CHARTER
COMMUNICATIONS OPERATING, LLC
and
CHARTER
COMMUNICATIONS OPERATING CAPITAL CORP.,
as
Issuers,
EACH
OF THE GUARANTORS FROM TIME TO TIME PARTY HERETO,
as
Guarantors,
and
WILMINGTON
TRUST COMPANY,
as
Trustee
______
INDENTURE
Dated
as of March 19, 2008
10.875%
Senior Second Lien Notes due 2014
TABLE
OF CONTENTS
Page
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ARTICLE
1
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DEFINITIONS
AND INCORPORATION BY REFERENCE
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Section
1.01
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Definitions.
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1
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Section
1.02
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Other
Definitions.
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29
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Section
1.03
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Incorporation
by Reference of Trust Indenture Act.
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30
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Section
1.04
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Rules
of Construction.
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31
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ARTICLE
2
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THE
NOTES
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Section
2.01
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Form
and Dating.
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31
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Section
2.02
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Execution
and Authentication.
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32
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Section
2.03
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Registrar
and Paying Agent.
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33
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Section
2.04
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Paying
Agent to Hold Money in Trust.
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33
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Section
2.05
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Holder
Lists.
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34
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Section
2.06
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Transfer
and Exchange.
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34
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Section
2.07
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Replacement
Notes.
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37
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Section
2.08
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Outstanding
Notes.
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38
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Section
2.09
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Treasury
Notes.
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38
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Section
2.10
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Temporary
Notes.
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38
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Section
2.11
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Cancellation.
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39
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Section
2.12
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Defaulted
Interest.
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39
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Section
2.13
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Special
Transfer Provisions
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39
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Section
2.14
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Temporary
Regulation S Global Notes
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41
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Section
2.15
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Issuance
of Additional Notes
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41
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Section
2.16
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CUSIP
Numbers
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41
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ARTICLE
3
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REDEMPTION
AND PREPAYMENT
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Section
3.01
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Notices
to Trustee.
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42
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Section
3.02
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Selection
of Notes to Be Redeemed.
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42
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Section
3.03
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Notice
of Redemption.
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42
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Section
3.04
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Effect
of Notice of Redemption.
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43
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Section
3.05
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Deposit
of Redemption Price.
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43
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Section
3.06
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Notes
Redeemed in Part.
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43
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Section
3.07
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Optional
Redemption.
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44
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Section
3.08
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Mandatory
Redemption.
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44
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Section
3.09
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Offer
to Purchase by Application of Excess Proceeds.
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44
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ARTICLE
4
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COVENANTS
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Section
4.01
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Payment
of Notes.
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46
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Section
4.02
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Maintenance
of Office or Agency.
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46
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Section
4.03
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Reports.
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47
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Section
4.04
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Compliance
Certificate.
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48
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Section
4.05
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Taxes.
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48
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Section
4.06
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Stay,
Extension and Usury Laws.
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48
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Section
4.07
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Restricted
Payments.
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48
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Section
4.08
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Investments.
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51
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Section
4.09
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Dividend
and Other Payment Restrictions Affecting
Subsidiaries.
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52
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Section
4.10
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Incurrence
of Indebtedness and Issuance of Preferred Stock.
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53
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Section
4.11
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Limitation
on Asset Sales.
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56
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Section
4.12
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Sale
and Leaseback Transactions.
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57
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Section
4.13
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Transactions
with Affiliates.
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58
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Section
4.14
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Liens.
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59
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Section
4.15
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Existence.
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59
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Section
4.16
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Repurchase
at the Option of Holders upon a Change of
Control.
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59
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Section
4.17
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Additional
Note Guarantees; Security.
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61
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Section
4.18
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Payments
for Consent.
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62
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Section
4.19
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Suspension
of Covenants.
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62
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ARTICLE
5
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SUCCESSORS
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Section
5.01
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Merger,
Consolidation, or Sale of Assets.
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63
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Section
5.02
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Successor
Corporation Substituted.
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64
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ARTICLE
6
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DEFAULTS
AND REMEDIES
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Section
6.01
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Events
of Default.
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65
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Section
6.02
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Acceleration.
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66
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Section
6.03
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Other
Remedies.
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66
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Section
6.04
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Waiver
of Existing Defaults.
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67
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Section
6.05
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Control
by Majority.
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67
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Section
6.06
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Limitation
on Suits.
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67
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Section
6.07
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Rights
of Holders to Receive Payment.
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68
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Section
6.08
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Collection
Suit by Trustee.
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68
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Section
6.09
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Trustee
May File Proofs of Claim.
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68
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Section
6.10
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Priorities.
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68
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Section
6.11
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Undertaking
for Costs.
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69
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ARTICLE
7
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TRUSTEE
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Section
7.01
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Duties
of Trustee.
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69
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Section
7.02
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Rights
of Trustee.
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70
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Section
7.03
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Individual
Rights of Trustee.
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71
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Section
7.04
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Trustee’s
Disclaimer.
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71
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Section
7.05
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Notice
of Defaults.
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71
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Section
7.06
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Reports
by Trustee to Holders.
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71
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Section
7.07
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Compensation
and Indemnity.
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72
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Section
7.08
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Replacement
of Trustee.
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72
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Section
7.09
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Successor
Trustee by Merger, etc.
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73
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Section
7.10
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Eligibility;
Disqualification.
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73
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Section
7.11
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Preferential
Collection of Claims Against the Issuers.
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73
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Section
7.12
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Authorization
of the Trustee.
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74
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ARTICLE
8
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LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
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Section
8.01
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Option
to Effect Legal Defeasance or Covenant
Defeasance.
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74
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Section
8.02
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Legal
Defeasance and Discharge.
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74
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Section
8.03
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Covenant
Defeasance.
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75
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Section
8.04
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Conditions
to Legal or Covenant Defeasance.
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75
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Section
8.05
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Deposited
Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions.
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77
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Section
8.06
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Repayment
to Issuers.
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77
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Section
8.07
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Reinstatement.
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78
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ARTICLE
9
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AMENDMENT,
SUPPLEMENT AND WAIVER
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Section
9.01
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Without
Consent of Holders.
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78
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Section
9.02
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With
Consent of Holders.
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79
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Section
9.03
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Compliance
with Trust Indenture Act.
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80
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Section
9.04
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Revocation
and Effect of Consents.
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80
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Section
9.05
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Notation
on or Exchange of Notes.
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80
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Section
9.06
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Trustee
to Sign Amendments, etc.
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81
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ARTICLE
10
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COLLATERAL
AND SECURITY DOCUMENTS
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Section
10.01
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Security
Documents.
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81
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Section
10.02
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Suits
to Protect the Collateral.
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81
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Section
10.03
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Release
of Collateral.
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81
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Section
10.04
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Sufficiency
of Release.
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83
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Section
10.05
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Actions
by the Trustee.
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83
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ARTICLE
11
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GUARANTEE
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Section
11.01
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Unconditional
Guarantee.
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83
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Section
11.02
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Severability.
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84
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Section
11.03
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Limitations
on Guarantors’ Liability.
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84
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Section
11.04
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Release
of Guarantor.
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84
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Section
11.05
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Contribution.
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85
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Section
11.06
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Waiver
of Subrogation.
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85
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Section
11.07
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Execution
of Note Guarantee.
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86
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Section
11.08
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Waiver
of Stay, Extension or Usury Laws.
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86
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ARTICLE
12
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MISCELLANEOUS
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Section
12.01
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Trust
Indenture Act Controls.
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86
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Section
12.02
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Notices.
|
87
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Section
12.03
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Communication
by Holders with Other Holders.
|
88
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Section
12.04
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Certificate
and Opinion as to Conditions Precedent.
