CCO HOLDINGS, LLC CCO HOLDINGS CAPITAL CORP. 8-3/4% SENIOR NOTES DUE 2013 PURCHASE AGREEMENT Dated August 11, 2005
Exhibit
10.1
CCO
HOLDINGS, LLC
$300,000,000
8-3/4%
SENIOR NOTES DUE 2013
Dated
August 11, 2005
August
11, 2005
▇.▇.
▇▇▇▇▇▇ Securities Inc.
Credit
Suisse First Boston LLC
Banc
of
America Securities LLC
As
Representative of the
several
Purchasers listed
in
Schedule 1 hereto
c/o
▇.▇.
▇▇▇▇▇▇ Securities Inc.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
Ladies
and Gentlemen:
CCO
Holdings, LLC, a Delaware limited liability company (the "Company"),
and
CCO Holdings Capital Corp., a Delaware corporation ("CCO
Capital"
and,
together with the Company, the "Issuers"),
propose, subject to the terms and conditions stated herein, to issue and sell
to
the purchasers named in Schedule I hereto (the "Purchasers")
an
aggregate of $300,000,000 principal amount of 8-3/4% Senior Notes due 2013
(the
"Notes").
The
Notes will be issued pursuant to the Indenture dated as of November 10, 2003,
as
supplemented by a supplemental indenture (the "Indenture")
dated
as of August 17, 2005 (the "Closing
Date")
among
the Issuers and ▇▇▇▇▇ Fargo Bank, N.A., as trustee (the "Trustee").
The
Notes will have the benefit of an exchange and registration rights agreement
(the "Exchange
and Registration Rights Agreement"),
to be
dated as of the Time of Delivery, between the Issuers and the Purchasers,
pursuant to which the Issuers will agree to offer in exchange for the Notes,
new
notes, registered under the Securities Act of 1933, as amended (the
"Act"),
but
otherwise on terms substantially identical to the Notes (such registered Notes,
the "Exchange
Notes")
under
the Act subject to the terms and conditions therein specified. To the extent
there are no additional parties listed on Schedule I other than you, the term
Representatives as used herein shall mean you as the Purchasers, and the terms
Representatives and Purchasers shall mean either the singular or plural as
the
context requires. It is understood and agreed that all the representatives
are
joint book-running managers for the offering of the Notes (in such capacity,
the
"Joint
Managers").
Any
determinations or other actions to be made under this Agreement by the Joint
Managers shall only require the consent of
▇.▇.
▇▇▇▇▇▇ Securities Inc.
The
sale
of the Notes to the Purchasers will be made without registration of the Notes
under the Act in reliance upon exemptions from the registration requirements
of
the Act.
In
connection with the sale of the Notes, the Issuers will prepare an offering
memorandum (the "Offering
Memorandum"),
it
being understood that references to the Offering Memorandum refer to the version
of such document to be prepared and delivered in connection with this agreement,
including Sections 5(a) and (c) hereof, setting forth certain information
concerning the Issuers and their subsidiaries and the Notes. Copies of the
Offering Memorandum will be delivered by the Issuers to the Purchasers pursuant
to the terms of this Agreement. The Issuers hereby confirm that they have
authorized the use of the Offering Memorandum, and any amendment or supplement
thereto, in connection with the offer and sale of the Notes by the
Purchasers.
This
Agreement, the Exchange and Registration Rights Agreement, the Notes and the
Indenture collectively are referred to herein as the "Transaction
Documents."
1. Representations
and Warranties of the Issuers.
Each of
the Issuers represent and warrant to, and agree with, each of the Purchasers
that:
(a) As
of its
date, the Offering Memorandum, in the form first used by the Purchasers to
confirm sales of the Notes, will not and, as of the Closing Date, will not,
contain an untrue statement of a material fact or omit to state a material
fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information relating
to
the Purchasers furnished in writing to the Issuers by or on behalf of a
Purchaser through ▇.▇. ▇▇▇▇▇▇ Securities Inc. expressly for use therein. The
Offering Memorandum will be substantially in the form of Exhibit A
hereto.
(b) None
of
the Issuers or any of their subsidiaries has sustained since the date of the
latest audited financial statements that will be included in the Offering
Memorandum any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from
any court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Offering Memorandum; and, since the respective dates
as
of which information is given in the Offering Memorandum, there has not been
any
change in the capital stock or limited liability company interests or long-term
debt of the Issuers or any of their subsidiaries or any material adverse change,
or any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, members’ or
stockholders’ equity or results of operations of Charter Communications, Inc.
("CCI"),
Charter Communications Holding Company, LLC ("CCH
LLC"),
Charter Communications Holdings, LLC ("Holdings"),
CCH
I, LLC and CCH II, LLC (collectively with CCI, CCH LLC, Holdings and CCH I,
LLC
the "Parent
Companies"),
the
Issuers and each of the Issuers’ subsidiaries, taken as a whole, otherwise than
as set forth or contemplated in the Offering Memorandum;
(c) Each
of
the Issuers and its subsidiaries has good and marketable title to all real
property and good and valid title to all personal property owned by it reflected
as owned in
-2-
the
financial statements that will be included in the Offering Memorandum,
in each
case free and clear of all liens, encumbrances and defects except such
as are
described in the Offering Memorandum or except such as do not materially
affect
the value of such property and do not interfere with the use made and proposed
to be made of such property by the Issuers and their subsidiaries; and
any real
property and buildings held under lease by the Issuers and their subsidiaries
are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Issuers and their
subsidiaries;
(d) The
Company has been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware, and CCO
Capital has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware; each of the Issuers
has
power and authority to own its properties and conduct its business as described
in the Offering Memorandum and to execute, deliver and perform its obligations
under this Agreement, and has been duly qualified as a foreign corporation
or
limited liability company, as the case may be, for the transaction of business
and is in good standing under the laws of each other jurisdiction in which
it
owns or leases properties or conducts any business so as to require such
qualification; and is not subject to liability or disability by reason of the
failure to be so qualified in any such jurisdiction, except such as
would
not, individually or in the aggregate, have a material adverse effect on the
current or future financial position, members’ or stockholders’ equity or
results of operations of the Parent Companies, the Issuers and the Issuers’
subsidiaries, taken as a whole (a "Material
Adverse Effect");
each
Parent Company and each of the Issuers’ subsidiaries has been duly incorporated
or formed, as the case may be, and is validly existing as a corporation,
partnership or limited liability company, as the case may be, in good standing
under the laws of its jurisdiction of incorporation or formation, in each case
except such as would, individually or in the aggregate, not result in a Material
Adverse Effect. CCO Capital has no subsidiaries;
(e) All
the
outstanding ownership interests of the Issuers have been duly and validly
authorized and issued and are fully paid and non-assessable; and all the
outstanding capital stock, limited liability company interests or partnership
interests, as the case may be, of CCO Capital and each "significant subsidiary"
(as such term is defined in Rule 1-02 of Regulation S-X) of the Company (each
a
"Significant
Subsidiary")
of the
Company have been duly and validly authorized and issued, are fully paid and
nonassessable and (except as otherwise set forth in the Offering Memorandum)
are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or
claims;
(f) This
Agreement has been duly authorized and executed by each of the
Issuers;
(g) The
Notes
have been duly authorized and, when executed by the Issuers and authenticated
by
the Trustee in accordance with the provisions of the Indenture and when
delivered to, and paid for, by the Purchasers in accordance with the terms
of
this Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Issuers entitled to the benefits provided by the Indenture under which they
are
to be issued and enforceable against the Issuers in accordance with their terms,
subject,
-3-
as
to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general
applicability relating to or affecting creditors’ rights and to general equity
principles;
(h) The
Indenture has been duly authorized, and when executed and delivered by the
Issuers (assuming the due execution and delivery thereof by the Trustee), will
constitute a valid and legally binding instrument, enforceable against the
Issuers in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to
or affecting creditors’ rights and to general equity principles; and at the Time
of Delivery, the Indenture will meet the requirements for qualification under
the United States Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act");
and
the Indenture conforms in all.
