Exhibit 10.2
CCH I, LLC
AND
CCH I CAPITAL CORP.,
AS ISSUERS
CHARTER COMMUNICATIONS HOLDINGS, LLC,
AS PARENT GUARANTOR
AND
AS TRUSTEE
INDENTURE
DATED AS OF SEPTEMBER 28, 2005
11.00% SENIOR SECURED NOTES DUE 2015
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
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1 |
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SECTION 1.01. Definitions |
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1 |
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SECTION 1.02. Other Definitions |
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26 |
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SECTION 1.03. Incorporation by Reference of Trust Indenture Act |
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27 |
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SECTION 1.04. Rules of Construction |
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27 |
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ARTICLE II THE NOTES |
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28 |
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SECTION 2.01. Form and Dating |
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28 |
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SECTION 2.02. Execution and Authentication |
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29 |
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SECTION 2.03. Registrar and Paying Agent |
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30 |
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SECTION 2.04. Paying Agent to Hold Money in Trust |
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30 |
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SECTION 2.05. Holder Lists |
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30 |
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SECTION 2.06. Transfer and Exchange |
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30 |
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SECTION 2.07. Replacement Notes |
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34 |
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SECTION 2.08. Outstanding Notes |
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34 |
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SECTION 2.09. Treasury Notes |
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35 |
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SECTION 2.10. Temporary Notes |
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35 |
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SECTION 2.11. Cancellation |
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35 |
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SECTION 2.12. Defaulted Interest |
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35 |
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SECTION 2.13. Record Date |
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36 |
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SECTION 2.14. Computation of Interest |
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36 |
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SECTION 2.15. CUSIP Number |
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36 |
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SECTION 2.16. Special Transfer Provisions |
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36 |
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SECTION 2.17. Issuance of Additional Notes |
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39 |
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SECTION 2.18. Temporary Regulation S Global Notes |
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39 |
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ARTICLE III REDEMPTION |
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40 |
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SECTION 3.01. Notices to Trustee |
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40 |
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SECTION 3.02. Selection of Notes to Be Redeemed |
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40 |
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SECTION 3.03. Notice of Redemption |
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40 |
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SECTION 3.04. Effect of Notice of Redemption |
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41 |
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SECTION 3.05. Deposit of Redemption Price |
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41 |
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SECTION 3.06. Notes Redeemed in Part |
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41 |
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SECTION 3.07. Optional Redemption |
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41 |
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SECTION 3.08. Mandatory Redemption or Repurchase |
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42 |
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SECTION 3.09. Offer to Purchase by Application of Excess Proceeds |
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42 |
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ARTICLE IV COVENANTS |
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44 |
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SECTION 4.01. Payment of Notes |
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44 |
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SECTION 4.02. Maintenance of Office or Agency |
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44 |
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SECTION 4.03. Reports |
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45 |
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SECTION 4.04. Compliance Certificate |
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46 |
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SECTION 4.05. Taxes |
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46 |
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SECTION 4.06. Stay, Extension and Usury Laws |
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46 |
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SECTION 4.07. Restricted Payments |
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46 |
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SECTION 4.08. Investments |
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49 |
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SECTION 4.09. Dividend and Other Payment Restrictions Affecting Subsidiaries |
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50 |
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SECTION 4.10. Incurrence of Indebtedness and Issuance of Preferred Stock |
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52 |
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SECTION 4.11. Limitation on Asset Sales |
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54 |
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SECTION 4.12. Sale and Leaseback Transactions |
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56 |
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SECTION 4.13. Transactions with Affiliates |
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56 |
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SECTION 4.14. Liens |
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57 |
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SECTION 4.15. Existence |
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57 |
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SECTION 4.16. Repurchase at the Option of Holders upon a Change of Control |
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58 |
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SECTION 4.17. Limitations on Issuances of Guarantees of Indebtedness |
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59 |
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SECTION 4.18. Payments for Consent |
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60 |
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SECTION 4.19. Application of Fall-Away Covenants |
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60 |
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ARTICLE V SUCCESSORS |
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61 |
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SECTION 5.01. Merger, Consolidation, or Sale of Assets |
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61 |
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SECTION 5.02. Successor Corporation Substituted |
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62 |
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ARTICLE VI DEFAULTS AND REMEDIES |
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62 |
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SECTION 6.01. Events of Default |
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62 |
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SECTION 6.02. Acceleration |
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63 |
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SECTION 6.03. Other Remedies |
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64 |
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SECTION 6.04. Waiver of Existing Defaults |
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64 |
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SECTION 6.05. Control by Majority |
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64 |
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SECTION 6.06. Limitation on Suits |
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64 |
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SECTION 6.07. Rights of Holders of Notes to Receive Payment |
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65 |
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SECTION 6.08. Collection Suit by Trustee |
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65 |
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SECTION 6.09. Trustee May File Proofs of Claim |
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65 |
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SECTION 6.10. Priorities |
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66 |
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SECTION 6.11. Undertaking for Costs |
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66 |
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ARTICLE VII TRUSTEE |
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66 |
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SECTION 7.01. Duties of Trustee |
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67 |
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SECTION 7.02. Rights of Trustee |
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68 |
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SECTION 7.03. Individual Rights of Trustee |
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69 |
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SECTION 7.04. Trustee’s Disclaimer |
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69 |
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ii
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SECTION 7.05. Notice of Defaults |
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69 |
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SECTION 7.06. Reports by Trustee to Holders of the Notes |
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69 |
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SECTION 7.07. Compensation and Indemnity |
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69 |
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SECTION 7.08. Replacement of Trustee |
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70 |
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SECTION 7.09. Successor Trustee by Xxxxxx, etc |
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71 |
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SECTION 7.10. Eligibility; Disqualification |
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71 |
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SECTION 7.11. Preferential Collection of Claims Against the Issuers |
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71 |
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ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
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72 |
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SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance |
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72 |
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SECTION 8.02. Legal Defeasance and Discharge |
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72 |
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SECTION 8.03. Covenant Defeasance |
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72 |
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SECTION 8.04. Conditions to Legal or Covenant Defeasance |
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73 |
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SECTION 8.05. Deposited Money and Government Securities to Be Held in Trust;
Other Miscellaneous Provisions |
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75 |
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SECTION 8.06. Repayment to Issuers |
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75 |
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SECTION 8.07. Reinstatement |
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75 |
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ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER |
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76 |
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SECTION 9.01. Without Consent of Holders of Notes |
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76 |
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SECTION 9.02. With Consent of Holders of Notes |
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77 |
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SECTION 9.03. Compliance with Trust Indenture Act |
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78 |
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SECTION 9.04. Revocation and Effect of Consents |
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78 |
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SECTION 9.05. Notation on or Exchange of Notes |
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79 |
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SECTION 9.06. Trustee to Sign Amendments, etc |
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79 |
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ARTICLE X COLLATERAL AND PLEDGE AGREEMENT |
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79 |
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SECTION 10.01. Collateral Agent; Pledge Agreement |
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79 |
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SECTION 10.02. Further Assurances |
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79 |
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SECTION 10.03. Release of Liens on the Collateral |
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80 |
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SECTION 10.04. Sufficiency of Release |
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81 |
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SECTION 10.05. Actions by the Collateral Agent |
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81 |
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ARTICLE XI GUARANTEE |
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82 |
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SECTION 11.01. Unconditional Guarantee |
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82 |
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SECTION 11.02. Severability |
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83 |
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SECTION 11.03. Waiver of Subrogation |
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83 |
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SECTION 11.04. Execution of Note Guarantee |
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83 |
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SECTION 11.05. Waiver of Stay, Extension or Usury Laws |
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84 |
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ARTICLE XII MISCELLANEOUS |
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84 |
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SECTION 12.01. Trust Indenture Act Controls |
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84 |
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iii
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Page |
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SECTION 12.02. Notices |
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84 |
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SECTION 12.03. Communication by Holders of Notes with Other Holders of Notes |
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85 |
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SECTION 12.04. Certificate and Opinion as to Conditions Precedent |
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85 |
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SECTION 12.05. Statements Required in Certificate or Opinion |
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86 |
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SECTION 12.06. Rules by Trustee and Agents |
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86 |
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SECTION 12.07. No Personal Liability of Directors, Officers, Employees,
Incorporators, Members and Stockholders |
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86 |
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SECTION 12.08. Governing Law |
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86 |
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SECTION 12.09. No Adverse Interpretation of Other Agreements |
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86 |
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SECTION 12.10. Successors |
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87 |
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SECTION 12.11. Severability |
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87 |
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SECTION 12.12. Counterpart Originals |
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87 |
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SECTION 12.13. Table of Contents, Headings, etc |
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87 |
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ARTICLE XIII SATISFACTION AND DISCHARGE |
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87 |
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SECTION 13.01. Satisfaction and Discharge of Indenture |
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87 |
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SECTION 13.02. Application of Trust Money |
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88 |
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Exhibits: |
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Exhibit A
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Form of Note |
Exhibit B
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Form of Certificate to be Delivered in connection with Transfers Pursuant to Rule 144A |
Exhibit C
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Form of Certificate to be Delivered in connection with Transfers Pursuant to Regulation S |
Exhibit D
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Form of Certificate from Acquiring Institutional Accredited Investor |
Exhibit E
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Form of Certificate of Beneficial Ownership in connection with exchanges of Temporary
Regulation S Global Notes |
Exhibit F
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Form of Pledge Agreement |
iv
CROSS-REFERENCE TABLE
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TIA Section |
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Indenture Section |
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310 (a)(1) |
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7.10 |
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(a)(2) |
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7.10 |
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(a)(3) |
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N/A |
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(a)(4) |
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N/A |
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(b) |
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7.08; 7.10 |
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(c) |
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N/A |
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311 (a) |
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7.11 |
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(b) |
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7.11 |
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(c) |
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N/A |
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312 (a) |
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2.05 |
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(b) |
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12.03 |
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(c) |
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12.03 |
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313 (a) |
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7.06 |
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(b)(1) |
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N/A |
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(b)(2) |
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7.06 |
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(c) |
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12.02 |
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(d) |
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7.06 |
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314 (a) |
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4.03; 4.04 |
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(b) |
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N/A |
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(c)(1) |
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12.04 |
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(c)(2) |
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12.04 |
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(c)(3) |
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12.04 |
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(d) |
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N/A |
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(e) |
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12.05 |
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(f) |
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N/A |
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315 (a) |
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7.01 |
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(b) |
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7.05; 13.02 |
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(c) |
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7.01 |
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(d) |
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7.01 |
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(e) |
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6.11 |
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316 (a)(last sentence) |
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2.09 |
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(a)(1)(A) |
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6.05 |
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(a)(1)(B) |
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6.04 |
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(a)(2) |
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N/A |
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(b) |
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6.07 |
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317 (a)(1) |
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6.08 |
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(a)(2) |
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6.09 |
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(b) |
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2.04 |
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318 (a) |
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12.01 |
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N/A means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this
Indenture.
i
INDENTURE dated as of September 28, 2005 among CCH I, LLC, a Delaware limited liability
company (as further defined below, the “
Company”), CCH I Capital Corp., a Delaware
corporation (as further defined below, “
Capital Corp” and together with the Company, the
“
Issuers”), Charter Communications Holdings, LLC, a Delaware limited liability company the
“
Parent Guarantor”) and The Bank of
New York Trust Company, NA, as trustee (the
“
Trustee”).
The Issuers, the Parent Guarantor and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
“Accredited Investor” means an institutional “accredited investor” (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act).
“Acquired Debt” means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person is merged
with or into or became a Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such other Person
merging with or into, or becoming a Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.
“Additional Notes” means any 11% Senior Secured Notes due 2015 issued under this
Indenture in addition to the Initial Notes (other than any Notes issued in respect of Initial Notes
pursuant to Section 2.06, 2.07, 2.10, 3.06, 3.09, 4.16 or 9.05).
“Affiliate” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For purposes of this definition, “control,” as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities, by agreement or
otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a
Person shall be deemed to be control. For purposes of this definition, the terms “controlling,
“controlled by,” and “under common control with” shall have correlative meanings.
“Agent” means any Registrar or Paying Agent.
“Asset Acquisition” means (a) an Investment by the Company or any of its Restricted
Subsidiaries in any other Person pursuant to which such Person shall become a Restricted
Subsidiary of the Company or any of its Restricted Subsidiaries or shall be merged with or
into the Company or any of its Restricted Subsidiaries, or (b) the acquisition by the Company or
any
of its Restricted Subsidiaries of the assets of any Person which constitute all or
substantially all of the assets of such Person, any division or line of business of such Person or
any other properties or assets of such Person other than in the ordinary course of business.
“Asset Sale” means:
(1) the sale, lease, conveyance or other disposition of any assets or rights by the
Company or a Restricted Subsidiary, other than sales of inventory in the ordinary course of
the Cable Related Business; provided that the sale, conveyance or other disposition
of all or substantially all of the assets of the Company and its Subsidiaries, taken as a
whole, shall be governed by Section 4.16 and/or Section 5.01 and not by the provisions of
Section 4.11; and
(2) the issuance of Equity Interests by any Restricted Subsidiary of the Company or the
sale by the Company or any Restricted Subsidiary of the Company of Equity Interests of any
Restricted Subsidiary of the Company.
Notwithstanding the preceding, the following items shall not be deemed to be Asset Sales:
(1) any single transaction or series of related transactions that: (a) involves assets
having a fair market value of less than $100 million; or (b) results in net proceeds to the
Company and its Restricted Subsidiaries of less than $100 million;
(2) a transfer of assets between or among the Company and/or its Restricted
Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary of the Company to the
Company or to another Wholly Owned Restricted Subsidiary of the Company;
(4) a Restricted Payment that is permitted by Section 4.07, a Restricted Investment
that is permitted by Section 4.08 or a Permitted Investment;
(5) the incurrence of Liens not prohibited by this Indenture and the disposition of
assets related to such Liens by the secured party pursuant to a foreclosure; and
(6) any disposition of cash or Cash Equivalents.
“Attributable Debt” in respect of a sale and leaseback transaction means, at the time
of determination, the present value of the obligation of the lessee for net rental payments during
the remaining term of the lease included in such sale and leaseback transaction including any
period for which such lease has been extended or may, at the option of the lessee, be extended.
Such present value shall be calculated using a discount rate equal to the rate of interest implicit
in such transaction, determined in accordance with GAAP.
“Bankruptcy Law” means Title 11, U.S. Code or any federal or state law of any
jurisdiction relating to bankruptcy, insolvency, winding up, liquidation, reorganization or relief
of debtors.
2
“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5
under the Exchange Act, except that in calculating the beneficial ownership of any particular
“person” (as such term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be
deemed to have beneficial ownership of all securities that such “person” has the right to acquire,
whether such right is currently exercisable or is exercisable only upon the occurrence of a
subsequent condition.
“Board of Directors” means the board of directors or comparable governing body of CCI
or, if so specified, the Company, in either case, as constituted as of the date of any
determination required to be made, or action required to be taken, pursuant to this Indenture.
“Business Day” means any day other than a Legal Holiday.
“Cable Related Business” means the business of owning cable television systems and
businesses ancillary, complementary or related thereto.
“Capital Corp” means CCH I Capital Corp., a Delaware corporation, and any successor
Person thereto.
“Capital Lease Obligation” means, at the time any determination thereof is to be made,
the amount of the liability in respect of a capital lease that would at that time be required to be
capitalized on a balance sheet in accordance with GAAP.
“Capital Stock” means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and
(4) any other interest (other than any debt obligation) or participation that confers
on a Person the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
“Capital Stock Sale Proceeds” means the aggregate net proceeds (including the fair
market value of the non-cash proceeds, as determined by an independent appraisal firm) received by
the Company from and after the Issue Date, in each case
(x) as a contribution to the common equity capital or from the issue or sale of Equity
Interests (other than Disqualified Stock and other than issuances or sales to a Subsidiary
of the Company) of the Company after the Issue Date, or
(y) from the issue or sale of convertible or exchangeable Disqualified Stock or
convertible or exchangeable debt securities of the Company that have been converted into
3
or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or
debt securities) sold to a Subsidiary of the Company).
“Cash Equivalents” means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with maturities of twelve
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 domestic commercial
bank having combined capital and surplus in excess of $500 million and a Thomson BankWatch
Rating at the time of acquisition of “B” or better;
(4) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3) above;
(5) commercial paper having a rating at the time of acquisition of at least “P-1” from
Xxxxx’x or at least “A-1” from S&P and in each case maturing within twelve months after the
date of acquisition;
(6) corporate debt obligations maturing within twelve months after the date of
acquisition thereof, rated at the time of acquisition at least “Aaa” or “P-1” by Xxxxx’x or
“AAA” or “A-1” by S&P;
(7) auction-rate Preferred Stocks of any corporation maturing not later than 45 days
after the date of acquisition thereof, rated at the time of acquisition at least “Aaa” by
Xxxxx’x or “AAA” by S&P;
(8) securities issued by any state, commonwealth or territory of the United States, or
by any political subdivision or taxing authority thereof, maturing not later than six months
after the date of acquisition thereof, rated at the time of acquisition at least “A” by
Xxxxx’x or S&P; and
(9) money market or mutual funds at least 90% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (1) through (8) of this definition.
“CCH I” means CCH I, LLC, a Delaware limited liability company, and any successor
Person thereto.
“CCI” means Charter Communications, Inc., a Delaware corporation, and any successor
Person thereto.
4
“CCI Indentures” means, collectively, the indentures entered into by CCI with respect
to its 4.75% Convertible Senior Notes due 2006, its 5.875% Convertible Senior Notes due 2009, and
any indentures, note purchase agreements or similar documents entered into by CCI for the purpose
of incurring Indebtedness in exchange for, or the proceeds of which are used to refinance, any of
the Indebtedness described above, in each case, together with all instruments and other agreements
entered into by CCI in connection therewith, as any of the foregoing may be refinanced, replaced,
amended, supplemented or otherwise modified from time to time.
“CCO” means Charter Communications Operating, LLC, a Delaware limited liability
company, and any successor Person thereto.
“Change of Control” means the occurrence of any of the following:
(1) the sale, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or substantially all of
the assets of the Company and its Subsidiaries, taken as a whole, or of a Parent and its
Subsidiaries, taken as a whole, to any “person” (as such term is used in Section 13(d)(3) of
the Exchange Act) other than Xxxx X. Xxxxx and the Related Parties;
(2) the adoption of a plan relating to the liquidation or dissolution of the Company or
a Parent (except a liquidation of any Parent into any other Parent);
(3) the consummation of any transaction, including any merger or consolidation, the
result of which is that any “person” (as defined above) other than Xxxx X. Xxxxx and Related
Parties becomes the Beneficial Owner, directly or indirectly, of more than 35% of the Voting
Stock of the Company or a Parent, measured by voting power rather than the number of shares,
unless Xxxx X. Xxxxx or a Related Party Beneficially Owns, directly or indirectly, a greater
percentage of Voting Stock of the Company or such Parent, as the case may be, measured by
voting power rather than the number of shares, than such person;
(4) after the Issue Date, the first day on which a majority of the members of the Board
of Directors of CCI are not Continuing Directors;
(5) the Company or a Parent consolidates with, or merges with or into, any Person, or
any Person consolidates with, or merges with or into, the Company or a Parent, in any such
event pursuant to a transaction in which any of the outstanding Voting Stock of the Company
or such Parent is converted into or exchanged for cash, securities or other property, other
than any such transaction where the Voting Stock of the Company or such Parent outstanding
immediately prior to such transaction is converted into or exchanged for Voting Stock (other
than Disqualified Stock) of the surviving or
transferee Person constituting a majority of the outstanding shares of such Voting
Stock of such surviving or transferee Person immediately after giving effect to such
issuance; or
(6) (i) Charter Communications Holding Company, LLC shall cease to own beneficially,
directly or indirectly, 100% of the Capital Stock of Charter Holdings or (ii) Charter
Holdings shall cease to own beneficially, directly or indirectly, 100% of the Capital Stock
of the Company.
5
“Charter Holdings” means Charter Communications Holdings, LLC, a Delaware limited
liability company, and any successor Person thereto.
“Charter Holdings Indentures” means, collectively (a) the indentures entered into by
Charter Holdings and Charter Communications Holdings Capital Corp. in connection with the issuance
of the 8.250% Senior Notes Due 2007 dated March 1999, 8.625% Senior Notes Due 2009 dated March
1999, 9.920% Senior Discount Notes Due 2011 dated March 1999, 10.00% Senior Notes Due 2009 dated
January 2000, 10.250% Senior Notes Due 2010 dated January 2000, 11.750% Senior Discount Notes Due
2010 dated January 2000, 10.75% Senior Notes Due 2009 dated January 2001, 11.125% Senior Notes Due
2011 dated January 2001, 13.50% Senior Discount Notes Due 2011 dated January 2001, 9.625% Senior
Notes Due 2009 dated May 2001, 10.00% Senior Notes Due 2011 dated May 2001, 11.750% Senior Discount
Notes Due 2011 dated May 2001, 9.625% Senior Notes Due 2009 dated January 2002, 10.00% Senior Notes
Due 2011 dated January 2002 and 12.125% Senior Discount Notes Due 2012 dated January 2002, and (b)
any indentures, note purchase agreements or similar documents entered into by Charter Holdings
and/or Charter Communications Holdings Capital Corp. on or after the Issue Date for the purpose of
incurring Indebtedness in exchange for, or proceeds of which are used to refinance, any of the
Indebtedness described in the foregoing clause (a), in each case, together with all instruments and
other agreements entered into by Charter Holdings or Charter Communications Holdings Capital Corp.
in connection therewith, as the same may be refinanced, replaced, amended, supplemented or
otherwise modified from time to time.
“Charter Refinancing Indebtedness” means any Indebtedness of a Charter Refinancing
Subsidiary issued in exchange for, or the net proceeds of which are used within 90 days after the
date of issuance thereof to extend, refinance, renew, replace, defease, purchase, acquire or refund
(including successive extensions, refinancings, renewals, replacements, defeasances, purchases,
acquisitions or refunds), Indebtedness initially incurred under any one or more of the CCI
Indentures, the Charter Holdings Indentures, the CIH Indenture or this Indenture; provided
that:
(1) the principal amount (or accreted value, if applicable) of such Charter Refinancing
Indebtedness does not exceed the principal amount (or accreted value, if applicable) of,
plus accrued interest and premium, if any, on the Indebtedness so extended, refinanced,
renewed, replaced, defeased, purchased, acquired or refunded (plus the amount of reasonable
fees, commissions and expenses incurred in connection therewith); and
(2) such Charter Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased, purchased, acquired or refunded.
“Charter Refinancing Subsidiary” means any direct or indirect, wholly owned Subsidiary
(and any related corporate co-obligor if such Subsidiary is a limited liability company or other
association not taxed as a corporation) of CCI or Charter Communications Holding Company, LLC,
which is or becomes a Parent.
6
“CIH” means CCH I Holdings, LLC, a Delaware limited liability company, and any
successor Person thereto.
“CIH Indenture” means, collectively (a) the indenture pursuant to which the CIH Notes
are issued and (b) any indentures, note purchase agreements or similar documents entered into by
CIH and/or CCH I Holdings Capital Corp. on or after the Issue Date for the purpose of incurring
Indebtedness in exchange for, or the proceeds of which are used to refinance, any of the
Indebtedness outstanding under the CIH Indenture described in the foregoing clause (a), in each
case, together with all instruments and other agreements entered into by CIH or CCH I Holdings
Capital Corp. in connection therewith, as the same may be refinanced, replaced, amended,
supplemented or otherwise modified from time to time.
“CIH Notes” means each of the following series of notes issued by CIH and CCH I
Holdings Capital Corp.: The 11.125% Senior Accreting Notes Due 2014, the 9.920% Senior Accreting
Notes Due 2014, the 10.00% Senior Accreting Notes Due 2014, the 11.75% Senior Accreting Notes Due
2014, the 13.50% Senior Accreting Notes Due 2014, and the 12.125% Senior Accreting Notes Due 2015.