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88
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Section
12.05
|
Statements
Required in Certificate or Opinion.
|
88
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Section
12.06
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Rules
by Trustee and Agents.
|
89
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Section
12.07
|
No
Personal Liability of Directors, Officers, Employees,
Managers, Members and Stockholders.
|
89
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Section
12.08
|
Governing
Law.
|
89
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Section
12.09
|
No
Adverse Interpretation of Other Agreements.
|
89
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Section
12.10
|
Successors.
|
89
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Section
12.11
|
Severability.
|
89
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Section
12.12
|
Counterpart
Originals.
|
89
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Section
12.13
|
Table
of Contents, Headings, etc.
|
90
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ARTICLE
13
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SATISFACTION
AND DISCHARGE
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Section
13.01
|
Satisfaction
and Discharge of Indenture.
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90
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Section
13.02
|
Application
of Trust Money.
|
91
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| Exhibit
A |
Form
of Note |
|
Exhibit
B
|
Form
of Certificate to be Delivered in connection with Transfers
Pursuant to Rule 144A
|
|
Exhibit
C
|
Form
of Certificate to be Delivered in connection with Transfers
Pursuant to Regulation S
|
|
Exhibit
D
|
Form
of Certificate of Beneficial Ownership in connection with exchanges
of Temporary Regulation S Global Notes
|
| Exhibit
E |
Form
of Supplemental Indenture |
INDENTURE
dated as of March 19, 2008 among Charter Communications
Operating, LLC, a Delaware limited liability company (as
further defined below, the “ Company ”),
Charter Communications Operating Capital Corp., a Delaware
corporation (as further defined below, “ Capital Corp
” and together with the Company, the “ Issuers ”),
the Guarantors from time to time party hereto, and Wilmington
Trust Company, as Trustee.
The
Issuers and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the
Holders:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01
Definitions
.
“
Acquired
Debt ” means, with respect to any specified
Person:
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(1)
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Indebtedness
of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified
Person, whether or not such Indebtedness is incurred in connection
with, or in contemplation of, such other Person merging with or
into, or becoming a Subsidiary of, such specified Person;
and
|
|
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(2)
|
Indebtedness
secured by a Lien encumbering any asset acquired by such specified
Person.
|
“
Additional
First Lien Agreement ” means any agreement
approved for designation as such by the First Lien
Representative and the Second Lien
Representative.
“
Additional
Notes ” means the Issuers’ 10.875% Senior
Secured Notes due 2014 issued under this Indenture in addition
to the Initial Notes (other than any Notes issued in respect
of Initial Notes pursuant to Section 2.06, 2.07, 2.10, 3.06,
3.09, 4.16 or 9.05).
“
Additional
Pari Passu First Priority Indebtedness ” means
Pari Passu Indebtedness incurred in compliance with the terms
of this Indenture, including Section 4.14 (other than
Indebtedness owed to a Subsidiary or Affiliate of CCOH), which
Indebtedness is secured by a first-priority Lien or otherwise
is pari passu, in terms of sharing of proceeds of Collateral,
with Indebtedness under the CCO Credit Facility, Related
Obligations or other Pari Passu First Priority Indebtedness of
the Company or its Restricted Subsidiaries, as such
Indebtedness may be amended or refinanced from time to
time.
“
Additional
Pari Passu Second Priority Indebtedness ” means
Pari Passu Indebtedness incurred in compliance with the terms
of this Indenture, including Section 4.14 (other than
Indebtedness owed to a Subsidiary or Affiliate of CCOH), which
Indebtedness is secured by a second-priority Lien or otherwise
is pari passu, in terms of sharing of proceeds of Collateral,
with Indebtedness under the Notes and the Existing CCO Notes,
as such Indebtedness may be amended or refinanced from time to
time.
“
Additional
Second Lien Agreement ” means any agreement
approved for designation as such by the First Lien
Representative and the Second Lien
Representative.
“
Additional
Second Lien Obligations ” means, with respect to
any Additional Second Lien Agreement, (i) all principal of and
interest (including any Post-Petition Interest) and premium
(if any) on
all
indebtedness under such Additional Second Lien Agreement, and (ii)
all fees, expenses and other amounts (including costs and
indemnification obligations) payable from time to time pursuant to
the Second Lien Documents entered into in connection with such
Additional Second Lien Agreement (including amounts payable under
any Second Lien Guarantee relating to such Additional Second Lien
Agreement), in each case whether or not allowed or allowable in an
Insolvency Proceeding.
“
Affiliate ”
of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or
indirect common control with such specified
Person. For purposes of this definition,
“control,” as used with respect to any Person,
shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of
voting securities, by agreement or otherwise; provided,
however, that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be
control. It is understood that the Trustee is under
no obligation to ascertain whether or not such 10% threshold
has been met. For purposes of this definition, the
terms “controlling,” “controlled by”
and “under common control with” shall have
correlative meanings.
“
Agent
” means any Registrar or Paying Agent.
“
Asset
Acquisition ” means:
|
|
(a)
|
an
Investment by the Company or any of its Restricted Subsidiaries in
any other Person pursuant to which such Person shall become a
Restricted Subsidiary of the Company or any of its Restricted
Subsidiaries or shall be merged with or into the Company or any of
its Restricted Subsidiaries, or
|
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|
(b)
|
the
acquisition by the Company or any of its Restricted Subsidiaries of
the assets of any Person which constitute all or substantially all
of the assets of such Person, any division or line of business of
such Person or any other properties or assets of such Person other
than in the ordinary course of business.
|
“
Asset
Sale ” means:
|
|
(1)
|
the
sale, lease, conveyance or other disposition of any assets or
rights, other than sales of inventory in the ordinary course of the
Cable Related Business; provided, however, that the sale,
conveyance or other disposition of all or substantially all of the
assets of the Company and its Subsidiaries, taken as a whole, shall
be governed by Section 4.16 and/or Section 5.01 and not
by the provisions of Section 4.11; and
|
|
|
(2)
|
the
issuance of Equity Interests by any Restricted Subsidiary of the
Company or the sale of Equity Interests in any Restricted
Subsidiary of the Company.
|
Notwithstanding
the preceding, the following items shall not be deemed to be
Asset Sales:
|
|
(1)
|
any
single transaction or series of related transactions
that:
|
(a) involves
assets having a fair market value of less than $100 million;
or
(b) results
in net proceeds to the Company and its Restricted Subsidiaries
of less than $100 million;
|
|
(2)
|
a
transfer of assets between or among the Company and/or its
Restricted Subsidiaries;
|
|
|
(3)
|
an
issuance of Equity Interests by a Restricted Subsidiary of the
Company to the Company or to another Wholly Owned Restricted
Subsidiary of the Company;
|
|
|
(4)
|
a
Restricted Payment that is permitted by Section 4.07, a
Restricted Investment that is permitted by Section 4.08 or a
Permitted Investment;
|
|
|
(5)
|
the
incurrence of Liens not prohibited by this Indenture and the
disposition of assets related to such Liens by the secured party
pursuant to a foreclosure; and
|
|
|
(6)
|
any
disposition of cash or Cash Equivalents.
|
“
Attributable
Debt ” in respect of a sale and leaseback
transaction means, at the time of determination, the present
value of the obligation of the lessee for net rental payments
during the remaining term of the lease included in such sale
and leaseback transaction, including any period for which such
lease has been extended or may, at the option of the lessee,
be extended. Such present value shall be calculated
using a discount rate equal to the rate of interest implicit
in such transaction, determined in accordance with
GAAP.
“
Authority ”
means any national, federal, state, municipal or local
government or quasi-governmental agency or
authority.
“
Bank
Agents ” means the Persons acting as the duly
authorized representatives of the Lenders pursuant to any of
the Credit Facilities then outstanding under clause (1) of the
definition of “Permitted Debt.”
“
Bankruptcy
Code ” means Title 11, U.S. Code
“
Bankruptcy
Law ” means the Bankruptcy Code or any federal or
state law of any jurisdiction relating to bankruptcy,
insolvency, winding up, liquidation, reorganization or relief
of debtors.
