$1,943,000,000
CHARTER COMMUNICATIONS HOLDINGS, LLC
CHARTER COMMUNICATIONS HOLDINGS CAPITAL CORPORATION
9.625% SENIOR NOTES DUE 2009
10.000% SENIOR NOTES DUE 2011
11.750% SENIOR DISCOUNT NOTES DUE 2011
PURCHASE AGREEMENT
Dated May 10, 2001
May 10, 2001
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Banc of America Securities LLC
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx Xxxxxx Inc.
XX Xxxxxx, a Division of Chase Securities Inc.
Credit Lyonnais Securities (USA) Inc.
Fleet Securities, Inc.
BMO Xxxxxxx Xxxxx Corp.
Dresdner Kleinwort Xxxxxxxxxxx Securities LLC
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Charter Communications Holdings, LLC, a Delaware limited
liability company (the "Company"), and Charter Communications Holdings Capital
Corporation, a Delaware corporation ("Charter Capital" and, together with the
Company, the "Issuers"), propose, subject to the terms and conditions stated
herein, to issue and sell to the Purchasers named in Schedule I hereto (the
"Purchasers") (i) an aggregate of $350,000,000 principal amount of 9.625% Senior
Notes due 2009 (the "Eight-Year Senior Notes"), (ii) an aggregate of
$575,000,000 principal amount of 10.000% Senior Notes due 2011 (the "Ten-Year
Senior Notes") and (iii) an aggregate of $1,018,000,000 principal amount at
maturity ($575,190,360 gross proceeds) of 11.750% Senior Discount Notes due 2011
(the "Senior Discount Notes" and, together with the Eight-Year Senior Notes and
the Ten-Year Senior Notes, the "Securities").
It is understood and agreed that Xxxxxxx, Xxxxx & Co. and Xxxxxx
Xxxxxxx & Co. Incorporated are joint book-runners and joint lead managers for
the offering of the Securities and any determinations or other actions to be
made under this Agreement by you or the Representatives shall require the
concurrence of both Xxxxxxx, Xxxxx & Co. and Xxxxxx Xxxxxxx & Co. Incorporated.
1. The Issuers represent and warrant to, and agree with, each of
the Purchasers that:
(a) An offering memorandum, dated May 10, 2001 (the "Offering
Memorandum"), has been prepared in connection with the offering of the
Securities. The Offering Memorandum and any amendments or supplements
thereto did not and will not, as of their respective dates, contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information relating to the Purchasers furnished in writing to the
Issuers by a Purchaser through Xxxxxxx, Xxxxx & Co. and Xxxxxx Xxxxxxx
& Co. Incorporated expressly for use therein;
(b) None of the Issuers or any of their subsidiaries has
sustained since the date of the latest audited financial statements
included in the Offering Memorandum any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Offering Memorandum; and, since the respective dates as of which
information is given in the Offering Memorandum, there has not been any
change in the capital stock or limited liability company interests or
long-term debt of the Issuers or any of their subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, members' or stockholders' equity, or
results of operations of the Issuers and their subsidiaries, otherwise
than as set forth or contemplated in the Offering Memorandum;
(c) Each of the Issuers and their subsidiaries has good and
marketable title in fee simple to all real property and good and valid
title to all personal property owned by it reflected as owned in the
financial statements or elsewhere in the Offering Memorandum, in each
case free and clear of all liens, encumbrances and defects except such
as are described in the Offering Memorandum or such as do not
materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Issuers
and their subsidiaries; and any real property and buildings held under
lease by the Issuers and their subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Issuers and their
subsidiaries;
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(d) The Company has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State
of Delaware, and Charter Capital has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware; each of the Issuers has power and authority to
own its properties and conduct its business as described in the
Offering Memorandum and to execute, deliver and perform its obligations
under this Agreement, and has been duly qualified as a foreign
corporation or limited liability company, as the case may be, for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, and is not subject to
liability or disability by reason of the failure to be so qualified in
any such jurisdiction, except such as would not, individually or in the
aggregate, have a material adverse effect on the current or future
financial position, members' or stockholders' equity or results of
operations of the Issuers and their subsidiaries taken as a whole (a
"Material Adverse Effect"); each "significant subsidiary" (as such term
is defined in Rule 1-02 of Regulation S-X) of the Company (each a
"Significant Subsidiary") has been duly incorporated or formed, as the
case may be, and is validly existing as a corporation or limited
liability company, as the case may be, in good standing under the laws
of its jurisdiction of incorporation or formation; and Charter Capital
has no subsidiaries;
(e) All of the outstanding ownership interests of the Issuers
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the outstanding capital stock or limited
liability company interests, as the case may be, of Charter Capital and
each Significant Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and (except as
otherwise set forth in the Offering Memorandum) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims;
(f) The Eight-Year Senior Notes have been duly authorized and,
when executed by the Issuers and authenticated by the Trustee (as
defined) in accordance with the provisions of the Eight-Year Senior
Note Indenture (as defined) and when delivered to, and paid for, by the
Purchasers in accordance with the terms of this Agreement, will have
been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Issuers
entitled to the benefits provided by the indenture to be dated as of
May 15, 2001 (the "Eight-Year Senior Note Indenture") between the
Issuers and BNY Midwest Trust Company, as trustee (the "Trustee"),
under which they are to be issued and enforceable against the Issuers
in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
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(g) The Ten-Year Senior Notes have been duly authorized and, when
executed by the Issuers and authenticated by the Trustee in accordance
with the provisions of the Ten-Year Senior Note Indenture (as defined)
and when delivered to, and paid for, by the Purchasers in accordance
with the terms of this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Issuers entitled to the benefits
provided by the indenture to be dated as of May 15, 2001 (the "Ten-Year
Senior Note Indenture") between the Issuers and the Trustee, under
which they are to be issued and enforceable against the Issuers in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(h) The Senior Discount Notes have been duly authorized and, when
executed by the Issuers and authenticated by the Trustee in accordance
with the provisions of the Senior Discount Note Indenture (as defined)
and when delivered to, and paid for, by the Purchasers in accordance
with the terms of this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Issuers entitled to the benefits
provided by the indenture to be dated as of May 15, 2001 (the "Senior
Discount Note Indenture" and, together with the Eight-Year Senior Note
Indenture and the Ten-Year Senior Note Indenture, the "Indentures")
between the Issuers and the Trustee, under which they are to be issued
and enforceable against the Issuers in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Securities
will conform to the descriptions thereof in the Offering Memorandum and
will be in substantially the form previously delivered to you;
(i) The Indentures have been duly authorized and, when executed
