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Exhibit 10.1
CCO HOLDINGS, LLC
and
CCO HOLDINGS CAPITAL CORP.,
as Issuers
and
Xxxxx Fargo Bank, N.A.,
as Trustee
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INDENTURE
Dated as of December 15, 2004
Senior Floating Rate Notes due 2010
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE............................................ 1
Section 1.01. Definitions........................................................... 1
Section 1.02. Other Definitions..................................................... 25
Section 1.03. Incorporation by Reference of Trust Indenture Act..................... 25
Section 1.04. Rules of Construction................................................. 26
ARTICLE 2 THE NOTES............................................................................. 26
Section 2.01. Form and Dating....................................................... 26
Section 2.02. Execution and Authentication.......................................... 27
Section 2.03. Registrar,Paying Agent and Calculation Agent.......................... 28
Section 2.04. Paying Agent to Hold Money in Trust................................... 28
Section 2.05. Holder Lists.......................................................... 29
Section 2.06. Transfer and Exchange................................................. 29
Section 2.07. Replacement Notes..................................................... 42
Section 2.08. Outstanding Notes..................................................... 42
Section 2.09. Treasury Notes........................................................ 43
Section 2.10. Temporary Notes....................................................... 43
Section 2.11. Cancellation.......................................................... 43
Section 2.12. Defaulted Interest.................................................... 43
ARTICLE 3 REDEMPTION AND PREPAYMENT............................................................. 44
Section 3.01. Notices to Trustee.................................................... 44
Section 3.02. Selection of Notes to Be Redeemed..................................... 44
Section 3.03. Notice of Redemption.................................................. 44
Section 3.04. Effect of Notice of Redemption........................................ 45
Section 3.05. Deposit of Redemption Price........................................... 45
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Section 3.06. Notes Redeemed in Part................................................ 46
Section 3.07. Optional Redemption................................................... 46
Section 3.08. Mandatory Redemption.................................................. 47
Section 3.09. Offer to Purchase by Application of Excess Proceeds................... 47
ARTICLE 4 COVENANTS............................................................................. 49
Section 4.01. Payment of Notes...................................................... 49
Section 4.02. Maintenance of Office or Agency....................................... 49
Section 4.03. Reports............................................................... 50
Section 4.04. Compliance Certificate................................................ 50
Section 4.05. Taxes................................................................. 51
Section 4.06. Stay, Extension and Usury Laws........................................ 51
Section 4.07. Restricted Payments................................................... 52
Section 4.08. Investments........................................................... 55
Section 4.09. Dividend and Other Payment Restrictions Affecting Subsidiaries........ 55
Section 4.10. Incurrence of Indebtedness and Issuance of Preferred Stock............ 57
Section 4.11. Limitation on Asset Sales............................................. 59
Section 4.12. Sale and Leaseback Transactions....................................... 61
Section 4.13. Transactions with Affiliates.......................................... 61
Section 4.14. Liens................................................................. 62
Section 4.15. Existence............................................................. 63
Section 4.16. Repurchase at the Option of Holders upon a Change of Control.......... 63
Section 4.17. Limitations on Issuances of Guarantees of Indebtedness................ 65
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Section 4.18. Payments for Consent.................................................. 65
Section 4.19. Application of Fall-Away Covenants.................................... 65
ARTICLE 5 SUCCESSORS............................................................................ 66
Section 5.01. Merger, Consolidation, or Sale of Assets.............................. 66
Section 5.02. Successor Corporation Substituted..................................... 67
ARTICLE 6 DEFAULTS AND REMEDIES................................................................. 67
Section 6.01. Events of Default..................................................... 67
Section 6.02. Acceleration.......................................................... 68
Section 6.03. Other Remedies........................................................ 69
Section 6.04. Waiver of Existing Defaults........................................... 69
Section 6.05. Control by Majority................................................... 69
Section 6.06. Limitation on Suits................................................... 69
Section 6.07. Rights of Holders of Notes to Receive Payment......................... 70
Section 6.08. Collection Suit by Trustee............................................ 70
Section 6.09. Trustee May File Proofs of Claim...................................... 70
Section 6.10. Priorities............................................................ 71
Section 6.11. Undertaking for Costs................................................. 71
ARTICLE 7 TRUSTEE............................................................................... 72
Section 7.01. Duties of Trustee..................................................... 72
Section 7.02. Rights of Trustee..................................................... 73
Section 7.03. Individual Rights of Trustee.......................................... 74
Section 7.04. Trustee's Disclaimer.................................................. 74
Section 7.05. Notice of Defaults.................................................... 74
Section 7.06. Reports by Trustee to Holders of the Notes............................ 74
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Section 7.07. Compensation and Indemnity............................................ 74
Section 7.08. Replacement of Trustee................................................ 75
Section 7.09. Successor Trustee by Merger, etc...................................... 76
Section 7.10. Eligibility; Disqualification......................................... 76
Section 7.11. Preferential Collection of Claims Against the Issuers................. 77
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE.............................................. 77
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.............. 77
Section 8.02. Legal Defeasance and Discharge........................................ 77
Section 8.03. Covenant Defeasance................................................... 78
Section 8.04. Conditions to Legal or Covenant Defeasance............................ 78
Section 8.05. Deposited Money and Government Securities to Be Held in
Trust; Other Miscellaneous Provisions................................. 80
Section 8.06. Repayment to Issuers.................................................. 80
Section 8.07. Reinstatement......................................................... 81
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER...................................................... 81
Section 9.01. Without Consent of Holders of Notes................................... 81
Section 9.02. With Consent of Holders of Notes...................................... 82
Section 9.03. Compliance with Trust Indenture Act................................... 83
Section 9.04. Revocation and Effect of Consents..................................... 83
Section 9.05. Notation on or Exchange of Notes...................................... 83
Section 9.06. Trustee to Sign Amendments, etc....................................... 83
ARTICLE 10 MISCELLANEOUS......................................................................... 84
Section 10.01. Trust Indenture Act Controls.......................................... 84
Section 10.02. Notices............................................................... 84
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Section 10.03. Communication by Holders of Notes with Other Holders of Notes......... 85
Section 10.04. Certificate and Opinion as to Conditions Precedent.................... 85
Section 10.05. Statements Required in Certificate or Opinion......................... 85
Section 10.06. Rules by Trustee and Agents........................................... 86
Section 10.07. No Personal Liability of Directors, Officers, Employees,
Members and Stockholders.............................................. 86
Section 10.08. Governing Law......................................................... 86
Section 10.09. No Adverse Interpretation of Other Agreements......................... 86
Section 10.10. Successors............................................................ 87
Section 10.11. Severability.......................................................... 87
Section 10.12. Counterpart Originals................................................. 87
Section 10.13. Table of Contents, Headings, etc...................................... 87
ARTICLE 11 SATISFACTION AND DISCHARGE............................................................ 87
Section 11.01. Satisfaction and Discharge of Indenture............................... 87
Section 11.02. Application of Trust Money............................................ 88
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EXECUTION COPY
INDENTURE dated as of December 15, 2004 among CCO Holdings, LLC, a Delaware
limited liability company (as further defined below, the "Company"), CCO
Holdings Capital Corp., a Delaware corporation (as further defined below,
"Capital Corp" and together with the Company, the "Issuers"), and Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee").
The Issuers 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 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"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 the Issuers' Senior Floating Rate Notes due
2010 issued under this Indenture in addition to the Original Notes (other than
any Notes issued in respect of Original 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, Paying Agent or Calculation Agent.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Note or beneficial interest therein, the rules
and procedures of the Depositary, Euroclear and Clearstream, in each case to the
extent applicable to such transaction and as in effect from time to time.