“
Beneficial
Owner ” has the meaning assigned to such term in
Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that
in calculating the beneficial ownership of any particular
“person” (as such term is used in Section 13(d)(3)
of the Exchange Act), such “person” shall be
deemed to have beneficial ownership of all securities that
such “person” has the right to acquire, whether
such right is currently exercisable or is exercisable only
upon the occurrence of a subsequent condition.
“
Board of
Directors ” means the board of directors or
comparable governing body of CCI or, if so specified, the
Company, in either case, as constituted as of the date of any
determination required to be made, or action required to be
taken, pursuant to this Indenture.
“
Business
Day ” means any day other than a Legal
Holiday.
“
Cable
Related Business ” means the business of owning
cable television systems and businesses ancillary,
complementary and related thereto.
“
Capital
Corp ” means Charter Communications Operating
Capital Corp., a Delaware corporation, and any successor
Person thereto.
“
Capital
Lease Obligation ” means, at the time any
determination thereof is to be made, the amount of the
liability in respect of a capital lease that would at that
time be required to be capitalized on a balance sheet in
accordance with GAAP.
“
Capital
Stock ” means:
|
|
(1)
|
in
the case of a corporation, corporate stock;
|
|
|
(2)
|
in
the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of corporate stock;
|
|
|
(3)
|
in
the case of a partnership or limited liability company, partnership
or membership interests (whether general or limited);
and
|
|
|
(4)
|
any
other interest (other than any debt obligation) or participation
that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing
Person.
|
“
Capital
Stock Sale Proceeds ” means the aggregate net
proceeds (including the fair market value of the non-cash
proceeds, as determined by an independent appraisal firm)
received by the Company or its Restricted Subsidiaries from
and after the Issue Date, in each case:
|
|
(x)
|
as
a contribution to the common equity capital or from the issue or
sale of Equity Interests (other than Disqualified Stock and other
than issuances or sales to a Subsidiary of the Company) of the
Company after the Issue Date; or
|
|
|
(y)
|
from
the issue or sale of convertible or exchangeable Disqualified Stock
or convertible or exchangeable debt securities of the Company that
have been converted into or exchanged for such Equity Interests
(other than Equity Interests (or Disqualified Stock or debt
securities) sold to a Subsidiary of the Company).
|
“
Cash
Equivalents ” means:
|
|
(1)
|
United
States dollars;
|
|
|
(2)
|
securities
issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more than
twelve months from the date of acquisition;
|
|
|
(3)
|
certificates
of deposit and eurodollar time deposits with maturities of twelve
months or less from the date of acquisition, bankers’
acceptances with maturities not exceeding six months and overnight
bank deposits, in each case, with any domestic commercial bank
having combined capital and surplus in excess of $500 million and a
Thomson BankWatch Rating at the time of acquisition of
“B” or better;
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|
|
(4)
|
repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clauses (2) and (3) above
entered into with any financial institution meeting the
qualifications specified in clause (3) above;
|
|
|
(5)
|
commercial
paper having a rating at the time of acquisition of at least
“P-1” from Moody’s or at least “A-1”
from S&P and in each case maturing within twelve months after
the date of acquisition;
|
|
|
(6)
|
corporate
debt obligations maturing within twelve months after the date of
acquisition thereof, rated at the time of acquisition at least
“Aaa” or “P-1” by Moody’s or
“AAA” or “A-1” by S&P;
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|
|
(7)
|
auction-rate
Preferred Stocks of any corporation maturing not later than 45 days
after the date of acquisition thereof, rated at the time of
acquisition at least “Aaa” by Moody’s or
“AAA” by S&P;
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|
|
(8)
|
securities
issued by any state, commonwealth or territory of the United
States, or by any political subdivision or taxing authority
thereof, maturing not later than six months after the date of
acquisition thereof, rated at the time of acquisition at least
“A” by Moody’s or S&P; and
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|
|
(9)
|
money
market or mutual funds at least 90% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1)
through (8) of this definition.
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“
Cash
Management Obligations ” means, with respect to
any Loan Party, any obligations of such Loan Party owed to any
First Lien Secured Party (or any of its affiliates) in respect
of treasury management arrangements, depositary or other cash
management services.
“
CCH I
” means CCH I, LLC, a Delaware limited liability
company, and any successor Person thereto.
“
CCH I
Indentures ” means, collectively, the indenture
entered into by CCH I and CCH I Capital Corp., a Delaware
corporation, with respect to their 11.00% Senior Secured Notes
due 2015 and any indentures, note purchase agreements or
similar documents entered into by CCH I and CCH I Capital
Corp. for the purpose of incurring Indebtedness in exchange
for, or the proceeds from which are used to refinance, any of
the Indebtedness described above, in each case, together with
all instruments and other agreements entered into by CCH I and
CCH I Capital Corp. in connection therewith, as any of the
foregoing may be refinanced, replaced, amended, supplemented
or otherwise modified from time to time.
“
CCH
II ” means CCH II, LLC, a Delaware limited
liability company, and any successor Person
thereto.
“
CCH II
Indentures ” means, collectively, the indentures
entered into by CCH II and CCH II Capital Corp., a Delaware
corporation, with respect to their 10.25% Senior Notes due
2010 and their 10.25% Senior Notes due 2013 and any
indentures, note purchase agreements or similar documents
entered into by CCH II and CCH II Capital Corp. for the
purpose of incurring Indebtedness in exchange for, or the
proceeds of which are used to refinance, any of the
Indebtedness described above, in each case, together with all
instruments and other agreements entered into by CCH II and
CCH II Capital Corp. in connection therewith, as any of the
foregoing may be refinanced, replaced, amended, supplemented
or otherwise modified from time to time.
“
CCHC
” means CCHC, LLC, a Delaware limited liability company,
and any successor Person thereto.
“
CCI
” means Charter Communications, Inc., a Delaware
corporation, and any successor Person thereto.
“
CCI
Indentures ” means, collectively, the indentures
entered into by CCI with respect to its 5.75% Convertible
Senior Notes due 2005, 4.75% Convertible Senior Notes due
2006, 5.875% Convertible Senior Notes due 2009 and 6.50%
Convertible Senior Notes due 2027 and any indentures, note
purchase agreements or similar documents entered into by CCI
after the Issue Date for the purpose of incurring Indebtedness
in exchange for, or the proceeds of which are used to
refinance, any of the Indebtedness described above, in each
case, together with all instruments and other agreements
entered into by CCI in connection therewith, as any of the
foregoing may be refinanced, replaced, amended, supplemented
or otherwise modified from time to time.
“
CCO Credit
Facility ” means the Amended and Restated Credit
Agreement, dated as of March 6, 2007, by and among the
Company, CCOH, the Lenders from time to time parties thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent, JPMorgan
Chase Bank, N.A., and Bank of America, N.A.., as Syndication
Agents, Citicorp North America, Inc., Deutsche Bank Securities
Inc., General Electric Capital Corporation and Credit Suisse
Securities (USA) LLC, as Revolving Facility Co-Documentation
Agents, and Citicorp North America, Inc., Credit Suisse
Securities (USA) LLC, General Electric Capital Corporation and
Deutsche Bank Securities Inc., as Term Facility
Co-Documentation Agents, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part
from time to time.
“
CCOH
” means CCO Holdings, LLC, a Delaware limited liability
company, and any successor Person thereto.
“
CCOH
Credit
Facility ” means the Credit Agreement, dated as
of March 6, 2007, by and among CCOH, the Lenders from time to
time parties thereto, Bank of America, N.A., as Administrative
Agent, Banc of America Securities LLC and J.P. Morgan
Securities Inc., as Co-Syndication Agents, and Citigroup
Global Markets Inc., Credit Suisse Securities (USA) LLC and
Deutsche Bank Securities Inc., as Co-Documentation Agents, as
amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time.
