Exhibit 1.1
DEALER MANAGER AGREEMENT (Registered)
August 11, 2006
CCH II, LLC
CCH II Capital Corp.
CCHC, LLC
00000 Xxxxxxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Ladies and Gentlemen:
This dealer manager agreement (this "Agreement") will confirm the
understanding among CCH II, LLC, a Delaware limited liability company ("CCH
II"), CCH II Capital Corp., a Delaware corporation ("CCH II Capital"), and CCHC,
LLC, a Delaware limited liability company ("CCHC", and together with CCH II and
CCH II Capital, the "Charter Companies"), Banc of America Securities LLC ("BAS")
and Citigroup Global Markets Inc. ("Citigroup") (collectively, the "Dealer
Managers") pursuant to which the Charter Companies have retained BAS and
Citigroup to act as the representatives of the Dealer Managers on the terms and
subject to the conditions set forth herein, in connection with the proposed
offers to exchange up to $450,000,000 aggregate principal amount of the
outstanding 5.875% Convertible Notes due 2009 of Charter Communications, Inc.
("CCI") (the "Outstanding Notes") validly tendered in the Exchange Offer (as
defined below) and not validly withdrawn for cash (the "Cash Consideration"),
CCI Class A Common Stock, par value $0.001 (the "Class A Common Stock") and new
Senior Notes of CCH II and CCH II Capital (the "New CCH II Notes," and together
with the Class A Common Stock, the "New Securities"; the New Securities and the
Cash Consideration are collectively referred to as the "Exchange Offer
Consideration") to be issued pursuant to the terms of an indenture (the "CCH II
Indenture") dated as of September 23, 2003, among CCH II and CCH II Capital, as
issuers, and Xxxxx Fargo Bank, National Association, as trustee (the "CCH II
Trustee").
The offer to exchange listed above (hereinafter referred to as the
"Exchange Offer") will be made on the terms and subject to the conditions set
forth in the Prospectus, attached hereto as Exhibit A, and the Letter of
Transmittal (the "Letter of Transmittal"), attached hereto as Exhibit B. The
date on which the New Securities are issued pursuant to the Exchange Offer shall
be referred to herein as the "Exchange Date." This agreement between the Charter
Companies and the Dealer Managers as set forth herein shall hereinafter be
referred to as the "Agreement," and all references to "Holders" of Outstanding
Notes refer to holders of the Outstanding Notes who have validly tendered and
not validly withdrawn their Outstanding Notes in the Exchange Offer.
E-1
This Agreement, the New CCH II Notes (and any guarantee endorsed
thereon), the CCH II Indenture and the Class A Common Stock shall be referred to
collectively as the "Transaction Documents."
SECTION 1. Engagement. Subject to the terms and conditions set
forth herein:
(a) The Charter Companies hereby retain the Dealer Managers, and
subject to the terms and conditions hereof, the Dealer Managers agree to
act, as the exclusive Dealer Managers to the Charter Companies in connection
with the Exchange Offer until the date on which the Exchange Offer expires
or is earlier terminated in accordance with its terms. The Dealer Managers
will advise the Charter Companies with respect to the terms and timing of
the Exchange Offer. The Dealer Managers agree that they will not furnish
written information other than the Offering Documents (defined below) to the
Holders in connection with the Exchange Offer without the prior written
consent of the Charter Companies. The Charter Companies authorize the Dealer
Managers, in accordance with their customary practices and consistent with
industry practice, to communicate generally regarding the Exchange Offer
with the Holders and their authorized agents in connection with the Exchange
Offer.
(b) The Charter Companies acknowledge that the Dealer Managers
have been retained solely to provide the services set forth in this
Agreement. In rendering such services, the Dealer Managers shall act as
independent contractors, and any duties of the Dealer Managers arising out
of their engagement hereunder shall be owed solely to the Charter Companies.
The Charter Companies also acknowledge that, except as provided in Sections
1(a) and 1(d) hereof, (i) the Dealer Managers shall not be deemed to act as
agents of the Charter Companies or any of their affiliates (except that in
any jurisdiction in which the Exchange Offer is required to be made by a
registered licensed broker or dealer, it shall be deemed made by the Dealer
Managers on behalf of the Charter Companies), and neither the Charter
Companies nor any of their affiliates shall be deemed to act as the agent of
the Dealer Managers and (ii) no securities broker, dealer, bank, trust
company or nominee shall be deemed to act as the agent of the Dealer
Managers or as the agent of the Charter Companies or any of their
affiliates, and the Dealer Managers shall not be deemed to act as the agent
of any securities broker, dealer, bank, trust company or nominee. The Dealer
Managers shall not have any liability in tort, contract or otherwise to the
Charter Companies or to any of the Charter Companies' affiliates for any act
or omission on the part of any securities broker, dealer, bank, trust
company or nominee except to the extent that such liability is finally
judicially determined by a court of competent jurisdiction to have resulted
from the gross negligence, bad faith, knowing violation of law or the
willful misconduct of the Dealer Managers, respectively.
(c) The Charter Companies acknowledge that each of the Dealer
Managers and their affiliates are engaged in a broad range of securities
activities and financial services. In the ordinary course of the Dealer
Managers' business, the Dealer Managers or their affiliates (i) may at any
time hold long or short positions, and may trade or otherwise effect
transactions, for the Dealer Managers' own accounts or the accounts of
customers, in debt or equity securities of the Charter Companies, their
affiliates or any other company that may be involved in the transactions
contemplated hereby and (ii) may at
any time be providing or arranging financing and other financial services to
companies that may be involved in a competing transaction. Each of the
Charter Companies acknowledges and agrees that in connection with all
aspects of each transaction contemplated by this Agreement, the Charter
Companies and the Dealer Managers, have an arm's-length business
relationship that creates no fiduciary duty on the part of the Dealer
Managers, and each expressly disclaims any fiduciary relationship.
(d) The Dealer Managers agree, in accordance with their customary
practice and consistent with industry practice for investment banking
concerns of national standing and in accordance with the terms of the
Exchange Offer, to perform those services in connection with the Exchange
Offer as are customarily performed by dealer managers and solicitation
agents in connection with similar transactions of a like nature, including,
without limitation, using all reasonable efforts to solicit the Holders of
Outstanding Notes sought to be exchanged by the Charter Companies pursuant
to the Exchange Offer, communicating generally regarding the Exchange Offer
with securities brokers, dealers, banks, trust companies and nominees and
other Holders, and participating in meetings with, furnishing information
to, and assisting the Charter Companies in negotiating with Holders.