"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, other than sales of inventory in the ordinary course of the Cable
Related Business consistent with applicable past practices; 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 of Equity Interests in 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 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) any Restricted Payment that is permitted by Section 4.07, any
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 similar Federal or
state law of any jurisdiction relating to bankruptcy, insolvency, winding up,
liquidation, reorganization or relief of debtors.
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"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 the Company, as the case may be, 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 and related thereto.
"Calculation Agent" means initially Xxxxx Fargo Bank, N.A. until a
successor replaces Xxxxx Fargo Bank, N.A. in accordance with Section 2.03 hereof
and thereafter means the successor serving hereunder.
"Capital Corp" means CCO Holdings 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 cash proceeds
(including the fair market value of the non-cash proceeds, as determined by an
independent appraisal firm) received by the Company or its Restricted
Subsidiaries from and after November 10, 2003, 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 from and after November
10, 2003, or
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(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 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 Xxxxxxxx Bank Watch 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.
"CCH II" means CCH II, LLC, a Delaware limited liability company, and
any successor Person thereto.
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"CCH II Indentures" means, collectively, the indenture entered into by
CCH II and CCH II Capital Corp., a Delaware corporation, with respect to their
10.25% Senior Notes due 2010 and any indentures, note purchase agreements or
similar documents entered into by CCH II and CCH II Capital Corp. 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 CCH II and
CCH II Capital Corp. in connection therewith, as any of the foregoing may be
refinanced, replaced, amended, supplemented or otherwise modified from time to
time.
"CCI" means Charter Communications, Inc., a Delaware corporation, and
any successor Person thereto.
"CCI Indentures" means, collectively, the indentures entered into by
CCI with respect to its 5.75% Convertible Senior Notes due 2005, 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 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 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.
"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, without limitation,
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
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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 and (ii) Charter Holdings shall cease to own beneficially, directly or
indirectly, 100% of the Capital Stock of the Company.
"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
Corporation in connection with the issuance of each 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, 10.000% 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, 10.750% Senior Notes Due 2009 dated
January 2001, 11.125% Senior Notes Due 2011 dated January 2001, 13.500% Senior
Discount Notes Due 2011 dated January 2001, 9.625% Senior Notes Due 2009 dated
May 2001, 10.000% 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,
10.000% Senior Notes Due 2011 dated January 2002, and 11.750% Senior Discount
Notes Due 2011 dated January 2002, and (b) any indentures, note purchase
agreements or similar documents entered into by Charter Holdings and/or Charter
Communications Holdings Capital Corporation 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 Corporation 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 Charter Holdings Indentures, the CCI Indentures, the CCH II Indentures 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 of (or
accreted value, if applicable) 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
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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.
"Charter Refinancing Subsidiary" means CCH I, CCH II or any other
directly or indirectly 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.
"Clearstream" means Clearstream Banking, societe anonyme (formerly
Cedelbank).
"Commission" or "SEC" means the Securities and Exchange Commission.
"Company" means CCO Holdings, LLC, a Delaware limited liability
company, and any successor Person thereto.
"Consolidated EBITDA" means with respect to any Person, for any period,
the net income of such Person and its Restricted Subsidiaries for such period
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, nonrecurring and
unusual items and the cumulative effects of changes in accounting principles
reducing such net income, less all non-cash items, extraordinary items,
nonrecurring and unusual items and cumulative effects of changes in accounting
principles increasing such net income, all as determined on a consolidated basis
for such Person and its Restricted Subsidiaries in conformity with GAAP; and
(6) amounts actually paid during such period pursuant to a deferred
compensation plan; and
(7) for purposes of Section 4.10 only, Management Fees;
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;
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(y) solely for the purposes of calculating the amount of Restricted
Payments that may be made pursuant to clause (3) of Section 4.07 (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 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
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
(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, without
limitation, 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
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(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);
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) in each case, on a
consolidated basis and in accordance with GAAP.
"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 10.02 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 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.
"Determination Date" means, with respect to any Interest Period, the
second London Banking Day preceding the first day of the Interest Period.
- 9 -
"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.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Issuers' Senior Floating Rate Notes due
2010, 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 Offer" means an offer to exchange Initial Notes or Initial
Additional Notes, if any, for Exchange Notes pursuant to a Registration Rights
Agreement.
"Exchange Offer Registration Statement" means a registration statement
relating to an Exchange Offer as may be provided in any Registration Rights
Agreement.
- 10 -
"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(g)(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.
"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, without limitation, 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.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
(1) in respect of borrowed money;
- 11 -
(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,
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.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial Additional Notes" means Additional Notes issued in an offering
not registered under the Securities Act.
"Initial Notes" means the Issuers' Senior Floating Rate Notes due 2010,
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.
"Interest Period" means the period commencing on and including an
interest payment date and ending on and including the day immediately preceding
the next succeeding interest payment date, with the exception that the first
Interest Period shall commence on and include the Issue Date and end on and
include March 14, 2005.
- 12 -
"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 December 15, 2004.
"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.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Issuers and sent to all Holders of the Initial Notes or any Initial
Additional Notes for use by such Holders in connection with any Exchange Offer.
"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 multiplied by four (the "Reference Period").
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 or other Preferred Stock (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, 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, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person
- 13 -
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.
"LIBOR" means, with respect to an Interest Period, the rate (expressed
as a percentage per annum) for deposits in United States dollars for a
three-month period beginning on the second London Banking Day after the
Determination Date that appears on either Telerate Page 3750 or Bloomberg page
BBAM 1 as of 11:00 a.m., London time, on the Determination Date. If Telerate
Page 3750 and Bloomberg page BBAM 1 do not include such a rate or are
unavailable on a Determination Date, the Calculation Agent will request the
principal London office of each of four major banks in the London interbank
market, as selected by the Calculation Agent, to provide such bank's offered
quotation (expressed as a percentage per annum), as of approximately 11:00 a.m.,
London time, on such Determination Date, to prime banks in the London interbank
market for deposits in a Representative Amount in United States dollars for a
three-month period beginning on the second London Banking Day after the
Determination Date. If at least two such offered quotations are so provided,
LIBOR for the Interest Period will be the arithmetic mean of such quotations. If
fewer than two such quotations are so provided, the Calculation Agent will
request each of three major banks in New York City, as selected by the
Calculation Agent, to provide such bank's rate (expressed as a percentage per
annum), as of approximately 11:00 a.m., New York City time, on such
Determination Date, for loans in a Representative Amount in United States
dollars to leading European banks for a three-month period beginning on the
second London Banking Day after the Determination Date. If at least two such
rates are so provided, LIBOR for the Interest Period will be the arithmetic mean
of such rates. If fewer than two such rates are so provided, then LIBOR for the
Interest Period will be LIBOR in effect with respect to the immediately
preceding Interest 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.
"London Banking Day" means any day in which dealings in United States
dollars are transacted or, with respect to any future date, are expected to be
transacted in the London interbank market.
"Management Fees" means the fees payable to CCI pursuant to the management
and mutual services agreements between any Parent of the Company and/or Charter
Communications Operating, LLC and between any Parent of the Company and other
- 14 -
Restricted Subsidiaries of the Company and pursuant to the limited liability
company agreements of certain Restricted Subsidiaries as such management, mutual
services or limited liability company agreements exist 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 is not more
disadvantageous to the holders of the Notes in any material respect than such
management 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, without limitation, 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, without limitation,
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 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.
- 15 -
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"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 10.05.
"Opinion of Counsel" means an opinion from legal counsel that that is
reasonably acceptable to the Trustee and meets the requirements of Section
10.05. The counsel may be an employee of or counsel to the Company or any
Subsidiary of the Company.