“
CCOH
Indentures ” means, collectively, the indenture
entered into by CCOH and CCO Holdings Capital Corp., a
Delaware corporation, with respect to their 8 3/4% Senior
Notes due 2013 and any indentures, note purchase agreements or
similar documents entered into by CCOH and CCO Holdings
Capital Corp. for the purpose of incurring Indebtedness in
exchange for, or the proceeds of which are used to refinance,
any of the Indebtedness described above, in each case,
together with all instruments and other agreements entered
into by CCOH and CCO Holdings Capital Corp. in connection
therewith, as any of the foregoing may be refinanced,
replaced, amended, supplemented or otherwise modified from
time to time.
“
Change of
Control ” means the occurrence of any of the
following:
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|
(1)
|
the
sale, transfer, conveyance or other disposition (other than by way
of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the
Company and its Subsidiaries, taken as a whole, or of a Parent and
its Subsidiaries, taken as a whole, to any “person” (as
such term is used in Section 13(d)(3) of the Exchange Act) other
than Paul G. Allen or a Related Party;
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|
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(2)
|
the
adoption of a plan relating to the liquidation or dissolution of
the Company or a Parent (except the liquidation of any Parent into
any other Parent);
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|
|
(3)
|
the
consummation of any transaction, including any merger or
consolidation, the result of which is that any “person”
(as defined above) other than Paul G. Allen or any of the Related
Parties becomes the Beneficial Owner, directly or indirectly, of
more than 35% of the Voting Stock of the Company or a Parent,
measured by voting power rather than the number of shares, unless
Paul G. Allen or a Related Party Beneficially Owns, directly or
indirectly, a greater percentage of Voting Stock of the Company or
such Parent, as the case may be, measured by voting power rather
than the number of shares, than such person;
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|
|
(4)
|
after
the Issue Date, the first day on which a majority of the members of
the Board of Directors of CCI are not Continuing
Directors;
|
|
|
(5)
|
the
Company or a Parent consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into,
the Company or a Parent, in any such event pursuant to a
transaction in which any of the outstanding Voting Stock of the
Company or such Parent is converted into or exchanged for cash,
securities or other property, other than any such transaction where
the Voting Stock of the Company or such Parent outstanding
immediately prior to such transaction is converted into or
exchanged for Voting Stock (other than Disqualified Stock) of the
surviving or transferee Person constituting a majority of the
outstanding shares of such Voting Stock of such surviving or
transferee Person immediately after giving effect to such issuance;
or
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|
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(6)
|
(i)
Charter Communications Holding Company, LLC shall cease to own
beneficially, directly or indirectly, 100% of the Capital Stock of
Charter Holdings or (ii) Charter Holdings shall cease to own
beneficially, directly or indirectly, 100% of the Capital Stock of
the Company.
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“
Charter
Holdings ” means Charter Communications Holdings,
LLC, a Delaware limited liability company, and any successor
Person thereto.
“
Charter
Holdings Indentures ” means, collectively, (a)
the indentures entered into by Charter Holdings and Charter
Communications Holdings Capital Corp. in connection with the
issuance of the 8.250% Senior Notes due 2007 dated March 1999,
8.625% Senior Notes due 2009 dated March 1999, 9.920% Senior
Discount Notes Due 2011 dated March 1999, 10.00% Senior Notes
Due 2009 dated January 2000, 10.250% Senior Notes Due 2010
dated January 2000, 11.750% Senior Discount Notes Due 2010
dated January 2000, 10.75% Senior Notes Due 2009 dated January
2001, 11.125% Senior Notes Due 2011 dated January 2001, 13.50%
Senior Discount Notes Due 2011 dated January 2001, 9.625%
Senior Notes Due 2009 dated May 2001, 10.00% Senior Notes Due
2011 dated May 2001, 11.750% Senior Discount Notes Due 2011
dated May 2001, 9.625% Senior Notes Due 2009 dated January
2002, 10.00% Senior Notes Due 2011 dated January 2002 and
12.125% Senior Discount Notes Due 2012 dated January 2002, and
(b) any indentures, note purchase agreements or similar
documents entered into by Charter Holdings and/or Charter
Communications Holdings Capital Corp. after the Issue Date for
the purpose of incurring Indebtedness in exchange for, or
proceeds of which are used to refinance, any of the
Indebtedness described in the foregoing clause (a), in each
case, together with all instruments and other agreements
entered into by Charter Holdings or Charter Communications
Holdings Capital Corp. in connection therewith, as the same
may be refinanced, replaced, amended, supplemented or
otherwise modified from time to time.
“
Charter
Refinancing Indebtedness ” means any Indebtedness
of a Charter Refinancing Subsidiary issued in exchange for, or
the net proceeds of which are used within 90 days after the
date of issuance thereof, to extend, refinance, renew,
replace, defease, purchase, acquire or refund (including
suc-
cessive
extensions, refinancings, renewals, replacements, defeasances,
purchases, acquisitions or refunds) (i) Indebtedness initially
incurred under any one or more of the Charter Holdings Indentures,
the CCI Indentures, the CIH Indentures, the CCH I Indentures, the
CCH II Indentures, the CCOH Indentures, the Existing CCO Indenture
or this Indenture or (ii) any other Indebtedness of a Charter
Refinancing Subsidiary; provided, however, that:
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|
(1)
|
the
principal amount (or accreted value, if applicable) of such Charter
Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of plus accrued interest and
premium, if any, on the Indebtedness so extended, refinanced,
renewed, replaced, defeased, purchased, acquired or refunded (plus
the amount of reasonable fees, commissions and expenses incurred in
connection therewith); and
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|
|
(2)
|
such
Charter Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
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“
Charter
Refinancing Subsidiary ” means CCHC, CIH, CCH I,
CCH II or any other directly or indirectly wholly owned
Subsidiary (and any related corporate co-obligor if such
Subsidiary is a limited liability company or other association
not taxed as a corporation) of CCI or Charter Communications
Holding Company, LLC which is or becomes a
Parent.
“
CIH
” means CCH I Holdings, LLC, a Delaware limited
liability company, and any successor Person
thereto.
“
CIH
Indentures ” means, collectively (a) the
indenture pursuant to which the CIH Notes were issued and
(b) any indentures, note purchase agreements or similar
documents entered into by CIH and/or CCH I Holdings Capital
Corp. on or after the Issue Date for the purpose of incurring
Indebtedness in exchange for, or the proceeds of which are
used to refinance, any of the Indebtedness outstanding under
the CIH Indenture described in the foregoing clause (a),
in each case, together with all instruments and other
agreements entered into by CIH or CCH I Holdings Capital Corp.
in connection therewith, as the same may be refinanced,
replaced, amended, supplemented or otherwise modified from
time to time.
“
CIH
Notes ” means each of the following series of
notes issued by CIH and CCH I Holdings Capital
Corp.: The 11.125% Senior Accreting Notes Due
2014, the 9.920% Senior Accreting Notes Due 2014, the
10.00% Senior Accreting Notes Due 2014,
11.75% Senior Accreting Notes Due 2014, the
13.50% Senior Accreting Notes Due 2014 and the
12.125% Senior Accreting Notes Due 2015.
“
Collateral
” means the assets that from time to time secure the
Notes.
“
Commission
” or “SEC” means the Securities and Exchange
Commission.
“
Company ”
means Charter Communications Operating, LLC, a Delaware
limited liability company, and any successor Person
thereto.
“
Condemnation
” means any taking of the Collateral or any material
part thereof, in or by condemnation, expropriation or similar
proceedings, eminent domain proceedings, seizure or
forfeiture, pursuant to any law, general or special, or by
reason of the temporary requisition of the use or occupancy of
the Collateral, or any part thereof, by any
Authority.