(e) The Charter Companies shall arrange for Global Bondholder
Services Corporation to act as exchange agent (the "Exchange Agent")
in connection with the Exchange Offer and, as such, to advise the Dealer
Managers at least daily as to such matters relating to the Exchange Offer
as the Dealer Managers may request. The Charter Companies shall request The
Depository Trust Company ("DTC") to provide the Dealer Managers with copies
of the records or other lists showing the names and addresses of, and
principal amounts of Outstanding Notes held by, the holders of such
Outstanding Notes as of a recent date and shall, from and after such date,
request DTC to advise the Dealer Managers from day to day during the
pendency of the Exchange Offer of all transfers of such Outstanding Notes,
such notification consisting of the names and addresses of the transferor
and transferee of any Outstanding Notes and the date of such transfer. The
Charter Companies will arrange for Global Bondholder Services Corporation
to act as information agent and depositary (the "Information Agent") in
connection with the Exchange Offer and shall direct the Information Agent
to advise the Dealer Managers at least daily as to such matters relating to
the Exchange Offer as the Dealer Managers may reasonably request. In
addition, the Charter Companies hereby authorize the Dealer Managers to
communicate with the Information Agent with respect to matters relating to
the Exchange Offer.
(f) The Charter Companies shall request the trustee or registrar
for the Outstanding Notes to furnish the Dealer Managers, as soon as
practicable, with cards or lists or copies thereof showing the names of
persons who were the Holders of record of Outstanding Notes as of the date
or dates specified by the Dealer Managers and the beneficial Holders of the
Outstanding Notes as of such date or dates, together with their addresses
and the principal amount of Outstanding Notes beneficially held by them. In
addition, the Charter Companies shall update such information from time to
time during the term of this Agreement as reasonably requested by the Dealer
Managers, but only to the extent such information is reasonably available to
the Charter Companies within the time constraints
specified. The Dealer Managers agree to use such information only in
connection with the Exchange Offer and not to furnish such information to
any persons except in connection with the Exchange Offer and in accordance
with Section 9 hereof.
(g) The Charter Companies have prepared and filed with the
Securities and Exchange Commission (the "SEC"), under the Securities Act of
1933, as amended, and the rules and regulations of the Commission
promulgated thereunder (collectively, the "Act"), a registration statement
on Form S-4 (Reg. No. [- ]), including the Prospectus, covering the
registration of the New Securities. The term "Registration Statement," as
used in this Agreement, shall mean such registration statement, including
the exhibits thereto and any documents incorporated by reference therein, in
the form in which it becomes effective and, in the event of any amendment or
supplement thereto after the effective date of such registration statement,
shall also mean such registration statement as so amended or supplemented.
The final prospectus included in the Registration Statement (including any
documents incorporated in the Prospectus by reference) is herein called the
"Prospectus," except that if the final prospectus furnished to the Dealer
Managers for use in connection with the Exchange Offer differs from the
prospectus set forth in the Registration Statement (whether or not such
prospectus is required to be filed pursuant to Rule 424(b)), the term
"Prospectus" shall refer to the final prospectus furnished to the Dealer
Managers for such use. The terms "supplement" and "amendment" or
"supplemented" and "amended" as used herein with respect to the Prospectus
shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date thereof and prior to the
termination of the Exchange Offer by the Charter Companies with the SEC
pursuant to the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC promulgated thereunder (the "Exchange Act").
(h) The Charter Companies have prepared and filed, or agree that
prior to or on the date of commencement of the Exchange Offer (the
"Commencement Date") they will file, with the SEC under the Exchange Act a
Tender Offer Statement on Schedule TO with respect to the Exchange Offer,
including the required exhibits thereto and any documents incorporated by
reference therein. The term "Schedule TO" as used in this Agreement shall
mean such Tender Offer Statement on Schedule TO, including any amendment or
supplement thereto.
(i) The Registration Statement, the Prospectus, the Schedule TO,
the related letters from the Charter Companies to securities brokers,
dealers, commercial banks, trust companies and other nominees, letters for
use by brokers to clients holding Outstanding Notes, letters to beneficial
owners of Outstanding Notes, the Letter of Transmittal and any newspaper
announcements, press releases and other offering materials, including any
written communication filed with the SEC pursuant to Rule 425 under the Act,
and information the Charter Companies may use, publicly disseminate or
authorize for use in connection with the Exchange Offer (as they may be
amended or supplemented and including any documents incorporated by
reference therein) are herein collectively referred to as the "Offering
Documents."
(j) The Offering Documents have been or will be prepared and
approved by, and are the sole responsibility of, the Charter Companies. The
Charter Companies shall,
to the extent permitted by law, use commercially reasonable efforts to
disseminate the Offering Documents to each registered holder of any
Outstanding Notes, on or as soon as practicable after the Commencement Date,
pursuant to Rule 13e-4 so as to fulfill all requirements thereof as to the
commencement of the Exchange Offer not later than the date hereof, under the
Exchange Act and comply in all material respects with their obligations
thereunder. Thereafter, to the extent practicable until the date three days
prior to the expiration date of the Exchange Offer (the "Expiration Date"),
the Charter Companies shall use their reasonable best efforts to cause
copies of such Offering Documents and a return envelope to be mailed to each
person who becomes a holder of record of any Outstanding Notes prior to such
date. The Charter Companies acknowledge and agree that Dealer Managers may
use the Offering Documents as specified herein without assuming any
responsibility on their part for independent verification of any information
therein and the Charter Companies represent and warrant to each Dealer
Manager that such Dealer Manager may rely on the accuracy and completeness
of all of the Offering Documents and any other information delivered to such
Dealer Manager by or on behalf of the Charter Companies in connection with
the Exchange Offer without assuming any responsibility for independent
verification of such information or without performing or receiving any
appraisal and evaluation of the assets or liabilities of the Charter
Companies. The Dealer Managers agree that they will not, without the consent
of the Charter Companies, disseminate any materials for or in connection
with the solicitation of the holders of Outstanding Notes other than the
Offering Documents.
(k) The Charter Companies agree to provide Dealer Managers with as
many copies as they may reasonably request of the Offering Documents. The
Charter Companies agree that within a reasonable time prior to using or
filing with any federal, state or other governmental or regulatory agency or
instrumentality (an "Other Agency"), including the National Association of
Securities Dealers Inc. (the "NASD"), of any Offering Documents, they will
submit copies of such materials to the Dealer Managers and their counsel and
will give reasonable consideration to the Dealer Managers' and their
counsel's comments, if any, thereon. The Charter Companies agree that prior
to the termination of the Exchange Offer, before amending or supplementing
the Registration Statement, or the Prospectus, it will furnish copies of
drafts to, and consult with, the Dealer Managers and their counsel within a
reasonable time in advance of filing with the SEC of any amendment or
supplement to the Registration Statement, the Prospectus or the other
Offering Documents. The Charter Companies shall not file any such amendment
or supplement to which the Dealer Managers, after consultation with counsel,
shall reasonably object.
(l) The Charter Companies authorize the Dealer Managers to use the
Offering Documents in connection with the Exchange Offer and for such period
of time as any such materials are required by law to be delivered in
connection therewith. The Dealer Managers shall not have any obligation to
cause any Offering Documents to be transmitted generally to the holders of
Outstanding Notes.
