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EXECUTION COPY
EXHIBIT 10.34
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$1,000,000,000
SENIOR BRIDGE LOAN AGREEMENT
Dated as of August 4, 2000
By and Among
CHARTER COMMUNICATIONS HOLDINGS, LLC
and
CHARTER COMMUNICATIONS HOLDINGS CAPITAL CORPORATION
as Borrowers
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
MORGAN STANLEY SENIOR FUNDING, INC.
as Sole Arranger, Syndication Agent and Administrative Agent
GOLDMAN SACHS CREDIT PARTNERS L.P.
as Co-Documentation Agent
MERRILL LYNCH CAPITAL CORPORATION
as Co-Documentation Agent
and
BEAR STEARNS CORPORATE LENDING INC.
as Co-Documentation Agent
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EXECUTION COPY
TABLE OF CONTENTS
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SECTION 1. DEFINITIONS............................................................................5
1.1 Defined Terms................................................................................5
1.2 Computation of Time Periods.................................................................24
1.3 Other Definitional Provisions; Pro Forma Calculations.......................................24
SECTION 2. AMOUNT AND TERMS OF ADVANCES..........................................................26
2.1 The Bridge Advances.........................................................................26
2.2 Making the Advances.........................................................................26
2.3 Repayment of Advances.......................................................................27
2.4 Termination or Reduction of the Commitments.................................................28
2.5 Prepayments.................................................................................28
2.6 Interest....................................................................................29
2.7 Agents' Fees................................................................................29
2.8 Increased Costs, Etc........................................................................30
2.9 Payments and Computations...................................................................30
2.10 Taxes.......................................................................................32
2.11 Sharing of Payments, Etc....................................................................34
2.12 Use of Proceeds.............................................................................35
2.13 Rollover....................................................................................35
SECTION 3. CONDITIONS OF LENDING.................................................................37
3.1 Conditions Precedent to Initial Borrowing...................................................37
3.2 Conditions Precedent to Each Borrowing......................................................39
3.3 Determinations Under Section 3.1............................................................40
SECTION 4. REPRESENTATIONS AND WARRANTIES........................................................40
4.1 Financial Condition.........................................................................40
4.2 No Change...................................................................................40
4.3 Existence; Compliance with Law..............................................................40
4.4 Power; Authorization; Enforceable Obligations...............................................41
4.5 No Legal Bar................................................................................41
4.6 Litigation..................................................................................41
4.7 No Default..................................................................................42
4.8 Ownership of Property; Liens................................................................42
4.9 Intellectual Property.......................................................................42
4.10 Taxes.......................................................................................42
4.11 Federal Regulations.........................................................................42
4.12 Labor Matters...............................................................................43
4.13 ERISA.......................................................................................43
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4.14 Investment Company Act; Other Regulations...................................................43
4.15 Use of Proceeds.............................................................................43
4.16 Environmental Matters.......................................................................43
4.17 Certain Cable Television Matters............................................................44
4.18 Accuracy of Information, etc................................................................45
4.19 Solvency....................................................................................45
SECTION 5. AFFIRMATIVE COVENANTS.................................................................45
5.1 Financial Statements........................................................................46
5.2 Certificates; Other Information.............................................................46
5.3 Payment of Obligations......................................................................47
5.4 Maintenance of Existence; Compliance........................................................47
5.5 Maintenance of Property; Insurance..........................................................47
5.6 Inspection of Property; Books and Records; Discussions......................................47
5.7 Notices.....................................................................................47
5.8 Environmental Laws..........................................................................48
5.9 ERISA Reports...............................................................................48
5.10 ERISA, etc..................................................................................49
5.11 Rollover Indenture and Registration Rights Agreement........................................49
SECTION 6. NEGATIVE COVENANTS....................................................................50
6.1 Financial Condition Covenants...............................................................50
6.2 Indebtedness................................................................................50
6.3 Liens.......................................................................................51
6.4 Fundamental Changes.........................................................................52
6.5 Asset Sales.................................................................................52
6.6 Restricted Payments.........................................................................54
6.7 Investments.................................................................................55
6.8 Certain Payments and Modifications Relating to Indebtedness and Management Fees.............56
6.9 Transactions with Affiliates................................................................58
6.10 Sales and Leasebacks........................................................................58
6.11 Changes in Fiscal Periods...................................................................58
6.12 Negative Pledge Clauses.....................................................................58
6.13 Clauses Restricting Subsidiary Distributions................................................59
6.14 Lines of Business...........................................................................59
SECTION 7. EVENTS OF DEFAULT.....................................................................59
7.1 Events of Default...........................................................................59
SECTION 8. THE AGENTS............................................................................63
8.1 Appointment.................................................................................63
8.2 Agents' Reliance, Etc.......................................................................63
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8.3 Morgan Stanley and Affiliates...............................................................64
8.4 Lender Credit Decision......................................................................64
8.5 Indemnification.............................................................................64
8.6 Successor Agents............................................................................65
SECTION 9. MISCELLANEOUS.........................................................................66
9.1 Amendments and Waivers......................................................................66
9.2 Notices.....................................................................................67
9.3 No Waiver; Cumulative Remedies..............................................................67
9.4 Survival of Representations and Warranties..................................................67
9.5 Payment of Expenses and Taxes...............................................................67
9.6 Binding Effect..............................................................................69
9.7 Assignments and Participations..............................................................70
9.8 Set-off.....................................................................................73
9.9 Counterparts................................................................................73
9.10 Severability................................................................................73
9.11 Integration.................................................................................73
9.12 GOVERNING LAW...............................................................................74
9.13 Jurisdiction, Etc...........................................................................74
9.14 Acknowledgments.............................................................................74
9.15 Confidentiality.............................................................................75
9.16 WAIVERS OF JURY TRIAL.......................................................................75
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SENIOR BRIDGE LOAN AGREEMENT, dated as of August 4, 2000,
among Charter Communications Holdings, LLC, a Delaware limited liability company
("Charter Holdings"), Charter Communications Holdings Capital Corporation, a
Delaware corporation ("Charter Capital," together with Charter Holdings, the
"Borrowers"), the banks, financial institutions and other institutional lenders
listed on the signature pages hereof as the initial lenders (the "Initial
Lenders"), Morgan Stanley Senior Funding, Inc. ("Morgan Stanley"), as sole
arranger (in such capacity, the "Sole Arranger"), Morgan Stanley, as syndication
agent (together with any successor syndication agent appointed pursuant to
Section 8, the "Syndication Agent"), Morgan Stanley, as administrative agent
(together with any successor administrative agent appointed pursuant to Section
8, the "Administrative Agent" and, together with the Syndication Agent, the
"Agents") for the Lenders (as hereinafter defined) and Goldman Sachs Credit
Partners L.P. ("Goldman Sachs"), Merrill Lynch Capital Corporation ("Merrill
Lynch") and Bear Stearns Corporate Lending Inc. as co-documentation agents
(together with Goldman Sachs and Merrill Lynch, the "Co-Documentation Agents").
W I T N E S S E T H :
WHEREAS, the Borrowers have requested the Lenders to lend to
the Borrowers up to $1,000,000,000 to pay revolving credit loans, and to finance
capital expenditures, of the Subsidiaries of Charter Holdings, and the Lenders
have indicated their willingness to do so on the terms and conditions set forth
in this Agreement;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
SECTION 1.
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed
in this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"Accumulated Benefit Obligations": the actuarial present value
of the accumulated benefit obligations under any Plan, calculated in a manner
consistent with Statement No. 87 of the Financial Accounting Standards Board.
"Administrative Agent": as defined in the preamble to this
Agreement.
"Administrative Agent's Account": the account of the
Administrative Agent as the Administrative Agent shall specify in writing to the
Lenders.
"Advance": a Bridge Advance or a Term Advance.
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"Affiliate": as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person means
the power, directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": as defined in the preamble to this Agreement.
"Agreement": this Senior Bridge Loan Agreement, as amended,
supplemented or otherwise modified from time to time.
"Annualized Operating Cash Flow": for any fiscal quarter, an
amount equal to Consolidated Operating Cash Flow for such period multiplied by
four.
"Applicable Interest Rate": (x) in respect of the first
Borrowing hereunder, a rate per annum equal to the bid-side yield (as determined
by the Administrative Agent whose determination shall be conclusive and binding
for all purposes, absent manifest error), as of the date of such Borrowing, on
the Senior Notes less 0.25% (provided that if any or all of the Bridge Advances
relating to the first Borrowing are outstanding (i) on the first Step-Up Date,
the Applicable Interest Rate in respect of such Bridge Advances shall increase
on such first Step-Up Date by 1.25% and (ii) on each subsequent Step-Up Date,
the Applicable Interest Rate in respect of such Bridge Advances shall increase
by 0.50% per annum), (y) in respect of the second Borrowing hereunder, a rate
per annum equal to the greater of (i) the Applicable Interest Rate on the date
of such Borrowing in respect of the Bridge Advances relating to the first
Borrowing hereunder and (ii) the bid-side yield (as determined by the
Administrative Agent whose determination shall be conclusive and binding for all
purposes, absent manifest error), as of the date of such Borrowing, on the
Senior Notes (provided that if any or all of the Bridge Advances relating to the
second Borrowing are outstanding on any Step-Up Date, the Applicable Interest
Rate in respect of such Bridge Advances shall increase by the same amount as the
Applicable Interest Rate in respect of the Bridge Advances related to the first
Borrowing hereunder are or would be required to increase on such date) and (z)
in respect of Term Advances, a rate per annum equal to the sum of (i) the
greater of (A) the Applicable Interest Rate on the Initial Maturity Date in
respect of the Bridge Advances related to the first Borrowing hereunder and (B)
the Applicable Interest Rate on the Initial Maturity Date in respect of the
Bridge Advances related to the second Borrowing hereunder and (ii) 0.50% per
annum (provided that if any or all of the Term Advances are outstanding on any
Term Advance Step-Up Date, the Applicable Interest Rate in respect of the Term
Advances shall increase by 0.50% per annum on such Term Advance Step-Up Date);
provided, however, that in no event shall any Applicable Interest Rate in
respect of Bridge Advances or Term Advances be less than 9.0% per
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annum or greater than 15.0% per annum (except that the Applicable Interest Rate
on Term Advances is subject to increase to the extent of any special interest
payable thereon in accordance with the provisions of the Registration Rights
Agreement).
"Approved Fund": with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Asset Sale": any Disposition of property or series of related
Dispositions of property, or the issuance of Equity Interests by any Subsidiary
(including for this purpose Charter Capital) or the sale of Equity Interests in
any Subsidiary (including for this purpose Charter Capital), except that the
following shall not be deemed to be Asset Sales (a) sales of inventory in the
ordinary course of business, (b) the Disposition of obsolete or worn-out
property in the ordinary course of business, (c) any transfer of property
between or among Charter Holdings and its Subsidiaries, (d) the sale or issuance
of any Subsidiary's Equity Interests to Charter Holdings or to any Subsidiary of
Charter Holdings and (e) Exchanges pursuant to which no consideration in the
form of cash or Cash Equivalent is received by Charter Holdings or any
Subsidiary of Charter Holdings.
"Assignment and Acceptance": an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 9.7 and in substantially the
form of Exhibit C hereto.
"Authorizations": all filings, recordings and registrations
with, and all validations or exemptions, approvals, orders, authorizations,
consents, Licenses, certificates and permits from, the FCC, applicable public
utilities and other Governmental Authorities, including, without limitation,
CATV Franchises, FCC Licenses and Pole Agreements.
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrowers": as defined in the preamble to this Agreement.
"Borrowers' Account": the account of Charter Holdings
maintained by Charter Holdings as Charter Holdings shall specify in writing to
the Administrative Agent.
"Borrowing": a borrowing consisting of simultaneous Bridge
Advances made by the Lenders.
"Borrowing Date": any Business Day specified by the Borrower
as a date on which the Borrower requests the relevant Lenders to make Advances
hereunder.
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"Bridge Advance": as defined in Section 2.1.
"Bridge Note": a joint and several promissory note of the
Borrowers payable to the order of any Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the aggregate indebtedness of the Borrowers to
such Lender resulting from the Bridge Advances made by such Lender, as amended.
"Business": as defined in Section 4.16(b).
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close.
"Capital Lease Obligations": as to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Cash Equivalents": (a) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof having combined capital and
surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at the time of acquisition at least A-1 by Standard & Poor's Ratings Services
("S&P") or P-1 by Moody's Investors Service, Inc. ("Moody's"), or carrying an
equivalent rating by a nationally recognized rating agency, if both of the two
named rating agencies cease publishing ratings of commercial paper issuers
generally, and maturing within six months from the date of acquisition; (d)
repurchase obligations of any Lender or of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not more than 30
days, with respect to securities issued or fully guaranteed or insured by the
United States government; (e) securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at the time of acquisition at least A by S&P or A by Moody's; (f)
securities with maturities of six months or less from the date of acquisition
backed by standby letters of credit issued by any Lender or any commercial
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bank satisfying the requirements of clause (b) of this definition; or (g) shares
of money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of this definition.
"CATV Franchise": collectively, with respect to the Borrowers
and their Subsidiaries, (a) any franchise, license, permit, wire agreement or
easement granted by any political jurisdiction or unit or other local, state or
federal franchising authority (other than licenses, permits and easements not
material to the operations of a CATV System) pursuant to which such Person has
the right or license to operate a CATV System and (b) any law, regulation,
ordinance, agreement or other instrument or document setting forth all or any
part of the terms of any franchise, license, permit, wire agreement or easement
described in clause (a) of this definition.
"CATV System": any cable distribution system owned or acquired
by either Borrower or any of their Subsidiaries which receives audio, video,
digital, other broadcast signals or information or telecommunications by cable,
optical, antennae, microwave or satellite transmission and which amplifies and
transmits such signals to customers of either Borrower or any of their
Subsidiaries.
"CCI": Charter Communications, Inc., a Delaware corporation.
"Change of Control": the occurrence of any of the following:
(a) the Paul Allen Group shall cease to have the power, directly or indirectly,
to vote or direct the voting of at least 51% (determined on a fully diluted
basis) of the Voting Interests of either Borrower; (b) the Paul Allen Group
shall cease to own of record and beneficially, directly or indirectly, Equity
Interests of either Borrower representing at least 25% (determined on a fully
diluted basis) of the economic interests therein; or (c) a Specified Change of
Control shall occur.
"Charter Capital": as defined in the preamble to this
Agreement.
"Charter Holdings": as defined in the preamble to this
Agreement.
"Code": the Internal Revenue Code of 1986, as amended from
time to time and the regulations promulgated and rulings issued thereunder.
"Commitment": with respect to any Lender at any time, the
amount set forth opposite such Lender's name on Schedule 1 hereto under the
caption "Commitment" or, if such Lender has entered into one or more Assignment
and Acceptances, the amount set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 9.7(d) as such Lender's
"Commitment", as such amount may be reduced at or prior to such time pursuant to
Section 2.4.
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"Commitment Letter": the commitment letter dated April 28,
2000 among the Borrowers, the Administrative Agent, Goldman Sachs Credit
Partners L.P., Merrill Lynch Capital Corporation and Bear Stearns Corporate
Lending Inc.
"Commonly Controlled Entity": an entity, whether or not
incorporated, that is under common control with either Borrower within the
meaning of Section 4001 of ERISA or is part of a group that includes one of the
Borrowers and that is treated as a single employer under Section 414 of the
Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit G.
"Consolidated Interest Coverage Ratio": as of the last day of
any period, the ratio of (a) Consolidated Operating Cash Flow for the fiscal
quarter ending on such day multiplied by four to (b) Consolidated Interest
Expense for the period of four consecutive fiscal quarters ending on such day.
"Consolidated Interest Expense": for any period, total cash
interest expense (including that attributable to Capital Lease Obligations) of
the Subsidiaries of Charter Holdings for such period with respect to all
outstanding Indebtedness of the Subsidiaries of Charter Holdings (including all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing and net costs under Hedge Agreements
in respect of interest rates to the extent such net costs are allocable to such
period in accordance with GAAP).
"Consolidated Leverage Ratio": as of the last day of any
period, the ratio of (a) Consolidated Total Debt on such day to (b) Annualized
Operating Cash Flow determined in respect of the fiscal quarter ending on such
day.
"Consolidated Net Income": for any period, the consolidated
net income (or loss) of the Subsidiaries of Charter Holdings, determined on a
consolidated basis in accordance with GAAP; provided that, GAAP to the contrary
notwithstanding, there shall be excluded (a) the income (or deficit) of any
Person accrued prior to the date it becomes a Subsidiary of Charter Holdings or
is merged into or consolidated with any Subsidiary of Charter Holdings, (b) the
income (or deficit) of any Person (other than a Subsidiary of Charter Holdings)
in which a Subsidiary of Charter Holdings has an ownership interest, except to
the extent that any such income is actually received by such Subsidiary in the
form of dividends or similar distributions, (c) the undistributed earnings of
any Subsidiary of Charter Holdings to the extent that such undistributed
earnings are excluded from the definition of consolidated net income under the
Existing Credit Agreement to which such Subsidiary is a party or is subject and
(d) whether or not distributed, the income of any Non-Recourse Subsidiary.
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"Consolidated Operating Cash Flow": as applied to the
Subsidiaries of Charter Holdings, on a consolidated basis, in respect of any
period, the sum of the Consolidated Net Income for such period plus Consolidated
Interest Expense, depreciation, amortization, tax expense, management fees
expensed during such period, deferred compensation expenses, and other non-cash
or non-recurring expenses deducted in determining such Consolidated Net Income;
provided that extraordinary gains or losses shall not be taken into account in
determining Consolidated Net Income for purposes of determining Consolidated
Operating Cash Flow, and gains or losses from the sale of assets and investment
activities shall be excluded from such calculation; and, provided, further, that
payments in respect of the redemption of management participation units in the
ordinary course of business shall be deemed to be a non-recurring expense.
"Consolidated Total Debt": at any date, the aggregate
principal amount of all Indebtedness (other than any contingent obligations for
standby letters of credit entered into in the ordinary course of business such
as in lieu of bonds, security deposits and the like) of the Subsidiaries of
Charter Holdings at such date, determined on a consolidated basis in accordance
with GAAP.
"Contractual Obligation": as to any Person, any provision of
any debt or equity security issued by such Person or of any agreement,
instrument or other undertaking to which such Person is a party or by which it
or any of its property is bound.
"Conversion Default": any Event of Default or any Default
under Section 7.1(a), (c), (e), (f), (h), (i), (j) and (k).
"Default": any of the events specified in Section 7.1, whether
or not any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Disposition": with respect to any property, any sale, lease
(other than leases in the ordinary course of business, including leases of
excess office space and fiber leases), sale and leaseback, assignment,
conveyance, transfer or other disposition thereof, including pursuant to an
exchange for other property. The terms "Dispose" and "Disposed of" shall have
correlative meanings.
"Dollars" and "$": dollars in lawful currency of the United
States.
"Effective Date": the date of the initial Borrowing under this
Agreement.
"Eligible Assignee": (x) any commercial bank or financial
institution (including, without limitation, any fund that regularly invests in
loans similar to the Advances) as approved by the Administrative Agent and (so
long as no Event of Default has occurred and is continuing at the time of such
assignment pursuant to Section 9.7) by the Borrowers (such approvals not to be
unreasonably withheld or delayed) or (y) an
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Affiliate or an Approved Fund of a Lender; provided, however, that neither any
Borrower nor any Affiliate of a Borrower shall qualify as an Eligible Assignee
under this definition.
"Engagement Letter": the engagement letter dated April 28,
2000 among the Borrowers, Morgan Stanley & Co. Incorporated, Goldman Sachs &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Bear, Stearns & Co.
Inc.
"Environmental Laws": any and all foreign, federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"Equity Interests": any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all classes of membership interests in a limited liability
company, any and all classes of partnership interests in a partnership and any
and all other equivalent ownership interests in a Person, and any and all
warrants, rights or options to purchase any of the foregoing.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rules and regulations promulgated and
rulings issued thereunder.
"Events of Default": as defined in Section 7.1.
"Excess Proceeds": as defined in Section 6.5(a).
"Exchange": any exchange of operating assets for other
operating assets in a Permitted Line of Business and, subject to the last
sentence of this definition, of comparable value and use to those assets being
exchanged, including exchanges involving the transfer or acquisition (or both
transfer and acquisition) of Equity Interests of a Person so long as 100% of the
Equity Interests of such Person are transferred or acquired, as the case may be.
It is understood that exchanges of the kind described above as to which a
portion of the consideration paid or received is in the form of cash or Cash
Equivalent shall nevertheless constitute "Exchanges" for the purpose of this
Agreement so long as the aggregate consideration received by the Borrowers and
their Subsidiaries in connection with such exchange represents fair market value
for the assets and cash being transferred by the Borrowers and their
Subsidiaries.
"Existing CC V Credit Agreement": the Credit Agreement, dated
as of November 15, 1999, as amended, among Avalon Cable LLC; CC Michigan, LLC;
CC New England, LLC; the several banks and other financial institutions or
entities parties thereto; First Union National Bank and PNC Bank, National
Association, as
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syndication agents; Bank of Montreal, Chicago Branch and Mercantile Bank
National Association, as co-documentation agents; and Bank of Montreal, as
administrative agent; as, except as provided in Section 6.5(d), the same may be
amended from time to time in accordance with the terms thereof and Section
6.8(b) of this Agreement.
"Existing CC VI Credit Agreement": the Credit Agreement, dated
as of November 12, 1999, among CC VI Holdings, LLC; CC VI Operating Company,
LLC; the several banks and other financial institutions or entities parties
thereto; Citibank, N.A. and ABN AMRO Bank N.V., as documentation agents; Chase
Securities Inc. and Banc of America Securities LLC, as syndication agents; and
Toronto Dominion (Texas), Inc., as administrative agent; as, except as provided
in Section 6.5(d), the same may be amended from time to time in accordance with
the terms thereof and Section 6.8(b) of this Agreement.
"Existing CC VII Credit Agreement": the Credit Agreement,
dated as of June 30, 1998, as amended and restated as of November 12, 1999,
among Falcon Cable Communications, LLC; the guarantors parties thereto; the
lenders parties thereto; Bank-Boston, N.A., as documentation agent; Toronto
Dominion (Texas), Inc., as administrative agent; Bank of America, N.A., as
syndication agent; and The Chase Manhattan Bank, as co-syndication agent; as,
except as provided in Section 6.5(d), the same may be amended from time to time
in accordance with the terms thereof and Section 6.8(b) of this Agreement;
provided that, if such Credit Agreement has been amended and restated in its
entirety or replaced with a new credit agreement in accordance with the proviso
of Section 6.8(b) of this Agreement, the term "Existing CC VII Credit Agreement"
shall refer to such amended and restated or replacement credit agreement as,
except as provided in Section 6.5(d), the same may be modified from time to time
in accordance with the terms thereof and Section 6.8(b) of this Agreement.
"Existing CC VIII Credit Agreement": the Credit Agreement,
dated as of February 2, 1999, as Amended and Restated as of February 14, 2000,
among CC VIII Holdings, LLC; CC VIII Holdings, LLC; the several banks and other
financial institutions or entities parties thereto; Bank of Nova Scotia, The
Bank of New York, Inc. and Banc of America Securities LLC, as documentation
agents; Chase Securities Inc., as syndication agent; and Toronto Dominion
(Texas) Securities Inc., as administrative agent; as, except as provided in
Section 6.5(d), the same may be amended from time to time in accordance with the
terms thereof and Section 6.8(b) of this Agreement.
"Existing Charter Operating Credit Agreement": the Credit
Agreement, dated as of March 18, 1999, as amended, among Charter Holdings;
Marcus Cable Company, LLC; Charter Communications Operating, LLC; Marcus Cable
Operating Company, LLC; the several banks and other financial institutions or
entities parties thereto; Toronto Dominion (Texas), Inc., Fleet Bank, N.A. and
Credit Lyonnais New York Branch, as documentation agents; Chase Securities Inc.,
Nationsbanc
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Montgomery Securities LLC and TD Securities (USA) Inc., as syndication agents;
and Nationsbank, N.A. and The Chase Manhattan Bank, as administrative agents;
as, except as provided in Section 6.5(d), the same may be amended from time to
time in accordance with the terms thereof and Section 6.8(b) of this Agreement.
"Existing Credit Agreements": the Existing CC V Credit
Agreement, the Existing CC VI Credit Agreement, the Existing CC VII Credit
Agreement, the Existing CC VIII Credit Agreement and the Existing Charter
Operating Credit Agreement; and the term "Existing Credit Agreement" means any
of such Existing Credit Agreements to which a Subsidiary is a party or is
subject.
"Existing Indentures": the indentures governing the Existing
Notes as the same may be amended from time to time in accordance with the terms
thereof and Section 6.8(b) of this Agreement.
"Existing Notes": the 10.00% Senior Notes due 2009, 10.25%
Senior Notes due 2010 and 11.75% Senior Discount Notes due 2010 of the Borrowers
issued on January 12, 2000 and the 8.250% Senior Notes due 2007, 8.625% Senior
Notes due 2009 and 9.920% Senior Discount Notes due 2011 of the Borrowers issued
on March 17, 1999.
"Existing Notes Portion": as defined in Section 6.5(b).
"Facility": at any time, the aggregate amount of the Lenders'
Commitments at such time.
"FCC": the Federal Communications Commission and any successor
thereto.
"FCC License": any community antenna relay service, broadcast
auxiliary license, earth station registration, business radio, microwave or
special safety radio service license issued by the FCC pursuant to the
Communications Act of 1934, as amended.
"Federal Funds Rate": for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
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"Fee Letter": the fee letter dated April 28, 2000 among the
Borrowers, the Administrative Agent, Goldman Sachs Credit Partners L.P., Merrill
Lynch Capital Corporation and Bear Stearns Corporate Lending Inc.
"Final Maturity Date": the ten year anniversary date of the
date on which the initial Borrowing is made.
"Flow-Through Entity": any Person that is not treated as a
separate tax paying entity for United States federal income tax purposes.
"GAAP": generally accepted accounting principles in the United
States as in effect from time to time, except that for purposes of Section 6.1,
GAAP shall be determined on the basis of such principles in effect on the date
hereof and consistent with those used in the preparation of the most recent
audited financial statements delivered pursuant to Section 3.1. In the event
that any "Accounting Change" (as defined below) shall occur and such change
results in a change in the method of calculation of financial covenants,
standards or terms in this Agreement, then the Borrowers and the Administrative
Agent agree to enter into negotiations in order to amend such provisions of this
Agreement so as to equitably reflect such Accounting Changes with the desired
result that the criteria for evaluating Charter Holdings' financial condition
shall be the same after such Accounting Changes as if such Accounting Changes
had not been made. Until such time as such an amendment shall have been executed
and delivered by the Borrowers, the Administrative Agent and the Required
Lenders, all financial covenants, standards and terms in this Agreement shall
continue to be calculated or construed as if such Accounting Changes had not
occurred. "Accounting Changes" refers to changes in accounting principles
required by the promulgation of any rule, regulation, pronouncement or opinion
by the Financial Accounting Standards Board of the American Institute of
Certified Public Accountants or, if applicable, the SEC.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including any bank under any letter of credit) to induce the creation of which
the guaranteeing person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including any obligation of the
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<PAGE> 16
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
"Guarantee Obligation" shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrowers in good faith.
"Hedge Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements dealing with interest rates or currency
exchange rates or the exchange of nominal interest obligations, either generally
or under specific contingencies.
"Holdco": Charter Communications Holding Company, LLC, a
Delaware limited partnership.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade payables incurred in the ordinary course of
such Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party under acceptances, letters of credit, surety bonds or similar
arrangements, (g) the liquidation value of all redeemable preferred Equity
Interests of such Person, (h) all Guarantee Obligations of such Person in
respect of obligations of the kind referred to in clauses (a) through (g) above,
(i) all obligations of the kind referred to in clauses (a) through (h) above
secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including
accounts and
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contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation, and (j) for the purposes of
Section 7.1(e) only, all obligations of such Person in respect of Hedge
Agreements. The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness expressly provide that such Person is
not liable therefor.
"Indemnified Costs": as defined in Section 8.5(a).
"Indemnified Liabilities": as defined in Section 9.5(d).
"Indemnitee": as defined in Section 9.5(d).
"Initial Lenders": as defined in the preamble to this
Agreement.
"Initial Maturity Date": the one year anniversary date of the
date on which the initial Borrowing is made.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including copyrights, copyright licenses, patents, patent licenses, trademarks,
trademark licenses, technology, know-how and processes, and all rights to sue at
law or in equity for any infringement or other impairment thereof, including the
right to receive all proceeds and damages therefrom.
"Investments": as defined in Section 6.7.
"Lenders": the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 9.7 for so long as such Initial
Lender or Person, as the case may be, shall be a party to this Agreement.
"Lending Office": with respect to any Lender, the office of
such Lender specified as its "Lending Office" opposite its name on Schedule 1
hereto or in the Assignment and Acceptance pursuant to which it became a Lender,
as the case may be, or such other office of such Lender as such Lender may from
time to time specify to the Borrowers and the Administrative Agent.
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"License": as to any Person, any license, permit, certificate
of need, authorization, certification, accreditation, franchise, approval, or
grant of rights by any Governmental Authority or other Person necessary or
appropriate for such Person to own, maintain, or operate its business or
property, including FCC Licenses.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
"Loan Documents": (i) this Agreement, (ii) the Notes, (iii)
the Rollover Indenture (when executed and delivered under this Agreement), (iv)
the Registration Rights Agreement (when executed and delivered under this
Agreement), (v) the Fee Letter, (vi) the Engagement Letter and (vii) the
Commitment Letter, in each case as amended.
"Management Fee Agreements": Second Amended Management
Agreement, dated as of November 9, 1999, by and among Charter Investment, Inc.,
Charter Communications, Inc. and Charter Communications Operating, LLC;
Management Agreement, dated as of November 12, 1999, by and between CC VI
Operating Company, LLC and Charter Communications, Inc.; Management Agreement,
dated as of November 12, 1999, by and between Falcon Cable Communications, LLC
and Charter Communications, Inc.; Management agreement dated as of February 14,
2000, by and between CC VIII Operating, LLC, certain subsidiaries of CC VIII
Operating, LLC and Charter Communications, Inc.; and Schedule I to the limited
liability agreement, dated November 15, 1999, of CC Michigan, LLC and CC New
England, LLC; as the same may be amended from time to time in accordance with
the terms thereof and Section 6.8(d) of this Agreement.
"Material Acquisition": any acquisition of property or series
of related acquisitions of property that (i) constitutes assets comprising all
or substantially all of an operating unit of a business or constitutes all or
substantially all of the Equity Interests of a Person and (ii) involves the
payment of consideration by any Subsidiary of Charter Holdings in excess of
$1,000,000.
"Material Adverse Effect": a material adverse effect on (a)
the business, property, operations or condition (financial or otherwise) of the
Borrowers and their Subsidiaries taken as a whole, (b) the validity or
enforceability of any material provision of this Agreement or any of the other
Loan Documents or (c) the rights or remedies of the Administrative Agent or the
Lenders hereunder or thereunder.
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"Material Disposition": any Disposition of property or series
of related Dispositions of property that yields gross proceeds to any Subsidiary
of Charter Holdings in excess of $1,000,000.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.
"Morgan Stanley": as defined in the preamble to this
Agreement.
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale,
the proceeds thereof in the form of cash and Cash Equivalents (including any
such proceeds received by way of deferred payment of principal pursuant to a
note or installment receivable or purchase price adjustment receivable or
otherwise, but only as and when received) of such Asset Sale, net of attorneys'
fees, accountants' fees, investment banking fees, amounts required to be applied
to the repayment of Indebtedness secured by a Lien expressly permitted hereunder
on any asset that is the subject of such Asset Sale and other customary fees and
expenses actually incurred in connection therewith and net of taxes paid or
reasonably estimated to be payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements) and (b) in connection with any issuance or sale of Equity
Interests or any incurrence of Indebtedness, the cash proceeds received from
such issuance or incurrence, net of attorneys' fees, investment banking fees,
accountants' fees, underwriting discounts and commissions and other customary
fees and expenses actually incurred in connection therewith.
"Non-Recourse Subsidiary": (a) any Subsidiary created,
acquired or activated by Charter Holdings or any of its Subsidiaries in
connection with any Investment made pursuant to Section 6.7(g) and designated as
such by Charter Holdings substantially concurrently with such creation,
acquisition or activation and (b) any Subsidiary of such designated Subsidiary,
provided that (i) at no time shall any creditor of any such Subsidiary have any
claim (whether pursuant to a Guarantee Obligation, by operation of law or
otherwise) against either Borrower or any other Subsidiary of Charter Holdings
(other than another Non-Recourse Subsidiary) in respect of any Indebtedness or
other obligation of any such Subsidiary (other than in respect of a non-recourse
pledge of Equity Interests in such Subsidiary); (ii) neither Borrower nor any
Subsidiary of Charter Holdings (other than another Non-Recourse Subsidiary)
shall become a general partner of any such Subsidiary; (iii) no default with
respect to any Indebtedness of any such
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Subsidiary (including any right which the holders thereof may have to take
enforcement action against any such Subsidiary) shall permit (upon notice, lapse
of time or both) any holder of any Indebtedness of either Borrower or any other
Subsidiary of Charter Holdings (other than another Non-Recourse Subsidiary) to
declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity; (iv) no such
Subsidiary shall own any Equity Interests of, or own or hold any Lien on any
property of, either Borrower or any other Subsidiary of Charter Holdings (other
than another Non-Recourse Subsidiary); (v) no Investments may be made in any
such Subsidiary by either Borrower or any Subsidiary of Charter Holdings (other
than another Non-Recourse Subsidiary) except pursuant to Section 6.7(g); (vi)
neither Borrower shall directly own any Equity Interests in such Subsidiary; and
(vii) at the time of such designation, no Default or Event of Default shall have
occurred and be continuing or would result therefrom. It is understood that
Non-Recourse Subsidiaries shall be disregarded for the purposes of any
calculation pursuant to this Agreement relating to financial matters with
respect to the Borrowers and the Subsidiaries of Charter Holdings.
"Note": a Bridge Note, a Term Note or a Rollover Note.
"Notice of Borrowing": as defined in Section 2.2(a).
"Obligation": with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including, without
limitation, any liability of such Person on any claim, whether or not the right
of any creditor to payment in respect of such claim is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such claim is
discharged, stayed or otherwise affected by any proceeding referred to in
Section 7.1(f). Without limiting the generality of the foregoing, the
Obligations of the Borrowers under the Loan Documents include (a) the obligation
to pay principal, interest, charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by the Borrowers under any
Loan Document and (b) the obligation of the Borrowers to reimburse any amount in
respect of any of the foregoing that any Lender, in its sole discretion, may
elect to pay or advance on behalf of the Borrowers.
"Other Taxes": as defined in Section 2.10(b).
"Paul Allen Group": the collective reference to (a) Paul G.
Allen, (b) his estate, spouse, immediate family members and heirs and (c) any
trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners or other owners of which consist exclusively of Paul G.
Allen or such other Persons referred to in clause (b) above or a combination
thereof.
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"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Lines of Business": as defined in Section 6.14.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan": at a particular time, any employee pension benefit
plan subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA or any welfare plan providing post-employment healthcare
benefits, and in respect of which either Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pole Agreement": any pole attachment agreement or
underground conduit use agreement entered into in connection with the operation
of any CATV System.
"Pro Forma Period": as defined in Section 1.3(e).
"Properties": as defined in Section 4.16(a).
"Register": as defined in Section 9.7(d).
"Registration Rights Agreement": if and when entered into,
the Registration Rights Agreement, in substantially the form of Exhibit D
hereto, executed by the Borrowers and the Administrative Agent, as amended from
time to time in accordance with the terms thereof.
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Reg. ss.4043.
"Required Lenders": at any time, Lenders owed or holding at
least a majority in interest of the aggregate principal amount of the Advances
outstanding at such time, or, if no such principal amount is outstanding at such
time, Lenders holding at least a majority in interest of the aggregate of the
Commitments.
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"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the chief executive officer, president
or chief financial officer of Charter Holdings (and of Charter Capital for
purposes of certificates delivered under Section 5.2), but in any event, with
respect to financial matters, any of the chief financial officer or any other
financial officer of Charter Holdings (and of Charter Capital for purposes of
certificates delivered under Section 5.2).
"Restricted Payments": as defined in Section 6.6.
"Rollover": as defined in Section 2.13(a).
"Rollover Indenture": if and when entered into, the senior
note indenture substantially in the form of Exhibit E hereto, executed by the
Borrowers and a trustee thereunder, as amended from time to time in accordance
with the terms thereof.
"Rollover Note": as defined in Section 2.13(b).
"Sale and Leaseback Transaction": as defined in Section 6.10.
"SEC": the Securities and Exchange Commission, any successor
thereto and any analogous Governmental Authority.
"Senior Notes": the 10.25% Senior Notes due 2010 issued by
the Borrowers.
"Shared Excess Proceeds": as defined in Section 6.5(b).
"Shell Subsidiary": any Subsidiary of either Borrower that is
a "shell" company having (a)assets (either directly or through any Subsidiary or
other Equity Interests) with an aggregate value not exceeding $10,000 and (b) no
operations.
"Single Employer Plan": any Plan that is covered by Title IV
of ERISA, but that is not aMultiemployer Plan.
"Solvent": when used with respect to any Person, means that as
of any date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the amount of
all "liabilities of such Person, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with applicable federal and state
laws governing determinations of the
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insolvency of debtors, (b) the present fair saleable value of the assets of such
Person will, as of such date, be greater than the amount that will be required
to pay the liability of such Person on its debts as such debts become absolute
and matured, (c) such Person will not have, as of such date, an unreasonably
small amount of capital with which to conduct its business, and (d) such Person
will be able to pay its debts as they mature. For purposes of this definition,
(i) "debt" means liability on a "claim", and (ii) "claim" means any (x) right to
payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (y) right to an equitable remedy for
breach of performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
"Specified Change of Control": a "Change of Control" or any
defined term having a comparable purpose contained in the Existing Indentures or
any other Indebtedness of either Borrower having an aggregate outstanding
principal amount in excess of $25,000,000.
"Step-Up Date": in respect of the Bridge Advances, each 90
day anniversary of the date of the initial Borrowing hereunder.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly, through one
or more intermediaries, or both, by such Person; provided that (x) Non-Recourse
Subsidiaries shall be deemed not to constitute "Subsidiaries" for the purpose of
this Agreement (other than the definition of "Non-Recourse Subsidiary") and (y)
Charter Capital shall be deemed not to constitute a "Subsidiary" of Charter
Holdings for purposes of this Agreement (unless otherwise specified). Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in
this Agreement shall refer to a Subsidiary or Subsidiaries of Charter Holdings.
"Taxes": as defined in Section 2.10(a).
"Term Advance": as defined in Section 2.13(a).
"Term Advance Step-Up Date": in respect of the Term Advances,
each 90 day anniversary of the date of the making of the Term Advances.
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"Termination Date": in respect of the Bridge Advances, the
earlier of the Initial Maturity Date and the date of termination in whole of the
Commitments pursuant to Section 2.4 or 7.1, and in respect of the Term Advances,
the earlier of the Final Maturity Date and the date of termination in whole of
the Commitments pursuant to Section 2.4 or 7.1.
"Term Note": a joint and several promissory note of the
Borrowers payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the aggregate indebtedness of the Borrowers to
such Lender resulting from the Term Advances owing to such Lender as amended.
"Test Period": as defined in Section 1.3(e).
"United States": the United States of America.
"Unused Bridge Commitment": with respect to any Lender at any
time, the amount of such Lender's Commitment to make Bridge Advances (without
giving effect to any reduction in such Commitment hereunder) minus the aggregate
principal amount of all Bridge Advances made by such Lender.
"Voting Interests": shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the holders of
which are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such Person,
even if the right so to vote has been suspended by the happening of such a
contingency.
1.2 Computation of Time Periods. In this Agreement and the
other Loan Documents in the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including" and the
words "to" and "until" each mean "to but excluding."
1.3 Other Definitional Provisions; Pro Forma Calculations. (a)
Unless otherwise specified therein, all terms defined in this Agreement shall
have the defined meanings when used in the other Loan Documents or any
certificate or other document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to the Borrowers and the Subsidiaries of Charter
Holdings not defined in Section 1.1 and accounting terms partly defined in
Section 1.1, to the extent not defined, shall have the respective meanings given
to them under GAAP, (ii) the words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation", (iii) the word
"incur" shall be construed to mean incur, create, issue, assume, become liable
in respect of or suffer to exist (and the words "incurred" and "incurrence"
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shall have correlative meanings), and (iv) the words "asset" and "property"
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, Equity
Interests, securities, revenues, accounts, leasehold interests, contract rights
and any other "assets" as such term is defined under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(e) For the purposes of calculating Annualized Operating Cash
Flow, Consolidated Operating Cash Flow and Consolidated Interest Expense for any
period (a "Test Period"), (i) if at any time from the period (a "Pro Forma
Period") commencing on the second day of such Test Period and ending on the last
day of such Test Period (or, in the case of any pro forma calculation made
pursuant hereto in respect of a particular transaction, ending on the date such
transaction is consummated and, unless otherwise expressly provided herein,
after giving effect thereto), any Subsidiary of Charter Holdings shall have made
any Material Disposition, the Consolidated Operating Cash Flow for such Test
Period shall be reduced by an amount equal to the Consolidated Operating Cash
Flow (if positive) attributable to the property which is the subject of such
Material Disposition for such Test Period or increased by an amount equal to the
Consolidated Operating Cash Flow (if negative) attributable thereto for such
Test Period, and Consolidated Interest Expense for such Test Period shall be
reduced by an amount equal to the Consolidated Interest Expense for such Test
Period attributable to any Indebtedness of any Subsidiary of Charter Holdings
repaid, repurchased, defeased or otherwise discharged with respect to the
Subsidiaries of Charter Holdings in connection with such Material Disposition
(or, if the Equity Interests of any Subsidiary of Charter Holdings are sold, the
Consolidated Interest Expense for such Test Period directly attributable to the
Indebtedness of such Subsidiary to the extent the continuing Subsidiaries of
Charter Holdings are no longer liable for such Indebtedness after such
Disposition); (ii) if during such Pro Forma Period any Subsidiary of Charter
Holdings shall have made a Material Acquisition, Consolidated Operating Cash
Flow and Consolidated Interest Expense for such Test Period shall be calculated
after giving pro forma effect thereto (including the incurrence or assumption of
any Indebtedness in connection therewith) as if such Material Acquisition (and
the incurrence or assumption of any such Indebtedness) occurred on the first day
of such Test Period; (iii) if during such Pro Forma Period any Person that
subsequently became a Subsidiary of Charter Holdings or was merged with or into
any Subsidiary of Charter Holdings since the beginning of such Pro Forma Period
shall have entered into any disposition or acquisition
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<PAGE> 26
transaction that would have required an adjustment pursuant to clause (i) or
(ii) above if made by a Subsidiary of Charter Holdings during such Pro Forma
Period, Consolidated Operating Cash Flow and Consolidated Interest Expense for
such Test Period shall be calculated after giving pro forma effect thereto as if
such transaction occurred on the first day of such Test Period; and (iv) in the
case of determinations in connection with transactions involving the incurrence
of Indebtedness, Consolidated Interest Expense shall be calculated after giving
pro forma effect thereto (and all other incurrences of Indebtedness during such
Pro Forma Period) as if such Indebtedness was incurred on the first day of such
Test Period. For the purposes of this paragraph, pro forma calculations
regarding the amount of income or earnings relating to any Material Disposition
or Material Acquisition and the amount of Consolidated Interest Expense
associated with any discharge or incurrence of Indebtedness shall in each case
be determined in good faith by a Responsible Officer of Charter Holdings. If any
Indebtedness bears a floating rate of interest and the incurrence or assumption
thereof is being given pro forma effect, the interest expense on such
Indebtedness shall be calculated as if the rate in effect on the last day of the
relevant Pro Forma Period had been the applicable rate for the entire relevant
Test Period (taking into account any interest rate protection agreement
applicable to such Indebtedness if such interest rate protection agreement has a
remaining term in excess of 12 months).
SECTION 2.
AMOUNT AND TERMS OF ADVANCES
2.1 The Bridge Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make two advances (each, a
"Bridge Advance") to the Borrowers on any Business Day during the period from
the date hereof until October 14, 2000 in an amount for each such Bridge Advance
not to exceed such Lender's Unused Bridge Commitment at such time. Each
Borrowing shall be in an aggregate amount of $250,000,000 or an integral
multiple of $1,000,000 in excess thereof and shall consist of Bridge Advances
made simultaneously by the Lenders ratably according to their Commitments.
Amounts borrowed under this Section 2.1 and repaid or prepaid may not be
reborrowed.
2.2 Making the Advances. (a) Each Borrowing shall be made on
notice, given not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Borrowing, by the Borrowers to
the Administrative Agent, which shall give to each Lender prompt notice thereof
by telex or telecopier. Each such notice of a Borrowing (a "Notice of
Borrowing") shall be in writing, or by telephone, confirmed immediately in
writing, or telex or telecopier, in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Borrowing and (ii) aggregate
amount of such Borrowing. Each Lender shall, before 11:00 A.M. (New York City
time) on the date of such Borrowing, make available for the account of
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its Lending Office to the Administrative Agent at the Administrative Agent's
Account, in same day funds, such Lender's ratable portion of such Borrowing in
accordance with the respective Commitments of such Lender and the other Lenders.
After the Administrative Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Section 3, the Administrative Agent will
make such funds available to the Borrowers by crediting the Borrowers' Account.
(b) Each Notice of Borrowing shall be irrevocable and binding
on the Borrowers. The Borrowers shall indemnify each Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to fulfill on
or before the date specified for such Borrowing in such Notice of Borrowing the
applicable conditions set forth in Section 3, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date.
(c) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.2 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrowers on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender, severally, and the Borrowers, jointly and severally, agree to repay or
pay to the Administrative Agent forthwith on demand such corresponding amount
and to pay interest thereon, for each day from the date such amount is made
available to the Borrowers until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of the Borrowers, the interest rate
applicable at such time under Section 2.6(a) to Advances comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall pay to the Administrative Agent such corresponding amount, such
amount so paid shall constitute such Lender's Advance as part of such Borrowing
for all purposes of this Agreement.
(d) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
2.3 Repayment of Advances. (a) Bridge Advances. Subject to the
provisions of Section 2.13, the Borrowers shall repay to the Administrative
Agent for the
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ratable account of Lenders the aggregate outstanding principal amount of the
Bridge Advances on the Termination Date in respect of the Bridge Advances.
(b) Term Advances. The Borrowers shall repay to the
Administrative Agent for the ratable account of the Lenders the aggregate
outstanding principal amount of the Term Advances on the Termination Date in
respect of the Term Advances.
2.4 Termination or Reduction of the Commitments. (a) Optional.
The Borrowers may, upon at least three Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part the Unused Bridge
Commitments; provided, however, that each partial reduction (i) shall be in an
aggregate amount of $5,000,000 or integral multiples of $1,000,000 in excess
thereof and (ii) shall be made ratably among the Lenders in accordance with
their Commitments.
(b) Mandatory. On the date of each Borrowing after giving
effect to such Borrowing, the aggregate Commitments of the Lenders shall be
automatically and permanently reduced, on a pro rata basis, by an amount equal
to the aggregate amount of the Advances made on such date.
2.5 Prepayments. (a) Optional. The Borrowers may, upon at
least three Business Days' notice to the Administrative Agent stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrowers shall, prepay the outstanding aggregate principal
amount of the Advances comprising part of the same Borrowing in whole or ratably
in part, together with accrued interest to the date of such prepayment on the
aggregate principal amount prepaid, provided, however, that the Borrowers shall
be obligated to reimbursed the Lenders pursuant to Section 9.5 in respect
thereof.
(b) Mandatory. (i) The Borrowers shall within two Business
Days of receipt of the Net Cash Proceeds by either Borrower or any of their
Subsidiaries from (A) any Asset Sale, subject to the provisions set forth in
Section 6.5, (B) the incurrence or issuance by either Borrower or any of their
Subsidiaries of any Indebtedness, excluding, however, any Net Cash Proceeds from
any incurrence or issuance of Indebtedness pursuant to Section 6.2(a), Section
6.2(b), Section 6.2(e), Section 6.2(f) or Section 6.2(i) but including such Net
Cash Proceeds up to the amount by which the aggregate principal amount of
Indebtedness outstanding at the time of such incurrence or issuance (giving pro
forma effect to such incurrence or issuance) under all of the Existing Credit
Agreements exceeds $9,000,000,000, and (C) the sale or issuance by either
Borrower or any of its Subsidiaries of any Equity Interests (including, without
limitation, receipt of any capital contribution) other than the sale or issuance
of any Subsidiary's Equity Interests (including, without limitation, by way of
any capital contribution to such Subsidiary) to Charter Holdings or to any
Subsidiary of Charter Holdings, prepay an
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aggregate principal amount of the Advances in an amount equal to the amount of
such Net Cash Proceeds.
(ii) Upon the occurrence of a Change of Control, the Borrowers
shall give the Lenders written notice of such Change of Control within one
Business Day of such occurrence and each Lender shall have the right to require
the Borrowers to prepay in full the Advances owing to such Lender by giving the
Borrowers written notice of its election to exercise such right within ten
Business Days following receipt of the notice of such Change of Control. If one
or more Lenders shall elect to exercise such right, the Borrowers shall prepay
in full the Advances owing to such Lenders on the fifteenth Business Day
following the occurrence of such Change of Control.
(iii) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
2.6 Interest. (a) Scheduled Interest. The Borrowers shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in full,
at the Applicable Interest Rate, payable in arrears quarterly on the last
Business Day of each March, June, September and December and on the date such
Advances are paid in full. The Applicable Interest Rate on Term Advances is
subject to increase pursuant to the provisions of the Registration Rights
Agreement.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Borrowers shall pay interest on (i) the
unpaid principal amount of each Advance owing to each Lender, payable in arrears
on the dates referred to in clause (a) above and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on such Advance pursuant to clause (a) above and (ii) to the fullest extent
permitted by law, the amount of any interest, fee or other amount payable under
the Loan Documents that is not paid when due, from the date such amount shall be
due until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum then applicable to any Advances
pursuant to clause (a) above.
(c) Notice of Interest Rate. Promptly after receipt of a
Notice of Borrowing pursuant to Section 2.2(a), the Administrative Agent shall
give notice to the Borrowers and each Lender of the Applicable Interest Rate
(which notice shall be conclusive and binding for all purposes, absent manifest
error).
2.7 Agents' Fees. The Borrowers shall pay to each Agent for
its own account such fees as may from time to time be agreed between the
Borrowers and such Agent.
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2.8 Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Advances (excluding for purposes of this Section
2.8 any such increased costs resulting from changes related to taxation, as to
which Section 2.10 hereof shall govern), then the Borrowers shall from time to
time, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to the amount of such increased cost submitted
to the Borrowers by such Lender shall be conclusive and binding for all
purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by any Lender
or any corporation controlling such Lender as a result of or based upon the
existence of such Lender's commitment to lend and other commitments of such
type, then, upon demand by such Lender or such corporation (with a copy of such
demand to the Administrative Agent), the Borrowers shall pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend. A certificate as to such amounts submitted
to the Borrowers by such Lender shall be conclusive and binding for all
purposes, absent manifest error.
(c) Notwithstanding any other provision of this Agreement, if
any Lender shall notify the Administrative Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender to perform its obligations hereunder each Borrower shall
forthwith repay the outstanding principal amount of the Advances borrowed by it
and owing to such Lender and the unused Commitments of such Lender shall
terminate; provided, however, that, before giving any such notification, such
Lender agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different Lending Office if
the making of such a designation would allow such Lender or its Lending Office
to continue to perform its obligations to make Advances or to continue to fund
or maintain Advances and would not, in the reasonable judgment of such Lender,
be otherwise disadvantageous to such Lender.
2.9 Payments and Computations. (a) The Borrowers shall make
each payment hereunder and under the Notes, irrespective of any right of
counterclaim or
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set-off (except as otherwise provided in Section 2.11), not later than 1:00 P.M.
(New York City time) on the day when due in U.S. dollars to the Administrative
Agent at the Administrative Agent's Account by wire transfer in same day funds,
with payments being received by the Administrative Agent after such time being
deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrowers is in respect of principal, interest,
commitment fees or any other Obligation then payable hereunder and under the
Notes to more than one Lender, to such Lenders for the account of their
respective Lending Offices ratably in accordance with the amounts of such
respective Obligations then payable to such Lenders and (ii) if such payment by
the Borrowers is in respect of any Obligation then payable hereunder to one
Lender, to such Lender for the account of its Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 9.7(d), from and after the effective date of
such Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) The Borrowers hereby authorize each Lender and each of its
Affiliates, if and to the extent payment owed to such Lender is not made when
due hereunder or, in the case of a Lender, under the Note held by such Lender,
to charge from time to time, to the fullest extent permitted by law, against any
or all of either Borrower's accounts with such Lender or such Affiliate any
amount so due.
(c) All computations of interest and of fees shall be made by
the Administrative Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are payable. Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be.
(e) Unless the Administrative Agent shall have received notice
from the Borrowers prior to the date on which any payment is due to any Lender
hereunder that the Borrowers will not make such payment in full, the
Administrative Agent may assume that the Borrowers have made such payment in
full to the Administrative Agent on such date and the Administrative Agent may,
in reliance upon such assumption, cause to be
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distributed to each such Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent the Borrowers shall not have so made
such payment in full to the Administrative Agent, each such Lender shall repay
to the Administrative Agent forthwith on demand such amount distributed to such
Lender together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
(f) All Obligations of the Borrowers hereunder and under the
other Loan Documents shall be on a joint and several basis.
2.10 Taxes. (a) Any and all payments by or for the account of
the Borrowers hereunder, or in respect of the Notes or any other Loan Document,
shall be made, in accordance with Section 2.9, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, duties,
fees, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and each Agent, taxes that are
imposed on its overall net income by the United States and taxes that are
imposed on its overall net income (and franchise taxes imposed in lieu thereof)
by the state or foreign jurisdiction under the laws of which such Lender or such
Agent, as the case may be, is organized or any political subdivision thereof
and, in the case of each Lender, taxes that are imposed on its overall net
income (and franchise taxes imposed in lieu thereof) by the state or foreign
jurisdiction of such Lender's Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under the Notes
being hereinafter referred to as "Taxes"). If a Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder or under
any Note or other Loan Documents to any Lender or any Agent, (i) the sum payable
by such Borrower shall be increased as may be necessary so that after such
Borrower and the Administrative Agent have made all required deductions
(including deductions applicable to additional sums payable under this Section
2.10) such Lender or such Agent, as the case may be, receives an amount equal to
the sum it would have received had no such deductions been made, (ii) such
Borrower shall make all such deductions and (iii) such Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment made hereunder or under the Notes or other Loan Documents
or from the execution, delivery or registration of, performance under, or
otherwise with respect to, this Agreement, the Notes or any other Loan Document
(hereinafter referred to as "Other Taxes").
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(c) Each Borrower shall indemnify each Lender and each Agent
for and hold them harmless against the full amount of Taxes and Other Taxes, and
for the full amount of taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.10, imposed on or paid by such Lender or such Agent
(as the case may be) and any liability (including penalties, additions to tax,
interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender or such
Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrowers shall furnish to the Administrative Agent, at its address referred to
in Section 9.2, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes or other Loan
Documents by or on behalf of the Borrowers through an account or branch outside
the United States or by or on behalf of the Borrowers by a payor that is not a
United States person, if the Borrowers determine that no Taxes are payable in
respect thereof, the Borrowers shall furnish, or shall cause such payor to
furnish, to the Administrative Agent, at such address, an opinion of counsel
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes. For purposes of subsections (d) and (e) of this Section 2.10, the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender, as the case may
be, and on the date of the Assignment and Acceptance pursuant to which it
becomes a Lender in the case of each other Lender, and from time to time
thereafter as requested in writing by the Borrowers (but only so long thereafter
as such Lender remains lawfully able to do so), provide each of the
Administrative Agent and the Borrowers with two original Internal Revenue
Service forms 1001, 4224 or W-8ECI or W-8 or W-8BEN (and, if such Lender
delivers a form W-8 or W-8BEN, a certificate representing that such Lender is
not a "bank" for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder, within the meaning of Section 871(h)(3)(B) of the Code, of either
Borrower and is not a controlled foreign corporation related to either Borrower,
within the meaning of Section 864(d)(4) of the Code), as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes (or, in the
case of a Lender Party providing a form W-8 or W-8BEN, certifying that such
Lender is a foreign corporation, partnership, estate or trust). If the forms
provided by a Lender at the time such Lender first becomes a party to this
Agreement indicate a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate
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only shall be considered excluded from Taxes for periods governed by such forms;
provided, however, that if, at the effective date of the Assignment and
Acceptance pursuant to which a Lender becomes a party to this Agreement, the
Lender assignor was entitled to payments under subsection (a) of this Section
2.10 in respect of United States withholding tax with respect to interest paid
at such date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender assignee on such date. If any form or document referred to
in this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required on the
date hereof by Internal Revenue Service form 1001, 4224, W-8, W-8BEN or W-8ECI
(or the related certificate described above), that the Lender reasonably
considers to be confidential, the Lender shall give notice thereof to the
Borrowers and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender has failed
to provide the Borrowers with the appropriate form described in subsection (e)
above (other than if such failure is due to a change in law occurring after the
date on which a form originally was required to be provided or if such form
otherwise is not required under subsection (e) above), such Lender shall not be
entitled to indemnification under subsection (a) or (c) of this Section 2.10
with respect to Taxes imposed by reason of such failure; provided, however, that
should a Lender become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrowers shall take such steps as such Lender shall
reasonably request to assist such Lender to recover such Taxes.
2.11 Sharing of Payments, Etc. If any Lender shall obtain at
any time any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise, other than as a result of an assignment
pursuant to Section 9.7) (a) on account of Obligations due and payable to such
Lender hereunder and under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations due and
payable to such Lender at such time to (ii) the aggregate amount of the
Obligations due and payable to all Lenders hereunder and under the Notes at such
time) of payments on account of the Obligations due and payable to all Lenders
hereunder and under the Notes at such time obtained by all the Lenders at such
time or (b) on account of Obligations owing (but not due and payable) to such
Lender hereunder and under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations owing to such
Lender at such time to (ii) the aggregate amount of the Obligations owing (but
not due and payable) to all Lenders hereunder and under the Notes at such time)
of payments on account of the Obligations owing (but not due and payable) to all
Lenders hereunder and under the Notes at such time obtained by all of the
Lenders at such time, such Lender shall forthwith purchase from the other
Lenders such interests or participating interests in the Obligations due and
payable or owing to them, as the case may be, as shall be necessary
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to cause such purchasing Lender to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each other
Lender shall be rescinded and such other Lender shall repay to the purchasing
Lender the purchase price to the extent of such Lender's ratable share
(according to the proportion of (i) the purchase price paid to such Lender to
(ii) the aggregate purchase price paid to all Lenders) of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (i) the amount of such other Lender's required repayment to (ii) the total
amount so recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total amount so
recovered. The Borrowers agree that any Lender so purchasing an interest or
participating interest from another Lender pursuant to this Section 2.11 may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such interest or participating
interest, as the case may be, as fully as if such Lender were the direct
creditor of the Borrowers in the amount of such interest or participating
interest, as the case may be.
2.12 Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrowers agree that they shall use such proceeds) to pay
revolving credit loans of and to finance capital expenditures of the
Subsidiaries of Charter Holdings.
2.13 Rollover. (a) If, on the Initial Maturity Date, the
Bridge Advances shall not have been prepaid or repaid in full, then, subject to
the terms contained herein and the satisfaction of the conditions set forth
below, each Bridge Advance then outstanding shall be converted (the "Rollover")
into a term advance (each, a "Term Advance"), each in a principal amount equal
to the principal amount of such Bridge Advance. Any accrued and unpaid interest
on the Bridge Advances outstanding immediately prior to the Rollover shall be
due and payable prior to the consummation of the Rollover. Unless otherwise
specified herein, the Term Advances shall have the same terms, and shall be
governed by the provisions of this Agreement to the same extent, as the Bridge
Advances.
(b) On and after the Initial Maturity Date, a Lender may, upon
at least five Business Days' notice, request, in connection with an assignment
of such Lender's Term Advances to a non-Affiliate of such Lender, that the
Borrowers exchange the Term Advances owing to such Lender for senior exchange
notes (each, a "Rollover Note") in an aggregate principal amount equal to the
aggregate principal amount of such Term Advances. The Borrowers shall not have
any obligation to exchange Term Advances for Rollover Notes until one or more
Lenders have made such request with respect to at least $25 million aggregate
principal amount of Term Advances. Each Rollover Note shall bear interest at a
fixed rate (as determined by the Administrative Agent whose determination shall
be conclusive and binding for all purposes, absent manifest error) equal to the
greater of (x) the Applicable Rate in respect of Term Advances on the date of
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issuance of such Rollover Note and (y) the bid-side yield (as determined by the
Administrative Agent whose determination shall be conclusive and binding for all
purposes, absent manifest error) on the Senior Notes as of the date immediately
prior to the date of issuance of such Rollover Notes, provided that in no event
shall the interest rate on any Rollover Note be less than 9.0% or greater than
15.0% per annum.
(c) With respect to any Rollover Notes issued, the Rollover
Indenture will govern the Rollover Notes in lieu of this Agreement.
(d) The obligation of the Lenders to consummate the Rollover
shall be subject to the following conditions precedent:
(i) No Conversion Default shall have occurred and be
continuing;
(ii) The Rollover would not violate the terms of any
order, decree, injunction or judgment entered by a court of competent
jurisdiction;
(iii) The Borrowers shall have paid all accrued fees
and expenses arising out of the transactions contemplated by this Agreement and
the Loan Documents (including the accrued fees and expenses of counsel);
(iv) The Lenders shall have received each of the
documents required to be delivered pursuant to Section 2.13(e); and
(v) The Rollover Indenture and the Registration
Rights Agreement shall have been duly executed and delivered pursuant to Section
5.11, and the Borrowers shall have complied in all material respects with their
obligations under the Registration Rights Agreement to file, and use
commercially reasonable efforts to cause to become effective, a shelf
registration statement with respect to the Rollover Notes in accordance with the
terms of the Registration Rights Agreement.
(e) On the Initial Maturity Date, the Borrowers shall deliver
to the Administrative Agent the following documents, each dated the Initial
Maturity Date and duly executed or authenticated, as the case may be, by each
Person party thereto:
(i) The Term Notes;
(ii) Such other documents, certificates, legal
opinions and certified copies of such resolutions, consents and approvals as may
be necessary or desirable in connection with the consummation of the Rollover
and as may be reasonably requested by the Administrative Agent; and
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(iii) A favorable opinion of counsel to the Borrowers, in form
and substance satisfactory to the Lenders, as to such matters as the
Administrative Agent may reasonably request.
SECTION 3.
CONDITIONS OF LENDING
3.1 Conditions Precedent to Initial Borrowing. The obligation of each
Lender to make an Advance on the occasion of the initial Borrowing hereunder is
subject to the satisfaction of the following conditions precedent before or
concurrently with the initial Borrowing:
(a) The Administrative Agent shall have received on or before the day
of the initial Borrowing the following, each dated such day (unless otherwise
specified), in form and substance satisfactory to the Administrative Agent
(unless otherwise specified) and (except for the Notes) in sufficient copies for
each Lender:
(i) The Bridge Notes payable to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of
Directors of each Borrower and of the manager's consent of CCI approving each
Loan Document, the Rollover Indenture and the Registration Rights Agreement, and
of all documents evidencing other necessary corporate and limited liability
company action and governmental and other third party approvals and consents, if
any, with respect to each Loan Document to which it is or is to be a party and
each of the Rollover Indenture and the Registration Rights Agreement.
(iii) A copy of a certificate of the Secretary of State of the
State of Delaware, dated reasonably near the date of the initial Borrowing,
certifying (A) as to a true and correct copy of the charter or certificate of
formation of such Borrower and each amendment thereto on file in such
Secretary's office and (B) that (1) such amendments are the only amendments to
such Borrower's charter or certificate of formation on file in such Secretary's
office, (2) such Borrower has paid all franchise taxes to the date of such
certificate and (C) such Borrower is duly formed and in good standing or
presently subsisting under the laws of the State of the jurisdiction of its
organization.
(iv) A certificate of each Borrower, signed on behalf of such
Borrower by its President or a Vice President and its Secretary or any Assistant
Secretary, dated the date of the initial Borrowing (the statements made in which
certificate shall be true on and as of the date of the initial Borrowing),
certifying as to (A) the absence of any amendments to the charter or certificate
of formation of such
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Borrower since the date of the Secretary of State's certificate referred to in
Section 3.1(a)(iii), (B) a true and correct copy of the bylaws or limited
company agreement of such Borrower as in effect on the date on which the
resolutions referred to in Section 3.1(a)(ii) were adopted and on the date of
the initial Borrowing, (C) the due organization and good standing or valid
existence of such Borrower as a corporation or limited liability company
organized under the laws of the jurisdiction of its organization, and the
absence of any proceeding for the dissolution or liquidation of such Borrower,
(D) the truth of the representations and warranties contained in the Loan
Documents as though made on and as of the date of the initial Borrowing and (E)
the absence of any event occurring and continuing, or resulting from the initial
Borrowing, that constitutes a Default.
(v) A certificate of the Secretary or an Assistant
Secretary of each Borrower certifying the names and true signatures of the
officers of such Borrower authorized to sign each Loan Document, the Rollover
Indenture, the Registration Rights Agreement, and the other documents to be
delivered hereunder and thereunder.
(vi) Such financial, business and other information
regarding each Borrower and its Subsidiaries as the Lenders shall have
requested, including, without limitation, information as to possible contingent
liabilities, tax matters, environmental matters, obligations under Plans and
Multiemployer Plans, collective bargaining agreements and other arrangements
with employees, audited annual financial statements dated December 31, 1999, and
interim financial statements dated the end of the most recent fiscal quarter for
which financial statements are available (or, in the event the Lenders' due
diligence review reveals material changes since such financial statements, as of
a later date within 45 days of the day of the initial Borrowing).
(vii) A Notice of Borrowing relating to the initial
Borrowing.
(viii) A favorable opinion of Irell & Manella LLP,
counsel for the Borrowers, in substantially the form of Exhibit F hereto and as
to such other matters as any Lender through the Administrative Agent may
reasonably request.
(b) The Administrative Agent shall be satisfied, in its
reasonable judgment, that there is adequate availability under the Existing
Credit Agreements.
(c) The Borrowers shall have paid all accrued fees of the
Agents and the Lenders and all accrued expenses of the Agents (including the
accrued fees and expenses of counsel to the Administrative Agent).
(d) On and after April 28, 2000, (i) no downgrading (other
than a downgrading resulting from the execution of the Commitment Letter or this
Agreement, or from the Borrowings hereunder) shall have occurred in the rating
accorded debt
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securities of either Borrower by any "nationally recognized statistical rating
organization" (as such term is defined by the SEC for purposes of Rule 436(g)(2)
under the Securities Act of 1933, as amended), and (ii) no such organization
shall have publicly announced that it has either Borrower under surveillance or
review, with possible negative implications, excluding any such surveillance or
review caused by the execution of the Commitment Letter or this Agreement, or
the Borrowings hereunder.
(e) There shall not have occurred any disruption or adverse
change, as determined by the Administrative Agent in its sole discretion, in the
financial or capital markets generally, or in the markets for bridge loan
syndication, high yield debt or equity securities in particular or affecting the
syndication or a funding of bridge loans (or the refinancing thereof) that may
have a material adverse impact on the ability to sell or place debt securities
or to syndicate the Advances.
3.2 Conditions Precedent to Each Borrowing. The obligation of
each Lender to make an Advance on the occasion of each Borrowing (including the
initial Borrowing), shall be subject to the further conditions precedent that:
(a) On the date of such Borrowing the following statements
shall be true (the giving of each Notice of Borrowing and the acceptance by the
Borrowers of the proceeds of such Borrowing shall constitute a representation
and warranty by the Borrowers that both on the date of such notice and on the
date of such Borrowing such statements are true):
(i) The representations and warranties contained in
each Loan Document are correct on and as of such date, before and after giving
effect to such Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date, other than any such representations or
warranties that, by their terms, refer to a specific date other than the date of
such Borrowing, in which case such representations and warranties shall be
correct as of such specific date.
(ii) No Default has occurred and is continuing, or
would result from such Borrowing or from the application of the proceeds
therefrom.
(b) Before giving effect to such Borrowing, there shall have
occurred no (i) material change in the capital stock, liabilities or long-term
Indebtedness of the Borrowers (other than increases in liabilities and long-term
Indebtedness contemplated by and set forth in the supplemental unaudited pro
forma data in Form 10-K of Charter Holdings for the fiscal year ended December
31, 1999 and those incurred in the ordinary course of business consistent with
past practice since December 31, 1999), (ii) material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity, results
of operations or prospects of the Borrowers since December 31, 1999, (iii)
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material inaccuracy in the financial statements of Charter Holdings for the
period ended December 31, 1999 and (iv) Change of Control.
3.3 Determinations Under Section 3.1. For purposes of
determining compliance with the conditions specified in Section 3.1, each Lender
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Lenders unless an officer of
the Administrative Agent responsible for the transactions contemplated by the
Loan Documents shall have received notice from such Lender prior to the initial
Borrowing specifying its objection thereto.
SECTION 4.
REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this
Agreement and to make the Advances, each Borrower hereby jointly and severally
represents and warrants to the Agents and each Lender on the date hereof and on
each Borrowing Date that:
4.1 Financial Condition. The unaudited consolidated balance
sheet of Charter Holdings as at June 30, 2000, and the related unaudited
consolidated statements of operations and cash flows for the six-month period
ended on such date, have been prepared based on the best information available
to Charter Holdings as of the date of delivery thereof, and present fairly the
consolidated financial condition of Charter Holdings as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
six-month period then ended (subject to normal year-end audit adjustments). All
such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout the
periods involved. Each of the Borrowers and the Subsidiaries do not have any
material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including any interest rate or foreign currency swap or exchange transaction or
other obligation in respect of derivatives, that are not reflected in the most
recent financial statements referred to in this paragraph.
4.2 No Change. Since December 31, 1999, there has been no
event, development or circumstance that has had or could reasonably be
expected to have a Material Adverse Effect.
4.3 Existence; Compliance with Law. Each of the Borrowers and
their "significant subsidiaries" (as defined in Rule 1-02 of Regulation S-X) (a)
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the power and authority, and the legal
right, to own and operate its
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property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged, (c) is duly qualified as a
foreign entity and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law, in each case with respect to clauses (c) and (d), except as could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
4.4 Power; Authorization; Enforceable Obligations. Each
Borrower has the power and authority, and the legal right, to make, deliver and
perform the Loan Documents to which it is a party, the Rollover Indenture and
the Registration Rights Agreement, and to borrow hereunder. Each Borrower has
taken all necessary action to authorize the execution, delivery and performance
of the Loan Documents, the Rollover Indenture and the Registration Rights
Agreement, and to authorize the Borrowings on the terms and conditions of this
Agreement. Except for the manager's consent of CCI, no consent or authorization
of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the Borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Loan Documents, the Rollover
Indenture and the Registration Rights Agreement. Each Loan Document has been or
will be duly executed and delivered on behalf of each Borrower. This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of each Borrower enforceable against each
such Borrower in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of
this Agreement, the other Loan Documents, the Rollover Indenture and the
Registration Rights Agreement, the Borrowings hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or any material
Contractual Obligation of the Borrowers or any of their Subsidiaries and will
not result in, or require, the creation or imposition of any Lien on any of
their respective properties or revenues pursuant to any Requirement of Law or
any such Contractual Obligation.
4.6 Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrowers, threatened by or against the Borrowers or any of
their Subsidiaries or against any of their respective properties or revenues (a)
with respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) that could reasonably be expected to have
a Material Adverse Effect.
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4.7 No Default. Neither Borrower nor any of its Subsidiaries
is in default under or with respect to any of its Contractual Obligations in any
respect that could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Borrowers and
their Subsidiaries has good and sufficient legal title to, or a valid leasehold
interest in, all its material real property, and good title to, or a valid
leasehold interest in, all its other material property, and none of such
property is subject to any Lien except as permitted by Section 6.3.
4.9 Intellectual Property. Each of the Borrowers and each of
their Subsidiaries owns, or is licensed to use, all material Intellectual
Property necessary for the conduct of its business as currently conducted. No
claim has been asserted and is pending by any Person challenging or questioning
the use, validity or effectiveness of any Intellectual Property owned or
licensed by either of the Borrowers or any of their Subsidiaries, nor does
either Borrower know of any valid basis for any such claim, except for any claim
that could not reasonably be expected to have a Material Adverse Effect. The use
of Intellectual Property by the Borrowers and their Subsidiaries does not
infringe on the rights of any Person, except for any infringement that could not
reasonably be expected to have a Material Adverse Effect.
4.10 Taxes. Each of the Borrowers and each of their
Subsidiaries has filed or caused to be filed all federal, state and other
material tax returns that are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than (i) any the amount
or validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of either Borrower or their Subsidiaries, as the case may
be and (ii) any such filings, including amounts that may be payable pursuant
thereto, which, individually and in the aggregate, could not reasonably be
expected to have a Material Adverse Effect). To the knowledge of the Borrowers,
no tax Lien has been filed, and no claim is being asserted, with respect to any
such tax, fee or other charge, except for any tax lien or any such claim that
could not reasonably be expected to have a Material Adverse Effect.
4.11 Federal Regulations. No part of the proceeds of any
Advances will be used for "buying" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect or for any purpose that violates the
provisions of the regulations of the Board. If requested by any Lender or the
Administrative Agent, the Borrowers will furnish to the
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Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1, referred to in Regulation U.
4.12 Labor Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes or other labor disputes against either of the Borrowers or any of their
Subsidiaries pending or, to the knowledge of the Borrowers, threatened; (b)
hours worked by and payment made to employees of the Borrowers and their
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Requirement of Law dealing with such matters; and (c) all
payments due from the Borrowers or any of their Subsidiaries on account of
employee health and welfare insurance have been paid or accrued as a liability
on the books of the relevant Borrower or the relevant Subsidiary.
4.13 ERISA. Each Plan is in material compliance with the
applicable provisions of ERISA and the Code. No Plan is a Multiemployer Plan or
a "defined benefit plan" (as defined in ERISA). Each Commonly Controlled Entity
has met all of the funding standards applicable to all Plans, and no condition
exists which would permit the institution of proceedings to terminate any Plan
under Section 4042 of ERISA.
4.14 Investment Company Act; Other Regulations. No Borrower is
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No
Borrower is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
4.15 Use of Proceeds. The proceeds of the Advances shall be
used to repay revolving credit loans of and to finance capital expenditures of
the Subsidiaries of Charter Holdings.
4.16 Environmental Matters. Except as, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated
by either of the Borrowers or any of their Subsidiaries (the
"Properties") do not contain, and have not previously contained, any
Materials of Environmental Concern in amounts or concentrations or
under circumstances that constitute or constituted a violation of, or
could give rise to liability under, any Environmental Law;
(b) neither Borrower nor any of their Subsidiaries has
received or is aware of any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard
to any of the Properties or the business operated by either Borrower or
any of their Subsidiaries (the "Business"), nor does either
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Borrower have knowledge or reason to believe that any such notice will
be received or is being threatened;
(c) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a
manner or to a location that could give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative
action is pending or, to the knowledge of either Borrower, threatened,
under any Environmental Law to which either Borrower or any of their
Subsidiaries is or will be named as a party with respect to the
Properties or the Business, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business;
(e) there has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of either of the Borrowers or
any of their Subsidiaries in connection with the Properties or
otherwise in connection with the Business, in violation of or in
amounts or in a manner that could give rise to liability under
Environmental Laws;
(f) the Properties and all operations at the Properties are
in compliance, and have in the last five years been in compliance, with
all applicable Environmental Laws, and there is no contamination at,
under or about the Properties or violation of any Environmental Law
with respect to the Properties or the Business; and
(g) neither Borrower nor any of their Subsidiaries have
assumed any liability of any other Person under Environmental Laws.
4.17 Certain Cable Television Matters. Except as, in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect:
(a) (i) Each of the Borrowers and their Subsidiaries possess
all Authorizations necessary to own, operate and construct the CATV
Systems or otherwise for the operations of their businesses and are not
in violation thereof and (ii) all such Authorizations are in full force
and effect and no event has occurred that permits, or after notice or
lapse of time could permit, the revocation, termination or material and
adverse modification of any such Authorization;
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(b) neither Borrower nor any of their Subsidiaries is in
violation of any duty or obligation required by the Communications Act
of 1934, as amended, or any FCC rule or regulation applicable to the
operation of any portion of any of the CATV Systems;
(c) (i) there is not pending or, to the best knowledge of
either Borrower, threatened, any action by the FCC to revoke, cancel,
suspend or refuse to renew any FCC License held by either Borrower or
any of their Subsidiaries and (ii) there is not pending or, to the best
knowledge of either Borrower, threatened, any action by the FCC to
modify adversely, revoke, cancel, suspend or refuse to renew any other
Authorization; and
(d) there is not issued or outstanding or, to the best
knowledge of either Borrower, threatened, any notice of any hearing,
violation or complaint against either Borrower or any of their
Subsidiaries with respect to the operation of any portion of the CATV
Systems and neither Borrower has any knowledge that any Person intends
to contest renewal of any Authorization.
4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document or any other document,
certificate or statement furnished by or on behalf of either Borrower to the
Agents or the Lenders, or any of them, for use in connection with the
transactions contemplated by this Agreement or the other Loan Documents, as
supplemented from time to time prior to the date this representation and
warranty is made or deemed made, contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
contained herein or therein not misleading. There is no fact known to either
Borrower that could reasonably be expected to have a Material Adverse Effect
that has not been expressly disclosed herein, in the other Loan Documents or in
any other documents, certificates and statements furnished to the Agents and the
Lenders for use in connection with the transactions contemplated hereby and by
the other Loan Documents, the Rollover Indenture and the Registration Rights
Agreement.
4.19 Solvency. Each of the Borrowers is, and after giving
effect to the Borrowings referred to herein will be and will continue to be,
Solvent.
SECTION 5.
AFFIRMATIVE COVENANTS
The Borrowers hereby agree that, so long as any Advance or any
other Obligation of either Borrower under any Loan Document shall remain unpaid
or any Lender shall have any Commitment hereunder, each of the Borrowers shall,
and shall cause each Subsidiary of the Borrowers to:
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5.1 Financial Statements. Furnish to the Administrative Agent
(with sufficient copies for each Lender):
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of each Borrower, a copy of the
audited consolidated balance sheet of such Borrower and its
consolidated Subsidiaries as at the end of such year and the related
audited consolidated statements of income and of cash flows for such
year, setting forth in each case in comparative form the figures for
the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, or any other material adverse exception or qualification,
by Arthur Andersen LLP or other independent certified public
accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each
fiscal year of each Borrower, the unaudited consolidated balance sheet
of such Borrower and its consolidated Subsidiaries as at the end of
such quarter and the related unaudited consolidated statements of
income and of cash flows for such quarter and the portion of the fiscal
year through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
5.2 Certificates; Other Information. Furnish to the
Administrative Agent (with sufficient copies for each Lender), concurrently with
the delivery of any financial statements pursuant to Section 5.1, (i) a
certificate of a Responsible Officer stating that, to the best of each such
Responsible Officer's knowledge, each Borrower during such period has observed
or performed all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and the other Loan Documents to be
observed, performed or satisfied by it, and that such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as specified in
such certificate and (ii) a Compliance Certificate containing all information
and calculations necessary for determining compliance by the Borrowers and the
Subsidiaries with the provisions of this Agreement referred to therein as of the
last day of the fiscal quarter or fiscal year of the Borrowers and the
Subsidiaries of Charter Holdings.
Furnish promptly to any Lender such additional financial and
other information as such Lender may from time to time reasonably request.
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5.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of either Borrower or their Subsidiaries, as the case may
be.
5.4 Maintenance of Existence; Compliance. (a) (i) Preserve,
renew and keep in full force and effect its existence and (ii) take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business, except, in each case, as
otherwise permitted by Sections 6.4 and 6.5 and except, in the case of clause
(ii) above, to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect; and (b) comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.5 Maintenance of Property; Insurance. (a) Keep all material
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted and (b) maintain with reputable
insurance companies insurance on all its material property in at least such
amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured
against in the same general area by companies engaged in the same or a similar
business.
5.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books and records in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities and (b) permit
representatives of any Lender, coordinated through the Administrative Agent, to
visit and inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time and as often as may reasonably
be desired and to discuss the business, operations, properties and financial and
other condition of the Borrowers and their Subsidiaries with officers and
employees of the Borrowers and their Subsidiaries and with their independent
certified public accountants.
5.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of either Borrower or any of their Subsidiaries or (ii)
litigation, investigation or
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proceeding that may exist at any time between either Borrower or any of
their Subsidiaries and any Governmental Authority, that, in either
case, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding commenced against either
Borrower or any of their Subsidiaries which could reasonably be
expected to result in a liability of $50,000,000 or more to the extent
not covered by insurance or which could reasonably be expected to have
a Material Adverse Effect;
(d) the following events, as soon as possible and in any event
within 30 days after either Borrower knows or has reason to know
thereof: (i) the occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal
from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking
of any other action by the PBGC or either Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the termination, Reorganization or Insolvency of,
any Plan; and
(e) any other development or event that has had or could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the relevant Borrower or the relevant Subsidiary
proposes to take with respect thereto.
5.8 Environmental Laws. (a) Except as, in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, comply with,
and ensure compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws, and obtain and comply with and maintain, and
ensure that all tenants and subtenants obtain and comply with and maintain, any
and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws.
(b) Except as, in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, conduct and complete all
investigations, studies, sampling and testing, and all remedial, removal and
other actions required under Environmental Laws and promptly comply with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws.
5.9 ERISA Reports. Furnish to the Administrative Agent as soon
as available to either Borrower the following items with respect to any Plan:
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(a) any request for a waiver of the funding standards or an
extension of the amortization period;
(b) any reportable event (as defined in Section 4043 of
ERISA), unless the notice requirement with respect thereto has been
waived by regulation;
(c) any notice received by any Commonly Controlled Entity
that the PBGC has instituted or intends to institute proceedings to
terminate any Plan, or that any Multiemployer Plan is Insolvent or in
Reorganization;
(d) notice of the possibility of the termination of any Plan
by its administrator pursuant to Section 4041 of ERISA; and
(e) notice of the intention of any Commonly Controlled Entity
to withdraw, in whole or in part, from any Multiemployer Plan.
5.10 ERISA, etc. Comply in all material respects with the
provisions of ERISA and the Code applicable to each Plan. Each of the Borrowers
and their Subsidiaries will meet all minimum funding requirements applicable to
them with respect to any Plan pursuant to Section 302 of ERISA or Section 412 of
the Code, without giving effect to any waivers of such requirements or
extensions of the related amortization periods which may be granted. At no time
shall the Accumulated Benefit Obligations under any Plan that is not a
Multiemployer Plan exceed the fair market value of the assets of such Plan
allocable to such benefits by more than $10,000,000. After the date of this
Agreement, the Borrowers and their Subsidiaries will not withdraw, in whole or
in part, from any Multiemployer Plan so as to give rise to withdrawal liability
exceeding $40,000,000 in the aggregate for the Borrowers and all of their
Subsidiaries. At no time shall the actuarial present value of unfunded
liabilities for post-employment health care benefits, whether or not provided
under a Plan, calculated in a manner consistent with Statement No. 106 of the
Financial Accounting Standards Board, exceed $40,000,000 in the aggregate for
the Borrowers and all of their Subsidiaries.
5.11 Rollover Indenture and Registration Rights Agreement.
Within 90 days after the Effective Date, (A) (i) duly execute and deliver, and
cause a bank or trust company acting as trustee thereunder to execute and
deliver, the Rollover Indenture in form and substance satisfactory to the
Administrative Agent and (ii) duly execute and deliver the Registration Rights
Agreement in form and substance satisfactory to the Administrative Agent and (B)
deliver to the Administrative Agent executed original copies thereof for the
Administrative Agent and its counsel and sufficient copies thereof for each
Lender.
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SECTION 6.
NEGATIVE COVENANTS
The Borrowers hereby agree that, so long as any Advance or any
other Obligation of either Borrower under any Loan Document shall remain unpaid
or any Lender shall have any Commitment hereunder, each of the Borrowers shall
not, and shall not permit any Subsidiary of the Borrowers to, directly or
indirectly:
6.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio determined as of the last day of any fiscal quarter of Charter
Holdings ending during any period set forth below to exceed the ratio set forth
below opposite such period:
<TABLE>
<CAPTION>
Period Consolidated Leverage Ratio
------- ---------------------------
<S> <C>
through 12/30/01 5.25 to 1.0
12/31/01 - 12/30/02 4.75 to 1.0
12/31/02 - 12/30/03 4.25 to 1.0
12/31/03 and thereafter 4.00 to 1.0
</TABLE>
(b) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio determined as of the last day of any fiscal
quarter ending during any period set forth below to be less than the ratio set
forth below opposite such period:
<TABLE>
<CAPTION>
Period Consolidated Interest Coverage Ratio
------ ------------------------------------
<S> <C>
through 06/29/02 1.50 to 1.0
06/30/02 - 06/29/05 1.75 to 1.0
06/30/05 and thereafter 2.00 to 1.0.
</TABLE>
6.2 Indebtedness. Create, issue, incur, assume, become liable
in respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrowers pursuant to any Loan
Document;
(b) Indebtedness of Charter Holdings to any Subsidiary of
Charter Holdings and of any Subsidiary of Charter Holdings to Charter
Holdings or any other Subsidiary of Charter Holdings, provided that if
Charter Holdings is the obligor on such Indebtedness, such Indebtedness
must be expressly subordinated to the prior payment in full in cash of
all Obligations of the Borrowers under the Loan Documents;
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<PAGE> 51
(c) Guarantee Obligations incurred in the ordinary course of
business by any Subsidiary of Charter Holdings of obligations of any
Subsidiary of Charter Holdings;
(d) Indebtedness in existence on the date of this Agreement
and set forth on Schedule 6.2(d);
(e) Indebtedness of any Subsidiary of Charter Holdings that
constitutes revolving credit loans and that is incurred pursuant to the
Existing Credit Agreement to which such Subsidiary is a party;
(f) additional Indebtedness of Falcon Cable Communications,
LLC incurred pursuant to the Existing CC VII Credit Agreement in an
aggregate principal amount not to exceed $590,000,000;
(g) Indebtedness incurred by any Subsidiary of Charter
Holdings pursuant to or permitted under the Existing Credit Agreement
to which such Subsidiary is a party or is subject so long as none of
the Borrowers or their Subsidiaries receives cash proceeds or Cash
Equivalents in connection with such incurrence;
(h) Indebtedness of the Borrowers of the type described in
clauses (a) and (c) of the definition of Indebtedness as long as (i)
the incurrence of such Indebtedness is permitted by each of the
Existing Indentures, (ii) the Net Cash Proceeds received from the
incurrence of such Indebtedness are applied to the prepayment of
Advances as provided in Section 2.5(b) and (iii) if any Advances or
Commitments would be outstanding after giving pro forma effect to such
incurrence and prepayment, such Indebtedness has a final maturity date
later than the Final Maturity Date and is not subject to any sinking
fund or analogous provisions; and
(i) Indebtedness incurred by Falcon Cable Communications, LLC
to refinance or replace Indebtedness under the Existing CC VII Credit
Agreement that is existing on the date of this Agreement or incurred
thereafter in compliance with another provision of this Agreement as
long as such Indebtedness is incurred pursuant to the amended and
restated credit agreement or the replacement credit agreement specified
in the proviso of Section 6.8(a).
6.3 Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, whether now owned or hereafter acquired, except:
(a) in the case of any Subsidiary of Charter Holdings, Liens
existing, created or otherwise permitted under the Existing Credit
Agreement to which such Subsidiary is a party or is subject to,
provided, however, that, anything to the
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contrary herein notwithstanding, there shall be no restriction on the
ability of any Subsidiary of Charter Holdings to grant further Liens on
its properties to secure its obligations under the Existing Credit
Agreement to which it is a party or is subject; and
(b) in the case of Charter Holdings, Liens existing, created
or otherwise permitted under the Existing Charter Operating Credit
Agreement or created or otherwise permitted under the Existing
Indentures.
6.4 Fundamental Changes. Enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or substantially all of its
property or business, except that:
(a) any Subsidiary of Charter Holdings may be merged or
consolidated with or into any Subsidiary of Charter Holdings;
(b) any Subsidiary of Charter Holdings that exists on the date
of this Agreement and is subject to any Existing Credit Agreement may
be merged or consolidated with or into Charter Holdings, provided that
Charter Holdings shall be the continuing or surviving entity;
(c) any Subsidiary of Charter Holdings may Dispose of any or
all of its assets (upon voluntary liquidation or otherwise) to any
Subsidiary of Charter Holdings that is a party to or is subject to an
Existing Credit Agreement; and
(d) any Shell Subsidiary may be dissolved.
6.5 Asset Sales. (a) Consummate an Asset Sale unless
(i) either Borrower or any of their Subsidiaries
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,
(ii) such fair market value is determined by the board of
directors of Charter Holdings and evidenced by a resolution of such
board of directors set forth in an officers' certificate delivered to
the Administrative Agent,
(iii) at least 75% of the consideration for such Asset
Sale received by either Borrower or such Subsidiary is in the form of
cash or Cash Equivalents (except in the case of any Asset Sale that
constitutes an Exchange), and
(iv) an amount equal to 100% of the Net Cash Proceeds
from such Asset Sale is applied by the Borrowers or such Subsidiary,
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<PAGE> 53
(x) first, on the date that is 181 days (or on the first
day after the end of such longer period allowed, as of the date of
receipt of such Net Cash Proceeds, for like-kind exchanges under
Section 1031 of the Code) (or, in either case, on the next succeeding
Business Day) after the receipt of such Net Cash Proceeds, to the
extent a Subsidiary is required by the terms of the Existing Credit
Agreement to which it is party or is subject to repay Indebtedness
under such Existing Credit Agreement (assuming, for purposes of this
clause (x), that any deadline under the mandatory prepayment provisions
of such Existing Credit Agreement to deliver a notice to the effect
that such Subsidiary intends to reinvest any such Net Cash Proceeds to
acquire assets useful in such Subsidiary's business has then passed),
to repay Indebtedness of such Subsidiary outstanding under such
Existing Credit Agreement, provided that, in connection with such
repayment, such Subsidiary will retire such Indebtedness and will cause
the related loan commitment (if any) to be permanently reduced in an
amount equal to the principal amount so repaid, and
(y) second, within one Business Day after any such
payment is made, to the extent of the balance of the Net Cash Proceeds
from such Asset Sale after application thereof in accordance with the
foregoing clause (x) (the amount of such balance, "Excess Proceeds"),
to the prepayment of Advances as provided in Section 2.5(b), subject
(in the case of this clause (y)) to the following paragraph (b) to the
extent any portion of such Excess Proceeds constitutes Shared Excess
Proceeds (as hereinafter defined).
(b) If the Borrowers or any of their Subsidiaries would be
required by the Existing Indentures to make offers to purchase any Existing
Notes pursuant to the Existing Indentures with the amount of any Excess Proceeds
from such Asset Sale (notwithstanding any ability by the Borrowers or their
Subsidiaries to defer such offers to purchase pending the application of such
Excess Proceeds either to repay Indebtedness of Subsidiaries of Charter Holdings
or to reinvest any such Excess Proceeds as provided in the Existing Indentures),
an amount equal to 100% of the portion of such Excess Proceeds that would be
required to be applied under the Existing Indentures both to make offers to
purchase Existing Notes and to prepay Advances as provided in this Agreement
(such amount, "Shared Excess Proceeds") shall be applied by the Borrowers or
their Subsidiaries,
(i) first, within one Business Day after the application
of the Net Proceeds from such Asset Sale pursuant to the foregoing
clause (x) of Section 6.5(a)(iv), to the prepayment of Advances as
provided in Section 2.5(b) in an amount equal to the Shared Excess
Proceeds amount multiplied by a fraction, the numerator of which is the
outstanding principal amount of Advances and the denominator of which
is the sum of such outstanding principal amount of Advances and the
outstanding principal amount (or accreted value, in the case of
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<PAGE> 54
Existing Notes that are discount notes) of Existing Notes (the amount
calculated by subtracting the amount so applied to prepay Advances from
the Shared Excess Proceeds amount is referred to hereinafter as the
"Existing Notes Portion"),
(ii) second, to the extent that Charter Holdings
thereafter elects or is required by the terms of the Existing
Indentures to make an offer to purchase Existing Notes of any series,
to repurchase Existing Notes of such series validly tendered and not
withdrawn in aggregate principal amount up to the pro rata portion of
the Existing Notes Portion amount relative to such series of Existing
Notes, and
(iii) third, if the aggregate principal amount (or
accreted value, in the case of Existing Notes that are discount notes)
of Existing Notes of such series validly tendered and not withdrawn in
connection with such offer to purchase is less than the pro rata
portion of the Existing Notes Portion amount relative to such series of
Existing Notes, within one Business Day after the repurchase date in
respect of any such offer to purchase, to prepay Advances with the
balance of such Shared Excess Proceeds as provided in Section 2.5(b).
(c) Net Cash Proceeds, if any, from any Asset Sale that are
not applied in accordance with this Section 6.5 or that remain after
application thereof pursuant to this Section 6.5 shall be applied to
prepay Advances as provided in Section 2.5(b).
(d) Notwithstanding any other provision of this Agreement,
neither Borrower nor any Subsidiary of Charter Holdings shall
consummate any Asset Sale if such Asset Sale would contravene Section
7.5(e) of the Existing Charter Operating Credit Agreement, the Existing
CC VI Credit Agreement or the Existing CC VIII Credit Agreement,
Section 6.5(e) of the Existing CC V Credit Agreement or Section 7.11.3
of the Existing CC VII Credit Agreement; in each case as such Existing
Credit Agreement is in effect on the date of this Agreement.
6.6 Restricted Payments. Declare or pay any dividend (other
than dividends payable solely in common stock of the Person making such
dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any Equity Interests of either Borrower or
any Subsidiary, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of either Borrower or any Subsidiary
(collectively, "Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments to Charter
Holdings or to any Subsidiary;
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<PAGE> 55
(b) so long as no Default or Event of Default has occurred and
is continuing or would result therefrom, Charter Holdings may make
distributions to Holdco or direct payments to be used to repurchase,
redeem or otherwise acquire or retire for value any Equity Interests of
Holdco or CCI held by any member of management of Charter Holdings or
any of its Subsidiaries pursuant to any management equity subscription
agreement or stock option agreement in effect as of the date of this
Agreement, provided that the aggregate amount of such distributions
shall not exceed $10,000,000 in any fiscal year of the Charter
Holdings;
(c) Charter Holdings may make distributions to Holdco to
permit Holdco or CCI to pay (i) attorneys' fees, investment banking
fees, accountants' fees, underwriting discounts and commissions and
other customary fees and expenses actually incurred in connection with
any issuance, sale or incurrence by Holdco or CCI of Equity Interests
or Indebtedness (other than any such amounts customarily paid out of
the proceeds of transactions of such type), provided that such amounts
shall be allocated in an appropriate manner (determined after
consultation with the Administrative Agent) among the Borrowers and the
other Subsidiaries, if any, of the issuer or obligor in respect of such
Equity Interests or Indebtedness and (ii) other administrative expenses
(including legal, accounting, other professional fees and costs,
printing and other such fees and expenses) incurred in the ordinary
course of business, in an aggregate amount in the case of this clause
(ii) not to exceed $10,000,000 in any fiscal year; and
(d) in respect of any calendar year or portion thereof during
which Charter Holdings is a Flow-Through Entity, so long as no Default
or Event of Default has occurred and is continuing or would result
therefrom, Charter Holdings may make distributions (directly or
indirectly) to the direct or indirect holders of the Equity Interests
of Charter Holdings that are not Flow-Through Entities, in proportion
to their ownership interests, sufficient to permit each such holder to
pay income taxes that are required to be paid by it with respect to its
Equity Interests in Charter Holdings for the prior calendar year, as
estimated by Charter Holdings in good faith.
6.7 Investments. Make any advance, loan, extension of credit
(by way of guaranty or otherwise) or capital contribution to, or purchase any
Equity Interests, bonds, notes, debentures or other debt securities of, or any
assets constituting a significant part of a business unit of, or make any other
investment in, any Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit by any Subsidiary of Charter
Holdings in the ordinary course of business;
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<PAGE> 56
(b) investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 6.2(c);
(d) loans and advances to employees of any Subsidiary of
Charter Holdings in the ordinary course of business (including for
travel, entertainment and relocation expenses) in an aggregate amount
not to exceed $20,000,000 at any one time outstanding;
(e) Investments by either Borrower or any of its Subsidiaries
in Charter Holdings, Investments by Charter Holdings in any Subsidiary
with the proceeds of Advances and Investments by any Subsidiary of
Charter Holdings in any other Subsidiary of Charter Holdings; (f) an
acquisition by any Subsidiary of Charter Holdings of operating assets
(substantially all of which consist of cable systems), directly through
an asset acquisition or indirectly through the acquisition of 100% of
the Equity Interests of a Person substantially all of whose assets
consist of cable systems, provided that (i) no Default or Event of
Default shall have occurred and be continuing or would result therefrom
and (ii) such Subsidiary is permitted to make such acquisition pursuant
to the Existing Credit Agreement to which such Subsidiary is a party or
is subject;
(g) any Subsidiary of Charter Holdings may contribute cable
systems to any Non-Recourse Subsidiary so long as (i) such Disposition
is permitted pursuant to the Existing Credit Agreement to which such
Subsidiary is a party or is subject, (ii) no Default or Event of
Default shall have occurred and be continuing or would result therefrom
and (iii) after giving effect thereto, the Consolidated Leverage Ratio
shall be equal to or lower than the Consolidated Leverage Ratio in
effect immediately prior thereto; and
(h) in addition to Investments otherwise expressly permitted
by this Section, Investments by any Subsidiary of Charter Holdings in
an aggregate amount (valued at cost) not to exceed $175,000,000 during
the term of this Agreement.
6.8 Certain Payments and Modifications Relating to
Indebtedness and Management Fees. (a) Make or offer to make any payment,
prepayment, repurchase or redemption in respect of, or otherwise optionally or
voluntarily defease or segregate funds with respect to (collectively,
"prepayment"), any Indebtedness (x) described on Schedule 6.2(d) or (y) incurred
after the date of this Agreement, other than (i) the payment of scheduled
interest payments required to be made in cash, (ii) the payment by any
Subsidiary of revolving credit loans pursuant to the Existing Credit Agreement
to
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which it is a party (without any corresponding permanent reduction in the
revolving credit commitments thereunder), (iii) the scheduled or mandatory
repayment by any Subsidiary of principal of Indebtedness outstanding under the
Existing Credit Agreement to which it is party as required to be made by such
Subsidiary pursuant to such Existing Credit Agreement, (iv) the payment by any
Subsidiary of Charter Holdings of Indebtedness owing to Charter Holdings or to a
Subsidiary of Charter Holdings, (v) the prepayment by Falcon Cable
Communication, LLC of Indebtedness outstanding under the Existing CC VII Credit
Agreement in connection with any amendment and restatement or replacement
thereof as provided in Section 6.8(b) and (vi) any payment by any Subsidiary in
respect of any other Indebtedness as long as such payment does not result in any
permanent reduction in the commitments under the term loan or revolving credit
loan facilities of the Existing Credit Agreement to which such Subsidiary is
party (other than a permanent reduction resulting from a scheduled or mandatory
repayment pursuant to the foregoing clause (iii)).
(b) Amend, modify, waive or otherwise change, or consent or
agree to any amendment, modification, waiver or other change to, any of the
terms of any Indebtedness (including, without limitation, any Existing Credit
Agreement), other than any such amendment, modification, waiver or other change
that does not or could not reasonably be expected to adversely affect the
interests of the Lenders in any material respect; provided that the Existing CC
VII Credit Agreement may be amended and restated in its entirety or replaced
with a new credit agreement provided that (x) as a condition precedent to the
execution and delivery thereof, the Administrative Agent and one of the Initial
Lenders (other than Morgan Stanley) shall have reasonably determined (and
confirmed such determination in writing), which determination shall be
conclusive and binding for all purposes (absent manifest error), that the
covenants, agreements and other terms and conditions of such amended and
restated credit agreement or replacement credit agreement are substantially
similar to those set forth in each of the other Existing Credit Agreements and
(y) the Existing CC VII Credit Agreement may be so amended and restated or
replaced only once; provided further that any amendment to any Existing Credit
Agreement to provide for additional Liens to secure obligations thereunder shall
not be deemed in any event to be adverse to the interests of the Lenders
hereunder in any material respect.
(c) Make, agree to make or expense any payment in respect of
management fees or under the Management Fee Agreements (other than reimbursement
by any Subsidiary of Charter Holdings to Holdco or CCI of expenses in respect of
equipment, services or network assets acquired by Holdco or CCI on behalf of
such Subsidiary in the ordinary course of business), directly or indirectly,
except that any Subsidiary of Charter Holdings may pay management fees pursuant
to the Management Fee Agreement to which it is a party in accordance with the
Existing Credit Agreement to which it is a party or is subject.
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(d) Amend, modify, waive or otherwise change, or consent or
agree to any amendment, modification, waiver or other change to, any of the
terms of any Management Fee Agreement, other than any such amendment,
modification, waiver or other change that does not or could not reasonably be
expected to adversely affect the interests of the Lenders in any material
respect.
6.9 Transactions with Affiliates. Enter into any transaction,
including any purchase, sale, lease or exchange of property, the rendering of
any service or the payment of any management, advisory or similar fees, with any
Affiliate (other than Charter Holdings or any Subsidiary of Charter Holdings)
unless such transaction is (a) not prohibited under this Agreement, (b) in the
ordinary course of business of Charter Holdings or such Subsidiary, as the case
may be, and (c) upon fair and reasonable terms no less favorable to Charter
Holdings or such Subsidiary, as the case may be, than it would obtain in a
comparable arm's length transaction with a Person that is not an Affiliate. The
foregoing restrictions shall not apply to transactions expressly permitted by
Section 6.6 or Section 6.8(c).
6.10 Sales and Leasebacks. Enter into any arrangement with any
Person (other than Subsidiaries of Charter Holdings) providing for the leasing
by either Borrower or any Subsidiary of real or personal property that has been
or is to be sold or transferred by such Borrower or such Subsidiary to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of such
Borrower or such Subsidiary (a "Sale Leaseback Transaction"), provided that any
Subsidiary of Charter Holdings may enter into a Sale Leaseback Transaction if
such Sale Leaseback Transaction is permitted pursuant to the Existing Credit
Agreement to which it is a party or is subject.
6.11 Changes in Fiscal Periods. Permit any change to the
fiscal year end of either Borrower or any Subsidiary or change either Borrower's
or any Subsidiary's method of determining fiscal quarters.
6.12 Negative Pledge Clauses. Enter into or suffer to exist or
become effective any agreement that prohibits or limits the ability of either
Borrower or any of its Subsidiaries to create, incur, assume or suffer to exist
any Lien upon any of its property or revenues, whether now owned or hereafter
acquired, to secure its obligations under the Loan Documents to which it is a
party (without regard to the amount of such obligations), other than (a) this
Agreement and the other Loan Documents, (b) any agreements governing any
purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in
which case, any prohibition or limitation shall only be effective against the
assets financed thereby), (c) pursuant to Contractual Obligations assumed in
connection with Investments by any Subsidiary of Holdings (but not created in
contemplation thereof) so long as the maximum aggregate liabilities of the
Subsidiaries of Charter Holdings pursuant thereto do not exceed $8,000,000 at
any time and (d) any agreements
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governing Indebtedness described on Schedule 6.2(d) as in effect on the date of
this Agreement.
6.13 Clauses Restricting Subsidiary Distributions. Enter into
or suffer to exist or become effective any consensual encumbrance or restriction
on the ability of any Subsidiary of either Borrower to (a) make Restricted
Payments in respect of any Equity Interests of such Subsidiary held by, or pay
any Indebtedness owed to, either Borrower or any other Subsidiary, (b) make
loans or advances to, or other Investments in, either Borrower or any other
Subsidiary or (c) transfer any of its assets to either Borrower or any other
Subsidiary, except for such encumbrances or restrictions existing under or by
reason of (i) any restrictions existing under the Loan Documents, (ii) any
restrictions with respect to a Subsidiary imposed pursuant to an agreement that
has been entered into in connection with the Disposition of all or substantially
all of the Equity Interests or assets of such Subsidiary in a transaction
otherwise permitted by this Agreement and (iii) any restrictions existing under
Indebtedness described on Schedule 6.2(d) as in effect on the date of this
Agreement.
6.14 Lines of Business. (a) Enter into any business, either
directly or through any Subsidiary, except for (i) those businesses in which
Charter Holdings and its Subsidiaries are significantly engaged on the date of
this Agreement and (ii) businesses which are reasonably similar or related
thereto or reasonable extensions thereof but not, in the case of this clause
(ii), in the aggregate, material to the overall business of Charter Holdings and
its Subsidiaries (collectively, "Permitted Lines of Business"), provided, that,
in any event, the Borrowers and their Subsidiaries will continue to be primarily
engaged in the businesses in which they are primarily engaged on the date of
this Agreement.
(b) In the case of Charter Capital, (i) conduct, transact or
otherwise engage in any business or operations other than those incidental to
its acting as a financing subsidiary of Charter Holdings in respect of the
Advances, the Existing Notes and any other Indebtedness that Charter Holdings is
permitted to incur pursuant to this Agreement or (ii) acquire or own Equity
Interests of any Person.
SECTION 7.
EVENTS OF DEFAULT
7.1 Events of Default. If any of the following events ("Events
of Default") shall occur and be continuing:
(a) either Borrower shall fail to pay any principal of any
Advance when due in accordance with the terms hereof; or either
Borrower shall fail to pay any interest on any Advance, or any other
amount payable hereunder or under any
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other Loan Document, within five days after any such interest or other
amount becomes due in accordance with the terms hereof;
(b) any representation or warranty made or deemed made by
either Borrower herein or in any other Loan Document or that is
contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement
or any such other Loan Document shall prove to have been inaccurate in
any material respect on or as of the date made or deemed made;
(c) either Borrower shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of Section
5.4(a), Section 5.7(a), Section 5.11 or Section 6 of this Agreement;
(d) either Borrower shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Loan Document (other than as provided in paragraphs (a) through
(c) of this Section 7.1), and such default shall continue unremedied
for a period of 30 days after notice to the Borrowers from the
Administrative Agent or the Required Lenders;
(e) either Borrower or any of their Subsidiaries shall (i)
default in making any payment of any principal of any Indebtedness
(including any Guarantee Obligation, but excluding the Advances) on the
scheduled or original due date with respect thereto; or (ii) default in
making any payment of any interest on any such Indebtedness beyond the
period of grace, if any, provided in the instrument or agreement under
which such Indebtedness was created; or (iii) default in the observance
or performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case
of any such Indebtedness constituting a Guarantee Obligation) to become
payable; provided that a default, event or condition described in
clause (i), (ii) or (iii) of this paragraph (e) shall not at any time
constitute an Event of Default unless, at such time, one or more
defaults, events or conditions of the type described in clauses (i),
(ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness of the Borrowers and their
Subsidiaries the outstanding principal amount of which exceeds in the
aggregate $25,000,000;
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(f) (i) either Borrower or any of their Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or
other similar official for it or for all or any substantial part of its
assets, or either Borrower or any of their Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there
shall be commenced against either Borrower or any of their Subsidiaries
any case, proceeding or other action of a nature referred to in clause
(i) above that (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall
be commenced against either Borrower or any of their Subsidiaries any
case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order
for any such relief that shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof;
or (iv) either Borrower or any of their Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) either Borrower or any of their Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due;
(g) (i) Commonly Controlled Entities shall fail to pay when
due amounts (other than amounts being contested in good faith through
appropriate proceedings) for which they shall have become liable under
Title IV of ERISA to pay to the PBGC or to a Plan, (ii) the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause
a trustee to be appointed to administer any Plan or a proceeding shall
be instituted by a fiduciary of any Plan against any Commonly
Controlled Entity to enforce Sections 515 or 4219(c)(5) of ERISA and
such proceeding shall not have been dismissed within 30 days
thereafter, or (iii) a condition shall exist which would require the
PBGC to obtain a decree adjudicating that any Plan must be terminated;
and in each case in clauses (i) through (iii) above, such event or
condition, together with all other such events or conditions, if any,
could, in the sole judgment of the Required Lenders, reasonably be
expected to result in a Material Adverse Effect;
(h) one or more judgments or decrees shall be entered against
either Borrower or any of their Subsidiaries involving in the aggregate
for all such Persons a liability (to the extent not paid or fully
covered by insurance as to which
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the relevant insurance company has acknowledged coverage) of
$50,000,000 or more, and all such judgments or decrees shall not have
been vacated, discharged, stayed or bonded pending appeal within 30
days from the entry thereof;
(i) a Change of Control shall occur;
(j) either Borrower or any of their Subsidiaries shall have
received a notice of termination or suspension with respect to any of
its CATV Franchises or CATV Systems from the FCC or any Governmental
Authority or other franchising authority or either Borrower or any of
their Subsidiaries or the grantors of any CATV Franchises or CATV
Systems shall fail to renew such CATV Franchises or CATV Systems at the
stated expiration thereof if the percentage represented by such CATV
Franchises or CATV Systems and any other CATV Franchises or CATV
Systems which are then so terminated, suspended or not renewed of
Consolidated Operating Cash Flow for the 12-month period preceding the
date of the termination, suspension or failure to renew, as the case
may be (giving pro forma effect to any acquisitions or Dispositions
that have occurred since the beginning of such 12-month period as if
such acquisitions or Dispositions had occurred at the beginning of such
12-month period), would exceed 10%, unless (i) an alternative CATV -
Franchise or CATV System in form and substance reasonably satisfactory
to the Required Lenders shall have been procured and come into effect
prior to or concurrently with the termination or expiration date of
such terminated, suspended or non-renewed CATV Franchise or CATV System
or (ii) such Borrower or such -- Subsidiary continues to operate and
retain the revenues received from such systems after the stated
termination or expiration and is engaged in negotiations to renew or
extend such franchise rights and obtains such renewal or extension
within one year following the stated termination or expiration,
provided that such negotiations have not been terminated by either
party thereto, such franchise rights -------- or the equivalent thereof
have not been awarded on an exclusive basis to a third Person and no
final determination (within the meaning of Section 635 of the
Communications Act of 1934, as amended) has been made that such
Borrower or such Subsidiary is not entitled to the renewal or extension
thereof; or
(k) the Net Cash Proceeds from the sale or issuance by CCI or
Holdco of Equity Interests or from the incurrence by CCI or Holdco of
Indebtedness are not promptly received by Charter Holdings (x) as an
equity contribution or Net Cash Proceeds from the sale or issuance of
its Equity Interests and, in either case, applied to prepay Advances as
provided in Section 2.5(b), or (y) as Net Cash Proceeds from the
incurrence of Indebtedness in compliance with Section 6.2(h).
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrowers
declare the
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Commitments of each Lender and the obligation of each Lender to make Advances to
be terminated, whereupon the same shall forthwith terminate, and (ii) shall at
the request, or may with the consent, of the Required Lenders, by notice to the
Borrowers declare the Notes, all interest thereon and all other amounts payable
under this Agreement and the other Loan Documents to be forthwith due and
payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or deemed entry of
an order for relief with respect to either Borrower under the Federal Bankruptcy
Code, (x) the Commitments of each Lender and the obligation of each Lender to
make Advances shall automatically be terminated and (y) the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrowers.
SECTION 8.
THE AGENTS
8.1 Appointment. Each Lender hereby appoints and authorizes
each Agent to take such action as agent on its behalf and to exercise such
powers and discretion under this Agreement and the other Loan Document as are
delegated to such Agent by the terms of this Agreement and the other Loan
Documents, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of the Notes), no
Agent shall be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all Lenders and all holders of
Notes; provided, however, that no Agent shall be required to take any action
that exposes such Agent to personal liability or that is contrary to this
Agreement or applicable law. Each Agent agrees to give to each Lender prompt
notice of each notice, certificate and set of financial statements given to it
by the Borrowers pursuant to the terms of this Agreement.
8.2 Agents' Reliance, Etc. Neither any Agent nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of
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any other Agent, such Agent has received notice from the Administrative Agent
that it has received and accepted such Assignment and Acceptance, in each case
as provided in Section 9.7; (b) may consult with legal counsel (including
counsel for any Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan Document on the part of any Borrower or to inspect the property (including
the books and records) of any Borrower; (e) shall not be responsible to any
Lender for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
and (f) shall incur no liability under or in respect of any Loan Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, telecopy or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
8.3 Morgan Stanley and Affiliates. With respect to its
Commitment, the Advances made by it and the Notes issued to it, Morgan Stanley
shall have the same rights and powers under the Loan Documents as any other
Lender and may exercise the same as though it were not an Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Morgan Stanley in its individual capacity. Morgan Stanley and its affiliates may
accept deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, either Borrower, any of their Subsidiaries and any Person that may do
business with or own securities of any Borrower or any such Subsidiary, all as
if Morgan Stanley were not Agents and without any duty to account therefor to
the Lenders.
8.4 Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon any Agent or any other Lender and
based on the financial statements referred to in Section 4.1 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
8.5 Indemnification. (a) Each Lender severally agrees to
indemnify each Agent (to the extent not promptly reimbursed by the Borrowers)
from and against such Lender's ratable share (determined as provided below) of
any and all liabilities,
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obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against such Agent in any way relating to or
arising out of the Loan Documents or any action taken or omitted by such Agent
under the Loan Documents (collectively, the "Indemnified Costs"); provided,
however, that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct as found in a final, non-appealable judgment by a court of
competent jurisdiction. Without limitation of the foregoing, each Lender agrees
to reimburse each Agent promptly upon demand for its ratable share of any costs
and expenses (including, without limitation, fees and expenses of counsel)
payable by the Borrower under Section 9.5, to the extent that such Agent is not
promptly reimbursed for such costs and expenses by the Borrower. In the case of
any investigation, litigation or proceeding giving rise to any Indemnified
Costs, this Section 8.5 applies whether any such investigation, litigation or
proceeding is brought by any Lender or any other Person.
(b) For purposes of this Section 8.5, the Lenders' respective
ratable shares of any amount shall be determined, at any time, according to the
sum of (i) the aggregate principal amount of the Advances outstanding at such
time and owing to the Lenders and (ii) their respective Unused Bridge
Commitments at such time. The failure of any Lender to reimburse any Agent
promptly upon demand for its ratable share of any amount required to be paid by
the Lender to such Agent as provided herein shall not relieve any other Lender
of its obligation hereunder to reimburse such Agent for its ratable share of
such amount, but no Lender shall be responsible for the failure of any other
Lender to reimburse such Agent for such other Lender's ratable share of such
amount. Without prejudice to the survival of any other agreement of any Lender
hereunder, the agreement and obligations of each Lender contained in this
Section 8.5 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under the other Loan Documents.
8.6 Successor Agents. Any Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrowers, subject to the
appointment of a successor to such Agent, and may be removed at any time with or
without cause by the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent that is,
unless a Default has occurred and is continuing, reasonably acceptable to the
Borrowers. If no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States or of any State thereof and having a
combined capital and surplus of at least $250,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall succeed to and become
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vested with all the rights, powers, discretion, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under the Loan Documents. If within 45 days after written notice is
given of the retiring Agent's resignation or removal under this Section 8.6 no
successor Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (a) the retiring Agent's resignation or
removal shall become effective, (b) the retiring Agent shall thereupon be
discharged from its duties and obligations under the Loan Documents and (c) the
Required Lenders shall thereafter perform all duties of the retiring Agent under
the Loan Documents until such time, if any, as the Required Lenders appoint a
successor Agent as provided above. After any retiring Agent's resignation or
removal hereunder as Agent shall have become effective, the provisions of this
Section 8 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
SECTION 9.
MISCELLANEOUS
9.1 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor consent
to any departure by any Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Required Lenders, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that (A) no amendment,
waiver or consent shall, unless in writing and signed by all of the Lenders, do
any of the following at any time: (i) waive any of the conditions specified in
Section 3.2 or, in the case of the initial Borrowing, Section 3.1 or 3.2, (ii)
change the number of Lenders or the percentage of (x) the Commitments or (y) the
aggregate unpaid principal amount of the Advances that, in each case, shall be
required for the Lenders or any of them to take any action hereunder, (iii)
amend Section 2.11, Section 2.13 or this Section 9.1, (iv) increase the
Commitments of the Lenders, (v) reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, (vi) postpone any date for
any scheduled or mandatory payment of principal of, or interest on, the Notes
pursuant to Section 2.3 or 2.6 or any date fixed for payment of fees or other
amounts payable hereunder, or (vii) limit the liability of any Borrower under
any of the Loan Documents; (B) no amendment, waiver or consent shall, unless in
writing and signed by an Agent in addition to the Lenders required above to take
such action, affect the rights or duties of such Agent under this Agreement or
the other Loan Documents; (C) the proviso to Section 6.8(b) shall govern any
amendment and restatement in its entirety or replacement of the Existing CC VII
Credit Agreement as provided in such proviso and (D) the amendment and waiver
provisions of the Rollover Indenture and the Registration Rights Agreement shall
govern the amendment and waiver of such agreements if and when entered into.
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9.2 Notices. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered, if to
either Borrower, at their address at c/o Charter Communications Holdings, LLC,
12444 Powerscourt Drive, Suite 100, St. Louis, Missouri 63131, Attention: Kent
D. Kalkwarf; Fax No.: (314) 965-8793; if to any Initial Lender, at its Lending
Office specified opposite its name on Schedule I hereto; if to any other Lender,
at its Lending Office specified in the Assignment and Acceptance pursuant to
which it became a Lender; and if to the Administrative Agent, at its address at
1585 Broadway, New York, New York 10036, Attention: John R. Orem; Fax No.: (212)
761-0587; or, as to the Borrowers or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrowers and the
Administrative Agent. All such notices and other communications shall, when
mailed, telegraphed, telecopied or telexed, be effective when deposited in the
mails, delivered to the telegraph company, transmitted by telecopier or
confirmed by telex answerback, respectively, except that notices and
communications to any Agent pursuant to Section 2, 3 or 8 shall not be effective
until received by such Agent. Delivery by telecopier of an executed counterpart
of any amendment or waiver of any provision of this Agreement or the Notes or of
any Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of an original executed counterpart thereof.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of any Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Advances.
9.5 Payment of Expenses and Taxes. The Borrowers agree (a) to
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement,
the other Loan Documents, the Rollover Indenture and the Registration Rights
Agreement, and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including the
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reasonable fees and disbursements of counsel to the Administrative Agent and
filing and recording fees and expenses, with statements with respect to the
foregoing to be submitted to Charter Holdings prior to the Effective Date (in
the case of amounts to be paid on the Effective Date) and from time to time
thereafter on a quarterly basis or such other periodic basis as the
Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender
and each Agent for all its costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Loan
Documents, the Rollover Indenture and the Registration Rights Agreement, and any
such other documents, including the fees and disbursements of one firm of
counsel selected by the Administrative Agent, together with any special or local
counsel to the Administrative Agent, and not more than one other firm of counsel
to the Lenders, (c) to pay, indemnify, and hold each Lender and each Agent
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, that may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents, the Rollover Indenture and the Registration Rights Agreement,
and any such other documents, and (d) to pay, indemnify, and hold each Lender,
each Agent, their affiliates and their respective officers, directors, trustees,
employees, agents and controlling persons (each, an "Indemnitee") harmless from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents, the
Rollover Indenture and the Registration Rights Agreement, and any such other
documents, including any of the foregoing relating to the use of proceeds of the
Advances or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of either Borrower, any of its
Subsidiaries or any of the Properties and the reasonable fees and expenses of
legal counsel in connection with claims, actions or proceedings by any
Indemnitee against either Borrower under any Loan Document, the Rollover
Indenture and the Registration Rights Agreement, (all the foregoing in this
clause (d), collectively, the "Indemnified Liabilities"), provided that the
Borrowers shall have no obligation hereunder to any Indemnitee with respect to
Indemnified Liabilities to the extent such Indemnified Liabilities are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
Without limiting the foregoing, and to the extent permitted by applicable law,
the Borrowers agree not to assert and to cause their Subsidiaries not to assert,
and hereby waive and agree to cause their Subsidiaries to so waive, all rights
for contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, under or related to Environmental Laws,
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that any of them might have by statute or otherwise against any Indemnitee. In
the case of an investigation, litigation or other proceeding to which the
indemnity in Section 9.5(d) applies, such indemnity shall be effective whether
or not such investigation, litigation or proceeding is brought by either
Borrower, its directors, shareholders or creditors or an Indemnitee, whether or
not any Indemnified Party is otherwise a party thereto and whether or not the
initial Borrowing shall occur. The Borrowers also agree not to assert any claim
against any Agent, any Lender or any of their Affiliates, or any of their
respective officers, directors, employees, agents and advisors, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Facility, the actual or proposed use of the
proceeds of the Advances, the Loan Documents, the Rollover Indenture and the
Registration Rights Agreement, or any of the transactions contemplated by the
Loan Documents. All amounts due under this Section 9.5 shall be payable not
later than 15 days after written demand therefor. Statements payable by the
Borrowers pursuant to this Section 9.5 shall be submitted to Kent Kalkwarf
(Telephone No. 314-543-2309) (Fax No. 314-965-8793), at the address of the
Borrowers set forth in Section 9.2, or to such other Person or address as may be
hereafter designated by the Borrowers in a written notice to the Administrative
Agent.
If any payment of principal of any Advance is made by the
Borrowers to or for the account of a Lender other than on the last day of the
interest period for such Advance, as a result of a payment pursuant to Section
2.5 or 2.8(c), acceleration of the maturity of the Advances pursuant to Section
7.1 or for any other reason, the Borrowers shall, upon demand by such Lender
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that such
Lender may reasonably incur as a result of such payment, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund or maintain such Advance.
Without prejudice to the survival of any other agreement of
either Borrower hereunder or under any other Loan Document, the agreements and
obligations of the Borrowers contained in this Section 9.5 and Sections 2.8 and
2.10 shall survive repayments of the Advances and all other amounts payable
hereunder.
9.6 Binding Effect. This Agreement shall become effective when
it shall have been executed by each Borrower and each Agent and the
Administrative Agent shall have been notified by each Initial Lender that such
Initial Lender has executed it and thereafter shall be binding upon and inure to
the benefit of each Borrower, each Lender, each Agent, all future holders of the
Advances and their respective successors (which shall include, in the case of
any Lender, any entity resulting from a merger or consolidation) and assigns,
except that neither Borrower shall have the right to assign or
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transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
9.7 Assignments and Participations. (a) Each Lender may assign
to one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment or Commitments, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) each such assignment shall be of a uniform,
and not a varying, percentage of all rights and obligations under and in respect
of the Facility, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender, an Affiliate of any Lender
or an Approved Fund of any Lender or an assignment of all of a Lender's rights
and obligations under this Agreement, the aggregate amount of the Commitments
being assigned to such Eligible Assignee pursuant to such assignment (determined
as of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than $5,000,000 (or such lesser amount as shall be
approved by the Administrative Agent and, so long as no Event of Default shall
have occurred and be continuing at the time of effectiveness of such assignment,
the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv)
no such assignments (other than an assignment by any Lender to an Affiliate or
an Approved Fund of such Lender) shall be permitted (x) prior to the earlier of
(A) the four month anniversary of the Effective Date and (B) the date on which
the Administrative Agent shall notify the Lenders that syndication of the
Commitments has been completed without the consent of the Administrative Agent
(in its sole discretion) and (y) thereafter without the consent of the
Administrative Agent (which consent shall not be unreasonably withheld) and (iv)
the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment.
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(i) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
and (ii) the Lender assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under Sections 2.8,
2.10 and 9.5 to the extent any claim thereunder relates to an event arising
prior to such assignment) and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance,
each Lender assignor thereunder and each assignee thereunder confirm to and
agree with each
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other and the other parties thereto and hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
(ii) such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of either Borrower or the
performance or observance by either Borrower of any of its obligations under any
Loan Document or any other instrument or document furnished pursuant thereto;
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 5.1 and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon any Agent, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee appoints and
authorizes each Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Documents as are delegated to such
Agent by the terms hereof and thereof, together with such powers and discretion
as are reasonably incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all of the obligations that by the
terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose (but
only for this purpose) as the agent of the Borrowers, shall maintain at its
address referred to in Section 9.2 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Commitments of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrowers, the Agents and the Lenders shall treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrowers or any Agent or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register
71
<PAGE> 72
and (iii) give prompt notice thereof to each Borrower and each other Agent. In
the case of any assignment by a Lender, within five Business Days after its
receipt of such notice, the Borrowers, at their own expense, shall execute and
deliver to the Administrative Agent in exchange for the surrendered Note or
Notes a new Note to the order of such Eligible Assignee in an amount equal to
the Commitment assumed by it pursuant to such Assignment and Acceptance and, if
any assigning Lender has retained a Commitment hereunder, a new Note to the
order of such assigning Lender in an amount equal to the Commitment retained by
it hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A-1 or A-2 hereto, as the case
may be.
(f) Each Lender may sell participations to one or more Persons
(other than either Borrower or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such
Lender's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrowers, the Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of any Loan Document, or any consent to any departure by
either Borrower therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.7, disclose to the assignee or participant or proposed assignee or participant
any information relating to the Borrowers furnished to such Lender by or on
behalf of the Borrowers; provided, however, that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any confidential information received by it from
such Lender.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or
72
<PAGE> 73
Notes held by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board.
9.8 Set-off. In addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right, without prior notice
to either Borrower, any such notice being expressly waived by each Borrower to
the extent permitted by applicable law, upon any amount becoming due and payable
by the Borrowers hereunder (whether at the stated maturity, by acceleration or
otherwise), to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrowers, as the case may
be. Each Lender agrees promptly to notify the Borrowers and the Administrative
Agent after any such setoff and application made by such Lender, provided that
the failure to give such notice shall not affect the validity of such setoff and
application.
9.9 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrowers and the Administrative Agent.
9.10 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.11 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrowers, the Agents and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the any Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents; except for the agreements, promises, undertakings, representations
and warranties set forth in the Engagement Letter, the Fee Letter and paragraphs
3, 4, 5, 6 and 7 of the Commitment Letter which shall survive the execution and
delivery of this Agreement and the making of Advances hereunder and shall remain
in full force and effect in accordance with their respective term.
73
<PAGE> 74
9.12 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
9.13 Jurisdiction, Etc. Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the fullest extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
other Loan Documents to which it is a party in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
9.14 Acknowledgments. Each of the Borrowers hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement, the other Loan Documents, the
Rollover Indenture and the Registration Rights Agreement, as the case
may be;
(b) neither any Agent nor any Lender has any fiduciary
relationship with or duty to the Borrowers arising out of or in
connection with this Agreement, any of the other Loan Documents, the
Rollover Indenture and the Registration Rights Agreement, and the
relationship between the Agents and Lenders, on one hand, and the
Borrowers, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
74
<PAGE> 75
(c) no joint venture is created hereby, by the other Loan
Documents, the Rollover Indenture and the Registration Rights
Agreement, or otherwise exists by virtue of the transactions
contemplated hereby among the Agents and the Lenders or among the
Borrowers and the Agents and the Lenders.
9.15 Confidentiality. Each Agent and each Lender agrees to
keep confidential all non-public information provided to it by any Borrower
pursuant to this Agreement that is designated by such Borrower as confidential;
provided that nothing herein shall prevent any Agent or any Lender from
disclosing any such information (a) to any Agent, any Lender or any affiliate of
any Lender or any Approved Fund, (b) to any Transferee or prospective Transferee
that agrees to comply with the provisions of this Section, (c) to its employees,
directors, agents, attorneys, accountants and other professional advisors or
those of any of its affiliates who have a need to know, (d) upon the request or
demand of any Governmental Authority, (e) in response to any order of any court
or other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with any
litigation or similar proceeding, (g) that has been publicly disclosed, (h) any
nationally recognized rating agency that requires access to information about a
Lender's investment portfolio in connection with ratings issued with respect to
such Lender, (i) in connection with the exercise of any remedy hereunder or
under any other Loan Document or (j) to any direct or indirect contractual
counterparty in swap agreements or such contractual counterparty's professional
advisor (so long as such contractual counterparty or professional advisor to
such contractual counterparty agrees to be bound by the provisions of this
Section 9.15).
9.16 WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE AGENTS
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE ACTIONS OF ANY AGENT OR ANY LENDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF AND FOR ANY COUNTERCLAIM
THEREIN.
75
<PAGE> 76
EXECUTION COPY
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
CHARTER COMMUNICATIONS
HOLDINGS, LLC
By /s/ Eloise A. Engman
-----------------------------
Name: Eloise A. Engman
Title: Vice President
CHARTER COMMUNICATIONS
HOLDINGS CAPITAL CORPORATION
By /s/ Eloise A. Engman
-----------------------------
Name: Eloise A. Engman
Title: Vice President
<PAGE> 77
MORGAN STANLEY SENIOR
FUNDING, INC.,
as Sole Arranger, Syndication Agent
and Administrative Agent
By /s/ Lucy Galbraith
--------------------------------------
Name: Lucy Galbraith
Title: Principal
<PAGE> 78
GOLDMAN SACHS CREDIT
PARTNERS L.P.,
as Co-Documentation Agent
By /s/ R. T. Wagner
--------------------------------------
Name: R. T. Wagner
Title: Authorized Signatory
<PAGE> 79
MERRILL LYNCH CAPITAL
CORPORATION,
as Co-Documentation Agent
By /s/ Carol J. E. Feeley
------------------------------------
Name: Carol J. E. Feeley
Title: Vice President
<PAGE> 80
BEAR STEARNS CORPORATE
LENDING INC.,
as Co-Documentation Agent
By /s/ Richard L. Metrick
------------------------------------
Name: Richard L. Metrick
Title: President
<PAGE> 81
INITIAL LENDERS
MORGAN STANLEY SENIOR
FUNDING, INC.
By /s/ Lucy Galbraith
------------------------------------
Name: Lucy Galbraith
Title: Principal
<PAGE> 82
GOLDMAN SACHS CREDIT
PARTNERS L.P.
By /s/ R. T. Wagner
------------------------------------
Name: R. T. Wagner
Title: Authorized Signatory
<PAGE> 83
MERRILL LYNCH CAPITAL
CORPORATION
By /s/ Carol J. E. Feeley
------------------------------------
Name: Carol J. E. Feeley
Title: Vice President
<PAGE> 84
BEAR STEARNS CORPORATE
LENDING INC.
By /s/ Richard L. Metrick
------------------------------------
Name: Richard L. Metrick
Title: President
<PAGE> 85
EXECUTION COPY
EXHIBITS
--------
Exhibit A-1 Form of Bridge Note
Exhibit A-2 Form of Term Note
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Registration Rights Agreement
Exhibit E Form of Rollover Indenture
Exhibit F Form of Opinion of Counsel to Borrowers
Exhibit G Form of Compliance Certificate
SCHEDULES
---------
Schedule 1 Commitments
Schedule 6.2(d) Debt
<PAGE> 86
================================================================================
Exhibit E
Form of Indenture
================================================================================
<PAGE> 87
================================================================================
CHARTER COMMUNICATIONS HOLDINGS, LLC
and
CHARTER COMMUNICATIONS HOLDINGS
CAPITAL CORPORATION,
as Issuers
and
_______________,
as Trustee
INDENTURE
Dated as of _________ __, 2000
Providing for Issuance of Senior Notes in Series
================================================================================
<PAGE> 88
Table of Contents
<TABLE>
<CAPTION>
Page
<S> <C> <C>
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..................26
Section 1.04 Rules of Construction..............................................26
ARTICLE 2 THE NOTES.............................................................27
Section 2.01 Amount of Notes; Issuable in Series; Form and Dating...............27
Section 2.02 Execution and Authentication.......................................29
Section 2.03 Registrar and Paying Agent.........................................31
Section 2.04 Paying Agent to Hold Money in Trust................................31
Section 2.05 Holder Lists.......................................................32
Section 2.06 Transfer and Exchange..............................................32
Section 2.07 Replacement Notes..................................................45
Section 2.08 Outstanding Notes..................................................46
Section 2.09 Treasury Notes.....................................................46
Section 2.10 Temporary Notes....................................................46
Section 2.11 Cancellation.......................................................47
Section 2.12 Defaulted Interest.................................................47
ARTICLE 3 REDEMPTION AND PREPAYMENT.............................................47
Section 3.01 Notices to Trustee.................................................47
Section 3.02 Selection of Notes to Be Redeemed..................................48
Section 3.03 Notice of Redemption...............................................48
Section 3.04 Effect of Notice of Redemption.....................................49
Section 3.05 Deposit of Redemption Price........................................49
Section 3.06 Notes Redeemed in Part.............................................50
Section 3.07 Optional Redemption................................................50
Section 3.08 Mandatory Redemption...............................................50
Section 3.09 Offer to Purchase by Application of Excess Proceeds................50
ARTICLE 4 COVENANTS.............................................................52
Section 4.01 Payment of Notes...................................................52
Section 4.02 Maintenance of Office or Agency....................................53
Section 4.03 Reports............................................................53
Section 4.04 Compliance Certificate.............................................54
Section 4.05 Taxes..............................................................55
Section 4.06 Stay, Extension and Usury Laws.....................................55
Section 4.07 Restricted Payments................................................55
Section 4.08 Investments........................................................58
Section 4.09 Dividend and Other Payment Restrictions Affecting Subsidiaries.....59
Section 4.10 Incurrence of Indebtedness and Issuance of Preferred Stock.........61
</TABLE>
i
<PAGE> 89
<TABLE>
<CAPTION>
Table of Contents
(continued)
Page
<S> <C> <C>
Section 4.11 Limitation on Asset Sales..........................................64
Section 4.12 Sale and Leaseback Transactions....................................65
Section 4.13 Transactions with Affiliates.......................................66
Section 4.14 Liens..............................................................67
Section 4.15 Corporate Existence................................................67
Section 4.16 Repurchase at the Option of Holders upon a Change of Control.......67
Section 4.17 Limitations on Issuances of Guarantees of Indebtedness.............69
Section 4.18 Payments for Consent...............................................70
Section 4.19 Application of Fall-Away Covenants.................................70
ARTICLE 5 SUCCESSORS............................................................71
Section 5.01 Merger, Consolidation, or Sale of Assets...........................71
Section 5.02 Successor Corporation Substituted..................................72
ARTICLE 6 DEFAULTS AND REMEDIES................................................72
Section 6.01 Events of Default..................................................72
Section 6.02 Acceleration.......................................................74
Section 6.03 Other Remedies.....................................................74
Section 6.04 Waiver of Existing Defaults........................................74
Section 6.05 Control by Majority................................................75
Section 6.06 Limitation on Suits................................................75
Section 6.07 Rights of Holders of Notes to Receive Payment......................75
Section 6.08 Collection Suit by Trustee.........................................76
Section 6.09 Trustee May File Proofs of Claim...................................76
Section 6.10 Priorities.........................................................76
Section 6.11 Undertaking for Costs..............................................77
ARTICLE 7 TRUSTEE...............................................................77
Section 7.01 Duties of Trustee..................................................77
Section 7.02 Rights of Trustee..................................................78
Section 7.03 Individual Rights of Trustee.......................................79
Section 7.04 Trustee's Disclaimer...............................................79
Section 7.05 Notice of Defaults.................................................80
Section 7.06 Reports by Trustee to Holders of the Notes.........................80
Section 7.07 Compensation and Indemnity.........................................80
Section 7.08 Replacement of Trustee.............................................81
Section 7.09 Successor Trustee by Merger, etc...................................82
Section 7.10 Eligibility; Disqualification......................................82
Section 7.11 Preferential Collection of Claims Against the Issuers..............83
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE..............................83
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance...........83
Section 8.02 Legal Defeasance and Discharge.....................................83
</TABLE>
ii
<PAGE> 90
<TABLE>
<CAPTION>
Table of Contents
(continued)
Page
<S> <C> <C>
Section 8.03 Covenant Defeasance...............................................84
Section 8.04 Conditions to Legal or Covenant Defeasance........................84
Section 8.05 Deposited Money and Government Securities to Be Held in Trust;
Other Miscellaneous Provisions....................................86
Section 8.06 Repayment to Issuers..............................................87
Section 8.07 Reinstatement.....................................................87
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER......................................88
Section 9.01 Without Consent of Holders of Notes...............................88
Section 9.02 With Consent of Holders of Notes..................................88
Section 9.03 Compliance with Trust Indenture Act...............................90
Section 9.04 Revocation and Effect of Consents.................................90
Section 9.05 Notation on or Exchange of Notes..................................90
Section 9.06 Trustee to Sign Amendments, etc...................................91
ARTICLE 10 MISCELLANEOUS........................................................91
Section 10.01 Trust Indenture Act Controls......................................91
Section 10.02 Notices...........................................................91
Section 10.03 Communication by Holders of Notes with Other Holders of Notes.....92
Section 10.04 Certificate and Opinion as to Conditions Precedent................93
Section 10.05 Statements Required in Certificate or Opinion.....................93
Section 10.06 Rules by Trustee and Agents.......................................93
Section 10.07 No Personal Liability of Directors, Officers, Employees,
Members and Stockholders..........................................94
Section 10.08 Governing Law.....................................................94
Section 10.09 No Adverse Interpretation of Other Agreements.....................94
Section 10.10 Successors........................................................94
Section 10.11 Severability......................................................94
Section 10.12 Counterpart Originals.............................................94
Section 10.13 Table of Contents, Headings, etc..................................95
ARTICLE 11 SATISFACTION AND DISCHARGE...........................................95
Section 11.01 Satisfaction and Discharge of Indenture...........................95
Section 11.02 Application of Trust Money........................................96
EXHIBIT A............................................................................A-1
EXHIBIT B............................................................................B-1
EXHIBIT C............................................................................C-1
EXHIBIT D............................................................................D-1
</TABLE>
iii
<PAGE> 91
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
310(a)(1)......................................................7.10
(a)(2).........................................................7.10
(a)(3).........................................................N.A.
(a)(4).........................................................N.A.
(a)(5).........................................................7.10
(b)............................................................7.10
(c)............................................................N.A.
311(a).........................................................7.11
(b)............................................................7.11
(c)............................................................N.A.
312(a).........................................................2.05
(b)............................................................10.03
(c)............................................................10.03
313(a).........................................................7.06
(b)(1).........................................................10.03
(b)(2).........................................................7.07; 10.03
(c)............................................................7.06; 10.02
(d)............................................................7.06
314(a).........................................................4.03; 10.02
(b)............................................................10.02
(c)(1).........................................................10.04
(c)(2).........................................................10.04
(c)(3).........................................................N.A.
(d)............................................................N.A.
(e)............................................................10.05
(f)............................................................N.A.
315(a).........................................................7.01
(b)............................................................7.05; 10.02
(c)............................................................7.01
(d)............................................................7.01
(e)............................................................6.11
316(a) (last sentence).........................................2.09
(a)(1)(A)......................................................6.05
(a)(1)(B)......................................................6.04
(a)(2).........................................................N.A.
(b)............................................................6.07
(c)............................................................2.12
317(a)(1)......................................................6.08
(a)(2).........................................................6.09
iv
<PAGE> 92
(b)............................................................2.04
318(a).........................................................10.01
(b)............................................................N.A.
(c)............................................................10.01
N.A. means Not Applicable.
* This Cross-Reference Table is not part of the Indenture.
v
<PAGE> 93
INDENTURE dated as of ________, 2000 among Charter Communications
Holdings, LLC, a Delaware limited liability company (as further defined below,
the "Company"), Charter Communications Holdings Capital Corporation, a Delaware
corporation (as further defined below, "Charter Capital" and together with the
Company, the "Issuers"), and _______________, as trustee (the "Trustee").
Recital
The Issuers have duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of senior notes to be
issued in one or more series as herein provided to or on behalf of the Lenders
under and pursuant to the Senior Bridge Loan Agreement, dated as of August 4,
2000, among the Issuers, the initial lenders parties thereto, Morgan Stanley
Senior Funding, Inc. as sole arranger, syndication agent and administrative
agent, and Goldman Sachs Credit Partners L.P., Merrill Lynch Capital Corporation
and Bear Stearns Corporate Lending Inc., as co-documentation agents.
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 becomes 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 Notes of a particular series issued under this
Indenture in addition to Initial Notes of such series (other than any Notes
issued in respect of Initial Notes of such series pursuant to Section 2.06,
2.07, 2.10, 3.06, 3.09, 4.16 or 9.05).
"Administrative Agent" means Morgan Stanley Senior Funding, Inc., in its
capacity as administrative agent under the Senior Bridge Loan Agreement, and any
successor administrative agent appointed pursuant to the Senior Bridge Loan
Agreement.
<PAGE> 94
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling, "controlled by" and "under common control
with" shall have correlative meanings.
"Agent" means any Registrar or Paying Agent.
"Applicable Interest Rate" means a rate per annum equal to the greater
of (x) the interest rate per annum applicable to the Term Advances as in effect
under the Senior Bridge Loan Agreement on the Applicable Issue Date with respect
to Notes of any series and (y) the bid-side yield on the Specified Notes (as
determined by the Administrative Agent under the Senior Bridge Loan Agreement)
as of the Business Day immediately prior to the Applicable Issue Date with
respect to Notes of such series, as specified with respect to Notes of any
series in accordance with Section 2.01(b); provided, however, that in no event
shall the Applicable Interest Rate in respect of any series of Notes be less
than 9.0% per annum or greater than 15.0% per annum (except that the Applicable
Interest Rate on the Notes is subject to increase to the extent of any special
interest payable thereon in accordance with the provisions of the Registration
Rights Agreement).
"Applicable Issue Date" means the date on which the Initial Notes of any
series are initially issued under this Indenture.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.
"Asset Acquisition" means (a) an Investment by the Company or any of the
Company's 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
the Company's Restricted Subsidiaries, or (b) the acquisition by the Company or
any of the Company's 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:
2
<PAGE> 95
(1) the sale, lease, conveyance or other disposition of any assets or
rights, other than sales of inventory in the ordinary course of business
consistent with past practices; provided that the sale, conveyance or other
disposition of all or substantially all of the assets of the Company and its
Restricted 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 of the Company's Restricted
Subsidiaries or the sale of Equity Interests in any of the Company's Restricted
Subsidiaries.
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 Wholly Owned Restricted
Subsidiary of the Company to the Company or to another Wholly Owned Restricted
Subsidiary of the Company;
(4) a Restricted Payment that is permitted by Section 4.07 and a
Restricted Investment that is permitted by Section 4.08; and
(5) the incurrence of Permitted Liens and the disposition of assets
related to such Permitted Liens by the secured party pursuant to a foreclosure.
"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 Manager or the Board of Directors of the
Company or the Board of Directors of Charter Capital, as the case may be, or any
authorized committee of the Board of Directors of the Company or Charter
Capital, as the case may be.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company (or of Charter
Communications, Inc. in the case of a resolution of the Manager) or Charter
Capital, as the case may be, or, in either case, their respective successors, to
have been duly adopted by the Manager or the Board of Directors of the Company
or the Board of Directors of Charter Capital, as the case may be, and to be in
full force and effect on the date of such certification and delivered to the
Trustee.
"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.
"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.
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"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 since the Existing Notes
Issue Date (x) as a contribution to the common equity capital or from the issue
or sale of Equity Interests of the Company (other than Disqualified Stock) or
(y) from the issue or sale of convertible or exchangeable Disqualified Stock or
convertible or exchangeable debt securities of the Company that have been
converted into 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 Thompson 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 of at least "P-1" from Moody's 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 Moody's 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 Moody's 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
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months after the date of acquisition thereof, rated at the time of acquisition
at least "A" by Moody's 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.
"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 the
Principal or a Related Party of the Principal;
(2) the adoption of a plan relating to the liquidation or dissolution of
the Company or a 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 the Principal 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 number of
shares, unless the Principal or a Related Party Beneficially Owns, directly or
indirectly, a greater percentage of Voting Stock of the Company, 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 the Company or the board of directors of a
Parent are not Continuing Directors; or
(5) the Company or a Parent consolidates with, or merges with or into,
any Person, or any Person consolidates with, or merges with or into, the Company
or a Parent, in any such event pursuant to a transaction in which any of the
outstanding Voting Stock of the Company or such Parent is converted into or
exchanged for cash, securities or other property, other than any such
transaction where the Voting Stock of the Company or such Parent outstanding
immediately prior to such transaction is converted into or exchanged for Voting
Stock (other than Disqualified Stock) of the surviving or transferee Person
constituting a majority of the outstanding shares of such Voting Stock of such
surviving or transferee Person immediately after giving effect to such issuance.
"Charter Capital" means Charter Communications Holdings Capital
Corporation, a Delaware corporation, and any successor in interest thereto.
"Clearstream" means Clearstream Banking, societe anonyme (formerly
Cedelbank).
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"Commission" or "SEC" means the Securities and Exchange Commission.
"Company" means Charter Communications Holdings, LLC, a Delaware limited
liability company, and any successor in interest 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;
(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;
(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
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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 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 its 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 date of this Indenture or (ii) incurred
or issued thereafter in compliance with Section 4.10, provided that (in the case
of clause (ii)) (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
such Person 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 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 the Company or the board of directors of a
Parent who:
(1) was a member of such board of directors on the date of this
Indenture; or
(2) was nominated for election or elected to such board of directors
with the approval of a majority of the Continuing Directors who were members of
such board of directors 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 institutional lenders 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
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thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the surviving Person) or the sale, assignment, or transfer,
lease 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).
"Euroclear" means Morgan 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.
"Existing Indebtedness" means Indebtedness of the Company and its
Restricted Subsidiaries in existence on the date of this Indenture, until such
amounts are repaid.
"Existing Notes Issue Date" means March 17, 1999.
"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 date of this Indenture.
"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.
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"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 outstanding on the date of this Indenture.
"Holder" means a holder of the Notes of any series issued under this
Indenture.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
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(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 and shall include the forms and terms of particular series of Notes
established as contemplated hereunder.
"Indirect Participant" means a Person who holds a beneficial interest in
a Global Note through a Participant.
"Initial Issue Date" means the date on which Notes are initially issued
under this Indenture.
"Initial Notes" means Notes of any series issued under this Indenture on
the Applicable Issue Date in respect of such series (and any Notes issued in
respect thereof pursuant to Section 2.06, 2.07, 2.10, 3.06, 3.09, 4.16 or 9.05).
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is not also a QIB.
"Investment Grade Rating" means a rating equal to or higher than Baa3
(or the equivalent) by Moody's 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
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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.
"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.
"Leverage Ratio" means, as of any date, the ratio of:
(1) the Consolidated Indebtedness of the Company on such date to
(2) the aggregate amount of Consolidated EBITDA for the Company for the
most recently ended fiscal quarter for which internal financial statements are
available (the "Reference Period") multiplied by four.
In addition to the foregoing, for purposes of this definition, "Consolidated
EBITDA" shall be calculated on a pro forma basis after giving effect to
(1) the issuance of the Notes;
(2) the incurrence of the Indebtedness or the issuance of the
Disqualified Stock or other preferred stock of a Restricted Subsidiary (and the
application of the proceeds therefrom) giving rise to the need to make such
calculation and any incurrence or issuance (and the application of the proceeds
therefrom) or repayment of other Indebtedness or Disqualified Stock or other
preferred stock of a Restricted Subsidiary, other than the incurrence or
repayment of Indebtedness for ordinary working capital purposes, at any time
subsequent to the beginning of the Reference Period and on or prior to the date
of determination, as if such incurrence (and the application of the proceeds
thereof), or the repayment, as the case may be, occurred on the first day of the
Reference Period; and
(3) any Dispositions or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Restricted Subsidiaries
(including any person that becomes a Restricted Subsidiary as a result of such
Asset Acquisition) incurring, assuming or otherwise becoming liable for or
issuing Indebtedness, Disqualified Stock or preferred stock) made on or
subsequent to the first day of the Reference Period and on or prior to the date
of determination, as if such Disposition or Asset Acquisition (including the
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incurrence, assumption or liability for any such Indebtedness, Disqualified
Stock or preferred stock and also including any Consolidated EBITDA associated
with such Asset Acquisition, including any cost savings adjustments in
compliance with Regulation S-X promulgated by the Commission) had occurred on
the first day of the Reference Period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Management Fees" means the fees payable to Charter Communications, Inc.
pursuant to the management agreements between Charter Communications, Inc. and
Restricted Subsidiaries of the Company, as such agreements exist on the date of
this Indenture, including any amendment or replacement thereof, provided that
any such amendment or replacement is not more disadvantageous to the Holders of
the Notes in any material respect from such management agreements existing on
the date of this Indenture.
"Manager" means Charter Communications, Inc., in its capacity as manager
of the Company under the Company's limited liability company agreement, dated as
of February 9, 1999, as amended from time to time, and any successor manager
appointed pursuant to such limited liability company agreement.
"Moody's" means Moody's 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:
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(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 a Note or Notes of the Issuers issued,
authenticated and delivered under this Indenture.
"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 Charter Capital, as the case may be, by two Officers of the Company
or Charter Capital, 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 Charter Capital, as the case may be, that meets the requirements of Section
10.05.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
10.05. The counsel may be an employee of or counsel to the Issuers, any
Subsidiary of the Issuers or the Trustee.
"Other Notes" means the 10.00% Senior Notes due 2009, the 10.25% Senior
Notes due 2010 and the 11.75% Senior Discount Notes due 2010 of the Issuers in
each case in an aggregate principal amount not to exceed the principal amount
thereof issued on January 12, 2000; and the 8.250% Senior Notes due 2007, the
8.625% Senior Notes due 2009 and the 9.920% Senior Discount Notes due 2011 of
the Issuers in each case in
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an aggregate principal amount not to exceed the principal amount thereof issued
on March 17, 1999.
"Parent" means Charter Communications, Inc. and/or Charter
Communications Holding Company, LLC, as applicable, and any successor Person or
any Person succeeding to the direct or indirect ownership of the Company.
"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;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of the
Company in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the
Company; or
(b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with Section 4.11;
(5) any Investment made out of the net cash proceeds of the issue and
sale since the Existing Notes Issue Date (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 or
to the extent such net cash proceeds have not been used to incur Indebtedness
pursuant to clause (10) of Section 4.10;
(6) Investments in Productive Assets having an aggregate fair market
value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (6) since the Existing Notes Issue
Date, not to exceed $150 million; provided that the Company or any of its
Restricted Subsidiaries, after giving effect to such Investments, will own at
least 20% of the Voting Stock of such Person;
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(7) other Investments in any Person having an aggregate fair market
value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (7) since the Existing Notes Issue
Date, not to exceed $50 million; and
(8) 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 clause (1) of Section 4.10;
(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 after the date of this Indenture 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 (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 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 incurred in
connection therewith (or the obligation under such Capital Lease Obligation)
only;
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(7) Liens existing on the date of this Indenture (other than in
connection with the Credit Facilities);
(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;
(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;
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(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
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 in this
Indenture and in the indentures relating to the Other Notes, in each case under
Section 7.07; and
(23) Liens in favor of the Trustee for its benefit and the benefit of
Holders and the holders of the Other Notes, as their respective interests
appear.
"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 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 the Company or any of its Restricted
Subsidiaries, may be issued in exchange for, nor the net proceeds of such
Indebtedness be used to extend, refinance, renew, replace, defease or refund
Indebtedness of the Company or any of its Restricted Subsidiaries; provided,
further, that:
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount of (or
accreted value, if applicable), plus accrued interest and premium, if any, on,
the Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus the amount of reasonable expenses incurred in connection
therewith);
(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
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greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;
(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; and
(4) such Indebtedness is incurred either by the Company or by any of
its Restricted Subsidiaries who is the obligor on 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.
"Principal" means Paul G. Allen.
"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 Moody's and S&P.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of the date of this Indenture among the Issuers and the Administrative
Agent.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a global note substantially in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the name
of, the Depositary or its nominee that will be issued in an initial denomination
equal to the outstanding principal
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amount of the Initial Notes or any Additional Notes of any series, 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 the
Principal; 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 the Principal and/or such
other Persons referred to in the immediately preceding clause (1).
"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 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 Additional Notes of any
series, 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.
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"S&P" means Standard & Poor's Ratings Service, a division of the
McGraw-Hill Companies, Inc. or any successor to the rating agency business
thereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Bridge Loan Agreement" means the Senior Bridge Loan Agreement,
dated as of August 4, 2000, among the Issuers, the initial lenders specified
therein and Morgan Stanley Senior Funding, Inc., as sole arranger, syndication
agent and administrative agent, and Goldman Sachs Credit Partners L.P., Merrill
Lynch Capital Corporation and Bear Stearns Corporate Lending Inc., as
co-documentation agents, as amended, supplemented or otherwise modified from
time to time.
"Shelf Registration Statement" means a "shelf" registration statement
providing for the registration and the sale on a continuous or delayed basis of
Initial Notes or any Additional Notes of any series as may be provided in the
Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary of the Company
which is a "Significant Subsidiary" as defined in Rule 1-02(w) of Regulation S-X
under the Exchange Act.
"Special Interest" means special or additional interest in respect of
Notes of any series that is payable by the Issuers as liquidated damages upon
specified registration defaults pursuant to any Registration Rights Agreement.
"Specified Notes" means the 10.25% Senior Notes due 2010 of the Issuers
issued on January 12, 2000.
"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 date of this Indenture, 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. The Stated Maturity
for the principal of all Notes shall be August __, 2010.
"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
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Person, such Person and its Subsidiaries also has 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).
"Term Advances" means Term Advances under, and as defined in, the
Senior Bridge Loan Agreement.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
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 until a successor replaces
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 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 of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons
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who are not Affiliates of the Company unless such terms constitute Investments
permitted by the covenant described above under Section 4.08;
(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; and
(5) has at least one director on its board of directors 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.
"U.S. Person" means a U.S. person as defined in Rule 902(o) 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 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 Capital Stock 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.
<TABLE>
<CAPTION>
Defined in
Term Section
------------------------------------------------------------------- ----------
<S> <C>
"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 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
</TABLE>
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Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Issuers and any successor obligor upon
the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural include
the singular;
(e) provisions apply to successive events and transactions;
(f) 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;
(g) 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
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<PAGE> 119
(h) 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 Amount of Notes; Issuable in Series; Form and Dating.
(a) The aggregate principal amount of Notes which may be authenticated
and delivered under this Indenture is $1,000,000,000, except as provided in
Section 2.07. All such Notes shall be substantially identical in all respects
other than issue prices and issuance dates and, if specified in accordance with
paragraph (b) below with respect to Notes of different series, the title, the
Applicable Interest Rate and the redemption prices in respect of such series.
The Notes may be issued from time to time in one or more series. All securities
of any one series shall be substantially identical other than issue prices and
issuance dates.
(b) The following matters shall be established with respect to each
series of Notes issued hereunder: (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 2.02) set forth, or
determined in the manner provided, in an Officers' Certificate or (iii) in one
or more indentures supplemental hereto:
(1) the title of the Notes of the series (which title shall
distinguish the Notes of the series from all other series of Notes);
(2) with respect to any Notes issued after the Initial Issue
Date (other than Notes issued pursuant to Section 2.06, 2.07, 2.10,
3.06, 3.09, 4.16 or 9.05), whether such Notes shall be issued as part
of a new or existing series of Notes;
(3) the aggregate principal amount of the Notes of the series
which may be authenticated and delivered under this Indenture;
(4) the issue price and issuance date of such Notes, including
the date from which interest on such Notes shall accrue;
(5) the Applicable Interest Rate at which the Notes of the
series shall bear interest;
(6) the price or prices at which, and the other terms and
conditions upon which, Notes of the series shall be redeemed, in whole
or in part;
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<PAGE> 120
(7) whether the Notes of the series shall be issued in whole
or in part in global form; and
(8) any other terms of the series.
(c) If any of the terms of the Notes of any series are established by
action taken pursuant to a Board Resolution, a copy of such Board Resolution
shall be certified by the Secretary of Charter Holdings and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate setting forth,
or providing the manner for determining, the terms of the Notes of such series,
and an appropriate record of any action taken pursuant thereto in connection
with the issuance of any Notes of such series shall be delivered to the Trustee
prior to the authentication and delivery thereof.
(d) General. The Notes of each series and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes
of each series 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 of each series shall be in denominations of $1,000 and
integral multiples thereof. If the forms of Notes of any series are established
by, or by action taken pursuant to, a Board Resolution, a copy of the Board
Resolution together with an appropriate record of any such action taken pursuant
thereto, including a copy of the approved form of Notes shall be certified by
the Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Authentication Order contemplated by Section 2.02 for the
authentication and delivery of such Notes.
The terms and provisions contained in the Notes of each series 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 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.
(e) Global Notes. If Notes of a series are issuable in whole or in part
in global form, Notes of each series 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 of each series 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 of the relevant series as shall be specified therein and each
shall provide that it shall represent the aggregate principal amount of
outstanding Notes of such series from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes of such series represented
thereby may from time to time be reduced or
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<PAGE> 121
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.
(f) Euroclear and Clearstream Procedures Applicable. The provisions of
the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Clearstream
Bank" and "Customer Handbook" of Clearstream Bank shall be applicable to
transfers of beneficial interests in the Regulation S Global Notes that are held
by Participants through Euroclear or Clearstream Bank.
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
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 of any series executed by the
Issuers to the Trustee for authentication; and the Trustee shall authenticate
and deliver (i) Initial Notes of such series in aggregate principal amount
specified by the Issuers and (ii) Additional Notes of such series from time to
time for original issue in aggregate principal amount specified by the Issuers,
in each case specified in clauses (i) and (ii) 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 of such series to be
authenticated and the date on which the Notes are to be authenticated, whether
such Notes are to be issued as part of a new or existing series of Notes,
whether such notes are to be Initial Notes or Additional Notes of the relevant
series 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 outstanding under this
Indenture at any time may not exceed $1,000,000,000, except as provided in
Section 2.07. Initial Notes and any Additional Notes of any series 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 Additional Notes of any series
offered and sold in
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<PAGE> 122
offshore transactions in reliance on Regulation S shall be issued as one or more
Regulation S Global Notes.
If the form or terms of the Notes of a series have been established by
or pursuant to one or more Board Resolutions as permitted by Section 2.01, in
authenticating such Notes and accepting the additional responsibilities under
this Indenture in relation to such Notes, the Trustee shall be entitled to
receive, and (subject to Section 315(a) through (d) of the Trust Indenture Act)
shall be fully protected in relying upon, an Opinion of Counsel substantially to
the effect that,
(1) if the forms of such Notes have been established by or pursuant to
a Board Resolution as permitted by Section 2.01, such forms have been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Notes have been established by or pursuant to
a Board Resolution as permitted by Section 2.01, such terms have been
established in conformity with the provisions of this Indenture, and all
conditions precedent to the authentication and delivery of the Notes have been
complied with; and
(3) such Notes, when authenticated and delivered by the Trustee and
issued by the Issuers in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute legal, valid and binding obligations of
the Issuers, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other similar
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles and except further as may be
limited by or subject to certain exceptions and qualifications specified in such
Opinion of Counsel.
Notwithstanding that such form or terms have been so established, the Trustee
shall have the right to decline to authenticate such Notes if, in the written
opinion of counsel to the Trustee (which counsel may be an employee of the
Trustee) reasonably acceptable to the Issuers, the issue of such Notes pursuant
to this Indenture will adversely affect the Trustee's own rights, duties or
immunities under this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Notwithstanding the provisions of Section 2.01 and of the two preceding
paragraphs, if all of the Notes of any series are not to be issued at one time,
it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 2.01 or the Company Order and Opinion of Counsel
otherwise required pursuant to the two preceding paragraphs in connection with
the authentication of each Note of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Note of such
series to be issued.
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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 and Paying Agent.
The Issuers shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Issuers may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Issuers may change any
Paying Agent or Registrar without notice to any Holder. The Issuers shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Issuers fail to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Issuers or any of
their Subsidiaries may act as Paying Agent or Registrar.
The Issuers initially appoint The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Issuers initially appoint the Trustee to act as the Registrar and
Paying Agent and to act as 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 Issuers or a Subsidiary) shall have no further
liability for the money. If the Issuers 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.
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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 Company 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
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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 Note may be held only 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)(1) 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
(A)(2) instructions given in accordance with the
Applicable Procedures containing information regarding the
Participant account to be credited with such increase; or
(B)(1) 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
(B)(2) instructions given by the Depositary to the
Registrar containing information regarding the Person in whose
name such
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Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above.
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 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) [Intentionally Omitted]
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement; or
(C) [Intentionally Omitted]
(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:
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(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 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 in Global Notes 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:
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(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 a 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;
(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
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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) [Intentionally Omitted]
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement; or
(C) [Intentionally Omitted]
(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;
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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.
(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
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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)(d) 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 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) [Intentionally Omitted]
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(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
(C) [Intentionally Omitted]
(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.
(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.
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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 Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) [Intentionally Omitted]
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(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
(C) [Intentionally Omitted]
(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) [Intentionally Omitted]
(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.
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(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:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
(A)(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, (3) TO AN INSTITUTIONAL ACCREDITED
INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT SUBJECT TO THE CERTIFICATION
AND DELIVERY REQUIREMENTS OF THE INDENTURE GOVERNING THE NOTES,
(4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR
(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES."
(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) or (e)(iii) 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
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ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 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 (III) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS."
(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, 3.06, 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.
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(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Issuers, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such registration
of transfer or exchange.
(v) The Issuers shall not be required (A) to issue, to register
the transfer of or to exchange any Notes during a period beginning at
the opening of business 15 days before the day of any selection of
Notes for redemption under Section 3.02 and ending at the close of
business on the day of selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part or (C)
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 of the relevant
series 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.
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Every replacement Note of any series is an additional obligation of the
Issuers and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes of such series 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, 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 either of the Issuers or an Affiliate of the Issuers
holds the Note; however, Notes held by an Issuer or a Subsidiary of an Issuer
shall not be deemed to be outstanding for purposes of Section 3.07(b).
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than an Issuer, 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 of any series are ready for
delivery, the Issuers may prepare and the Trustee, upon receipt of an
Authentication Order, shall authenticate temporary Notes of such series.
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.
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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 destroy
canceled Notes. Certification of the destruction of all canceled Notes shall be
delivered to the Issuers. 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 of any
series, 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 of such series and in Section 4.01. The Issuers shall
notify the Trustee in writing of the amount of defaulted interest proposed to be
paid on each Note and the date of the proposed payment. The Issuers shall fix or
cause to be fixed each such special record date and payment date; provided that
no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Issuers (or, upon the written request of the Issuers, the
Trustee in the 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 of any series 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 of such series to be redeemed and (iv) the redemption price.
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Section 3.02 Selection of Notes to Be Redeemed.
If less than all of the Notes of any series are to be redeemed or
purchased in an offer to purchase at any time, the Trustee shall select the
Notes of such series to be redeemed or purchased among the Holders of the Notes
of such series in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes of such series are listed or, if
the Notes of such series 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 of such series not previously called for redemption.
The Trustee shall promptly notify the Issuers in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.09, at least 30 days but not
more than 60 days before a redemption date, the Issuers shall mail or cause to
be mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
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(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 of
the particular series 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
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.
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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.
The Issuers shall not have the option to redeem the Notes of any series
pursuant to this Section 3.07 prior to the date that is the fifth anniversary
date of the date on which the initial borrowings are made under the Senior
Bridge Loan Agreement. Thereafter, the Issuers shall have the option to redeem
the Notes of such series, 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) as specified in the Notes of such series plus accrued and
unpaid interest thereon, if any, to the applicable redemption date, which
percentages shall be calculated at 100% plus a premium initially equal to
one-half of the annual interest rate borne by the Notes of such series which
premium shall decline ratably on each annual anniversary of the Initial Issue
Date of the Notes of such series to zero on the date which is two years prior to
the final maturity date of the Notes. 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 of any series.
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
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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;
(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;
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(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.
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 of each series on the dates and in the manner
provided in the Notes of such series. 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.
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The Issuers shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes of each
series 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 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 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 the , an
affiliate of the Trustee, as one such office or agency of the Issuers in
accordance with Section 2.03.
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 of each series,
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
financial statements by the Company's certified independent accountants; and
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(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 Issuers have designated any of their 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, 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 Company 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 Company and its Subsidiaries during the preceding fiscal year
have been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is 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 Company is
taking or proposes 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 Notes of any
series is prohibited or if such event has occurred, a description of the event
and what action the Company is taking or proposes 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
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that the Company 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 Company has used its 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 Company shall deliver, in satisfaction of its obligations under
this Section 4.04, an Officers' Certificate (A) certifying that it has used its
reasonable best efforts to obtain such required statement but was unable to do
so and (B) attaching the written statement of the Company's accountants that the
Company received in lieu thereof.
(c) The Company shall, so long as any of any 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 Company is taking or proposes 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 of any series.
Section 4.06 Stay, Extension and Usury Laws.
Each of the Issuers covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and each of the
Issuers (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it shall not, by resort
to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law has been enacted.
Section 4.07 Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted Subsidiaries'
Equity Interests (including, without limitation, any payment in connection with
any merger or
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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 in Equity Interests (other than Disqualified Stock) of
the Company or to the Company or a Restricted Subsidiary of the Company);
(b) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or consolidation
involving the Company) any Equity Interests of the Company or any direct or
indirect parent of the Company or any Restricted Subsidiary of the Company
(other than any such Equity Interests owned by the Company or any Restricted
Subsidiary of the Company); or
(c) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value, any Indebtedness 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 each of its
Restricted Subsidiaries after the Existing Notes 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 since the Existing Notes Issue Date to the end of the
Company's most recently ended full fiscal quarter for which
internal financial statements are available, taken as a single
accounting period, less the product of 1.2 times the Consolidated
Interest Expense of the Company since the Existing Notes Issue
Date to the end of the Company's most recently ended full fiscal
quarter for which internal financial statements are available,
taken as a single accounting period, plus
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(b) an amount equal to 100% of Capital Stock Sale Proceeds
less any such Capital Stock Sale Proceeds used in connection with
(i) an Investment made pursuant to clause (5) of the definition
of "Permitted Investments" or (ii) the incurrence of Indebtedness
pursuant to clause (10) of Section 4.10, 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;
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(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 held by any member of the
Company's or such Parent's management pursuant to any management equity
subscription agreement or stock option agreement in effect as of the date of
this Indenture; 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; and
(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.
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
Director's 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, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by this Section 4.07 were
computed, together with a copy of any fairness opinion or appraisal required by
this Indenture.
Section 4.08 Investments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) make any Restricted Investment; or
(2) allow any Restricted Subsidiary of the Company to become an
Unrestricted Subsidiary,
unless, in each case:
(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, and after giving effect to, such
Restricted Investment or such designation of a Restricted Subsidiary as an
Unrestricted Subsidiary,
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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.
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 this Section 4.08. If, at any time,
any Unrestricted Subsidiary would fail to meet the requirements as an
Unrestricted Subsidiary described in the definition of "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. 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 the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (1) such Indebtedness is permitted under the covenant described
under Section 4.10 calculated on a pro forma basis as if such designation had
occurred at the beginning of the Reference Period; and (2) no Default or Event
of Default would be in existence following such designation.
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
Restricted Subsidiary of the Company 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 date of this Indenture
(including, without limitation, the Credit Facilities) and any amendments,
modifications,
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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 such Existing
Indebtedness, as in effect on the date of this Indenture;
(2) this Indenture, the Notes and the Other 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 the Indenture to be incurred;
(5) customary non-assignment provisions in leases 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 otherwise permitted to be incurred
pursuant to the provisions of the covenant described above 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;
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(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 than the terms contained in the Credit Facilities as in effect on
the date of this Indenture; and
(13) restrictions that are not materially more restrictive than
customary provisions in comparable financings and the management of the Company
determines that such restrictions will not materially impair the Company's
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 their Restricted Subsidiaries to issue any shares of preferred
stock unless the Leverage Ratio would have been not greater than 8.75 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 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 all Credit Facilities after giving effect to such incurrence
does not exceed an amount equal to $3.5 billion less the aggregate amount of all
Net Proceeds of Asset Sales applied by the Company or any of its Subsidiaries in
the case of an Asset Sale since the Existing Notes Issue Date 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 the Credit Facilities);
(3) the incurrence by the Company of Indebtedness represented by Notes
issued under this Indenture that are issued in exchange for Term Advances of
like principal amount pursuant to the Senior Bridge Loan Agreement;
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(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 Subsidiaries, in an
aggregate principal amount not to exceed $75 million at any time outstanding;
(5) the incurrence by the Company or any of its Restricted Subsidiaries
of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to refund, refinance or replace, in whole or in part,
Indebtedness (other than intercompany Indebtedness) that was permitted by this
Indenture to be incurred under 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 Wholly
Owned 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 Wholly Owned 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 Wholly Owned Restricted Subsidiary thereof,
shall be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or any of its Restricted Subsidiaries 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 the Indentures to be outstanding;
(8) the guarantee by the Company 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 not to exceed $300 million;
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(10) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount at any
time outstanding not to exceed 200% of the net cash proceeds received by the
Company from the sale of its Equity Interests (other than Disqualified Stock)
after the Existing Notes Issue Date to the extent such net cash proceeds have
not been applied to make Restricted Payments or to effect other transactions
pursuant to Section 4.07 or to make Permitted Investments pursuant to clause (5)
of the definition thereof; and
(11) 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, in the
event that an item of proposed Indebtedness meets the criteria of more than one
of the categories of Permitted Debt described in clauses (1) through (11) above,
or 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 on the date of its incurrence in any manner that
complies with this covenant. 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, and in part under any one or more of the clauses listed above, to
the extent that such Indebtedness satisfies the criteria for such clauses.
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 (i) any Indebtedness or preferred stock
of any Person existing at the time such Person is merged with or into or became
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 (ii)
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
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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 a Restricted Subsidiary of the Company, as the case
may be, 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 Company's Board of
Directors and evidenced by a resolution of such Board of Directors set forth in
an Officers' Certificate delivered to the Trustee; and
(3) at least 75% of the consideration therefor received by the Company
or such Restricted Subsidiary is in the form of cash, Cash Equivalents or
readily marketable securities.
For purposes of this Section 4.11, each of the following shall be
deemed to be cash:
(a) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet) of the Company or any Restricted
Subsidiary of the Company (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
Company or such Restricted Subsidiary 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 of the Company, as the case may be,
may apply such Net Proceeds at its option:
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(1) to repay debt under the Credit Facilities or any other Indebtedness
of the Restricted Subsidiaries of the Company (other than Indebtedness
represented by a guarantee of a Restricted Subsidiary of the Company); or
(2) to invest in Productive Assets; provided that any Net Proceeds
which the Company or a Restricted Subsidiary of the Company, as the case may be,
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.
Any Net Proceeds 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 Issuers shall make
an Asset Sale Offer to all Holders of Notes of each series and all holders of
other Indebtedness that is pari passu 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 of all series outstanding
hereunder and such other pari passu Indebtedness 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 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 may use such Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of
Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
such other pari passu Indebtedness 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.
In the event that the Issuers shall be required to commence an offer to
Holders to purchase Notes pursuant to this Section 4.11, they shall follow the
procedures specified in Section 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 may enter into a sale and leaseback transaction if:
(1) the Company 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; and
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(2) the transfer of assets in that sale and leaseback transaction is
permitted by, and the Company applies the proceeds of such transaction in
compliance with, the covenant described above under Section 4.11.
The foregoing restrictions do 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 in
excess of $15 million, a resolution of the Board of Directors of the
Company set forth in an Officers' Certificate certifying that such
Affiliate Transaction complies with this covenant 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 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 such Restricted Subsidiary;
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(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 pursuant to management agreements either
(A) existing on the date of this Indenture or (B) entered into after the date of
this Indenture, to the extent that such management agreements provide for
percentage fees no higher than the percentage fees existing under the management
agreements existing on the date of this Indenture;
(5) Restricted Payments that are permitted by Section 4.07 and
Restricted Investments that are permitted by Section 4.08; and
(6) Permitted Investments.
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 now owned or hereafter acquired, except Permitted
Liens.
Section 4.15 Corporate 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 corporate
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 Charter Capital), 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 of each series
shall have the right to require the Issuers to repurchase all or any part (equal
to $1,000 or an integral
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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 Offer") a payment (the "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:
(a) 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");
(b) that any Note not tendered shall continue to accrue interest;
(c) 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;
(d) 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;
(e) 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
(f) 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.
On the Change of Control Payment Date, the Issuers shall, to the extent
lawful:
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(a) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer;
(b) 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
(c) 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 Company 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.
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 (i) 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 (ii) 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
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other Restricted Subsidiary of the Company 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 of any series 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 (4) of the first paragraph of Section 5.01 (collectively, the
"Suspended Covenants"). In the event that the Company and its Restricted
Subsidiaries are not subject to the Suspended Covenants for any period of time
as a result of the preceding 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 and
compliance with the Suspended Covenants with respect to the Restricted Payments
made after the time of such withdrawal, downgrade, Default or Event of Default
will be calculated in accordance with the terms of Section 4.07 as though such
covenant had been in effect during the entire period of time from the date of
this Indenture.
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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 (whether or not such Issuer is the surviving
corporation); 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:
(1) either: (a) such Issuer is the surviving corporation; or (b) 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 either Issuer is a limited liability company or other Person other
than a corporation, a corporate co-issuer shall also be an obligor with respect
to the Notes of each series);
(2) the Person formed by or surviving any such consolidation or merger
(if other than the Company) or the Person to which such sale, assignment,
transfer, conveyance or other disposition shall have been made assumes all the
obligations of the Company under the Notes of each series and this Indenture
pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction no Default or Event of Default
exists; and
(4) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company) 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
four-quarter period, either (A) 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 (B) 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, the Company may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person. This Section 5.01 shall not apply to a sale,
assignment, transfer, conveyance or other disposition of assets between or among
the Company and any of its Wholly-Owned Subsidiaries.
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Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of either Issuer in accordance with Section 5.01, the successor Person formed by
such consolidation or into which either Issuer is merged or to which such
transfer is made shall succeed to and (except in the case of a lease) be
substituted for, and may exercise every right and power of, such Issuer under
this Indenture with the same effect as if such successor Person had been named
therein as such Issuer, and (except in the case of a lease) such Issuer shall be
released from the obligations under the Notes and this Indenture, except with
respect to any obligations that arise from, or are related to, such transaction.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
An "Event of Default" occurs with respect to the Notes of each series
if:
(a) the Issuers default in the payment when due of interest on any Note
and such default continues for a period of 30 days;
(b) the Issuers default in payment when due of the principal of or
premium, if any, on any Note;
(c) the Company or any of its Restricted Subsidiaries fails to comply
with any of the provisions of Sections 4.16 or 5.01;
(d) the Company or any of its Restricted Subsidiaries fails to comply
with any of their other covenants or agreements in this Indenture for 30 days
after written notice thereof has been given to the Company by the Trustee or to
the Company and the Trustee by Holders of at least 25% of the aggregate
principal amount of the Notes outstanding;
(e) the Company or any of its Restricted Subsidiaries defaults 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 (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 this Indenture, if that default:
(1) 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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(2) 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;
(f) the Company or any of its Restricted Subsidiaries fails 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;
(g) the Company or any of its Significant Subsidiaries pursuant to or
within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a custodian of it or for
all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its
creditors; or
(h) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case;
(ii) 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
(iii) 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.
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Section 6.02 Acceleration.
In the case of an Event of Default arising from clause (g) or (h) of
Section 6.01 with respect to the Company, all outstanding Notes of each series
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 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 of any series 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 of any series 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.
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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 unduly
prejudicial to the rights of other Holders of Notes of any series 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;
(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.
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Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) 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 of
each series and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Issuers
(or any other obligor upon the Notes), their creditors or their property and
shall be entitled and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and any custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 out of the
estate in any such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
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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, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a) 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.
(b) Except during the continuance of an Event of Default:
(i) 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
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(ii) 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 furnished to the Trustee 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.
(c) 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:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) 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
(iii) 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.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) 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 or
expense.
(f) 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.
(g) 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.
(a) The Trustee may conclusively rely upon any document 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.
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(b) 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 and the written advice 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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 against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be charged with knowledge of any Default or
Event of Default unless either (i) a Responsible Officer of the Trustee shall
have actual knowledge of such Default or Event of Default or (ii) written notice
of such Default or Event of Default shall have been given to the Trustee by the
Issuers or any Holder.
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
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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 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.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes of each series 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 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 or 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
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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(g) or (h) 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;
(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;
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(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 any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of Notes 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
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 of any series 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 of the series with
respect to which the Issuers have exercised the option under Section 8.01 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 of such series, 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 of such series 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 of such series
concerning issuing temporary Notes, registration of Notes, mutilated, destroyed,
lost or stolen Notes
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and the maintenance of an office or agency for payment and money for security
payments held in trust;
(c) the rights, powers, trusts, duties and immunities of the Trustee
and the Issuers' obligations in connection therewith; and
(d) the Legal Defeasance provisions of this Indenture;
Subject to compliance with this Article 8, the Issuers may exercise
their option under this Section 8.02 notwithstanding the prior exercise of their
option under Section 8.03.
Section 8.03 Covenant Defeasance.
Upon the 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 of the series with respect to which the Issuers have exercised the option
under Section 8.01 on and after the date the conditions set forth in Section
8.04 are satisfied (hereinafter, "Covenant Defeasance"), and the Notes of such
series 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 of such series, 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 with
respect to Notes of such series 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(c) through 6.01(f) shall not
constitute Events of Default with respect to Notes of such series.
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 of any series:
In order to exercise either Legal Defeasance or Covenant Defeasance:
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(1) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders of the Notes of such series, 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 of such series on the stated maturity or on
the applicable redemption date, as the case may be, and the Company must specify
whether the Notes of such series are being defeased to maturity or to a
particular redemption date;
(2) in the case of Legal Defeasance, the Company shall have delivered
to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that (a) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (b) since the date of this
Indenture, there has been a change in the applicable federal income tax law, in
either case to the effect that, and based thereon such opinion of counsel shall
confirm that, the Holders of the outstanding Notes of such series 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 Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that the Holders of the outstanding Notes of such series 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 with respect to the Notes of such
series 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) or insofar as Events of Default
from bankruptcy or insolvency events are concerned, at any time in the period
ending on the 91st day after the date of deposit;
(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 the
Restricted Subsidiaries is a party or by which the Company or any of the
Restricted Subsidiaries is bound;
(6) the Company must have delivered to the applicable 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
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applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(7) the Company must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders of Notes of such series over the other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others; and
(8) the Company 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 (i) have become
due and payable or (ii) 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 of any
series 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 of such
series.
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
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delivered under Section 8.04(a)), are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
Section 8.06 Repayment to Issuers.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuers, in trust for the payment of the principal of, premium, if any,
or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Issuers on their request or (if then held by the Issuers) shall be
discharged from such trust; and the Holder of such Note shall thereafter look
only to the Issuers for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Issuers as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Issuers cause to be published once, in the New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining shall be repaid to the Issuers.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Issuers' obligations under this Indenture with respect to
the particular series and the Notes of such series, 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.
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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 of any series
without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) to provide for or confirm the issuance of Additional Notes;
(d) 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;
(e) 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;
(f) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA or otherwise as
necessary to comply with applicable law; or
(g) to establish the terms of Notes of any series as permitted by
Section 2.01.
Upon the request of the Issuers accompanied by a resolution of their
respective Boards of Directors 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 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
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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 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 7.02, 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 Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company 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):
(a) reduce the principal amount of Notes whose Holders must consent to
an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note or
alter the payment provisions with respect to the redemption of any Note (other
than provisions relating to Sections 4.11 and 4.16);
(c) reduce the rate of or extend the time for payment of interest on
any Note;
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(d) waive a Default or Event of Default in the payment of principal of,
or premium, if any, or interest on any Note (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);
(e) make any Note payable in money other than that stated in the Notes;
(f) 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;
(g) waive a redemption payment with respect to any Note (other than a
payment required by one of the covenants described in Sections 4.11 and 4.16);
or
(h) 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.
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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 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:
c/o Charter Communications Holdings, LLC
12444 Powerscourt Drive, Suite 100
St. Louis, Missouri 63131
Telecopier No.: (314) 965-8793
Attention: Secretary
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With a copy to:
Irell & Manella
1800 Avenue of the Stars
Suite 900
Los Angeles, California 90067
Telecopier No.: (310) 556-5393
Attention: Meredith Jackson, Esq.
If to the Trustee:
_________________
Telecopier No.: _________________
Attention: _________________
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).
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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:
(a) 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
(b) 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:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) 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;
(c) 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
(d) 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 or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
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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 LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW 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, THE NOTES
OR ANY 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.
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.
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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 with respect to
Notes of any series (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 with respect to such
Notes, when
(1) either
(A) all such 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 Notes of such series not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and
at the expense, of the Issuers,
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,
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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 have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture 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]
96
<PAGE> 189
SIGNATURES
CHARTER COMMUNICATIONS HOLDINGS, LLC, as
an Issuer
By
----------------------------------------
Name:
Title:
CHARTER COMMUNICATIONS HOLDINGS
CAPITAL CORPORATION, as an Issuer
By
----------------------------------------
Name:
Title:
, as Trustee
--------------------
By
----------------------------------------
Name:
Title:
Dated as of , 2000
---------
97
<PAGE> 190
EXHIBIT A
[Face of Note]
CUSIP NO. [_______________]
_____% Rollover Senior Notes Due 2010
No.
$[________________]
CHARTER COMMUNICATIONS HOLDINGS, LLC
and
CHARTER COMMUNICATIONS HOLDINGS CAPITAL CORPORATION
promise to pay to _________________________________________________________
or registered assigns,
the principal amount of _____________________________________ Dollars
($______________________________) on __________, 2010.
Interest Payment Dates: _________________
Record Dates: _________________
Subject to Restrictions set forth in this Note.
Dated:______________
CHARTER COMMUNICATIONS HOLDINGS, LLC
By_____________________________________
Name:
Title:
By_____________________________________
Name:
Title:
A-1
<PAGE> 191
CHARTER COMMUNICATIONS HOLDINGS
CAPITAL CORPORATION
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
___________________________
as Trustee
By: __________________________________
Authorized Signatory
A-2
<PAGE> 192
[Back of Note]
_____% Rollover Senior Notes Due 2010
"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 2.07 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."(1)
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT SUBJECT TO THE CERTIFICATION AND DELIVERY
REQUIREMENTS OF THE INDENTURE GOVERNING THE NOTES, (4) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES."(2)
(1) This paragraph should be included only if the Note is issued in global
form.
(2) This paragraph should be removed upon the registration of the Notes
pursuant to the terms of the Registration Rights Agreement.
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<PAGE> 193
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Charter Communications Holdings, LLC, a Delaware limited
liability company (the "Company"), and Charter Communications Holdings Capital
Corporation, a Delaware corporation ("Charter Capital" and, together with the
Company, the "Issuers"), promise to pay interest on the principal amount of this
Note at the Applicable Interest Rate from_______, ____ until maturity. The
Applicable Interest Rate on the Notes is subject to increase pursuant to the
provisions of the Registration Rights Agreement. The Issuers will pay interest
semi-annually in arrears on _______________ and 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 _____________. 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 1% per annum in excess of the rate then in effect; they
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT. The Issuers shall pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the ________________ or ________________ 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 AND REGISTRAR. Initially, ______________ , the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Issuers may
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<PAGE> 194
change any Paying Agent or Registrar without notice to any Holder. The Company
or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Issuers issued the Notes under an Indenture dated as
of _________, 2000 (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.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.
(a) The Issuers shall not have the option to redeem the Notes prior to
the date that is the fifth anniversary date of the initial borrowings under the
Senior Bridge Loan Agreement. 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 __________ of the years indicated below:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2005 ______%
2006 ______%
2007 ______%
2008 and thereafter 100.000%
</TABLE>
6. MANDATORY REDEMPTION.
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
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<PAGE> 195
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 consummates any Asset
Sale, when the aggregate amount of Excess Proceeds exceeds $25.0 million, the
Issuers 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 pari passu 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 pari passu Indebtedness 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 may use such Excess Proceeds for any purpose
not otherwise prohibited by the Indenture. If the aggregate principal amount of
Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
such other pari passu Indebtedness 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 Company 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. NOTICE OF REDEMPTION. Notice of redemption will be mailed by first
class mail at least 30 days but not more than 60 days before the redemption date
to each Holder whose Notes are to be redeemed at its registered address. Notices
of redemption may not be conditional. No Notes of $1,000 or less may be redeemed
in part. Notes in denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000, unless all of the Notes held by a Holder are
to be redeemed. On and after the redemption date interest ceases to accrue on
Notes or portions thereof called for redemption.
9. 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
A-6
<PAGE> 196
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 before a selection of Notes to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. 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.
12. DEFAULTS AND REMEDIES. Each of the following is an Event of
Default: (i) default for 30 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 days after written notice
thereof has been given to the Company by the Trustee or to the Company 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
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<PAGE> 197
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
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, or the principal of, the Notes. The Company is 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 Company
is required to deliver to the Trustee a statement specifying such Default or
Event of Default.
13. 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.
14. 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.
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<PAGE> 198
15. GOVERNING LAW. This Note and the Indenture shall be governed by and
construed in accordance with the laws of the State of New York, as applied to
contracts made and performed within the State of New York, without regard to
principles of conflict of laws. 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.
16. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
17. 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).
18. 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.
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have caused
CUSIP numbers to be printed on the Notes and 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 Company 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:
Charter Communications Holdings, LLC
Charter Communications Holdings Capital Corporation
c/o Charter Communications, Inc.
12444 Powerscourt Drive
Suite 100
St. Louis, Missouri 63131
Attention: Secretary
Telecopier No.: (314) 965-0555
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<PAGE> 199
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).
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<PAGE> 200
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
Company 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).
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<PAGE> 201
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:
<TABLE>
<CAPTION>
Principal Amount of
Amount of increase this Global Note
Amount of decrease in Principal following such Signature of authorized
in Principal Amount Amount of this decrease (or officer of Trustee or Note
Date of Exchange of this Global Note Global Note increase) Custodian
---------------- ------------------- ------------------ ------------------- --------------------------
<S> <C> <C> <C> <C>
</TABLE>
A-12
<PAGE> 202
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Charter Communications Holdings, LLC
Charter Communications Holdings Capital Corporation
c/o Charter Communications, Inc.
12444 Powerscourt Drive, Suite 100
St. Louis, Missouri 63131
[Name and Address of Trustee]
Re: ____% Rollover Senior Notes Due 2010
Reference is hereby made to the Indenture, dated as of_________, 2000
(the "Indenture"), among Charter Communications Holdings, LLC (the "Company")
and Charter Communications Holdings Capital Corporation ("Charter Capital" and,
together with the Company, the "Issuers"), and _____________, 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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<PAGE> 203
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
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<PAGE> 204
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 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
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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.
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.
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EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Charter Communications Holdings, LLC
Charter Communications Holdings Capital Corporation
c/o Charter Communications, Inc.
12444 Powerscourt Drive, Suite 100
St. Louis, Missouri 63131
[Name and Address of Trustee]
Re: _____% Rollover Senior Notes Due 2010
(CUSIP ______________________)
Reference is hereby made to the Indenture, dated as of ___________,
2000 (the "Indenture"), among Charter Communications Holdings, LLC (the
"Company") and Charter Communications Holdings Capital Corporation ("Charter
Capital" and, together with the Company, the "Issuers"), and [Name of Trustee],
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 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 could be
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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.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes
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(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.
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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EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Charter Communications Holdings, LLC
Charter Communications Holdings Capital Corporation
c/o Charter Communications, Inc.
12444 Powerscourt Drive, Suite 100
St. Louis, Missouri 63131
[Name and Address of Trustee]
Re: ____% Rollover Senior Notes Due 2010
Reference is hereby made to the Indenture, dated as of ______________,
2000 (the "Indenture"), among Charter Communications Holdings, LLC (the
"Company") and Charter Communications Holdings Capital Corporation ("Charter
Capital" and, together with the Company, the "Issuers"), and [Name of Trustee],
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:
(a) |_| a beneficial interest in a Global Note, or
(b) |_| 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
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<PAGE> 211
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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