CCH I, LLC, CCH I CAPITAL CORP., CCH II, LLC, CCH II CAPITAL CORP. and CHARTER COMMUNICATIONS HOLDINGS, LLC NOTES (as defined below) EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Exhibit
10.5
CCH I,
LLC,
CCH I
CAPITAL CORP.,
CCH II,
LLC,
CCH II
CAPITAL CORP. and
CHARTER
COMMUNICATIONS HOLDINGS, LLC
$712,006,000
NOTES
(as
defined below)
September
14, ▇▇▇▇
▇▇▇▇
▇▇
▇▇▇▇▇▇▇ Securities LLC
Citigroup
Global Markets Inc.
As
representatives ("Representatives") of the holders
c/o
Banc
of America Securities LLC
▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
CCH I,
LLC, a Delaware limited liability company ("CCH I"), and CCH I Capital
Corp., a Delaware corporation (collectively, "CCH I Issuers"), propose to
issue $462,006,000 of their 11.00% Senior Secured Notes due 2015 (the
"CCH I Notes"), and CCH II, LLC, a Delaware limited liability company
("CCH II"), and CCH II Capital Corp., a Delaware corporation (collectively,
"CCH II Issuers"), propose to issue $250,000,000 of their 10.25% Senior Notes
due 2013 (the "CCH II Notes", together with the CCH I Notes, the "Notes"),
for any and all of the Charter Communications Holdings, LLC notes (the "CCH
Notes" or "old notes") listed on Exhibit A attached hereto (the "Original
Exchange Offers") upon the terms set forth in the Dealer Manager Agreement
(the
"Dealer Manager Agreement"), dated August 11, 2006, among the CCH I
Issuers, the CCH II Issuers and Charter Communications Holdings, LLC, a Delaware
limited liability company ("Charter Holdings"), and you, the Dealer Managers
(as
defined in the Dealer Manager Agreement), relating to the Original Exchange
Offers. Unless the context otherwise requires, all references to "CCH I Notes"
or "CCH II Notes" include the related Note Guarantee (as defined below) and
all
references to "CCH I Issuers" and "CCH II Issuers" include Charter Holdings,
in
its capacity as guarantor of the respective Notes. The CCH I Notes are to
be issued under the Indenture, dated as of September 28, 2005, as supplemented
by a supplemental indenture dated as of the date hereof (the "CCH I
Indenture"), between the CCH I Issuers and The Bank of New York Trust
Company, NA, as trustee (the "Trustee"). The CCH II Notes are to be issued
under
an indenture (the "CCH II Indenture"), dated as of the date hereof, between
the
CCH II Issuers and the Trustee. The CCH I Issuers and the CCH II Issuers
agree with you for your benefit and the benefit of the 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 Indentures, 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.
"CCH I
Indenture" shall have the meaning set forth in the preamble hereto.
"CCH
II
Indenture" shall have the meaning set forth in the preamble hereto.
"Closing
Date" shall mean September 14, 2006.
"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.
"Dealer
Manager Agreement" shall have the meaning set forth in the preamble
hereto.
"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.
1
"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 holders
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.
"Indentures"
shall mean the CCH I Indenture and the CCH II Indenture,
collectively.
"Issuers"
shall mean the CCH I Issuers and the CCH II Issuers,
collectively.
"Losses"
shall have the meaning assigned thereto in Section 6(d) hereof.
"Notes"
shall have the meaning set forth in the preamble hereto. Unless the context
otherwise requires, all references to a "Note" or "Notes" include the related
Note Guarantee.
"Note
Guarantee" means, in respect of any Notes or Exchange Notes, the related
guarantee thereof by Charter Holdings.
"Notice
and Questionnaire" means a Notice of Registration Statement and Selling
Securityholder Questionnaire substantially in the form of Exhibit B
hereto.
"Original
Exchange Offers" shall have the meaning set forth in the preamble
hereto.
The
term
"person" shall mean a corporation, association, partnership, organization,
limited liability company, business, individual, government or political
subdivision thereof or governmental agency.
“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 the 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 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
2
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 Indentures; (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 the Exchange Offer in exchange for Registrable
Securities acquired by the broker-dealer directly from the Issuers.
"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.
3
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 no later than April 30, 2007, one or more registration statements relating
to an offer to exchange (such registration statements, collectively, the
"Exchange Offer Registration Statement", and such offer, the "Exchange Offer")
any and all of the Notes, including the related Note Guarantee, 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 respective Indentures which have 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, collectively, the "Exchange Notes"). Unless the context otherwise
requires, all references to an "Exchange Note" or "Exchange Notes" include
the
related Note Guarantee. The respective 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 on or prior to 90 days after the
filing of the Exchange Offer Registration Statement with the Commission. The
Exchange Offer will be registered under the Securities Act on the appropriate
form and will comply with the Exchange Act. The respective Issuers further
agree
to use their reasonable best efforts to complete the Exchange Offer on or prior
to 60 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 least 20 business days (calculated in accordance with the Exchange Act)
and exchange the 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.