(m) The Charter Companies agree to advise the Dealer Managers
promptly of (i) the occurrence of any event which, in the reasonable
judgment of the Charter Companies or their counsel, could cause or require
the Charter Companies to withdraw, rescind or modify the Offering Documents
or to withdraw, rescind
or terminate the Exchange Offer or would permit the Charter Companies to
exercise any right not to exchange Outstanding Notes for the Exchange Offer
Consideration pursuant to the Exchange Offer, (ii) their awareness of the
issuance by any regulatory authority of any comment or order or the taking
by any regulatory authority of any other action concerning the Exchange
Offer (and, if in writing, will furnish the Dealer Managers with a copy of
any such comment or order), (iii) their awareness of any material adverse
developments in connection with the Exchange Offer and (iv) any other
information relating to the Exchange Offer, the Offering Documents or this
Agreement which the Dealer Managers may from time to time reasonably
request. In addition, if any event occurs as a result of which any Offering
Documents will include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances at the time such material is delivered or is
to be delivered to a Holder, not misleading, the Charter Companies shall,
promptly upon becoming aware of any such event, advise the Dealer Managers
of such event and, as promptly as practicable under the circumstances,
prepare and furnish copies of such amendments or supplements of any such
Offering Documents to the Dealer Managers, so that the statements in such
Offering Documents, will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein at the time such material is delivered or is to be delivered to a
Holder, not misleading, and the Dealer Managers agree not to use the
Offering Documents, in such case, until the Offering Documents are
supplemented or amended.
(n) Except as otherwise required by law or regulation, the Charter
Companies will not use or publish any material in connection with the
Exchange Offer, other than the Offering Documents, or refer to the Dealer
Managers in any such material, without the prior approval of the Dealer
Managers (which shall not be unreasonably delayed or withheld). The Charter
Companies, upon receiving such approval, will promptly furnish the Dealer
Managers with as many copies of such approved materials as the Dealer
Managers may reasonably request. The Dealer Managers agree that they will
not make any statements in connection with the Exchange Offer other than the
statements that are set forth in, or derived from and consistent with, the
Offering Documents without the prior written consent of the Charter
Companies.
(o) The Charter Companies agree to exchange, in accordance with
the terms of the Offering Documents, Exchange Offer Consideration to the
Holders entitled thereto, subject to the right of the Charter Companies to
withdraw or amend the Exchange Offer as stated in the Offering Documents.
The Charter Companies agree not to exchange any Outstanding Notes during the
term of the Exchange Offer except pursuant to and in accordance with the
Exchange Offer or as otherwise agreed in writing by the parties hereto and
permitted under applicable laws and regulations.
SECTION 2. Compensation and Expenses.
(a) In consideration of services provided hereunder, the Charter
Companies shall pay the Dealer Managers the fees calculated and payable as set
forth in Schedule I.
(b) Whether or not any Outstanding Notes are exchanged pursuant to
the Exchange Offer, the Charter Companies shall pay all reasonable expenses
incurred in connection with the preparation, printing, mailing and
publishing of the Offering Documents, and all amounts payable to securities
dealers (including the Dealer Managers), brokers, banks, trust companies and
nominees as reimbursements of their customary mailing and handling expenses
incurred in forwarding the Offering Documents to their customers and all
other expenses of the Charter Companies in connection with the Exchange
Offer and shall reimburse the Dealer Managers for the reasonable fees and
expenses of their legal counsel (subject to an aggregate cap on such fee
reimbursement hereunder and under that certain Dealer Manager Agreement
dated the date hereof among CCH I, LLC, CCH I Capital Corp., CCH II, CCH II
Capital, Charter Communications Holdings, LLC and the Dealer Managers of
$600,000). It is understood, however, that, except as provided in Section 8
hereof and in the preceding sentence, the Dealer Managers will pay all their
own costs and expenses incurred by the Dealer Managers in connection with
their services as Dealer Managers under this Agreement.
SECTION 3. Termination; Withdrawal.
(a) Subject to Section 10 hereof, this Agreement may be terminated
by the Charter Companies, at any time upon notice to the Dealer Managers, if
(i) at any time prior to the Exchange Date, the Exchange Offer is terminated
or withdrawn by the Charter Companies for any reason or (ii) the Dealer
Managers do not comply in all material respects with any material covenant
specified in Section 1.
(b) Subject to Section 10 hereof, this Agreement may be terminated
by the Dealer Managers, at any time upon notice to the Charter Companies, if
(i) at any time prior to the Exchange Date, the Exchange Offer is terminated
or withdrawn by the Charter Companies for any reason, (ii) the Charter
Companies do not comply in all material respects with any covenant specified
in Section 1 hereof or (iii) the Charter Companies shall file with the SEC,
publish, send or otherwise distribute any amendment or supplement to the
Offering Documents to which the Dealer Managers shall reasonably object or
which shall be reasonably disapproved by counsel to the Dealer Managers.
(c) Notwithstanding the foregoing, if this Agreement is terminated
pursuant to Section 3(a)(i) only, at any time prior to the consummation of
the transactions described in the Registration Statement, the Dealer
Managers will be entitled to their full fees described above in the event
that the Charter Companies consummate, at any time prior to the date that is
30 days after the date of such termination, an offer or offers in a form
similar to the Exchange Offer and involving the issuance of securities
similar to those being issued by the Charter Companies in connection
therewith, in a transaction or series of transactions in which the Dealer
Managers did not act as dealer managers to the Charter Companies or its
affiliates.
SECTION 4. Representations and Warranties by the Charter
Companies. The Charter Companies represent and warrant to the Dealer Managers,
as of the date hereof, and as of the Exchange Date, that:
(a) The Registration Statement, including the Prospectus, has been
prepared by the Charter Companies in conformity in all material respects
with the requirements of
the Act and has been filed with the SEC as of the Commencement Date. Such
amendments to such Registration Statement and Prospectus will have been
similarly prepared and filed with the SEC; and the Charter Companies will
file such additional amendments to such Registration Statement and
Prospectus as may hereafter be required. Copies of such Registration
Statement and Prospectus, including all amendments thereto and all documents
incorporated by reference therein, have been or, if filed after the
Commencement Date, will be, delivered or made available to the Dealer
Managers and their counsel. No stop order refusing or suspending the
effectiveness of the Registration Statement or preventing or suspending the
use of any Prospectus is in effect, and no proceedings for such purpose have
been instituted or are pending before or, to the best knowledge of the
Charter Companies, are threatened by the SEC. The Exchange Offer satisfies
the conditions for use of Form-S-4.
(b) The Schedule TO has been prepared by the Charter Companies in
conformity in all material respects with the requirements of the Exchange
Act and has been or will, upon commencement of the Exchange Offer, be filed
with the SEC; and the Charter Companies will file such amendments to such
Schedule TO as may hereafter be required. Copies of such Schedule TO,
including all amendments thereto and all documents incorporated by reference
therein have been or, if filed after the Commencement Date, will be,
delivered or made available to the Dealer Managers and their counsel.