material
respects to the descriptions thereof in the Offering Memorandum;
(i) The
Exchange and Registration Rights Agreement to be entered into between the
Issuers and the Purchasers, substantially in the form of Exhibit B hereto,
has
been duly authorized by the Issuers and, when executed and delivered by each
Issuer party thereto in accordance with its terms and, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
will
constitute the legal, valid and binding obligation of each such Issuer,
enforceable against each such Issuer in accordance with its terms except that
(i) the enforcement thereof may be subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors’ rights and to general equity principles, whether arising in a court
of equity or law, and (ii) any rights to indemnity or contribution thereunder
may be limited by federal and state securities laws and public policy
considerations; and the Exchange and Registration Rights Agreement will conform
in all material respects to the description thereof in the Offering
Memorandum;
(j) The
Exchange Notes (as defined in the Exchange and Registration Rights Agreement)
have been duly authorized by the Issuers; and, when executed, authenticated,
issued and delivered in accordance with the Indenture and Exchange and
Registration Rights Agreement (assuming the due authorization, execution and
delivery of the Indenture by the Trustee), will constitute valid and legally
binding instruments entitled to the benefits provided by the Indenture and
enforceable against the Issuers in accordance with their respective terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors’ rights and to
general equity principles; and the Exchange Notes will conform in all material
respects to the description thereof in the Offering Memorandum;
(k) None
of
the transactions contemplated by this Agreement (including, without limitation,
the use of the proceeds from the sale of the Notes) will violate or result
in a
violation of Section 7 of the Securities Exchange Act of 1934, as amended (the
"Exchange
Act"),
or
any regulation promulgated thereunder, including, without limitation,
Regulations T, U, and X of the Board of Governors of the Federal Reserve
System;
(l) Prior
to
the date hereof, none of the Issuers or any of their affiliates has taken any
action which is designed to or which has constituted or which might have been
expected to cause or result in stabilization or manipulation of the price of
any
security of the Issuers in connection with the offering of the
Notes.
-4-
(m) The
issue
and sale of the Notes, the issuance of the Exchange Notes and the compliance
by
the Issuers with all provisions of each of the Transaction Documents, including
those described under the caption "Description of the Notes" and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation 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
agreement or instrument to which the Issuers, the Parent Companies or any of
the
Issuers’ subsidiaries is a party or by which the Issuers, the Parent Companies
or any of the Issuers’ subsidiaries is bound or to which any of the property or
assets of the Issuers, the Parent Companies or any of the Issuers’ subsidiaries
is subject, nor will such action result in any violation of any statute or
any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Issuers, the Parent Companies or any of the Issuers’
subsidiaries or any of their properties, 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"),
or
the Order Instituting Cease and Desist Proceedings, Making Findings, and
Imposing a Cease and Desist Order Pursuant to Section 21C of the Securities
and
Exchange Act of 1934, dated July 27, 2004, issued In the Matter of Charter
Communications, Inc. (the "Cease and Desist Order"), except where such
conflicts, breaches, violations or defaults would not, individually or in the
aggregate, have a Material Adverse Effect and would not have the effect of
preventing the Issuers from performing any of their respective obligations
under
this Agreement or any of the other Transaction Documents to which they are,
or
are to be, a party; nor will such action result in any violation of the
certificate of formation or limited liability company agreement of the Company
or the certificate of incorporation or bylaws of CCO Capital; 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, any order, rule or regulation of the FCC
or
the Cease and Desist Order, for the issue and sale of the Notes or the
consummation by the Issuers of the transactions contemplated in this paragraph
(m), except such consents, approvals, authorizations, registrations or
qualifications as have been made or except as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase and
distribution of the Notes by the Purchasers and except as required under the
Securities Act in connection with the transactions contemplated by the Exchange
and Registration Rights Agreement or such as may be required by the National
Association of Securities Dealers, Inc. (the "NASD");
(n) None
of
the Issuers, the Parent Companies or any of the Issuers’ subsidiaries is (i) in
violation of its certificate of incorporation, bylaws, certificate of formation,
limited liability company agreement, partnership agreement or other
organizational document, as the case may be, (ii) in default in the performance
or observance of-any obligation, agreement, covenant or condition contained
in
any indenture, mortgage, deed of trust, loan agreement, lease, license, permit
or other agreement or instrument to which it is a party or by which it or any
of
its properties may be bound or (iii) in violation of the terms of any franchise
agreement, or any law, statute, rule or regulation or any judgment, decree
or
order, in any such case, of any court or governmental or regulatory agency
or
other body having jurisdiction over the Issuers, the Parent Companies or any
of
the Issuers’ subsidiaries or any of their properties or assets, including,
without limitation, the Cable Acts or any order, rule or regulation of the
FCC
or the Cease and
-5-
Desist
Order, except, in the case of clauses (ii) and (iii), such as would not,
individually or in the aggregate, have a Material Adverse
Effect;
(o) The
statements set forth in the (i) Offering Memorandum under the caption
"Description of the Notes," insofar as it purports to constitute a summary
of
the terms of the Notes and under the captions "Risk Factors,""Description of
Other Indebtedness" and "United States Federal Income Taxation of Non-U.S.
Holders" insofar as they purport to describe the provisions of the laws,
documents and arrangements referred to therein, are accurate in all material
respects; (ii) in the Annual Report included elsewhere in the Offering
Memorandum for the Year Ended December 31, 2004, under the captions "Item 1.