"Original Notes" means the Initial Notes and any Exchange Notes issued
in exchange therefor.
"Parent" means CCH II, CCH I, 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.
"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).
"Permitted Investments" means:
(1) any Investment by the Company in a Restricted Subsidiary of the
Company, 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;
- 16 -
(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 after November 10, 2003 (other than to a Subsidiary of the Company) of
Equity Interests (other than Disqualified Stock) of the Company 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;
(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; and
(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.
"Permitted Liens" means:
(1) Liens on the assets of the Company securing Indebtedness and other
Obligations under any of the Credit Facilities;
(2) Liens in favor of the Company;
(3) 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;
(4) 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;
(5) 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;
(6) purchase money mortgages or other purchase money Liens (including,
without limitation, any Capital Lease Obligations) incurred by the Company upon
any fixed or capital assets acquired on or after the Issue Date or purchase
money mortgages (including without limitation 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
- 17 -
(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 expenses (including, without limitation, 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;
(7) Liens existing on the Issue Date (other than in connection with the
Credit Facilities) and replacement Liens therefor that do not encumber
additional property;
(8) 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;
(9) 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;
(10) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security;
(11) 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);
(12) 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;
(13) Liens of franchisors or other regulatory bodies arising in the
ordinary course of business;
(14) 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;
- 18 -
(15) 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;
(16) 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;
(17) 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;
(18) Liens consisting of any interest or title of licensor in the
property subject to a license;
(19) Liens on the Capital Stock of Unrestricted Subsidiaries;
(20) 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;
(21) 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;
(22) 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;
(23) Liens in favor of the Trustee for its benefit and the benefit of
Holders as their respective interests appear; and
(24) 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 direct or indirect parent of such
Restricted Subsidiary; 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
- 19 -
applicable), plus accrued interest and premium, if any, on the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded (plus the amount
of reasonable expenses incurred in connection therewith), except to the extent
that any such excess principal amount 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.
"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(g)(i)(A) 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 referent 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.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Stock.
"Rating Agencies" means Xxxxx'x and S&P.
"Registration Rights Agreement" means (a) the Exchange and Registration
Rights Agreement dated as of the Issue Date among the Issuers and the initial
purchasers named therein 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.
"Regulation S" means Regulation S promulgated under the Securities Act.
- 20 -
"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
equal to 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).
"Representative Amount" means a principal amount of not less than U.S.
$1,000,000 for a single transaction in the relevant market at the relevant time.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his 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 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 144A 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 equal
to the outstanding principal amount of the Initial Notes or any Initial
Additional Notes, in each case initially sold in reliance on Rule 144A.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
- 21 -
"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.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means a "shelf" registration statement
providing for the registration and the sale on a continuous or delayed basis of
the Initial Notes or any Initial Additional Notes as may be provided in any
Registration Rights Agreement.
"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
(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).
"Telerate Page 3750" means the display designated as "Page 3750" on the
Moneyline Telerate service (or such other page as may replace Page 3750 on that
service or a successor service).
- 22 -
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
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.
"Trustee" means Xxxxx Fargo Bank, N.A. until a successor replaces Xxxxx
Fargo Bank, N.A. in accordance with the applicable provisions of this Indenture
and thereafter means the successor serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive Notes that
do not bear and are not required to bear the Private Placement Legend.
"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 or CCI 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 any Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Company unless
such terms constitute 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 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;
(5) has at least one director on its board of directors or comparable
governing body that is not a director or executive officer of the Company or any
of its Restricted Subsidiaries, or has at least one executive officer that is
not a director or executive officer of the Company or any of its Restricted
Subsidiaries; and
(6) does not own any Capital Stock of any Restricted Subsidiary of the
Company.
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Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with 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
such covenant. 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.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding common equity interests or
other ownership interests of which (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.
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Section 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Affiliate Transaction".................................. 4.13
"Asset Sale Offer"....................................... 3.09
"Authentication Order"................................... 2.02
"Change of Control Offer"................................ 4.16
"Change of Control Payment".............................. 4.16
"Change of Control Payment Date"......................... 4.16
"Covenant Defeasance".................................... 8.03
"DTC".................................................... 2.03
"Event of Default"....................................... 6.01
"Excess Proceeds"........................................ 4.11
"incur".................................................. 4.10
"Legal Defeasance"....................................... 8.02
"Offer Amount"........................................... 3.09
"Offer Period"........................................... 3.09
"Paying Agent"........................................... 2.03
"Payment Default"........................................ 6.01
"Permitted Debt"......................................... 4.10
"Preferred Stock Financing".............................. 4.10
"Purchase Date".......................................... 3.09
"Registrar".............................................. 2.03
"Restricted Payments".................................... 4.07
"Subordinated Debt Financing"............................ 4.10
"Subordinated Notes"..................................... 4.10
"Subsidiary Guarantee"................................... 4.17
"Suspended Covenants".................................... 4.19
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.
- 25 -
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:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in
the plural include the singular;
(v) provisions apply to successive events and
transactions;
(vi) 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;
(vii) 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
(viii) references to any contract, agreement or
instrument shall mean the same as amended, modified,
supplemented or amended and restated from time to time, in
each case, in accordance with any applicable restrictions
contained in this Indenture.
ARTICLE 2
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 terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Issuers and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound
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thereby. However, to the extent any provision of any Note conflicts with the
express provisions of this Indenture, the provisions of this Indenture shall
govern and be controlling.
(b) Global Notes. Notes issued in global form shall be substantially in
the form of Exhibit A attached hereto (including the Global Note Legend thereon
and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). 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 principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06.
(c) Euroclear and Clearstream Procedures Applicable. The Applicable
Procedures shall apply to transfers of beneficial interests in the Regulation S
Global Notes that are held by Participants through Euroclear or Clearstream.
Section 2.02. Execution and Authentication.
Two Officers 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
$550,000,000, (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.
- 27 -
On the Issue Date, the Issuers will issue $550,000,000 aggregate
principal amount of Initial Notes. Initial Notes and any Initial Additional
Notes offered and sold in reliance on the exemption from registration under the
Securities Act provided by Section 4(2) thereunder or Rule 144A shall be issued
as one or more Rule 144A Global Notes. Initial Notes and any Initial Additional
Notes offered and sold in offshore transactions in reliance on Regulation S
shall be issued as one or more Regulation S Global Notes.
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. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Issuers.
Section 2.03. Registrar, Paying Agent and Calculation 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 shall maintain the services of a duly-appointed Calculation Agent.
The Issuers may appoint one or more co-registrars, one or more additional paying
agents and one or more additional calculation agents. The term "Registrar"
includes any co-registrar, the term "Paying Agent" includes any additional
paying agent. The Issuers may change any Paying Agent, Registrar or Calculation
Agent 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, Paying
Agent or Calculation 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,
Paying Agent and Calculation Agent and to act as 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.
- 28 -
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 ss. 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 ss. 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes shall be exchanged
by the Issuers for Definitive Notes if:
(i) the Issuers deliver to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not
appointed by the Issuers within 120 days after the date of such notice
from the Depositary; or
(ii) the Issuers in their sole discretion determine that the
Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and deliver a written notice to such effect to the
Trustee; or
(iii) there shall have occurred and be continuing a Default or
Event of Default with respect to the Notes.
Upon the occurrence of any of the preceding events in (i), (ii) or
(iii) above, Definitive Notes shall be issued in such names as the Depositary
shall instruct the Trustee. Global Notes also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.07 and 2.10. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in this
Section 2.06(a); however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f).