(c) (i) The Offering Documents, including the Registration
Statement, the Prospectus and the Schedule TO, comply and, as amended or
supplemented, if applicable, will comply, in all material respects, with the
Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and
the applicable rules and regulations of the SEC thereunder (the "Trust
Indenture Act"); and the documents incorporated by reference into each of
the Offering Documents (collectively, the "Incorporated Documents") complied
as of the date of filing with the SEC, in all material respects with all
applicable requirements of the Act and the Exchange Act; (ii) the
Registration Statement, when it becomes effective, will not contain and as
amended or supplemented thereafter, if applicable, will not contain, any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; (iii) none of the Prospectus or the other Offering Documents
(including the Incorporated Documents) at the Commencement Date and at all
times at or prior to the Exchange Date contains, and, as amended or
supplemented, if applicable, will contain, any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; except that the representations and warranties set
forth in this paragraph 4(c) do not apply to (A) statements or omissions in
the Offering Documents, including the Registration Statement or the
Prospectus, or, in each case, any amendment or supplement thereto, based
upon information relating to the Dealer Managers furnished to the Charter
Companies in writing by the Dealer Managers expressly for use therein or (B)
information which shall constitute the Statement of Eligibility under the
Trust Indenture Act (Form T-1) of the Trustee under the Indenture; and (iv)
there are no agreements, leases, contracts or other documents required to be
described in the Prospectus or Schedule TO or to be filed as exhibits to the
Registration Statement or Schedule TO which have not been so described or
filed.
(d) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the SEC, complied and will comply in all material respects with the
requirements of the Exchange Act, and, when read together with the other
information in the Prospectus, as the case may be, at the time the
Registration Statement and any amendments thereto become effective and at
the Commencement Date and the Exchange Date, as the case may be, will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(e) The Charter Companies have not distributed and will not
distribute, prior to the later of the Exchange Date and the completion of
the distribution of cash and the New Securities in exchange for the
Outstanding Notes pursuant to the Exchange Offer, any offering material in
connection with the Exchange Offer other than the Offering Documents.
(f) Each of the Charter Companies has been duly formed and is
validly existing as a limited liability company or corporation, as the case
may be, under the laws of the State of Delaware and each of the Charter
Companies' subsidiaries has been duly incorporated or otherwise formed and
is validly existing as a corporation, partnership, limited liability company
or other legal entity under the laws of its jurisdiction of incorporation or
formation and has been duly qualified as a foreign corporation or limited
liability company, as the case may be, for the transaction of business in
and is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require such
qualification; and is not subject to liability or disability by reason of
the failure to be so qualified in any such jurisdiction, except such as
would not, individually or in the aggregate, have a material adverse effect
on the current or future financial position, members' or stockholders'
equity or results of operations of the Charter Companies and their
subsidiaries, taken as a whole (a "Material Adverse Effect").
(g) The Charter Companies have all necessary corporate or limited
liability company power and authority, as appropriate, to execute and
deliver this Agreement, and to perform all their obligations hereunder and
to make the Exchange Offer in accordance with its terms.
(h) The Class A Common Stock conforms in all material respects to
the description thereof in the Prospectus and, upon issuance thereof, will
be duly and validly authorized and issued, fully paid and non-assessable and
will be issued free and clear of all liens, encumbrances, equities or
claims.
(i) The Charter Companies have taken all necessary corporate or
limited liability company action, as appropriate, to authorize the making of
the Exchange Offer and the execution, delivery and performance by the
Charter Companies of this Agreement and, prior to the Exchange Date, shall
have taken all necessary corporate or limited liability company action to
authorize the exchange of cash and New Securities for the
Outstanding Notes pursuant to the Exchange Offer and all other actions
contemplated in the Offering Documents; and this Agreement has been duly
executed and delivered by the Charter Companies and, assuming due
authorization, execution and delivery by the Dealer Managers, this Agreement
constitutes a valid and legally binding agreement of the Charter Companies,
enforceable against the Charter Companies in accordance with its terms,
except to the extent such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles and except that rights to indemnification and contribution
hereunder may be limited by federal or state securities laws or public
policy relating thereto.
(j) The New CCH II Notes, when and if issued, will be in the form
contemplated by the CCH II Indenture, will conform in all material respects
to the description thereof in the Prospectus, have been duly authorized by
CCH II and CCH II Capital and, when executed by CCH II and CCH II Capital
and authenticated by the CCH II Trustee in accordance with the provisions of
the CCH II Indenture and when delivered to the exchanging Holders of
Outstanding Notes in connection with the consummation of the Exchange Offer
in accordance with the terms of the Offering Documents, will be duly
executed, issued and delivered and will constitute valid and binding
obligations of CCH II and CCH II Capital, enforceable against them in
accordance with their terms, and will be entitled to the benefits of the CCH
II Indenture, except as may be limited by (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally, (ii) general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the
availability of specific performance or injunctive relief and the discretion
of the court before which any proceeding therefor may be brought (regardless
of whether such enforcement is considered in a proceeding in equity or at
law), (iii) public policy considerations and (iv) with respect to any rights
to indemnity and contribution, federal and state securities laws.
(k) The CCH II Indenture has been duly authorized by CCH II and
CCH II Capital, has been executed and delivered by CCH II and CCH II
Capital, constitutes a valid and binding obligation of CCH II and CCH II
Capital, enforceable against CCH II and CCH II Capital in accordance with
its terms, except as may be limited by (i) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally, (ii) general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the
availability of specific performance or injunctive relief and the discretion
of the court before which any proceeding therefor may be brought (regardless
of whether such enforcement is considered in a proceeding in equity or at
law), (iii) public policy considerations and (iv) with respect to any rights
to indemnity and contribution, federal and state securities laws.
(l) The Charter Companies will conduct the Exchange Offer in
compliance in all material respects with the Exchange Act.
(m) The financial statements, together with the related schedules
and notes, contained in the Offering Documents and the Incorporated
Documents present fairly in all material respects, in accordance with
generally accepted accounting principles ("GAAP"), the consolidated
financial position, results of operations, stockholder's equity and cash
flows of the Charter ---- Companies and their subsidiaries on the basis
stated therein at the respective dates or for the respective periods to
which they relate subject, in the case of unaudited financial statements, to
normal year-end adjustments and the absence of footnotes and other
presentation items; and such statements and related schedules and notes have
been prepared in accordance with GAAP consistently applied throughout the
periods involved, except as disclosed therein and subject, in the case of
unaudited financial statements, to normal year-end adjustments and the
absence of footnotes and other presentation items.