“
Consolidated
EBITDA ” means, with respect to any Person, for
any period, the consolidated net income (or net loss) of such
Person and its Restricted Subsidiaries for such period
calculated in accordance with GAAP plus, to the extent such
amount was deducted in calculating such net
income:
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|
(1)
|
Consolidated
Interest Expense;
|
|
|
(3)
|
depreciation
expense;
|
|
|
(4)
|
amortization
expense;
|
|
|
(5)
|
all
other non-cash items, extraordinary items, nonrecurring and unusual
items (including any restructuring charges and charges related to
litigation settlements or judgments) and the cumulative effects of
changes in accounting principles reducing such net income, less all
non-cash items, extraordinary items, nonrecurring and unusual items
and cumulative effects of changes in accounting principles
increasing such net income;
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|
|
(6)
|
amounts
actually paid during such period pursuant to a deferred
compensation plan; and
|
|
|
(7)
|
for
purposes of Section 4.10 only, Management Fees;
|
all
as determined on a consolidated basis for such Person and its
Restricted Subsidiaries in conformity with GAAP, as in effect
at December 31, 2002; provided, however, that Consolidated
EBITDA shall not include:
|
|
(x)
|
the
net income (or net loss) of any Person that is not a Restricted
Subsidiary (“Other Person”), except
|
(i) with
respect to net income, to the extent of the amount of
dividends or other distributions actually paid to such Person
or any of its Restricted Subsidiaries by such Other Person
during such period; and
(ii) with
respect to net losses, to the extent of the amount of
investments made by such Person or any Restricted Subsidiary
of such Person in such Other Person during such
period;
|
|
(y)
|
solely
for the purposes of calculating the amount of Restricted Payments
that may be made pursuant to clause (iii) of the first paragraph of
Section 4.07 (and in such case, except to the extent includable
pursuant to clause (x) above), the net income (or net loss) of any
Other Person accrued prior to the date it becomes a Restricted
Subsidiary or is merged into or consolidated with such Person or
any Restricted Subsidiaries or all or substantially all of the
property and assets of such Other Person are acquired by such
Person or any of its Restricted Subsidiaries; and
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|
|
(z)
|
the
net income of any Restricted Subsidiary of the Company to the
extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of such net income is
not at the time of determination of such Consolidated
EBITDA
|
|
|
|
permitted
by the operation of the terms of such Restricted Subsidiary’s
charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such
Restricted Subsidiary (other than any agreement or instrument
evidencing Indebtedness or Preferred Stock (i) outstanding on
the Issue Date or (ii) incurred or issued thereafter in compliance
with Section 4.10; provided, however, that (a) the terms
of any such agreement or instrument restricting the declaration and
payment of dividends or similar distributions apply only in the
event of a default with respect to a financial covenant or a
covenant relating to payment, beyond any applicable period of
grace, contained in such agreement or instrument, (b) such terms
are determined by such Person to be customary in comparable
financings and (c) such restrictions are determined by the Company
not to materially affect the Issuers’ ability to make
principal or interest payments on the Notes when due).
|
“
Consolidated
Indebtedness ” means, with respect to any Person
as of any date of determination, the sum, without duplication,
of:
|
|
(1)
|
the
total amount of outstanding Indebtedness of such Person and its
Restricted Subsidiaries, plus
|
|
|
(2)
|
the
total amount of Indebtedness of any other Person that has been
Guaranteed by the referent Person or one or more of its Restricted
Subsidiaries, plus
|
|
|
(3)
|
the
aggregate liquidation value of all Disqualified Stock of such
Person and all Preferred Stock of Restricted Subsidiaries of such
Person, in each case, determined on a consolidated basis in
accordance with GAAP.
|
“
Consolidated
Interest Expense ” means, with respect to any
Person for any period, without duplication, the sum
of:
|
|
(1)
|
the
consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued (including
amortization or original issue discount, non-cash interest
payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with
Capital Lease Obligations, commissions, discounts and other fees
and charges incurred in respect of letter of credit or
bankers’ acceptance financings, and net payments (if any)
pursuant to Hedging Obligations);
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|
|
(2)
|
the
consolidated interest expense of such Person and its Restricted
Subsidiaries that was capitalized during such period;
and
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|
|
(3)
|
any
interest expense on Indebtedness of another Person that is
guaranteed by such Person or one of its Restricted Subsidiaries or
secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries (whether or not such Guarantee or Lien is called
upon);
|
excluding,
however, any amount of such interest of any Restricted
Subsidiary of the referent Person if the net income of such
Restricted Subsidiary is excluded in the calculation of
Consolidated EBITDA pursuant to clause (z) of the definition
thereof (but only in the same proportion as the net income of
such Restricted Subsidiary is excluded from the calculation of
Consolidated EBITDA pursuant to clause (z) of the definition
thereof), in each case, on a consolidated basis and in
accordance with GAAP.
“
Continuing
Directors ” means, as of any date of
determination, any member of the Board of Directors of CCI
who:
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|
(1)
|
was
a member of the Board of Directors of CCI on the Issue Date;
or
|
|
|
(2)
|
was
nominated for election or elected to the Board of Directors of CCI
with the approval of a majority of the Continuing Directors who
were members of such Board of Directors at the time of such
nomination or election, or whose election or appointment was
previously so approved.
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“
Corporate
Trust Office of the Trustee ” shall be at the
address of the Trustee specified in Section 12.02 or such
other address as to which the Trustee may give notice to the
Issuers.
“
Credit
Facilities ” means, with respect to the Company
and/or its Restricted Subsidiaries, one or more debt
facilities or commercial paper facilities (including the CCO
Credit Facility), in each case with banks or other lenders
(other than a Parent of the Issuers) providing for revolving
credit loans, term loans, debt securities, receivables
financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from
such lenders against such receivables) or letters of credit,
in each case, as amended, restated, modified, renewed,
refunded, replaced or refinanced in whole or in part from time
to time.
“
Default ”
means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of
Default.
“
Definitive
Note ” means a certificated Note registered in
the name of the Holder thereof and issued in accordance with
Section 2.06, substantially in the form of Exhibit A
hereto, except that such Note shall not bear the Global Note
Legend and shall not have the “Schedule of Exchanges of
Interests in the Global Note” attached
thereto.
“
Depositary
” means, with respect to the Global Notes, the Person
specified in Section 2.03 as the Depositary with respect
to the Notes, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
“
Disposition
” means, with respect to any Person, any merger,
consolidation or other business combination involving such
Person (whether or not such Person is the surviving Person) or
the sale, assignment, transfer, lease or conveyance, or other
disposition, of all or substantially all of such
Person’s assets or Capital Stock.
“
Disqualified
Stock ” means any Capital Stock that, by its
terms (or by the terms of any security into which it is
convertible, or for which it is exchangeable, in each case at
the option of the holder thereof) or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the
option of the holder thereof, in whole or in part, on or prior
to the date that is 91 days after the date on which the Notes
mature. Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely
because the holders thereof have the right to require the
Company to repurchase such Capital Stock upon the occurrence
of a change of control or an asset sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide
that the Company may not repurchase or redeem any such Capital
Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07.
“
Equity
Interests ” means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but
excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).
“
Equity
Offering ” means any private or underwritten
public offering of Qualified Capital Stock of the Company or a
Parent of which the gross proceeds to the Company or received
by the Company as a capital contribution from such Parent
(directly or indirectly), as the case may be, are at least $25
million.
“
Exchange
Act ” means the Securities Exchange Act of 1934,
as amended, or any successor statute or statutes
thereto.
“
Existing
Indebtedness ” means Indebtedness of the Company
and its Restricted Subsidiaries in existence on the Issue
Date, until such amounts are repaid.