Business,""Item 11. Executive Compensation," and "Item 13. Certain Relationships
and Related Transactions" are accurate in all material respects as of the dates
set forth therein insofar as they purport to describe the provisions of the
laws, documents and arrangements referred to therein and to the extent not
superceded by subsequent disclosure (including documents incorporated by
reference into the Offering Memorandum);
(p) Other
than as set forth in the Offering Memorandum, there are no legal or governmental
proceedings (including, without limitation, by the FCC or any franchising
authority) pending to which the Issuers, the Parent Companies or any of the
Issuers’ subsidiaries is a party or of which any property of the Issuers, the
Parent Companies or any of the Issuers’ subsidiaries is the subject which, if
determined adversely with respect to the Issuers, any of the Parent Companies
or
any of the Issuers’ subsidiaries, would, individually or in the aggregate, have
a Material Adverse Effect; and, to the best knowledge of the Issuers
and, except
as
disclosed in the Offering Memorandum, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(q) Each
of
the Issuers, the Parent Companies and the Issuers’ subsidiaries carries
insurance (including, without limitation, self-insurance) in such amounts and
covering such risks as in the reasonable determination of the Issuers is
adequate for the conduct of its business and the value of its
properties;
(r) Except
as
set forth in the Offering Memorandum, there is no strike, labor dispute,
slowdown or work stoppage with the employees of any of the Issuers or their
subsidiaries which is pending or, to the best knowledge of the Issuers,
threatened which would, individually or in the aggregate, have a Material
Adverse Effect;
(s) When
the
Notes are issued and delivered pursuant to this Agreement, the Notes will not
be
of the same class (within the meaning of Rule 144A under the Securities Act
of
1933, as amended, (the "Act"))
as
securities which are listed on a national securities exchange registered under
Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system;
(t) Neither
Issuer is, or after giving effect to the offering and sale of the Notes will
be,
an "investment company" or any entity "controlled" by an "investment company"
as
such terms are defined in the U.S. Investment Company Act of 1940, as amended
(the "Investment
Company Act");
-6-
(u) None
of
the Issuers or any of their affiliates, nor any person authorized to act on
their behalf (other than the Purchasers, as to whom the Issuers make no
representations) has, directly or indirectly, made offers or sales of any
security, or solicited offers to buy any security, under circumstances that
would require the registration of the Notes under the Act;
(v) None
of
the Issuers or any of the Parent Companies or the Issuers’ subsidiaries, or any
person authorized to act on their behalf (other than the Purchasers, as to
whom
the Issuers make no representation) has offered or sold, the Notes by means
of
any general solicitation or general advertising within the meaning of Rule
502(c) under the Act or, with respect to Notes sold outside the United States
to
non-U.S. persons (as defined in Rule 902 under the Act), by means of any
directed selling efforts within the meaning of Rule 902 under the Act and the
Issuers, any affiliate of the Issuers and any person authorized to act on their
behalf (other than the Purchasers, as to whom the Issuers make no
representation) has complied with and will implement the offering restriction
within the meaning of such Rule 902;
(w) Within
the preceding six months, except with respect to the pending registered exchange
offer relating to the Issuers’ outstanding Senior Floating Rate Notes (the
"Pending Exchange"), none of the Issuers or any other person authorized to
act
on their behalf (other than the Purchasers, as to whom the Issuers make no
representation) has offered or sold to any person any Notes, or any securities
of the same or a similar class as the Notes, other than Notes offered or sold
to
the Purchasers hereunder. The Issuers will take reasonable precautions designed
to ensure that any offer or sale, direct or indirect, in the United States
or to
any U.S. person (as defined in Rule 902 under the Act) of any Notes or any
substantially similar security issued by the Issuers, within six months
subsequent to the date on which the distribution of the Notes has been completed
(as notified to the Issuers by ▇.▇. ▇▇▇▇▇▇ Securities Inc.), is made under
restrictions and other circumstances reasonably designed not to affect the
status of the offer and sale of the Notes in the United States and to U.S.
persons contemplated by this Agreement as transactions exempt from the
registration provisions of the Act;
(x) The
consolidated financial statements (including the notes thereto) that will be
included in the Offering Memorandum present fairly in all material respects
the
respective consolidated financial positions, results of operations and cash
flows of the entities to which they relate at the dates and for the periods
to
which they relate and have been prepared in accordance with U.S. generally
accepted accounting principles ("GAAP")
applied on a consistent basis (except as otherwise noted therein). The selected
historical financial data in the Offering Memorandum present fairly in all
material respects the information shown therein and, except with respect to
the
selected historical financial data for the calendar year ended December 31,
1999
(which has not been restated), have been prepared and compiled on a basis
consistent with the audited financial statements included therein;
(y) The
pro
forma financial information that will be included in the Offering Memorandum
(i)
complies as to form in all material respects with the applicable requirements
of
Regulation S-X for Form S-1 promulgated under the Exchange Act, and (ii) has
been properly computed on the bases described therein; the assumptions used
in
the preparation of the pro forma financial information that will be included
in
the Offering Memorandum are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein;
-7-
(z) KPMG
LLP,
who has certified the financial statements that will be included in the Offering
Memorandum, is a firm of independent public accountants as required by the
Act
and the rules and regulations of the Commission thereunder, based upon
representations by such firm to us;
(aa) The
Issuers, the Parent Companies and the Issuers’ subsidiaries own or possess, or
can acquire on reasonable terms, adequate licenses, trademarks, service marks,
trade names and copyrights (collectively, "Intellectual
Property")
necessary to conduct the business now or proposed to be operated by each of
them
as described in the Offering Memorandum, except where the failure to own,
possess or have the ability to acquire any Intellectual Property would not,
individually or in the aggregate, have a Material Adverse Effect; and none
of
the Issuers or any of the Parent Companies or the Issuers’ subsidiaries has
received any notice of infringement of or conflict with (and none actually
knows
of any such infringement of or conflict with) asserted rights of others with
respect to any Intellectual Property which, if any such assertion of
infringement or conflict were sustained would, individually or in the aggregate,
have a Material Adverse Effect;
(bb) Except
as
described in the Offering Memorandum, the Issuers, the Parent Companies and
the
Issuers’ subsidiaries have obtained all consents, approvals, orders,
certificates, licenses, permits, franchises and other authorizations of and
from, and have made all declarations and filings with, all governmental and
regulatory authorities (including, without limitation, the FCC), all
self-regulatory organizations and all courts and other tribunals legally
necessary to own, lease, license and use their respective properties and assets
and to conduct their respective businesses in the manner described in the
Offering Memorandum, except to the extent that the failure to so obtain or
file
would not, individually or in the aggregate, have a Material Adverse
Effect;
(cc) The
Issuers, the Parent Companies and the Issuers’ subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns required
to be filed as of the date hereof, except where the failure to so file such
returns would not, individually or in the aggregate, have a Material Adverse
Effect, and have paid all taxes shown as due thereon; and there is no tax
deficiency that has been asserted against the Issuers or any of their
subsidiaries (other than those which the amount or validity thereof are
currently being challenged in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the relevant entity) that could reasonably be expected to result,
individually or in the aggregate, in a Material Adverse
Effect;
(dd) The
Issuers, the Parent Companies and the Issuers’ subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access
to
assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared
with
the existing assets at reasonable intervals and appropriate action is taken
with
respect to any differences;
-8-
(ee) Except
as
described in the Offering Memorandum: (i) each of the franchises held by, or
necessary for any operations of, the Issuers and their subsidiaries that are
material to the Issuers and their subsidiaries, taken as a whole, is in full
force and effect, with no material restrictions or qualifications; (ii) to
the
best knowledge of the Issuers, no event has occurred which permits, or with
notice or lapse of time or both .would
permit, the revocation or non-renewal of any such franchises, assuming the
filing of timely renewal applications and the timely payment of all applicable
filing and regulatory fees to the applicable franchising authority, or which
would be reasonably likely to result, individually or in the aggregate, in
any
other material impairment of the rights of the Issuers and the Issuers’
subsidiaries in such franchises; and (iii) the Issuers have no reason to believe
that any franchise that is material to the operation of the Issuers and their
subsidiaries will not be renewed;
(ff) Each
of
the programming agreements entered into by, or necessary for any operations
of,
the Issuers, their Parent Companies or their subsidiaries that are material
to
the Issuers and their subsidiaries, taken as a whole, is in full force and
effect (or in any cases where the Issuers or their subsidiaries and any
suppliers of content are operating in the absence of an agreement, such content
providers and the Issuers and their subsidiaries provide and receive service
in
accordance with terms that have been agreed to or consistently acknowledged
or
accepted by both parties, including, without limitation, situations in which
providers or suppliers of content accept regular payment for the provision
of
such content); and to the best knowledge of the Issuers, no event has occurred
(or with notice of lapse of time or both would occur) which would be reasonably
likely to result in the early termination or non-renewal of any such programming
agreements and which would, individually or in the aggregate, result in a
Material Adverse Effect; no amendments or other changes to such programming
agreements, other than amendments relating to intra-company transfers,
extensions of termination dates or pricing adjustments, together with other
changes that are not in the aggregate material, have been made to the copies
of
the programming agreements provided for the review of the Purchasers or their
representatives;
(gg) The
Issuers, the Parent Companies and the Issuers’ subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (“Environmental
Laws”),
(ii)
have received all permits, licenses or other approvals required of ‘them under
applicable Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit, license
or
approval, except where such noncompliance with Environmental Laws, failure
to
receive required permits, licenses or other approvals or failure to.