(n) None of the Charter Companies or any of their subsidiaries is
(i) in violation of its certificate of incorporation, bylaws, certificate of
formation, limited liability company agreement, partnership agreement or
other organizational document, as the case may be, (ii) in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease, license, permit or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound or (iii)
in violation of the terms of any franchise agreement, or any law, statute,
rule or regulation or any judgment, decree or order, in any such case, of
any court or governmental or regulatory agency or other body having
jurisdiction over the Charter Companies or any of their subsidiaries or any
of their properties or assets, including, without limitation, the Cable
Communications Policy Act of 1984, as amended, the Cable Television Consumer
Protection and Competition Act of 1992, as amended, and the
Telecommunications Act of 1996 (collectively, the "Cable Acts") or any
order, rule or regulation of the Federal Communications Commission (the
"FCC"), except, in the case of clauses (ii) and (iii), such as would not,
individually or in the aggregate, have a Material Adverse Effect;
(o) The execution, delivery and performance by the Charter
Companies of this Agreement and the consummation by the Charter Companies of
the transactions contemplated hereby do not and will not conflict with or
result in a breach or violation of, or constitute a default under, (i) any
of the provisions of the charter or bylaws (or similar organizational
documents) of the Charter Companies or any of their subsidiaries, (ii) any
other note, indenture, loan agreement, mortgage or other agreement,
instrument or undertaking to which the Charter Companies or any of their
subsidiaries or affiliates is a party or by which any of them is bound or to
which any of their properties or assets is subject other than breaches,
violations or defaults that would not have a Material Adverse Effect and
other than those notes, indentures, loan agreements, mortgages or other
agreements, instruments or undertakings which will be amended or terminated
or pursuant to which consents will be obtained on or prior to consummation
of the transactions contemplated hereby, or (iii) any law, rule or
regulation or any order of any court or of any other governmental agency or
instrumentality having jurisdiction over the Charter Companies or any of
their subsidiaries or affiliates or any of its or their respective
properties or assets other than breaches, violations or defaults that would
not have a Material Adverse Effect.
(p) No consent, approval, authorization or order of any court or
governmental, legislative, judicial, administrative or regulatory agency,
authority or body including, without limitation, under the Cable Acts or any
rule, order or regulation of the FCC is required for the making of the
Exchange Offer, the exchange of cash and the New Securities for the
Outstanding Notes pursuant to the Exchange Offer, the execution, delivery
and performance of any of the Transaction Documents or the consummation of
the other transactions contemplated in this Agreement, except (i) such as
have been obtained on or prior the Exchange Date, and (ii) such as may be
required under the Act, the Exchange Act, state securities or "Blue Sky"
laws or foreign securities laws in connection with the purchase and
distribution of the New Securities.
(q) The outstanding shares of capital stock or other equity
interests of CCI and each of the Charter Companies and each of their
subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable and, except as disclosed in the Prospectus, are owned,
directly or indirectly by CCHC, free and clear of all liens, encumbrances,
equities or claims. The authorized, issued and outstanding capital stock of
CCI and each Charter Company is as set forth in the Prospectus; since the
date indicated in the Prospectus, except as disclosed in the Prospectus or
changes occurring in the ordinary course of business, there has been no
change in the consolidated capitalization of CCI or any Charter Company or
any of their respective subsidiaries (other than changes in outstanding
common stock resulting from subsequent issuances, if any, pursuant to the
Exchange Offer or pursuant to employee or director benefit plans, including
deferred compensation plans, dividend reinvestment and stock purchase or
stock option plans, in each case existing on the date hereof (collectively,
the "Stock Plans")).
(r) Except as disclosed in the Prospectus, (i) there are no
outstanding securities convertible into or exchangeable for, or warrants,
rights or options issued by CCI or any Charter Company to purchase, any
shares of the capital stock of CCI or any Charter Company, (ii) there are no
statutory, contractual, preemptive or other rights to subscribe for or to
purchase any Class A Common Stock and (iii) there are no restrictions upon
transfer of Class A Common Stock pursuant to CCI's certificate of
incorporation or bylaws.
(s) Except as disclosed in the Prospectus, shares of Class A
Common Stock sufficient to pay the portion of the Exchange Offer
Consideration payable in shares of Class A Common Stock are registered
pursuant to Section 12(g) of the Exchange Act and are included or approved
for inclusion on the Nasdaq Global Market, and neither CCI nor any Charter
Company has taken any action designed to, or likely to have the effect of,
terminating the registration of Class A Common Stock under the Exchange Act
or delisting shares of Class A Common Stock from the Nasdaq Global Market,
nor has CCI or any Charter Company received any notification that the SEC or
the NASD is contemplating terminating such registration or listing. CCI has
complied in all material respects with the applicable requirements of the
Nasdaq Global Market for maintenance or inclusion of the shares of Class A
Common Stock thereon.
(t) The statements in the Prospectus under the heading
"Description of Other Indebtedness", "Description of Capital Stock and
Membership Units", "Description of
the Convertible Notes" and "Certain U.S. Federal Income Tax Consequences"
insofar as they purport to describe the provisions of the laws, documents
and arrangements referred to therein, are accurate in all material respects.
(u) The Transaction Documents conform or will conform in all
material respects to the descriptions thereof in the Offering Documents.
(v) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings (including, without limitation, by the FCC or
any franchising authority) pending to which the Charter Companies or any of
the their subsidiaries is a party or of which any property of the Charter
Companies or any of their subsidiaries is the subject which, if determined
adversely with respect to the Charter Companies or any of their
subsidiaries, would, individually or in the aggregate, have a Material
Adverse Effect; and, to the best knowledge of the Charter Companies and,
except as disclosed in the Prospectus, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(w) None of the Charter Companies or any of their subsidiaries has
sustained since the date of the latest audited financial statements that
will be included in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus,
except for such events as would not reasonably be expected to have a
Material Adverse Effect; and, since the respective dates as of which
information is given in the Prospectus, there has not been any change in the
capital stock or limited liability company interests or long-term debt of
the Charter Companies or any of their subsidiaries or any change or
development that would reasonably be expected to have a Material Adverse
Effect, otherwise than as set forth or contemplated in the Prospectus.
(x) Each of the Charter Companies and their subsidiaries carries
insurance (including, without limitation, self-insurance) in such amounts
and covering such risks as in the reasonable determination of the Charter
Companies is adequate for the conduct of its business and the value of its
properties.
(y) Except as set forth in the Prospectus, there is no strike,
labor dispute, slowdown or work stoppage with the employees of any of the
Charter Companies or their subsidiaries which is pending or, to the best
knowledge of the Charter Companies, threatened which would, individually or
in the aggregate, have a Material Adverse Effect.
(z) None of the Charter Companies is, or after giving effect to
the Exchange Offer will be, an "investment company" or any entity
"controlled" by an "investment company" as such terms are defined in the
U.S. Investment Company Act of 1940, as amended (the "Investment Company
Act").
(aa) Prior to the date hereof, none of the Charter Companies or
any of their affiliates has taken any action which is designed to or which
has constituted or which might
have been expected to cause or result in stabilization or manipulation of
the price of any security of the Charter Companies in connection with the
Exchange Offer.
(bb) The pro forma financial information that will be included in
the Prospectus (i) complies as to form in all material respects with the
applicable requirements of Regulation S-X for Form S-4 promulgated under the
Exchange Act, and (ii) has been properly computed on the bases described
therein; the assumptions used in the preparation of the pro forma financial
information that will be included in the Prospectus are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein.
(cc) KPMG LLP, who has certified the annual financial statements
that will be included in the Prospectus, is a firm of independent public
accountants as required by the Act and the rules and regulations of the SEC
thereunder, based upon representations by such firm to the Charter
Companies.