“
Existing CCO
Indenture ” means (a) the indenture pursuant to
which the Existing CCO Notes were issued and (b) any
indentures, note purchase agreements or similar documents
entered into by the Issuers after the Issue Date for the
purpose of incurring Indebtedness in exchange for, or the
proceeds of which are used to refinance, any of the
Indebtedness described in the foregoing clause (a), in
each case, together with all instruments and other agreements
entered into by the Issuers in connection therewith, as the
same may be refinanced, replaced, amended, supplemented or
otherwise modified from time to time.
“
Existing CCO
Notes ” means the 8% Senior Second Lien Notes due
2012 and the 8 3/8% Senior Second Lien Notes due 2014 of the
Issuers.
“
Existing CCO
Notes Obligations ” means (i) all principal of
and interest (including any Post-Petition Interest) and
premium (if any) on all indebtedness under the Existing CCO
Indenture, and (ii) all fees, expenses and other amounts
(including costs and indemnification obligations) payable from
time to time pursuant to the Second Lien Documents entered
into in connection with the Existing CCO Indenture (including
amounts payable under any Second Lien Guarantee relating to
the Existing CCO Indenture), in each case whether or not
allowed or allowable in an Insolvency Proceeding.
“
First Lien
Agreement ” means the collective reference to (i)
the CCO Credit Facility, (ii) any Additional First Lien
Agreement and (iii) any other credit agreement, loan
agreement, note agreement, promissory note, indenture or other
agreement or instrument evidencing or governing the terms of
any indebtedness or other financial accommodation that has
been incurred to extend, replace, refinance or refund in whole
or in part the indebtedness and other obligations outstanding
under the CCO Credit Facility, any Additional First Lien
Agreement or any other agreement or instrument referred to in
this clause (iii) unless such agreement or instrument
expressly provides that it is not intended to be and is not a
First Lien Agreement hereunder. Any reference to
the First Lien Agreement hereunder shall be deemed a reference
to any First Lien Agreement then extant.
“
First Lien
Creditors ” means the First Lien Representative
and the “Lenders” as defined in the First Lien
Agreement, or any Persons that are designated under the First
Lien Agreement as the “First Lien Creditors” for
purposes of the Intercreditor Agreement.
“
First Lien
Documents ” means the First Lien Agreement, each
First Lien Security Document and each First Lien
Guarantee.
“
First Lien
Guarantee ” means any Guarantee by any Loan Party
of any or all of the First Lien Obligations.
“
First Lien
Obligation ” means (i) all principal of and
interest (including any Post-Petition Interest) and premium
(if any) on all loans made pursuant to the First Lien
Agreement, (ii) all reimbursement obligations (if any)
and interest thereon (including any Post-Petition Interest)
with respect to any letter of credit or similar instruments
issued pursuant to the First Lien Agreement, (iii) all
Hedging Obligations, (iv) all Cash Management Obligations
and (v) all fees, expenses and other amounts payable from
time to time pursuant to the First Lien Documents, in each
case whether or not allowed or allowable in an Insolvency
Proceeding.
“
First Lien
Representative ” means, (i) for so long as
any obligations remain outstanding under the CCO Credit
Facility and the Related Obligations, the agent appointed and
acting in accordance with the terms of the CCO Credit Facility
and (ii) from and after the time when no obligations
remain outstanding under the CCO Credit Facility and the
Related Obligations, the agent appointed and acting on behalf
of the holders of Pari Passu First Priority Indebtedness
determined in accordance with the terms of the Intercreditor
Agreement.
“
First Lien
Secured Parties ” means the First Lien
Representative, the First Lien Creditors and any other holders
of the First Lien Obligations.
“
First Lien
Security Documents ” means each “Guarantee
and Collateral Agreement” as defined in the First Lien
Agreement, and any other documents that are designated under
the First Lien Agreement as “First Lien Security
Documents” for purposes of the Intercreditor
Agreement.
“
GAAP
” means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of
the accounting profession, which are in effect on the Issue
Date.
“
Global Note
Legend ” means the legend set forth in
Section 2.06(f)(ii), which is required to be placed on
all Global Notes issued under this Indenture.
“
Global
Notes ” means, individually and collectively,
each of the Restricted Global Notes and the Unrestricted
Global Notes.
“
Government
Securities ” means direct obligations of, or
obligations guaranteed by, the United States of America, and
the payment for which the United States pledges its full faith
and credit.
“
Guarantee ”
or “guarantee” means a guarantee other than by
endorsement of negotiable instruments for collection in the
ordinary course of business, direct or indirect, in any manner
including by way of a pledge of assets or through letters of
credit or reimbursement agreements in respect thereof, of all
or any part of any Indebtedness, measured as the lesser of the
aggregate outstanding amount of the Indebtedness so guaranteed
and the face amount of the guarantee.
“
Guarantee
and Pledge Availability Period ” means any period
during which (a) Charter Holdings satisfies the Leverage
Condition or (b) the Leverage Condition is no longer
applicable (whether as a result of payment in full, defeasance
or otherwise, but not as a result of an exception not
requiring satisfaction of the Leverage Condition) to the
ability of any Subsidiary of the Issuers to issue a Note
Guarantee or pledge collateral to secure the
Notes.
“
Guarantor ”
means:
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|
(1)
|
each
Restricted Subsidiary that executes and delivers a Note Guarantee
pursuant to Section 4.17, and
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|
|
(2)
|
each
other Person that otherwise executes and delivers a Note Guarantee
(including CCOH),
|
in
each case, (i) whether or not the Effectiveness Condition is
satisfied, and (ii) until such time as such Person is released
from its Note Guarantee in accordance with the provisions of
this Indenture. CCOH and any Restricted Subsidiary
that has executed and delivered this Indenture as a Guarantor
shall be deemed to have executed and delivered a Note
Guarantee.
“
Hedging
Obligations ” means, with respect to any Person,
the obligations of such Person under:
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|
(1)
|
interest
rate swap agreements, interest rate cap agreements and interest
rate collar agreements;
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|
(2)
|
interest
rate option agreements, foreign currency exchange agreements,
foreign currency swap agreements; and
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|
|
(3)
|
other
agreements or arrangements designed to protect such Person against
fluctuations in interest and currency exchange rates.
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“
Helicon
Preferred Stock ” means the preferred limited
liability company interest of Charter-Helicon LLC with an
aggregate liquidation value of $25 million.
“
Holder ”
means a record-holder of the Notes.
“
Indebtedness
” means, with respect to any specified Person, any
indebtedness of such Person, whether or not
contingent:
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(1)
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in
respect of borrowed money;
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|
|
(2)
|
evidenced
by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect
thereof);
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|
(3)
|
in
respect of banker’s acceptances;
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|
(4)
|
representing
Capital Lease Obligations;
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|
(5)
|
in
respect of the balance deferred and unpaid of the purchase price of
any property, except any such balance that constitutes an accrued
expense or trade payable; or
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|
(6)
|
representing
the notional amount of any Hedging Obligations,
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if
and to the extent any of the preceding items (other than
letters of credit and Hedging Obligations) would appear as a
liability upon a balance sheet of the specified Person
prepared in accordance with GAAP. In addition, the
term “Indebtedness” includes all Indebtedness of
others secured by a Lien on any asset of the specified Person
(whether or not such Indebtedness is assumed by the specified
Person) and, to the extent not otherwise included, the
guarantee by such Person of any indebtedness of any other
Person.
The
amount of any Indebtedness outstanding as of any date shall
be:
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(1)
|
the
accreted value thereof, in the case of any Indebtedness issued with
original issue discount; and
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|
(2)
|
the
principal amount thereof, together with any interest thereon that
is more than 30 days past due, in the case of any other
Indebtedness.
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“
Indenture ”
means this Indenture, as amended or supplemented from time to
time.
“
Initial
Notes ” means the Issuers’ 10.875% Senior
Second Lien Notes due 2014, issued on the Issue Date (and any
Notes issued in respect thereof pursuant to Section 2.06,
2.07, 2.10, 3.06, 3.09, 4.16 or 9.05).