comply
with the terms and conditions of such permits, licenses or approvals would
not,
individually or in the aggregate, have a Material Adverse Effect;
(hh) Immediately
after the consummation of this offering (including after giving effect to the
execution, delivery and performance of this Agreement and the Indenture and
the
issuance and sale of the Notes), (i) the fair market value of the assets of
each
of Holdings, CCH I, LLC, CCH II, LLC, Charter Communications Operating, LLC
and
the Company, each on a consolidated basis with its subsidiaries, exceeds and
will exceed its liabilities, on a consolidated basis with its subsidiaries;
(ii)
the present fair saleable value of the assets of each of Holdings, CCH I, LLC,
CCH II, LLC and the Company, each on a consolidated basis with its subsidiaries,
exceeds and will exceed its liabilities, on a consolidated basis with its
subsidiaries; (iii) each of Holdings, CCH I, LLC, CCH II, LLC, Charter
Communications Operating, LLC and the Company, each on a consolidated basis
with
its subsidi-
-9-
aries,
is
and will be able to pay its debts, on a consolidated basis with its
subsidiaries, as such debts respectively mature or otherwise become absolute
or
due; and (iv) each of Holdings, CCH I, LLC, CCH II, LLC, Charter Communications
Operating, LLC and the Company, on a consolidated basis with its subsidiaries,
does not have and will not have unreasonably small capital with which to
conduct
its respective operations;
(ii) The
Issuers and their Parent Companies each maintain a system of disclosure controls
and procedures to ensure that material information relating to the Issuers
and
their Parent Companies, including their consolidated subsidiaries, is made
known
to each of them by others within those entities, particularly during the period
in which the periodic reports are being prepared;
(jj) There
is,
and has been, no failure on the part of the Issuers, the Parent Companies or
the
Issuers’ subsidiaries, or any of their directors or officers, in their
capacities as such, to comply with any provision of the Sarbanes Oxley Act
of
2002 and the rules and regulations promulgated in connection therewith,
including, without limitation, Section 402 related to loans and Sections 302
and
906 related to certifications;
(kk) The
statistical and market-related data that will be included in the Offering
Memorandum are based on or derived from sources that the Issuers believe to
be
reliable and accurate; and
(ll) Each
of
the relationships and transactions specified in Item 404 of Regulation S-K
that
would have been required to be described in a Form 10-K have been so described
in the Offering Memorandum (exclusive of any amendment or supplement thereto).
2. Purchase
and Sale.
(a)
Subject to the terms and conditions herein set forth, the Issuers agree to
issue
and sell to each of the Purchasers, and each of the Purchasers agrees, severally
and not jointly, to purchase from the Issuers the principal amount of the Notes
set forth opposite the name of such Purchaser in Schedule I hereto, at an
aggregate purchase price of 96.501% of the principal amount thereof, plus
accrued interest on such principal amount from and including May 15, 2005 to
but
not including the Closing Date.
(b) The
Issuers acknowledge and agree that the Purchasers are acting solely in the
capacity of an arm's length contractual counterparty to the Issuers with respect
to the offering of Notes contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Issuers or any other person. Additionally,
no
Purchaser is advising the Issuers or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The Issuers
shall consult with its own advisors concerning such matters and shall be
responsible for making their own independent investigation and appraisal of
the
transactions contemplated hereby, and the Purchasers shall have no
responsibility or liability to the Issuers with respect thereto. Any review
by
the Purchasers of the Issuers, the transactions contemplated hereby or other
matters relating to such
-10-
transactions
will be performed solely for the benefit of the Purchasers and shall not
be on
behalf of the Issuers.
3. Representations,
Warranties and Covenants of the Purchasers.
Upon
the authorization by you of the release of the Notes, the several Purchasers
propose to offer the Notes for sale upon the terms and conditions set forth
in
this Agreement and the Offering Memorandum and each Purchaser, severally and
not
jointly, hereby represents and warrants to, and agrees with the Issuers
that:
(a) It
will
offer and sell the Notes only: (i) to persons who it reasonably believes are
"qualified institutional buyers" ("QIBs")
within
the meaning of Rule 144A under the Act in transactions meeting the requirements
of Rule 144A or (ii) upon the terms and conditions set forth in Annex I to
this
Agreement;
(b) It
is an
institutional "accredited investor" within the meaning of Regulation D under
the
Act; and
(c) It
has
not offered and will
not
offer
or sell the Notes by any form of general solicitation or general advertising,
including, without limitation, the methods described in Rule 502(c) under the
Act.
4. Delivery
and Payment.
(a) The
Notes
to be purchased by each Purchaser hereunder will be represented by definitive
global Notes in book-entry form which will be deposited by or on behalf of
the
Issuers with The Depository Trust Company ("DTC")
or its
designated custodian. The Issuers will deliver the Notes to ▇.▇. ▇▇▇▇▇▇
Securities Inc., for the account of each Purchaser, against payment by or on
behalf of such Purchaser of the purchase price therefor by wire transfer of
same
day funds wired in accordance with the written instructions of the Company,
by
causing DTC to credit the Notes to the account of ▇.▇. ▇▇▇▇▇▇ Securities Inc.
at
DTC. The Issuers will cause the certificates representing the Notes to be made
available to ▇.▇. ▇▇▇▇▇▇ Securities Inc. for checking at least twenty-four
hours
prior to the Time of Delivery at the office of DTC or its designated custodian
(the "Designated
Office").
The
time and date of such delivery and payment shall be 9:30 a.m., New York City
time, on August 11, 2005 or such other time and date as ▇.▇.
▇▇▇▇▇▇
Securities Inc. and the Issuers may agree upon in writing. Such time and date
are herein called the "Time of Delivery."
(b) The
documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 7 hereof, including, without limitation, the
cross-receipt for the Notes and any additional documents requested by the
Purchasers pursuant to Section 7(j) hereof, will be delivered at such time
and
date at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp,
▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such other location as the parties mutually
agree (the "Closing
Location"),
and
the Notes will be delivered at the Designated Office, all at the Time of
Delivery. A meeting will be held at the Closing Location at 6 p.m., New York
City time, on the New York Business Day next preceding the Time of Delivery,
at
which meeting the final drafts of the documents to be delivered pursuant to
the
preceding sentence will be available for review by the parties hereto. For
the
purposes of this Section 4, "New York Business Day" shall mean
-11-
each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which
banking institutions in New York are generally authorized or obligated
by law or
executive order to close.