“Clearstream” means Clearstream Banking, société anonyme (formerly Cedelbank).
“Collateral” means the assets that from time to time secure the Notes.
“Collateral Agent” means the Trustee, as collateral agent for the Holders of the Notes
and any holders of Pari Passu Secured Indebtedness.
“Commission” means the Securities and Exchange Commission.
“Company” means CCH I, LLC, a Delaware limited liability company, and any successor
Person thereto.
“Consolidated EBITDA” means with respect to any Person, for any period, the
consolidated net income (or net loss) of such Person and its Restricted Subsidiaries for such
period calculated in accordance with GAAP plus, to the extent such amount was deducted in
calculating such net income:
(1) Consolidated Interest Expense;
(2) income taxes;
(3) depreciation expense;
(4) amortization expense;
(5) all other non-cash items, extraordinary items and nonrecurring and unusual items
(including without limitation any restructuring charges and charges related to litigation
settlements or judgments) and the cumulative effects of changes in accounting principles
reducing such net income, less all non-cash items, extraordinary
7
items, nonrecurring and
unusual items and cumulative effects of changes in accounting principles increasing such net
income;
(6) amounts actually paid during such period pursuant to a deferred compensation plan;
and
(7) for purposes of Section 4.10 only, Management Fees;
all as determined on a consolidated basis for such Person and its Restricted Subsidiaries in
conformity with GAAP, provided that Consolidated EBITDA shall not include:
(x) the net income (or net loss) of any Person that is not a Restricted Subsidiary
(“Other Person”), except (i) with respect to net income, to the extent of the amount
of dividends or other distributions actually paid to such Person or any of its Restricted
Subsidiaries by such Other Person during such period, and (ii) with respect to net losses,
to the extent of the amount of investments made by such Person or any Restricted Subsidiary
of such Person in such Other Person during such period;
(y) solely for the purposes of calculating the amount of Restricted Payments that may
be made pursuant to Section 4.07(c)(3) (and in such case, except to the extent includable
pursuant to clause (x) above), the net income (or net loss) of any Other Person accrued
prior to the date it becomes a Restricted Subsidiary or is merged into or consolidated with
such Person or any Restricted Subsidiaries or all or substantially all of the property and
assets of such Other Person are acquired by such Person or any of its Restricted
Subsidiaries; and
(z) the net income of any Restricted Subsidiary of the Company to the extent that the
declaration or payment of dividends or similar distributions by such Restricted Subsidiary
of such net income is not at the time of determination of such Consolidated EBITDA permitted
by the operation of the terms of such Restricted Subsidiary’s charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation applicable to
such Restricted Subsidiary (other than any agreement or instrument evidencing Indebtedness
or Preferred Stock (i) outstanding on the Issue Date, or (ii) incurred or issued thereafter
in compliance with Section 4.10, provided that (a) the terms of any such agreement
or instrument (other than Existing Indebtedness and any modifications, increases or
refinancings that are not materially more restrictive taken as a whole) restricting the
declaration and payment of dividends or similar distributions apply only in the event of a
default with respect to a financial covenant or a covenant relating to payment, beyond any
applicable period of grace, contained in such agreement or instrument; (b) such terms are
determined by such Person to be customary in comparable
financings; and (c) such restrictions are determined by the Company not to materially
affect the Issuers’ ability to make principal or interest payments on the Notes when due).
“Consolidated Indebtedness” means, with respect to any Person as of any date of
determination, the sum, without duplication, of:
(1) the total amount of outstanding Indebtedness of such Person and its Restricted
Subsidiaries, plus
8
(2) the total amount of Indebtedness of any other Person that has been Guaranteed by
the referent Person or one or more of its Restricted Subsidiaries, plus
(3) the aggregate liquidation value of all Disqualified Stock of such Person and all
Preferred Stock of Restricted Subsidiaries of such Person, in each case, determined on a
consolidated basis in accordance with GAAP.
“Consolidated Interest Expense” means, with respect to any Person for any period,
without duplication, the sum of:
(1) the consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued (including amortization or original issue discount,
non-cash interest payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease Obligations, commissions,
discounts and other fees and charges incurred in respect of letter of credit or bankers’
acceptance financings, and net payments (if any) pursuant to Hedging Obligations); and
(2) the consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period; and
(3) any interest expense on Indebtedness of another Person that is guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person
or one of its Restricted Subsidiaries (whether or not such Guarantee or Lien is called
upon);
in each case, on a consolidated basis and in accordance with GAAP, excluding, however, any amount
of such interest of any Restricted Subsidiary of the referent Person if the net income of such
Restricted Subsidiary is excluded in the calculation of Consolidated EBITDA pursuant to clause (z)
of the definition thereof (but only in the same proportion as the net income of such Restricted
Subsidiary is excluded from the calculation of Consolidated EBITDA pursuant to clause (z) of the
definition thereof).
“Continuing Directors” means, as of any date of determination, any member of the Board
of Directors of CCI who:
(1) was a member of the Board of Directors of CCI on the Issue Date; or
(2) was nominated for election or elected to the Board of Directors of CCI with the
approval of a majority of the Continuing Directors who were members of such Board of
Directors of CCI at the time of such nomination or election or whose election or appointment
was previously so approved.
“Corporate Trust Office of the Trustee” shall be at the address of the Trustee
specified in Section 12.02 or such other address as to which the Trustee may give notice to the
Issuers.
“Credit Facilities” means, with respect to the Company and/or its Restricted
Subsidiaries, one or more debt facilities or commercial paper facilities, in each case with banks
or other
9
lenders (other than a Parent of the Issuers) providing for revolving credit loans, term
loans, receivables financing (including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against such receivables) or letters of
credit, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced in
whole or in part from time to time.
“Default” means any event that is, or with the passage of time or the giving of notice
or both would be, an Event of Default.
“Definitive Note” means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 2.06, substantially in the form of Exhibit A hereto,
except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of
Exchanges of Interests in the Global Note” attached thereto.
“Depositary” means, with respect to the Global Notes, the Person specified in Section
2.03 as the Depositary with respect to the Notes, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
“Disposition” means, with respect to any Person, any merger, consolidation or other
business combination involving such Person (whether or not such Person is the surviving Person) or
the sale, assignment, transfer, lease or conveyance or other disposition of all or substantially
all of such Person’s assets or Capital Stock.
“Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of
any security into which it is convertible, or for which it is exchangeable, in each case 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 redeemable at the option of the
holder thereof, in whole or in part, on or prior to the date that is 91 days after the date on
which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would
constitute Disqualified Stock solely because the holders thereof have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset
sale shall not constitute Disqualified Stock if the terms of such Capital Stock provide that the
Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such
repurchase or redemption complies with Section 4.07.
“Equity Interests” means Capital Stock and all warrants, options or other rights to
acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock).
“Equity Offering” means any private or underwritten public offering of Qualified
Capital Stock of the Company or a Parent of which the gross proceeds to the Company or received by
the Company as a capital contribution from such Parent (directly or indirectly), as the case may
be, are at least $25 million.
“
Euroclear” means Xxxxxx Guaranty Trust Company of
New York, Brussels office, as
operator of the Euroclear system.
10
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Notes” means the Issuers’ 11.00% Senior Secured Notes due 2015, containing
terms substantially identical to the Initial Notes or any Initial Additional Notes (except that (i)
such Exchange Notes shall not contain terms with respect to transfer restrictions and shall be
registered under the Securities Act and (ii) certain provisions relating to an increase in the
stated rate of interest thereon shall be eliminated), that are issued and exchanged for (a) the
Initial Notes, as provided for in the Registration Rights Agreement relating to such Initial Notes
and this Indenture or (b) such Initial Additional Notes, as may be provided in any Registration
Rights Agreement relating to such Initial Additional Notes and this Indenture (including any
amendment or supplement thereto).
“Exchange Offers” means:
(1) the acquisition by CIH and the Company of Indebtedness outstanding under the
Charter Holdings Indentures, in exchange for CIH Notes and Notes, pursuant to the Offering
Memorandum dated August 23, 2005 and related documents, as such documents may be
supplemented, modified, extended or amended from time to time; and
(2) the distribution, loan or investment of (a) Indebtedness accepted in exchange for
CIH Notes or Notes as contemplated by clause (1) of this definition, and (b) amounts
sufficient to satisfy the expenses incurred by any Parent in connection therewith (including
any required payment of accrued interest thereon), in each case, directly or indirectly to
or in any Parent;
provided, that any such Indebtedness referred to in clauses (1) and (2) of this definition
shall be cancelled as part of the Exchange Offers.
“Existing Indebtedness” means Indebtedness of the Company and its Restricted
Subsidiaries in existence on the Issue Date, until such amounts are repaid.
“GAAP” means generally accepted accounting principles 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 have been approved by a significant segment of the
accounting profession, which are in effect on the Issue Date.
“Global Note Legend” means the legend set forth in Section 2.06(f)(ii), which is
required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means, individually and collectively, each of the Restricted Global
Notes and the Unrestricted Global Notes.
“Government Securities” means direct obligations of, or obligations guaranteed by, the
United States of America, and the payment for which the United States pledges its full faith and
credit.
11
“Guarantee” or “guarantee” means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business, direct or indirect, in
any manner including by way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness, measured as the lesser of
the aggregate outstanding amount of the Indebtedness so guaranteed and the face amount of the
guarantee.
“Hedging Obligations” means, with respect to any Person, the obligations of such
Person under:
(1) interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements;
(2) interest rate option agreements, foreign currency exchange agreements, foreign
currency swap agreements; and
(3) other agreements or arrangements designed to protect such Person against
fluctuations in interest and currency exchange rates.
“Helicon Preferred Stock” means the preferred limited liability company interest of
Charter-Helicon LLC with an aggregate liquidation value of $25 million.
“Holder” means a holder of the Notes.
“IAI Global Note” means a global note substantially in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of,
and registered in the name of, the Depositary or its nominee that will be issued in an initial
denomination that, when aggregated with the other IAI Global Notes, will equal the outstanding
principal amount of the Initial Notes or any Initial Additional Notes, in each case, initially sold
to Accredited Investors (and not in reliance on Rule 903 of Regulation S or Rule 144A).
“Indebtedness” means, with respect to any specified Person, any indebtedness of such
Person, whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or letters of credit
(or reimbursement agreements in respect thereof);
(3) in respect of banker’s acceptances;
(4) representing Capital Lease Obligations;
(5) in respect of the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued expense or trade payable; or
(6) representing the notional amount of any Hedging Obligations,
12
if and to the extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of
others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is
assumed by the specified Person) and, to the extent not otherwise included, the guarantee by such
Person of any indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness issued with original
issue discount; and
(2) the principal amount thereof, together with any interest thereon that is more than
30 days past due, in the case of any other Indebtedness.
“Indenture” means this Indenture, as amended or supplemented from time to time.
“Initial Additional Notes” means Additional Notes issued in an offering not registered
under the Securities Act.
“Initial Notes” means the Issuers’ 11.00% Senior Secured Notes due 2015, issued on the
Issue Date (and any Notes issued in respect thereof pursuant to Section 2.06, 2.07, 2.10, 3.06,
3.09, 4.16 or 9.05).
“Institutional Accredited Investor” means an institution that is an “accredited
investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is not also a
QIB.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the
equivalent) by Xxxxx’x and BBB- (or the equivalent) by S&P.
“Investments” means, with respect to any Person, all investments by such Person in
other Persons, including Affiliates, in the forms of direct or indirect loans (including guarantees
of Indebtedness or other obligations), advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the ordinary course of business) and
purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as investments on a balance
sheet prepared in accordance with GAAP.
“Issue Date” means September 28, 2005.
“Issuers” has the meaning assigned to it in the preamble to this Indenture.
“
Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in
The City of
New York or at a place of payment are authorized by law, regulation or executive order
to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue
on such payment for the intervening period.
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“Leverage Ratio” means, as to the Company, as of any date, the ratio of:
(1) the Consolidated Indebtedness of the Company on such date to
(2) the aggregate amount of Consolidated EBITDA for the Company for the most recently
ended fiscal quarter for which internal financial statements are available (the “Reference
Period”), multiplied by four.
In addition to the foregoing, for purposes of this definition, “Consolidated EBITDA”
shall be calculated on a pro forma basis after giving effect to
(1) the issuance of the Notes;
(2) the incurrence of the Indebtedness or the issuance of the Disqualified Stock by the
Company or a Restricted Subsidiary or Preferred Stock of a Restricted Subsidiary (and the
application of the proceeds therefrom) giving rise to the need to make such calculation and
any incurrence or issuance (and the application of the proceeds therefrom) or repayment of
other Indebtedness, Disqualified Stock or Preferred Stock of a Restricted Subsidiary, other
than the incurrence or repayment of Indebtedness for ordinary working capital purposes, at
any time subsequent to the beginning of the Reference Period and on or prior to the date of
determination, as if such incurrence (and the application of the proceeds thereof), or the
repayment, as the case may be, occurred on the first day of the Reference Period; and
(3) any Dispositions or Asset Acquisitions (including any Asset Acquisition giving rise
to the need to make such calculation as a result of such Person or one of its Restricted
Subsidiaries (including any person that becomes a Restricted Subsidiary as a result of such
Asset Acquisition) incurring, assuming or otherwise becoming liable for or issuing
Indebtedness, Disqualified Stock or Preferred Stock) made on or subsequent to the first day
of the Reference Period and on or prior to the date of determination, as if such Disposition
or Asset Acquisition (including the incurrence, assumption or liability for any such
Indebtedness, Disqualified Stock or Preferred Stock and also including any Consolidated
EBITDA associated with such Asset Acquisition, including any cost savings adjustments in
compliance with Regulation S-X promulgated by the Commission) had occurred on the first day
of the Reference Period.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
“Management Fees” means the fees (including expense reimbursements) payable to any
Parent pursuant to the management and mutual services agreements between any Parent of the Company
and CCO or between any Parent of the Company and other Restricted Subsidiaries of the Company or
pursuant to the limited liability company agreements of certain Restricted Subsidiaries as such
management, mutual services or limited liability company agreements exist
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on the Issue Date (or, if
later, on the date any new Restricted Subsidiary is acquired or created), including any amendment
or replacement thereof, provided, that any such new agreements or amendments or
replacements of existing agreements, taken as a whole, are not more disadvantageous to the holders
of the Notes in any material respect than such agreements existing on the Issue Date and
further provided, that such new, amended or replacement management agreements do
not provide for percentage fees, taken together with fees under existing agreements, any higher
than 3.5% of CCI’s consolidated total revenues for the applicable payment period.
“Moody’s” means Xxxxx’x Investors Service, Inc. or any successor to the rating agency
business thereof.
“Net Proceeds” means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including any cash received upon the sale or
other disposition of any non-cash consideration received in any Asset Sale), net of the direct
costs relating to such Asset Sale, including legal, accounting and investment banking fees, and
sales commissions, and any relocation expenses incurred as a result thereof or taxes paid or
payable as a result thereof (including amounts distributable in respect of owners’, partners’ or
members’ tax liabilities resulting from such sale), in each case after taking into account any
available tax credits or deductions and any tax sharing arrangements and amounts required to be
applied to the repayment of Indebtedness.
“Non-Recourse Debt” means Indebtedness:
(1) as to which neither the Company nor any of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise,
or (c) constitutes the lender;
(2) no default with respect to which (including any rights that the holders thereof may
have to take enforcement action against an Unrestricted Subsidiary) would permit upon
notice, lapse of time or both any holder of any other Indebtedness (other than the Notes) of
the Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated
maturity; and
(3) as to which the lenders have been notified in writing that they will not have any
recourse to the Capital Stock or assets of the Company or any of its Restricted
Subsidiaries.
“Non-U.S. Person” means a Person who is not a U.S. Person.
“Note” or “Notes” means the Initial Notes, any Additional Notes and the
Exchange Notes.
“Note Custodian” means the Trustee when serving as custodian for the Depositary with
respect to the Global Notes, or any successor entity thereto.
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“Note Guarantee” means the unconditional Guarantee by the Parent Guarantor of the
Issuers’ payment obligations under the Notes pursuant to Article XI and the provisions of the
Notes.
“Obligations” means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages, Guarantees and other liabilities payable under the documentation governing
any Indebtedness, in each case, whether now or hereafter existing, renewed or restructured, whether
or not from time to time decreased or extinguished and later increased, created or incurred,
whether or not arising on or after the commencement of a case under Title 11, U.S. Code or any
similar federal or state law for the relief of debtors (including post- petition interest) and
whether or not allowed or allowable as a claim in any such case.
“Officer” means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such
Person.
“Officers’ Certificate” means a certificate signed on behalf of the Company or Capital
Corp, as the case may be, by two Officers of the Company or Capital Corp, as the case may be, one
of whom must be the principal executive officer, the chief financial officer or the treasurer of
the Company or Capital Corp, as the case may be, that meets the requirements of Section 12.05.
“Opinion of Counsel” means an opinion from legal counsel that meets the requirements
of Section 12.05. The counsel may be an employee of or counsel to the Company or any Subsidiary of
the Company.
“Other Global Note” means a global note substantially in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of,
and registered in the name of, the Depositary or its nominee that will be issued (or the principal
amount of which will be increased) in connection with a transfer pursuant to Section 2.16(e).
“Parent” means CIH, Charter Holdings, Charter Communications Holding Company, LLC, CCI
and/or any direct or indirect Subsidiary of the foregoing 100% of the Capital Stock of which is
owned directly or indirectly by one or more of the foregoing Persons, as applicable, and that
directly or indirectly beneficially owns 100% of the Capital Stock of the Company, and any
successor Person to any of the foregoing.
“Parent Guarantor” means Charter Holdings.
“Pari Passu Secured Indebtedness” means, in accordance with the Pledge Agreement, any
and all future Indebtedness of the Company (including any Additional Notes) that ranks pari passu
in right of payment with the Notes under this Indenture, which the Company is permitted to incur
under this Indenture, and which may be secured by an equal and ratable Lien on the Collateral if
the Company so elects, including related Obligations.
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“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a
Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with
respect to DTC, shall include Euroclear and Clearstream).
“Permanent Regulation S Global Note” means a Regulation S Global Note that does not
bear the Temporary Regulation S Legend.
“Permitted Investments” means:
(1) any Investment by the Company in a Restricted Subsidiary thereof, or any Investment
by a Restricted Subsidiary of the Company in the Company or in another Restricted Subsidiary
of the Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any of its Restricted Subsidiaries in a Person, if
as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the Company; or
(b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into, the
Company or a Restricted Subsidiary of the Company;
(4) any Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.11;
(5) any Investment made out of the net cash proceeds of the issue and sale (other than
to a Subsidiary of the Company) of Equity Interests (other than Disqualified Stock) of the
Company or capital contributions to the common equity of the Company, in each case after the
Issue Date, to the extent that such net cash proceeds have not been applied to make a
Restricted Payment or to effect other transactions pursuant to Section 4.07 hereof (with the
amount of usage of the basket in this clause (5) being determined net of the aggregate
amount of principal, interest, dividends, distributions, repayments, proceeds or other value
otherwise returned or recovered in respect of any such Investment, but not to exceed the
initial amount of such Investment);
(6) other Investments in any Person (other than any Parent) having an aggregate fair
market value, when taken together with all other Investments in any Person made by the
Company and its Restricted Subsidiaries (without duplication) pursuant to this clause (6)
from and after the Issue Date, not to exceed $750 million (initially measured on the date
each such Investment was made and without giving effect to
subsequent changes in value, but reducing the amount outstanding by the aggregate
amount of principal, interest, dividends , distributions, repayments, proceeds or other
value otherwise returned or recovered in respect of any such Investment, but not to exceed
the initial amount of such Investment) at any one time outstanding;
17
(7) Investments in customers and suppliers in the ordinary course of business which
either (A) generate accounts receivable or (B) are accepted in settlement of bona fide
disputes;
(8) Investments consisting of payments by the Company or any of its subsidiaries of
amounts that are neither dividends nor distributions but are payments of the kind described
in Section 4.07(4) to the extent such payments constitute Investments;
(9) regardless of whether a Default then exists, Investments in any Unrestricted
Subsidiary made by the Company and/or any of its Restricted Subsidiaries with the proceeds
of distributions from any Unrestricted Subsidiary; and
(10) Investments that are part of the Exchange Offers.
“Permitted Liens” means:
(1) Liens on the assets of the Company securing Pari Passu Secured Indebtedness,
provided any such Liens rank equally and ratably with the Lien securing the
Obligations under the Notes;
(2) Liens on property of a Person existing at the time such Person is merged with or
into or consolidated with the Company; provided that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not extend to any assets
other than those of the Person merged into or consolidated with the Company and related
assets, such as the proceeds thereof;
(3) Liens on property existing at the time of acquisition thereof by the Company;
provided that such Liens were in existence prior to the contemplation of such
acquisition;
(4) Liens to secure the performance of statutory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature incurred in the ordinary course of
business;
(5) purchase money mortgages or other purchase money Liens (including any Capital Lease
Obligations) incurred by the Company upon any fixed or capital assets acquired after the
Issue Date or purchase money mortgages (including Capital Lease Obligations) on any such
assets, whether or not assumed, existing at the time of acquisition of such assets, whether
or not assumed, so long as
(i) such mortgage or Lien does not extend to or cover any of the assets of the
Company, except the asset so developed, constructed, or acquired, and directly
related assets such as enhancements and modifications thereto,
substitutions, replacements, proceeds (including insurance proceeds), products,
rents and profits thereof, and
(ii) such mortgage or Lien secures the obligation to pay all or a portion of
the purchase price of such asset, interest thereon and other charges, costs and
18
expenses (including the cost of design, development, construction, acquisition,
transportation, installation, improvement, and migration) and is incurred in
connection therewith (or the obligation under such Capital Lease Obligation) only;
(6) Liens existing on the Issue Date (other than on the Collateral) and replacement
Liens therefor that do not encumber additional property;
(7) 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 concluded; provided that any reserve or other appropriate
provision as shall be required in conformity with GAAP shall have been made therefor;
(8) statutory and common law Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen or other similar Liens arising in the ordinary course of
business and with respect to amounts not yet delinquent or being contested in good faith by
appropriate legal proceedings promptly instituted and diligently conducted and for which a
reserve or other appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made;
(9) Liens incurred or deposits made in the ordinary course of business in connection
with workers’ compensation, unemployment insurance and other types of social security;
(10) Liens incurred or deposits made to secure the performance of tenders, bids,
leases, statutory or regulatory obligation, bankers’ acceptance, surety and appeal bonds,
government contracts, performance and return-of-money bonds and other obligations of a
similar nature incurred in the ordinary course of business (exclusive of obligations for the
payment of borrowed money);
(11) easements, rights-of-way, municipal and zoning ordinances and similar charges,
encumbrances, title defects or other irregularities that do not materially interfere with
the ordinary course of business of the Company or any of its Restricted Subsidiaries;
(12) Liens of franchisors or other regulatory bodies arising in the ordinary course of
business;
(13) Liens arising from filing Uniform Commercial Code financing statements regarding
leases or other Uniform Commercial Code financing statements for precautionary purposes
relating to arrangements not constituting Indebtedness;
(14) Liens arising from the rendering of a final judgment or order against the Company
or any of its Restricted Subsidiaries that does not give rise to an Event of Default;
19
(15) Liens securing reimbursement obligations with respect to letters of credit that
encumber documents and other property relating to such letters of credit and the products
and proceeds thereof;
(16) Liens encumbering customary initial deposits and margin deposits, and other Liens
that are within the general parameters customary in the industry and incurred in the
ordinary course of business, in each case, securing Indebtedness under Hedging Obligations
and forward contracts, options, future contracts, future options or similar agreements or
arrangements designed solely to protect the Company or any of its Restricted Subsidiaries
from fluctuations in interest rates, currencies or the price of commodities;
(17) Liens consisting of any interest or title of licensor in the property subject to a
license;
(18) Liens on the Capital Stock of Unrestricted Subsidiaries;
(19) Liens arising from sales or other transfers of accounts receivable which are past
due or otherwise doubtful of collection in the ordinary course of business;
(20) Liens incurred in the ordinary course of business of the Company and its
Restricted Subsidiaries with respect to obligations which in the aggregate do not exceed $50
million at any one time outstanding;
(21) Liens in favor of the Trustee arising under the provisions of Section 7.07 of this
Indenture and similar provisions in favor of trustees or other agents or representatives
under indentures or other agreements governing debt instruments entered into after the date
hereof;
(22) Liens in favor of the Trustee for its benefit and the benefit of Holders as their
respective interests appear; and
(23) Liens securing Permitted Refinancing Indebtedness, to the extent that the
Indebtedness being refinanced was secured or was permitted to be secured by such Liens.
“Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of
its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used, within
60 days after the date of issuance thereof, to extend, refinance, renew, replace, defease or
refund, other Indebtedness of the Company or any of its Restricted Subsidiaries (other than
intercompany Indebtedness); provided that unless permitted otherwise by this Indenture, no
Indebtedness of any Restricted Subsidiary may be issued in exchange for, nor may the net proceeds
of Indebtedness be used to extend, refinance, renew, replace, defease or refund, Indebtedness of
the Company; provided further that:
(1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount of (or accreted value, if
applicable), plus accrued interest and premium, if any, on the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount of reasonable
20
expenses
incurred in connection therewith), except to the extent that any such excess principal
amount (or accreted value, as applicable) would be then permitted to be incurred by other
provisions of Section 4.10;
(2) such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; and
(3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of, and is
subordinated in right of payment to, the Notes on terms at least as favorable to the Holders
of Notes as those contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
“Person” means any individual, corporation, partnership, joint venture, association,
limited liability company, joint stock company, trust, unincorporated organization, government or
agency or political subdivision thereof or any other entity.
“Pledge Agreement” means the pledge agreement substantially in the form of Exhibit F
hereto creating the security interest in favor of the Collateral Agent for the benefit of the
holders of the Notes and any Pari Passu Secured Indebtedness in the Collateral, as amended from
time to time in accordance with the terms thereof.
“Preferred Stock,” as applied to the Capital Stock of any Person, means Capital Stock
of any class or classes (however designated) which, by its terms, is preferred as to the payment of
dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of such Person.
“Private Placement Legend” means the legend set forth in Section 2.06(f)(i) to be
placed on all Notes issued under this Indenture except where otherwise permitted by the provisions
of this Indenture.
“Productive Assets” means assets (including assets of a Person owned directly or
indirectly through ownership of Capital Stock) of a kind used or useful in the Cable Related
Business.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“QIB Global Note” means a global note substantially in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of,
and registered in the name of, the Depositary or its nominee that will be issued in an initial
denomination that, when aggregated with the initial denomination of the other QIB Global
Notes, will equal the outstanding principal amount of the Initial Notes or any Initial
Additional Notes, in each case initially sold in reliance on Rule 144A or Section 4(2) of the
Securities Act.
“Qualified Capital Stock” means any Capital Stock that is not Disqualified Stock.
21
“Rating Agencies” means Moody’s and S&P.
“Registration Rights Agreement” means (a) the Exchange and Registration Rights
Agreement dated as of the Issue Date among the Issuers, CIH, CCH I Holdings Capital Corp., Banc of
America Securities LLC and Citigroup Global Markets Inc. with respect to the Initial Notes and (b)
any registration rights agreement among the Issuers and the initial purchasers named therein with
respect to any Initial Additional Notes.
“Registered Exchange Offer” means an offer to exchange Initial Notes or Initial
Additional Notes, if any, for Exchange Notes pursuant to a Registration Rights Agreement.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a global note substantially in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on
behalf of, and registered in the name of, the Depositary or its nominee that will be issued in an
initial denomination that, when aggregated with the initial denominations of the other Regulation S
Global Notes, will equal the outstanding principal amount of the Initial Notes or any Initial
Additional Notes, in each case, initially sold in reliance on Rule 903 of Regulation S.
“Related Party” means:
(1) the spouse or an immediate family member, estate or heir of Xxxx X. Xxxxx; or
(2) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of Xxxx X. Xxxxx and/or such other Persons referred to in the
immediately preceding clause (1).
“Responsible Officer” means, when used with respect to the Trustee, any officer
assigned to the Corporate Trust Office of the Trustee, including any vice president, assistant vice
president, assistant treasurer, or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and having direct
responsibility for the administration of this Indenture, and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such officer’s knowledge of
and familiarity with the particular subject.
“Restricted Definitive Note” means a Definitive Note bearing the Private Placement
Legend.
“Restricted Global Note” means a Global Note bearing the Private Placement Legend.
“Restricted Investment” means an Investment other than a Permitted Investment.
“Restricted Period” means the relevant 40-day distribution compliance period as
defined in Regulation S.
22
“Restricted Subsidiary” of a Person means any Subsidiary of the referent Person that
is not an Unrestricted Subsidiary.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
“S&P” means Standard & Poor’s Ratings Service, a division of the XxXxxx-Xxxx
Companies, Inc. or any successor to the rating agency business thereof.
“SEC” means the Securities and Exchange Commission.
“Secured Parties” means the Collateral Agent and the holders of the Obligations
secured by the Collateral (including the Holders of the Notes).
“Securities Act” means the Securities Act of 1933, as amended.
“Significant Subsidiary” means (a) with respect to any Person, any Restricted
Subsidiary of such Person which would be considered a “Significant Subsidiary” as defined in Rule
1-02(w) of Regulation S-X under the Securities Act and (b) in addition, with respect to the
Company, Capital Corp.
“Special Interest” means special or additional interest in respect of the Notes that
is payable by the Issuers as liquidated damages upon specified registration defaults pursuant to
any Registration Rights Agreement.
“Stated Maturity” means, with respect to any installment of interest or principal on
any series of Indebtedness, the date on which such payment of interest or principal was scheduled
to be paid in the documentation governing such Indebtedness on the Issue Date, or, if none, the
original documentation governing such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
“Subsidiary” means, with respect to any Person:
(1) any corporation, association or other business entity of which at least 50% of the
total voting power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees thereof is at
the time owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person (or a combination thereof) and, in the
case of any such entity of which 50% of the total voting power of shares of Capital Stock is
so owned or controlled by such Person or one or more of the other Subsidiaries of such
Person, such Person and its Subsidiaries also have the right to control the management of
such entity pursuant to contract or otherwise; and
23
(2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are such Person or of one or more Subsidiaries of such Person (or any combination
thereof).
“Tax” shall mean any tax, duty, levy, impost, assessment or other governmental charge
(including penalties, interest and any other liabilities related thereto).
“Temporary Regulation S Global Note” means a Regulation S Global Note that bears the
Temporary Regulation S Legend.
“TIA” or “Trust Indenture Act” means the Trust Indenture Act of 1939 (15
U.S.C. Sections 77aaa-77bbbb) as in effect on the date on which this Indenture is qualified under
the TIA; provided, however, that in the event the Trust Indenture Act of 1939 is
amended after such date, then “TIA” means, to the extent required by such amendment, the
Trust Indenture Act of 1939 as so amended.
“Transfer Restricted Notes” means Notes that bear or are required to bear the Private
Placement Legend.
“
Trustee” means The Bank of
New York Trust Company, NA until a successor replaces The
Bank of
New York Trust Company, NA in accordance with the applicable provisions of this Indenture
and thereafter means the successor serving hereunder. Unless the context otherwise requires, all
references to the Trustee include the Collateral Agent.
“Unrestricted Global Note” means a permanent global note substantially in the form of
Exhibit A attached hereto that bears the Global Note Legend and that has the “Schedule of
Exchanges of Interests in the Global Note” attached thereto, and that is deposited with or on
behalf of and registered in the name of the Depositary, representing a series of Notes that do not
bear the Private Placement Legend.
“Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by
the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a board resolution,
but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary thereof unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons who are not
Affiliates of the Company unless such terms constitute Restricted
Investments permitted under Section 4.08, Permitted Investments, Asset Sales permitted
under Section 4.11 or sale and leaseback transactions permitted under Section 4.12;
(3) is a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for additional
24
Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such
Person to achieve any specified levels of operating results;
(4) has not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries; and
(5) does not own any Capital Stock of any Restricted Subsidiary of the Company.
Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be evidenced to
the Trustee by delivering to the Trustee a certified copy of the board resolution giving effect to
such designation and an Officers’ Certificate certifying that such designation complied with the
preceding conditions and was permitted by Section 4.08. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, 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 by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date
under Section 4.10, the Company shall be in default of Section 4.10. The Board of Directors of
the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if:
(1) such Indebtedness is permitted under Section 4.10 calculated on a pro forma basis
as if such designation had occurred at the beginning of the four-quarter reference period;
and
(2) no Default or Event of Default would be in existence immediately following such
designation.
“U.S. Person” means a U.S. person as defined in Rule 902(k) under the Securities Act.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person
that is at the time entitled to vote in the election of the board of directors or comparable
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:
(1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments 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
(2) the then outstanding principal amount of such Indebtedness.
25
“Wholly Owned Restricted Subsidiary” of any Person means a Restricted Subsidiary of
such Person where all of the outstanding common equity interests or other ownership interests of
such Restricted Subsidiary (other than directors’ qualifying shares) shall at the time be owned by
such Person and/or by one or more Wholly Owned Restricted Subsidiaries of such Person.
SECTION 1.02. Other Definitions.
|
|
|
|
|
Term |
|
Defined in Section |
Affiliate Transaction |
|
|
4.13 |
|
Agent Members |
|
|
2.06(a) |
|
Asset Sale Offer |
|
|
3.09 |
|
Authentication Order |
|
|
2.02 |
|
Capital Corp |
|
Preamble |
|
Change of Control Offer |
|
|
4.16 |
|
Change of Control Payment |
|
|
4.16 |
|
Change of Control Payment Date |
|
|
4.16 |
|
Company |
|
Preamble |
|
Covenant Defeasance |
|
|
8.03 |
|
DTC |
|
|
2.03 |
|
Event of Default |
|
|
6.01 |
|
Excess Proceeds |
|
|
4.11 |
|
Guaranteed Indebtedness |
|
|
4.17 |
|
incur |
|
|
4.10 |
|
Issuers |
|
Preamble |
|
Legal Defeasance |
|
|
8.02 |
|
Offer Amount |
|
|
3.09 |
|
Offer Period |
|
|
3.09 |
|
Option of Holder to Elect Purchase |
|
|
4.16 |
|
Parent Guarantor |
|
Preamble |
|
Paying Agent |
|
|
2.03 |
|
Payment Default |
|
|
6.01(5)(a) |
|
Permitted Debt |
|
|
4.10 |
|
Preferred Stock Financing |
|
|
4.10 |
|
Purchase Date |
|
|
3.09 |
|
QIBs |
|
|
2.01(b) |
|
Registrar |
|
|
2.03 |
|
Regulation S |
|
|
2.01(b) |
|
Restricted Payments |
|
|
4.07(c) |
|
Rule 144A |
|
|
2.01(b) |
|
Subordinated Debt Financing |
|
|
4.10 |
|
Subordinated Notes |
|
|
4.10 |
|
Subsidiary Guarantee |
|
|
4.17 |
|
Suspended Covenants |
|
|
4.19 |
|
Temporary Regulation S Legend |
|
|
2.06(a) |
|
Trustee |
|
8.05. Preamble |
|
26
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings:
“indenture securities” means the Notes;
“indenture security holder” means a Holder of a Note;
“indenture to be qualified” means this Indenture;
“indenture trustee” or “institutional trustee” means the Trustee; and
“obligor” on the Notes means the Issuers and any successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
SECTION 1.04. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it, and all
accounting determinations shall be made, in accordance with GAAP;
(3) “or” is not exclusive and “including” means “including without limitation”;
(4) words in the singular include the plural, and in the plural include the singular;
(5) all exhibits are incorporated by reference herein and expressly made a part of this
Indenture;
(6) references to sections of or rules under the Securities Act shall be deemed to
include substitute, replacement of successor sections or rules adopted by the SEC from time
to time;
(7) references to any statute, law, rule or regulation shall be deemed to refer to the
same as from time to time amended and in effect and to any successor statute, law, rule or
regulation; and
(8) any transaction or event shall be considered “permitted by” or made “in accordance
with” or “in compliance with” this Indenture or any particular provision thereof if such
transaction or event is not expressly prohibited by this Indenture or such provision, as the
case may be.
27
ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating.
(a) General. The Notes and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Note shall be dated the date of
its authentication. The Notes shall be in denominations of $1,000 and integral multiples thereof.
The Global Notes shall be deposited on behalf of the purchasers of the Notes represented
thereby with the Trustee as custodian for the Depositary, and registered in the name of the
Depositary or a nominee of the Depositary, duly executed by the Issuers and authenticated by the
Trustee as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall be specified therein
and each shall provide that it shall represent the aggregate amount of outstanding Notes from time
to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges, redemptions and
transfers of interests. Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the
Note Custodian, at the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
(b) The Initial Notes are being issued by the Issuers only (i) to “qualified institutional
buyers” (as defined in Rule 144A under the Securities Act (“Rule 144A”)) (“QIBs”),
(ii) to Institutional Accredited Investors and (iii) in reliance on Regulation S under the
Securities Act (“Regulation S”). After such initial offers, Initial Notes that are
Transfer Restricted Notes may be transferred (i) to QIBs in reliance on Rule 144A, (ii) to
Institutional Accredited Investors in accordance with the Private Placement Legend, (iii) outside
the United States pursuant to Regulation S, (iv) to the Issuers, in each case, in accordance with
the terms of this Indenture and the Notes or (v) pursuant to other transfers that do not require
registration under the Securities Act. Initial Notes that are offered to QIBs in reliance on
Section 4(2) of the Securities Act shall be issued in the form of one or more permanent QIB Global
Notes deposited with the Trustee, as Note Custodian, duly executed by the Issuers and authenticated
by the Trustee as hereinafter provided. Initial Notes that are offered to Institutional Accredited
Investors in reliance on Section 4(2) of the Securities Act shall be issued in the form of one or
more permanent IAI Global Notes deposited with the Trustee, as Note Custodian, duly executed by the
Issuers and authenticated by the Trustee as hereinafter provided. Initial Notes that are offered
in offshore
transactions in reliance on Regulation S shall be issued in the form of one or more Temporary
Regulation S Global Notes deposited with the Trustee, as Note Custodian, duly executed by the
Issuers and authenticated by the Trustee as hereinafter provided. The QIB Global Notes, IAI Global
Notes and the Regulation S Global Notes shall each be issued with separate CUSIP numbers. The
aggregate principal amount of each Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as Note Custodian.
28
Transfers of Notes between or
among QIBs and Institutional Accredited Investors and to or by purchasers pursuant to Regulation S
shall be represented by appropriate increases and decreases to the respective amounts of the
appropriate Global Notes, as more fully provided in Sections 2.06 and 2.16.
Section 2.01(b) shall apply only to Global Notes deposited with or on behalf of the
Depositary.
(c) The Trustee shall have no responsibility or obligation to any Holder that is a member of
(or a participant in) DTC or any other Person with respect to the accuracy of the records of DTC
(or its nominee) or of any participant or member thereof, with respect to any ownership interest in
the Notes or with respect to the delivery of any notice (including any notice of redemption) or the
payment of any amount or delivery of any Notes (or other security or property) under or with
respect to the Notes. The Trustee may rely (and shall be fully protected in relying) upon
information furnished by DTC with respect to its members, participants and any beneficial owners in
the Notes.
(d) Definitive Notes shall be substantially in the form of Exhibit A attached hereto
(but without including the text referred to in footnotes 2 and 3 thereto).
SECTION 2.02. Execution and Authentication. An Officer shall sign the Notes for each
Issuer by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature (which may be by
facsimile) of the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture. At any time and from time to time after the execution and
delivery of this Indenture, the Issuers may deliver Notes executed by the Issuers to the Trustee
for authentication; and the Trustee shall authenticate and deliver (i) Initial Notes for original
issue in the aggregate principal amount of $3,525,000,000, (ii) Additional Notes from time to time
for original issue in aggregate principal amount specified by the Issuers and (iii) Exchange Notes
from time to time for issue in exchange for a like principal amount of Initial Notes or Initial
Additional Notes, in each case specified in clauses (i) through (iii) above, upon a written order
of the Issuers signed by an Officer of each of the Issuers (an “Authentication Order”).
Such Authentication Order shall specify the amount of Notes to be authenticated and the date on
which the Notes are to be authenticated, whether such notes are to be Initial Notes, Additional
Notes or Exchange Notes and whether the Notes are to be issued as one or more Global Notes and such
other information as the Issuers may include or
the Trustee may reasonably request. The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is unlimited.
The Trustee may appoint an authenticating agent acceptable to the Issuers to authenticate
Notes. 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 agent.
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An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of
the Issuers.
SECTION 2.03. Registrar and Paying Agent. The Issuers shall maintain an office or
agency where Notes may be presented for registration of transfer or for exchange
(“Registrar”) and an office or agency where Notes may be presented for payment (“Paying
Agent”). The Registrar shall keep a register of the Notes and of their transfer and exchange.
The Issuers may appoint one or more co-registrars and one or more additional paying agents. The
term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional
paying agent. The Issuers may change any Paying Agent or Registrar without notice to any Holder.
The Issuers shall notify the Trustee in writing of the name and address of any Agent not a party to
this Indenture. If the Issuers fail to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying
Agent or Registrar.
The Issuers initially appoint The Depository Trust Company (“DTC”) to act as
Depositary with respect to the Global Notes.
The Issuers initially appoint the Trustee to act as the Registrar and Paying Agent and to act
as Note Custodian with respect to the Global Notes.
SECTION 2.04. Paying Agent to Hold Money in Trust. The Issuers shall require each
Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust
for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest on the Notes, and shall notify the Trustee of any default
by the Issuers in making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Issuers at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the
Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying
Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuers, the Trustee
shall serve as Paying Agent for the Notes.
SECTION 2.05. Holder Lists. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of all
Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar,
the Issuers shall furnish to the Trustee at least seven Business Days before each interest payment
date and at such other times as the Trustee may request in writing, a list in such form and as of
such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes
and the Issuers shall otherwise comply with TIA Section 312(a).
SECTION 2.06. Transfer and Exchange.
(a) Each Global Note shall (i) be registered in the name of the Depositary for such Global
Notes 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 2.06(f).
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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 such Global Note, and the Depositary may be treated by the
Issuers, the Trustee and any agent of the Company 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 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 Section 2.16 and the rules
and procedures of the Depositary. In addition, Definitive Notes shall be transferred to all
beneficial owners in exchange for their beneficial interests if (i) the Depositary notifies the
Issuers that the Depositary is unwilling or unable to continue as Depositary for the Global Notes
or the Depositary ceases to be a “clearing agency” registered under the Exchange Act and a
successor depositary is not appointed by the Issuers within ninety (90) days of such notice, (ii)
the Issuers at their sole discretion, notify the Trustee in writing that they elect to cause the
issuance of Definitive Notes under this Indenture or (iii) an Event of Default of which a
Responsible Officer of the Trustee has actual notice has occurred and is continuing and the
Registrar has received a request from the Depositary to issue such Definitive Notes.
(c) In connection with the transfer of the entire Global Note to beneficial owners pursuant to
clause (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 Definitive Notes of authorized denominations.
(d) 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.
(e) A Definitive Note may not be transferred or exchanged for a beneficial interest in a
Global Note.
(f) Legends. The following legends shall appear on the face of all Global Notes and
Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable
provisions of this Indenture.
(i) Private Placement Legend. Except as permitted by Section 2.16, each Global
Note and each Definitive Note (and all Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES
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ACT”), OR ANY STATE SECURITIES LAW. THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION THEREIN MAY BE OFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE
ISSUANCE HEREOF OR (Y) AT ANY TIME BY ANY TRANSFEROR THAT WAS AN AFFILIATE OF EITHER
ISSUER DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH OFFER, RESALE, PLEDGE OR
OTHER TRANSFER, IN EITHER CASE, OTHER THAN (1) TO AN ISSUER, (2) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (3) SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
(“RULE 144A”), TO A PERSON WHOM THE TRANSFEROR 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 OFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144A, (4) TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (5) IN ANY OTHER
TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND SUBJECT TO THE TRUSTEE OR THE
ISSUERS RECEIVING SUCH CERTIFICATES, LEGAL OPINIONS AND OTHER INSTRUMENTS, IN THE
CASE OF TRANSFERS PURSUANT TO CLAUSES (3), (4) OR (5), AS MAY BE REQUIRED BY THE
INDENTURE.
(ii) Global Note Legend. Each Global Note shall bear a legend in substantially
the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL
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SINCE 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 SUCCESSOR’S NOMINEE.
(iii) Temporary Regulation S Legend. Each Regulation S Global Note shall
initially bear a legend (the “Temporary Regulation S Legend”) in substantially the following
form:
THE HOLDER OF THIS NOTE BY ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IF IT
IS A PURCHASER IN A SALE THAT OCCURS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S OF THE SECURITIES ACT, IT ACKNOWLEDGES THAT, UNTIL EXPIRATION OF THE “40-DAY
DISTRIBUTION COMPLIANCE PERIOD” WITHIN THE MEANING OF RULE 903 OF REGULATION S, ANY OFFER OR
SALE OF THIS NOTE SHALL NOT BE MADE BY IT TO A U.S. PERSON TO OR FOR THE ACCOUNT OR BENEFIT
OF A U.S. PERSON WITHIN THE MEANING OF RULE 902(k) UNDER THE SECURITIES ACT.
(g) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial
interests in a particular Global Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11.
At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged
for or transferred to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note, such other Global Note shall
be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by
the Depositary at the direction of the Trustee to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Issuers shall execute and
the Trustee shall authenticate Global Notes and Definitive Notes upon the Issuers’ order or
at the Registrar’s request.
(ii) No service charge shall be made to a holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Issuers may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.02,
2.10, 3.06, 4.11, 4.16 and 9.05).
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(iii) The Registrar shall not be required to register the transfer of or exchange any
Note or portion of a Note selected for redemption or repurchase in whole or in part, except
the unredeemed or unrepurchased portion of any Note being redeemed or repurchased in part.
(iv) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuers,
evidencing the same debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(v) The Issuers shall not be required to register the transfer of or to exchange a Note
for a period of 15 days before a selection of Notes to be redeemed or repurchased or during
the period between a record date and the next succeeding interest payment date.
(vi) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Issuers may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of the Trustee,
any Agent or the Issuers shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive Notes in accordance
with the provisions of Section 2.02.
(viii) All certifications, certificates and opinions of counsel required to be
submitted to the Registrar pursuant to this Section 2.06 or Section 2.16 to effect a
registration of transfer or exchange may be submitted by facsimile.
SECTION 2.07. Replacement Notes. If any mutilated Note is surrendered to the Trustee
or the Issuers and the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Issuers shall issue and the Trustee, upon receipt of an Authentication
Order, shall authenticate a replacement Note if the Trustee’s requirements are met. If required by
the Trustee or the Issuers, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Issuers to protect the Issuers, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuers
may charge for their expenses in replacing a Note.
Every replacement Note is an additional legally binding obligation of the Issuers and shall be
entitled to all of the benefits of this Indenture equally and proportionately with all other Notes
duly issued hereunder.
SECTION 2.08. Outstanding Notes. The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions of this Indenture, and those described in this Section 2.08 as not
outstanding. Except
34
as set forth in Section 2.09, a Note does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01, it ceases to be
outstanding and interest on it ceases to accrue.
If the Paying Agent (other than an Issuer or a Subsidiary or an Affiliate of any thereof)
holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date
plus accrued and unpaid interest to such date, then on and after that date such Notes shall be
deemed to be no longer outstanding and shall cease to accrue interest.
SECTION 2.09. Treasury Notes. In determining whether the Holders of the required
principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by an
Issuer, or by any Person directly or indirectly controlling or controlled by or under direct or
indirect common control with an Issuer, shall be considered as though 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 that a Responsible Officer of the Trustee knows are so
owned shall be so disregarded.
SECTION 2.10. Temporary Notes. Until certificates representing Notes are ready for
delivery, the Issuers may prepare and the Trustee, upon receipt of an Authentication Order, shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated
Notes but may have variations that the Issuers consider appropriate for temporary Notes and as
shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuers shall
prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.
SECTION 2.11. Cancellation. The Issuers at any time may deliver Notes to the Trustee
for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else
shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall dispose of such canceled Notes in its customary manner. The Issuers may not
issue new Notes to replace Notes that they have paid or that have been delivered to the Trustee for
cancellation.
SECTION 2.12. Defaulted Interest. If the Issuers default in a payment of interest on
the Notes, they shall pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special
record date, in each case at the rate provided in the Notes and in Section 4.01. The Issuers shall
notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note
and the date of the proposed payment. The Issuers shall fix or cause to be fixed each such
special record date and payment date; provided that no such special record date shall be
less than 10 days prior to the related payment date for such defaulted interest. At least 15 days
before the special record date, the Issuers (or, upon the written request of the Issuers, the
Trustee in the
35
name and at the expense of the Issuers) shall mail or cause to be mailed to Holders
a notice that states the special record date, the related payment date and the amount of such
interest to be paid.
SECTION 2.13. Record Date. The record date for purposes of determining the identity
of Holders entitled to vote or consent to any action by vote or consent authorized or permitted
under this Indenture shall be determined as provided for in TIA § 316 (c).
SECTION 2.14. Computation of Interest. Interest on the Notes shall be computed on the
basis of a 360-day year comprised of twelve 30-day months.
SECTION 2.15. CUSIP Number. The Issuers in issuing the Notes may use “CUSIP” numbers,
and if they do so, the Trustee shall use such CUSIP numbers in notices of redemption or exchange as
a convenience to Holders; provided that any such notice may state that no representation is made as
to the correctness or accuracy of the CUSIP numbers printed in the notice or on the Notes and that
reliance may be placed only on the other identification numbers printed on the Notes. The Issuers
shall promptly notify the Trustee of any change in the CUSIP numbers.
SECTION 2.16. Special Transfer Provisions. Unless and until a Transfer Restricted
Note is transferred or exchanged under an effective registration statement under the Securities
Act, the following provisions shall apply:
(a) Transfers to QIBs. The following provisions shall apply with respect to the
registration of any proposed transfer of a Transfer Restricted Note to a QIB:
(i) The Registrar shall register the transfer of a Transfer Restricted Note by a Holder
to a QIB if such transfer is being made by a proposed transferor who has provided the
Registrar with (a) an appropriately completed certificate of transfer in the form attached
to the Note and (b) a letter substantially in the form set forth in Exhibit B
hereto.
(ii) If the proposed transferee is an Agent Member and the Transfer Restricted Note to
be transferred consists of an interest in either a Regulation S Global Note, an IAI Global
Note or an Other Global Note, upon receipt by the Registrar of (x) the items required by
paragraph (i) above and (y) instructions given in accordance with the Depositary’s and the
Registrar’s procedures therefor, the Registrar shall reflect on its books and records the
date and an increase in the principal amount of the QIB Global Note in an amount equal to
the principal amount of the beneficial interest in the Regulation S Global Note, IAI Global
Note or Other Global Note, as applicable, to be so transferred, and the Registrar shall
reflect on its books and records the date and an appropriate decrease in the principal
amount of such Regulation S Global Note, IAI Global Note or Other Global Note, as
applicable.
(b) Transfers Pursuant to Regulation S. The Registrar shall register the transfer of
any Permanent Regulation S Global Note without requiring any additional certification. The
following provisions shall apply with respect to the registration of any proposed transfer of
a Transfer Restricted Note pursuant to Regulation S:
36
(i) The Registrar shall register any proposed transfer of a Transfer Restricted Note
pursuant to Regulation S by a Holder upon receipt of (a) an appropriately completed
certificate of transfer in the form attached to the Note and (b) a letter substantially in
the form set forth in Exhibit C hereto from the proposed transferor.
(ii) If the proposed transferee is an Agent Member and the Transfer Restricted Note to
be transferred consists of an interest in a QIB Global Note, an IAI Global Note or an Other
Global Note, upon receipt by the Registrar of (x) the items required by paragraph (i) above
and (y) instructions given in accordance with the Depositary’s and the Registrar’s
procedures therefor, the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Regulation S Global Note in an amount equal to the
principal amount of the beneficial interest in the QIB Global Note, IAI Global Note or Other
Global Note, as applicable, to be transferred, and the Registrar shall reflect on its books
and records the date and an appropriate decrease in the principal amount of the QIB Global
Note, IAI Global Note or Other Global Note, as applicable.
(c) Transfers to Non-QIB Institutional Accredited Investors. The following provisions
shall apply with respect to the registration of any proposed transfer of a Transfer Restricted Note
to any Institutional Accredited Investor which is not a QIB:
(i) The Registrar shall register any proposed transfer of a Transfer Restricted Note to
an Institutional Accredited Investor which is not a QIB if (a) the requested transfer is
after the second anniversary of the Issue Date; provided, however, that neither of the
Issuers nor any Affiliate of the Issuers has held any beneficial interest in such Note, or
portion thereof, at any time on or prior to the second anniversary of the Issue Date or (b)
the proposed transferee has delivered to the Registrar a certificate substantially in the
form set forth in Exhibit D hereto, together with the legal opinion, if any,
required thereby.
(ii) If the proposed transferee is an Agent Member and the Transfer Restricted Note to
be transferred consists of an interest in a QIB Global Note, a Regulation S Global Note or
an Other Global Note, upon receipt by the Registrar of (x) the items required by paragraph
(i) above and (y) instructions given in accordance with the Depositary’s and the Registrar’s
procedures therefor, the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the IAI Global Note in an amount equal to the principal
amount of the beneficial interest in the QIB Global Note, Regulation S Global Note or Other
Global Note, as applicable, to be transferred, and the Registrar shall reflect on its books
and records the date and an appropriate decrease in the principal amount of the QIB Global
Note, Regulation S Global Note or Other Global Note, as applicable.
(d) Exchange Offer. Upon the occurrence of the applicable Registered Exchange Offer
in accordance with the applicable Registration Rights Agreement, the Issuers shall issue and, upon
receipt of an authentication order in accordance with Section 2.02, the Trustee shall
authenticate one or more Global Notes not bearing the Private Placement Legend in an aggregate
principal amount equal to the principal amount of the beneficial interests in the Global Notes that
37
are Transfer Restricted Notes tendered for acceptance in accordance with the Registered Exchange
Offer and accepted for exchange in the Registered Exchange Offer.
Concurrently with the issuance of such Global Notes, the Registrar shall cause the aggregate
principal amount of the applicable Transfer Restricted Notes to be reduced accordingly, and the
Registrar shall deliver to the Persons designated by the Holders of Transfer Restricted Notes
Global Notes not bearing the Private Placement Legend in the appropriate principal amount.
(e) Other Transfers. The following provisions shall apply with respect to the
registration by the Registrar of any other proposed transfer of a Transfer Restricted Note that
does not require registration under the Securities Act:
(i) The Registrar shall register such transfer if it is being made by a proposed
transferor who has provided the Registrar with (a) an appropriately completed certificate of
transfer in the form attached to the Note and (b) a legal opinion from a law firm of
nationally recognized standing to the effect that such transfer does not require
registration under the Securities Act.
(ii) Subject to clause (iii) below, if the proposed transferee is an Agent Member and
the Transfer Restricted Note to be transferred consists of an interest in either a QIB
Global Note, a Regulation S Global Note or an IAI Global Note, upon receipt by the Registrar
of (x) the items required by paragraph (i) above and (y) instructions given in accordance
with the Depositary’s and the Registrar’s procedures therefor, the Registrar shall reflect
on its books and records the date and an increase in the principal amount of the Other
Global Note in an amount equal to the principal amount of the beneficial interest in the QIB
Global Note, the Regulation S Global Note or the IAI Global Note, as applicable, to be so
transferred, and the Registrar shall reflect on its books and records the date and an
appropriate decrease in the principal amount of such QIB Global Note, Regulation S Global
Note or IAI Global Note, as applicable.
(iii) In connection with the first transfer pursuant to this Section 2.16(e), an Other
Global Note shall be issued in the form of a permanent Global Note substantially in the form
set forth in Exhibit A deposited with the Trustee, as Note Custodian, duly executed
by the Issuers and authenticated by the Trustee as herein provided. The Other Global Note
shall be issued with its own CUSIP number. The aggregate principal amount of the Other
Global Note may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as Note Custodian.
(f) Private Placement Legend. Upon the transfer, exchange or replacement of Notes not
bearing the Private Placement Legend, the Registrar shall deliver Notes that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of Transfer Restricted Notes,
the Registrar shall deliver only Transfer Restricted Notes unless either (i) such transfer or
exchange is made in connection with a Registered Exchange Offer, (ii) the circumstances
contemplated in Section 2.18 exist, or (iii) there is delivered to the Registrar an Opinion of
Counsel reasonably satisfactory to the Issuers and the Trustee to the effect that neither such
38
legend nor the related restrictions on transfer are required in order to maintain compliance with
the provisions of the Securities Act.
(g) General. By its acceptance of any Transfer Restricted Note, each Holder of such a
Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and agrees that it shall transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and other written communications
received pursuant to this Section 2.16.
SECTION 2.17. Issuance of Additional Notes. The Issuers shall be entitled to issue
Additional Notes under this Indenture that shall have identical terms as the Initial Notes, other
than with respect to the date of issuance, issue price and amount of interest payable on the first
interest payment date applicable thereto (and, if such Additional Notes shall be issued in the form
of Transfer Restricted Notes, other than with respect to transfer restrictions, any Registration
Rights Agreement and additional interest with respect thereto). The Initial Notes and any
Additional Notes and all Exchange Notes shall be treated as a single class for all purposes under
this Indenture.
With respect to any Additional Notes, the Issuers shall set forth in a resolution of its Board
of Directors and in an Officers’ Certificate, a copy of each of which shall be delivered to the
Trustee, the following information:
(i) the aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture;
(ii) the issue price, the date on which such Additional Notes shall be issued, the
CUSIP number, the first interest payment date and the amount of interest payable on such
first interest payment date applicable thereto and the date from which interest shall
accrue; and
(iii) whether such Additional Notes shall be Transfer Restricted Notes.
SECTION 2.18. Temporary Regulation S Global Notes. An owner of a beneficial interest
in a Temporary Regulation S Global Note (or a Person acting on behalf of such an owner) may provide
to the Trustee (and the Trustee shall accept) a duly completed certificate in the form of Exhibit E
hereto at any time after the Restricted Period (it being understood that the Trustee shall not
accept any such certificate during the Restricted Period). Promptly after acceptance of such a
certificate with respect to such a beneficial interest, the Trustee shall cause such beneficial
interest to be exchanged for an equivalent beneficial interest in a Permanent Regulation S Global
Note, and shall (x) permanently reduce the principal amount of such Temporary Regulation S Global
Note by the amount of such beneficial interest and (y) increase the principal amount of such
Permanent Regulation S Global Note by the amount of such beneficial interest.
39
ARTICLE III
REDEMPTION
SECTION 3.01. Notices to Trustee. If the Issuers elect to redeem Notes pursuant to
the optional redemption provisions of Section 3.07, they shall furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date, an Officers’ Certificate setting forth (i)
the clause of this Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Notes to be redeemed and (iv) the redemption price.
SECTION 3.02. Selection of Notes to Be Redeemed. If less than all of the Notes are
redeemed or purchased in an offer to purchase at any time, the Trustee shall select the Notes to be
redeemed or purchased among the Holders of the Notes in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a pro rata basis, by lot or in accordance with any other method the Trustee
considers fair and appropriate. In the event of partial redemption by lot, the particular Notes to
be redeemed shall be selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Notes not previously called
for redemption.
The Trustee shall promptly notify the Issuers in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes and portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the entire outstanding
amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except
as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
SECTION 3.03. Notice of Redemption. Subject to the provisions of Section 3.09, at
least 30 days but not more than 60 days before a redemption date, the Issuers shall mail or cause
to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be
redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal amount of such Note to
be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon cancellation of the original
Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to collect the
redemption price;
40
(f) that, unless the Issuers default in making such redemption payment, interest on Notes
called for redemption ceases to accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes
called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of the CUSIP number, if
any, listed in such notice or printed on the Notes.
At the Issuers’ request, the Trustee shall give the notice of redemption in the Issuers’ name
and at their expense; provided, however, that each of the Issuers shall have
delivered 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 preceding paragraph.
SECTION 3.04. Effect of Notice of Redemption. Once notice of redemption is mailed in
accordance with Section 3.03, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may be conditional.
SECTION 3.05.
Deposit of Redemption Price. At or prior to 10:00 a.m.,
New York City
time, on the redemption date, the Issuers shall deposit with the Trustee or with the Paying Agent
money sufficient to pay the redemption price of and accrued interest on all Notes to be redeemed on
that date. The Trustee or the Paying Agent shall promptly return to the Issuers any money
deposited with the Trustee or the Paying Agent by the Issuers in excess of the amounts necessary to
pay the redemption price of, and accrued interest on, all Notes to be redeemed.
If the Issuers comply with the provisions of the preceding paragraph, on and after the
redemption date, interest shall cease to accrue on the Notes or the portions of Notes called for
redemption. Notwithstanding anything herein to the contrary, if a Note is redeemed on or after an
interest record date but on or prior to the related interest payment date, then any accrued and
unpaid interest shall be paid to the Person in whose name such Note was registered on the
redemption date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Issuers to comply with the preceding paragraph, interest
shall be paid on the unpaid principal, from the redemption date until such principal is paid, and
to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01.
SECTION 3.06. Notes Redeemed in Part. Upon surrender of a Note that is redeemed in
part, the Issuers shall issue and, upon the Issuers’ written request, the Trustee shall
authenticate for the Holder at the expense of the Issuers a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
SECTION 3.07. Optional Redemption.
(a) Except as set forth in clause (b) of this Section 3.07, the Issuers shall not have the
option to redeem the Notes pursuant to this Section 3.07 prior to October 1, 2010. On or after
October 1, 2010, the Issuers shall have the option to redeem the Notes, in whole or in part, upon
not less than 30 nor more than 60 days’ notice, at the applicable redemption prices (expressed as
41
percentages of the principal amount of the Notes) set forth below plus accrued and unpaid
interest thereon, if any, to the applicable redemption date, if redeemed during the twelve-month
period beginning on October 1 of the years indicated below:
|
|
|
|
|
Year |
|
Percentage |
|
2010 |
|
|
105.500 |
% |
2011 |
|
|
102.750 |
% |
2012 |
|
|
101.375 |
% |
2013 and thereafter |
|
|
100.000 |
% |
(b) Notwithstanding the provisions of clause (a) of this Section 3.07, at any time prior to
October 1, 2008, the Issuers may, on any one or more occasions, redeem up to 35% of the original
aggregate principal amount of the Notes (including the principal amount of any Additional Notes)
issued under this Indenture on a pro rata basis (or nearly as pro rata as practicable) at a
redemption price of 111.000% of the principal amount thereof, plus accrued and unpaid interest, if
any, to the redemption date, with the net cash proceeds of one or more Equity Offerings;
provided that:
(i) at least 65% of the original aggregate principal amount of Notes (including the
principal amount of any Additional Notes) issued under this Indenture must remain
outstanding immediately after the occurrence of such redemption (excluding Notes held by the
Issuers and their Subsidiaries); and
(ii) the redemption must occur within 60 days of the date of the closing of such Equity
Offering.
Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Section 3.01 through 3.06.
SECTION 3.08. Mandatory Redemption or Repurchase. Except as otherwise provided in
Section 4.11 or Section 4.16 below, the Issuers shall not be required to make mandatory redemption
payments with respect to the Notes or be required to repurchase any Notes.
SECTION 3.09. Offer to Purchase by Application of Excess Proceeds. In the event that
the Issuers shall be required to commence an offer to all Holders to purchase Notes pursuant to
Section 4.11 (an “Asset Sale Offer”), they shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period is required by applicable law
(the “Offer Period”). No later than five Business Days after the termination of the Offer
Period (any such date of purchase, the “Purchase Date”), the Issuers shall purchase the
principal amount of Notes required to be purchased pursuant to Section 4.11 (the “Offer
Amount”) or, if less than the Offer Amount has been tendered, all Notes tendered in response to
the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as
interest payments are made. Unless the Issuers default in making such payment, any Note accepted
for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase
Date.
42
The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act (or any
successor rules) and any other securities laws and regulations thereunder to the extent such laws
and regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset
Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with
the provisions of this Section 3.09, the Issuers’ compliance with such laws and regulations shall
not in and of itself cause a breach of their obligations under this Section 3.09.
Notwithstanding anything to the contrary in this Indenture, if the Purchase Date is on or
after an interest record date and on or before the related interest payment date, any accrued and
unpaid interest shall be paid to the Person in whose name a Note is registered on the Purchase
Date.
Upon the commencement of an Asset Sale Offer the Issuers shall send, by first class mail, a
notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice shall
contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to
the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall
govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.11 and
the length of time the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue to accrue interest;
(d) that, unless the Issuers default in making such payment, any Note accepted for payment
pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect
to have Notes purchased in integral multiples of $1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be
required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase”
on the reverse of the Note completed, or transfer by book-entry transfer, to the Issuers, a
depositary, if appointed by the Issuers, or a Paying Agent at the address specified in the notice
at least three Business Days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the Issuers, the depositary
or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer
Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Note the Holder delivered for purchase and a statement that such Xxxxxx
is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Offer
Amount, the Issuers shall select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Issuers so that only Notes in denominations of
$1,000, or integral multiples thereof, shall be purchased); and
43
(i) that Holders whose Notes were purchased only in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before the Purchase Date, the Issuers shall, to the extent lawful, accept for payment,
on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer or if less than the Offer Amount has been tendered, all Notes
tendered, and shall deliver to the Trustee an Officers’ Certificate stating that such Notes or
portions thereof were accepted for payment by the Issuers in accordance with the terms of this
Section 3.09. The Issuers, the Depositary or the Paying Agent, as the case may be, shall promptly
(but in any case not later than five days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Issuers for purchase, and the Issuers shall promptly issue a new Note, and the
Trustee, upon written request from the Issuers, shall authenticate and mail or deliver such new
Note to such Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Issuers to the
Holder thereof. The Issuers shall publicly announce the results of the Asset Sale Offer on the
Purchase Date.
ARTICLE IV
COVENANTS
SECTION 4.01.
Payment of Notes. The Issuers shall pay or cause to be paid the
principal, premium, if any, and interest on the Notes on the dates and in the manner provided in
the Notes. Principal, premium, if any, and interest shall be considered paid on the date due if
the Paying Agent, if other than the Issuers or a Subsidiary thereof, holds as of 10:00 a.m.
New
York City time on the due date money deposited by the Issuers in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and interest then due. The
Issuers shall pay all Special Interest, if any, in the same manner on the dates and in the amounts
set forth in any Registration Rights Agreement.
The Issuers shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the then applicable interest rate on the Notes; they shall
pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace period) at the same rate
to the extent lawful.
SECTION 4.02. Maintenance of Office or Agency. The Issuers shall maintain an office
or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Issuers in respect of the Notes and this Indenture may be
served. The Issuers shall give prompt written notice to the Trustee of the location, and any
change in the location, of 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 of the Trustee.
44
The Issuers may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations. The Issuers shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.
The Issuers hereby designate The Bank of
New York Trust Company, NA, at 0 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000; Xxxxxxx, Xxxxxxxx 00000; Attn: Corporate Trust Department, as one such office
or agency of the Issuers in accordance with Section 2.03.
SECTION 4.03. Reports.
(a) Whether or not required by the SEC, so long as any Notes are outstanding, the Issuers
shall furnish to the Holders of Notes, within the time periods specified in the SEC’s rules and
regulations:
(1) all quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Issuers were required to
file such forms, including a “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” section and, with respect to the annual information only, a
report on the annual consolidated financial statements of the Company of its independent
public accountants; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if
the Issuers were required to file such reports.
(b) While (a) any Parent of the Company that guarantees the Notes is subject to the reporting
obligations of Section 13 or 15(d) of the Exchange Act (including pursuant to the terms of its
Indebtedness), (b) the rules and regulations of the SEC permit the Company and any such Parent to
report at the level of such Parent on a consolidated basis and (c) such Parent is not engaged in
any business in any material respect other than incidental to its direct or indirect ownership of
the Capital Stock of the Company, such consolidated reporting at such Parent level in a manner
consistent with that described in this Section 4.03 for the Company shall satisfy this Section
4.03; provided that such Parent includes in its reports information about the Company that
is required to be provided by a parent guaranteeing debt of an operating company subsidiary
pursuant to Rule 3-10 of Regulation S-X or any successor rule then in effect.
For any fiscal quarter or fiscal year at the end of which Subsidiaries of the Company are
Unrestricted Subsidiaries, the quarterly and annual financial information required by the preceding
paragraph shall include a reasonably detailed presentation, either on the face of the financial
statements or in the footnotes thereto, and in Management’s Discussion and Analysis of Financial
Condition and Results of Operations, of the financial condition and results of operations of the
Company and its Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Company.
In addition, after consummation of the Registered Exchange Offer for the Initial Notes,
whether or not required by the SEC, the Issuers shall file a copy of all of the information and
reports referred to in clauses (1) and (2) above with the SEC for public availability within the
45
time periods specified in the SEC’s rules and regulations, unless the SEC will not accept such
a filing, and make such information available to securities analysts and prospective investors upon
request.
SECTION 4.04. Compliance Certificate.
(a) The Issuers shall deliver to the Trustee, within 90 days after the end of each fiscal
year, an Officers’ Certificate stating that a review of the activities of the Issuers and their
Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Issuers have kept, observed, performed and
fulfilled their 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 have kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and are not in default
in the performance or observance of any of the terms, provisions and conditions of this Indenture
(or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events
of Default of which he or she may have knowledge and what action the Issuers are taking or propose
to take with respect thereto).
(b) The Issuers shall, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and what action the Issuers are taking or
propose to take with respect thereto.
SECTION 4.05. Taxes. The Company shall pay, and shall cause each of its Restricted
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or where the failure to
effect such payment is not likely to result in a material adverse effect on the Company and its
Restricted Subsidiaries taken as a whole.
SECTION 4.06. Stay, Extension and Usury Laws. Each of the Issuers covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and each of the Issuers (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not,
by resort to any such law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION 4.07. Restricted Payments. The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or make any other payment or distribution on account of its or
any of its Restricted Subsidiaries’ Equity Interests (including any payment in connection with any
merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the
direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests
in their capacity as such (other than dividends or distributions payable (x) solely in
46
Equity Interests (other than Disqualified Stock) of the Company or (y) in the case of the
Company and its Restricted Subsidiaries, to the Company or a Restricted Subsidiary thereof);
(b) purchase, redeem or otherwise acquire or retire for value (including in connection with
any merger or consolidation involving the Company or any of its Restricted Subsidiaries) any Equity
Interests of the Company or any direct or indirect Parent of the Company or any Restricted
Subsidiary of the Company (other than, in the case of the Company and its Restricted Subsidiaries,
any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); or
(c) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire
or retire for value, any Indebtedness of the Company that is subordinated to the Notes, except a
payment of interest or principal at the Stated Maturity thereof,
(all such payments and other actions set forth in clauses (a) through (c) above are collectively
referred to as “Restricted Payments”), unless, at the time of and after giving effect to
such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be continuing or would occur
as a consequence thereof; and
(2) the Company would, at the time of such Restricted Payment and after giving pro
forma effect thereto as if such Restricted Payment had been made at the beginning of the
applicable quarter period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section
4.10; and
(3) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries from and after the Issue Date
(excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9)
and (10) of the next succeeding paragraph), shall not exceed, at the date of determination,
the sum of the following:
(a) an amount equal to 100% of the Consolidated EBITDA of the Company for the
period beginning on the Issue Date to the end of the Company’s most recently ended
full fiscal quarter for which internal financial statements are available, taken as
a single accounting period, less the product of 1.3 times the Consolidated Interest
Expense of the Company for such period, plus
(b) an amount equal to 100% of Capital Stock Sale Proceeds less any amount of
such Capital Stock Sale Proceeds used in connection with an Investment made on or
after the Issue Date pursuant to clause (5) of the definition of “Permitted
Investments,” plus
(c) $100 million.
So long as no Default has occurred and is continuing or would be caused thereby, the preceding
provisions shall not prohibit:
47
(1) the payment of any dividend within 60 days after the date of declaration thereof,
if at said date of declaration such payment would have complied with the provisions of this
Indenture;
(2) the redemption, repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness of the Company in exchange for, or out of the net proceeds of, the
substantially concurrent sale (other than to a Subsidiary of the Company) of Equity
Interests of the Company (other than Disqualified Stock); provided that the amount
of any such net cash proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition shall be excluded from clause (3)(b) of the
preceding paragraph;
(3) the defeasance, redemption, repurchase or other acquisition of subordinated
Indebtedness of the Company or any of its Restricted Subsidiaries with the net cash proceeds
from an incurrence of Permitted Refinancing Indebtedness;
(4) regardless of whether a Default then exists, the payment of any dividend or
distribution made in respect of any calendar year or portion thereof during which the
Company or any of its Subsidiaries is a Person that is not treated as a separate tax paying
entity for United States federal income tax purposes by the Company and its Subsidiaries
(directly or indirectly) to the direct or indirect holders of the Equity Interests of the
Company or its Subsidiaries that are Persons that are treated as a separate tax paying
entity for United States federal income tax purposes, in an amount sufficient to permit each
such holder to pay the actual income taxes (including required estimated tax installments)
that are required to be paid by it with respect to the taxable income of any Parent (through
its direct or indirect ownership of the Company and/or its Subsidiaries), the Company , its
Subsidiaries or any Unrestricted Subsidiary, as applicable, in any calendar year, as
estimated in good faith by the Company or its Subsidiaries, as the case may be;
(5) regardless of whether a Default then exists, the payment of any dividend by a
Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro
rata basis;
(6) the payment of any dividend on the Helicon Preferred Stock or the redemption,
repurchase, retirement or other acquisition of the Helicon Preferred Stock in an amount not
in excess of its aggregate liquidation value;
(7) the repurchase, redemption or other acquisition or retirement for value, or the
payment of any dividend or distribution to the extent necessary to permit the repurchase,
redemption or other acquisition or retirement for value, of any Equity Interests of the
Company or a Parent of the Company held by any member of the Company’s, such Parent’s or any
Restricted Subsidiary’s management pursuant to any management equity subscription agreement
or stock option agreement entered into in accordance with the policies of the Company, any
Parent or any Restricted Subsidiary; provided that the aggregate price paid for all
such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $10
million in any fiscal year of the Issuers;
48
(8) payment of fees in connection with any acquisition, merger or similar transaction
in an amount that does not exceed an amount equal to 1.25% of the transaction value of such
acquisition, merger or similar transaction;
(9) additional Restricted Payments directly or indirectly to CIH or any other Parent
(i) regardless of whether a Default (other than a Default under Section 6.01(1), (2), (7) or
(8)) exists, for the purpose of enabling Charter Holdings, CIH or any Charter Refinancing
Subsidiary to pay interest when due on Indebtedness under the Charter Holdings Indentures,
the CIH Indenture and/or any Charter Refinancing Indebtedness, (ii) for the purpose of
enabling CCI and/or any Charter Refinancing Subsidiary to pay interest when due on
Indebtedness under the CCI Indentures and/or any Charter Refinancing Indebtedness and (iii)
so long as the Company would have been permitted, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been made at the
beginning of the applicable quarter period, to incur at least $1.00 of additional
Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section
4.10, (A) to the extent required to enable Charter Holdings, CIH, CCI or any Charter
Refinancing Subsidiary to defease, redeem, repurchase, prepay, repay, discharge or otherwise
acquire or retire Indebtedness under the Charter Holdings Indentures, the CIH Indenture, the
CCI Indentures or any Charter Refinancing Indebtedness (including any expenses incurred by
any Parent in connection therewith) or (B) consisting of purchases, redemptions or other
acquisitions by the Company or its Restricted Subsidiaries of Indebtedness under the Charter
Holdings Indentures, the CIH Indenture, the CCI Indentures or any Charter Refinancing
Indebtedness (including any expenses incurred by the Company and its Restricted Subsidiaries
in connection therewith) and the distribution, loan to or investment in any Parent of
Indebtedness so purchased, redeemed or acquired; and
(10) Restricted Payments that are part of the Exchange Offers.
The amount of all Restricted Payments (other than cash) shall be the fair market value on the
date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued
by the Company or any of its Restricted Subsidiaries pursuant to the Restricted Payment. The fair
market value of any assets or securities that are required to be valued by this covenant shall be
determined by the Board of Directors of the Company, whose resolution with respect thereto shall be
delivered to the Trustee. Such Board of Directors’ determination must be based upon an opinion or
appraisal issued by an accounting, appraisal or investment banking firm of national standing if the
fair market value exceeds $100 million.
Not later than the date of making any Restricted Payment involving an amount or fair market
value in excess of $10 million, the Issuers 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 4.07 were computed, together with a copy of any fairness
opinion or appraisal required by this Indenture.
SECTION 4.08. Investments. The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
49
(1) make any Restricted Investment; or
(2) allow any of its Restricted Subsidiaries to become an Unrestricted Subsidiary,
unless, in each case:
(a) no Default or Event of Default shall have occurred and be continuing or
would occur as a consequence thereof; and
(b) the Company would, at the time of, and after giving effect to, such
Restricted Investment or such designation of a Restricted Subsidiary as an
Unrestricted Subsidiary, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of
Section 4.10.
An Unrestricted Subsidiary may be redesignated as a Restricted Subsidiary if such
redesignation would not cause a Default.
SECTION 4.09. Dividend and Other Payment Restrictions Affecting Subsidiaries. The
Company shall not, directly or indirectly, create, or permit to exist or become effective any
encumbrance or restriction on the ability of any of its Restricted Subsidiaries to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits, or pay any Indebtedness owed to the Company
or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries.
However, the preceding restrictions shall not apply to encumbrances or restrictions existing
under or by reason of:
(1) Existing Indebtedness, contracts and other instruments as in effect on the Issue
Date and any amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacements or
refinancings are not materially more restrictive, taken as a whole, with respect to such
dividend and other payment restrictions than those contained in the most restrictive
Existing Indebtedness, contracts or other instruments, as in effect on the Issue Date;
(2) applicable law;
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(3) any instrument governing Indebtedness or Capital Stock of a Person acquired by the
Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness was incurred in connection with or in contemplation
of such acquisition), which encumbrance or restriction is not applicable to any Person, or
the properties or assets of any Person, other than the Person, or the property or assets of
the Person, so acquired; provided that, in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to be incurred;
(4) customary non-assignment provisions in leases, franchise agreements and other
commercial agreements entered into in the ordinary course of business;
(5) purchase money obligations for property acquired in the ordinary course of business
that impose restrictions on the property so acquired of the nature described in clause (3)
of the preceding paragraph;
(6) any agreement for the sale or other disposition of Capital Stock or assets of a
Restricted Subsidiary of the Company that restricts distributions by such Restricted
Subsidiary pending such sale or other disposition;
(7) Permitted Refinancing Indebtedness; provided that the restrictions
contained in the agreements governing such Permitted Refinancing Indebtedness are not
materially more restrictive at the time such restrictions become effective, taken as a
whole, than those contained in the agreements governing the Indebtedness being refinanced;
(8) Liens securing Indebtedness or other obligations otherwise permitted to be incurred
under Section 4.14 that limit the right of the Company or any of its Restricted Subsidiaries
to dispose of the assets subject to such Lien;
(9) provisions with respect to the disposition or distribution of assets or property in
joint venture agreements and other similar agreements entered into in the ordinary course of
business;
(10) restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business;
(11) restrictions contained in the terms of Indebtedness or Preferred Stock permitted
to be incurred under Section 4.10; provided that such restrictions are not
materially more restrictive, taken as a whole, than the terms contained in the most
restrictive, together or individually, of the Credit Facilities and other Existing
Indebtedness as in effect on the Issue Date; and
(12) restrictions that are not materially more restrictive, taken as a whole, than
customary provisions in comparable financings and that the management of the Company
determines, at the time of such financing, will not materially impair the Issuers’ ability
to make payments as required under the Notes.
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SECTION 4.10. Incurrence of Indebtedness and Issuance of Preferred Stock. The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly,
create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness
(including Acquired Debt) and the Company shall not issue any Disqualified Stock and shall not
permit any of its Restricted Subsidiaries to issue any shares of Disqualified Stock or Preferred
Stock, provided that the Company or any of its Restricted Subsidiaries may incur
Indebtedness, the Company may issue Disqualified Stock and, subject to the final paragraph of this
covenant below, Restricted Subsidiaries of the Company may issue Preferred Stock if the Leverage
Ratio of the Company and its Restricted Subsidiaries would have been not greater than 7.5 to 1.0
determined on a pro forma basis (including a pro forma application of the net proceeds therefrom),
as if the additional Indebtedness had been incurred, or the Disqualified Stock or Preferred Stock
had been issued, as the case may be, at the beginning of the most recently ended fiscal quarter.
So long as no Default shall have occurred and be continuing or would be caused thereby, the
first paragraph of this covenant shall not prohibit the incurrence of any of the following items of
Indebtedness (collectively, “Permitted Debt”):
(1) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness under
Credit Facilities; provided that the aggregate principal amount of all Indebtedness
of the Company and its Restricted Subsidiaries outstanding under this clause (1) for all
Credit Facilities of the Company and its Restricted Subsidiaries after giving effect to such
incurrence does not exceed an amount equal to $9.75 billion less the aggregate amount of all
Net Proceeds from Asset Sales applied by the Company or any of its Restricted Subsidiaries
to repay any such Indebtedness under a Credit Facility pursuant to Section 4.11;
(2) the incurrence by the Company and its Restricted Subsidiaries of Existing
Indebtedness (other than under Credit Facilities);
(3) the incurrence on the Issue Date by the Company of Indebtedness represented by the
Notes (but not including any Additional Notes);
(4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money obligations,
in each case, incurred for the purpose of financing all or any part of the purchase price or
cost of construction or improvement (including the cost of design, development,
construction, acquisition, transportation, installation, improvement, and migration) of
Productive Assets of the Company or any of its Restricted Subsidiaries, in an aggregate
principal amount not to exceed, together with any related Permitted Refinancing Indebtedness
permitted by clause (5) below, $75 million at any time outstanding:
(5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund,
refinance or replace, in whole or in part, Indebtedness (other than
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intercompany Indebtedness) that was permitted by this Indenture to be incurred under
this clause (5), the first paragraph of this covenant or clauses (2), (3) or (4) of this
paragraph;
(6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company and any of its Restricted Subsidiaries;
provided that:
(a) if the Company is the obligor on such Indebtedness, such Indebtedness must
be expressly subordinated to the prior payment in full in cash of all Obligations
with respect to the Notes; and
(b) (i) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Restricted Subsidiary thereof, shall be
deemed, in each case, to constitute an incurrence of such Indebtedness that was not
permitted by this clause (6);
(7) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations that are incurred for the purpose of fixing or hedging interest rate risk with
respect to any floating rate Indebtedness that is permitted by the terms of this Indenture
to be outstanding;
(8) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness
of a Restricted Subsidiary of the Company that was permitted to be incurred by another
provision of this Section 4.10;
(9) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness in an aggregate principal amount at any time outstanding under this clause (9),
not to exceed $300 million; and
(10) the accretion or amortization of original issue discount and the write up of
Indebtedness in accordance with purchase accounting.
For purposes of determining compliance with this Section 4.10, any Indebtedness under Credit
Facilities outstanding on the Issue Date shall be deemed to have been incurred pursuant to clause
(1) above, and, in the event that an item of proposed Indebtedness (other than any Indebtedness
initially deemed on the Issue Date to be incurred under clause (1) above) (a) meets the criteria of
more than one of the categories of Permitted Debt described in clauses (1) through (10) above or
(b) is entitled to be incurred pursuant to the first paragraph of this covenant, the Company shall
be permitted to classify and from time to time to reclassify such item of Indebtedness in any
manner that complies with this covenant. Once any item of Indebtedness is so reclassified, it
shall no longer be deemed outstanding under the category of Permitted Debt where initially incurred
or previously reclassified. For avoidance of doubt, Indebtedness incurred pursuant to a single
agreement, instrument, program, facility or line of credit may be classified as Indebtedness
arising in part under one of the clauses listed above or under the first paragraph of this
covenant, and in part under any one or more of the other clauses listed above, to the extent that
such Indebtedness satisfies the criteria for such classification.
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Notwithstanding the foregoing, in no event shall any Restricted Subsidiary of the Company
consummate a Subordinated Debt Financing or a Preferred Stock Financing. A “Subordinated Debt
Financing” or a “Preferred Stock Financing,” as the case may be, with respect to any
Restricted Subsidiary of the Company shall mean a public offering or private placement (whether
pursuant to Rule 144A under the Securities Act or otherwise) of Subordinated Notes or Preferred
Stock (whether or not such Preferred Stock constitutes Disqualified Stock), as the case may be, of
such Restricted Subsidiary to one or more purchasers (other than to one or more Affiliates of the
Company). “Subordinated Notes” with respect to any Restricted Subsidiary of the Company
shall mean Indebtedness of such Restricted Subsidiary that is contractually subordinated in right
of payment to any other Indebtedness of such Restricted Subsidiary (including Indebtedness under
Credit Facilities), provided that the foregoing shall not apply to priority of Liens,
including by way of intercreditor arrangements. The foregoing limitation shall not apply to:
(a) any Indebtedness or Preferred Stock of any Person existing at the time such Person is
merged with or into or becomes a Subsidiary of the Company; provided that such Indebtedness
or Preferred Stock was not incurred or issued in connection with, or in contemplation of, such
Person merging with or into, or becoming a Subsidiary of, the Company, and
(b) any Indebtedness or Preferred Stock of a Restricted Subsidiary issued in connection with,
and as part of the consideration for, an acquisition, whether by stock purchase, asset sale, merger
or otherwise, in each case involving such Restricted Subsidiary, which Indebtedness or Preferred
Stock is issued to the seller or sellers of such stock or assets; provided that such
Restricted Subsidiary is not obligated to register such Indebtedness or Preferred Stock under the
Securities Act or obligated to provide information pursuant to Rule 144A under the Securities Act.
SECTION 4.11. Limitation on Asset Sales. The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of
such Asset Sale at least equal to the fair market value of the assets or Equity Interests
issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company and
evidenced by a resolution of such Board of Directors set forth in an Officers’ Certificate
delivered to the Trustee; and
(3) at least 75% of the consideration therefor received by the Company or such
Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable
securities.
For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent
balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent
liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by
the
54
transferee of any such assets pursuant to a customary novation agreement that releases the
Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted
Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash
Equivalents or readily marketable securities within 60 days after receipt thereof (to the extent of
the cash, Cash Equivalents or readily marketable securities received in that conversion); and
(c) Productive Assets.
Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a
Restricted Subsidiary thereof may apply such Net Proceeds at its option:
(1) to repay debt under Credit Facilities or any other Indebtedness of the Restricted
Subsidiaries of the Company (other than Indebtedness represented by a guarantee of a
Restricted Subsidiary of the Company); or
(2) to invest in Productive Assets; provided that any such amount of Net
Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in
Productive Assets within 365 days of the applicable Asset Sale may be invested in Productive
Assets within two years of such Asset Sale.
The amount of any Net Proceeds received from Asset Sales that are not applied or invested as
provided in the preceding paragraph shall constitute “Excess Proceeds.” When the aggregate
amount of Excess Proceeds exceeds $25 million, the Company shall make an Asset Sale Offer to all
Holders of Notes and will repay, redeem or offer to purchase all Pari Passu Secured Indebtedness of
the Company that contains provisions requiring repayment, redemption or offers to purchase with the
proceeds of sales of assets, to purchase, repay or redeem, on a pro rata basis, the maximum
principal amount of Notes and such Pari Passu Secured Indebtedness that may be purchased, repaid or
redeemed out of the Excess Proceeds, which amount includes the entire amount of the Net Proceeds.
The offer price in any Asset Sale Offer shall be payable in cash and equal to 100% of the principal
amount of the subject Notes plus accrued and unpaid interest, if any, to the date of purchase. If
the aggregate principal amount of Notes tendered into such Asset Sale Offer and such Pari
Passu Secured Indebtedness to be purchased, repaid or redeemed out of the Excess Proceeds
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes tendered into such Asset
Sale Offer and such Pari Passu Secured Indebtedness to be purchased, repaid or
redeemed on a pro rata basis.
If any Excess Proceeds remain after consummation of an Asset Sale Offer, then the Company or
any Restricted Subsidiary thereof may use such remaining Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. Upon completion of any Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero.
In the event that the Company shall be required to commence an offer to Holders to purchase
Notes pursuant to this Section 4.11, it shall follow the procedures specified in Sections 3.01
through 3.09.
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SECTION 4.12. Sale and Leaseback Transactions. The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, enter into any sale and leaseback transaction;
provided that the Company and its Restricted Subsidiaries may enter into a sale and
leaseback transaction if:
(1) the Company or such Restricted Subsidiary could have
(a) incurred Indebtedness in an amount equal to the Attributable Debt relating
to such sale and leaseback transaction under the Leverage Ratio test in the first
paragraph of Section 4.10 and
(b) incurred a Lien to secure such Indebtedness pursuant to Section 4.14 or the
definition of Permitted Liens; and
(2) the transfer of assets in that sale and leaseback transaction is permitted by, and
the Company or such Restricted Subsidiary applies the proceeds of such transaction in
compliance with, Section 4.11.
The foregoing restrictions shall not apply to a sale and leaseback transaction if the lease is
for a period, including renewal rights, of not in excess of three years.
SECTION 4.13. Transactions with Affiliates. The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any property or assets from,
or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance
or guarantee with, or for the benefit of, any Affiliate (each, an “Affiliate Transaction”),
unless:
(1) such Affiliate Transaction is on terms that are not less favorable to the Company
or the relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with a Person who is not
an Affiliate; and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction, or series of related Affiliate
Transactions, involving aggregate consideration given or received by the Company or
any such Restricted Subsidiary in excess of $15 million, a resolution of the Board
of Directors of the Company or CCI set forth in an Officers’ Certificate certifying
that such Affiliate Transaction complies with this Section 4.13 and that such
Affiliate Transaction has been approved by a majority of the members of such Board
of Directors; and
(b) with respect to any Affiliate Transaction, or series of related Affiliate
Transactions, involving aggregate consideration given or received by the Company or
any Restricted Subsidiary in excess of $50 million, an opinion as to the fairness to
the Holders of such Affiliate Transaction from a financial point of view issued by
an accounting, appraisal or investment banking firm of national standing.
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The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not
be subject to the provisions of the prior paragraph:
(1) any existing employment agreement and employee benefit arrangement (including stock
purchase or option agreements, deferred compensation plans, and retirement, savings or
similar plans) entered into by the Company or any of its Subsidiaries and any employment
agreement and employee benefit arrangements entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(3) payment of reasonable directors fees to Persons who are not otherwise Affiliates of
the Company, and customary indemnification and insurance arrangements in favor of directors,
regardless of affiliation with the Company or any of its Restricted Subsidiaries;
(4) payment of Management Fees;
(5) Restricted Payments that are permitted by Section 4.07 and Restricted Investments
that are permitted by Section 4.08;
(6) Permitted Investments;
(7) transactions pursuant to agreements existing on the Issue Date, as in effect on the
Issue Date, or as subsequently modified, supplemented, or amended, to the extent that any
such modifications, supplements or amendments comply with the applicable provisions of the
first paragraph of this Section 4.13; and
(8) contributions to the common equity capital of the Company or the issue or sale of
Equity Interests of the Company.
SECTION 4.14. Liens. The Company shall not, directly or indirectly, create, incur,
assume or suffer to exist any Lien of any kind securing Indebtedness, Attributable Debt or trade
payables on any asset of the Company, whether owned on the Issue Date or thereafter acquired,
except Permitted Liens.
SECTION 4.15. Existence. Subject to Article 5, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its limited liability
company existence, and the corporate, partnership or other existence of each of its Subsidiaries,
in accordance with the respective organizational documents (as the same may be amended from time to
time) of the Company or any such Restricted Subsidiary and (ii) the rights (charter and statutory),
licenses and franchises of the Company and its Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Restricted Subsidiaries (other than Capital
Corp), if the Board of Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its Restricted
57
Subsidiaries, taken as a whole, and that the loss thereof is not likely to result in a
material adverse effect on the Company and its Restricted Subsidiaries taken as a whole.
SECTION 4.16. Repurchase at the Option of Holders upon a Change of Control. If a
Change of Control occurs, each Holder of Notes shall have the right to require the Issuers to
repurchase all or any part (equal to $1,000 in principal amount, or in either case, an integral
multiple thereof) of that Xxxxxx’s Notes pursuant to a “Change of Control Offer.” In the
Change of Control Offer, the Issuers shall offer a “Change of Control Payment” in cash
equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid
interest thereon, if any, to the date of purchase.
Within ten days following any Change of Control, the Issuers shall mail a notice to each
Holder (with a copy to the Trustee) describing the transaction or transactions that constitute the
Change of Control and stating:
(1) the purchase price and the purchase date, which shall not exceed 30 Business Days
from the date such notice is mailed (the “Change of Control Payment Date”);
(2) that any Note not tendered shall continue to accrue interest;
(3) that, unless the Issuers default in the payment of the Change of Control Payment,
all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue
interest after the Change of Control Payment Date;
(4) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer shall be required to surrender the Notes, with the form entitled “Option of Holder
to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry
transfer, to the Issuers, a depositary, if appointed, or a Paying Agent at the address
specified in the notice prior to the close of business on the third Business Day preceding
the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second Business Day preceding the
Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of Notes delivered for purchase, and a
statement that such Xxxxxx is withdrawing his election to have the Notes purchased; and
(6) that Holders whose Notes are being purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $1,000 in principal amount or an integral multiple
thereof.
The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act (or any
successor rules) and any other securities laws and regulations thereunder to the extent such laws
and regulations are applicable in connection with the repurchase of the Notes as a result of a
Change of Control. To the extent that the provisions of any securities laws or regulations
58
conflict with the provisions of this Section 4.16, the Issuers’ compliance with such laws and
regulations shall not in and of itself cause a breach of their obligations under this Section 4.16.
On the Change of Control Payment Date, the Issuers shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the
Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with
an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof
being purchased by the Issuers.
Notwithstanding anything to the contrary in this Indenture, if the Change of Control Payment
Date is on or after an interest record date and on or before the related interest payment date, any
accrued and unpaid interest shall be paid to the Person in whose name a Note is registered on the
Change of Control Payment Date.
The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control
Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that each such new Note shall be in a
principal amount of $1,000 or an integral multiple thereof. The Issuers shall publicly announce
the results of the Change of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
The provisions described above that require the Issuers to make a Change of Control Offer
following a Change of Control shall be applicable regardless of whether or not any other provisions
in this Indenture are applicable.
Notwithstanding any other provision of this Section 4.16, the Issuers shall not be required to
make a Change of Control Offer upon a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the requirements set
forth in this Indenture applicable to a Change of Control Offer made by the Issuers and purchases
all Notes validly tendered and not withdrawn under such Change of Control Offer.
SECTION 4.17. Limitations on Issuances of Guarantees of Indebtedness. The Company
shall not permit any of its Restricted Subsidiaries, directly or indirectly, to Guarantee or pledge
any assets to secure the payment of any other Indebtedness of the Company, except in respect of
Credit Facilities (the “Guaranteed Indebtedness”), unless:
(1) such Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture providing for the Guarantee (a “Subsidiary Guarantee”) of the payment of
the Notes by such Restricted Subsidiary, and
59
(2) until one year after all the Notes have been paid in full in cash, such Restricted
Subsidiary waives and will not in any manner whatsoever claim or take the benefit or
advantage of, any rights of reimbursement, indemnity or subrogation or any other rights
against the Company or any other Restricted Subsidiary thereof as a result of any payment by
such Restricted Subsidiary under its Subsidiary Guarantee;
provided that this paragraph shall not be applicable to any Guarantee of any Restricted
Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not incurred
in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary.
If the Guaranteed Indebtedness is subordinated to the Notes, then the Guarantee of such
Guaranteed Indebtedness shall be subordinated to the Subsidiary Guarantee at least to the extent
that the Guaranteed Indebtedness is subordinated to the Notes.
Any Subsidiary Guarantee shall terminate upon the release of such guarantor from its guarantee
of the Guaranteed Indebtedness.
SECTION 4.18. Payments for Consent. The Company shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for
the benefit of any Holder of Notes for or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of this Indenture or the Notes unless such consideration is offered
to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent, waiver or amendment.
SECTION 4.19. Application of Fall-Away Covenants. During any period of time that (a)
the Notes have Investment Grade Ratings from both Rating Agencies and (b) no Default or Event of
Default has occurred and is continuing under this Indenture, (i) the Trustee will be required to
release all its right, title and interest in the Collateral, and (ii) the Company and its
Restricted Subsidiaries shall not be subject to the provisions of Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13 and clause (d) of Section 5.01 (collectively, the “Suspended Covenants”).
If the Company and its Restricted Subsidiaries are not subject to the Suspended Covenants for
any period of time as a result of the previous sentence and, subsequently, one, or both of the
Rating Agencies withdraws its ratings or downgrades the ratings assigned to the Notes below the
required Investment Grade Ratings or a Default or Event of Default occurs and is continuing, then
(a) the Company will again grant a first priority Lien in the Collateral (subject to Permitted
Liens) to the Trustee for the benefit of the Holders of the Notes, and (b) the Company and its
Restricted Subsidiaries shall thereafter again be subject to the Suspended Covenants. The ability
of the Company and its Restricted Subsidiaries to make Restricted Payments after the time of such
withdrawal, downgrade, Default or Event of Default shall be calculated in accordance with the terms
of Section 4.07 as though such covenant had been in effect during the entire period of time from
the Issue Date.
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ARTICLE V
SUCCESSORS
SECTION 5.01. Merger, Consolidation, or Sale of Assets. Neither Issuer may, directly
or indirectly: (1) consolidate or merge with or into another Person (whether or not such Issuer is
the surviving Person) or (2) sell, assign, transfer, convey or otherwise dispose of all or
substantially all of its properties or assets, in one or more related transactions, to another
Person; unless:
(a) either:
(i) such Issuer is the surviving Person; or
(ii) the Person formed by or surviving any such consolidation or merger (if other than
such Issuer) or to which such sale, assignment, transfer, conveyance or other disposition
shall have been made is a Person organized or existing under the laws of the United States,
any state thereof or the District of Columbia, provided that if the Person formed by
or surviving any such consolidation or merger with such Issuer is a Person other than a
corporation, a corporate co-issuer shall also be an obligor with respect to the Notes;
(b) the Person formed by or surviving any such consolidation or merger (if other than such
Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition
shall have been made assumes all the obligations of such Issuer under the Notes and this Indenture
pursuant to agreements reasonably satisfactory to the Trustee;
(c) immediately after such transaction no Default or Event of Default exists; and
(d) such Issuer or the Person formed by or surviving any such consolidation or merger (if
other than such Issuer) will, on the date of such transaction after giving pro
forma effect thereto and any related financing transactions as if the same had occurred at
the beginning of the applicable period,
(x) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Leverage Ratio test set forth in the first paragraph of Section 4.10; or
(y) have a Leverage Ratio immediately after giving effect to such consolidation or
merger no greater than the Leverage Ratio immediately prior to such consolidation or merger.
In addition, neither of the Issuers may, directly or indirectly, lease all or substantially
all of their properties or assets, in one or more related transactions, to any other Person. The
foregoing clause (d) shall not apply to a sale, assignment, transfer, conveyance or other
disposition of assets between or among an Issuer and any of its Wholly Owned Restricted
Subsidiaries or to the consummation of the Exchange Offers.
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SECTION 5.02. Successor Corporation Substituted. Upon any consolidation or merger, or
any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all
of the assets of either Issuer in accordance with Section 5.01, the successor Person formed by such
consolidation or into which either Issuer is merged or to which such transfer is made shall succeed
to and (except in the case of a lease) be substituted for, and may exercise every right and power
of, such Issuer under this Indenture with the same effect as if such successor Person had been
named therein as such Issuer, and (except in the case of a lease) such Issuer shall be released
from the obligations under the Notes and this Indenture, except with respect to any obligations
that arise from, or are related to, such transaction.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. Each of the following is an “Event of
Default” with respect to the Notes:
(1) default for 30 consecutive days in the payment when due of interest on the Notes;
(2) default in payment when due of the principal of or premium, if any, on the Notes;
(3) failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions of Sections 4.16 or 5.01;
(4) failure by the Company or any of its Restricted Subsidiaries for 30 consecutive
days after written notice thereof has been given to the Issuers by the Trustee, or to the
Issuers and the Trustee by Holders of at least 25% of the aggregate principal amount of the
Notes then outstanding, to comply with any of their other covenants or agreements in this
Indenture;
(5) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the Issue Date, if that default:
(a) is caused by a failure to pay at final stated maturity the principal amount
of such Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a “Payment Default”); or
(b) results in the acceleration of such Indebtedness prior to its express
maturity,
and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment
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Default or the maturity of which has been so accelerated, aggregates $100 million or more;
(6) failure by the Company or any of its Restricted Subsidiaries to pay final judgments
which are non-appealable aggregating in excess of $100 million, net of applicable insurance
which has not been denied in writing by the insurer, which judgments are not paid,
discharged or stayed for a period of 60 days;
(7) the Company or any of its Significant Subsidiaries 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, or
(d) makes a general assignment for the benefit of its creditors;
(8) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(a) is for relief against the Company or any of its Significant Subsidiaries in
an involuntary case;
(b) appoints a custodian of the Company or any of its Significant Subsidiaries
or for all or substantially all of the property of the Company or any of its
Significant Subsidiaries; or
(c) orders the liquidation of the Company or any of its Significant
Subsidiaries;
and the order or decree remains unstayed and in effect for 60 consecutive days; or
(9) so long as the Pledge Agreement has not otherwise been terminated in accordance
with its terms, (a) failure by the Company for 30 consecutive days after written notice
thereof has been given to the Company by the Trustee or to the Company and the Trustee by
Holders of at least 25% of the aggregate principal amount of the Notes outstanding to comply
with any of the Company’s covenants or agreements in the Pledge Agreement which failure
adversely affects the enforceability, validity, perfection or priority of the Trustee’s Lien
on the Collateral or (b) repudiation or disaffirmation by the Company of the Pledge
Agreement.
SECTION 6.02. Acceleration. In the case of an Event of Default arising from clauses
(7) or (8) of Section 6.01 with respect to the Company, all outstanding Notes shall become due and
payable immediately without further action or notice. If any other Event of
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Default occurs and is continuing, the Trustee by notice to the Issuers or the Holders of at
least 25% in principal amount of the then outstanding Notes by notice to the Issuers and the
Trustee may declare all the Notes to be due and payable immediately. The Holders of a majority in
aggregate principal amount of the Notes then outstanding by written notice to the Trustee may on
behalf of all of the Holders rescind an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default (except nonpayment
of principal, interest or premium that has become due solely because of the acceleration) have been
cured or waived.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and
interest on the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Existing Defaults. Holders of not less than a majority in
aggregate principal amount of the then outstanding Notes by notice to the Trustee may on behalf of
the Holders of all of the Notes waive any existing Default or Event of Default and its consequences
hereunder, except a continuing Default or Event of Default in the payment of the principal of, or
premium, if any, or interest on, the Notes (provided, however, that the Holders of
a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration
and its consequences, including any related payment default that resulted from such acceleration).
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 impair any right consequent thereon.
SECTION 6.05. Control by Majority. Holders of a majority in principal amount of the
then outstanding Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture
that the Trustee determines may be prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability. The Trustee may take any other action which it deems
proper that is not inconsistent with any such directive.
SECTION 6.06. Limitation on Suits. A Holder of a Note may pursue a remedy with
respect to this Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a continuing Event of Default;
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(b) the Holders of at least 25% in principal amount of the then outstanding Notes make a
written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after receipt of the request
and the offer and, if requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a
Note or to obtain a preference or priority over another Holder of a Note.
SECTION 6.07. Rights of Holders of Notes to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Note to receive payment of
principal, premium, if any, and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default specified in Section
6.01(1) or (2) occurs and is continuing, the Trustee is authorized to recover judgment in its own
name and as trustee of an express trust against the Issuers for the whole amount of principal of,
premium, if any, and interest remaining unpaid on the Notes and interest on overdue principal and,
to the extent lawful, interest and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee is authorized to file
such proofs of claim and other papers or documents as may be 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 the Holders of the Notes
allowed in any judicial proceedings relative to the Issuers (or any other obligor upon the Notes),
their creditors or their property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such claims 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 to the Trustee any amount due to 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 7.07. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the Holders may be entitled
to receive in such proceeding whether in liquidation
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or under any plan of reorganization or arrangement or otherwise. 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, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant to this Article
or the Pledge Agreement, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 7.07, including
payment of all compensation, expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for interest, ratably,
without preference or priority of any kind, according to the amounts due and payable on the Notes
for interest;
Third: to Holders of Notes for amounts due and unpaid on the Notes for principal and premium,
ratably, without preference or priority of any kind, according to the amounts due and payable on
the Notes for principal and premium, respectively; and
Fourth: to the Issuers or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs. 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 or omitted by
it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit
of an undertaking to pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder of a Note
pursuant to Section 6.07, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee.
(1) If an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture and the Pledge Agreement, and
use the same degree of care and skill in its exercise, as a prudent person would exercise or
use under the circumstances in the conduct of such person’s own affairs.
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(2) Except during the continuance of an Event of Default:
(a) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Pledge Agreement and the Trustee need perform
only those duties that are specifically set forth in this Indenture and the Pledge
Agreement and no others, and no implied covenants or obligations shall be read into
this Indenture or the Pledge Agreement against the Trustee; and
(b) in the absence of bad faith 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 required to be furnished to the Trustee
hereunder and conforming to the requirements of this Indenture and the Pledge
Agreement. However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this Indenture and the
Pledge Agreement (but need not confirm or investigate the accuracy of any
mathematical calculations or other facts stated therein).
(3) The Trustee may not be relieved from liabilities for its own gross negligent
action, its own gross negligent failure to act, or its own willful misconduct, except that:
(a) this paragraph does not limit the effect of paragraph (2) of this Section;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it is proved that the Trustee was grossly
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant
to Section 6.05.
(4) Whether or not therein expressly so provided, every provision of this Indenture and
the Pledge Agreement that in any way relates to the Trustee is subject to paragraphs (1),
(2), and (3) of this Section 7.01.
(5) No provision of this Indenture or the Pledge Agreement shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture or the Pledge
Agreement at the request of any Holders, unless such Holder shall have offered to the
Trustee security and indemnity satisfactory to it against any loss, liability, claim, damage
or expense.
(6) The Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Issuers. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law.
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(7) 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 or other paper or documents.
SECTION 7.02. Rights of Trustee.
(1) The Trustee may conclusively rely upon any document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or presented by the
proper Person. The Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officers’ Certificate or
Opinion of Counsel. The Trustee may consult with counsel of its own selection and the
written advice or opinion of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(3) The Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred upon it by
this Indenture or the Pledge Agreement.
(5) Unless otherwise specifically provided in this Indenture or the Pledge Agreement,
any demand, request, direction or notice from either of the Issuers shall be sufficient if
signed by an Officer of such Issuer.
(6) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture or the Pledge Agreement at the request or direction of any of
the Holders unless such Holders shall have offered to the Trustee reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
(7) The Trustee shall not be charged with knowledge of any Default or Event of Default
unless either (a) a Responsible Officer of the Trustee shall have actual knowledge of such
Default or Event of Default or (b) written notice of such Default or Event of Default shall
have been given to and received by a Responsible Officer of the Trustee by the Issuers or
any Holder.
(8) In no event shall the Trustee be responsible or liable for special, indirect or
consequential loss or damage of any kind whatsoever (including loss of profit) irrespective
of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.
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(9) The rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each agent, custodian and other Person
employed by the Trustee to act hereunder.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuers or
any Affiliate of the Issuers with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the SEC for permission to continue as trustee or resign. Any Agent may do
the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11.
SECTION 7.04. Trustee’s Disclaimer. The Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not
be accountable for the Issuers’ use of the proceeds from the Notes or any money paid to the Issuers
or upon the Issuers’ direction under any provision of this Indenture, it shall not be responsible
for the use or application of any money received by any Paying Agent other than the Trustee, and it
shall not be responsible for any statement or recital herein or any statement in the Notes or any
other document in connection with the sale of the Notes or pursuant to this Indenture other than
its certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default or Event of Default occurs and is
continuing and if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to
Holders of Notes a notice of the Default or Event of Default within 90 days after the Trustee
acquires knowledge thereof. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, or interest on any Note, the Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines that withholding the
notice is in the interests of the Holders of the Notes.
SECTION 7.06. Reports by Trustee to Holders of the Notes. By May 15th of each year,
and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of the Notes a
brief report dated as of such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months preceding the reporting date,
no report need be transmitted). The Trustee also shall comply with TIA Section 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to
the Company and filed with the SEC and each stock exchange on which the Notes are listed in
accordance with TIA Section 313(d). The Issuers shall promptly notify the Trustee when the Notes
are listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity. The Issuers, jointly and severally, shall
pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture,
the Pledge Agreement, any Registration Rights Agreement and any other document delivered in
connection with any of such agreements and its services under any of such agreements or other
documents, as separately agreed in writing. The Trustee’s compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Issuers
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shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances
and expenses incurred or made by it in addition to the compensation for its services. Such
expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s
agents and counsel.
The Issuers shall, jointly and severally, indemnify the Trustee against any and all losses,
liabilities, claims, damages or expenses (including reasonable legal fees and expenses) incurred by
it arising out of or in connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture, the Pledge Agreement, any
Registration Rights Agreement and any other document delivered in connection therewith (including
this Section 7.07) and defending itself against any claim (whether asserted by the Issuers or any
Holder or any other person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability or expense is
determined to have been caused by its own gross negligence or willful misconduct. The Trustee
shall notify the Issuers promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Issuers shall not relieve the Issuers of their obligations hereunder. The
Issuers shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Issuers shall pay the reasonable fees and expenses of such counsel.
The Issuers need not pay for any settlement made without their consent, which consent shall not be
unreasonably withheld.
The obligations of the Issuers under this Section 7.07 shall survive resignation or removal of
the Trustee and the satisfaction and discharge of this Indenture.
To secure the Issuers’ payment obligations in this Section, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Notes. Such Lien shall survive the resignation
or removal of the Trustee and the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(7) or (8) occurs, the expenses and the compensation for the services (including the
fees and expenses of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2) to the extent
applicable.
SECTION 7.08. Replacement of Trustee. A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the trust hereby created
by so notifying the Issuers. The Holders of a majority in principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Issuers in writing. The Issuers
may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
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(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with
respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Issuers shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Issuers.
If a successor Xxxxxxx does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Issuers, or the Holders of at least 10% in principal
amount of the then outstanding Notes may petition at the expense of the Issuers any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuers. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee; provided all sums owing to the Trustee hereunder have been paid and
subject to the Lien provided for in Section 7.07. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Issuers’ obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Xxxxxx, etc. If the Trustee consolidates, merges
or converts into, or transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification. There shall at all times be a Trustee
hereunder that is a corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise corporate trustee
power, that is subject to supervision or examination by federal or state authorities and that has a
combined capital and surplus of at least $100 million as set forth in its most recent published
annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements of TIA Section
310(a)(1), (2) and (5). The Trustee is subject to TIA Section 310(b).
SECTION 7.11. Preferential Collection of Claims Against the Issuers. The Trustee is
subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b).
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A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated therein.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance. The Issuers
and the Parent Guarantor may, at any time, elect to have either Section 8.02 or 8.03 be applied to
all outstanding Notes, the Note Guarantee and the Pledge Agreement upon compliance with the
conditions set forth below in this Article 8.
SECTION 8.02. Legal Defeasance and Discharge. Upon the exercise by the Issuers and
the Parent Guarantor under Section 8.01 of the option applicable to this Section 8.02, the Issuers
and the Parent Guarantor shall, subject to the satisfaction of the conditions set forth in Section
8.04, be deemed to have been discharged from their obligations with respect to all outstanding
Notes, the Note Guarantee and the Pledge Agreement on the date the conditions set forth below are
satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that
the Issuers and the Parent Guarantor 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 8.05 and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all their other obligations under such
Notes, this Indenture, the Note Guarantee, the Pledge Agreement and any Registration Rights
Agreement (and the Trustee, on demand of and at the expense of the Issuers, shall execute proper
instruments acknowledging the same), except for the following provisions which shall survive until
otherwise terminated or discharged hereunder:
(a) the rights of Holders of outstanding Notes to receive payments in respect of the principal
of, premium, if any, and interest on such Notes when such payments are due from the trust referred
to below;
(b) the Issuers’ obligations with respect to the Notes concerning issuing temporary Notes,
registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office
or agency for payment and money for security payments held in trust;
(c) the rights, powers, trusts, duties and immunities of the Trustee and the Issuers’
obligations in connection therewith; and
(d) the Legal Defeasance provisions of this Indenture.
Subject to compliance with this Article 8, the Issuers may exercise their option under this
Section 8.02 notwithstanding the prior exercise of their option under Section 8.03.
SECTION 8.03. Covenant Defeasance. Upon the exercise by the Issuers and the Parent
Guarantor under Section 8.01 of the option applicable to this Section 8.03, the Issuers and the
Parent Guarantor shall, subject to the satisfaction of the conditions set forth in Section 8.04, be
released from their obligations under the covenants contained in Article 5 and Sections 4.03, 4.07,
4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.16, 4.17, 4.19 and 10.01 with respect to the
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outstanding Notes, the Note Guarantee and the Pledge Agreement on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”),
and the Notes shall thereafter be deemed not “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 may not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Note Guarantee and the Pledge Agreement, 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 6.01, but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby. In addition, upon the Issuers’ exercise under Section 8.01 of the
option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in
Section 8.04, Sections 6.01(3) through 6.01(6) and 6.01(9) shall not constitute Events of Default.
In addition, upon Covenant Defeasance, the Note Guarantee will be released and all Collateral will
be released from the Lien of the Pledge Agreement.
SECTION 8.04. Conditions to Legal or Covenant Defeasance. The following shall be the
conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuers or the Parent Guarantor must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest on the outstanding Notes on the stated maturity
or on the applicable redemption date, as the case may be, and the Issuers and the Parent
Guarantor must specify whether the Notes shall be defeased to maturity or to a particular
redemption date;
(2) in the case of Legal Defeasance, the Issuers shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that
(a) the Issuers and the Parent Guarantor have received from, or there has been
published by, the Internal Revenue Service a ruling or
(b) since the Issue Date, there has been a change in the applicable federal
income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal Defeasance and will be subject to
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;
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(3) in the case of Covenant Defeasance, the Issuers or the Parent Guarantor shall have
delivered to the Trustee an Opinion of Counsel confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax purposes as
a result of such Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either:
(a) on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit and the grant of
any Lien securing such borrowing); or
(b) 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;
(5) such Legal Defeasance or Covenant Defeasance will 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 or any of their Restricted Subsidiaries is a party or
by which the Issuers or any of their Restricted Subsidiaries is bound;
(6) the Issuers must have delivered to the Trustee an Opinion of Counsel to the effect
that after the 91st day, assuming no intervening bankruptcy, that no Holder is an insider of
either of the Issuers following the deposit and that such deposit would not be deemed by a
court of competent jurisdiction a transfer for the benefit of the Issuers in their
capacities as such, the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights
generally;
(7) the Issuers or the Parent Guarantor must have delivered to the Trustee an Officers’
Certificate stating that the deposit was not made by the Issuers with the intent of
preferring the Holders of the Notes over the other creditors of the Issuers or the Parent
Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the
Issuers, the Parent Guarantor or others; and
(8) the Issuers or the Parent Guarantor must have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions precedent relating
to the Legal Defeasance or the Covenant Defeasance have been complied with.
Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) above with
respect to a Legal Defeasance need not be delivered and the conditions set forth in clauses 4(b)
and (6) shall not apply if all Notes not theretofore delivered to the Trustee for cancellation
(a) have become due and payable or
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(b) will become due and payable on the maturity date or a redemption date 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.
SECTION 8.05. Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions. Subject to Section 8.06, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section
8.04 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 directly or
through any Paying Agent (including the Issuers acting as 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, 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 cash or non-callable Government Securities deposited pursuant to Section
8.04 or the principal and interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Issuers from time to time upon the request of the Issuers any money or non-callable
Government Securities held by it as provided in Section 8.04 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(1)), are in excess
of the amount thereof that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
SECTION 8.06.
Repayment to Issuers. Any money deposited with the Trustee or any
Paying Agent, or then held by the Issuers, in trust for the payment of the principal of, premium,
if any, or interest on any Note and remaining unclaimed for two years after such principal, and
premium, if any, or interest has become due and payable shall be paid to the Issuers on their
request or (if then held by the Issuers) shall be discharged from such trust; and the Holder of
such Note shall thereafter 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, may at the expense of the Issuers
cause to be published once, in
The New York Times and
The Wall Street Journal
(national edition), 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 notification or publication,
any unclaimed balance of such money then remaining shall be repaid to the Issuers.
SECTION 8.07. Reinstatement. If the Trustee or Paying Agent is unable to apply any
United States dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03, as the case may be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the Issuers’
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obligations under this Indenture and the Notes, shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03, as the case may
be; provided, however, that, if the Issuers make any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of their obligations, the
Issuers shall be subrogated to the rights of the Holders of such Notes to receive such payment from
the money held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. Without Consent of Holders of Notes. Notwithstanding Section 9.02 of
this Indenture, the Issuers, the Parent Guarantor and the Trustee may amend or supplement this
Indenture, the Notes, the Pledge Agreement or the Note Guarantee without the consent of any Holder
of a Note:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of certificated
Notes;
(3) to provide for or confirm the issuance of Additional Notes;
(4) to provide for the assumption of the Issuers’ or the Parent Guarantor’s obligations
to Holders of Notes in the case of a merger or consolidation or sale of all or substantially
all of the assets of the Issuers pursuant to Article 5;
(5) to release any Subsidiary Guarantee in accordance with the provisions of this
Indenture;
(6) to make any change that would provide any additional rights or benefits to the
Holders of Notes or that does not adversely affect the legal rights under this Indenture of
any Holder;
(7) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA or otherwise as necessary to comply with
applicable law; or
(8) to provide for the issuance or incurrence of Pari Passu Secured Indebtedness in
compliance with the provisions set forth in this Indenture and the Pledge Agreement as in
effect on the Issue Date.
Upon the request of the Issuers and the Parent Guarantor accompanied by a resolution of their
respective boards of directors or the Board of Directors of CCI authorizing the execution of any
such amended or supplemental Indenture, Notes, Pledge Agreement or Note Guarantee (or an amendment
or supplement of any of the foregoing), and upon receipt by the Trustee of the documents described
in Section 7.02, the Trustee shall join with the Issuers and the Parent
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Guarantor in the execution of any amended or supplemental Indenture, Notes, Pledge Agreement
or Note Guarantee authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture, Notes, Pledge Agreement or Note
Guarantee that affects its own rights, duties or immunities under this Indenture, Notes, Pledge
Agreement or Note Guarantee or otherwise.
SECTION 9.02. With Consent of Holders of Notes. Except as provided below in this
Section 9.02, this Indenture, the Notes, the Pledge Agreement or the Note Guarantee may be amended
or supplemented with the consent of the Holders of at least a majority in aggregate principal
amount of the Notes then outstanding. This includes consents obtained in connection with a
purchase of, or a tender offer or exchange offer for, Notes. Any existing Default or compliance
with any provision of this Indenture, the Notes, the Pledge Agreement or the Note Guarantee (other
than any provision relating to the rights of any Holder to bring suit for the enforcement of any
payment of principal, premium, if any, and interest on such Holder’s Notes, on or after the
scheduled due dates expressed in the Notes) may be waived with the consent of the Holders of a
majority in aggregate principal amount of the Notes then outstanding (including consents obtained
in connection with a purchase of, or a tender offer or exchange offer for, Notes). Section 2.08
shall determine which Notes are considered to be “outstanding” for purposes of this Section 9.02.
Upon the request of the Issuers and the Parent Guarantor accompanied by a resolution of their
respective boards of directors or the Board of Directors of CCI authorizing the execution of any
such amended or supplemental Indenture, Notes, Pledge Agreement or Note Guarantee (or an amendment
or supplement of any of the foregoing), and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt
by the Trustee of the documents (if any) described in Section 7.02, the Trustee shall join with the
Issuers and the Parent Guarantor in the execution of such amended or supplemental Indenture, Notes,
Pledge Agreement or Note Guarantee (or such amendment or supplement) unless such amended or
supplemental Indenture, Notes, Pledge Agreement or Note Guarantee (or such amendment or supplement)
directly affects the Trustee’s own rights, duties or immunities under this Indenture, Notes, Pledge
Agreement or Note Guarantee or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental Indenture, Notes, Pledge
Agreement or Note Guarantee (or such amendment or supplement).
It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to
approve the particular form of any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Issuers shall mail to the Holders of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Issuers to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such amended or
supplemental Indenture, Notes, Pledge Agreement or Note Guarantee (or such amendment) or waiver.
Without the consent of each Holder affected thereby, an amendment, supplement or waiver under this
Section 9.02 may not (with respect to any Notes held by such Holder):
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(1) reduce the principal amount of such Notes;
(2) change the fixed maturity of such Notes or reduce the premium payable upon
redemption of such Notes;
(3) reduce the rate of or extend the time for payment of interest on such Notes;
(4) waive a Default or Event of Default in the payment of principal of, or premium, if
any, or interest on the Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the Notes and a waiver of
the payment default that resulted from such acceleration);
(5) make such Notes payable in money other than that stated in such Notes;
(6) make any change in the provisions of this Indenture relating to waivers of past
Defaults applicable to any Notes or the rights of Holders thereof to receive payments of
principal of, or premium, if any, or interest on such Notes;
(7) waive a redemption payment with respect to such Notes (other than a payment
required by Section 4.11 or 4.16); or
(8) make any change in this Section 9.02.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment or supplement to
this Indenture or the Notes shall be set forth in an amended or supplemental Indenture that
complies with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents. Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the
Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note.
However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its
Note if the Trustee receives written notice of revocation before the date the waiver, supplement or
amendment becomes effective. After an amendment, supplement or waiver becomes effective, it shall
bind every Holder. An amendment, supplement or waiver becomes effective once both (i) the
requisite number of consents have been received by the Issuers or the Trustee and (ii) such
amendment, supplement or waiver has been executed by the Company and the Trustee.
The Issuers may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any such action, whether or not such
Persons continue to be Holders after such record date.
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SECTION 9.05. Notation on or Exchange of Notes. The Trustee may place an appropriate
notation about an amendment, supplement or waiver on any Note thereafter authenticated. The
Issuers in exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee to Sign Amendments, etc. The Trustee shall sign any amended or
supplemental Indenture, Notes, Pledge Agreement or Note Guarantee (or an amendment or supplement to
any of the foregoing) authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee under this Indenture,
the Pledge Agreement or otherwise. The Issuers and the Parent Guarantor may not sign an amendment
or supplemental Indenture until their respective boards of directors or the Board of Directors of
CCI approves it. In executing any amended or supplemental indenture, the Trustee shall be provided
with and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the
documents required by Section 12.04, an Officer’s Certificate and an Opinion of Counsel, in each
case from each of the Issuers, stating that the execution of such amended or supplemental indenture
is authorized or permitted by this Indenture.
ARTICLE X
COLLATERAL AND PLEDGE AGREEMENT
SECTION 10.01. Collateral Agent; Pledge Agreement.
(a) Each Holder, by acceptance of its Note, hereby appoints the Collateral Agent to act as
collateral agent for the benefit of the Trustee and the Holders in accordance with the provisions
of this Indenture and the Pledge Agreement.
(b) The Company hereby agrees that the Collateral Agent shall hold the Collateral in trust for
the benefit of all of the Holders and the Trustee and the holders of any Pari Passu Secured
Indebtedness, in each case pursuant to the terms of the Pledge Agreement, and the Collateral Agent
is hereby authorized and directed to execute and deliver the Pledge Agreement substantially in the
form of Exhibit F hereto on the Issue Date.
(c) Each Holder, by its acceptance of its Note, consents and agrees to the terms of the Pledge
Agreement (including the provisions providing for Pari Passu Secured Indebtedness) as the same may
be in effect or may be amended from time to time in accordance with its terms and the terms of this
Indenture and authorizes and directs the Collateral Agent to perform its obligations and exercise
its rights under the Pledge Agreement in accordance therewith.
(d) The Company will execute and comply with the terms of the Pledge Agreement on and at all
times after the Issue Date.
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SECTION 10.02.Further
Assurance.
(a) The Company shall, at its sole expense, do all acts reasonably requested by the Collateral
Agent which may be reasonably necessary to confirm that the Collateral Agent holds, for the benefit
of the Holders and the Trustee and the holders of any Pari Passu Secured Indebtedness, duly
created, enforceable and perfected first-priority Liens in the Collateral (subject to Permitted
Liens) as contemplated by this Indenture and the Pledge Agreement.
(b) As necessary, or upon reasonable request of the Collateral Agent, the Company shall, at
its sole expense, execute, acknowledge and deliver such documents and instruments and take such
other actions, which may be necessary or which the Collateral Agent may reasonably request to
create, protect, assure, perfect, transfer and confirm the Liens, benefits, property and rights
conveyed or intended to be conveyed by this Indenture or the Pledge Agreement for the benefit of
the Holders and the Collateral Agent, including with respect to after-acquired Collateral. If the
Company fails to do so, the Collateral Agent is hereby irrevocably authorized and empowered, with
full power of substitution, to execute, acknowledge and deliver such instruments, certificates,
notices and other documents and, subject to the provisions of the Pledge Agreement, take such other
actions in the name, place and stead of the Company, but the Collateral Agent will have no
obligation to do so and no liability for any action taken or omitted by it in good faith in
connection therewith.
SECTION 10.03. Release of Liens on the Collateral.
(a) The Liens on the Collateral securing the Notes shall be released:
(1) in whole, upon payment in full of the principal of, and accrued and unpaid interest
and premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge of this Indenture;
(3) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth in Section
8.02 or 8.03 hereof;
(4) to the extent of the Collateral disposed of, upon the sale or other disposition of
all or any portion of the Collateral in accordance with, and as expressly provided for
under, this Indenture (subject to any continuing Lien on the proceeds of such sale or other
disposition); and
(5) with the consent of the Holders of a majority in aggregate principal amount of the
then outstanding Notes, including consents obtained in connection with a tender offer or
exchange offer for, or purchase of, Notes.
(b) The Issuers shall furnish to the Trustee, prior to each proposed release of Collateral
pursuant to Sections 10.03(a)(1), (2), (3) or (5):
(1) an Officers’ Certificate and an Opinion of Counsel to the effect that all
conditions precedent provided for in this Indenture and the Pledge Agreement to such release
have been complied with;
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(2) a form of such release (which release shall be in form reasonably satisfactory to
the Trustee and shall provide that the requested release is without recourse or warranty to
the Trustee);
(3) all documents required by the Pledge Agreement; and
(4) an Opinion of Counsel to the effect that such release and other accompanying
documents constitute all documents, and contain the terms and conditions, required by the
Pledge Agreement and this Indenture.
Upon compliance by the Issuers with the conditions precedent set forth above (if any), and delivery
by the Issuers to the Trustee of an Opinion of Counsel to the effect that such conditions precedent
have been complied with, the Trustee or the Collateral Agent shall promptly cause to be released
and reconveyed to the Company the released Collateral, and the Trustee and Collateral Agent shall
promptly execute and deliver to the Company such instruments of release or reconveyance and other
documents as the Company may request.
(c) In case of any release of Collateral pursuant to Section 10.03(a)(4), such release shall
be automatic without any action of the Trustee, the Collateral Agent or any other Person and the
Trustee and Collateral Agent shall promptly execute and deliver to the Company such instruments of
release and other documents as the Issuer or such Guarantor may request.
(d) The release of any Collateral from the Lien of the Pledge Agreement shall not be deemed to
impair the security under this Indenture in contravention of the provisions hereof if and to the
extent the Collateral is released pursuant to the terms hereof and of the Pledge Agreement. To the
extent applicable, the Company shall cause Section 314(d) of the TIA relating to the release of
property from the Lien of the Pledge Agreement to be complied with. Any certificate or opinion
required by Section 314(d) of the TIA may be made by any Officer of the Company, provided,
that to the extent required by Section 314(d) of the TIA, any such certificate or opinion shall be
made by an independent appraiser or other expert (as such terms are set forth in Section 314(d) of
the TIA).
SECTION 10.04. Sufficiency of Release. All purchasers and grantees of any property or
rights purporting to be released shall be entitled to rely upon any release executed by the Trustee
hereunder as sufficient for the purpose of this Indenture and as constituting a good and valid
release of the property therein described from the Lien of this Indenture and of the Pledge
Agreement.
SECTION 10.05. Actions by the Collateral Agent.
(a) Subject to the provisions of the Pledge Agreement and this Indenture, the Collateral Agent
may in its sole discretion and without the consent of the Holders take all actions that are deemed
necessary or appropriate in order to (i) enforce any of the terms of the Pledge Agreement and (ii)
to collect and receive all amounts payable in respect of the obligations of the Issuers and the
Parent Guarantor under the Pledge Agreement and this Indenture. Subject to the limitations set
forth in the Pledge Agreement, the Collateral Agent shall have the power to institute and maintain
such suits and proceedings as it may deem expedient in order to prevent any impairment of the
Collateral by any act that may be unlawful or in violation of this
Indenture or the Pledge Agreement, and such suits and proceedings as the Collateral Agent may deem
expedient to preserve or protect its interests and those of the Holders in the Collateral.
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(b) No duty beyond that set forth in Section 7.01 is imposed on the Collateral Agent pursuant
to this Section 10.05. The Collateral Agent shall not be responsible for the existence,
genuineness or value of any of the Collateral or for the validity, perfection, priority or
enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by
reason of any action or omission to act on its part hereunder, except to the extent such action or
omission constitutes gross negligence, bad faith or willful misconduct on the part of the
Collateral Agent, for the validity or sufficiency of the Collateral or any agreement or assignment
contained therein, for the validity of the title of the Company to the Collateral, for insuring the
Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or
otherwise as to the maintenance of the Collateral. The Collateral Agent shall have no
responsibility for recording, filing, re-recording or refiling any financing statement,
continuation statement, document, instrument or other notice in any public office at any time or
times or to otherwise take any action to perfect or maintain the perfection of any security
interest granted to it under the Collateral Documents or otherwise.
ARTICLE XI
GUARANTEE
SECTION 11.01. Unconditional Guarantee. The Parent Guarantor unconditionally
guarantees, on a senior unsecured basis, to the Holders of all Notes authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns that: (i) the principal of and
interest on the Notes will be promptly paid in full when due, subject to any applicable grace
period, whether at maturity, by acceleration or otherwise, and interest on the overdue principal,
if any, and interest on any interest, to the extent lawful, of the Notes and all other Obligations
of the Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full
or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any
extension of time of payment or renewal of any Notes or of any such other Obligations, the same
will be promptly paid in full when due or performed in accordance with the terms of the extension
or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or
otherwise. The Parent Guarantor agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the Issuers, and action to
enforce the same or any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. The Parent Guarantor waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy of any Issuer, any
right to require a proceeding first against an Issuer, protest, notice and all demands whatsoever
and covenants that this Note Guarantee will not be discharged except by complete performance of the
Obligations contained in the Notes, this Indenture, the Pledge Agreement and this Note Guarantee,
and waives any and all defenses available to a surety (other than payment in full). If any Holder
or the Trustee is required by any court or otherwise to return to the Issuers or the Parent
Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to
the Issuers or the Parent Guarantor, any amount paid by the Issuers or the Parent
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Guarantor to the Trustee or such Holder, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. The Parent Guarantor further agrees
that, as between the Parent 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 6 for the purposes of this Note 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 of such obligations as provided in Article 6, such Obligations
(whether or not due and payable) shall forthwith become due and payable by the Parent Guarantor for
the purpose of this Note Guarantee.
SECTION 11.02. Severability. In case any provision of this Note 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 11.03. Waiver of Subrogation. Until all Obligations under the Notes are paid
in full, the Parent Guarantor irrevocably waives any claims or other rights which it may now or
hereafter acquire against the Issuer that arise from the existence, payment, performance or
enforcement of the Parent Guarantor’s Obligations under its Note Guarantee and this Indenture,
including any right of subrogation, reimbursement, exoneration, indemnification, and any right to
participate in any claim or remedy of any Holder against the Issuers, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law, including the right to
take or receive from the Issuers, directly or indirectly, in cash or other property or by setoff or
in any other manner, payment or security on account of such claim or other rights. If any amount
shall be paid to the Parent Guarantor in violation of the preceding sentence and the Notes shall
not have been paid in full, such amount shall have been deemed to have been paid to the Parent
Guarantor for the benefit of, and held in trust for the benefit of, the Holders, and shall
forthwith be paid to the Trustee for the benefit of the Holders to be credited and applied upon the
Notes, whether matured or unmatured, in accordance with the terms of this Indenture. The Parent
Guarantor acknowledges that it will receive direct and indirect benefits from the financing
arrangements contemplated by this Indenture and that the waiver set forth in this Section 11.03 is
knowingly made in contemplation of such benefits.
SECTION 11.04. Execution of Note Guarantee. To evidence its Note Guarantee to the
Holders set forth in this Article 11, the Parent Guarantor agrees to execute the Note Guarantee
endorsed on each Note ordered to be authenticated and delivered by the Trustee. The Parent
Guarantor agrees that its Note Guarantee set forth in this Article 11 shall remain in full force
and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.
Each such Note Guarantee shall be signed on behalf of the Parent Guarantor by one of its authorized
Officers prior to the authentication of the Note on which it is endorsed, and the delivery of such
Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of
such Note Guarantee on behalf of the Parent Guarantor. Such signatures upon the Note Guarantee may
be by manual or facsimile signature of such Officer and may be imprinted or otherwise reproduced on
the Note Guarantee, and in case any such Officer who shall have signed the Note Guarantee shall
cease to be such Officer before the Note on which such Note Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Issuers, such Note nevertheless
may be authenticated and delivered or
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disposed of as though the Person who signed the Note Guarantee had not ceased to be such
Officer of the Parent Guarantor.
SECTION 11.05. Waiver of Stay, Extension or Usury Laws. The Parent Guarantor
covenants (to the extent that it may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension
law or any usury law or other law that would prohibit or forgive it from performing its Note
Guarantee as contemplated herein, wherever enacted, now or at any time hereafter in force, or which
may affect the covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Parent Guarantor hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls. If any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
SECTION 12.02. Notices. Any notice or communication by the Issuers or the Trustee to
the others is duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or overnight air courier
guaranteeing next day delivery, to the others’ address:
If to the Issuers or the Parent Guarantor:
CCH I, LLC
CCH I Capital Corp.
Charter Communications Holdings, LLC
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel and Corporate Secretary
With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esq.
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If to the Trustee:
The Bank of New York Trust Company, NA
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Department
The Issuers, the Parent Guarantor or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Issuers mail a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.
SECTION 12.03. Communication by Holders of Notes with Other Holders of Notes. Holders
may communicate pursuant to TIA Section 312(b) with other Holders with respect to their rights
under this Indenture or the Notes. The Issuers, the Parent Guarantor, the Trustee, the Registrar
and anyone else shall have the protection of TIA Section 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent. Upon any request
or application by the Issuers to the Trustee to take any action under this Indenture, the Issuers
shall furnish to the Trustee:
(1) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.05) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05) stating that, in the opinion
of such counsel, all such conditions precedent and covenants have been satisfied.
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SECTION 12.05. Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the
provisions of TIA Section 314(e) and shall include:
(1) a statement that the Person making such certificate or opinion has read such
covenant or condition;
(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 such Person, he or she has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.
SECTION 12.06. Rules by Trustee and Agents. The Trustee may make reasonable rules for
action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 12.07. No Personal Liability of Directors, Officers, Employees, Incorporators,
Members and Stockholders. No director, officer, employee or incorporator of the Issuers or the
Parent Guarantor, as such, and no member or stockholder of the Issuers or the Parent Guarantor, as
such, shall have any liability for any obligations of the Issuers or the Parent Guarantor under the
Notes, this Indenture, the Note Guarantee, the Pledge Agreement or any Registration Rights
Agreement, or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note and a Note Guarantee waives and releases all
such liability. The waiver and release are part of the consideration for issuance of the Notes and
the Note Guarantee.
SECTION 12.08. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS INDENTURE AND THE NOTES AND THE NOTE GUARANTEE WITHOUT GIVING EFFECT
TO THE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE OR THE NOTES OR ANY NOTE GUARANTEE.
SECTION 12.09. No Adverse Interpretation of Other Agreements. This Indenture may not
be used to interpret any other indenture, loan or debt agreement of the Issuers, their Parents or
their Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
86
SECTION 12.10. Successors. All agreements of the Issuers and the Parent Guarantor in
this Indenture and the Notes, as the case may be, shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 12.11. Severability. In case any provision in this Indenture or the Notes, as
the case may be, 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 12.12. Counterpart Originals. The parties may sign any number of copies of
this Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.13. Table of Contents, Headings, etc. The Table of Contents,
Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part of this Indenture and
shall in no way modify or restrict any of the terms or provisions.
ARTICLE XIII
SATISFACTION AND DISCHARGE
SECTION 13.01. Satisfaction and Discharge of Indenture. This Indenture, the Notes,
the Note Guarantee, the Pledge Agreement and any Registration Rights Agreement shall cease to be of
further effect (except as to any surviving rights of registration of transfer or exchange of Notes
herein expressly provided for), and the Trustee, on demand of and at the expense of the Issuers,
shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, the
Notes, the Note Guarantee, the Pledge Agreement and any Registration Rights Agreement, when
(1) either:
(a) all Notes theretofore authenticated and delivered (other than (i) Notes
which have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.07 and (ii) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuers and thereafter repaid to the Issuers or discharged from such trust,) have
been delivered to the Trustee for cancellation; or
(b) all such Notes not theretofore delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) 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,
87
and the Issuers, in the case of (i), (ii) or (iii) above, have deposited or caused
to be deposited with the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation, for principal (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 maturity or redemption thereof, as the case may
be;
(2) the Issuers have paid or caused to be paid all other sums payable hereunder by the
Issuers; and
(3) each of the Issuers has 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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to this Article 11,
the obligations of the Issuers to the Trustee under Section 7.07, and, if money shall have been
deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Trustee under Section 13.02 shall survive such satisfaction and discharge.
SECTION 13.02. Application of Trust Money. All money deposited with the Trustee
pursuant to Section 13.01 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 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.
[Signatures on following page]
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Dated as of September 28, 2005
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CCH I, LLC, as an Issuer
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: |
Xxxxxx Xxxxxxx |
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Title: |
Senior Vice-President, Treasury and
Finance |
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CCH I CAPITAL CORP., as an Issuer
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: |
Xxxxxx Xxxxxxx |
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Title: |
Senior Vice-President, Treasury and
Finance |
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CHARTER COMMUNICATIONS HOLDINGS, LLC, as Parent
Guarantor
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: |
Xxxxxx Xxxxxxx |
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Title: |
Senior Vice-President, Treasury and
Finance |
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The Bank of New York Trust Company, NA, as Trustee
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By: |
/s/ Xxxxxx
Xxxxx |
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Name: |
Xxxxxx
Xxxxx |
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Title: |
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SIGNATURE PAGE FOR INDENTURE
EXHIBIT A
[Face of Note]
CUSIP NO. [_________]
11.00% Senior Secured Notes due 2015
No. ___
$[__________________]
CCH I, LLC and CCH I CAPITAL CORP. promise to pay to
or its registered assigns, the principal
amount of Dollars ($ )
on October 1, 2015.
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Interest Payment Dates: April 1 and October 1 |
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Record Dates: September 15 and March 15 |
Subject to Restrictions set forth in this Note.
IN WITNESS WHEREOF, each of CCH I, LLC and CCH I Capital Corp. has caused this instrument to
be duly executed.
Dated:
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CCH I, LLC
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By: |
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Name: |
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Title: |
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CCH I CAPITAL CORP.
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By: |
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Name: |
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Title: |
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A-1
This is one of the Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK TRUST
COMPANY, NA, as Trustee
A-2
[Back of Note]
11.00% Senior Secured Notes due 2015
THE HOLDER OF THIS NOTE BY ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IF IT
IS A PURCHASER IN A SALE THAT OCCURS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
OF THE SECURITIES ACT, IT ACKNOWLEDGES THAT, UNTIL EXPIRATION OF THE “40-DAY DISTRIBUTION
COMPLIANCE PERIOD” WITHIN THE MEANING OF RULE 903 OF REGULATION S, ANY OFFER OR SALE OF THIS NOTE
SHALL NOT BE MADE BY IT TO A U.S. PERSON TO OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON WITHIN
THE MEANING OF RULE 902(k) UNDER THE SECURITIES ACT. 1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY)
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 2
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 SUCCESSOR’S NOMINEE. 3
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION THEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE
SECOND
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This paragraph should be included only for Regulation S Global Notes. |
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This paragraph should be included only if the Notes are issued in global form. |
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This paragraph should be included only if the Notes are issued in global form. |
A-3
ANNIVERSARY OF THE ISSUANCE HEREOF OR (Y) AT ANY TIME BY ANY TRANSFEROR THAT WAS AN AFFILIATE
OF EITHER ISSUER DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH OFFER, RESALE, PLEDGE OR OTHER
TRANSFER, IN EITHER CASE, OTHER THAN (1) TO AN ISSUER, (2) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON WHOM THE TRANSFEROR 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 OFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (4)
TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT, OR (5) IN ANY OTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND SUBJECT TO THE TRUSTEE OR THE
ISSUERS RECEIVING SUCH CERTIFICATES, LEGAL OPINIONS AND OTHER INSTRUMENTS, IN THE CASE OF TRANSFERS
PURSUANT TO CLAUSES (3), (4) OR (5), AS MAY BE REQUIRED BY THE INDENTURE. 4
Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1. Interest
CCH I, LLC, a Delaware limited liability company (the “Company”), and CCH I Capital
Corp., a Delaware corporation (“Capital Corp” and, together with the Company, the
“Issuers”), promise to pay interest on the principal amount of this Note at the rate of
11.00% per annum from the Issue Date until maturity. The interest rate on the Notes is subject to
increase pursuant to the provisions of the Registration Rights Agreement entered into on the Issue
Date. The Issuers will pay interest semi-annually in arrears on April 1 and October 1 of each year
(each an “Interest Payment Date”), or if any such day is not a Business Day, on the next
succeeding Business Day. Interest on the Notes will accrue from and including the most recent date
to which interest has been paid or, if no interest has been paid, from the date of issuance;
provided that if there is no existing Default in the payment of interest, and if this Note
is authenticated between a record date referred to on the face and the next succeeding Interest
Payment Date, interest shall accrue from and including such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date shall be April 1, 2006.
The Issuers shall pay interest
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4 |
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This paragraph should be removed upon the exchange
of Notes for Exchange Notes in a Registered Exchange Offer or upon the
registration of the Notes pursuant to the terms of a Registration Rights
Agreement. |
A-4
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at the rate then in effect; they shall
pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace periods) from time to time
on demand at the same rate. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. Method of Payment
The Issuers shall pay interest on the Notes (except defaulted interest) to the Persons who are
registered Holders of Notes at the close of business on the March 15 or September 15 next preceding
the Interest Payment Date, even if such Notes are canceled after such record date and on or before
such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. Payments in respect of the Notes represented by the Global Notes (including
principal, premium, if any, and interest) will be made by wire transfer of immediately available
funds to the accounts specified by the Global Note holder. With respect to Notes in certificated
form, the Issuer will make all payments of principal, premium, if any, and interest, by wire
transfer of immediately available funds to the accounts specified by the holders thereof or, if no
such account is specified, by mailing a check to each such holder’s registered address. Such
payment shall be in such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts.
3. Paying Agent and Registrar
Initially, The Bank of New York Trust Company, NA, the Trustee under the Indenture, will act
as Paying Agent and Registrar. The Issuers may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such capacity.
4. Indenture
The Issuers issued the Notes under an Indenture dated as of September 28, 2005 (the
“Indenture”) among the Issuers, the Parent Guarantor and the Trustee. Capitalized terms
not otherwise defined herein are used herein as defined in the Indenture. 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, as amended (15 U.S. Code Section 77aaa-77bbbb). The Notes are subject
to all such terms, and Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling.
5. Optional Redemption
(a) Except as set forth in clause (b) of this paragraph 5, the Issuers shall not have the
option to redeem the Notes pursuant to this paragraph 5 prior to October 1, 2010. On October 1,
2010 and thereafter, the Issuers shall have the option to redeem the Notes, in whole or in part, at
the applicable redemption prices (expressed as percentages of the principal amount) set forth below
plus accrued and unpaid interest thereon, if any, to the applicable redemption date, if redeemed
during the twelve-month period beginning on October 1 of the years indicated below:
A-5
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Percentage |
2010
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105.500 |
% |
2011
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102.750 |
% |
2012
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101.375 |
% |
2013 and thereafter
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100.000 |
% |
(b) Notwithstanding the provisions of clause (a) of this Paragraph 5, at any time prior to
October 1, 2008, the Issuers may on any one or more occasions redeem up to 35% of the original
aggregate principal amount of the Notes (including the principal amount of any Additional Notes)
issued under the Indenture on a pro rata basis (or as nearly pro rata as practicable), at a
redemption price of 111% of the principal amount thereof, plus accrued and unpaid interest to the
redemption date, with the net cash proceeds of one or more Equity Offerings; provided that:
(1) at least 65% of the original aggregate principal amount of Notes (including the
principal amount of any Additional Notes) issued under the Indenture must remain outstanding
immediately after the occurrence of such redemption (excluding Notes held by the Company and
its Subsidiaries); and
(2) the redemption must occur within 60 days of the date of the closing of such Equity
Offering.
6. Mandatory Redemption and Repurchase
Except as otherwise provided in Paragraph 7 below, the Issuers shall not be required to make
mandatory redemption payments with respect to the Notes or be required to repurchase any of the
Notes.
7. Repurchase at Option of Holder
(a) If there is a Change of Control, the Issuers shall make an offer (a “Change of Control
Offer”) to repurchase all or any part (equal to $1,000 in principal amount or an integral
multiple thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase
(the “Change of Control Payment”). Within 10 days following any Change of Control, the
Issuers shall mail a notice to each Holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Notes on the Change of Control Payment
Date specified in such notice, pursuant to the procedures required by the Indenture and described
in such notice.
(b) If the Company or a Restricted Subsidiary thereof consummates any Asset Sale, the Issuers
may be required to offer to purchase the Notes.
8. Denominations, Transfer, Exchange
The Notes are in registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
A-6
among other things, to furnish appropriate endorsements and transfer documents, and the
Issuers may require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Issuers need not exchange or register the transfer of any Note or portion of a Note
selected for redemption or repurchase, except for the unredeemed or unrepurchased portion of any
Note being redeemed or repurchased in part. Also, the Issuers need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or
repurchased or during the period between a record date and the corresponding Interest Payment Date.
9. Persons Deemed Owners
The registered Holder of a Note may be treated as its owner for all purposes.
10. Amendment, Supplement and Waiver
Subject to certain exceptions, the Indenture, the Notes, the Pledge Agreement or the Note
Guarantee may be amended or supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), and any
existing default or compliance with any provision of the Indenture, the Notes, the Pledge Agreement
or the Note Guarantee may be waived with the consent of the Holders of a majority in aggregate
principal amount of the Notes then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Notes). Without the consent
of any Holder of a Note, the Issuers, the Parent Guarantor and the Trustee may amend or supplement
the Indenture, the Notes, the Pledge Agreement or the Note Guarantee to cure any ambiguity, defect
or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of an Issuer’s or Parent Guarantor’s obligations to Holders of
Notes in the case of a merger or consolidation or sale of all or substantially all of the Issuers’
assets, to release any Subsidiary Guarantee in accordance with the provisions of the Indenture, to
make any change that would provide any additional rights or benefits to the Holders of Notes or
that does not adversely affect the legal rights under the Indenture of any such Holder, to comply
with the requirements of the SEC in order to effect or maintain the qualification of the Indenture
under the TIA or otherwise as necessary to comply with applicable law, or to provide for the
issuance or incurrence of Pari Passu Secured Indebtedness in compliance with the provisions set
forth in the Indenture and the Pledge Agreement as in effect on the Issue Date.
11. Defaults and Remedies
Each of the following is an Event of Default: (i) default for 30 consecutive days in the
payment when due of interest on the Notes, (ii) default in payment when due of the principal of or
premium, if any, on the Notes, (iii) failure by the Company or any of its Restricted Subsidiaries
to comply with Sections 4.16 and 5.01 of the Indenture, (iv) failure by the Company or any of its
Restricted Subsidiaries for 30 consecutive days after written notice thereof has been given to the
Issuers by the Trustee or to the Issuers and the Trustee by the Holders of at least 25% of the
principal amount of the Notes outstanding to comply with any of their other covenants or agreements
in the Indenture, (v) default under any mortgage, indenture or
A-7
instrument under which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the
payment of which is guaranteed by the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists or is created after the date of the Indenture, if that
default: (a) is caused by a failure to pay at final stated maturity the principal amount of such
Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date
of such default (a “Payment Default”); or (b) results in the acceleration of such
Indebtedness prior to its express maturity, and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so accelerated, aggregates $100
million or more, (vi) failure by the Company or any of its Restricted Subsidiaries to pay final
judgments which are non-appealable aggregating in excess of $100 million (net of applicable
insurance which has not been denied in writing by the insurer), which judgments are not paid,
discharged or stayed for a period of 60 days, (vii) certain events of bankruptcy or insolvency with
respect to the Company or any of its Significant Subsidiaries or (viii) so long as the Pledge
Agreement has not otherwise been terminated in accordance with its terms, (a) failure by the
Company for 30 consecutive days after written notice thereof has been given to the Company by the
Trustee or to the Company and the Trustee by Holders of at least 25% of the aggregate principal
amount of the Notes outstanding to comply with any of the Company’s covenants or agreements in the
Pledge Agreement which failure adversely affects the enforceability, validity, perfection or
priority of the Trustee’s Lien on the Collateral or (b) repudiation or disaffirmation by the
Company of the Pledge Agreement. In the case of an Event of Default arising from certain events of
bankruptcy or insolvency with respect to the Company, all outstanding Notes will become due and
payable without further action or notice. If any other Event of Default occurs and is continuing,
the Trustee by notice to the Issuers or the Holders of at least 25% in principal amount of the then
outstanding Notes by notice to the Issuers and the Trustee may declare all the Notes to be due and
payable. Holders may not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in aggregate principal amount of the then
outstanding 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 relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate principal amount
of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest on, or the principal of,
the Notes. The Issuers are required to deliver to the Trustee annually a statement regarding
compliance with the Indenture. Upon becoming aware of any Default or Event of Default, the Issuers
are required to deliver to the Trustee a statement specifying such Default or Event of Default.
12. Trustee Dealings with Issuers
The Trustee, in its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Issuers or their Affiliates, and may otherwise deal with the Issuers
or their Affiliates, as if it were not the Trustee.
A-8
13. No Recourse Against Others
A director, officer, employee, incorporator, member or stockholder of either of the Issuers or
the Parent Guarantor, as such, shall not have any liability for any obligations of the Issuers or
the Parent Guarantor under the Notes, the Indenture, the Note Guarantee, the Pledge Agreement or
any Registration Rights Agreement or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note and a Note Guarantee waives and
releases all such liability. The waiver and release are part of the consideration for the issuance
of the Notes and the Note Guarantees.
14. Governing Law
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS NOTE AND
THE INDENTURE WITHOUT GIVING EFFECT TO THE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. EACH OF THE
PARTIES HERETO AND THE HOLDERS AGREE TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE.
15. Authentication
This Note shall not be valid until authenticated by the manual signature of the Trustee or an
authenticating agent.
16. Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
17. Additional Rights of Holders of Restricted Global Notes and Restricted Definitive
Notes
In addition to the rights provided to Holders of Notes under the Indenture, Holders of
Restricted Global Notes and Restricted Definitive Notes shall have all the rights set forth in the
applicable Registration Rights Agreement. Further, the Notes will be secured by a pledge of 100%
of the equity interests of the Company’s wholly owned subsidiary, CCH II, LLC, and the proceeds
thereof.
18. 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 the Trustee may
use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
A-9
contained in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Issuers will furnish to any Holder upon written request and without charge a copy of the
Indenture and/or any Registration Rights Agreement. Requests may be made to:
CCH I, LLC
CCH I Capital Corp.
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Secretary
Telecopier No.: (000) 000-0000
A-10
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint to transfer this Note on
the books of the Issuers. The agent may substitute another to act for him.
Date: __________________ Your Signature:
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(Sign exactly as your name appears
on the face of this Note) |
Signature Guarantee*:
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Participant in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee). |
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers pursuant to Section 4.11 or
4.16 of the Indenture, check the appropriate box below:
o Section 4.11
o Section 4.16
If you want to elect to have only part of the Note purchased by the Issuers pursuant to
Section 4.11 or Section 4.16 of the Indenture, state the amount you elect to have purchased:
$______.
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Date:
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Your Signature: |
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(Sign exactly as your name appears
on the face of this Note) |
Tax Identification No.:
Signature Guarantee*:
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Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee). |
A-12
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED NOTES
CCH I, LLC
CCH I Capital Corp.
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
The Bank of New York Trust Company, NA
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Re: CUSIP #
Reference is hereby made to the Indenture, dated as of September 28, 2005 (the
“Indenture”), among CCH I, LLC (the “Company”), CCH I Capital Corp. (“Capital
Corp” and, together with the Company, the “Issuers”), Charter Communications Holdings,
LLC, as Parent Guarantor, and The Bank of New York Trust Company, NA, as Trustee. Capitalized
terms used but not defined herein shall have the meanings set forth in the Indenture.
This certificate relates to $ principal amount of Notes held in (check applicable space)
___book-entry or definitive form by the undersigned.
The undersigned (transferor) (check one box below):
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hereby requests the Registrar to
deliver in exchange for its beneficial
interest in the Global Note held by
the Depositary a Note or Notes in
definitive, registered form of
authorized denominations and an
aggregate principal amount equal to
its beneficial interest in such Global
Note (or the portion thereof indicated
above), in accordance with Section
2.06 of the Indenture; |
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hereby requests the Trustee to
exchange or register the transfer of a
Note or Notes to
(transferee). |
In connection with any transfer of any of the Notes evidenced by this certificate occurring prior
to the expiration of the periods referred to in Rule 144(k) under the Securities Act of 1933, as
amended, the undersigned confirms that such Notes are being transferred in accordance with its
terms:
A-13
CHECK ONE BOX BELOW:
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(1)
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to the Issuers or any of their subsidiaries; or |
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(2)
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pursuant to an effective registration statement under
the Securities Act of 1933, as amended; or |
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(3)
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inside the United States to a “qualified
institutional buyer” (as defined in Rule 144A under
the Securities Act of 1933, as amended) that
purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule
144A under the Securities Act of 1933, as amended, in
each case pursuant to and in compliance with Rule
144A thereunder; or |
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(4)
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outside the United States in an offshore transaction
within the meaning of Regulation S under the
Securities Act of 1933, as amended, in compliance
with Rule 904 thereunder; or |
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(5)
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to an institutional “accredited investor” (as defined
in Rule 501(a)(1),(2),(3) or (7) under the Securities
Act of 1933) that has furnished to the Trustee a
signed letter containing certain representations and
agreements; or |
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(6)
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in another transaction that does not require
registration under the Securities Act. |
Unless one of the boxes is checked, the Registrar will refuse to register any of the Notes
evidenced by this certificate in the name of any person other than the registered holder thereof.
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Signature Guarantee:
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(Signature must be guaranteed by a participant in a recognized signature
guarantee medallion program) |
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
A-14
The undersigned represents and warrants that it is purchasing this 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 of 1933, as amended (“Rule 144A”), 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 Company 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 the undersigned’s foregoing
representations in order to claim the exemption from registration provided by Rule 144A.
Dated:
NOTICE: To be executed by an executive officer
A-15
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE 5
The following exchanges of a part of this Global Note for an interest in another Global
Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for
an interest in this Global Note, have been made:
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Principal Amount of |
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this Global Note |
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Signature of |
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Amount of decrease |
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Amount of increase |
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following such |
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authorized officer |
Date of |
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in Principal Amount |
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decrease (or |
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of Trustee or Note |
Exchange |
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of this Global Note |
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of this Global Note |
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increase) |
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Custodian |
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Should be included only in Notes issued in global
form. |
A-16
NOTE GUARANTEE
For value received, the undersigned hereby unconditionally guarantees, on a senior unsecured basis,
to the Holder of this Note the cash payments in United States dollars of principal of, premium, if
any, and interest on this Note in the amounts and at the times when due and interest on the overdue
principal, premium, if any, and interest, if any, of this Note, if lawful, and the payment or
performance of all other Obligations of the Issuers under the Indenture or this Note, to the Holder
of this Note and the Trustee, in accordance with the Note, Article 11 of the Indenture and this
Note Guarantee, including the terms stated in the Note, the Indenture and this Note Guarantee. The
validity and enforceability of this Note Guarantee shall not be affected by the fact that it is not
affixed to any particular Note. Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Indenture dated as of September 28, 2005 among CCH I, LLC, a
Delaware limited liability company, CCH I Capital Corp., a Delaware corporation, the undersigned,
and The Bank of New York Trust Company, NA, as trustee (as amended or supplemented, the
“Indenture”).
THIS NOTE GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. The undersigned
xxxxxx agrees to submit to the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Note Guarantee.
This Note Guarantee is subject to release upon the terms set forth in the Indenture.
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CHARTER COMMUNICATIONS HOLDINGS, LLC
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Name: |
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Title: |
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A-17
EXHIBIT B
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]
CCH I, LLC
CCH I Capital Corp.
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
The Bank of New York Trust Company, NA
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
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Re:
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CCH I, LLC and CCH I Capital Corp. (the “Issuers”)
11.00% SENIOR SECURED NOTES DUE 2015 (the “Notes”) |
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal amount at maturity of the
Notes, we hereby certify that such transfer is being effected pursuant to and in accordance with
Rule 144A (“Rule 144A”) under the United States Securities Act of 1933, as amended (the “Securities
Act”), and, accordingly, we hereby further certify that the Notes are being transferred to a person
that we reasonably believe is purchasing the Notes for its own account, or for one or more accounts
with respect to which such person exercises sole investment discretion, and such person and each
such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
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.
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Very truly yours, |
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[Name of Transferor] |
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By: |
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Authorized Signature |
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B-1
EXHIBIT C
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S]
CCH I, LLC
CCH I Capital Corp.
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
The Bank of New York Trust Company, NA
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
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Re:
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CCH I, LLC and CCH I Capital Corp. (the “Issuers”)
11.00% SENIOR SECURED 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:
(1) the offer of the Notes was not made to a person in the United States;
(2) either (a) 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 (b) 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;
(3) 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;
(4) the transaction is being made in compliance with any applicable securities laws of
any state of the United States or any other applicable jurisdiction; and
C-1
(5) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and not the result of offers or sales specifically
targeted to an identifiable group of U.S. citizens abroad.
If the transfer of the beneficial interest occurs prior to the expiration of the 40-day
distribution compliance period set forth in Regulation S, the transferred beneficial interest will
be held immediately thereafter through Euroclear or Clearstream.
In addition, if the sale is made during a restricted 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.
The Issuers and you 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.
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Very truly yours, |
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[Name of Transferor] |
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By: |
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Authorized Signature |
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C-2
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
CCH I, LLC
CCH I Capital Corp.
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
The Bank
of New York Trust Company, NA
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Re: 11.00% Senior Secured Notes due 2015 (CUSIP [ ])
Reference is hereby made to the Indenture, dated as of September 28, 2005 (the
“Indenture”), among CCH I, LLC (the “Company”), CCH I Capital Corp. (“Capital
Corp” and, together with the Company, the “Issuers”), Charter Communications Holdings,
LLC, as Parent Guarantor, and The Bank of New York Trust Company, NA, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $ aggregate principal amount of:
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(i)
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a beneficial interest in a Global Note, or |
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(ii)
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a Definitive Note, |
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest therein is subject
to certain restrictions and conditions set forth in the Indenture, and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except
in compliance with, such restrictions and conditions and the United States Securities Act of 1933,
as amended (the “Securities Act”).
2. We understand that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell the Notes or any interest
therein, we will do so only (a) to the Company or CIH (b) so long as the Notes are eligible for
resale pursuant to Rule 144A under the Securities Act to a person whom we reasonably believe 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
D-1
notice is given that the offer, resale, pledge or other transfer is being made in reliance on
Rule 144A, (c) to non-U.S. persons in offshore transactions in accordance with Rule 904 of
Regulation S under the Securities Act, (d) after the later of the second anniversary of the
issuance of the relevant Notes or the date that is three months after the Transferor has ceased to
be an affiliate of the Company or CIH, (e) pursuant to an effective registration statement under
the Securities Act or (f) in any other transaction that does not require registration under the
Securities Act, and we further agree to provide to any person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the requirements of any of
clauses (a) through (f) of this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to you and the Issuers such certifications, legal opinions and other
information as you and the Issuers may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and 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 we and any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion.
You and the Issuers are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
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[Insert Name of Transferor] |
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Name: |
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Dated:
D-2
EXHIBIT E
[COMPLETE FORM I OR FORM II AS APPLICABLE.]
[FORM I — To be used by
the owner of a beneficial interest in a Temporary Regulation S Global Note]
CERTIFICATE
OF BENEFICIAL OWNERSHIP IN CONNECTION WITH EXCHANGES OF
TEMPORARY
REGULATION S GLOBAL
NOTES
CCH I, LLC
CCH I Capital Corp.
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
The Bank of New York Trust Company, NA
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Re: 11.00% Senior Secured Notes due 2015 (CUSIP [ ])
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of September 28, 2005 (the
“Indenture”), among CCH I, LLC (the “Company”), CCH I Capital Corp. (“Capital
Corp” and, together with the Company, the “Issuers”), Charter Communications Holdings,
LLC, as Parent Guarantor, and The Bank of New York Trust Company, NA, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the Indenture.
We are the beneficial owner of $ principal amount of Notes issued under the Indenture and
represented by a Temporary Regulation S Global Note.
We hereby certify as follows:
[CHECK A OR B AS APPLICABLE.]
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We are a non-U.S. person (within the meaning of Regulation S under the Securities Act). |
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We are a U.S. person (within the meaning of Regulation S under the Securities Act) that
purchased the Notes in a transaction that did not require registration under the Securities
Act. |
E-1
You are entitled to rely upon this Certificate and are irrevocably authorized to produce this
Certificate or a copy hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
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Very truly yours, |
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[NAME OF BENEFICIAL OWNER] |
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E-2
[FORM II — To be used by a Person acting on behalf of an owner of a beneficial interest in a
Temporary Regulation Global Note]
CERTIFICATE OF BENEFICIAL OWNERSHIP IN CONNECTION WITH EXCHANGES OF
TEMPORARY REGULATION S GLOBAL NOTES
CCH I, LLC
CCH I Capital Corp.
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
The Bank of New York Trust Company, NA
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Re: 11.00% Senior Secured Notes due 2015 (CUSIP [ ])
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of September 28, 2005 (the
“Indenture”), among CCH I, LLC (the “Company”), CCH I Capital Corp. (“Capital
Corp” and, together with the Company, the “Issuers”), Charter Communications Holdings,
LLC, as Parent Guarantor, and The Bank of New York Trust Company, NA, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the Indenture.
This is to certify that based solely on certifications we have received in writing, by tested
telex or by electronic transmission from institutions appearing in our records as persons being
entitled to a portion of the principal amount of Notes represented by a Temporary Regulation S
Global Note issued under the above-referenced Indenture, that as of the date hereof, $___
principal amount of Notes represented by the Temporary Regulation S Global Note being submitted
herewith for exchange is beneficially owned by persons that are either (i) non-U.S. persons (within
the meaning of Regulation S under the Securities Act) or (ii) U.S. persons that purchased the Notes
in a transaction that did not require registration under the Securities Act.
We further certify that (i) we are not submitting herewith for exchange any portion of such
Temporary Regulation S Global Note excepted in such certifications and (ii) as of the date hereof
we have not received any notification from any institution to the effect that the statements made
by such institution with respect to any portion of such Temporary Regulation S Global Note
submitted herewith for exchange are no longer true and cannot be relied upon as of the date hereof.
E-3
You are entitled to rely upon this Certificate and are irrevocably authorized to produce this
Certificate or a copy hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
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Yours faithfully, |
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[Name of DTC Participant] |
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E-4
EXHIBIT F
FORM OF PLEDGE AGREEMENT
F-1