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Prior to the
expiration of the 40-day distribution compliance period set forth in Regulation
S, beneficial interests in any Regulation S Global Notes may be held only
- 29 -
through Euroclear or Clearstream unless transferred in accordance with Section
2.06(b)(iii)(A). Transfers of beneficial interests in the Global Notes also
shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend.
Beneficial interests in any Unrestricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either:
(A) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be
transferred or exchanged; and
(B) instructions given in accordance with the
Applicable Procedures containing information regarding the
Participant account to be credited with such increase; or
(C) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be
issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged; and
(D) instructions given by the Depositary to the
Registrar containing information regarding the Person in whose
name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (A) above.
Upon consummation of an Exchange Offer by the Issuers in accordance with Section
2.06(f), the requirements of this Section 2.06(b)(ii) shall be deemed to have
been satisfied upon receipt by the Registrar of the instructions contained in
the Letter of Transmittal delivered by the holder of such beneficial interests
in the Restricted Global Notes. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h).
(iii) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who
- 30 -
takes delivery thereof in the form of a beneficial interest in another
Restricted Global Note if the transfer complies with the requirements
of Section 2.06(b)(ii) above and the Registrar receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the Rule 144A Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof; and
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2)
thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with a Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker- dealer, (2) a Person
participating in the distribution of the relevant Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Issuers;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with a Registration
Rights Agreement;
(C) such transfer is effected by a broker- dealer
pursuant to the Exchange Offer Registration Statement in
accordance with a Registration Rights Agreement; or
(D) such exchange or transfer is effected after the
expiration of the 40-day distribution compliance period set
forth in Regulation S and the Registrar receives the
following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a)
thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person
- 31 -
who shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Note has not yet
been issued, the Issuers shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof (provided that any such
beneficial interest in Regulation S Global Note shall not be
so exchangeable until after the expiration of the 40-day
distribution compliance period set forth in Regulation S);
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A under the Securities
Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non- U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
- 32 -
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B
hereto, including the certifications, certificates and Opinion
of Counsel required by item (3)(d) thereof, if applicable;
(F) if such beneficial interest is being transferred
to the Issuers or any of their Subsidiaries, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h), and the Issuers
shall execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c) shall be registered in
such name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant.
The Trustee shall deliver such Definitive Notes to the Persons in whose names
such Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section
2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with a Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker- dealer, (2) a Person
participating in the distribution of the relevant Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Issuers;
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(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with a Registration
Rights Agreement;
(C) such transfer is effected by a broker- dealer
pursuant to the Exchange Offer Registration Statement in
accordance with a Registration Rights Agreement; or
(D) such exchange or transfer is effected after the
expiration of the 40-day distribution compliance period set
forth in Regulation S and the Registrar receives the
following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Definitive
Note that does not bear the Private Placement Legend,
a certificate from such holder in the form of Exhibit
C hereto, including the certifications in item (1)(b)
thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in
the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii), the Trustee shall cause the aggregate principal amount of
the applicable Global Note to be reduced accordingly pursuant to
Section 2.06(h), and the Issuers shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section
2.06(c)(iii) shall not bear the Private Placement Legend.
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(d) Transfer and Exchange of Definitive Notes for Beneficial Interests
in Global Notes.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non- U.S. Person in an offshore transaction
in accordance with Rule 903 or Rule 904 under the Securities
Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted
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Global Note, in the case of clause (B) above, the Rule 144A Global Note, in the
case of clause (C) above, the Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with a Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a broker-
dealer, (2) a Person participating in the distribution of the
relevant Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with a Registration
Rights Agreement;
(C) such transfer is effected by a broker- dealer
pursuant to the Exchange Offer Registration Statement in
accordance with a Registration Rights Agreement; or
(D) such exchange or transfer is effected after the
expiration of the 40-day distribution compliance period set
forth in Regulation S and the Registrar receives the
following:
(1) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c)
thereof; or
(2) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section
2.06(d)(ii), the Trustee shall cancel the Definitive Notes and increase or cause
to be increased the aggregate principal amount of the Unrestricted Global Note.
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(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Issuers shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule
144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an
- 37 -
Unrestricted Definitive Note or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Definitive Note
if:
(A) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with a Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a broker-
dealer, (2) a Person participating in the distribution of the
relevant Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Issuers;
(B) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with a Registration
Rights Agreement;
(C) any such transfer is effected by a broker-dealer
pursuant to an Exchange Offer Registration Statement in
accordance with a Registration Rights Agreement; or
(D) such exchange or transfer is effected after the
expiration of the 40-day distribution compliance period set
forth in Regulation S and the Registrar receives the
following:
(1) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof;
or
(2) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Issuers to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities
Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of an Exchange Offer in
accordance with a Registration Rights Agreement, the Issuers shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by
- 38 -
Persons that certify in the applicable Letters of Transmittal that (x) they are
not broker- dealers, (y) they are not participating in a distribution of the
relevant Exchange Notes and (z) they are not affiliates (as defined in Rule 144)
of the Issuers, and accepted for exchange in the relevant Exchange Offer and
(ii) Definitive Notes in an aggregate principal amount equal to the principal
amount of the Restricted Definitive Notes accepted for exchange in the relevant
Exchange Offer. Concurrently with the issuance of such Notes, the Trustee shall
cause the aggregate principal amount of the applicable Restricted Global Notes
to be reduced accordingly, and the Issuers shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Definitive Notes in the appropriate principal amount.
(g) 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.
(A) Except as permitted by subparagraph (B) below,
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 SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION."
"THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY
OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM
- 39 -
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES
OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f)
to this Section 2.06 (and all Notes issued in exchange
therefor or substitution thereof) shall not bear the Private
Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF
THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT
IN PART PURSUANT TO SECTION 2.06(A) OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE ISSUERS."
- 40 -
(ii) Regulation S Legend. Each temporary Regulation S Global
Note should bear a legend in substantially the following form:
"THE ISSUERS HAVE REQUESTED THE DEPOSITORY TRUST COMPANY NOT TO
TRANSFER ANY INTEREST IN THIS GLOBAL NOTE BY EFFECTING BOOK-ENTRY
DELIVERIES UNTIL JANUARY 24, 2005 EXCEPT TO A NON-U.S. PERSON IN
COMPLIANCE WITH REGULATION S OR TO A QUALIFIED INSTITUTIONAL BUYER IN
ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH THE TRANSFER PROVISIONS SET FORTH IN SECTION 2 OF THE
INDENTURE."
(h) 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.
(i) 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 2.10, 3.09, 4.11, 4.16 and
9.05).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed 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
- 41 -
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 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 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 as not outstanding. Except 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.
- 42 -
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, 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, 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
considers 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
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before the special record date, the Issuers (or, upon the written request of the
Issuers, the Trustee in the 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.
ARTICLE 3
REDEMPTION AND PREPAYMENT
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 to be 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;
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(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;
(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 not 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. 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 at the close of business on such record date. If any
Note called for redemption shall not be so paid upon surrender for redemption
- 45 -
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 December 15, 2006. Thereafter, 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 redemption
prices (expressed as percentages of 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 December 15 of the years indicated below:
Year Percentage
---- ----------
2006 102.000%
2007 101.000%
2008 and thereafter 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Section 3.07, at any time prior to December 15, 2006, 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
100.00% of the principal amount thereof, plus a premium equal to the
interest rate per annum applicable to the Notes on the date the notice
of redemption is given, plus accrued and unpaid interest 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 remains
outstanding immediately after the occurrence of such
redemption (excluding Notes held by the Company and its
Subsidiaries); and
(ii) the redemption must occur within 60 days of the
date of the closing of such Equity Offering.