and delivered by the Issuers (and assuming the due execution and
delivery thereof by the Trustee), the Indentures will constitute valid
and legally binding instruments, enforceable against the Issuers in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Indentures meet the requirements for qualification
under the United States Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"); and the Indentures will conform in all material
respects to the descriptions thereof in the Offering Memorandum;
(j) The exchange and registration rights agreements to be entered
into between the Issuers and the Purchasers relating to the Securities,
substantially in the form of Exhibits A, B and C hereto (the
"Registration Rights Agreements"),
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have been duly authorized by the Issuers, and when executed and
delivered by the Issuers (assuming the due execution and delivery
thereof by the Purchasers), will constitute valid and legally binding
instruments, enforceable against the Issuers in accordance with their
terms, except that (A) the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to creditors' rights and (ii) general principles
of equity, and (B) any rights to indemnity or contribution thereunder
may be limited by federal and state securities laws and public policy
considerations; and the Registration Rights Agreements will conform in
all material respects to the descriptions thereof in the Offering
Memorandum;
(k) The Exchange Notes (as defined in each of the Registration
Rights Agreements) have been duly authorized by the Issuers and, when
executed, authenticated, issued and delivered in accordance with the
Indentures and the Registration Rights Agreements (assuming the due
authorization, execution and delivery of the Indentures by the
Trustee), will constitute valid and legally binding instruments,
entitled to the benefits provided by the Indentures under which they
are to be issued, and enforceable against the Issuers in accordance
with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Exchange Notes will conform in all material
respects to the descriptions thereof in the Offering Memorandum;
(l) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Securities) will violate or result in a violation of Section 7
of the Securities Exchange Act of 1934 (the "Exchange Act"), or any
regulation promulgated thereunder, including, without limitation,
Regulations T, U, and X of the Board of Governors of the Federal
Reserve System;
(m) Prior to the date hereof, none of the Issuers or any of their
affiliates has taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the
Issuers in connection with the offering of the Securities;
(n) The issue and sale of the Securities and the compliance by
the Issuers with all of the provisions of the Securities, the
Indentures, the Registration Rights Agreements and this Agreement and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, lease, license, franchise
agreement, permit or other agreement or instrument to which the Issuers
or any of their
5
subsidiaries is a party or by which the Issuers or any of their
subsidiaries is bound or to which any of the property or assets of the
Issuers or any of their subsidiaries is subject, nor will such action
result in any violation of any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over
the Issuers, any of the Issuers' subsidiaries or any of their
properties, including, without limitation, the Communications Act of
1934, as amended, the Cable Communications Policy Act of 1984, as
amended, the Cable Television Consumer Protection and Competition Act
of 1992, as amended, and the Telecommunications Act of 1996
(collectively, the "Cable Acts") or any order, rule or regulation of
the Federal Communications Commission (the "FCC"), except where such
conflicts, breaches, violations or defaults would not, individually and
in the aggregate, have a Material Adverse Effect and would not have the
effect of preventing the Issuers from performing any of their
respective obligations under this Agreement; nor will such action
result in any violation of the certificate of formation or limited
liability company agreement of the Company or the certificate of
incorporation or bylaws of Charter Capital; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required, including, without
limitation, under the Cable Acts or any order, rule or regulation of
the FCC, for the issue and sale of the Securities or the consummation
by the Issuers of the transactions contemplated by this Agreement, the
Indentures or the Registration Rights Agreements, except such consents,
approvals, authorizations, registrations or qualifications as have been
made or except as may be required under state or foreign securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Purchasers and except such as will be made in the
case of the Registration Rights Agreements or such as may be required
by the National Association of Securities Dealers, Inc. ("NASD");
(o) None of the Issuers or any of their subsidiaries is (i) in
violation of its certificate of incorporation, bylaws, certificate of
formation, limited liability company agreement or other organizational
document, as the case may be, (ii) in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease, license, permit or other agreement or instrument to which it is
a party or by which it or any of its properties may be bound or (iii)
in violation of the terms of any franchise agreement, or any law,
statute, rule or regulation or any judgment, decree or order, in any
such case, of any court or governmental or regulatory agency or other
body having jurisdiction over the Issuers, any of the Issuers'
subsidiaries or any of their properties or assets, including, without
limitation, the Cable Acts or any order, rule or regulation of the FCC,
except, in the case of clauses (ii) and (iii), such as would not,
individually and in the aggregate, have a Material Adverse Effect;
6
(p) The statements set forth in the Offering Memorandum under the
captions "Description of Notes," insofar as they purport to constitute
a summary of the terms of the Securities, under the captions "Risk
Factors," "Business," "Regulation and Legislation," "Management,"
"Certain Relationships and Related Transactions," "Description of
Certain Indebtedness," and "United States Federal Income Tax
Considerations," insofar as they purport to describe the provisions of
the laws, documents and arrangements referred to therein, are accurate
in all material respects;
(q) Other than as set forth in the Offering Memorandum, there are
no legal or governmental proceedings (including, without limitation, by
the FCC or any franchising authority) pending to which the Issuers or
any of their subsidiaries is a party or of which any property of the
Issuers or any of their subsidiaries is the subject which, if
determined adversely to the Issuers or any of their subsidiaries,
would, individually or in the aggregate, have a Material Adverse
Effect; and, to the best knowledge of the Issuers and except as
disclosed in the Offering Memorandum, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(r) Each of the Issuers and their subsidiaries carries insurance
(including self-insurance) in such amounts and covering such risks as
in the reasonable determination of the Issuers is adequate for the
conduct of its business and the value of its properties;
(s) Except as set forth in the Offering Memorandum, there is no
strike, labor dispute, slowdown or work stoppage with the employees of
any of the Issuers or their subsidiaries which is pending or, to the
best knowledge of the Issuers, threatened which would, individually or
in the aggregate, have a Material Adverse Effect;
(t) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the
meaning of Rule 144A under the United States Securities Act of 1933, as
amended, (the "Act") as securities which are listed on a national
securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation system.
