall be subrogated to the rights of the Holders of such Notes to receive such payment from
the money and U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE THIRTEEN
RESTRICTED SUBSIDIARY GUARANTEE
SECTION 1301. Unconditional Guarantee.
Each Guarantor hereby unconditionally, jointly and severally, guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns
that: the principal of and interest and Additional Interest, if any, on the Notes shall be
promptly paid in full when due, subject to any applicable grace period, whether at maturity, by
acceleration or otherwise, and interest and Additional Interest, if any, on the overdue principal,
premium, if any, and interest on any overdue interest on the Notes and all other obligations of the
Issuers to the Holders or the Trustee hereunder or under the Notes shall be promptly paid in full
or performed, all in accordance with the terms hereof and thereof; subject, however, to the
limitations set forth in Section 1303. Each Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or
this Indenture, the absence of the any action to enforce the same, any waiver or consent by any
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Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any
judgment against the Issuers, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event
of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the
Issuers, protest, notice and all demands whatsoever and covenants that the Restricted Subsidiary
Guarantee will not be discharged except by complete performance of the obligations contained in the
Notes, this Indenture, and this Restricted Subsidiary Guarantee. If any Holder or the Trustee is
required by any court or otherwise to return to the Issuers, any Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to the Issuers or any Guarantor,
any amount paid by the Issuers to any Guarantor to the Trustee or such Holder, this Restricted
Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and
effect. Each Guarantor further agrees that, as between each Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article Five for the purpose of this Restricted Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration
in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration in
respect of such obligations as provided in Article Five, such obligations (whether or not due and
payable) shall forthwith become due and payable by each Guarantor for the purpose of this
Restricted Subsidiary Guarantee.
SECTION 1302. Severability.
In case any provision of this Restricted Subsidiary Guarantee shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1303. Limitation of Guarantors Liability.
Each Guarantor, and by its acceptance hereof each Holder and the Trustee, hereby confirms that
it is the intention of all such parties that the guarantee by such Guarantor pursuant to its
Restricted Subsidiary Guarantee not constitute a fraudulent transfer or conveyance for purposes of
title 11 of the United States Code, as amended, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar U.S. Federal or state or other applicable law or that the
obligations of such Guarantor under Section 1301 would otherwise be held or determined to be void,
invalid or unenforceable on account of the amount of its liability under said Section 1301. To
effectuate the foregoing intention, the Holders and such Guarantor hereby irrevocably agree that
the obligations of such Guarantor under the Restricted Subsidiary Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under its Restricted
Subsidiary Guarantee or pursuant to Section 1304, result in the obligations of such Guarantor under
the Restricted Subsidiary Guarantee not constituting such fraudulent transfer or conveyance and not
being held or determined to be void, invalid or unenforceable.
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SECTION 1304. Contribution.
In order to provide for just and equitable contribution among the Guarantors, the Guarantors
agree, inter se, that in the event any payment or distribution is made by any Guarantor (a Funding
Guarantor) under the Restricted Subsidiary Guarantee, such Funding Guarantor shall be entitled to
a contribution from all other Guarantors in a pro rata amount, based on the net assets of each
Guarantor (including the Funding Guarantor), determined in accordance with GAAP, subject to Section
1303, for all payments, damages and expenses incurred by that Funding Guarantor in discharging the
Issuers obligations with respect to the Notes or any other Guarantors obligations with respect to
the Restricted Subsidiary Guarantee.
SECTION 1305. Additional Guarantors.
Any Restricted Subsidiary which is required pursuant to Section 1017 to become a Guarantor
shall (a) execute and deliver to the Trustee a supplemental indenture in form and substance
reasonably satisfactory to the Trustee which subjects such Restricted Subsidiary to the provisions
of this Indenture as a Guarantor and pursuant to which such Restricted Subsidiary agrees to
guarantee to each Holder of a Note the payment of allowances due in respect of the Notes in
accordance with the provisions of this Indenture, and (b) cause to be delivered to the Trustee an
Opinion of Counsel to the effect that such supplemental indenture has been duly authorized and
executed by such Restricted Subsidiary and constitutes the legal, valid, binding and enforceable
obligation of such Restricted Subsidiary (subject to such customary exceptions concerning
fraudulent conveyance laws, creditors rights and equitable principles).
SECTION 1306. Subordination of Subrogation and Other Rights.
Each Guarantor hereby agrees that any claim against the Issuers that arises from the payment,
performance or enforcement of such Guarantors obligations under its Restricted Subsidiary
Guarantee or this Indenture, including, without limitation, any right of subrogation, shall be
subject and subordinate to, and no payment with respect to any such claim of such Guarantor shall
be made before, the payment in full in cash of all outstanding Notes in accordance with the
provisions provided therefor in this Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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MEDIACOM BROADBAND LLC |
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By:
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Mediacom Communications Corporation, its Managing Member |
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By: |
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Name: |
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Title: |
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MEDIACOM BROADBAND CORPORATION |
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By: |
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Name: |
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DEUTSCHE BANK TRUST COMPANY |
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AMERICAS, as Paying Agent and Note Registrar |
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LAW DEBENTURE TRUST COMPANY OF NEW |
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YORK, as Trustee |
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