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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.
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.
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 (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.
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 at the close of
business on such record date, and no Special Interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
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;
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(e) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer or 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 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 Holder 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
(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.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06.
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ARTICLE 4
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 rate equal to
2% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; 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 in the Borough of Manhattan, The City of New
York, 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.
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; provided,
however, that no such designation or rescission shall in any manner relieve the
Issuers of their obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. 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 Xxxxx Fargo Bank, N.A., at Corporate Trust
Services, MAC X0000-000, Xxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000, as
one such office or agency of the Issuers in accordance with Section 2.03.
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Section 4.03. Reports.
Whether or not required by the Commission, so long as any Notes are
outstanding, the Issuers shall furnish to the Holders of Notes and the Trustee,
within the time periods specified in the Commission's rules and regulations:
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission 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 by its independent public
accountants; and
(2) all current reports that would be required to be filed with the
Commission on Form 8-K if the Issuers were required to file such reports.
If the Company has designated any of its Subsidiaries as Unrestricted
Subsidiaries, then 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 the consummation of the Exchange Offer, whether or
not required by the Commission, the Issuers shall file a copy of all of the
information and reports referred to in clauses (1) and (2) above with the
Commission for public availability within the time periods specified in the
Commission's rules and regulations, unless the Commission 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 have 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) and that to the best of his or her knowledge
no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the
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Notes is prohibited or if such event has occurred, a description of the
event and what action the Issuers are taking or propose to take with
respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public
Accountants, the year-end financial statements delivered pursuant to
Section 4.03 above shall be accompanied by a written statement of the
Company's independent public accountants (each of whom shall be a firm
of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has
come to their attention that would lead them to believe that either of
the Issuers has violated any provisions of Article 4 or Article 5 or,
if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not
be liable directly or indirectly to any Person for any failure to
obtain knowledge of any such violation. In the event that, after the
Issuers have used their reasonable best efforts to obtain the written
statement of the Company's independent public accountants required by
the provisions of this paragraph, such statement cannot be obtained,
the Issuers shall deliver, in satisfaction of their obligations under
this Section 4.04, an Officers' Certificate (i) certifying that they
have used their reasonable best efforts to obtain such required
statement but were unable to do so and (ii) attaching the written
statement of the Company's accountants that the Company received in
lieu thereof.
(c) 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 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 adverse in any material respect
to the Holders of the Notes.
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.
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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, without limitation, 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 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, without limitation, 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
being 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) and (8) of the next succeeding paragraph),
shall not exceed, at the date of determination, the sum of:
(a) an amount equal to 100% of the Consolidated EBITDA of the
Company for the period beginning on the first day of the fiscal quarter
commencing
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October 1, 2003 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:
(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 to the extent necessary to permit direct or indirect
beneficial owners of shares of Capital Stock of the Company to pay federal,
state or local income tax liabilities that would arise solely from income of the
Company or any of its Restricted Subsidiaries, as the case may be, for the
relevant taxable period and attributable to them solely as a result of the
Company (and any intermediate entity through which the holder owns such shares)
or any of its Restricted Subsidiaries being a limited liability company,
partnership or similar entity for federal income tax purposes;
(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;
- 53 -
(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 or such Parent's management pursuant to any management
equity subscription agreement or stock option agreement entered into in
accordance with the policies of the Company or any Parent; 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 Company;
(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; and
(9) additional Restricted Payments directly or indirectly to the
Company or any 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, CCH II and/or any Charter Refinancing Subsidiary to pay
interest when due on Indebtedness under the Charter Holdings Indentures, the CCH
II Indentures 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)consisting of dividends or distributions to the extent required to enable CCH
II, Charter Holdings, CCI, or any Charter Refinancing Subsidiary to defease,
redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for
value Indebtedness under the CCH II Indentures, the Charter Holdings Indentures,
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 CCH II Indentures, the Charter Holdings
Indentures, 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 or investment to any Parent
of Indebtedness so purchased, redeemed or acquired.
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
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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:
(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 as in effect on the Issue Date (including,
without limitation, Indebtedness under any of the Credit Facilities) and any
amendments,
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modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are no more restrictive, taken as a whole, with
respect to such dividend and other payment restrictions than those contained in
the most restrictive Existing Indebtedness, as in effect on the Issue Date;
(2) this Indenture and the Notes;
(3) applicable law;
(4) 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;
(5) customary non-assignment provisions in leases, franchise agreements
and other commercial agreements entered into in the ordinary course of business
and consistent with past practices;
(6) 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;
(7) any agreement for the sale or other disposition of a Restricted
Subsidiary of the Company that restricts distributions by such Restricted
Subsidiary pending its sale or other disposition;
(8) Permitted Refinancing Indebtedness; provided that the restrictions
contained in the agreements governing such Permitted Refinancing Indebtedness
are no more restrictive, taken as a whole, than those contained in the
agreements governing the Indebtedness being refinanced;
(9) 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;
(10) 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;
(11) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(12) restrictions contained in the terms of Indebtedness permitted to
be incurred under Section 4.10; provided that such restrictions are no more
restrictive, taken as a whole,
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than the terms contained in the most restrictive, together or individually of
the Credit Facilities as in effect on the Issue Date; and
(13) 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.
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 incur Preferred Stock if the Leverage Ratio of
the Company and its Restricted Subsidiaries would have been not greater than 4.5
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 the 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 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 the Credit Facilities);
(3) the incurrence on the Issue Date by the Company and its Restricted
Subsidiaries of Indebtedness represented by the Notes (other than 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, without limitation, the cost of design, development, construction,
acquisition, transportation, installation, improvement, and migration) of
Productive Assets of the Company or any of its Restricted
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Subsidiaries, in an aggregate principal amount not to exceed $75 million at any
time outstanding pursuant to this clause (4);
(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 intercompany Indebtedness) that was permitted by this
Indenture to be incurred under this clause (5), the first paragraph of this
covenant or clauses (2) or (3) 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
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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
clauses listed above, to the extent that such Indebtedness satisfies the
criteria for such classification.
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, without limitation, Indebtedness under the Credit Facilities). 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
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(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 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 an amount equal
to such Net Proceeds at its option:
(1) to repay debt under the Credit Facilities or any other Indebtedness
of the Restricted Subsidiaries of the Company (other than Indebtedness
represented solely 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
all holders of other Indebtedness that is of equal priority with the Notes
containing provisions requiring offers to purchase or redeem with the proceeds
of sales of assets to purchase the maximum principal amount of Notes and such
other Indebtedness of equal priority that may be purchased 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 and such
other Indebtedness of equal priority tendered into such Asset Sale Offer exceeds
the amount of Excess Proceeds, the Trustee shall select the Notes and such other
Indebtedness of equal priority to be purchased on a pro rata basis.
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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.
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 no 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 an unrelated Person; 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
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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.
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 entered into by the Company or
any of its Subsidiaries and any employment agreement entered into by the Company
or any of its Restricted Subsidiaries in the ordinary course of business and
consistent with the past practice of the Company or any Parent or such
Restricted Subsidiary;
(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; and
(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
complied with the applicable provisions of the first paragraph of this Section
4.13.
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.
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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 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 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 Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders of the Notes.
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 or
an integral multiple thereof) of that Holder'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, to the 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
Holder is withdrawing his election to have the Notes purchased; and
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(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 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.
The Paying Agent shall promptly pay 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. Except as described above with respect to a Change of Control, this
Indenture does not contain provisions that permit the Holders of the Notes to
require that the Issuers repurchase or redeem the Notes in the event of a
takeover, recapitalization or similar transaction.
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.
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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 the 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
(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 or 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.