4
(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 filed with the Commission on or prior
to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) the Exchange Offer Registration Statement has not
been
declared effective under the Securities Act within 90 days following the filing
of the Exchange Offer Registration Statement with the Commission, or the
Exchange Offer has not been completed within 60 business days following the
effectiveness of the Exchange Offer Registration Statement, or longer, if
required by the federal securities laws or (iv) the Exchange Offer is not
available to any holder, the Issuers shall, in lieu of (or, in the case of
clause (iv), in addition to) conducting the Exchange Offer contemplated by
Section 2(a), file one or more "shelf" registration statements in accordance
with the remainder of this Section 2(b) below, under the Securities Act. The
Issuers shall, on or prior to the later of (x) April 30, 2007 and (y) 30 days
after the time such obligation to file arises, file one or more "shelf"
registration statements 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 statements,
collectively, 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 on or prior to 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 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 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 60
business days
5
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 either of 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 Indentures).
The
parties hereto agree that the Special Interest provided for in this Section
2(c)
constitutes a reasonable estimate of the damage that will be suffered by
holders
of Registrable Securities by reason of the happening of any Registration
Default. 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.
(d) If
any
holder 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, then, at the request of such holder, 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 holder, 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
6
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 Indentures to be qualified under
the Trust Indenture Act.
(b) In
the
event that such qualification would require the appointment of a new trustee
under the Indentures, the Issuers shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indentures.
(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, on or prior to April 30, 2007, 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 on or prior to 90
days
after the filing of the Exchange Offer Registration Statement with the
Commission;
(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 holders, 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
7
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;
Upon
receiving notice of the occurrence of any of the events listed in this Section
3(c)(iii), each holder will, upon request by the Issuers in writing, immediately
discontinue disposition of Notes or Exchange Notes pursuant to a Registration
Statement until such holder's receipt of copies of the supplemented or amended
prospectus contemplated by Section 3(c)(iv) or until it is advised in writing
by
the Issuers that use of the applicable prospectus may resume, and, if so
directed by the Issuers, such holder will deliver to the Issuers (at the
Issuers' expense) all copies in such holder's possession, other than permanent
file copies, of the prospectus covering such Notes or Exchange Notes that was
current at the time of receipt of such notice.
(iv) in
the
event that the Issuers would be required, pursuant to Section 3(c)(iii)(E)
above, to notify the holders 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 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 and each holder hereby agrees to
suspend use of the prospectus until the Issuers have amended or supplemented
the
prospectus to correct such misstatement or omission;
(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;
8
(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;
(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 Indentures, 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
9
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 holder, 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 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 holder, the name
and description of such 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 holder; 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 holders such
financial and other relevant information and books and records of each 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 holders' 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
10
the
Issuers), or (B) such person shall be required 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, will comply with applicable requirements of the federal
securities laws and the rules and regulations of the Commission and will 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;
(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
11
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 20 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, 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
12
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 each 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 amendment or supplement to such prospectus in
order
that such Shelf Registration Statement, prospectus, amendment or supplement,
as
the case may be, will comply with applicable requirements of the federal
securities laws and the rules and regulations of the Commission and will 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;
(viii) promptly
notify each of the holders, 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
13
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;
(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
14
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;
(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
15
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 acceptable 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
16
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 Exhibit D of the Dealer Manager 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 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
17
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, earning statements of the Issuers and their respective 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 furnish 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
18
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 underwriters 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 Indentures, 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
19
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.
The
Issuers represent and warrant to each of the holders from time to time of
Registrable Securities, as of the date hereof, 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 becomes 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
20
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"), CCHC, LLC (“CCHC”), Charter Communications
Holding Company, LLC ("Holdco") and CCH I Holdings, LLC (“CIH”), Charter
Holdings (collectively with CCI, CCHC, Holdco and CIH, 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, limited liability company
agreement, the certificate of incorporation or bylaws of the Issuers 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 Indentures under the
Trust
Indenture Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under 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 holder and, with respect to any prospectus delivery as contemplated in
Section 3(c)(ii) or (iv) hereof, each holder 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
21
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 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, its 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 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, 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 of 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
22
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 indemnified 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
23
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 Dealer Manager 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 holders shall be deemed to be equal to the
total purchase discounts and commissions as reflected in the Dealer Manager
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 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
24
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, provided 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
25
that
the
holders of the Registrable Securities may be irreparably harmed by any such
failure, and accordingly agree that the 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, postage
prepaid, return receipt requested) as follows: If to the Issuers, c/o CCH I,
LLC
and CCH II, LLC, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
Attention: General Counsel, 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 Banc of
America Securities, LLC, Attn: ▇▇▇▇▇▇ ▇▇▇▇, Legal Department, ▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. 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 exchange for the Registrable Securities pursuant to the Dealer Manager
Agreement and the transfer and registration of Registrable Securities by such
holder and the consummation of the 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.