(u) The Issuers are subject to Section 15(d) of the Exchange Act;
(v) Neither Issuer is, or after giving effect to the offering and
sale of the Securities will be, an "investment company" or any entity
"controlled" by an "investment company" as such terms are defined in
the U.S. Investment Company Act of 1940, as amended (the "Investment
Company Act");
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(w) None of the Issuers or any of their subsidiaries, or any
person acting on their behalf (other than the Purchasers, as to whom
the Issuers and their subsidiaries make no representation) has offered
or sold the Securities by means of any general solicitation or general
advertising within the meaning of Rule 502(c) under the Act or, with
respect to Securities sold outside the United States to non-U.S.
persons (as defined in Rule 902 under the Act), by means of any
directed selling efforts within the meaning of Rule 902 under the Act
and the Issuers, any affiliate of the Issuers and any person acting on
their behalf (other than the Purchasers, as to whom the Issuers and
their affiliates make no representation) has complied with and will
implement the "offering restriction" within the meaning of such Rule
902;
(x) Within the preceding six months, none of the Issuers or any
other person acting on behalf of the Issuers has offered or sold to any
person any Securities, or any securities of the same or a similar class
as the Securities, other than Securities offered or sold to the
Purchasers hereunder. The Issuers will take reasonable precautions
designed to insure that any offer or sale, direct or indirect, in the
United States or to any U.S. person (as defined in Rule 902 under the
Act) of any Securities or any substantially similar security issued by
the Issuers, within six months subsequent to the date on which the
distribution of the Securities has been completed (as notified to the
Issuers by Xxxxxxx, Xxxxx & Co. and Xxxxxx Xxxxxxx & Co. Incorporated),
is made under restrictions and other circumstances reasonably designed
not to affect the status of the offer and sale of the Securities in the
United States and to U.S. persons contemplated by this Agreement as
transactions exempt from the registration provisions of the Act;
(y) The audited consolidated financial statements (including the
notes thereto) included in the Offering Memorandum present fairly in
all material respects the respective consolidated financial positions,
results of operations and cash flows of the entities to which they
relate at the dates and for the periods to which they relate and have
been prepared in accordance with U.S. generally accepted accounting
principles ("GAAP") applied on a consistent basis. The summary and
selected financial data in the Offering Memorandum present fairly in
all material respects the information shown therein and have been
prepared and compiled on a basis consistent with the audited financial
statements included therein;
(z) The pro forma financial statements (including the notes
thereto) and the other pro forma financial information included in the
Offering Memorandum (i) comply as to form - in all material respects
with the applicable requirements of Regulation S-X for Form S-3
promulgated under the Exchange Act, and (ii) have been properly
computed on the -- bases described therein; the assumptions used in the
preparation of the pro forma financial data and other pro forma
financial
8
information included in the Offering Memorandum are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein;
(aa) Each of the firms who has certified financial statements
included in the Offering Memorandum are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder, based upon representations by such firms to us;
(bb) The Issuers and their subsidiaries own or possess, or can
acquire on reasonable terms, adequate licenses, trademarks, service
marks, trade names and copyrights (collectively, "Intellectual
Property") necessary to conduct the business now or proposed to be
operated by each of them as described in the Offering Memorandum,
except where the failure to own, possess or have the ability to acquire
any Intellectual Property would not, individually and in the aggregate,
have a Material Adverse Effect; and none of the Issuers or any of their
subsidiaries has received any notice of infringement of or conflict
with (and none actually knows of any such infringement of or conflict
with) asserted rights of others with respect to any Intellectual
Property which, if any such assertion of infringement or conflict were
sustained would, individually or in the aggregate, have a Material
Adverse Effect;
(cc) Except as described in the Offering Memorandum, the Issuers
and their subsidiaries have obtained all consents, approvals, orders,
certificates, licenses, permits, franchises and other authorizations of
and from, and have made all declarations and filings with, all
governmental and regulatory authorities (including, without limitation,
the FCC), all self-regulatory organizations and all courts and other
tribunals legally necessary to own, lease, license and use their
respective properties and assets and to conduct their respective
businesses in the manner described in the Offering Memorandum, except
to the extent that the failure to so obtain or file would not,
individually or in the aggregate, have a Material Adverse Effect;
(dd) The Issuers and their subsidiaries have filed all necessary
federal, state and foreign income and franchise tax returns required to
be filed as of the date hereof, except where the failure to so file
such returns would not, individually and in the aggregate, have a
Material Adverse Effect, and have paid all taxes shown as due thereon;
and there is no tax deficiency that has been asserted against the
Issuers or any of their subsidiaries that could reasonably be expected
to result, individually or in the aggregate, in a Material Adverse
Effect;
(ee) The Issuers and their subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that
9
(i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences;
(ff) Each of the franchises held by the Issuers and their
subsidiaries that are material to the Issuers and their subsidiaries,
taken as a whole, is in full force and effect, with no material
restrictions or qualifications; and to the best knowledge of the
Issuers, no event has occurred which permits, or with notice or lapse
of time or both would permit, the revocation or non-renewal of any such
franchises, assuming the filing of timely renewal applications and the
timely payment of all applicable filing and regulatory fees to the
applicable franchising authority, or which might result, individually
or in the aggregate, in any other material impairment of the rights of
the Issuers and their subsidiaries in the franchises. Except as
described in the Offering Memorandum, the Issuers have no reason to
believe that any franchise that is required for the operation of the
Issuers and their subsidiaries will not be renewed in the ordinary
course; and
(gg) The Issuers and their subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, individually and in the aggregate,
have a Material Adverse Effect.
2. (a) Subject to the terms and conditions herein set forth, the
Issuers agree to issue and sell to each of the Purchasers, and each of the
Purchasers agrees, severally and not jointly, to purchase from the Issuers, at a
purchase price of 98.00% of the principal amount thereof, plus accrued interest,
if any, from May 15, 2001 to the Time of Delivery hereunder, the principal
amount of the Eight-Year Senior Notes set forth opposite the name of such
Purchaser in Schedule I hereto.
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(b) Subject to the terms and conditions herein set forth, the
Issuers agree to issue and sell to each of the Purchasers, and each of the
Purchasers agrees, severally and not jointly, to purchase from the Issuers, at a
purchase price of 98.00% of the principal amount thereof, plus accrued interest,
if any, from May 15, 2001 to the Time of Delivery hereunder, the principal
amount of the Ten-Year Senior Notes set forth opposite the name of such
Purchaser in Schedule I hereto.
