HOLDCO MIRROR NOTES AGREEMENT
Exhibit
10.37
HOLDCO MIRROR
NOTES
AGREEMENT
This
MIRROR NOTES AGREEMENT (the “Agreement”) is
entered into as of the 2nd day of October, 2007, by and between Charter
Communications, Inc., a Delaware corporation (“CCI”), and Charter
Communications Holding Company, LLC, a Delaware limited liability company
(“Holdco”),
with reference to the following facts (capitalized terms used but not otherwise
defined herein shall have the meanings set forth in Exhibit A
hereto):
A. CCI
is the beneficial owner of the mirror note dated as of November 22, 2004 (the
“Old Mirror
Note”) which had an original principal amount of $862,500,000, which Old
Mirror Note has economic terms substantially identical to those of CCI’s 5.875%
Convertible Senior Notes due 2009 (the “Old
Notes”);
B. On
August 29, 2007, Holdco launched its exchange offer, which was subsequently
amended on September 14, 2007, pursuant to which it offered $793,443,000
principal amount of CCI’s 6.50% convertible senior notes due 2027 to holders of
any and all of the Old Notes (the “Exchange Offer”) and
CCI has agreed to issue $479,168,000 principal amount of such 6.50% convertible
senior notes due 2027 (the “New Notes”) in
connection with the Exchange Offer;
C. CCI
and Holdco wish to arrange for, on the terms and conditions set forth herein,
the issuance by CCI to Holdco, concurrently with the closing of the Exchange
Offer, of the New Notes in exchange for a new mirror note, which new mirror note
will contain economic terms substantially identical to those of the New Notes
(the “New Mirror
Note”); and
D. CCI
and Holdco have agreed that the Old Notes tendered in the Exchange Offer and the
Old Mirror Note shall remain outstanding after the closing of the Exchange
Offer.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. Purchase of New Mirror
Note. In consideration for the issuance by CCI to Holdco of
the New Notes, subject to the terms and conditions of this Agreement, CCI agrees
to purchase from Holdco, and Holdco hereby agrees to issue and sell to CCI, the
New Mirror Note in the original aggregate principal amount of $479,168,000, with
economic terms that are substantially identical to those of the New Notes, which
terms are as described in the Exchange Offer Prospectus forming a part of the
registration statement on Form S−4 covering the registration of the New Notes
(File No. 333-145766), as amended .
2. Old Notes and Old Mirror
Note. On the closing of the Exchange Offer, (i) the Old Notes
accepted for exchange by Holdco in connection with the Exchange Offer shall
continue to remain outstanding and held by Holdco and (ii) the Old Mirror Note
shall remain outstanding and continue to be held by CCI.
3. Covenants.
(a) Reasonable Efforts to
Close. CCI and Holdco shall use reasonable efforts to take
such actions as are necessary or desirable to consummate the transactions
contemplated by this Agreement.
(b) Acknowledgment of
One-for-one Requirement. CCI and Holdco acknowledge and agree
that the transactions contemplated herein are required pursuant to their
respective restated certificate of incorporation and limited liability company
agreement in order to maintain the one-for-one requirements contained
therein.
(c) New Mirror Note Not
Registered. Each of CCI and Holdco acknowledges and agrees
that the New Mirror Note, when issued, will not have been registered under the
Securities Act and will be issued in reliance upon an exemption from the
registration requirements of the Securities Act. Each of CCI and Holdco
acknowledges and agrees that it has not offered, sold or delivered the New
Mirror Note to be acquired by CCI, and neither of them will offer, sell or
deliver such New Mirror Note except pursuant to an exemption from registration
to the extent available under the Securities Act.
4.
Conditions to
Closing.
4.1 Issuance of New
Note. The obligation of CCI to issue the New Notes is subject
to the closing of the Exchange Offer.
4.2 Issuance of New Mirror
Notes. The obligations of CCI and Holdco to close the issuance
of the New Mirror Note are subject to the consummation of the issuance of the
New Notes.
5.
Termination and
Amendment.