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 agreement.
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, 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 the first paragraph 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 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
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as though such covenant had been in effect during the entire period of time from
the Issue Date.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
Neither of the Issuers may, directly or indirectly: (1) consolidate or
merge with or into another 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 limited liability company or
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, CCO Holdings may, directly or indirectly, lease all or
substantially all of its 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
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disposition of assets between or among CCO Holdings and any of its Wholly Owned
Restricted Subsidiaries.
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 6
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 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
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 on such Indebtedness prior to the expiration of the
grace period provided in such Indebtedness on the date of such default
(a "Payment Default"); or
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(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;
(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; and
(7) the Company or any of its Significant Subsidiaries pursuant to or
within the meaning of 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; or
(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.
Section 6.02. Acceleration.
In the case of an Event of Default arising from clause (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
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
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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 an 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, premium, if any, or interest on, the Notes
(including in connection with an offer to purchase) (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
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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
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 or other property pursuant to this
Article, it shall pay out the money and other property 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
principal, premium, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on
the Notes for principal, premium, if any and interest, respectively;
and
Third: 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.
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ARTICLE 7
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
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.
(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 Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(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. However, the Trustee
shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture (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 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 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 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.
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(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.
(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.
(5) Unless otherwise specifically provided in this Indenture, 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 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.
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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 ss. 313(a) (but if no event described
in TIA ss. 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA ss.
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA ss. 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 ss. 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 shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers shall
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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 against
the Issuers (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 may be
attributable to its 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 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 ss. 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 Trustee 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 Merger, 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.
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This Indenture shall always have a Trustee who satisfies the requirements of TIA
ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA ss. 310(b).
Section 7.11. Preferential Collection of Claims Against the Issuers.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuers may, at the option of their respective boards of directors
or the Board of Directors of CCI evidenced by a resolution set forth in an
Officers' Certificate of each of the Issuers, at any time, elect to have either
Section 8.02 or 8.03 be applied to all outstanding Notes upon compliance with
the conditions set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Issuers' exercise under Section 8.01 of the option applicable
to this Section 8.02, the Issuers 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 on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, Legal Defeasance means that the Issuers shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 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 and this Indenture (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.
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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 Issuers' exercise under Section 8.01 of the option applicable
to this Section 8.03, the Issuers 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 and 4.19 with respect to the outstanding
Notes 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 shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Issuers may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 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) shall not constitute Events of
Default.
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 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 must specify whether the Notes are being
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 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,
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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;
(3) in the case of Covenant Defeasance, the Issuers shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee 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); 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 Company or any of its
Restricted Subsidiaries is a party or by which the Company or any of its
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 either Issuer in its capacity 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 must deliver 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 with
the intent of defeating, hindering, delaying or defrauding creditors of the
Issuers or others; and
(8) the Issuers must deliver 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 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 within
one year, by their terms or 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.
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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' 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 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Issuers and the
Trustee may amend or supplement this Indenture or the Notes 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 either Issuer'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 such Issuer pursuant to Article 5;
(5) 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; or
(6) 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.
Upon the request of the Issuers 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, and upon receipt by the
Trustee of the documents described in Section 7.02, the Trustee shall join with
the Issuers in the execution of any amended or supplemental Indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein
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contained, but the Trustee shall not be obligated to enter into such amended or
supplemental Indenture that affects its own rights, duties or immunities under
this Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, this Indenture
(including Sections 4.11 and 4.16) or the Notes 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 a tender offer or exchange offer
for, Notes) and, subject to Sections 6.04 and 6.07, any existing Default or
compliance with any provision of this Indenture or the Notes 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 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 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, 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
described in Section 10.04, the Trustee shall join with the Issuers in the
execution of such amended or supplemental Indenture unless such amended or
supplemental Indenture directly affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such amended or
supplemental Indenture.
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 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 or waiver. Subject to Sections 6.04 and 6.07, the Holders
of a majority in aggregate principal amount of the Notes then outstanding may
waive compliance in a particular instance by the Issuers with any provision of
this Indenture or the Notes. However, without the consent of each Holder
affected, an amendment, supplement or waiver under this Section 9.02 may not
(with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent to
an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Note or
alter the payment provisions with respect to the redemption of the Notes (other
than provisions relating to Sections 4.11 and 4.16);
(3) reduce the rate of or extend the time for payment of interest on
any Note;
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(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 any Note payable in money other than that stated in the Notes;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive payments
of principal of, or premium, if any, or interest on the Notes;
(7) waive a redemption payment with respect to any Note (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 a 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. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
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 authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Issuers
may not sign an amendment or supplemental Indenture until their respective
Boards of Directors approve it. In executing any amended or supplemental
indenture, the Trustee shall be entitled to receive and (subject
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to Section 7.01) shall be fully protected in relying upon, in addition to the
documents required by Section 10.04, 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 10
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA ss. 318(c), the imposed duties shall control.
Section 10.02. 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:
CCO Holdings, LLC
CCO Holdings Capital Corp.
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Secretary
With a copy to:
Irell & Xxxxxxx LLP
1800 Avenue of the Stars
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxx, Esq.
If to the Trustee:
Xxxxx Fargo Bank, N.A.
Corporate Trust Services
MAC X0000-000
Xxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
Attention: Xxxxxxx X. Xxxxx
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The Issuers 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 ss. 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 10.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Issuers, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
Section 10.04. 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:
(i) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 10.05) 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
(ii) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 10.05) stating that, in
the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.
Section 10.05. 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 ss. 314(a)(4)) shall comply with the provisions of TIA ss.
314(e) and shall include:
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(i) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(ii) 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;
(iii) 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
(iv) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been satisfied.
Section 10.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar, Paying Agent or Calculation Agent may make reasonable
rules and set reasonable requirements for its functions.
Section 10.07. No Personal Liability of Directors, Officers, Employees, Members
and Stockholders.
No director, officer, employee, incorporator, member or stockholder of
the Issuers, as such, shall have any liability for any obligations of the
Issuers under the Notes, this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes.
Section 10.08. Governing Law.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES AND ANY SUBSIDIARY 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 SUBSIDIARY GUARANTEE.
Section 10.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Issuers or their Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
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Section 10.10. Successors.
All agreements of the Issuers 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 10.11. 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 10.12. 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 10.13. 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 11
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge of Indenture.
This Indenture 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, 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
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(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,
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 11.02 shall survive.
Section 11.02. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 11.01 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]
- 88 -
SIGNATURES
Dated as of December 15, 2004
CCO HOLDINGS, LLC, as an Issuer
By ________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
By ________________________________
Name: Xxxxx Xxxxx
Title: Executive Vice President
CCO HOLDINGS CAPITAL CORP., as an
Issuer
By ________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
By ________________________________
Name: Xxxxx Xxxxx
Title: Executive Vice President
Xxxxx Fargo Bank, N.A.,
as Trustee
By ________________________________
Name:
Title:
SIGNATURE PAGE FOR INDENTURE
EXHIBIT A
[Face of Note]
CUSIP NO. [_________]
Senior Floating Rate Notes due 2010
No.
$[____________]
CCO HOLDINGS, LLC
and
CCO HOLDINGS CAPITAL CORP.
promise to pay to _________________________________________________________
or registered assigns,
the principal amount of _____________________________________________ Dollars
($______________________________) on December 15, 2010.
Interest Payment Dates: March 15, June 15, September 15 and December 15
Record Dates: March 1, June 1, September 1 and December 1
Subject to Restrictions set forth in this Note.
A-1
IN WITNESS WHEREOF, each of CCO HOLDINGS, LLC and CCO HOLDINGS Capital Corp. has
caused this instrument to be duly executed.