(c) Subject to the terms and conditions herein set forth, the
Issuers agree to issue and sell to each of the Purchasers, and each of the
Purchasers agrees, severally and not jointly, to purchase from the Issuers, at a
purchase price of 97.75% of the initial accreted value thereof, plus accretion,
if any, from May 15, 2001 to the Time of Delivery hereunder, the principal
amount at maturity of Senior Discount Notes set forth opposite the name of such
Purchaser in Schedule I hereto.
(d) The Purchasers agree to apply $243,056 as a credit against
the aggregate underwriting discount of $31,441,783 that the Purchasers would
otherwise receive pursuant to the foregoing paragraphs (a), (b) and (c).
Accordingly, the aggregate purchase price for the Notes payable by the
Purchasers to the Issuers shall be $1,468,991,632.
3. Upon the authorization by you of the release of the
Securities, the several Purchasers propose to offer the Securities for sale upon
the terms and conditions set forth in this Agreement and the Offering Memorandum
and each Purchaser hereby represents and warrants to, and agrees with the
Issuers that:
(a) It will offer and sell the Securities only: (i) to persons
who it reasonably believes are "qualified institutional buyers"
("QIBs") within the meaning of Rule 144A under the Act in transactions
meeting the requirements of Rule 144A or (ii) upon the terms and
conditions set forth in Annex I to this Agreement;
(b) It is a QIB; and
(c) It has not offered and will not offer or sell the Securities
by any form of general solicitation or general advertising, including
but not limited to the methods described in Rule 502(c) under the Act.
4. (a) The Securities to be purchased by each Purchaser hereunder
will be represented by definitive global Securities in book-entry form which
will be deposited by or on behalf of the Issuers with The Depository Trust
Company ("DTC") or its designated custodian. The Issuers will deliver the
Securities to Xxxxxxx, Xxxxx & Co., for the account of each Purchaser, against
payment by or on behalf of such Purchaser of the purchase price therefor by wire
transfer of same day funds wired in accordance with
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the written instructions of the Company, by causing DTC to credit the Securities
to the account of Xxxxxxx, Xxxxx & Co. at DTC. The Issuers will cause the
certificates representing the Securities to be made available to Xxxxxxx, Xxxxx
& Co. for checking at least twenty-four hours prior to the Time of Delivery (as
defined below) at the office of DTC or its designated custodian (the "Designated
Office"). The time and date of such delivery and payment shall be 9:30 a.m., New
York City time, on May 15, 2001 or such other time and date as Xxxxxxx, Xxxxx &
Co. and Xxxxxx Xxxxxxx & Co. Incorporated and the Issuers may agree upon in
writing. Such time and date are herein called the "Time of Delivery."
(b) The documents to be delivered at the Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Purchasers pursuant to Section 7(j) hereof, will be delivered at such time and
date at the offices of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 or such other location as the parties mutually agree
(the "Closing Location"), and the Securities will be delivered at the Designated
Office, all at the Time of Delivery. A meeting will be held at the Closing
Location at 3 p.m., New York City time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. Each of the Issuers agrees with each of the Purchasers:
(a) To prepare the Offering Memorandum in a form approved by you;
to make no amendment or any supplement to the Offering Memorandum which
shall be disapproved by you promptly after reasonable notice thereof;
and to furnish you with copies thereof;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as you may request and
to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Securities, provided that in
connection therewith the Issuers shall not be required to qualify as a
foreign corporation or limited liability company, as the case may be,
or to file a general consent to service of process in any jurisdiction;
(c) To furnish the Purchasers with copies of the Offering
Memorandum and each amendment or supplement thereto signed by an
authorized officer of
12
each of the Issuers with the independent accountants' reports in the
Offering Memorandum, and any amendment or supplement containing
amendments to the financial statements covered by such reports, signed
by the accountants, and additional copies thereof in such quantities as
you may from time to time reasonably request, and if, at any time prior
to the expiration of nine months after the date of the Offering
Memorandum, any event shall have occurred as a result of which the
Offering Memorandum as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Offering Memorandum
is delivered, not misleading, or, if for any other reason it shall be
necessary or desirable during such same period to amend or supplement
the Offering Memorandum, to notify you and upon your request to prepare
and furnish without charge to each Purchaser and to any dealer in
securities as many copies as you may from time to time reasonably
request of an amended Offering Memorandum or a supplement to the
Offering Memorandum which will correct such statement or omission or
effect such compliance;
(d) During the period beginning from the date hereof and
continuing until the date six months after the Time of Delivery, not to
offer, sell, contract to sell or otherwise dispose of, except as
provided hereunder, any securities of the Issuers that are
substantially similar to the Securities;
(e) Not to be or become, at any time prior to the expiration of
two years after the Time of Delivery, an open-end investment company,
unit investment trust, closed-end investment company or face-amount
certificate company that is or is required to be registered under
Section 8 of the Investment Company Act;
(f) At any time when any Issuer is not subject to Section 13 or
15(d) of the Exchange Act, for the benefit of holders from time to time
of Securities, to furnish at the Issuers' expense, upon request, to
holders of Securities and prospective purchasers of securities
information (the "Additional Issuer Information") satisfying the
requirements of subsection (d)(4)(i) of Rule 144A under the Act;
(g) To use its best efforts to cause the Securities to be
eligible for the PORTAL trading system of the NASD;
(h) To furnish to the holders of the Securities as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, members' or
stockholders' equity and cash flows of the Issuers and their
consolidated subsidiaries certified by independent public accountants)
and, as soon as practicable after the end of each of the first three
13
quarters of each fiscal year (beginning with the fiscal quarter ending
after the date of the Offering Memorandum), to make available to
holders of the Securities consolidated summary financial information of
the Issuers and their subsidiaries for such quarter in reasonable
detail;
(i) During a period of three years from the date of the Offering
Memorandum, to furnish to you copies of all reports or other
communications (financial or other) furnished to holders of ownership
interests of the Issuers or Charter Communications, Inc., and to
deliver to you as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
securities exchange on which the Securities or any class of securities
of the Issuers or Charter Communications, Inc. is listed;
(j) During the period of two years after the Time of Delivery,
the Issuers will not, and will not permit any of their "affiliates" (as
defined in Rule 144 under the Act) to, resell any of the Securities
which constitute "restricted securities" under Rule 144 that have been
reacquired by any of them; and
(k) To use the net proceeds received from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Offering Memorandum under the caption "Use of Proceeds."