(dd) Each of the Charter Companies and their subsidiaries own or
possess, or can acquire on reasonable terms, adequate licenses, trademarks,
service marks, trade names and copyrights (collectively, "Intellectual
Property") necessary to conduct the business now or proposed to be operated
by each of them as described in the Prospectus, except where the failure to
own, possess or have the ability to acquire any Intellectual Property would
not, individually or in the aggregate, have a Material Adverse Effect; and
none of the Charter Companies or their subsidiaries has received any notice
of infringement of or conflict with (and none actually knows of any such
infringement of or conflict with) asserted rights of others with respect to
any Intellectual Property which, if any such assertion of infringement or
conflict were sustained would, individually or in the aggregate, have a
Material Adverse Effect.
(ee) Except as described in the Prospectus, the Charter Companies
and their subsidiaries have obtained all consents, approvals, orders,
certificates, licenses, permits, franchises and other authorizations of and
from, and have made all declarations and filings with, all governmental and
regulatory authorities (including, without limitation, the FCC), all
self-regulatory organizations and all courts and other tribunals legally
necessary to own, lease, license and use their respective properties and
assets and to conduct their respective businesses in the manner described in
the Prospectus, except to the extent that the failure to so obtain, declare
or file would not, individually or in the aggregate, have a Material Adverse
Effect.
(ff) Each of the Charter Companies and their subsidiaries has
filed all necessary federal, state and foreign income and franchise tax
returns required to be filed as of the date hereof and have paid all taxes
shown as due thereon, except where the failure to so file such returns or so
pay would not, individually or in the aggregate, have a Material Adverse
Effect; and there is no tax deficiency that has been asserted against the
Charter Companies or any of their subsidiaries (other than those which the
amount or validity thereof are currently being challenged in good faith by
appropriate proceedings and with respect to which reserves in conformity
with GAAP have been provided on the books of
the relevant entity) that could reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Effect.
(gg) The Charter Companies and their subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(hh) Except as described in the Prospectus: (i) each of the
franchises held by, or necessary for any operations of, the Charter
Companies and their subsidiaries that are material to the Charter Companies
and their subsidiaries, taken as a whole, is in full force and effect, with
no material restrictions or qualifications; (ii) to the best knowledge of
the Charter Companies, no event has occurred which permits, or with notice
or lapse of time or both would permit, the revocation or non-renewal of any
such franchises, assuming the filing of timely renewal applications and the
timely payment of all applicable filing and regulatory fees to the
applicable franchising authority, or which would be reasonably likely to
result, individually or in the aggregate, in any other material impairment
of the rights of the Charter Companies and their subsidiaries in such
franchises; and (iii) the Charter Companies have no reason to believe that
any franchise that is material to the operation of the Charter Companies and
their subsidiaries will not be renewed.
(ii) Each of the programming agreements entered into by, or
necessary for any operations of, the Charter Companies or their subsidiaries
that are material to the Charter Companies and their subsidiaries, taken as
a whole, is in full force and effect (or in any cases where the Charter
Companies or their subsidiaries and any suppliers of content are operating
in the absence of an agreement, such content providers and the Charter
Companies and their subsidiaries provide and receive service in accordance
with terms that have been agreed to or consistently acknowledged or accepted
by both parties, including, without limitation, situations in which
providers or suppliers of content accept regular payment for the provision
of such content); and to the best knowledge of the Charter Companies, no
event has occurred (or with notice of lapse of time or both would occur)
which would be reasonably likely to result in the early termination or
non-renewal of any such programming agreements and which would, individually
or in the aggregate, result in a Material Adverse Effect.
(jj) The Charter Companies and their subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in compliance with
all terms and conditions of any such permit, license or approval, except
where such noncompliance
with Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals would not, individually or in the aggregate,
have a Material Adverse Effect.
(kk) Immediately after the consummation of this Exchange Offer
(including after giving effect to the execution, delivery and performance of
this Agreement and the exchange of cash and New Securities for the
Outstanding Notes), (i) the fair market value of the assets of each of the
Charter Companies, each on a consolidated basis with its subsidiaries,
exceeds and will exceed its liabilities, on a consolidated basis with its
subsidiaries; (ii) the present fair saleable value of the assets of each of
the Charter Companies, each on a consolidated basis with its subsidiaries,
exceeds and will exceed its liabilities, on a consolidated basis with its
subsidiaries; (iii) each of the Charter Companies, each on a consolidated
basis with its subsidiaries, is and will be able to pay its debts, on a
consolidated basis with its subsidiaries, as such debts respectively mature
or otherwise become absolute or due; and (iv) each of the Charter Companies,
on a consolidated basis with its subsidiaries, does not have and will not
have unreasonably small capital with which to conduct its respective
operations.
(ll) The Charter Companies each maintain a system of disclosure
controls and procedures to ensure that material information relating to the
Charter Companies, including their consolidated subsidiaries, is made known
to each of them by others within those entities, particularly during the
period in which the periodic reports are being prepared; except as disclosed
in the Prospectus, since the end of each Charter Company's most recent
audited fiscal year, there has been no change in such Charter Company's
internal control over financial reporting that has materially affected, or
is reasonably likely to materially affect, such Charter Company's internal
control over financial reporting. Each Charter Company is not aware of any
material weakness in such Charter Company's internal control over financial
reporting (whether or not remediated).
(mm) No Charter Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business material to such Charter Company and its
subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Prospectus; and, since the date as of which information
is given in the Prospectus, there has not been (x) any increase, or any
development involving a prospective increase in the Charter Companies'
consolidated reserve for losses and loss adjustment expense, (y) any change
in the authorized capital stock of any Charter Company or any of its
Subsidiaries that are significant subsidiaries within the meaning of Rule
405 of the Securities Act ("Significant Subsidiaries") or any increase in
the consolidated short-term or long-term debt of such Charter Company or (z)
any Material Adverse Effect.
(nn) There is, and has been, no failure on the part of the Charter
Companies or their subsidiaries, or any of their directors or officers, in
their capacities as such, to comply with any provision of the Xxxxxxxx-Xxxxx
Act of 2002 and the rules and regulations promulgated in connection
therewith, including, without limitation, Section 402 related to loans and
Sections 302 and 906 related to certifications.
(oo) The statistical and market-related data that will be included
in the Prospectus are based on or derived from sources that the Charter
Companies believe to be reliable and accurate.
(pp) On or prior to the Commencement Date, the Charter Companies
will have made appropriate arrangements, to the extent applicable, with DTC
to allow for the book-entry movement of the tendered notes representing the
Outstanding Notes between depository participants and the Exchange Agent.
(qq) There are no contracts, agreements or understandings between
the Charter Companies and any person granting such person the right to
require the Charter Companies to include any securities held by such person
in the Registration Statement.
The representations and warranties set forth in this Section 4
shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Indemnified Person (as defined in
Annex A attached hereto) or (ii) any termination, expiration or cancellation of
this Agreement.
SECTION 5. Representations of the Dealer Managers. Each Dealer
Manager represents and warrants to the Charter Companies, and agrees with the
Charter Companies that this Agreement has been duly authorized and validly
executed and delivered by such Dealer Manager.