5. Agreements.
Each of
the Issuers agrees with each of the Purchasers:
(a) To
prepare the Offering Memorandum in a form approved by you; to make no amendment
or any supplement to the Offering Memorandum which shall not be approved by
you
promptly after reasonable notice thereof; and to furnish you with copies
thereof;
(b) Promptly
from time to time to take such action as you may reasonably request to qualify
the Notes for offering and sale under the securities laws of such jurisdictions
as you may request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Notes; provided
that in
connection therewith the Issuers shall not be required to qualify as a foreign
corporation or limited liability company, as the case may be, or to file a
general consent to service of process in any jurisdiction;
(c) To
furnish the Purchasers with copies of the Offering Memorandum and each amendment
or supplement thereto signed by an authorized officer of each of the Issuers
with the independent accountants’ reports in the Offering Memorandum, and any
amendment or supplement containing amendments to the financial statements
covered by such reports, signed by the accountants, and additional copies
thereof in, such quantities as you may from time to time reasonably request,
and
if, at any time prior to the expiration of nine months after the date of the
Offering Memorandum, any event shall have occurred as a result of which the
Offering Memorandum as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Offering Memorandum is delivered, not misleading,
or, if for any other reason it shall be necessary or desirable during such
same
period to amend or supplement the Offering Memorandum, to notify you and upon
your request to prepare and furnish without charge to each Purchaser and to
any
dealer in securities as many copies as you may from time to time reasonably
request of an amended Offering Memorandum or a supplement to the Offering
Memorandum which will correct such statement or omission or effect such
compliance;
(d) During
the period beginning from the date hereof and continuing until the date 90
days
after the Time of Delivery, not to, and not permit any of its affiliates or
anyone authorized to act on behalf of the Issuers or their affiliates to,
without the prior written consent of ▇.▇. ▇▇▇▇▇▇ Securities Inc., offer, sell,
contract to sell or otherwise dispose of, except as provided hereunder, any
securities of the Issuers that are substantially similar to the Notes other
than
as provided in the Exchange and Registration Rights Agreement and other than
as
contemplated by the Pending Exchange;
(e) Not
to be
or become, at any time prior to the expiration of two years after the Time
of
Delivery, an open-end investment company, unit investment trust, closed-end
investment company or face-amount certificate company that is or is required
to
be registered under Section 8 of the Investment Company Act;
-12-
(f) At
any
time when any Issuer is not subject to or in compliance with Section 13 or
15(d)
of the Exchange Act, for the benefit of holders from time to time of Notes,
to
furnish at the Issuers’ expense, upon request, to holders of Notes and
prospective purchasers of securities information (the "Additional
Issuer Information")
satisfying the requirements of subsection (d)(4)(i) of Rule 144A under the
Act;
(g) If
such
documents are not then available on the Commission’s ▇▇▇▇▇ Database, to furnish
or make electronically available to the holders of the Notes as soon as
practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, members’ or stockholders’ equity and
cash flows of the Issuers and their consolidated subsidiaries certified by
independent public accountants), and, as soon as practicable after the end
of
each of the first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the date of the Offering Memorandum), to make
electronically available to holders of the Notes consolidated summary financial
information of the Issuers and their subsidiaries for such quarter in reasonable
detail;
(h) If
such
documents are not then available on the Commission’s ▇▇▇▇▇ Database, during a
period of three years from the date of the Offering Memorandum, to furnish
or
make electronically available to you, copies of all reports or other
communications (financial or other) furnished generally to holders of a publicly
traded class of ownership interests of the Issuers or CCI, and to furnish or
make electronically available to you, as soon as they are available, of any
reports and financial statements furnished to or filed with the Commission
or
any securities exchange on which the Notes or any class of securities of the
Issuers or CCI is listed;
(i) During
the period of two years after the Time of Delivery, the Issuers will not, and
will not permit any of their "affiliates" (as defined in Rule 144 under the
Act)
to, resell any of the Notes which constitute "restricted securities" under
Rule
144 that have been reacquired by any of them;
(j) To
use
the net proceeds received from the sale of the Notes pursuant to this Agreement
in the manner specified in the Offering Memorandum under the caption "Use of
Proceeds";
(k) None
of
the Issuers or any of their affiliates, nor any person authorized to act on
their behalf (other than the Purchasers, as to whom the Issuers take no
responsibility) will engage in any directed selling efforts with respect to
the
Notes in contravention of, and each of them will comply with, the applicable
offering restrictions requirement of Regulation S. Terms used in this paragraph
have the meanings given to them by Regulation S;.
(l) None
of
the Issuers or any of their affiliates, nor any person authorized to act on
their behalf (other than the Purchasers, as to whom the Issuers take no
responsibility) will, directly or indirectly, make offers or sales of any
security, or solicit offers to buy any security, under circumstances that would
require the registration of the Notes under the Act, except pursuant to the
Exchange and Registration Rights Agreement;
(m) None
of
the Issuers or any of their affiliates, nor any person authorized to act on
their behalf (other than the Purchasers, as to whom the Issuers take no
responsibility), will
-13-
engage
in
any form of general solicitation or general advertising (within the meaning
of
Regulation D) in connection with any offer or sale of the Notes in the
United
States;
(n) Except
as
otherwise permitted by Regulation M under the Exchange Act, none of the Issuers
or any of their affiliates will take, directly or indirectly, any action
designed to or which has constituted or which would reasonably be expected
to
cause or result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Issuers to facilitate the
sale
or resale of the Notes; and
(o) The
Issuers will use their best efforts prior to the Time of Delivery to cause
the
Notes to be eligible for the PORTAL trading system of the NASD.
6. Agreement
to Pay Certain Fees.
Each of
the Issuers covenants and agrees with the several Purchasers that the Issuers
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Issuers’ counsel and accountants in connection with the issue of
the Notes and all other expenses in connection with the preparation, printing
and filing of the Offering Memorandum and any amendments and supplements thereto
and the mailing and delivering of copies thereof to the Purchasers and dealers;
(ii) the cost of printing or producing any Agreement among Purchasers, this
Agreement, the Indenture, the Notes, the Blue Sky and Legal Investment
Memoranda, closing documents (including, without limitation, any compilations
thereof) and any other documents in connection with the offering, purchase,
sale
and delivery of the Notes; (iii) all expenses in connection with the
qualification of the Notes for offering and sale under state securities laws
as
provided in Section 5(b) hereof, including, without limitation, the fees and
disbursements of counsel for the Purchasers in connection with such
qualification and in connection with the Blue Sky and Legal Investment surveys;
(iv) any fees charged by securities rating services for rating the Notes; (v)
the cost of preparing the Notes; (vi) the fees and expenses of the Trustee
and
any agent of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Notes; (vii) any cost incurred
in connection with the designation of the Notes for trading in PORTAL; and
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in
this
Section. It is understood, however, that, except as provided in this Section
6
and Sections 8 and 11 hereof; the Purchasers will pay all their own costs and
expenses, including, without limitation, the fees of their counsel, transfer
taxes on resale of any of the Notes by them, and any advertising expenses
connected with any offers they may make.
7. Conditions
to the Obligations of the Purchasers.
The
obligations of the Purchasers hereunder shall be subject, in their discretion,
to the condition that all representations and warranties and other statements
of
the Issuers herein are, at and as of the date hereof and the Time of Delivery,
true and correct, the condition that the Issuers shall have performed all their
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The
Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp,
counsel
for the Purchasers, such opinion or opinions, dated the Time of Delivery and
addressed to the Purchasers, with respect to the issuance and sale of the Notes
and the Indenture and other related matters as the Purchasers may reasonably
require, and the Issuers shall have furnished to such counsel such documents
as
they request for the purpose of enabling them to pass upon such
matters.
-14-
(b) ▇▇▇▇▇
& ▇▇▇▇▇▇▇ LLP, counsel for the Issuers, shall have furnished to you their
written opinions, dated the Time of Delivery, substantially in the form of
▇▇▇▇▇
▇▇ hereto.
(c) ▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P., special regulatory counsel to the Issuers, shall
have furnished to you their written opinion, dated the Time of Delivery, in
form
and substance reasonably satisfactory to you, to the effect that:
(i) The
issue
and sale of the Notes and the compliance by the Issuers with all the provisions
of the Notes, the Indenture, the Exchange and Registration Rights Agreement
and
this Agreement and the consummation of the transactions herein and therein
contemplated do not and will not contravene the Cable Acts or any order, rule
or
regulation of the FCC to which the Issuers or any of their Parent Companies
or
subsidiaries or any of their property is subject; however, to the extent that
any document purports to grant a security interest in licenses issued by the
FCC, the FCC has taken the position that security interests in FCC licenses
are
not valid. To the extent that any party seeks to exercise control of an FCC
license in the event of a default or for any other reason, it may be necessary
to obtain prior FCC consent;
(ii) To
the
best of such counsel’s knowledge, no consent, approval, authorization or order
of, or registration, qualification or filing with the FCC is required under
the
Cable Acts or any order, rule or regulation of the FCC in connection with the
issue and sale of the Notes and the compliance by the Issuers with all the
provisions of the Notes, the Indenture, the Exchange and Registration Rights
Agreement and this Agreement and the consummation of the transactions herein
and
therein contemplated; however, to the extent that any document purports to
grant
a security interest in licenses issued by the FCC, the FCC has taken the
position that security interests in FCC licenses are not valid; to the extent
that any party seeks to exercise control of an FCC license in the event of
a
default or for any other reason, it may be necessary to obtain prior FCC
consent;
(iii) The
statements set forth in the Offering Memorandum under the captions "Risk
Factors" under the subheading "Risks relating to regulatory and legislative
matters" insofar as they constitute summaries of laws referred to therein,
concerning the Cable Acts and the published rules, regulations and policies
promulgated by the FCC thereunder, fairly summarize the matters described
therein;
(iv) To
such
counsel’s knowledge based solely upon its review of publicly available records
of the FCC and operational information provided by the Issuers’ and their Parent
Companies and subsidiaries’ management, the Company and its Parent Companies and
subsidiaries hold all FCC licenses for cable antenna relay services necessary
to
conduct the business of the Company and its subsidiaries as currently conducted,
except to the extent the failure to hold such FCC licenses would not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect; and
(v) Except
as
disclosed in the Offering Memorandum and except with respect to rate regulation
matters, and general rulemakings and similar matters relating generally to
the
cable television, industry, to such counsel’s knowledge, based solely
-15-
upon
its
review of the publicly available records of the FCC and upon inquiry of
the
Issuers’ and their Parent Companies’ and subsidiaries’ management, during the
time the cable systems of the Company and its Parent Companies and subsidiaries
have been owned by the Company and its Parent Companies and subsidiaries
(A)
there has been no adverse FCC judgment, order or decree issued by the FCC
relating to the ongoing operations of any of the Company or one of its
subsidiaries that has had or could reasonably be expected to have a Material
Adverse Effect; and (B) there are no actions, suits, proceedings, inquiries
or
investigations by or before the FCC pending or threatened in writing against
or
specifically affecting the Company or any of its Parent Companies or
subsidiaries or any cable system of the Company or any of its Parent Companies
or subsidiaries which could, individually or in the aggregate, be reasonably
expected to result in a Material Adverse Effect;
(d) ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇, Esq., General Counsel of the Company, shall have furnished to you
his
written opinion, dated as of the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) Each
subsidiary of the Company listed on a schedule attached to such counsel’s
opinion (the "Charter
Subsidiaries")
has
been duly incorporated or formed, as the case may be, and is validly existing
as
a corporation, limited liability company or partnership, as the case may be,
in
good standing under the laws of its jurisdiction of incorporation or formation;
and all the issued shares of capital stock, limited liability company interests
or partnership interests, as the case may be, of each Charter Subsidiary are
set
forth on the books and records of the Company and, except for those Charter
Subsidiaries that are general partners, assuming receipt of requisite
consideration therefor, are fully paid and nonassessable (in the case of
corporate entities) and not subject to additional capital contributions (in
the
case of limited liability company entities and limited partnerships); and,
except as otherwise set forth in the Offering Memorandum, and except for liens
not prohibited under the credit agreements listed on such schedule, all
outstanding shares of capital stock of each of the Charter Subsidiaries are
owned by the Company, either directly or indirectly or through wholly-owned
subsidiaries free and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other security interest,
claim, lien or encumbrance;
(ii) Each
of
the Issuers and the Charter Subsidiaries has been duly qualified as a foreign
corporation, partnership or limited liability company, as the case may be,
for
the transaction of business and is in good standing under the laws of each
jurisdiction set forth in a schedule to such counsel’s opinion;
(iii) To
the
best of such counsel’s knowledge and other than as set forth in the Offering
Memorandum, there are no legal or governmental proceedings pending to which
the
Issuers, the Parent Companies or any of the Issuers’ subsidiaries is party or of
which any property of the Issuers, the Parent Companies or any of the Issuers’
subsidiaries is the subject, of a character required to be disclosed in a
registration statement on Form S-1, which is not disclosed in the Offering
Memorandum, except for such proceedings which are not likely to have,
individually or in the aggregate, a Material Adverse Effect; and, to the best
of
such counsel’s knowledge and other than as set forth in
-16-
the
Offering Memorandum, no such proceedings are overtly threatened by governmental
authorities or by others; and
(iv) The
issue
and sale of the Notes and the compliance by the Issuers with all the provisions
of the Notes, the Indenture, the Exchange and Registration Rights Agreement
and
this Agreement and the consummation of the transactions therein contemplated
will not result in a violation of the provisions of the certificate of
incorporation or by-laws, or certificate of formation or limited liability
company agreement or partnership agreement, as the case may be, of any of the
Charter Subsidiaries;
(e) At
the
Time of Delivery, KPMG LLP shall have furnished to you a letter dated the date
of delivery thereof, in form and substance satisfactory to you;
(f) (i)
None
of the Issuers, any of the Parent Companies or any of the Issuers’ subsidiaries
shall have sustained since the date of the latest audited financial statements
that will be included in the Offering Memorandum any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Offering Memorandum, and
(ii)
since the respective dates as of which information is given in the Offering
Memorandum (for clarification purposes, this excludes any amendment or
supplement to the Offering Memorandum on or after the date of this Agreement)
there shall not have been any change in the capital stock, limited liability
company interests, partnership interests or long-term debt of the Issuers or
any
of their subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders’ or members’ equity, or results of operations of the Issuers and
their subsidiaries, otherwise than as set forth or contemplated in the Offering
Memorandum, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of a majority in interest of the Purchasers so material
and adverse as to make it impracticable or inadvisable to proceed with the
offering or the delivery of the Notes on the terms and in the manner
contemplated in this Agreement and in the Offering Memorandum;
(g) Subsequent
to the execution and delivery of this Agreement, (i) no downgrading shall have
occurred in the rating accorded the Notes or any other debt securities or
preferred stock issued or guaranteed by the Issuers by any "nationally
recognized statistical rating organization," as such term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act; and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, or has changed its outlook with respect to, its rating of the Notes
or
of any other debt securities or preferred stock issued or guaranteed by the
Issuers (other than an announcement with positive implications of a possible
upgrading or an announcement which reaffirms, reiterates or restates the
substance of any announcement made prior to the date hereof);
(h) On
or
after the date hereof there shall not have occurred any of the following: (i)
a
suspension or material limitation in trading in securities generally on the
New
York Stock Exchange or on the Nasdaq National Market; (ii) a suspension or
material limitation in trading in CCI’s Class A common stock on the Nasdaq
National Market, (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities; or (iv) the outbreak
or escalation of hostilities or the declaration of a national emergency or
war
-17-
or
the
occurrence of any other calamity or crisis, if the effect of any such event
specified in this clause (iv) in the judgment of the Purchasers makes it
impracticable or inadvisable to proceed with the offering; sale or the
delivery
of the Notes on the terms and in the manner contemplated in the Offering
Memorandum;
(i) The
Notes
shall have been designated for trading on PORTAL; and
(j) The
Issuers shall have furnished or caused to be furnished to you at the Time of
Delivery certificates of officers of each Issuer satisfactory to you as to
the
accuracy of the representations and warranties of the Issuers herein at and
as
of such Time of Delivery, as to the performance by the Issuers of all their
obligations hereunder to be performed at or prior to such Time of Delivery,
as
to the matters set forth in subsections (g) and (h) of this Section 7 and as
to
such other matters as you may reasonably request.