5.1 By Mutual
Consent. This Agreement may be terminated or amended at any
time prior to the Closing Date by the mutual written consent of CCI and
Holdco.
5.2 By
Holdco. This Agreement may be terminated or amended by Holdco
solely to reflect the termination of the Exchange Offer or of the Dealer Manager
Agreement.
5.3 Effect of
Termination. If this Agreement is terminated as provided in
this Section 4, then this Agreement will forthwith become null and void and
there will be no liability on the part of any party hereto to any other party
hereto or any other person or entity in respect thereof, provided that the
obligations of the parties described in Section 5.3 will survive any such
termination.
6.
Miscellaneous.
6.1 Governing
Law. This Agreement shall be governed in all respects by the
internal laws of the State of New York without regard to principles of conflicts
of law or choice of law that would require the application of any other
jurisdiction’s laws.
6.2 Further Assurances;
Additional Documents. The parties shall take any actions and
execute any other documents that may be necessary or desirable to the
implementation and
2
consummation
of this Agreement upon the reasonable request of the other party. In that
regard, the parties agree to equitably adjust the terms of this Agreement and
for the New Mirror Notes from time to time as may be necessary to ensure that
the New Mirror Note qualifies as a mirror security, in respect of all New Notes,
for purposes of CCI’s certificate of incorporation.
6.3 Fees and
Expenses. Holdco shall be responsible for all fees and
expenses of each party in connection with this Agreement and the transactions
contemplated hereby, the Exchange Offer and the Dealer Manager Agreement. Holdco
will either reimburse CCI for all such expenses or pay such expenses
directly.
6.4 Severability. If
any term or provision of this Agreement is determined by a court of competent
jurisdiction to be invalid, illegal or incapable of being enforced by any rule
of law or public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon determination that any term or other
provision of this Agreement is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to attempt to agree on a
modification of this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by law in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the greatest extent possible.
6.5 Entire
Agreement. This Agreement and the other Transaction Documents
represent the entire agreement and understandings between the parties concerning
the sale and issuance of the New Mirror Note and the other matters described
therein and supersedes and replaces any and all prior agreements and
understandings.
6.6 No Oral
Modification. This Agreement may only be amended in writing
signed by CCI and Holdco.
6.7 Notices. All
notices, requests and other communications hereunder shall be in writing and
shall be deemed to have been duly given at the time of receipt if delivered by
hand, by reputable overnight courier or by facsimile transmission (with receipt
of successful and full transmission) to the applicable parties hereto at the
address stated on the signature pages hereto or if any party shall have
designated a different address or facsimile number by notice to the other party
given as provided above, then to the last address or facsimile number so
designated.
6.8 Counterparts. This
Agreement may be executed in one or more counterparts each of which shall be
deemed an original and all of which together shall constitute one instrument.
Facsimile signatures shall constitute original signatures.
[NEXT
PAGE IS SIGNATURE PAGE]
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SIGNATURE
PAGE TO MIRROR NOTE AGREEMENT
IN
WITNESS WHEREOF the parties have executed this Agreement on the date set forth
below.
“CCI”
Dated:
October 2,
2007 Charter Communications,
Inc.
By: /s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Its: Vice
President, Finance and
Corporate
Treasurer
Notice
Address:
Charter
Communications, Inc.
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇
▇▇) ▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
‘‘Holdco”
Dated:
October 2,
2007 Charter
Communications Holding Company,
LLC
By: Charter
Communications, Inc., its
manager
By: /s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Its: Vice
President, Finance and
Corporate
Treasurer
Notice
Address:
Charter
Communications Holding
Company,
LLC
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
EXHIBIT
A
CERTAIN
DEFINITIONS
Definitions. For
purposes of this Agreement, the following terms shall have the following
meanings:
“Dealer Manager
Agreement” means the Dealer Manager Agreement, dated as of August 29,
2007, among Holdco, Citigroup Global Markets Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated.
“Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“Transaction
Documents” means this Agreement and the other documents and instruments
to be executed and delivered in connection herewith at or prior to the
Closing.