SECTION 6. Conditions and Obligations. The obligation of the
Dealer Managers to act as Dealer Managers hereunder shall at all times be
subject, in their discretion, to the conditions that:
(a) For the period from and after effectiveness of this Agreement
and prior to the Exchange Date: (i) the Charter Companies shall have filed
the Registration Statement with the SEC not later than the date hereof and
the Registration Statement shall become effective prior to the Exchange
Date; and (ii) no stop order refusing or suspending the effectiveness of the
Registration Statement or any post-effective amendment shall have been
issued or be in effect and no proceedings for such purpose shall have been
instituted or threatened by the SEC.
(b) All representations and warranties of the Charter Companies
contained herein or in any certificate or writing delivered hereunder at all
times during the Exchange Offer shall be true and correct in all material
respects.
(c) The Charter Companies at all times during the Exchange Offer
shall have performed, in all material respects, all of their obligations
hereunder required as of such time to have been performed by them.
(d) The General Counsel of the Charter Companies, shall have
delivered to the Dealer Managers an opinion, prior to the Commencement Date
and on the Exchange Date, substantially in the form of Exhibit C hereto.
(e) Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Charter
Companies, shall have delivered to the Dealer Managers an opinion, prior to
the Commencement Date and on the Exchange Date, substantially in the form of
Exhibit D hereto.
(f) Xxxx, Raywid & Xxxxxxxxx, L.L.P., special regulatory counsel
to the Charter Companies, shall have delivered to the Dealer Managers an
opinion, prior to the Commencement Date and on the Exchange Date,
substantially in the form of Exhibit E hereto.
(g) No stop order, restraining order or injunction has been issued
by the SEC or any court, and, except as disclosed in the Charter Companies'
filings with the SEC, no litigation shall have been commenced, or to the
knowledge of the Charter Companies, threatened before the SEC or any court,
with respect to (i) the making or the consummation of the Exchange Offer,
(ii) the execution, delivery or performance by the Charter Companies of this
Agreement or (iii) any of the transactions in connection with, or
contemplated by, the Offering Documents which the Dealer Managers or their
legal counsel in good faith believes makes it inadvisable for the Dealer
Managers to continue to render services pursuant hereto and it shall not
have otherwise become unlawful under any law or regulation, federal, state
or local, for the Dealer Managers so to act, or continue so to act, as the
case may be.
(h) At the Exchange Date, there shall have been delivered to the
Dealer Managers, on behalf of the Charter Companies, a certificate of the
Chairman, Chief Executive Officer or President of Charter Holdings and the
Chief Financial Officer of Charter Holdings, dated the Exchange Date, and
stating that the representations and warranties set forth in Section 4
hereof are true and accurate in all material respects as if made on such
Exchange Date.
(i) At the Commencement Date and at the Exchange Date, the Charter
Companies shall have requested and caused KPMG LLP to furnish to the Dealer
Managers, comfort letters, dated respectively as of the Commencement Date
and as of the Exchange Date, in form and substance reasonably satisfactory
to the Dealer Managers.
(j) The Charter Companies shall have advised the Dealer Managers
promptly of (i) the occurrence of any event which, in the reasonable
judgment of the Charter Companies or their counsel could cause the Charter
Companies to withdraw, rescind or modify the Offering Documents, to
withdraw, rescind or terminate the Exchange Offer or would permit the
Charter Companies to exercise any right not to exchange cash and New
Securities for the Outstanding Notes under the Exchange Offer, (ii) its
awareness of the issuance by any regulatory authority of any comment or
order or the taking of any other action concerning the Exchange Offer (and,
if in writing, will have furnished the Dealer Managers with a copy thereof),
(iii) its awareness of any material litigation or administrative or similar
proceeding which is initiated or threatened in writing with respect to the
Exchange Offer and (iv) any other information relating to the Exchange
Offer, the Offering Documents or this Agreement which the Dealer Managers
may from time to time reasonably request.
(k) At the Exchange Date, the Charter Companies shall have
obtained all consents, approvals, authorizations and orders of, and shall
have duly made all registrations, qualifications and filings with, any court
or regulatory authority or other governmental agency or instrumentality
required in connection with the making and consummation of the Exchange
Offer and the execution, delivery and performance of this Agreement.
SECTION 7. Covenants of the Charter Companies.
(a) The Charter Companies will use their commercially reasonable
efforts to cause the Registration Statement, and any amendment thereof, to
become effective as soon as possible but no later than the Exchange Date; to
promptly advise the Dealer Managers in writing (i) of the receipt of any
comments of, or requests for additional or supplemental information from, the
SEC relating to the Exchange Offer, including in relation to the Registration
Statement, any Prospectus or any other Offering Documents, (ii) of the time and
date of any filing of any post-effective amendment to the Registration
Statement, any amendment or supplement to any Prospectus (other than any
amendment or supplement resulting solely from the incorporation by reference of
any report filed under the Exchange Act) or any amendment to or additional
Offering Documents, (iii) of the time and date that any post-effective
amendment to the Registration Statement becomes effective, and (iv) of (A) the
issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto, (B) any order
preventing or suspending the use of any Prospectus or any other Offering
Documents, (C) the occurrence of any event which would cause the Charter
Companies to withdraw, rescind, terminate or modify the Exchange Offer or would
permit the Charter Companies to exercise any right not to accept Outstanding
Notes tendered pursuant to the Exchange Offer, or (D) any proceedings to
remove, suspend or terminate from listing or quotation the New CCH II Notes or
the Class A Common Stock from any securities exchange upon which the relevant
securities are listed for trading or included or designated for quotation, or
of the threatening or initiation of any proceedings for any of such purposes.
Additionally, the Charter Companies agree that they shall comply with the
provisions of Rule 424(b), as applicable, under the Securities Act and will use
their reasonable efforts to confirm that any filings made by any Charter
Company under such Rule 424(b) were received in a timely manner by the SEC.
(b) The Charter Companies will comply with the Act, the Exchange
Act and the Trust Indenture Act in connection with the Exchange Offer, the
Offering Documents and the transactions contemplated hereby and thereby, as
applicable. If, at any time when the Prospectus is required by the Act or the
Exchange Act to be delivered in connection with the Exchange Offer, any event
shall occur or condition shall exist as a result of which it is necessary, in
the reasonable opinion of counsel for the Dealer Managers or counsel for the
Charter Companies, to amend the Registration Statement or amend or supplement
the Prospectus or any other Offering Documents in order that the Prospectus or
such other Offering Documents will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements in the Prospectus or such other Offering Documents, in the light of
the circumstances under which they were made, not misleading or if, in the
reasonable opinion of either such counsel, it shall be necessary to amend the
Registration Statement or amend or supplement the Prospectus or any other
Offering Documents to comply with the requirements of the Act or Exchange Act,
the Charter Companies will promptly prepare, file with the SEC, subject to
Section 1(k) hereof, and furnish, at their own expense, to the Dealer Managers
and to the dealers (whose
names and addresses will be furnished to the Charter Companies by the Dealer
Managers) by which Outstanding Notes may have been tendered for exchange, such
amendment or supplement as may be necessary to correct such untrue statement or
omission or to make the Registration Statement or the Prospectus or such other
Offering Documents comply with such requirements.