8. Indemnification
and Contribution.
(a) Indemnification
of the Purchasers.
The
Issuers jointly and severally agree to indemnify and hold harmless each
Purchaser, its affiliates, directors and officers and each person, if any,
who
controls such Purchaser within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages
and
liabilities (including, without limitation, reasonable legal fees and other
expenses incurred in connection with any suit, action or proceeding or any
claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement
of a
material fact contained in the Offering Memorandum (or any amendment or
supplement thereto) or any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading, except insofar
as
such losses, claims, damages or liabilities arise out of, or are based upon,
any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Purchaser
furnished to the Issuers in writing by such Purchaser through ▇.▇. ▇▇▇▇▇▇
Securities Inc. expressly for use therein.
(b) Indemnification
of the Issuers.
Each
Purchaser agrees, severally and not jointly, to indemnify and hold harmless
each
Issuer, its affiliates, officers, directors, employees, members, managers and
agents, and each person, if any, who controls an Issuer within the meaning
of
Section 15 of the Act or Section 20 of the Exchange Act to the same extent
as
the indemnity set forth in paragraph (a) above, but only with respect to any
losses, claims, damages or liabilities that arise out of, or are based upon,
any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to such Purchaser
furnished to the Issuers in writing by such Purchaser through ▇.▇. ▇▇▇▇▇▇
Securities Inc. expressly for use in the Offering Memorandum (or any amendment
or supplement thereto), it being understood and agreed that the only such
information consists of the following: the statements set forth in the last
paragraph of the cover page regarding the delivery of the Notes, and under
the
heading "Plan of distribution," the paragraph related to over-allotment,
covering and stabilization transactions.
-18-
(c) Notice
and Procedures.
If any
suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnification may be sought pursuant to either paragraph
(a) or (b) above, such person (the "Indemnified
Person")
shall
promptly notify the person against whom such indemnification may be sought
(the
"Indemnifying
Person")
in
writing; provided that the failure to notify the Indemnifying Person shall
not
relieve it from any liability that it may have under this Section 8 except
to
the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided, further, that
the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this
Section 8. If any such proceeding shall be brought or asserted against an
Indemnified Person and it shall have notified the Indemnifying Person thereof,
the Indemnifying Person shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 8 that the Indemnifying Person
may
designate in such proceeding and shall pay the reasonable fees and expenses
of
such counsel related to such proceeding, as incurred. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but
the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall
have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person; (iii) the Indemnified Person shall have reasonably concluded that there
may be legal defenses available to it which if raised in a proceeding involving
both parties would be inappropriate under applicable legal or ethical standards
due to actual or potential differing interests between it and the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate under applicable legal or ethical standards due to actual or
potential differing interests between them. It is understood and agreed that
the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of
more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such reasonable fees and expenses shall be reimbursed
as
they are incurred. Any such separate firm for any Purchaser, its affiliates,
directors and officers and any control persons of such Purchaser shall be
designated in writing by ▇.▇. ▇▇▇▇▇▇ Securities Inc. and any such separate
firm
for the Issuers and any control persons of the Issuers shall be designated
in
writing by the Issuers. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
not
subject to further appeal, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability provided for in such
settlement or judgment. No Indemnifying Person shall, without the written
consent of the Indemnified Person (which shall not be unreasonably withheld),
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnification
could have been sought hereunder by such Indemnified Person, unless such
settlement (x) includes an unconditional release of such Indemnified Person,
in
form and substance reasonably satisfactory to such Indemnified Person, from
all
liability on claims that are the subject matter of such proceeding and (y)
does
not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of such Indemnified Person.
-19-
(d) Contribution.
If the
indemnification provided for in paragraphs (a) and (b) above is unavailable
to
an Indemnified Person or insufficient in respect of any losses, claims, damages
or liabilities referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuers on the
one
hand and the Purchasers on the other from the offering of the Notes or (ii)
if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Issuers on the
one
hand and the Purchasers on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well
as any other relevant equitable considerations. The relative benefits received
by the Issuers on the one hand and the Purchasers on the other shall be deemed
to be in the same respective proportions as the net proceeds (before deducting
expenses) received by the Issuers from the sale of the Notes and the total
discounts and commissions received by the Purchasers in connection therewith,
as
provided in this Agreement, bear to the aggregate offering price of the Notes.
The relative fault of the Issuers on the one hand and the Purchasers on the
other 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 Issuers
or by the Purchasers and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) Limitation
on Liability.
The
Issuers and the Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation
(even if the Purchasers were treated as one entity for such purpose) or by
any
other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable
by
an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding
the provisions of this Section 8, in no event shall a Purchaser be required
to
contribute any amount in excess of the amount by which the total discounts
and
commissions received by such Purchaser with respect to the offering of the
Notes
exceeds the amount of any damages that such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from
any person who was not guilty of such fraudulent misrepresentation. The
Purchasers’ obligations to contribute pursuant to this Section 8 are several in
proportion to their respective purchase obligations hereunder and not
joint.
(f) Non-Exclusive
Remedies.
The
remedies provided for in this Section 8 are not exclusive and shall not limit
any rights or remedies that may otherwise be available to any Indemnified Person
at law or in equity.
9. Default
by a Purchaser.
-20-
(a) If
any
Purchaser shall default in its obligation to purchase the Notes which it has
agreed to purchase hereunder, you may in your discretion arrange for you or
another party or other parties to purchase such Notes on the terms contained
herein. If within thirty-six hours after such default by any Purchaser you
do
not arrange for the purchase of such Notes, then the Issuers shall be entitled
to a further period of thirty-six hours within which to procure another party
or
other parties satisfactory to you to purchase such Notes on such terms. In
the
event that, within the respective prescribed periods, you notify the
Issuers.
that
you
have so arranged for the purchase of such Notes, or the Issuers notify you
that
they have so arranged for the purchase of such Notes, you or the Issuers shall
have the right to postpone the Time of Delivery for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary
in
the Offering Memorandum, or in any other documents or arrangements, and the
Issuers agree to prepare promptly any amendments to the Offering Memorandum
which in your opinion may thereby be made necessary. The term "Purchaser" as
used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to this Agreement
with respect to such Notes.
(b) If,
after
giving effect to any arrangements for the purchase of the Notes of a defaulting
Purchaser or Purchasers by you and the Issuers as provided in subsection (a)
above, the aggregate principal amount of such Notes which remains unpurchased
does not exceed one-tenth of the aggregate principal amount of all the Notes,
then the Issuers shall have the right to require each non-defaulting Purchaser
to purchase the principal amount of Notes which such Purchaser agreed to
purchase hereunder and, in addition, to require each non-defaulting Purchaser
to
purchase its pro rata share (based on the principal amount of Notes which such
Purchaser agreed to purchase hereunder) of the Notes of such defaulting
Purchaser or Purchasers for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Purchaser from liability for its
default.
(c) If,
after
giving effect to any arrangements for the purchase of the Notes of a defaulting
Purchaser or Purchasers by you and the Issuers as provided in subsection (a)
above, the aggregate principal amount of Notes which remains unpurchased exceeds
one-tenth of the aggregate principal amount of all the Notes, or if the Issuers
shall not exercise the right described in subsection (b) above to require
non-defaulting Purchasers to purchase Notes of a defaulting Purchaser or
Purchasers, then this Agreement shall thereupon terminate, without liability
on
the part of any non-defaulting Purchaser or the Issuers, except for the expenses
to be borne by the Issuers and the Purchasers as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Purchaser from liability for its
default.
10. Representations
and Indemnities to Survive.
The
respective indemnities, agreements, representations, warranties and other
statements of the Issuers and the several Purchasers, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to
the
results thereof) made by or on behalf of any Purchaser or any controlling person
of any Purchaser, or the Issuers, or any officer or director or controlling
person of the Issuers, and shall survive delivery of and payment for the
Notes.
-21-
11. Termination.
If this
Agreement shall be terminated pursuant to Section 9 hereof, the Issuers shall
not then be under any liability to any Purchaser except as provided in Sections
6 and 8 hereof; but, if for any other reason other than a termination pursuant
to clauses (i), (iii) or (iv) of Section 7(h), the Notes are not delivered
by or
on behalf of the Issuers as provided herein, the Issuers will reimburse the
Purchasers through you for all out-of-pocket expenses approved in writing by
you, including, fees and disbursements of counsel, reasonably incurred by the
Purchasers in making preparations for the purchase, sale and delivery of the
Notes, but the Issuers shall then be under no further liability to any Purchaser
except as provided in Sections 6 and 8 hereof.
12. Reliance
and Notices.
In all
dealings hereunder, you shall act on behalf of each of the Purchasers, and
the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Purchaser made or given by you jointly
or
by ▇.▇. ▇▇▇▇▇▇ Securities Inc. on behalf of you as Purchasers.
All
statements, requests, notices and agreements hereunder shall be in writing,
and
if to the Purchasers (or any of them) shall be delivered or sent by mail, telex
or facsimile transmission to you as Purchasers (or a Purchaser) to ▇.▇. ▇▇▇▇▇▇
Securities Inc. Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(fax: (▇▇▇) ▇▇▇-▇▇▇▇, and if to the Issuers shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Issuers set forth in
the
Offering Memorandum, Attention: Secretary. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. Successors.
This
Agreement shall be binding upon, and inure solely to the benefit of, the
Purchasers, the Issuers, and, to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Issuers and the Purchasers and each
person who controls the Issuers or any Purchaser, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser
of
any of the Notes from any Purchaser shall be deemed a successor or assign by
reason merely of such purchase.
14. Timeliness.
Time
shall be of the essence in this Agreement.
15. Applicable
Law.
This
Agreement shall be governed by and construed in.
accordance
with the laws of the State of New York.
16. Counterparts.
This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
-22-
If
the
foregoing is in accordance with your understanding, please sign and return
to us
counterparts hereof, and upon the acceptance hereof by you, on behalf of each
of
the Purchasers, this letter and such acceptance hereof shall constitute a
binding agreement between each of the Purchasers and the Issuers. It is
understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Issuers for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very
truly yours,
CCO
HOLDINGS, LLC
By: /s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Senior
Vice President of Finance and Acquisitions,
Treasurer
and Assistant Secretary
By: /s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Senior
Vice President of Finance and Acquisitions,
Treasurer
and Assistant Secretary
-23-
Accepted
as of the date hereof
▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
CREDIT
SUISSE FIRST BOSTON LLC
BANC
OF
AMERICA SECURITIES LLC
Acting
severally on behalf of themselves and the
several
Purchasers named in Schedule I hereto.
By: ▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title: Managing
Director
-24-
SCHEDULE
I
|
Purchasers
|
Principal
Amount of
Notes
to be Purchased
|
|||
|
▇.▇.
▇▇▇▇▇▇ Securities Inc.
|
US
$150,000,000
|
|||
|
Credit
Suisse First Boston LLC
|
105,000,000
|
|||
|
Banc
of America Securities LLC
|
45,000,000
|
|||
|
Total
|
US
$300,000,000
|
|||
ANNEX
I
Selling
Restrictions for Offers and
Sales
outside the United States
(1)(a)
The Securities have not been and will not be registered under the Act and may
not be offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except in.
accordance
with Regulation S under the Act or pursuant to an exemption from the
registration requirements of the Act. Each Purchaser represents and agrees
that,
except as otherwise permitted under Section 3(a)(i) of the Agreement to which
this is an annex, it has offered and sold the Securities, and will offer and
sell the Securities, (i) as part of their distribution at any time; and (ii)
otherwise until 40 days after the later of the commencement of the offering
and
the Time of Delivery, only in accordance with Rule 903 of Regulation S under
the
Act. Accordingly, each Purchaser represents and agrees that neither it, nor
any
of its affiliates nor any person acting on its or their behalf has engaged
or
will engage in any directed selling efforts with respect to the Securities,
and
that it and they have complied and will comply with the offering restrictions
requirement of Regulation S. Each Purchaser agrees that, at or prior to the
confirmation of sale of Securities (other than a sale of Securities pursuant
to
Section 3(a)(i) of the Agreement to which this is an annex), it shall have
sent
to each distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases Securities from it during the distribution
compliance period a confirmation or notice to substantially the following
effect:
"The
Securities covered hereby have not been registered under the U.S. Securities
Act
of 1933, as amended (the "Act")
and
may not be offered or sold within the United States or to, or for the account
or
benefit of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the offering
and
August 17, 2005, except
in
either case in accordance with Regulation S or Rule 144A under the Act. Terms
used above have the meanings given to them by Regulation S."
(b) Each
Purchaser also represents and agrees that it has not entered and will not enter
into any contractual arrangement with any distributor with respect to the
distribution of the Securities, except with its affiliates or with the prior
written consent of the Company.
(c) Terms
used in this section have the meanings given to them by Regulation
S.
(2) Each
Purchaser represents and agrees that:
(a) It
has
not offered or sold and prior to the expiry of the period of six months from
the
closing of the offering of the Securities, will not offer or sell any Securities
to persons in the United Kingdom, except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances that have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995.
(b) It
has
only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the Financial Services and Markets
Act 2000 ("FSMA"))
received by it in connection with the issue or sale of any Securities or
Exchange Notes in circumstances in which section 21(1) of the FSMA does not
apply to the Company.
(c) It
has
complied and will comply with all applicable provisions of the FSMA with respect
to anything done by it in relation to the Securities or Exchange Notes in,
from
or otherwise involving the United Kingdom.
(d) The
offer
in the Netherlands of the Securities or Exchange Notes is exclusively limited
to
persons who trade or invest in securities in the conduct of a profession or
business (which includes banks, stockbrokers, insurance companies, pension
funds, other institutional investors and finance companies and treasury
departments of large enterprises).
(3) Each
Purchaser agrees that it will not offer, sell or deliver any of the Securities
in any jurisdiction outside the United States except under circumstances that
will result in compliance with the applicable laws thereof, and that it will
take at its own expense whatever action is required to permit its purchase
and
resale of the Securities in such jurisdictions. Each Purchaser understands
that
no action has been taken to permit a public offering in any jurisdiction outside
the United States where action would be required for such purpose. Each
Purchaser agrees not to cause any advertisement of the Securities to be
published in any newspaper or periodical or posted in any public place and
not
to issue any circular relating to the Securities, except in any such case with
the express written consent of ▇.▇. ▇▇▇▇▇▇ Securities Inc. and then only at
such
Purchaser’s own risk and expense.
-2-
Exhibit
A
[Form
of
Offering Memorandum]
Exhibit
B
[Form
of
Exchange and Registration Rights Agreement]