26
(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 Indentures 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 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 Indentures 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 Indentures.
(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
27
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.
(m) Several
Obligations.
All
representations, warranties, covenants and other obligations of the respective
Issuers hereunder shall relate only to the series of Notes issued by them.
Nothwithstanding anything herein to the contrary, the CCH I Issuers shall not
in
any way be liable in respect of the CCH II Notes (or the related Note Guarantee)
or otherwise for the representations, warranties, covenants and other
obligations of the CCH II Issuers hereunder and the CCH II Issuers shall not
in
any way be liable in respect of the CCH I Notes (or the related Note Guarantees)
or otherwise for the representations, warranties, covenants and other
obligations of the CCH II Issuers hereunder.
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 holders, this letter and such acceptance hereof shall constitute a binding
agreement between each of the holders and the Issuers.
Very
truly
yours,
CCH
I,
LLC,
as
an Issuer
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Title:
Senior Vice
President, Strategic Planning
CCH
I CAPITAL
CORP.,
as
an Issuer
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Title:
Senior Vice
President, Strategic Planning
CCH
II,
LLC,
as
an Issuer
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Title:
Senior Vice
President, Strategic Planning
CCH
II CAPITAL
CORP.,
as
an Issuer
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Title:
Senior Vice
President, Strategic Planning
SIGNATURE
PAGE TO THE REGISTRATION RIGHTS AGREEMENT
CHARTER
COMMUNICATIONS HOLDINGS, LLC
as
a guarantor
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Title:
Senior Vice
President, Strategic Planning
SIGNATURE
PAGE TO THE REGISTRATION RIGHTS AGREEMENT
(cont.)
Accepted
as of the date hereof:
BANC
OF
AMERICA SECURITIES LLC
CITIGROUP
GLOBAL MARKETS INC.
as
Representatives of the holders
By:
BANC
OF AMERICA SECURITIES LLC
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇
Name:▇▇▇▇▇▇
▇▇▇▇
Title:
SIGNATURE
PAGE TO THE REGISTRATION RIGHTS AGREEMENT
(cont.)
EXHIBIT
A
CCH
Notes:
| § |
8.625%
Senior Notes due 2009
|
| § |
9.625%
Senior Notes due 2009
|
| § |
9.920%
Senior Discount Notes due 2011
|
| § |
10.00%
Senior Notes due 2009
|
| § |
10.00%
Senior Notes due 2011
|
| § |
10.25%
Senior Notes due 2010
|
| § |
10.75%
Senior Notes due 2009
|
| § |
11.125%
Senior Notes due 2011
|
| § |
11.75%
Senior Discount Notes due 2010
|
| § |
11.75%
Senior Discount Notes due 2011
|
| § |
12.125%
Senior Discount Notes due 2012
|
| § |
13.500%
Senior Discount Notes due 2011
|
A-1
EXHIBIT
B
CCH
I,
LLC, CCH I CAPITAL CORP.,
CCH
II,
LLC and CCH II CAPITAL CORP.
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 CCH I, LLC ("CCH I") and CCH I
Capital Corp. (collectively, "CCH I Issuers") 11.00% Senior Secured Notes
due 2015 (the "CCH I Notes") or the CCH II, LLC ("CCH II") and CCH II
Capital Corp. (collectively, the "CCH II Issuers") 10.25% Senior Notes due
2013
(the "CCH II Notes", together with the CCH I Notes, the "Notes") are held.
The CCH I Issuers, the CCH II Issuers and Charter Communications Holdings,
LLC
are collectively referred to herein as the "Issuers".
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 [_________]. 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 CCH I, LLC or CCH II, LLC, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: General Counsel.
(a) Not
less
than 20 calendar days from date of mailing.
CCH
I,
LLC, CCH I CAPITAL CORP.,
CCH
II,
LLC and CCH II CAPITAL CORP.
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 the CCH I Issuers, the CCH II
Issuers, Charter Communications Holdings, LLC ("Charter Holdings"), and the
Representatives 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'
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.
B-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 C 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:
______________________________________________________________________
(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.
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 and Charter Holdings 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:
CCH I,
LLC
CCH I
Capital Corp.
CCH II,
LLC
CCH II
Capital Corp.
Charter
Communications Holdings, LLC
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
with
a copy to:
▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇
▇.
▇▇▇▇▇▇, Esq.
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 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:
▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
EXHIBIT
C
NOTICE
OF
TRANSFER PURSUANT TO REGISTRATION STATEMENT
CCH
I,
LLC
CCH
I
Capital Corp.
CCH
II,
LLC
CCH
II
Capital Corp.
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
The
Bank
of New York Trust Company, NA, as trustee
▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Trust Officer
|
Re:
|
The
Notes as listed on Annex A attached
hereto
|
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 and Charter
Communications Holdings, LLC.
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)
C-1
Annex
A
CCH
I
Notes:
11.00%
Senior Secured Notes due 2015
CCH
II
Notes:
10.25%
Senior Notes due 2013