6. Each of the Issuers covenants and agrees with the several
Purchasers that the Issuers will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Issuers' counsel and accountants in
connection with the issue of the Securities and all other expenses in connection
with the preparation, printing and filing of the Offering Memorandum and any
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Purchasers and dealers; (ii) the cost of printing or producing
any Agreement among Purchasers, this Agreement, the Indentures, the Registration
Rights Agreements, the Blue Sky and Legal Investment Memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Purchasers in
connection with such qualification and in connection with the Blue Sky and Legal
Investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) the cost of preparing the Securities; (vi) the fees
and expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indentures and
the Securities; (vii) any cost incurred in connection with the designation of
the Securities for trading in PORTAL; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8
14
and 11 hereof, the Purchasers will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Purchasers hereunder shall be subject,
in their discretion, to the condition that all representations and warranties
and other statements of the Issuers herein are, at and as of the Time of
Delivery, true and correct, the condition that the Issuers shall have performed
all of their obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) Debevoise & Xxxxxxxx, counsel for the Purchasers, shall have
furnished to you such opinion or opinions, dated the Time of Delivery,
with respect to the matters covered in paragraphs (i), (iv), (v), (vi),
(vii), (viii), (xii) (as to the Securities) and (xiii) and the last
paragraph of subsection (b) below as well as such other related matters
as you may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable
them to pass upon such matters;
(b) Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel for the
Issuers, shall have furnished to you their written opinion, dated the
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Company has been duly formed and is validly
existing as a limited liability company in good standing under
the laws of the State of Delaware, and Charter Capital has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware; each of
the Issuers has power and authority (corporate or other) to own
or lease its properties and conduct its business as described in
the Offering Memorandum and to execute, deliver and perform its
obligations under this Agreement;
(ii) All of the issued shares of capital stock of Charter
Capital have been duly and validly authorized and issued and,
assuming receipt of requisite consideration therefor, are fully
paid and non-assessable;
(iii) To the best of such counsel's knowledge and other
than as set forth in the Offering Memorandum, there are no legal
or governmental proceedings pending to which the Issuers or any
of their subsidiaries is a party or of which any property of the
Issuers or any of their subsidiaries is the subject which are
likely to have, individually or in the aggregate, a Material
Adverse Effect; and, to the best of such counsel's knowledge and
other than as set forth in the Offering Memorandum, no such
proceedings are overtly threatened by governmental authorities or
by others;
15
(iv) This Agreement has been duly authorized, executed and
delivered by each of the Issuers;
(v) The Securities have been duly authorized by the
Issuers, and, when executed and authenticated in accordance with
the provisions of the Indentures and delivered to and paid for by
the Purchasers in accordance with the terms of this Agreement,
will be valid and legally binding obligations of the Issuers,
entitled to the benefits provided by the Indentures and
enforceable against the Issuers in accordance with their terms,
subject, as to enforcement, to applicable bankruptcy,
reorganization, insolvency or other similar laws affecting
creditors' rights generally and to general equity principles;
(vi) The Indentures have been duly authorized, executed and
delivered by the Issuers and (assuming the due execution and
delivery thereof by the Trustee) constitute valid and legally
binding instruments, enforceable against the Issuers in
accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(vii) The Registration Rights Agreements have been duly
authorized, executed and delivered by the Issuers and (assuming
the due execution and delivery thereof by the Purchasers)
constitute valid and legally binding instruments, enforceable
against the Issuers in accordance with their terms, except that
(A) the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to creditors' rights and (ii) general
principles of equity, and (B) any rights to indemnity or
contribution thereunder may be limited by federal and state
securities laws and public policy considerations;
(viii) The Exchange Notes have been duly authorized by the
Issuers and, when executed, authenticated, issued and delivered
in accordance with the Indentures and the Registration Rights
Agreements (assuming the due authorization, execution and
delivery of the Indentures and the authentication of the Exchange
Notes by the Trustee), will constitute valid and legally binding
obligations, entitled to the benefits provided by the Indentures
under which they are to be issued, and enforceable against the
Issuers in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
16
(ix) The Securities, the Exchange Notes, the Indentures and
the Registration Rights Agreements conform in all material
respects to the descriptions thereof in the Offering Memorandum;
(x) The issue and sale of the Securities and the compliance
by the Issuers with all of the provisions of the Securities, the
Indentures, the Registration Rights Agreements and this Agreement
and the consummation of the transactions herein and therein
contemplated will not, to the best of such counsel's knowledge,
result in a material breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, lease, license, permit
or other agreement or instruments specifically identified to such
counsel by the Issuers as material to the Issuers on a schedule,
nor will any such action result in any violation of the
provisions of the certificate of incorporation or by-laws, or
certificate of formation or limited liability company agreement,
as the case may be, of the Issuers or any Federal or New York
State statute or any order, rule or regulation of any Federal or
New York State court or governmental agency or body having
jurisdiction over the Issuers, the subsidiaries of the Issuers or
any of their properties;
(xi) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body referred to in paragraph (x) is
required for the issue and sale of the Securities or the
consummation by the Issuers of the transactions contemplated by
this Agreement, the Indentures or the Registration Rights
Agreements, except such consents, approvals, authorizations,
registrations or qualifications as have been obtained or as may
be required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Securities
by the Purchasers and except such as will be made in the case of
the Registration Rights Agreements or as may be required by the
NASD;
(xii) The statements set forth in the Offering Memorandum
under the caption "Description of Notes," insofar as they purport
to constitute a summary of the terms of the Securities, and under
the captions "Description of Certain Indebtedness" and "United
States Federal Income Tax Considerations," insofar as they
purport to describe the provisions of the laws and documents
referred to therein, fairly summarize the provisions of any such
laws and documents in all material respects;
(xiii) Assuming the accuracy of the representations and
warranties of the Issuers contained in Sections 1(w) and (x) of
this Agreement and the representations and warranties of the
Purchasers contained in Section 3
17
of this Agreement, no registration of the Securities under the
Act, and no qualification of an indenture under the Trust
Indenture Act with respect thereto, is required for the offer,
sale and initial resale of the Securities by the Purchasers in
the manner contemplated by this Agreement; and
(xiv) Neither of the Issuers is an "investment company" or
an entity "controlled" by an "investment company," as such terms
are defined in the Investment Company Act.