Dated: December 15, 2004
CCO HOLDINGS, LLC
By ___________________________
Name:
Title:
By ___________________________
Name:
Title:
CCO HOLDINGS CAPITAL CORP.
By ___________________________
Name:
Title:
By ___________________________
Name:
Title:
A-2
This is one of the Notes referred to
in the within-mentioned Indenture:
XXXXX FARGO BANK, N.A.,
as Trustee
By: __________________________________
Authorized Signatory
A-3
[Back of Note]
Senior Floating Rate Notes due 2010
"THE ISSUERS HAVE REQUESTED THE DEPOSITORY TRUST COMPANY NOT TO TRANSFER ANY
INTEREST IN THIS GLOBAL NOTE BY EFFECTING BOOK-ENTRY DELIVERIES UNTIL JANUARY
24, 2005 EXCEPT TO A NON-U.S. PERSON IN COMPLIANCE WITH REGULATION S OR TO A
QUALIFIED INSTITUTIONAL BUYER IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES
ACT, IN EACH CASE IN ACCORDANCE WITH THE TRANSFER PROVISIONS SET FORTH IN
SECTION 2 OF THE INDENTURE."(1)
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(A) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS."(2)
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION."(3)
"THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON
--------------------
(1) This paragraph should be included only for temporary Regulation S
Global Notes.
(2) This paragraph should be included only if the Notes are issued in
global form.
(3) This paragraph should be removed upon the exchange of Notes for
Exchange Notes in an Exchange Offer or upon the registration of the Notes
pursuant to the terms of a Registration Rights Agreement.
A-4
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN
A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE."(4)
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. CCO Holdings, LLC, a Delaware limited liability company (the
"Company"), and CCO Holdings 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 per annum, reset quarterly, equal
to LIBOR plus 4.125%, as determined by the Calculation Agent from the Issue Date
until maturity. The interest rate on the Notes is subject to increase pursuant
to the provisions of the Registration Rights
-------------------
(4) This paragraph should be removed upon the exchange of Notes for
Exchange Notes in an Exchange Offer or upon the registration of the Notes
pursuant to the terms of a Registration Rights Agreement.
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Agreement. The Issuers will pay interest quarterly in arrears on March 15, June
15, September 15 and December 15 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 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 such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be March 15, 2005. The Issuers shall pay interest (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 a rate that is 2%
per annum in excess of the rate then in effect to the extent lawful; 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 to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months for the actual number of days elapsed. The amount of
interest for each day that the Notes are outstanding (the "Daily Interest
Amount") will be calculated by dividing the interest rate in effect for such day
by 360 and multiplying the result by the principal amount of the Notes. The
amount of interest to be paid on the Notes for each Interest Period will be
calculated by adding the Daily Interest Amounts for each day in the Interest
Period. All percentages resulting from any of the above calculations will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point being rounded upwards and
all dollar amounts used in or resulting from such calculations will be rounded
to the nearest cent (with one-half cent being rounded upwards). The interest
rate on the Notes will in no event be higher than the maximum rate permitted by
New York law as such rate may be modified by United States law of general
application.
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 1, June 1, September 1 and December 1 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. The Notes will
be payable as to principal, premium, if any, and interest at the office or
agency of the Issuers maintained for such purpose within or without the City and
State of New York, or, at the option of the Issuers, payment of interest may be
made by check mailed to the Holders at their addresses set forth in the register
of Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest and premium on
all Global Notes and all other Notes the Holders of which shall have provided
wire transfer instructions to the Issuers or the Paying Agent. 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, REGISTRAR AND CALCULATION AGENT. Initially, Xxxxx
Fargo Bank, N.A., the Trustee under the Indenture, will act as Paying Agent,
Registrar and Calculation Agent. The Issuers may change any Paying Agent,
Registrar or Calculation Agent without notice to any Holder. The Company or any
of its Subsidiaries may act as Paying Agent or Registrar.
A-6
4. INDENTURE. The Issuers issued the Notes under an Indenture dated as
of December 15, 2004 (the "Indenture") between the Issuers and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code ss. 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.
(i) 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
December 15, 2006. Thereafter, the Issuers shall have the
option to redeem the Notes, in whole or in part, at the
redemption prices (expressed as percentages of 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 December
15 of the years indicated below:
Year Percentage
---- ----------
2006 102.00%
2007 101.00%
2008 and thereafter 100.00%
(ii) Notwithstanding the provisions of
clause (a) of this Paragraph 5, at any time prior to December
15, 2006, 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
nearly as pro rata as practicable), at a redemption price of
100.00% of the principal amount thereof, plus a premium equal
to the interest rate per annum applicable to the Notes on the
date notice of redemption is given, 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 remains 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.
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Except as otherwise provided in Paragraph 7 below, the Issuers shall
not be required to make mandatory redemption payments with respect to 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 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, when the aggregate amount of Excess
Proceeds exceeds $25.0 million, the Company shall commence an offer (an
"Asset Sale Offer") pursuant to Section 4.11 of the Indenture to all
Holders of Notes and all holders of other Indebtedness that is of equal
priority with the Notes containing provisions requiring offers to
purchase or redeem with the proceeds of sales of assets to purchase the
maximum principal amount of Notes and such other Indebtedness of equal
priority that may be purchased out of the Excess Proceeds (which amount
includes the entire amount of the Net Proceeds). The offer price in any
Asset Sale Offer will be payable in cash and equal to 100% of principal
amount plus accrued and unpaid interest, if any, to the date of
purchase. If any Excess Proceeds remain after consummation of an Asset
Sale Offer, the Company or any Restricted Subsidiaries thereof may use
such remaining Excess Proceeds for any purpose not otherwise prohibited
by the Indenture. If the aggregate principal amount of Notes and such
other Indebtedness of equal priority tendered into such Asset Sale
Offer exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes and such other Indebtedness of equal priority to be purchased
on a pro rata basis. Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds shall be reset at zero. Holders of Notes that
are the subject of an offer to purchase will receive an Asset Sale
Offer from the Issuers prior to any related purchase date and may elect
to have such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" on the reverse of 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, 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, except for
the unredeemed portion of any Note being redeemed in part. Also, the Issuers
need not exchange or register the transfer of any Notes for a period of 15 days
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before a selection of Notes to be redeemed 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 or the Notes 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 or the Notes
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 and
the Trustee may amend or supplement the Indenture or the Notes 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 Issuers' obligations to Holders of Notes in the case of a merger or
consolidation or sale of all or substantially all of the assets of either
Issuer, 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, or 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.
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 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 or (vii) certain
A-9
events of bankruptcy or insolvency with respect to the Company or any of its
Significant Subsidiaries. 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, premium, if any, 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.
13. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator, member or stockholder of either of the Issuers, as such, shall not
have any liability for any obligations of the Issuers under the Notes or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
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).
A-10
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 any Registration Rights
Agreement.
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
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 the Registration Rights
Agreement. Requests may be made to:
CCO Holdings, LLC
CCO Holdings Capital Corp.
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Secretary
Telecopier No.: (000) 000-0000
A-11
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:________________________________________________________
(Sign exactly as your name appears on the face of
this Note)
Signature Guarantee*:__________________________________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-12
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:
[ ] Section 4.11 [ ] 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:
$ _______________________
Date:____________________
Your Signature: _______________________________________________________
(Sign exactly as your name appears on the face of this
Note)
Tax Identification No.: _______________________________________________
Signature Guarantee*: ________________________________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-13
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
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:
Principal
Amount of Amount of Amount of
decrease in increase in this Global
Principal Principal Note
Amount of Amount of following Signature of authorized
Date of this Global this Global such decrease officer of Trustee or Note
Exchange Note Note (or increase) Custodian
-------- ----------- ----------- ------------- --------------------------
A-14
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
CCO Holdings, LLC
CCO Holdings Capital Corp.
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
Corporate Trust Services
MAC X0000-000
Xxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Re: Senior Floating Rate Notes due 2010
Reference is hereby made to the Indenture, dated as of December 15,
2004 (the "Indenture"), among CCO Holdings, LLC (the "Company") and CCO Holdings
Capital Corp. ("Capital Corp" and, together with the Company, the "Issuers"),
and Xxxxx Fargo Bank, N.A., as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
___________________ (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $_____________________________ in such Note[s] or interests
(the "Transfer"), to ___________________________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. Check if Transferee will take delivery of a beneficial interest in
the Rule 144A Global Note or a Definitive Note Pursuant to Rule 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note 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 Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Rule 144A Global Note and/or the Definitive Note
and in the Indenture and the Securities Act.
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2. Check if Transferee will take delivery of a beneficial interest in
the Regulation S Global Note or a Definitive Note pursuant to Regulation S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act and (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note and/or the Definitive Note and in
the Indenture and the Securities Act. 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.
3. Check and complete if Transferee will take delivery of a beneficial
interest in a Definitive Note pursuant to any provision of the Securities Act
other than Rule 144A or Regulation S. The Transfer is being effected in
compliance with the transfer restrictions applicable to beneficial interests in
Restricted Global Notes and Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act and any applicable blue sky securities laws
of any state of the United States, and accordingly the Transferor hereby further
certifies that (check one):
(a) such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act; or
(b) such Transfer is being effected to the Company or a
subsidiary thereof; or
(c) such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act; or
(d) such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or
Rule 904, and the Transferor hereby further certifies that it has not
engaged in any general solicitation within the meaning of Regulation D
under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global
Note or Restricted Definitive Notes and the requirements of the
exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or
the
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Transferee (a copy of which the Transferor has attached to this
certification), to the effect that such Transfer is in compliance with
the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
Restricted Global Note and/or the Definitive Notes and in the Indenture
and the Securities Act.
4. Check if Transferee will take delivery of a beneficial interest in
an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) Check if Transfer is pursuant to Rule 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.
(b) Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.
(c) Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act
other than Rule 144, Rule 903 or Rule 904 and in compliance with the
transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any State of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes or Restricted Definitive Notes and in the
Indenture.
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This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
___________________________________
[Insert Name of Transferor]
By:________________________________
Name:
Title:
Dated: ____________________________
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) a beneficial interest in the:
(i) Rule 144A Global Note (CUSIP __________), or
(ii) Regulation S Global Note (CUSIP _________), or
(b) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) a beneficial interest in the:
(i) Rule 144A Global Note (CUSIP __________), or
(ii) Regulation S Global Note (CUSIP _________), or
(iii) Unrestricted Global Note (CUSIP _________); or
(b) a Restricted Definitive Note; or
(c) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
CCO Holdings, LLC
CCO Holdings Capital Corp.
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
Corporate Trust Services
MAC X0000-000
Xxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Re: Senior Floating Rate Notes due 2010
(CUSIP [_______])
Reference is hereby made to the Indenture, dated as of December 15,
2004 (the "Indenture"), among CCO Holdings, LLC (the "Company") and CCO Holdings
Capital Corp. ("Capital Corp" and, together with the Company, the "Issuers"),
and Xxxxx Fargo Bank, N.A., as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
__________________________ (the "Owner") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $____________________________ in such Note[s] or interests (the
"Exchange"). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a
Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests
in an Unrestricted Global Note
(a) Check if Exchange is from beneficial interest in a
Restricted Global Note to beneficial interest in an Unrestricted Global
Note. In connection with the Exchange of the Owner's beneficial
interest in a Restricted Global Note for a beneficial interest in an
Unrestricted Global Note in an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the beneficial interest in an Unrestricted
Global Note is being acquired in compliance with any applicable blue
sky securities laws of any state of
C-1
the United States. If the Exchange is from beneficial interest in a
Regulation S Global Note to beneficial interest in an Unrestricted
Global Note, the Owner further certifies that it is either (x) a
non-U.S. Person to whom Notes would be transferred in accordance with
Regulation S or (y) a U.S. Person who purchased Notes in a transaction
that did not require registration under the Securities Act.
(b) Check if Exchange is from beneficial interest in a
Restricted Global Note to Unrestricted Definitive Note. In connection
with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Definitive Note is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted
Global Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is
being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(c) Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In connection with
the Owner's Exchange of a Restricted Definitive Note for a beneficial
interest in an Unrestricted Global Note, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the beneficial interest is being acquired
in compliance with any applicable blue sky securities laws of any state
of the United States. If the Exchange is from beneficial interest in a
Regulation S Global Note to an Unrestricted Definitive Note, the Owner
further certifies that it is either (x) a non-U.S. Person to whom Notes
could be transferred in accordance with Regulation S or (y) a U.S.
Person who purchased Notes in a transaction that did not require
registration under the Securities Act.
(d) Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's Exchange
of a Restricted Definitive Note for an Unrestricted Definitive Note,
the Owner hereby certifies (i) the Unrestricted Definitive Note is
being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and
(iv) the Unrestricted Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United
States.
C-2
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes.
(a) [ ] Check if Exchange is from beneficial interest in a
Restricted Global Note to Restricted Definitive Note. In connection
with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a Restricted Definitive Note with an equal principal
amount, the Owner hereby certifies that the Restricted Definitive Note
is being acquired for the Owner's own account without transfer. If the
Exchange is from beneficial interest in a Regulation S Global Note to a
Restricted Definitive Note, the Owner further certifies that it is
either (x) a non-U.S. Person to whom Notes could be transferred in
accordance with Regulation S or (y) a U.S. Person who purchased Notes
in a transaction that did not require registration under the Securities
Act. Upon consummation of the proposed Exchange in accordance with the
terms of the Indenture, the Restricted Definitive Note issued will
continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note
and in the Indenture and the Securities Act.
(b) Check if Exchange is from Restricted Definitive Note to
beneficial interest in a Restricted Global Note. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial
interest in the [CHECK ONE] [ ] Rule 144A Global Note or [ ] Regulation
S Global Note with an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer and (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the
Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture,
the beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
relevant Restricted Global Note and in the Indenture and the Securities
Act.
C-3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
______________________________________________
[Insert Name of Transferor]
By:_________________________________________
Name:
Title:
Dated: ____________________________________
C-4
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
CCO Holdings, LLC
CCO Holdings Capital Corp.
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
Corporate Trust Services
MAC X0000-000
Xxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Re: Senior Floating Rate Notes due 2010
Reference is hereby made to the Indenture, dated as of December 15,
2004 (the "Indenture"), among CCO Holdings, LLC (the "Company") and CCO Holdings
Capital Corp. ("Capital Corp" and, together with the Company, the "Issuers"),
and Xxxxx Fargo Bank, N.A., 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:
(i) [ ] a beneficial interest in a Global Note, or
(ii) [ ] 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 any subsidiary thereof, (b) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (c) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this
letter and an Opinion of Counsel in form reasonably acceptable to the Company to
the effect that such transfer is in compliance with the Securities Act, (d)
outside the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (e) pursuant to the provisions of Rule 144(k) under the
Securities Act or (f) pursuant to an effective registration statement 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 clauses (a) through (e) 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.
___________________________________________
[Insert Name of Transferor]
By: _______________________________________
Name:
Title:
Dated: ____________________________________
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