(c) The Charter Companies will make generally available to its
security holders and to the Dealer Managers an earnings statement covering a
twelve-month period beginning not later than the first day of the Charter
Companies' fiscal quarter next following the effective date of the Registration
Statement that satisfies the provisions of Section 11(a) of the Act and the
rules and regulations of the SEC thereunder.
(d) The Charter Companies will not amend or supplement the
Offering Documents, other than by filing documents under the Exchange Act that
are incorporated by reference therein, without the prior written consent of
each Dealer Manager (which consent will not be unreasonably withheld or
delayed); provided, however, that, prior to the earlier of the Exchange Date or
the date of termination of the Exchange Offer, the Charter Companies will not
file any document under the Exchange Act that is incorporated by reference in
the Offering Documents unless, a reasonable time prior to such proposed filing,
the Charter Companies have furnished each Dealer Manager with a copy of such
document for its review and have provided such Dealer Manager with a reasonable
opportunity to review such materials and provide comments to the Charter
Companies. The Charter Companies will promptly advise each Dealer Manager when
any document filed under the Exchange Act that is incorporated by reference in
the Offering Documents shall have been filed with the SEC.
(e) Prior to the issuance of the New Securities, the Charter
Companies will use commercially reasonable efforts to obtain the registration
or qualification of the New Securities under the securities or Blue Sky laws of
such U.S. jurisdictions as may be required for the consummation of the Exchange
Offer. The Charter Companies will promptly advise the Dealer Managers of the
receipt by any Charter Company of any notification with respect to the
suspension of the qualification of the New Securities for sale in any U.S.
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(f) The Charter Companies will cooperate with the Dealer Managers
and use their best efforts to permit the New CCH II Notes to be eligible for
clearance and settlement through DTC.
SECTION 8. Indemnification. In consideration of the engagement
hereunder, the Charter Companies shall indemnify and hold the Dealer Managers
harmless to the extent set forth in Annex A hereto, which provisions are
incorporated by reference herein and constitute a part hereof. Annex A hereto is
an integral part of this Agreement and shall survive any termination, expiration
or cancellation of this Agreement.
SECTION 9. Confidentiality. The Dealer Managers shall use all
information provided to them by or on behalf of the Charter Companies hereunder
solely for the purpose of providing the services which are the subject of this
Agreement and the transactions contemplated hereby and shall treat
confidentially all such information, provided that nothing herein shall prevent
the Dealer Managers from disclosing any such information (i) pursuant to a
requirement of
applicable law or regulation or the order or request of any court or
administrative, regulatory or similar proceeding, (ii) upon the request of any
regulatory authority having jurisdiction over the Dealer Managers or any of
their affiliates, (iii) to the extent that such information becomes publicly
available (which shall include the mailing or delivery of the Offering Documents
to holders of the Outstanding Notes) other than by reason of disclosure by the
Dealer Managers in violation of this Section 9, and (iv) to its employees, legal
counsel and other experts or agents (its "Representatives"), as well as its
affiliates as set forth in Section 14(c), in each case, who need to know such
information in connection with the transactions contemplated hereby and are
informed of the confidential nature of such information. Each Dealer Manager
shall be responsible for compliance by its Representatives with this Section 9.
Section 9 shall terminate on the second anniversary of the date hereof.
SECTION 10. Survival. The agreements contained in this Section 10
and in Sections 2(b), 3, 8, 9, 11, 12 and 14 hereof and Annex A hereto shall
survive any termination, expiration or cancellation of this Agreement, any
completion of the engagement provided by this Agreement or any investigation
made on behalf of the Charter Companies, the Dealer Managers or any Indemnified
Person and shall survive the termination of the Exchange Offer.
SECTION 11. GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK. THE
PARTIES HERETO CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND THE FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN, CITY OF
NEW YORK IN ANY ACTION OR PROCEEDING RELATED TO THIS AGREEMENT (EXCEPT THAT A
JUDGMENT OBTAINED IN SUCH COURTS MAY BE ENFORCED IN ANY JURISDICTION).
SECTION 12. Notices. Except as otherwise expressly provided in
this Agreement, whenever notice is required by the provisions of this Agreement
to be given, such notice shall be in writing addressed as follows and shall be
deemed given when received:
If to the Charter Companies:
CCH II, LLC
CCH II Capital Corp.
CCHC, LLC
00000 Xxxxxxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
If to the Dealer Managers:
Banc of America Securities LLC
The Hearst Building
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Fax: 000-000-0000
Attention: High Yield Special Products
with a copy to:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxxx Xxxx
Legal Department
and
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: Liability Management Group
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
SECTION 13. Advertisements. The Charter Companies agree that after
the date on which the transactions contemplated by the Offering Documents are
consummated, the Dealer Managers shall have the right to place advertisements in
financial and other newspapers and journals at their own expense describing
their services to the Charter Companies hereunder, subject to the Charter
Companies' prior approval, which approval shall not be unreasonably withheld or
delayed.
SECTION 14. Miscellaneous.
(a) This Agreement contains the entire agreement between the
parties relating to the subject matter hereof and supersedes all oral statements
and prior writings with respect thereto. This Agreement may not be amended or
modified except by a writing executed by each
of the parties hereto. Section headings herein are for convenience only and
are not a part of this Agreement.
(b) This Agreement is solely for the benefit of the Charter
Companies, the Dealer Managers, the Indemnified Persons set forth in Annex A
hereto and their respective successors, heirs and assigns, and no other person
shall acquire or have any rights under or by virtue of this Agreement. No party
may assign this Agreement without the prior written consent of the other
parties.
(c) The Dealer Managers may (subject to and in accordance with
Section 9 hereof) share any information or matters relating to the Charter
Companies, the Exchange Offer and the transactions contemplated hereby with
their affiliates and such affiliates may likewise share information relating to
the Charter Companies with the Dealer Managers. The Dealer Managers shall be
responsible for compliance by its affiliates with the terms of this Agreement.
(d) If any term, provision, covenant or restriction contained in
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable or against public policy, the remainder of the terms,
provisions, covenants and restrictions contained herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated. The
Charter Companies and the Dealer Managers shall endeavor in good faith
negotiations to replace the invalid, void or unenforceable provisions with valid
provisions, the economic effect of which comes as close as possible to that of
the invalid, void or unenforceable provisions.
(e) This Agreement may be executed in counterparts, each of which
will be deemed an original, but all of which, taken together, will constitute
one and the same instrument.
If the foregoing correctly sets forth our understanding,
please indicate your acceptance of the terms hereof by signing in the
appropriate space below and returning to the Dealer Managers the enclosed
duplicate originals hereof, whereupon this letter shall become a binding
agreement between us.
Very truly yours,
BANC OF AMERICA SECURITIES LLC
By:
------------------------------------------
Name:
Title: Managing Director
CITIGROUP GLOBAL MARKETS INC.
By:
-------------------------------------------
Name:
Title:
Accepted and agreed to
as of the date first written above:
CCH II, LLC
By:
----------------------------------------------------------
Name:
Title:
CCH II CAPITAL CORP.
By:
----------------------------------------------------------
Name:
Title:
CCHC, LLC
By:
----------------------------------------------------------
Name:
Title:
