CCO HOLDINGS, LLC CCO HOLDINGS CAPITAL CORP. 8-3/4% SENIOR NOTES DUE 2013 EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
$300,000,000
8-3/4%
SENIOR NOTES DUE 2013
August
17, 2005
▇.▇.
▇▇▇▇▇▇ Securities Inc.
Credit
Suisse First Boston LLC
Banc
of
America Securities LLC
As
representatives ("Representatives") of the Several Purchasers
c/o
▇.▇.
▇▇▇▇▇▇ Securities Inc.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
Ladies
and Gentlemen:
CCO
Holdings, LLC, a Delaware limited liability company (the "Company"), and CCO
Holdings Capital Corp., a Delaware corporation ("CCO Holdings Capital" and,
together with the Company, the "Issuers"), propose, subject to the terms and
conditions stated herein, to issue and sell to the Purchasers (as defined
herein) upon the terms set forth in the Purchase Agreement (as defined herein)
$300,000,000 aggregate principal amount of their 8-3/4% Senior Notes due 2013,
issued on August 17, 2005. As an inducement to the Purchasers
to enter
into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Purchasers thereunder, the Issuers agree with the Purchasers
for the benefit of holders (as defined herein) from time to time of the
Registrable Securities (as defined herein) as follows:
1. Certain
Definitions.
For
purposes of this Exchange and Registration Rights Agreement, the following
terms
shall have the following respective meanings:
"Agreement"
shall mean this Exchange and Registration Rights Agreement.
"Base
Interest" shall mean the interest that would otherwise accrue on the Notes
under
the terms thereof and the Indenture, without giving effect to the provisions
of
this Exchange and Registration Rights Agreement.
The
term
"broker-dealer" shall mean any broker or dealer registered with the Commission
under the Exchange Act.
"Closing
Date" shall mean August 17, 2005.
"Commission"
shall mean the United States Securities and Exchange Commission, or any other
federal agency at the time administering the Exchange Act or the Securities
Act,
whichever is the relevant statute for the particular purpose.
"Effective
Time," in the case of (i) an Exchange Offer Registration, shall mean the time
and date as of which the Commission declares the Exchange Offer Registration
Statement effective or as of which the Exchange Offer Registration Statement
otherwise becomes effective and (ii) a Shelf Registration, shall mean the time
and date as of which the Commission declares the Shelf Registration Statement
effective or as of which the Shelf Registration Statement otherwise becomes
effective.
"Electing
Holder" shall mean any holder of Registrable Securities that has returned a
completed and signed Notice and Questionnaire to the Issuers in accordance
with
Section 3(e)(ii) or 3(e)(iii) hereof.
"Exchange
Act" shall mean the Securities Exchange Act of 1934, or any successor thereto,
and the rules, regulations and forms promulgated thereunder, all as the same
shall be amended from time to time.
"Exchange
Notes" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Exchange
Offer" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Exchange
Offer Registration" shall have the meaning assigned thereto in Section 3(c)
hereof.
"Exchange
Offer Registration Statement" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchanging
Dealer" shall have the meaning assigned thereto in Section 6(a)
hereof.
The
term
"holder" shall mean, unless the context otherwise indicates, each of the
Purchasers and other persons who acquire Registrable Securities from time to
time (including, without limitation, any successors or assigns), in each case
for so long as such person is a registered holder of any Registrable
Securities.
"Indenture"
shall mean the Indenture governing the Notes, dated as of
November 10, 2003 between the Issuers and ▇▇▇▇▇ Fargo Bank, N.A.,
as
Trustee, as supplemented by a supplemental indenture dated as of August 17,
2005, as the same shall be amended from time to time.
"Losses"
shall have the meaning assigned thereto in Section 6(d) hereof.
"Notes"
shall mean, collectively, the 8-3/4% Senior Notes due 2013 of the Issuers to
be
issued and sold to the Purchasers pursuant to the Purchase Agreement, and Notes
issued in exchange therefor or in lieu thereof, pursuant to the
Indenture.
"Notice
and Questionnaire" means a Notice of Registration Statement and Selling
Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
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The
term
"person" shall mean a corporation, association, partnership, organization,
limited liability company, business, individual, government or political
subdivision thereof or governmental agency.
"Purchase
Agreement" shall mean the Purchase Agreement, dated August 11, 2005,
between the Purchasers and the Issuers relating to the Notes.
"Purchasers"
shall mean the Purchasers named in Schedule I to the Purchase
Agreement.
"Registrable
Securities" shall mean the Notes (and to the extent set forth in clause (i)
of
this paragraph and in Section 2(d), certain Exchange Notes); provided, however,
that a Note or Exchange Note shall cease to be a Registrable Security when
(i)
in the circumstances contemplated by Section 2(a) hereof, such Note has been
exchanged for an Exchange Note in an Exchange Offer as contemplated in Section
2(a) hereof (provided that any Exchange Note that, pursuant to the penultimate
sentence of Section 2(a), is included in a prospectus for use in connection
with
resales by broker-dealers shall be deemed to be a Registrable Security with
respect to Sections 5, 6 and 9 hereof until resale of such Registrable Security
has been effected within the 180-day period referred to in Section 2(a)(y));
(ii) in the circumstances contemplated by Section 2(b) hereof, a Shelf
Registration Statement registering such Note or Exchange Note under the
Securities Act has been declared or becomes effective and such Note or Exchange
Note has been sold or otherwise transferred by the holder thereof pursuant
to
and in a manner contemplated by such effective Shelf Registration Statement;
(iii) such Note or Exchange Note is sold pursuant to Rule 144 under
circumstances in which any legend borne by such Note or Exchange Note relating
to restrictions on transferability thereof, under the Securities Act or
otherwise, is removed by the Issuers or pursuant to the Indenture; (iv) such
Note or Exchange Note is eligible to be sold pursuant to paragraph (k) of Rule
144; or (v) such Note or Exchange Note shall cease to be
outstanding.
"Registration
Default" shall have the meaning assigned thereto in Section 2(c)
hereof.
"Registration
Default Period" shall have the meaning assigned thereto in Section 2(c)
thereof.
"Registration
Expenses" shall have the meaning assigned thereto in Section 4
hereof.
"Resale
Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted
Holder" shall mean (i) a holder that is an affiliate of the Issuers within
the
meaning of Rule 405, (ii) a holder who acquires Exchange Notes outside the
ordinary course of such holder’s business, (iii) a holder who has arrangements
or understandings with any person to participate in the Exchange Offer for
the
purpose of distributing Exchange Notes and (iv) a holder that is a
broker-dealer, but only with respect to Exchange Notes received by such
broker-dealer pursuant to an Exchange Offer in exchange for Registrable
Securities acquired by the broker-dealer directly from the Issuers.
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"Rule
144," "Rule 405" and "Rule 415" shall mean, in each case, such rule promulgated
under the Securities Act (or any successor provision), as the same shall be
amended from time to time.
"Securities
Act" shall mean the Securities Act of 1933, or any successor thereto, and the
rules, regulations and forms promulgated thereunder, all as the same shall
be
amended from time to time.
"Shelf
Registration" shall have the meaning assigned thereto in Section 2(b)
hereof.
"Shelf
Registration Statement" shall have the meaning assigned thereto in Section
2(b)
hereof.
"Special
Interest" shall have the meaning assigned thereto in Section 2(c)
hereof.
"Transfer
Restricted Notes" shall have the meaning assigned thereto in Section 2(c)
hereof.
"Trust
Indenture Act" shall mean the Trust Indenture Act of 1939, or any successor
thereto, and the rules, regulations and forms promulgated thereunder, all as
the
same shall be amended from time to time.
Unless
the context otherwise requires, any reference herein to a "Section" or "clause"
refers to a Section or clause, as the case may be, of this Exchange and
Registration Rights Agreement, and the words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Exchange and Registration Rights
Agreement as a whole and not to any particular Section or other
subdivision.
2. Registration
Under the Securities Act.
(a) Except
as
set forth in Section 2(b) below, the Issuers agree to file under the Securities
Act, as soon as practicable, but no later than 90 days after the Closing Date,
a
registration statement relating to an offer to exchange (such registration
statement, the "Exchange Offer Registration Statement", and such offer, the
"Exchange Offer") any and all of the Notes for a like aggregate principal amount
of notes issued by the Issuers, which notes are substantially identical in
all
material respects to the Notes (and are entitled to the benefits of the
Indenture which has been qualified under the Trust Indenture Act), except that
they have been registered pursuant to an effective registration statement under
the Securities Act and do not contain provisions for the additional interest
contemplated in Section 2(c) below (such notes hereinafter called "Exchange
Notes"). The Issuers agree to use their reasonable best efforts to cause the
Exchange Offer Registration Statement to become or be declared effective under
the Securities Act as soon as practicable, but no later than 210 days after
the
Closing Date. The Exchange Offer will be registered under the Securities Act
on
the appropriate form and will comply with the Exchange Act. The Issuers further
agree to use their reasonable best efforts to complete the Exchange Offer
promptly, but no later than 30 business days or longer, if required by the
federal securities laws, after such registration statement has become effective,
hold the Exchange Offer open for at
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least
20
business days (calculated in accordance with the Exchange Act) and exchange
Exchange Notes for all Registrable Securities that have been properly tendered
and not withdrawn on or prior to the expiration of the Exchange Offer.
The
Exchange Offer will be deemed to have been completed only if the Exchange
Notes
received by holders, other than Restricted Holders, in the Exchange Offer
in
exchange for Registrable Securities are, upon receipt, transferable by
each such
holder without restriction under the Securities Act and the Exchange Act
and
without material restrictions under the blue sky or securities laws of
a
substantial majority of the States of the United States of America. The
Exchange
Offer shall be deemed to have been completed upon the earlier to occur
of (i)
the Issuers having exchanged the Exchange Notes for all outstanding Registrable
Securities pursuant to the Exchange Offer and (ii) the Issuers having exchanged,
pursuant to the Exchange Offer, Exchange Notes for all Registrable Securities
that have been properly tendered and not withdrawn before the expiration
of the
Exchange Offer. The Issuers agree (x) to include in the Exchange Offer
Registration Statement a prospectus for use in any resales by any holder
of
Exchange Notes that is a broker-dealer and (y) to keep such Exchange Offer
Registration Statement effective for a period (the "Resale Period") beginning
when Exchange Notes are first issued in the Exchange Offer and ending upon
the
earlier of the expiration of the 180th day after the Exchange Offer has
been
completed or such time as such broker-dealers no longer own any Registrable
Securities. With respect to such Exchange Offer Registration Statement,
such
holders shall have the benefit of the rights of indemnification and contribution
set forth in Sections 6(a), (c), (d) and (e) hereof.
(b) If
(i) on
or prior to the time the Exchange Offer is completed existing law or Commission
policy or interpretations are changed such that the Exchange Notes received
by
holders, other than Restricted Holders, in the Exchange Offer in exchange for
Registrable Securities are not or would not be, upon receipt, transferable
by
each such holder without restriction under the Securities Act, (ii) the Exchange
Offer Registration Statement has not been declared effective under the
Securities Act within 210 days following the Closing Date, or completed within
30 business days after the effectiveness of the Exchange Offer Registration
Statement, or longer, if required by the federal securities laws, (iii) any
Purchaser so requests with respect to Registrable Securities that are not
eligible to be exchanged for Exchange Notes in the Exchange Offer and that
are
held by it following the consummation of the Exchange Offer, or (iv) the
Exchange Offer is not available to any holder (other than a Purchaser), the
Issuers shall, in lieu of (or, in the case of clause (iii) or (iv), in addition
to) conducting the Exchange Offer contemplated by Section 2(a), file a "shelf"
registration statement in accordance with the remainder of this Section 2(b)
below, under the Securities Act. The Issuers shall, on or prior to 30 business
days after the time such obligation to file arises, file a "shelf" registration
statement providing for the registration of, and the sale on a continuous or
delayed basis by the holders of, all the Registrable Securities, pursuant to
Rule 415 or any similar rule that may be adopted by the Commission (such filing,
the "Shelf Registration" and such registration statement, the "Shelf
Registration Statement"). The Issuers agree to use their reasonable best efforts
(x) to cause the Shelf Registration Statement to become or be declared effective
by the Commission no later than 90 days after such obligation to file arises
and
to keep such Shelf Registration Statement continuously effective for a period
ending on the earlier of (i) the second anniversary of the Effective Time or
(ii) such time as there are no longer any Registrable Securities outstanding;
provided, however, that no holder (other than a Purchaser) shall be entitled
to
be named as a selling securityholder in the Shelf Registration Statement or
to
use the prospectus forming a part thereof for resales of
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Registrable
Securities unless such holder is an Electing Holder, and (y) after the
Effective
Time of the Shelf Registration Statement, promptly upon the request of
any
holder of Registrable Securities that is not then an Electing Holder, to
take
any action reasonably necessary to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities, including,
without
limitation, any action necessary to identify such holder as a selling
securityholder in the Shelf Registration Statement, provided, however,
that
nothing in this clause (y) shall relieve any such holder of the obligation
to
return a completed and signed Notice and Questionnaire to the Issuers in
accordance with Section 3(e)(iii) hereof. The Issuers further agree to
supplement or make amendments to the Shelf Registration Statement, as and
when
required by the rules, regulations or instructions applicable to the
registration form used by the Issuers for such Shelf Registration Statement
or
by the Securities Act for shelf registration, and the Issuers agree to
furnish
to each Electing Holder copies of any such supplement or amendment prior
to its
being used or promptly following its filing with the
Commission.
(c) In
the
event that (i) the Issuers have not filed the Exchange Offer Registration
Statement or Shelf Registration Statement on or before the date on which such
registration statement is required to be filed pursuant to Section 2(a) or
2(b),
respectively, or (ii) such Exchange Offer Registration Statement or Shelf
Registration Statement has not become effective or been declared effective
by
the Commission on or before the date on which such registration statement is
required to become or be declared effective pursuant to Section 2(a) or 2(b),
respectively, or (iii) the Exchange Offer has not been consummated within 30
business days after the initial effective date of the Exchange Offer
Registration Statement relating to the Exchange Offer (if the Exchange Offer
is
then required to be made) or (iv) any Exchange Offer Registration Statement
or
Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed
and becomes or is declared effective but shall thereafter either be withdrawn
by
the Issuers or shall become subject to an effective stop order issued pursuant
to Section 8(d) of the Securities Act suspending the effectiveness of such
registration statement (except as specifically permitted herein) without being
succeeded immediately by an additional registration statement filed and declared
effective (each such event referred to in clauses (i) through (iv), a
"Registration Default" and each period during which a Registration Default
has
occurred and is continuing, a "Registration Default Period"), then, as
liquidated damages for such Registration Default, subject to the provisions
of
Section 9(b), special interest ("Special Interest"), in addition to the Base
Interest, shall accrue on the aggregate principal amount of the outstanding
Transfer Restricted Notes (as defined below) affected by such Registration
Default at a per annum rate of 0.25% for the first 90 days of the Registration
Default Period, at a per annum rate of 0.50% for the second 90 days of the
Registration Default Period, at a per annum rate of 0.75% for the third 90
days
of the Registration Default Period and at a per annum rate of 1.00% thereafter
for the remaining portion of the Registration Default Period. All accrued
Special Interest shall be paid in cash by the Issuers on each Interest Payment
Date (as defined in the Indenture). Notwithstanding the foregoing and anything
in this Agreement to the contrary, in the case of an event referred to in clause
(ii) above, a "Registration Default" shall be deemed not to have occurred so
long as the Issuers have used and are continuing to use their reasonable best
efforts to cause such Exchange Offer Registration Statement or Shelf
Registration Statement, as the case may be, to become or be declared effective.
For purposes of this Agreement, "Transfer Restricted Notes" shall mean, with
respect to any Registration Default, any Notes or Exchange Notes which have
not
ceased being Registrable Securities pursuant to the definition thereof in
Section 1 of this Agreement.
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(d) If
any
Purchaser determines that it is not eligible to participate in the Exchange
Offer with respect to the exchange of Registrable Securities constituting any
portion of an unsold allotment, at the request of such Purchaser, then, subject
to any prohibitions or restrictions imposed by any applicable law or
regulations, the Issuers shall use their commercially reasonable efforts to
issue and deliver to such Purchaser, in exchange for such Registrable
Securities, a like principal amount of Exchange Notes. Such issuance shall
not
be deemed to be part of the Exchange Offer. The Issuers shall use their
commercially reasonable efforts to cause the CUSIP Service Bureau to issue
the
same CUSIP number for Exchange Notes described in this Section 2(d) as for
Exchange Notes issued pursuant to the Exchange Offer. Any such Exchange Notes
shall, at the time of issuance, and subject to the limitations set forth in
Section 1 hereof, constitute Registrable Securities for purposes of this
Agreement (other than Section 2(a) hereof).
(e) The
Issuers shall use their reasonable best efforts to take all actions necessary
or
advisable to be taken by them to ensure that the transactions contemplated
herein are effected as so contemplated in Section 2(a) or 2(b)
hereof.
(f) Any
reference herein to a registration statement as of any time shall be deemed
to
include any document incorporated, or deemed to be incorporated, therein by
reference as of such time and any reference herein to any post-effective
amendment to a registration statement as of any time shall be deemed to include
any document incorporated, or deemed to be incorporated, therein by reference
as
of such time.
3. Registration
Procedures.
If the
Issuers file a registration statement pursuant to Section 2(a) or Section 2(b),
the following provisions shall apply:
(a) At
or
before the Effective Time of the Exchange Offer or the Shelf Registration,
as
the case may be, the Issuers shall cause the Indenture to be qualified under
the
Trust Indenture Act of 1939.
(b) In
the
event that such qualification would require the appointment of a new trustee
under the Indenture, the Issuers shall appoint a new trustee thereunder pursuant
to the applicable provisions of the Indenture.
(c) In
connection with the Issuers’ obligations with respect to the registration of
Exchange Notes as contemplated by Section 2(a) (the "Exchange Offer
Registration"); if applicable, the Issuers shall, as soon as practicable (or
as
otherwise specified):
(i) prepare
and file with the Commission, as soon as practicable but no later than 90 days
after the Closing Date, an Exchange Offer Registration Statement on any form
which may be utilized by the Issuers and which shall permit the Exchange Offer
and resales of Exchange Notes by broker-dealers during the Resale Period to
be
effected as contemplated by Section 2(a), and use their reasonable best efforts
to cause such Exchange Offer Registration Statement to become or be declared
effective as soon as practicable thereafter, but no later than 210 days after
the Closing Date;
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(ii) as
soon
as practicable prepare and file with the Commission such amendments and
supplements to such Exchange Offer Registration Statement and the prospectus
included therein as may be necessary to effect and maintain the effectiveness
of
such Exchange Offer Registration Statement for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions applicable to
the
form of such Exchange Offer Registration Statement, and promptly provide each
broker-dealer holding Exchange Notes with such number of copies of the
prospectus included therein (as then amended or supplemented), in conformity
in
all material respects with the requirements of the Securities Act and the Trust
Indenture Act, as such broker-dealer reasonably may request prior to the
expiration of the Resale Period, for use in connection with resales of Exchange
Notes;
(iii) promptly
notify the Purchasers, and each broker-dealer that has requested or received
copies of the prospectus included in such registration statement, and confirm
such advice in writing, (A) when such Exchange Offer Registration Statement
or
the prospectus included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such Exchange
Offer Registration Statement or any post-effective amendment, when the same
has
become effective, (B) of any comments by the Commission and by the blue sky
or
securities commissioner or regulator of any state with respect thereto, or
any
request by the Commission for amendments or supplements to such Exchange Offer
Registration Statement or prospectus or for additional information, (C) of
the
issuance by the Commission of any stop order suspending the effectiveness of
such Exchange Offer Registration Statement or the initiation or, to the
knowledge of the Issuers, threatening of any proceedings for that purpose,
(D)
if at any time the representations and warranties of the Issuers contemplated
by
Section 5 hereof cease to be true and correct in all material respects, (E)
of
the receipt by the Issuers of any notification with respect to the suspension
of
the qualification of the Exchange Notes for sale in any jurisdiction or the
initiation or, to the knowledge of the Issuers, threatening of any proceeding
for such purpose, or (F) at any time during the Resale Period when a prospectus
is required to be delivered under the Securities Act, that such Exchange Offer
Registration Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act,
or
contains an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(iv) in
the
event that the Issuers would be required, pursuant to Section 3(c)(iii)(F)
above, to notify the Purchasers and any broker-dealers holding Exchange Notes,
the Issuers shall prepare and furnish to each such holder a reasonable number
of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to purchasers of such Exchange Notes during the Resale Period, such prospectus
conforms in all material respects to the applicable requirements
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of
the
Securities Act and the Trust Indenture Act and shall not contain an untrue
statement of a material fact or omit to state a material fact required
to be
stated therein or necessary to make the statements therein not misleading
in
light of the circumstances then existing;
(v) use
their
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of such Exchange Offer Registration Statement or any
post-effective amendment thereto as soon as practicable;
(vi) use
their
reasonable best efforts to (A) register or qualify the Exchange Notes under
the
securities laws or blue sky laws of such jurisdictions as are contemplated
by
Section 2(a) no later than the commencement of the Exchange Offer, (B) keep
such
registrations or qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period and (C) take any and
all
other actions as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Notes to consummate the disposition thereof
in
such jurisdictions; provided, however, that neither of the Issuers shall be
required for any such purpose to (1) qualify as a foreign corporation or limited
liability company, as the case may be, in any jurisdiction wherein it would
not
otherwise be required to qualify but for the requirements of this Section
3(c)(vi), (2) consent to general service of process in any such jurisdiction
or
(3) make any changes to its certificate of incorporation or by-laws (or other
organizational document) or any agreement between it and holders of its
ownership interests;
(vii) use
their
reasonable best efforts to obtain the consent or approval of each governmental
agency or authority, whether federal, state or local, which may be required
to
effect the Exchange Offer Registration, the Exchange Offer and the offering
and
sale of Exchange Notes by broker-dealers during the Resale Period;
(viii) provide
a
CUSIP number for all Exchange Notes, not later than the applicable Effective
Time;
(ix) comply
with all applicable rules and regulations of the Commission, and make generally
available to their securityholders as soon as practicable but no later than
eighteen months after the effective date of such Exchange Offer Registration
Statement, an earning statement of the Company and its subsidiaries complying
with Section 11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder);
(x) mail
to
each holder a copy of the prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal
and
related documents;
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(xi) utilize
the services of a depositary for the Exchange Offer with an address in the
Borough of Manhattan in New York City, which may be the Trustee, any new trustee
under the Indenture, or an affiliate of any of them;
(xii) permit
holders to withdraw tendered Notes at any time prior to the close of business,
New York time, on the last business day on which the Exchange Offer
is
open;
(xiii) prior
to
the Effective Time, provide a supplemental letter to the Commission (i) stating
that the Issuers are conducting the Exchange Offer in reliance on the position
of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13,
1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub. avail. June 5, 1991); and (ii)
including a representation that the Issuers have not entered into any
arrangement or understanding with any person to distribute the Exchange Notes
to
be received in the Exchange Offer and that, to the best of the Issuers’
information and belief, each holder participating in the Exchange Offer is
acquiring the Exchange Notes in the ordinary course of business and has no
arrangement or understanding with any person to participate in the distribution
of the Exchange Notes;
(xiv) provide
the Representatives, in advance of filing thereof with the Commission, a draft
of such Exchange Offer Registration Statement substantially in the form to
be
filed with the Commission, each prospectus included therein or filed with the
Commission and each amendment or supplement thereto (including any documents
incorporated by reference therein after the initial filing), and shall use
their
commercially reasonable efforts to reflect in each such document, when so filed
with the Commission, such comments as are reasonably proposed;
(xv) if
requested by a Purchaser, promptly incorporate in the prospectus contained
in
the Exchange Offer Registration Statement such information as is required by
the
applicable rules and regulations of the Commission, and as such Purchaser
specifies should be included therein relating to the terms of the sale of such
Registrable Securities, including, without limitation, information (i) with
respect to the principal amount of Registrable Securities being sold by such
Purchaser, the name and description of such Purchaser, agent or underwriter,
the
offering price of such Registrable Securities, and any discount, commission
or
other compensation payable in respect thereof and the purchase price being
paid
therefor by such underwriters and (ii) with respect to any other material terms
of the offering of the Registrable Securities to be sold by such Purchaser;
and
make all required filings of such prospectus supplement or post-effective
amendment upon notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment; and
(xvi) for
a
reasonable period prior to the filing of such Exchange Offer Registration
Statement, make available at reasonable times at the Issuers’ principal place of
business, or such other reasonable place for inspection by Purchasers
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such
financial and other relevant information and books and records of the Issuers,
each of their subsidiaries and, as relevant, Parent Companies (as defined
herein), and cause each of their officers, employees, counsel and independent
certified public accountants, to supply all relevant information and to
respond
to such inquiries, as shall be reasonably necessary, in the judgment of
the
Purchasers’ counsel, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that each such party
shall
be required to maintain in confidence and not to disclose to any other
person
any information or records reasonably designated by the Issuers as being
confidential, until such time as (A) such information becomes a matter
of public
record (whether by virtue of its inclusion in such registration statement
or
otherwise, except as a result of a breach of this or any other obligation
of
confidentiality to the Issuers), or (B) such person shall be required so
to
disclose such information pursuant to a subpoena or order of any court
or other
governmental agency or body having jurisdiction over the matter (subject
to the
requirements of such order, and only after such person shall have given
the
Issuers prompt prior written notice of such requirement), or (C) such
information is required to be set forth in such Exchange Offer Registration
Statement or the prospectus included therein or in an amendment to such
Exchange
Offer Registration Statement or an amendment or supplement to such prospectus
in
order that such Exchange Offer Registration Statement, prospectus, amendment
or
supplement, as the case may be, complies with applicable requirements of
the
federal securities laws and the rules and regulations of the Commission
and does
not contain an untrue statement of a material fact or omit to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, provided
further, however, that notwithstanding anything to the contrary in this
clause
(xvi), any such person (and each employee, representative, or other agent
of
such person) may disclose to any and all persons, without limitation, the
U.S.
tax treatment and any facts that may be relevant to the tax structure of
the
matters covered by and relating to this Agreement (including opinions or
other
tax analysis that are provided to such party relating to such tax treatment
and
tax structure); provided, however, that no person (and no employee,
representative, or other agent of any person) shall disclose any other
information that is not relevant to understanding the tax treatment and
tax
structure of the matters covered by and relating to this Agreement (including
the identity of any party and any information that could lead another to
determine the identity of any party), or any other information to the extent
that such non-disclosure is reasonably necessary in order to comply with
applicable securities law.
(d) As
soon
as practicable after the close of the Exchange Offer, the Issuers
shall:
(i) accept
for exchange all Registrable Securities tendered and not validly withdrawn
pursuant to the Exchange Offer;
-11-
(ii) deliver
to the Trustee for cancellation all Notes so accepted for exchange;
and
(iii) cause
the
Trustee promptly to authenticate and deliver to each holder a principal amount
of Exchange Notes equal to the principal amount of the Registrable Securities
of
such Holder so accepted for exchange.
(e) In
connection with the Issuers’ obligations with respect to the Shelf Registration,
if applicable, the Issuers shall, as soon as practicable (or as otherwise
specified):
(i) prepare
and file with the Commission within the time periods specified in Section 2(b),
a Shelf Registration Statement on any form which may be utilized by the Issuers
and which shall register all the Registrable Securities for resale by the
holders thereof in accordance with such method or methods of disposition as
may
be specified by such of the holders as, from time to time, may be Electing
Holders and use their reasonable best efforts to cause such Shelf Registration
Statement to become or be declared effective within the time periods specified
in Section 2(b);
(ii) not
less
than 30 calendar days prior to the Effective Time of the Shelf Registration
Statement, mail the Notice and Questionnaire to the holders of Registrable
Securities; no holder shall be entitled to be named as a selling securityholder
in the Shelf Registration Statement as of the Effective Time, and no holder
shall be entitled to use the prospectus forming a part thereof for resales
of
Registrable Securities at any time, unless such holder has returned a completed
and signed Notice and Questionnaire to the Issuers by the deadline for response
set forth therein; provided, however, holders of Registrable Securities shall
have at least 28 calendar days from the date on which the Notice and
Questionnaire is first mailed to such holders to return a completed and signed
Notice and Questionnaire to the Issuers;
(iii) after
the
Effective Time of the Shelf Registration Statement, upon the request of any
holder of Registrable Securities that is not then an Electing Holder, promptly
send a Notice and Questionnaire to such holder; provided that the Issuers shall
not be required to take any action to name such holder as a selling
securityholder in the Shelf Registration Statement or to enable such holder
to
use the prospectus forming a part thereof for resales of Registrable Securities
until such holder has returned a completed and signed Notice and Questionnaire
to the Issuers;
(iv) as
soon
as practicable prepare and file with the Commission such amendments and
supplements to such Shelf Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the effectiveness of such
Shelf Registration Statement for the period specified in Section 2(b) and as
may
be required by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Shelf Registration Statement,
-12-
and
furnish to the Electing Holders copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission;
(v) comply
with the provisions of the Securities Act with respect to the disposition of
all
the Registrable Securities covered by such Shelf Registration Statement in
accordance with the intended methods of disposition by the Electing Holders
provided for in such Shelf Registration Statement;
(vi) provide
(A) the Electing Holders, (B) the underwriters (which term, for purposes of
this
Exchange and Registration Rights Agreement, shall include a person deemed to
be
an underwriter within the meaning of Section 2(a)(11) of the Securities Act),
if
any, thereof, (C) any sales or placement agent therefor, (D) counsel for any
such underwriter or agent, (E) not more than one counsel for all the Electing
Holders and (F) the Representatives, in advance of filing thereof with the
Commission, a draft of such Shelf Registration Statement, each prospectus
included therein or filed with the Commission and each amendment or supplement
thereto (including any documents incorporated by reference therein after the
initial filing), in each case in substantially the form to be filed with the
Commission, and shall use their commercially reasonable efforts to reflect
in
each such document, when so filed with the Commission, such comments as are
reasonably proposed;
(vii) for
a
reasonable period prior to the filing of such Shelf Registration Statement,
and
throughout the period specified in Section 2(b), make available at reasonable
times at the Issuers’ principal place of business, or such other reasonable
place for inspection by the persons referred to in Section 3(e)(vi) who shall
certify to the Issuers that they have a current intention to sell the
Registrable Securities pursuant to the Shelf Registration such financial and
other relevant information and books and records of the Issuers, each of their
subsidiaries and, as relevant, Parent Companies, and cause each of their
officers, employees, counsel and independent certified public accountants to
supply all relevant information and to respond to such inquiries, as shall
be
reasonably necessary, in the judgment of the respective counsel referred to
in
such Section, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that each such party shall
be required to maintain in confidence and not to disclose to any other person
any information or records reasonably designated by the Issuers as being
confidential, until such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration statement or
otherwise, except as a result of a breach of this or any other obligation of
confidentiality to the Issuers), or (B) such person shall be required so to
disclose such information pursuant to a subpoena or order of any court or other
governmental agency or body having jurisdiction over the matter (subject to
the
requirements of such order, and only after such person shall have given the
Issuers prompt prior written notice of such requirement), or (C) such
information is required to be set forth in such Shelf Registration Statement
or
the prospectus included therein or in an amendment to such Shelf Registration
Statement or an
-13-
amendment
or supplement to such prospectus in order that such Shelf Registration
Statement, prospectus, amendment or supplement, as the case may be, complies
with applicable requirements of the federal securities laws and the rules
and
regulations of the Commission and does not contain an untrue statement
of a
material fact or omit to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of
the circumstances then existing, provided further, however, that notwithstanding
anything to the contrary in this clause (vii), any such person (and each
employee, representative, or other agent of such person) may disclose to
any and
all persons, without limitation, the U.S. tax treatment and any facts that
may
be relevant to the tax structure of the matters covered by and relating
to this
Agreement (including opinions or other tax analysis that are provided to
such
party relating to such tax treatment and tax structure); provided,
however,
that no
person (and no employee, representative, or other agent of any person)
shall
disclose any other information that is not relevant to understanding the
tax
treatment and tax structure of the matters covered by and relating to this
Agreement (including the identity of any party and any information that
could
lead another to determine the identity of any party), or any other information
to the extent that such non-disclosure is reasonably necessary in order
to
comply with applicable securities law;
(viii) promptly
notify each of the Purchasers, the Electing Holders, any sales or placement
agent therefor and any underwriter thereof (which notification may be made
through any managing underwriter that is a representative of such underwriter
for such purpose) and confirm such advice in writing, (A) when such Shelf
Registration Statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed, and, with
respect to such Shelf Registration Statement or any post-effective amendment,
when the same has become effective, (B) of any comments by the Commission and
by
the blue sky or securities commissioner or regulator of any state with respect
thereto, or any request by the Commission for amendments or supplements to
such
Shelf Registration Statement or prospectus or for additional information, (C)
of
the issuance by the Commission of any stop order suspending the effectiveness
of
such Shelf Registration Statement or the initiation or, to the knowledge of
the
Issuers, threatening of any proceedings for that purpose, (D) if at any time
the
representations and warranties of the Issuers contemplated by Section 3(e)(xvii)
or Section 5 hereof cease to be true and correct in all material respects,
(E)
of the receipt by the Issuers of any notification with respect to the suspension
of the qualification of the Registrable Securities for sale in any jurisdiction
or the initiation or, to the knowledge of the Issuers, threatening of any
proceeding for such purpose, or (F) if at any time when a prospectus is required
to be delivered under the Securities Act, that such Shelf Registration
Statement, prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act, or contains
an
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing;
-14-
(ix) use
their
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of such Shelf Registration Statement or any post-effective
amendment thereto as soon as practicable;
(x) if
requested by any managing underwriter or underwriters, any placement or sales
agent or any Electing Holder, promptly incorporate in a prospectus supplement
or
post-effective amendment such information as is required by the applicable
rules
and regulations of the Commission, and as such managing underwriter or
underwriters, such agent or such Electing Holder specifies should be included
therein relating to the terms of the sale of such Registrable Securities,
including, without limitation, information (i) with respect to the principal
amount of Registrable Securities being sold by such Electing Holder or agent
or
to any underwriters, the name and description of such Electing Holder, agent
or
underwriter, the offering price of such Registrable Securities, and any
discount, commission or other compensation payable in respect thereof and the
purchase price being paid therefor by such underwriters and (ii) with respect
to
any other material terms of the offering of the Registrable Securities to be
sold by such Electing Holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective amendment
upon
notification of the matters to be incorporated in such prospectus supplement
or
post-effective amendment;
(xi) furnish
to each Electing Holder, each placement or sales agent, if any, therefor, each
underwriter, if any, thereof and the respective counsel referred to in Section
3(e)(vi) hereof an executed copy (or, in the case of an Electing Holder, a
conformed copy) of such Shelf Registration Statement, each such amendment and
supplement thereto (in each case including all exhibits thereto (in the case
of
an Electing Holder of Registrable Securities, upon request) and documents
incorporated by reference therein) and such number of copies of such Shelf
Registration Statement (excluding exhibits thereto and documents incorporated
by
reference therein unless specifically so requested by such Electing Holder,
agent or underwriter, as the case may be) and of the prospectus included in
such
Shelf Registration Statement (including, without limitation, each preliminary
prospectus and any summary prospectus), in conformity in all material respects
with the applicable requirements of the Securities Act and the Trust Indenture
Act, and such other documents, as such Electing Holder, agent, if any, and
underwriter, if any, may reasonably request in order to facilitate the offering
and disposition of the Registrable Securities owned by such Electing Holder,
offered or sold by such agent or underwritten by such underwriter and to permit
such Electing Holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Issuers hereby consent to the use
of
such prospectus (including, without limitation, such preliminary and summary
prospectus) and any amendment or supplement thereto by each such Electing Holder
and by any such agent and underwriter, in each case in the form most recently
provided to such person by the Issuers, in connection with the offering and
sale
of the Registrable Securities covered by the prospectus (including, without
limitation, such preliminary and summary prospectus) or any supplement or
amendment thereto;
-15-
(xii) use
their
reasonable best efforts to (A) register or qualify the Registrable Securities
to
be included in such Shelf Registration Statement under such securities laws
or
blue sky laws of such jurisdictions as any Electing Holder and each placement
or
sales agent, if any, therefor and underwriter, if any, thereof shall reasonably
request, (B) keep such registrations or qualifications in effect and comply
with
such laws so as to permit the continuance of offers, sales and dealings therein
in such jurisdictions during the period the Shelf Registration is required
to
remain effective under Section 2(b) above and for so long as may be necessary
to
enable any such Electing Holder, agent or underwriter to complete its
distribution of Notes pursuant to such Shelf Registration Statement and (C)
take
any and all other actions as may be reasonably necessary or advisable to enable
each such Electing Holder, agent, if any, and underwriter, if any, to consummate
the disposition in such jurisdictions of such Registrable Securities; provided,
however, that none of the Issuers shall be required for any such purpose to
(1)
qualify as a foreign corporation or limited liability company, as the case
may
be, in any jurisdiction wherein it would not otherwise be required to qualify
but for the requirements of this Section 3(d)(xii), (2) consent to general
service of process in any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws (or other organizational document)
or
any agreement between it and holders of its ownership interests;
(xiii) use
their
reasonable best efforts to obtain the consent or approval of each governmental
agency or authority, whether federal, state or local, which may be required
to
effect the Shelf Registration or the offering or sale in connection therewith
or
to enable the selling holder or holders to offer, or to consummate the
disposition of, their Registrable Securities;
(xiv) unless
any Registrable Securities shall be in book-entry only form, cooperate with
the
Electing Holders and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
to
be sold, which certificates, if so required by any securities exchange upon
which any Registrable Securities are listed, shall be penned, lithographed
or
engraved, or produced by any combination of such methods, on steel engraved
borders, and which certificates shall not bear any restrictive legends; and,
in
the case of an underwritten offering, enable such Registrable Securities to
be
in such denominations and registered in such names as the managing underwriters
may request at least two business days prior to any sale of the Registrable
Securities;
(xv) provide
a
CUSIP number for all Registrable Securities, not later than the applicable
Effective Time;
(xvi) enter
into one or more underwriting agreements, engagement letters, agency agreements,
"best efforts" underwriting agreements or similar agreements, as appropriate,
including customary provisions relating to indemnification and contribution
(but
no less favorable than those set forth in Section 6 with respect to all parties
indemnified under Section 6), unless such provisions are ac-
-16-
ceptable
to Electing Holders of at least 50% in aggregate principal amount and any
managing underwriters, and take such other actions in connection therewith
as
any Electing Holders of at least 20% in aggregate principal amount of the
Registrable Securities at the time outstanding shall request in order to
expedite or facilitate the disposition of such Registrable
Securities;
(xvii) whether
or not an agreement of the type referred to in Section 3(e)(xvi) hereof is
entered into, and whether or not any portion of the offering contemplated by
the
Shelf Registration is an underwritten offering or is made through a placement
or
sales agent or any other entity, (A) make such representations and warranties
to
the Electing Holders and the placement or sales agent, if any, therefor and
the
underwriters, if any, thereof in form, substance and scope as are customarily
made in connection with an offering of debt securities pursuant to any
appropriate agreement or to a registration statement filed on the form
applicable to the Shelf Registration; (B) obtain an opinion of counsel to the
Issuers in customary form, subject to customary limitations, assumptions and
exclusions, and covering such matters, of the type customarily covered by such
an opinion, as the managing underwriters, if any, or as any Electing Holders
of
at least 20% in aggregate principal amount of the Registrable Securities at
the
time outstanding may reasonably request, addressed to such Electing Holder
or
Electing Holders and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the date of the Effective Time of such
Shelf Registration Statement (and if such Shelf Registration Statement
contemplates an underwritten offering of a part or all of the Registrable
Securities, dated the date of the closing under the underwriting agreement
relating thereto) (it being agreed that the matters to be covered by such
opinion shall include the matters set forth in paragraphs (b), (c) and (d)
of
Section 7 of the Purchase Agreement to the extent applicable to an offering
of
this type); (C) obtain a "cold comfort" letter or letters from the independent
certified public accountants of the Issuers addressed to the selling Electing
Holders, the placement or sales agent, if any, therefor or the underwriters,
if
any, thereof, dated (i) the effective date of such Shelf Registration Statement
and (ii) the effective date of any prospectus supplement to the prospectus
included in such Shelf Registration Statement or post-effective amendment to
such Shelf Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the latest such
statements included in such prospectus (and, if such Shelf Registration
Statement contemplates an underwritten offering pursuant to any prospectus
supplement to the prospectus included in such Shelf Registration Statement
or
post-effective amendment to such Shelf Registration Statement which includes
unaudited or audited financial statements as of a date or for a period
subsequent to that of the latest such statements included in such prospectus,
dated the date of the closing under the underwriting agreement relating
thereto), such letter or letters to be in customary form and covering such
matters of the type customarily covered by letters of such type; (D) deliver
such documents and certificates, including, without limitation, officers’
certificates, as may be reasonably requested by any Electing Holders of at
least
20% in aggregate principal amount of the Registrable Securities at the
-17-
time
outstanding or the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the representations
and warranties made pursuant to clause (A) above or those contained in
Section
5(a) hereof and the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other similar agreement
entered into by the Issuers pursuant to Section 3(e)(xvi); and (E) undertake
such obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
(xviii) notify
in
writing each holder of Registrable Securities of any proposal by the Issuers
to
amend or waive any provision of this Exchange and Registration Rights Agreement
pursuant to Section 9(h) hereof and of any amendment or waiver effected pursuant
thereto, each of which notices shall contain the substance of the amendment
or
waiver proposed or effected, as the case may be;
(xix) in
the
event that any broker-dealer registered under the Exchange Act shall underwrite
any Registrable Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within the meaning
of the Conduct Rules (the "Conduct Rules") of the National Association of
Securities Dealers, Inc. ("NASD") or any successor thereto, as amended from
time
to time) thereof, whether as a holder of such Registrable Securities or as
an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Conduct Rules, including, without limitation, by (A) if
such Conduct Rules shall so require, engaging a "qualified independent
underwriter" (as defined in such Conduct Rules) to participate in the
preparation of the Shelf Registration Statement relating to such Registrable
Securities, to exercise usual standards of due diligence in respect thereto
and,
if any portion of the offering contemplated by such Shelf Registration Statement
is an underwritten offering or is made through a placement or sales agent,
to
recommend the yield of such Registrable Securities, (B) indemnifying any such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof (or to such other customary extent
as
may be requested by such underwriter), and (C) providing such information to
such broker-dealer as may be required in order for such broker-dealer to comply
with the requirements of the Conduct Rules; and
(xx) comply
with all applicable rules and regulations of the Commission, and make generally
available to its securityholders as soon as practicable but in any event not
later than eighteen months after the effective date of such Shelf Registration
Statement, an earning statement of the Company and its subsidiaries complying
with Section 11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder).
(f) In
the
event that the Issuers would be required, pursuant to Section 3(e)(viii)(F)
hereof, to notify the Electing Holders, the placement or sales agent, if any,
therefor and the managing underwriters, if any, thereof, the Issuers shall
prepare and fur-
-18-
nish
to
each of the Electing Holders, to each placement or sales agent, if any,
and to
each such underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers
of
Registrable Securities, such prospectus conforms in all material respects
to the
applicable requirements of the Securities Act and the Trust Indenture Act,
and
shall not contain an untrue statement of a material fact or omit to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing. Each
Electing Holder agrees that upon receipt of any notice from the Issuers
pursuant
to Section 3(e)(viii)(F) hereof, such Electing Holder shall forthwith
discontinue the disposition of Registrable Securities pursuant to the Shelf
Registration Statement applicable to such Registrable Securities until
such
Electing Holder shall have received copies of such amended or supplemented
prospectus, and if so directed by the Issuers, such Electing Holder shall
deliver to the Issuers (at the Issuers’ expense) all copies, other than
permanent file copies, then in such Electing Holder’s possession of the
prospectus covering such Registrable Securities at the time of receipt
of such
notice.
(g) In
the
event of a Shelf Registration, in addition to the information required to be
provided by each Electing Holder in its Notice and Questionnaire, the Issuers
may require such Electing Holder to furnish to the Issuers such additional
information regarding such Electing Holder and such Electing Holder’s intended
method of distribution of Registrable Securities as may be required in order
to
comply with the Securities Act. Each such Electing Holder agrees to notify
the
Issuers as promptly as practicable of any inaccuracy or change in information
previously furnished by such Electing Holder to the Issuers or of the occurrence
of any event in either case as a result of which any prospectus relating to
such
Shelf Registration contains or would contain an untrue statement of a material
fact regarding such Electing Holder or such Electing Holder’s intended method of
disposition of such Registrable Securities or omits to state any material fact
regarding such Electing Holder or such Electing Holder’s intended method of
disposition of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the Issuers any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such Electing Holder or the disposition of such Registrable Securities,
an
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein not misleading
in
light of the circumstances then existing.
4. Registration
Expenses.
The
Issuers agree, subject to the last sentence of this Section 4, to bear and
to
pay or cause to be paid promptly all expenses incident to the Issuers’
performance of or compliance with this Exchange and Registration Rights
Agreement, including, without limitation, (a) all Commission and any NASD
registration, filing and review fees and expenses including, without limitation,
fees and disbursements of counsel for the placement or sales agent or
underwriters in connection with such registration, filing and review, (b) all
fees and expenses in connection with the qualification of the Notes for offering
and sale under the securities laws and blue sky laws referred to in Section
3(e)(xii) hereof and determination of their eligibility for investment under
the
laws of such jurisdictions as any managing un-
-19-
derwriters
or the Electing Holders may designate, including, without limitation, any
fees
and disbursements of counsel for the Electing Holders or underwriters in
connection with such qualification and determination, (c) all expenses
relating
to the preparation, printing, production, distribution and reproduction
of each
registration statement required to be filed hereunder, each prospectus
included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Notes for delivery
and the expenses of printing or producing any underwriting agreements,
agreements among underwriters, selling agreements and blue sky or legal
investment memoranda and all other documents in connection with the offering,
sale or delivery of Notes to be disposed of (including, without limitation,
certificates representing the Notes), (d) messenger, telephone and delivery
expenses relating to the offering, sale or delivery of Notes and the preparation
of documents referred in clause (c) above, (e) fees and expenses of the
Trustee
under the Indenture, any agent of the Trustee and any reasonable fees and
expenses for counsel for the Trustee and of any collateral agent or custodian,
(f) internal expenses (including, without limitation, all salaries and
expenses
of the Issuers’ officers and employees performing legal or accounting duties),
(g) fees, disbursements and expenses of counsel and independent certified
public
accountants of the Issuers (including, without limitation, the expenses
of any
opinions or "cold comfort" letters required by or incident to such performance
and compliance), (h) fees, disbursements and expenses of any "qualified
independent underwriter" engaged pursuant to Section 3(e)(xix) hereof,
(i)
reasonable fees, disbursements and expenses of one counsel for the Electing
Holders retained in connection with a Shelf Registration, as selected by
the
Electing Holders of at least a majority in aggregate principal amount of
the
Registrable Securities held by Electing Holders (which counsel shall be
reasonably satisfactory to the Issuers), (j) any fees charged by securities
rating services for rating the Notes, and (k) reasonable fees, expenses
and
disbursements of any other persons, including, without limitation, special
experts, retained by the Issuers in connection with such registration
(collectively, the "Registration Expenses"). To the extent that any Registration
Expenses are incurred, assumed or paid by any holder of Registrable Securities
or any placement or sales agent therefor or underwriter thereof, the Issuers
shall reimburse such person for the full amount of the Registration Expenses
so
incurred, assumed or paid promptly after receipt of a request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities
being
registered shall pay all agency fees and commissions and underwriting discounts
and commissions attributable to the sale of such Registrable Securities
and the
fees and disbursements of any counsel or other advisors or experts retained
by
such holders (severally or jointly), other than the counsel and experts
specifically referred to above.
5. Representations,
Warranties and Covenants.
Except
with respect to clauses (a) and (b) below, the Issuers represent and warrant
to,
and agree with, each Purchaser and each of the holders from time to time of
Registrable Securities the information set forth in this Section 5.
With
respect to clauses (a) and (b) below, the Issuers covenant that:
(a) Each
registration statement covering Registrable Securities and each prospectus
(including, without limitation, any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(e) or Section 3(c) hereof and any
further amendments or supplements to any such registration statement or
prospectus, when it be-
-20-
comes
effective or is filed with the Commission, as the case may be, and, in
the case
of an underwritten offering of Registrable Securities, at the time of the
closing under the underwriting agreement relating thereto, will conform
in all
material respects to the requirements of the Securities Act and the Trust
Indenture Act and will not contain an untrue statement of a material fact
or
omit to state a material fact required to be stated therein or necessary
to make
the statements therein not misleading; and at all times subsequent to the
Effective Time when a prospectus would be required to be delivered under
the
Securities Act, other than from (i) such time as a notice has been given
to
holders of Registrable Securities pursuant to Section 3(e)(viii)(F) or
Section
3(c)(iii)(F) hereof until (ii) such time as the Issuers furnish an amended
or
supplemented prospectus pursuant to Section 3(f) or Section 3(c)(iv) hereof,
each such registration statement, and each prospectus (including, without
limitation, any preliminary or summary prospectus) contained therein or
furnished pursuant to Section 3(e) or Section 3(c) hereof, as then amended
or
supplemented, will conform in all material respects to the requirements
of the
Securities Act and the Trust Indenture Act and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be
stated therein or necessary to make the statements therein not misleading
in the
light of the circumstances then existing; provided, however, that this
covenant
shall not apply to any statements or omissions made in reliance upon and
in
conformity with information furnished in writing to the Issuers by a holder
of
Registrable Securities expressly for use therein.
(b) Any
documents incorporated by reference in any prospectus referred to in Section
5(a) hereof, when they become or became effective or are or were filed with
the
Commission, as the case may be, will conform or conformed in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this covenant shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Issuers by a holder of Registrable Securities
expressly for use therein.
(c) The
compliance by the Issuers with all the provisions of this Exchange and
Registration Rights Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a material breach of any of
the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement, lease, license, franchise agreement, permit
or
other material agreement or instrument to which either of the Issuers or any
of
Charter Communications, Inc. ("CCI"), Charter Communications Holding Company,
LLC ("CCH LLC"), Charter Communications Holdings, LLC ("Holdings"), CCH I,
LLC
("CCH I") and CCH II, LLC (collectively with CCI, CCH LLC, Holdings and CCH
I,
the "Parent Companies") or the Issuers’ subsidiaries is a party or by which
either of the Issuers or any of their Parent Companies or the Issuers’
subsidiaries is bound or to which any of the property or assets of the Issuers
or any of their Parent Companies or the Issuers’ subsidiaries is subject, nor
will such action result in any violation of the provisions of the certificate
of
formation or limited liability company agreement of the Company or the
certificate of incorporation or
-21-
bylaws
of
CCO Holdings Capital or any statute or any order, rule or regulation of
any
court or governmental agency or body, including without limitation, the
Communications Act of 1934, as amended, the Cable Communications Policy
Act of
1984, as amended, the Cable Television Consumer Protection and Competition
Act
of 1992, as amended, and the Telecommunications Act of 1996 (collectively,
the
"Cable Acts") or any order, rule or regulation of the Federal Communications
Commission (the "FCC"), having jurisdiction over the Issuers or any of
their
Parent Companies or the Issuers’ subsidiaries or any of their properties, except
for any such violation which would not materially impair the Issuers’ ability to
comply herewith; and no consent, approval, authorization, order, registration
or
qualification of or with any such court or governmental agency or body
is
required, including, without limitation, under the Cable Acts or any order,
rule
or regulation of the FCC, for the consummation by the Issuers of the
transactions contemplated by this Exchange and Registration Rights Agreement,
except the registration under the Securities Act of the Notes, qualification
of
the Indenture under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
State
Notes or blue sky laws in connection with the offering and distribution
of the
Notes.
(d) This
Exchange and Registration Rights Agreement has been duly authorized, executed
and delivered by the Issuers.
6. Indemnification.
(a) The
Issuers, jointly and severally, agree to indemnify and hold harmless each holder
of Registrable Securities or Exchange Notes, as the case may be, covered by
any
Exchange Offer Registration Statement or Shelf Registration Statement (including
each Purchaser and, with respect to any prospectus delivery as contemplated
in
Section 3(c)(ii) or (iv) hereof, each holder (which may include any Purchaser)
that is a broker-dealer and elects to exchange for Exchange Notes any
Registrable Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from
the
Issuers or any affiliate of the Issuers) for Exchange Notes) (each an
"Exchanging Dealer"), the affiliates, directors, officers, employees and agents
of each such holder and each person who controls any such holder within the
meaning of either the Securities Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or
any
of them may become subject under the Securities Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Exchange Offer Registration
Statement or Shelf Registration Statement as originally filed or in any
amendment thereof, or in any preliminary prospectus or the prospectus included
in any registration statement, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to
state therein a material fact required to be stated therein or necessary to
make
the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided,
however,
that
the Issuers will not be liable in any case to the extent that any such loss,
claim, damage or liability arises out of or is based
-22-
upon
any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Issuers by or on behalf of any such holder
specifically for inclusion therein. This indemnity agreement will be in
addition
to any liability which the Issuers may otherwise have.
The
Issuers, jointly and severally, also agree to indemnify or contribute as
provided in Section 6(d) to Losses of any underwriter of Registrable Securities
or Exchange Notes, as the case may be, registered under a Shelf Registration
Statement, their directors, officers, employees or agents and each person who
controls such underwriter within the meaning of either the Securities Act or
the
Exchange Act, on substantially the same basis as that of the indemnification
of
the Purchasers and the selling Holders provided in this Section 6(a) and shall,
if requested by any holder, enter into an underwriting agreement reflecting
such
agreement, as provided in Section 3(e)(xvi) hereof.
(b) Each
holder of Registrable Securities or Exchange Notes covered by an Exchange Offer
Registration Statement or Shelf Registration Statement (including each Purchaser
and, with respect to any prospectus delivery as contemplated in Section 3(c)(ii)
or )iv) or Section 3(f) hereof, each Exchanging Dealer) severally agrees to
indemnify and hold harmless the Issuers and each of their affiliates, directors,
employees, members, managers and agents and each Person who controls the Issuers
within the meaning of either the Securities Act or the Exchange Act, to the
same
extent as the foregoing indemnity from the Issuers to each such holder, but
only
with reference to written information relating to such holder furnished to
the
Issuers by or on behalf of such holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will
be in addition to any liability which any such holder may otherwise
have.
(c) Promptly
after receipt by an indemnified party under this Section 6 or notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 6,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, except as provided in the
next sentence, after notice from the indemnifying party to such indemnified
party of its election to so assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. Notwithstanding the indemnifying party’s rights in the
prior sentence, the indemnified party shall have the right to employ its own
counsel (and one local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use
of
counsel chosen by the indemnifying party to represent the in-
-23-
demnified
party would present such counsel with a conflict of interest; (ii) the
actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall
have reasonably concluded that there may be legal defenses available to
it
and/or other indemnified parties which are different from or additional
to those
available to the indemnifying party; (iii) the indemnifying party shall
not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution
of
such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party.
No
indemnifying party shall, in connection with any one action or separate
but
substantially similar or related actions in the same jurisdiction arising
out of
the same general circumstances or allegations, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any
local
counsel) for all indemnified parties. An indemnifying party shall not be
liable
under this Section 6 to any indemnified party regarding any settlement
or
compromise or consent to the entry of any judgment with respect to any
pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent is consented to by such
indemnifying party, which consent shall not be unreasonably
withheld.
(d) In
the
event that the indemnity provided in paragraph (a) or (b) of this Section 6
is
unavailable to or insufficient to hold harmless an indemnified party for any
reason, then each applicable indemnifying party agrees to contribute to the
aggregate losses, claims, damages and liabilities (including, without
limitation, legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which such
indemnifying party may be subject in such proportion as is appropriate to
reflect the relative benefits received by the indemnifying party on the one
hand
and by the indemnified party on the other from the offering of the Notes. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also
the relative fault of the indemnifying party on the one hand and the indemnified
party on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. Benefits received by
the
Issuers shall be deemed to be equal to the sum of (x) the total net proceeds
from the initial placement of the Notes (before deducting expenses) reflected
in
the Purchase Agreement and (y) the total amount of Special Interest which the
Issuers were not required to pay as a result of registering the securities
covered by the Exchange Offer Registration Statement or Shelf Registration
Statement which resulted in such Losses. Benefits received by the Purchasers
shall be deemed to be equal to the total purchase discounts and commissions
as
reflected in the Purchase Agreement, and benefits received by any other holders
shall be deemed to be equal to the proceeds received from the sale of the
Registrable Securities or Exchange Notes, as applicable. Benefits received
by
any underwriter shall be deemed to be equal to the total underwriting discounts
and commissions, as set forth in the prospectus forming a part of the Exchange
Offer Registration Statement or Shelf Registration Statement which resulted
in
such Losses. The relative fault shall be determined by reference to, among
other
things, whether the untrue or alleged untrue statement of a
material
-24-
fact
or
the omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party on the one hand or the indemnified party
on
the other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties
agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the holders
or
any agents or underwriters or all of them were treated as one entity for
such
purpose) or by any other method of allocation which does not take account
of the
equitable considerations referred to above in this subsection (d). The
amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above
in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending
any such action or claim. Notwithstanding the provisions of this subsection
(d),
no holder shall be required to contribute any amount in excess of the amount
by
which the dollar amount of the proceeds received by such holder from the
sale of
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) exceeds the amount of any damages which such holder
has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no underwriter shall be
required
to contribute any amount in excess of the amount by which the total price
of the
Registrable Securities underwritten by it and distributed to the public
exceeds
the amount of any damages which such underwriter has otherwise been required
to
pay by reason of such untrue or alleged untrue statement or omission or
alleged
omission. The holders’ and any underwriters’ obligations in this subsection (d)
to contribute are several in proportion to the principal amount of Registrable
Securities registered or underwritten, as the case may be, by them, and
not
joint. Notwithstanding the provisions of this paragraph (d), no person
guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not
guilty of such fraudulent misrepresentation. For purposes of this Section
6,
each person who controls any holder, agent or underwriter within the meaning
of
either the Securities Act or the Exchange Act and each director, officer,
employee and agent of a holder, agent or underwriter shall have the same
rights
to contribution as such holder, agent or underwriter, and each person who
controls the Issuers within the meaning of either the Securities Act or
the
Exchange Act and each officer and director of the Issuers shall have the
same
rights to contribution as the Issuers, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The
provisions of this Section will remain in full force and effect, regardless
of
any investigation made by or on behalf of any holder or the Issuers or any
of
the officers, directors or controlling persons referred to in this Section
hereof, and will survive the sale by a holder of securities covered by an
Exchange Offer Registration Statement or Shelf Registration
Statement.
7. Underwritten
Offerings.
(a) Selection
of Underwriters.
If any
of the Registrable Securities covered by the Shelf Registration are to be sold
pursuant to an underwritten offering, the managing underwriter or underwriters
thereof shall be designated by Electing Holders holding at least a majority
in
aggregate principal amount of the Registrable Securities to be included in
such
offering, pro-
-25-
vided
that such designated managing underwriter or underwriters is or are reasonably
acceptable to the Issuers.
(b) Participation
by Holders.
Each
holder of Registrable Securities hereby agrees with each other such holder
that
no such holder may participate in any underwritten offering hereunder unless
such holder (i) agrees to sell such holder’s Registrable Securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
8. Rule
144.
Each of
the Issuers covenants to the holders of Registrable Securities that to the
extent it shall be required to do so under the Exchange Act, it shall timely
file the reports required to be filed by it under the Exchange Act or the
Securities Act (including, without limitation, the reports under Section 13
and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted
by the Commission under the Securities Act), and shall take such further action
as any holder of Registrable Securities may reasonably request, all to the
extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemption provided by Rule 144 under the Securities Act, or any similar
or successor rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Registrable Securities in connection with that holder’s
sale pursuant to Rule 144, the Issuers shall deliver to such holder a written
statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) No
Inconsistent Agreements.
The
Issuers represent, warrant, covenant and agree that they have not granted,
and
shall not grant, registration rights with respect to Registrable Securities
or
any other Notes which would be inconsistent with the terms contained in this
Exchange and Registration Rights Agreement.
(b) Specific
Performance.
The
parties hereto acknowledge that there would be no adequate remedy at law if
the
Issuers fail to perform any of their obligations hereunder and that the
Purchasers and the holders from time to time of the Registrable Securities
may
be irreparably harmed by any such failure, and accordingly agree that the
Purchasers and such holders, in addition to any other remedy to which they
may
be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of the Issuers under this Exchange and
Registration Rights Agreement in accordance with the terms and conditions of
this Exchange and Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) Notices.
All
notices, requests, claims, demands, waivers and other communications hereunder
shall be in writing and shall be deemed to have been duly given (i) when
delivered by hand, if delivered personally or by courier, (ii) when sent by
facsimile (with written confirmation of receipt), provided that a copy is mailed
by registered or certified mail, return receipt requested or (iii) three days
after being deposited in the mail (registered or certified mail,
-26-
postage
prepaid, return receipt requested) as follows: If to the Issuers, c/o CCO
Holdings, LLC, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention:
Secretary, and if to a holder, to the address of such holder set forth
in the
security register or other records of the Issuers, or to such other address
as
the Issuers or any such holder may have furnished to the other in writing
in
accordance herewith, with a copy in like manner c/o ▇.▇. ▇▇▇▇▇▇ Securities
Inc.
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: (▇▇▇)
▇▇▇-▇▇▇▇). Notices of change of address shall be effective only upon
receipt.
(d) Parties
in Interest.
All the
terms and provisions of this Exchange and Registration Rights Agreement shall
be
binding upon, shall inure to the benefit of and shall be enforceable by the
parties hereto and the holders from time to time of the Registrable Securities
and the respective successors and assigns of the parties hereto and such
holders. In the event that any person shall acquire Registrable Securities,
in
any manner, whether by gift, bequest, purchase, operation of law or otherwise,
such transferee shall, without any further writing or action of any kind, be
deemed a beneficiary hereof for all purposes and such Registrable Securities
shall be held subject to all the terms of this Exchange and Registration Rights
Agreement, and by taking and holding such Registrable Securities such transferee
shall be entitled to receive the benefits, and be conclusively deemed to have
agreed to be bound by all the applicable terms and provisions, of this Exchange
and Registration Rights Agreement. If the Issuers shall so request, any such
successor, assign or transferee shall agree in writing to acquire and hold
the
Registrable Securities subject to all the applicable terms hereof.
(e) Survival.
The
respective indemnities, agreements, representations, warranties and each other
provision set forth in this Exchange and Registration Rights Agreement or made
pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf
of
any holder of Registrable Securities, any director, officer or partner of such
holder, any agent or underwriter or any director, officer or partner thereof,
or
any controlling person of any of the foregoing, and shall survive delivery
of
and payment for the Registrable Securities pursuant to the Purchase Agreement
and the transfer and registration of Registrable Securities by such holder
and
the consummation of an Exchange Offer.
(f) GOVERNING
LAW.
THIS
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) Headings.
The
descriptive headings of the several Sections and paragraphs of this Exchange
and
Registration Rights Agreement are inserted for convenience only, do not
constitute a part of this Exchange and Registration Rights Agreement and shall
not affect in any way the meaning or interpretation of this Exchange and
Registration Rights Agreement.
(h) Entire
Agreement; Amendments.
This
Exchange and Registration Rights Agreement and the other writings referred
to
herein (including, without limitation, the Indenture and the form of Notes)
or
delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This Exchange
and Registration Rights Agreement supersedes all prior agreements and
understandings between the parties with
-27-
respect
to its subject matter. This Exchange and Registration Rights Agreement
may be
amended and the observance of any term of this Exchange and Registration
Rights
Agreement may be waived (either generally or in a particular instance and
either
retroactively or prospectively) only by a written instrument duly executed
by
the Issuers and the holders of at least a majority in aggregate principal
amount
of the Registrable Securities at the time outstanding. Each holder of any
Registrable Securities at the time or thereafter outstanding shall be bound
by
any amendment or waiver effected pursuant to this Section 9(h), whether
or not
any notice, writing or marking indicating such amendment or waiver appears
on
such Registrable Securities or is delivered to such
holder.
(i) Inspection.
For so
long as this Exchange and Registration Rights Agreement shall be in effect,
this
Exchange and Registration Rights Agreement and a complete list of the names
and
addresses of all the holders of Registrable Securities shall be made available
for inspection and copying, upon reasonable prior notice, on any business day
during normal business hours by any holder of Registrable Securities for proper
purposes only (which shall include any purpose related to the rights of the
holders of Registrable Securities under the Notes, the Indenture and this
Exchange and Registration Rights Agreement) at the offices of the Issuers at
the
address thereof set forth in Section 9(c) above and at the office of the Trustee
under the Indenture.
(j) Counterparts.
This
agreement may be executed by the parties in counterparts, each of which shall
be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
(k) Severability.
In the
event that any one or more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected thereby, it
being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(l) Securities
Held by the Issuers, etc. Whenever the consent or approval of holders of a
specified percentage of principal amount of Registrable Securities or Exchange
Notes is required hereunder, Registrable Securities or Exchange Notes, as
applicable, held by the Issuers or their affiliates (other than subsequent
holders of Registrable Securities or Exchange Notes if such subsequent holders
are deemed to be affiliates solely by reason of their holdings of such
Registrable Securities or Exchange Notes) shall not be counted in determining
whether such consent or approval was given by the holders of such required
percentage.
-28-
If
the
foregoing is in accordance with your understanding, please sign and return
to us
counterparts hereof, and upon the acceptance hereof by you, on behalf of each
of
the Purchasers, this letter and such acceptance hereof shall constitute a
binding agreement between each of the Purchasers and the Issuers. It is
understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Issuers for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very
truly yours,
CCO
HOLDINGS, LLC,
as
an
Issuer
By: /s/
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
|
Title:
|
Senior Vice President - Finance and Treasurer |
as
an
Issuer
By: /s/
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
|
Title:
|
Senior Vice President - Finance and Treasurer |
SIGNATURE
PAGE TO THE REGISTRATION RIGHTS AGREEMENT
Accepted
as of the date hereof:
▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
CREDIT
SUISSE FIRST BOSTON LLC
BANC
OF
AMERICA SECURITIES LLC
as
Representatives of the Several Purchasers
By:
▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
|
By:
|
/s/
▇▇▇▇▇
▇▇▇▇▇▇
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Managing Director
SIGNATURE
PAGE TO THE REGISTRATION RIGHTS AGREEMENT
EXHIBIT
A
CCO
HOLDINGS, LLC
INSTRUCTION
TO DTC PARTICIPANTS
(Date
of
Mailing)
URGENT
—
IMMEDIATE ATTENTION REQUESTED
DEADLINE
FOR RESPONSE: [DATE](a)
The
Depository Trust Company ("DTC") has identified you as a DTC Participant through
which beneficial interests in the CCO Holdings, LLC (the "Company") and CCO
Holdings Capital Corp. (together with the Company, the "Issuers’") 8-3/4% Senior
Notes due 2013 issued on August 17, 2005 (the "Notes") are
held.
The
Issuers are in the process of registering the Notes under the Securities Act
of
1933, as amended, for resale by the beneficial owners thereof. In order to
have
their Notes included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It
is
important that beneficial owners of the Notes receive a copy of the enclosed
materials as soon as possible as their rights to have the Notes included in
the
registration statement depend upon their returning the Notice and Questionnaire
by [Deadline For Response]. Please forward a copy of the enclosed documents
to
each beneficial owner that holds interests in the Notes through you. If you
require more copies of the enclosed materials or have any questions pertaining
to this matter, please contact the Issuers c/o CCO Holdings, LLC, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: Secretary.
(a) Not
less
than 28 calendar days from date of mailing.
A-1
CCO
HOLDINGS, LLC
CCO
HOLDINGS CAPITAL CORPORATION
Notice
of
Registration Statement
and
Selling
Securityholder Questionnaire
(Date)
Reference
is hereby made to the Exchange and Registration Rights Agreement (the "Exchange
and Registration Rights Agreement") between CCO Holdings, LLC and CCO Holdings
Capital Corp. (together, the "Issuers"), and the Purchasers named therein.
Pursuant to the Exchange and Registration Rights Agreement, the Issuers have
filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities
Act
of 1933, as amended (the "Securities Act"), of the Issuers’ 8-3/4% Senior Notes
due 2013 issued on August 17, 2005 (the "Notes"). A copy of the Exchange and
Registration Rights Agreement is attached hereto. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Exchange and Registration Rights Agreement.
Each
beneficial owner of Registrable Securities is entitled to have the Registrable
Securities beneficially owned by it included in the Shelf Registration
Statement. In order to have Registrable Securities included in the Shelf
Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire ("Notice and Questionnaire") must be completed,
executed and delivered to the Issuers’ counsel at the address set forth herein
for receipt ON OR BEFORE [Deadline for Response]. Beneficial owners of
Registrable Securities who do not complete, execute and return this Notice
and
Questionnaire by such date (i) will not be named as selling securityholders
in
the Shelf Registration Statement and (ii) may not use the Prospectus forming
a
part thereof for resales of Registrable Securities.
Certain
legal consequences arise from being named as a selling securityholder in the
Shelf Registration Statement and related prospectus. Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related prospectus.
A-2
ELECTION
The
undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees
to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder
were
an original party thereto.
Upon
any
sale of Registrable Securities pursuant to the Shelf Registration Statement,
the
Selling Securityholder will be required to deliver to the Issuers and the
Trustee the Notice of Transfer Pursuant to Registration Statement set forth
in
Exhibit B to the Exchange and Registration Rights Agreement.
The
Selling Securityholder hereby provides the following information to the Issuers
and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
(1)
(a) Full
Legal Name of Selling Securityholder:
(b) Full
Legal Name of Registered Holder (if not the same as in (a) above) of Registrable
Securities Listed in Item (3) below:
(c) Full
Legal Name of DTC Participant (if applicable and if not the same as (b) above)
Through Which Registrable Securities Listed in Item (3) below are
Held:
(2)
Address
for Notices to Selling Securityholder:
_______________________________
_______________________________
_______________________________
Telephone: _________________________
Fax: _______________________________
Contact
Person: ______________________
(3)
Beneficial
Ownership of Notes:
Except
as
set forth below in this Item (3), the undersigned does not beneficially own
any
Notes.
(a)Principal
amount of Registrable Securities beneficially owned:
____________________________________
CUSIP
No(s). of such Registrable Securities:
_________________________________________________
A-3
(b)Principal
amount of Notes other than Registrable Securities beneficially
owned:_______________________
CUSIP
No(s). of such other Notes:
_________________________________________________________
(c)Principal
amount of Registrable Securities which the undersigned wishes to be included
in
the Shelf Registration Statement: _____________
CUSIP
No(s). of such Registrable Securities to be included in the Shelf Registration
Statement: ___________________________________
|
(4)
|
Beneficial
Ownership of Other Securities of the
Issuers:
|
Except
as
set forth below in this Item (4), the undersigned Selling Securityholder is
not
the beneficial or registered owner of any other securities of the Issuers other
than the Notes listed above in Item (3).
State
any
exceptions here:
|
(5)
|
Relationships
with the Issuers:
|
Except
as
set forth below, neither the Selling Securityholder nor any of its affiliates,
officers, directors or principal equity holders (5% or more) has held any
position or office or has had any other material relationship with the Issuers
(or their respective predecessors or affiliates) during the past three
years.
State
any
exceptions here:
|
(6)
|
Plan
of Distribution:
|
Except
as
set forth below, the undersigned Selling Securityholder intends to distribute
the Registrable Securities listed above in Item (3) only as follows (if at
all):
Such Registrable Securities may be sold from time to time directly by the
undersigned Selling Securityholder or, alternatively, through underwriters,
broker-dealers or agents. Such Registrable Securities may be sold in one or
more
transactions at fixed prices, at prevailing market prices at the time of sale,
at varying prices determined at the time of sale, or at negotiated prices.
Such
sales may be effected in transactions (which may involve crosses or block
transactions) (i) on any national securities exchange or quotation service
on
which the Registered Notes may be listed or quoted at the time of sale, (ii)
in
the over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv) through the
writing of options. In connection with sales of the Registrable Securities
or
otherwise, the Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such
Notes.
A-4
State
any
exceptions here:
By
signing below, the Selling Securityholder acknowledges that it understands
its
obligation to comply, and agrees that it will comply, with the provisions of
the
Exchange Act including, without limitation, Regulation M.
In
the
event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Issuers, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By
signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above
and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Issuers in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In
accordance with the Selling Securityholder’s obligation under Section 3(e) of
the Exchange and Registration Rights Agreement to provide such information
as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Issuers of any inaccuracies
or changes in the information provided herein which may occur subsequent to
the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i)To
the
Issuers:
_________________________
_________________________
_________________________
_________________________
_________________________
(ii)With
a
copy to:
_________________________
_________________________
_________________________
_________________________
_________________________
Once
this
Notice and Questionnaire is executed by the Selling Securityholder and received
by the Issuers’ counsel, the terms of this Notice and Questionnaire, and the
representations and warranties contained herein, shall be binding on, shall
inure to the benefit of and shall be enforceable by the respective successors,
heirs, personal representatives, and assigns of the Issuers and the Selling
Securityholder (with respect to the Registrable Securities beneficially
A-5
owned
by
such Selling Securityholder and listed in Item (3) above). This Agreement
shall
be governed in all respects by the laws of the State of New York without
giving
effect to any provisions relating to conflicts of laws.
IN
WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by
its
duly authorized agent.
Dated:
____________________
______________________________________________________________________________
Selling
Securityholder
(Print/type
full legal name of beneficial owner of Registrable Securities)
|
By:
|
___________________________________________
|
Name:
Title:
PLEASE
RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR
BEFORE [DEADLINE FOR RESPONSE] TO THE ISSUERS’ COUNSEL AT:
_________________________
_________________________
_________________________
_________________________
_________________________
A-6
EXHIBIT
B
NOTICE
OF
TRANSFER PURSUANT TO REGISTRATION STATEMENT
▇▇▇▇▇
Fargo Bank, N.A.
CCO
Holdings, LLC
c/o
Wells
Fargo Bank, N.A.
[Address]
[Address]
Attention:
Trust Officer
|
Re:
|
CCO
Holdings, LLC and CCO Holdings Capital
Corp.
|
(together,
the "Issuers") 8-3/4% Senior Notes due 2013 issued
on
August
17, 2005
Dear
Sirs:
Please
be
advised that ________________ has transferred $___________ aggregate principal
amount of the above-referenced Notes pursuant to an effective Registration
Statement on Form S-1 (File No. 333-____) filed by the Issuers.
We
hereby
certify that the prospectus delivery requirements, if any, of the Securities
Act
of 1933, as amended, have been satisfied and that the above-named beneficial
owner of the Notes is named as a "Selling Holder" in the prospectus dated [date]
or in supplements thereto, and that the aggregate principal amount of the Notes
transferred are the Notes listed in such prospectus opposite such owner’s
name.
Dated:
Very
truly yours,
__________________________________________
(Name)
By:
______________________________________
(Authorized
Signature)
B-1