Such counsel shall also state as follows: We have not
independently verified the accuracy, completeness or fairness of the
statements made or included in the Offering Memorandum, except as
described in specified paragraphs of the opinion. However, in
connection with the preparation by the Company of the Offering
Memorandum, we participated in various discussions and meetings with
the Purchasers' representatives, officers and other representatives of
the Company, and representatives of the Company's independent public
accountants at which the contents of the Offering Memorandum were
discussed. No information has come to our attention which causes us to
conclude (relying as to materiality to a large extent upon opinions of
officers and other representatives of the Issuers) that the Offering
Memorandum contained as of its date or contains as of the Time of
Delivery an untrue statement of a material fact or omitted or omits, as
the case may be, to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (except, that we express no view as to
financial statements and notes thereto and other financial information
included therein).
(c) Xxxx, Xxxxxx & Xxxxxxxxx, L.L.P., special regulatory counsel
to the Issuers, shall have furnished to you their written opinion,
dated the Time of Delivery, in form and substance reasonably
satisfactory to you, to the effect that:
(i) The issue and sale of the Securities and the compliance
by the Issuers with all of the provisions of the Securities, the
Indentures, the Registration Rights Agreements and this Agreement
and the consummation of the transactions herein and therein
contemplated do not and will not contravene the Cable Acts or any
order, rule or regulation of the FCC to which the Issuers or any
of their subsidiaries or any of their property is subject;
(ii) To the best of such counsel's knowledge, no consent,
approval, authorization or order of, or registration,
qualification or filing with the FCC is required under the Cable
Acts or any order, rule or regulation of the FCC in connection
with the issue and sale of the Securities and the compliance by
the Issuers with all of the provisions of
18
the Securities, the Indentures, the Registration Rights
Agreements and this Agreement and the consummation of the
transactions herein and therein contemplated;
(iii) The statements set forth in the Offering Memorandum
under the captions "Risk Factors" under the subheading
"Regulatory and Legislative Matters" and in "Regulation and
Legislation," insofar as they constitute summaries of laws
referred to therein, concerning the Cable Acts and the published
rules, regulations and policies promulgated by the FCC
thereunder, fairly summarize the matters described therein;
(iv) To the knowledge of such counsel based solely upon its
review of publicly available records of the FCC and operational
information provided by the Company's and its subsidiaries'
management, the Company and its subsidiaries hold all FCC
licenses for cable antenna relay services necessary to conduct
the business of the Company and its subsidiaries as currently
conducted, except to the extent the failure to hold such FCC
licenses would not, individually and in the aggregate, be
reasonably expected to have a Material Adverse Effect; and
(v) Except as disclosed in the Offering Memorandum and
except with respect to rate regulation matters, and general
rulemakings and similar matters relating generally to the cable
television industry, to such counsel's knowledge, based solely
upon its review of the publicly available records of the FCC and
upon inquiry of the Company's and its subsidiaries' management,
during the time the cable systems of the Company and its
subsidiaries have been owned by the Company and its subsidiaries
(A) there has been no adverse FCC judgment, order - or decree
issued by the FCC relating to the ongoing operations of any of
the Company or one of its subsidiaries that has had or could
reasonably be expected to have a Material Adverse Effect; and (B)
there are no actions, - suits, proceedings, inquiries or
investigations by or before the FCC pending or threatened in
writing against or specifically affecting the Company or any of
its subsidiaries or any cable system of the Company or any of its
subsidiaries which could, individually or in the aggregate, be
reasonably expected to result in a Material Adverse Effect;
(d) Xxxxxx Xxxx, Esq., General Counsel of the Company, shall have
furnished to you his written opinion, dated the Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) Each subsidiary of the Company listed on a schedule
attached to such counsel's opinion (the "Charter Subsidiaries")
has been duly
19
incorporated or formed, as the case may be, and is validly
existing as a corporation or limited liability company, as the
case may be, in good standing under the laws of its jurisdiction
of incorporation or formation; and all of the issued shares of
capital stock or limited liability company interests, as the case
may be, of each Charter Subsidiary have been duly and validly
authorized and issued and, assuming receipt of requisite
consideration therefor, are fully paid and non-assessable;
(ii) Each of the Issuers and the Charter Subsidiaries has
been duly qualified as a foreign corporation or limited liability
company, as the case may be, for the transaction of business and
is in good standing under the laws of each jurisdiction set forth
in a schedule to such counsel's opinion;
(iii) To the best of such counsel's knowledge and other
than as set forth in the Offering Memorandum, there are no legal
or governmental proceedings pending to which the Issuers or any
of their subsidiaries is party or of which any property of the
Issuers or any of their subsidiaries is the subject which are
likely to have, individually or in the aggregate, a Material
Adverse Effect; and, to the best of such counsel's knowledge and
other than as set forth in the Offering Memorandum, no such
proceedings are overtly threatened by governmental authorities or
by others; and
(e) On the date of the Offering Memorandum prior to the execution
of this Agreement and also at the Time of Delivery, each of Xxxxxx
Xxxxxxxx LLP and KPMG LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you;
(f) (i) None of the Issuers or any of their subsidiaries shall
have sustained since the date of the latest audited financial
statements included in the Offering Memorandum any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Offering Memorandum, and (ii) since the respective dates as of
which information is given in the Offering Memorandum there shall not
have been any change in the capital stock, limited liability company
interests or long-term debt of the Issuers or any of their subsidiaries
or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' or members' equity, or results of operations of the
Issuers and their subsidiaries, otherwise than as set forth or
contemplated in the Offering Memorandum, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of the
Purchasers so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery
20
of the Securities on the terms and in the manner contemplated in this
Agreement and in the Offering Memorandum;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the debt securities of either of the
Issuers by any "nationally recognized statistical rating organization,"
as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the debt
securities of either of the Issuers;
(h) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or on the Nasdaq
National Market; (ii) a suspension or material limitation in trading in
Charter Communications, Inc.'s Class A common stock on the Nasdaq
National Market, (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities; or
(iv) the outbreak or escalation of hostilities or the declaration of a
national emergency or war, if the effect of any such event specified in
this clause (iv) in the judgment of the Purchasers makes it
impracticable or inadvisable to proceed with the offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Offering Memorandum;
(i) The Securities have been designated for trading on PORTAL;
(j) The Issuers shall have furnished or caused to be furnished to
you at the Time of Delivery certificates of officers of each Issuer
satisfactory to you as to the accuracy of the representations and
warranties of the Issuers herein at and as of such Time of Delivery, as
to the performance by the Issuers of all of their obligations hereunder
to be performed at or prior to such Time of Delivery, as to the matters
set forth in subsections (f) and (g) of this Section and as to such
other matters as you may reasonably request.
8. (a) The Issuers, jointly and severally, will indemnify and
hold harmless each Purchaser against any losses, claims, damages or liabilities,
joint or several, to which such Purchaser may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Offering Memorandum, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact necessary to make the
statements therein not misleading, and will reimburse each Purchaser for any
legal or other expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such action or claim as such expenses are
21
incurred; provided, however, that the Issuers shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Offering Memorandum or any such amendment or
supplement in reliance upon and in conformity with written information relating
to the Purchasers furnished to the Issuers by any Purchaser through Xxxxxxx,
Xxxxx & Co. and Xxxxxx Xxxxxxx & Co. Incorporated expressly for use therein.
(b) The Purchasers, severally and not jointly, will indemnify
and hold harmless the Issuers against any losses, claims, damages or liabilities
to which the Issuers may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Offering Memorandum, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Offering Memorandum or any such amendment or supplement
in reliance upon and in conformity with written information relating to the
Purchasers furnished to the Issuers by such Purchaser through Xxxxxxx, Xxxxx &
Co. and Xxxxxx Xxxxxxx & Co. Incorporated expressly for use therein; and will
reimburse the Issuers for any legal or other expenses reasonably incurred by the
Issuers in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. Any indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be
22
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties. The Issuers shall
not be required to indemnify the Purchasers for any amounts paid or payable by
the Purchasers in the settlement of any action, proceeding or investigation
without the written consent of the Company, which consent shall not be
unreasonably withheld. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Issuers on the one hand and the Purchasers on
the other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Issuers on the one hand and the Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Issuers on the one hand and the Purchasers on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Issuers bear to the total underwriting
discounts and commissions received by the Purchasers, in each case as set forth
in the Offering Memorandum. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuers on the one hand or the Purchasers
on the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Issuers
and the Purchasers agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Purchasers were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of
23
the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to investors were offered to
investors exceeds the amount of any damages which such Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. The Purchasers' obligations in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Issuers under this Section 8 shall
be in addition to any liability which the Issuers may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Purchaser within the meaning of the Act; and the obligations of the
Purchasers under this Section 8 shall be in addition to any liability which the
respective Purchasers may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Issuers and to each person,
if any, who controls the Issuers within the meaning of the Act.
9. (a) If any Purchaser shall default in its obligation to
purchase the Securities which it has agreed to purchase hereunder, you may in
your discretion arrange for you or another party or other parties to purchase
such Securities on the terms contained herein. If within thirty-six hours after
such default by any Purchaser you do not arrange for the purchase of such
Securities, then the Issuers shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to you
to purchase such Securities on such terms. In the event that, within the
respective prescribed periods, you notify the Issuers that you have so arranged
for the purchase of such Securities, or the Issuers notify you that they have so
arranged for the purchase of such Securities, you or the Issuers shall have the
right to postpone the Time of Delivery for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Offering Memorandum, or in any other documents or arrangements, and the Issuers
agree to prepare promptly any amendments to the Offering Memorandum which in
your opinion may thereby be made necessary. The term "Purchaser" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Purchaser or Purchasers by you and
the Issuers as provided in subsection (a) above, the aggregate principal amount
of such Securities which remains unpurchased does not exceed one-tenth of the
aggregate principal amount of all the Securities, then the Issuers shall have
the right to require each non-defaulting Purchaser to purchase the principal
amount of Securities which such Purchaser agreed to purchase
24
hereunder and, in addition, to require each non-defaulting Purchaser to purchase
its pro rata share (based on the principal amount of Securities which such
Purchaser agreed to purchase hereunder) of the Securities of such defaulting
Purchaser or Purchasers for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Purchaser from liability for its
default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Purchaser or Purchasers by you and
the Issuers as provided in subsection (a) above, the aggregate principal amount
of Securities which remains unpurchased exceeds one-tenth of the aggregate
principal amount of all the Securities, or if the Issuers shall not exercise the
right described in subsection (b) above to require non-defaulting Purchasers to
purchase Securities of a defaulting Purchaser or Purchasers, then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Purchaser or the Issuers, except for the expenses to be borne by the Issuers and
the Purchasers as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Purchaser from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Issuers and the several Purchasers, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Purchaser or any controlling person of any Purchaser, or the
Issuers, or any officer or director or controlling person of the Issuers, and
shall survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, the Issuers shall not then be under any liability to any Purchaser
except as provided in Sections 6 and 8 hereof; but, if for any other reason
other than a termination pursuant to Section 7(h), the Securities are not
delivered by or on behalf of the Issuers as provided herein, the Issuers will
reimburse the Purchasers through you for all out-of-pocket expenses approved in
writing by you, including fees and disbursements of counsel, reasonably incurred
by the Purchasers in making preparations for the purchase, sale and delivery of
the Securities, but the Issuers shall then be under no further liability to any
Purchaser except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of
the Purchasers, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Purchaser made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. and Xxxxxx Xxxxxxx & Co.
Incorporated on behalf of you as Purchasers.
25
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Purchasers shall be delivered or sent by mail,
telex or facsimile transmission to you as Purchasers in care of Xxxxxxx, Xxxxx &
Co., 00 Xxx Xxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department and Xxxxxx Xxxxxxx & Co. Incorporated, 1585 Broadway, New York, New
York 10036, Attention: High Yield Capital Markets Department; and if to the
Issuers shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Issuers set forth in the Offering Memorandum, Attention:
Secretary; provided, however, that any notice to a Purchaser pursuant to Section
8(c) hereof shall be delivered or sent by mail, telex or facsimile transmission
to such Purchaser at its address set forth in its Purchasers' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Issuers by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Purchasers, the Issuers, and, to the extent provided in Sections
8 and 10 hereof, the officers and directors of the Issuers and the Purchasers
and each person who controls the Issuers or any Purchaser, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Securities from any Purchaser shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such respective counterparts shall together constitute
one and the same instrument.
26
If the foregoing is in accordance with your understanding, please
sign and return to us counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Purchasers, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Purchasers and the
Issuers. It is understood that your acceptance of this letter on behalf of each
of the Purchasers is pursuant to the authority set forth in a form of Agreement
among Purchasers, the form of which shall be submitted to the Issuers for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
Charter Communications Holdings, LLC
By: /s/ XXXX X. XXXXXXXX
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Charter Communications Holdings Capital Corporation
By: /s/ XXXX X. XXXXXXXX
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Accepted as of the date hereof
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Banc of America Securities LLC
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx Xxxxxx Inc.
XX Xxxxxx, a Division of Chase Securities Inc.
Credit Lyonnais Securities (USA) Inc.
Fleet Securities, Inc.
BMO Xxxxxxx Xxxxx Corp.
Dresdner Kleinwort Xxxxxxxxxxx Securities LLC
27
Acting severally on behalf of themselves and the
several Purchasers named in Schedule I hereto.
By: Xxxxxxx, Xxxxx & Co.
By: /s/ XXXXXXX, XXXXX & CO.
--------------------------
Name:
Title:
By: Xxxxxx Xxxxxxx & Co. Incorporated
/s/ XXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Principal
28
SCHEDULE I
Principal Amount of
Eight-Year Senior Notes
Purchaser to be Purchased
--------- ---------------
Xxxxxxx, Xxxxx & Co. ................................... $ 122,500,000
Xxxxxx Xxxxxxx & Co. Incorporated....................... 122,500,000
Banc of America Securities LLC.......................... 17,500,000
Bear, Xxxxxxx & Co. Inc................................. 17,500,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated...... 17,500,000
Xxxxxxx Xxxxx Xxxxxx Inc................................ 17,500,000
XX Xxxxxx, a Division of Chase Securities Inc........... 14,000,000
Credit Lyonnais Securities (USA) Inc.................... 7,000,000
Fleet Securities, Inc................................... 7,000,000
BMO Xxxxxxx Xxxxx Corp.................................. 3,500,000
Dresdner Kleinwort Xxxxxxxxxxx Securities LLC........... 3,500,000
-----------
Total........................................... $ 350,000,000
==============
Principal Amount of
Ten-Year Senior Notes
Purchaser to be Purchased
--------- ---------------
Xxxxxxx, Xxxxx & Co..................................... $ 201,250,000
Xxxxxx Xxxxxxx & Co. Incorporated....................... 201,250,000
Banc of America Securities LLC.......................... 28,750,000
Bear, Xxxxxxx & Co. Inc................................. 28,750,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated...... 28,750,000
Xxxxxxx Xxxxx Xxxxxx Inc................................ 28,750,000
XX Xxxxxx, a Division of Chase Securities Inc........... 23,000,000
Credit Lyonnais Securities (USA) Inc.................... 11,500,000
Fleet Securities, Inc................................... 11,500,000
BMO Xxxxxxx Xxxxx Corp.................................. 5,750,000
Dresdner Kleinwort Xxxxxxxxxxx Securities LLC........... 5,750,000
-----------
Total........................................... $ 575,000,000
==============
29
Principal Amount at
Maturity of Senior
Discount Notes
Purchaser to be Purchased
--------- ---------------
Xxxxxxx, Xxxxx & Co..................................... $ 356,300,000
Xxxxxx Xxxxxxx & Co. Incorporated....................... 356,300,000
Banc of America Securities LLC.......................... 50,900,000
Bear, Xxxxxxx & Co. Inc................................. 50,900,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated...... 50,900,000
Xxxxxxx Xxxxx Xxxxxx Inc................................ 50,900,000
XX Xxxxxx, a Division of Chase Securities Inc........... 40,720,000
Credit Lyonnais Securities (USA) Inc.................... 20,360,000
Fleet Securities, Inc................................... 20,360,000
BMO Xxxxxxx Xxxxx Corp.................................. 10,180,000
Dresdner Kleinwort Xxxxxxxxxxx Securities LLC........... 10,180,000
-----------
Total........................................... $ 1,018,000,000
================
30
ANNEX I
(1) The Securities have not been and will not be registered under the
Act and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S under
the Act or pursuant to an exemption from the registration requirements of the
Act. Each Purchaser represents that it has offered and sold the Securities, and
will offer and sell the Securities (i) as part of their distribution at any time
and (ii) otherwise until 40 days after the later of the commencement of the
offering and the Time of Delivery, only in accordance with Rule 903 of
Regulation S or Rule 144A or pursuant to Paragraph 2 of this Annex I under the
Act. Accordingly, each Purchaser agrees that neither it, its affiliates nor any
persons acting on its or their behalf has engaged or will engage in any directed
selling efforts with respect to the Securities, and it and they have complied
and will comply with the offering restrictions requirement of Regulation S. Each
Purchaser agrees that, at or prior to confirmation of sale of Securities (other
than a sale pursuant to Rule 144A), it will have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration that
purchases Securities from it during the restricted period a confirmation or
notice to substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered and
sold within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and the
closing date, except in either case in accordance with Regulation S (or
Rule 144A if available) under the Securities Act. Terms used above have the
meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
Each Purchaser further agrees that it has not entered and will
not enter into any contractual arrangement with respect to the distribution or
delivery of the Securities, except with its affiliates or with the prior written
consent of the Issuers.
(2) Notwithstanding the foregoing, Securities in registered form may be
offered, sold and delivered by the Purchasers in the United States and to U.S.
persons pursuant to Section 3 of this Agreement without delivery of the written
statement required by paragraph (1) above.
(3) Each Purchaser further represents and agrees that (i) it has not
offered or sold and prior to the date six months after the date of issue of the
Securities will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances
B-1
which have not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities Regulations
1995, (ii) it has complied, and will comply, with all applicable provisions of
the Financial Services Act 1986 of the United Kingdom with respect to anything
done by it in relation to the Securities in, from or otherwise involving the
United Kingdom, and (iii) it has only issued or passed on and will only issue or
pass on in the United Kingdom any document received by it in connection with the
issuance of the Securities to a person who is of a kind described in Article
11(3) of the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1996 of the United Kingdom or is a person to whom the
document may otherwise lawfully be issued or passed on.
(4) Each Purchaser agrees that it will not offer, sell or deliver any of
the Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws thereof,
and that it will take at its own expense whatever action is required to permit
its purchase and resale of the Securities in such jurisdictions. Each Purchaser
understands that no action has been taken to permit a public offering in any
jurisdiction outside the United States where action would be required for such
purpose. Each Purchaser agrees not to cause any advertisement of the Securities
to be published in any newspaper or periodical or posted in any public place and
not to issue any circular relating to the Securities, except in any such case
with the express written consent of each of Xxxxxxx, Xxxxx & Co. and Xxxxxx
Xxxxxxx & Co. Incorporated and then only at such Purchaser's own risk and
expense.
B-2