“
Insolvency
Proceeding ” means any proceeding in respect of
bankruptcy, insolvency, winding up, receivership, dissolution
or assignment for the benefit of creditors, in each of the
foregoing events whether under a Bankruptcy Law or
otherwise.
“
Institutional Accredited
Investor ” means an institution that is an
“accredited investor” as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act
that is not also a QIB.
“
Intercreditor
Agreement ” means the amended and restated
Intercreditor Agreement, dated as of March 19, 2008, between,
the Trustee, on behalf of all present and future holders of
the Notes, the trustee under the Existing CCO Indenture, on
behalf of all present and future holders of the Existing CCO
Notes, and JPMorgan Chase Bank, N.A., as administrative agent
under the CCO Credit Facility, acting on behalf of itself and
all present and future First Lien Secured Parties, as amended,
restated, modified, renewed, refunded, replaced or refinanced
in whole or in part from time to time.
“
Investment
Grade Rating ” means a rating equal to or higher
than Baa3 (or the equivalent) by Moody’s and BBB- (or
the equivalent) by S&P.
“
Investments
” means, with respect to any Person, all investments by
such Person in other Persons, including Affiliates, in the
forms of direct or indirect loans (including guarantees of
Indebtedness or other obligations), advances or capital
contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course
of business) and purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be
classified as investments on a balance sheet prepared in
accordance with GAAP.
“
Issue
Date ” means March 19, 2008.
“
Issuers ”
has the meaning assigned to it in the preamble to this
Indenture.
“
Legal
Holiday ” means a Saturday, a Sunday or a day on
which banking institutions in The City of New York or at a
place of payment are authorized by law, regulation or
executive order to remain closed. If a payment date
is a Legal Holiday at a place of payment, payment may be made
at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue on such payment for the
intervening period.
“
Lenders ”
means the lenders from time to time under the CCO Credit
Facility.
“
Leverage
Condition ” means the condition in the Charter
Holdings Indentures that Charter Holdings be able to incur an
additional $1.00 of Indebtedness (as defined in the Charter
Holdings Indentures) under the Leverage Ratio (as defined in
the Charter Holdings Indentures) test set forth in the first
paragraph of Section 4.10 of each of the Charter Holdings
Indentures as in effect on the Issue Date, calculated in
accordance with the terms of the Charter Holdings Indentures
and Charter Holdings’ past practice (including, if
applicable, review by Charter Holdings’ independent
accountants) for satisfying such condition, which in any event
shall be deemed satisfied if, and at any time, such condition
is deemed satisfied for purposes of any CCO Credit
Facility.
“
Leverage
Ratio ” means, as to the Company, as of any date,
the ratio of:
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(1)
|
the
Consolidated Indebtedness of the Company on such date
to
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|
(2)
|
the
aggregate amount of Consolidated EBITDA for the Company for the
most recently ended fiscal quarter for which internal financial
statements are available (the “Reference Period”)
multiplied by four.
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In
addition to the foregoing, for purposes of this definition,
“Consolidated EBITDA” shall be calculated on a pro
forma basis after giving effect to:
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|
(1)
|
the
issuance of the Notes;
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|
|
(2)
|
the
incurrence of the Indebtedness or the issuance of the Disqualified
Stock or other Preferred Stock (and the application of the proceeds
therefrom) giving rise to the need to make such calculation and any
incurrence or issuance (and the application of the proceeds
therefrom) or repayment of other Indebtedness, Disqualified Stock
or Preferred Stock, other than the incurrence or repayment of
Indebtedness for ordinary working capital purposes, at any time
subsequent to the beginning of the Reference Period and on or prior
to the date of determination, as if such incurrence (and the
application of the proceeds thereof), or the repayment, as the case
may be, occurred on the first day of the Reference Period;
and
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|
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(3)
|
any
Dispositions or Asset Acquisitions (including any Asset Acquisition
giving rise to the need to make such calculation as a result of
such Person or one of its Restricted Subsidiaries (including any
person that becomes a Restricted Subsidiary as a result of such
Asset Acquisition) incurring, assuming or otherwise becoming liable
for or issuing Indebtedness, Disqualified Stock or Preferred Stock)
made on or subsequent to the first day of the Reference Period and
on or prior to the date of determination, as if such Disposition or
Asset Acquisition (including the incurrence, assumption or
liability for any such Indebtedness, Disqualified Stock or
Preferred Stock and also including any Consolidated EBITDA
associated with such Asset Acquisition, including any cost savings
adjustments in compliance with Regulation S-X promulgated by the
Commission) had occurred on the first day of the Reference
Period.
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“
Lien
” means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind
in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law, including any
conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell
or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any
jurisdiction.
“
Loan
Party ” means the Company and each direct or
indirect affiliate or shareholder (or equivalent) of the
Company or any of its affiliates that is now or hereafter
becomes a party to any First Lien Document or Second Lien
Document.
“
Make-Whole
Premium ” means an amount equal to the excess of
(a) the present value of the remaining interest and principal
payments due on a Note to its final maturity date, computed
using a discount rate equal to the Treasury Rate on such date
plus 0.50%, over (b) the outstanding principal amount of such
Note.
“
Management
Fees ” means the fees (including expense
reimbursements) payable to any Parent pursuant to the
management and mutual services agreements between or among any
one or more of the Company, its Parents and their Restricted
Subsidiaries and pursuant to the limited liability company
agreements of certain Restricted Subsidiaries as such
management, mutual services or limited liability company
agreements exist on the Issue Date (or, if later, on the date
any new Restricted Subsidiary is acquired or created),
including any amendment or replacement thereof; provided,
however, that any such new agreements or amendments or
replacements of existing agreements, taken as a whole, are not
more disadvantageous to the Holders in any material respect
than such agreements existing on the Issue Date; and provided
further, however, that such new, amended or replacement
management agreements do not provide for percentage fees,
taken together with fees under existing agreements, any higher
than 3.5% of CCI’s consolidated total revenues for the
applicable payment period.
“
Moody’s
” means Moody’s Investors Service, Inc. or any
successor to the rating agency business thereof.
“
Net
Proceeds ” means the aggregate cash proceeds
received by the Company or any of its Restricted Subsidiaries
in respect of any Asset Sale (including any cash received upon
the sale or other disposition of any non-cash consideration
received in any Asset Sale), net of the direct costs relating
to such Asset Sale, including legal, accounting and investment
banking fees, and sales commissions, and any relocation
expenses incurred as a result thereof or taxes paid or payable
as a result thereof (including amounts distributable in
respect of owners’, partners’ or members’
tax liabilities resulting from such sale), in each case after
taking into account any available tax credits or deductions
and any tax sharing arrangements and amounts required to be
applied to the repayment of Indebtedness.
“
Non-Recourse
Debt ” means Indebtedness:
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|
(1)
|
as
to which neither the Company nor any of its Restricted
Subsidiaries
|
(a) provides
credit support of any kind (including any undertaking,
agreement or instrument that would constitute
Indebtedness);
(b) is
directly or indirectly liable as a guarantor or otherwise;
or
(c) constitutes
the lender;
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|
(2)
|
no
default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or
both any holder of any other Indebtedness (other than the Notes) of
the Company or any of its Restricted Subsidiaries to declare a
default on such
|
|
|
|
other
Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity; and
|
|
|
(3)
|
as
to which the lenders have been notified in writing that they will
not have any recourse to the stock or assets of the Company or any
of its Restricted Subsidiaries.
|
“
Non-U.S.
Person ” means a Person who is not a U.S.
Person.
“
Note
Custodian ” means the Trustee when serving as
custodian for the Depositary with respect to the Global Notes,
or any successor entity thereto.
“
Note
Guarantee ” means the guarantee of the
Issuers’ payment obligations under the Notes subject to
the Effectiveness Condition. If the Effectiveness
Condition is satisfied, the Note Guarantees will be
unconditional guarantees of payment.
“
Notes
” means the Initial Notes and any Additional
Notes. The Initial Notes and any
Additional Notes shall be treated as a single class for all
purposes under this Indenture, and unless the context
otherwise requires, all references to the Notes shall include
the Initial Notes and any Additional Notes.
“
Notes
Obligations ” means (i) all principal of and
interest (including any Post-Petition Interest) and premium
(if any) on all indebtedness under this Indenture and the
Notes, and (ii) all fees, expenses and other amounts
(including costs and indemnification obligations) payable from
time to time pursuant to the Second Lien Documents entered
into in connection with this Indenture (including amounts
payable under any Note Guarantee relating to this Indenture),
in each case whether or not allowed or allowable in an
Insolvency Proceeding.
“
Officer ”
means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief
Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary or any
Vice-President of such Person.
“
Officers’
Certificate” means a certificate signed on behalf of the
Company or Capital Corp, as the case may be, by two Officers
of the Company or Capital Corp, as the case may be, one of
whom must be the principal executive officer, the chief
financial officer or the treasurer of the Company or Capital
Corp, as the case may be, that meets the requirements of
Section 12.05.
“
Opinion of
Counsel ” means an opinion from legal counsel
that meets the requirements of
Section 12.05. The counsel may be an employee
of or counsel to the Company or any Subsidiary of the
Company.
“
Other Global
Note ” means a global note substantially in the
form of Exhibit A hereto bearing the Global Note Legend and
the Private Placement Legend and deposited with or on behalf
of, and registered in the name of, the Depositary or its
nominee that will be issued (or the principal amount of which
will be increased) in connection with a transfer pursuant to
Section 2.13(c).
“
Parent ”
means CCOH, CCH II, CCH I, CIH, Charter Holdings, CCHC,
Charter Communications Holding Company, LLC, CCI and/or any
direct or indirect Subsidiary of the foregoing 100% of the
Capital Stock of which is owned directly or indirectly by one
or more of the foregoing Persons, as applicable, and that
directly or indirectly beneficially owns 100% of the Capital
Stock of the Company, and any successor Person to any of the
foregoing.
“Pari Passu First Priority Indebtedness” means
the Indebtedness represented by (i) the obligations under a Credit
Facility and any Related Obligations to the extent incurred in
compliance with the terms of this Indenture and (ii) the
obligations under any Additional Pari Passu First Priority
Indebtedness to the extent incurred in compliance with the terms of
this Indenture.
“Pari Passu First Priority Secured Parties”
means each of (i) the Bank Agents on behalf of themselves and the
Lenders and the Related Obligations Counterparties and (ii) the
holders from time to time of any Additional Pari Passu First
Priority Indebtedness and the duly authorized representative(s) of
such holders, if any; provided, however, that each such Person, or
the duly authorized representative thereof, shall have become a
party to the applicable Security Documents.
“Pari Passu Indebtedness” means, with respect to
any Person, Indebtedness of such Person unless, with respect to any
other item of Indebtedness of such Person, the instrument creating
or evidencing the same or pursuant to which the same is outstanding
or any other agreement governing the terms of such Indebtedness
expressly provides that such Indebtedness shall be subordinated in
right of payment to any other Indebtedness or obligation of such
Person. Notwithstanding the foregoing, “Pari Passu
Indebtedness” shall not include:
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|
(i)
|
Indebtedness
of the Company owed to any Restricted Subsidiary or Affiliate of
the Company or Indebtedness of any such Restricted Subsidiary owed
to the Company or any other Restricted Subsidiary or any Affiliate
of such Restricted Subsidiary;
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|
|
(ii)
|
Indebtedness
incurred in violation of this Indenture;
|
|
|
(iii)
|
Indebtedness
represented by Disqualified Stock; and
|
|
|
(iv)
|
any
Indebtedness to or guaranteed on behalf of any shareholder (other
than a Parent), director, officer or employee of the Company or any
Restricted Subsidiary of the Company.
|
“
Pari Passu
Second Priority Indebtedness ” means the
Indebtedness represented by (i) the Notes and the Note
Guarantees, (ii) the Existing CCO Notes and the guarantees
thereof and (iii) the obligations under any Additional Pari
Passu Second Priority Indebtedness, in each case, to the
extent incurred in compliance with the terms of this
Indenture.
“
Pari Passu
Second Priority Secured Parties ” means each of
(i) the Trustee, on behalf of itself and the Holders, (ii) the
trustee for the Existing CCO Notes, on behalf of itself and
the holders of the Existing CCO Notes, and (iii) the holders
from time to time of any Additional Pari Passu Second Priority
Indebtedness and the duly authorized representative(s) of such
holders, if any; provided, however, that each such Person, or
the duly authorized representative thereof, shall have become
a party to the applicable Security Documents.
“
Permanent
Regulation S Global Note ” means a Regulation S
Global Note that does not bear the Temporary Regulation S
Legend.
“
Permitted
Investments ” means:
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|
(1)
|
any
Investment by the Company in a Restricted Subsidiary thereof, or
any Investment by a Restricted Subsidiary of the Company in the
Company or in another Restricted Subsidiary of the
Company;
|
|
|
(2)
|
any
Investment in Cash Equivalents;
|
|
|
(3)
|
any
Investment by the Company or any of its Restricted Subsidiaries in
a Person, if as a result of such Investment:
|
(a) such
Person becomes a Restricted Subsidiary of the Company,
or
(b) such
Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the
Company;
|
|
(4)
|
any
Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.11;
|
|
|
(5)
|
any
Investment made out of the net cash proceeds of the issue and sale
(other than to a Subsidiary of the Company) of Equity Interests
(other than Disqualified Stock) or cash contributions to the common
equity of the Company, in each case after April 27, 2004, to the
extent that such net cash proceeds have not been applied to make a
Restricted Payment or to effect other transactions pursuant to
Section 4.07 hereof (with the amount of usage of the basket in
this clause (5) being determined net of the aggregate amount of
principal, interest, dividends, distributions, repayments, proceeds
or other value otherwise returned or recovered in respect of any
such Investment but not to exceed the initial amount of such
Investment);
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|
|
(6)
|
other
Investments in any Person (other than any Parent) having an
aggregate fair market value, when taken together with all other
Investments in any Person made by the Company and its Restricted
Subsidiaries (without duplication) pursuant to this clause (6) from
and after the Issue Date, not to exceed $750 million (initially
measured on the date each such Investment was made and without
giving effect to subsequent changes in value, but reducing the
amount outstanding by the aggregate amount of principal, interest,
dividends, distributions, repayments, proceeds or other value
otherwise returned or recovered in respect of any such Investment,
but not to exceed the initial amount of such Investment) at any one
time outstanding;
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|
|
(7)
|
Investments
in customers and suppliers in the ordinary course of business which
either;
|
(A) generate
accounts receivable, or
(B) are
accepted in settlement of bona fide
disputes;
|
|
(8)
|
Investments
consisting of payments by the Company or any of its Subsidiaries of
amounts that are neither dividends nor distributions but are
payments of the kind described in clause (2) of the second
paragraph of Section 4.07 to the extent such payments constitute
Investments; and
|
|
|
(9)
|
regardless
of whether a Default then exists, Investments in any Unrestricted
Subsidiary made by the Company and/or any of its Restricted
Subsidiaries with the proceeds of (x) distributions from any
Unrestricted Subsidiary or (y) capital contributions received from
any Parent (other than CCI).
|
“
Permitted
Liens ” means;
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|
(1)
|
Liens
on the assets of the Company and its Restricted Subsidiaries
securing Indebtedness described under clause (1) of the second
paragraph of Section 4.10 and other obligations under the
agreements governing such Indebtedness and Related Obligations or
under clause (10) of such second paragraph;
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|
|
(2)
|
Liens
in favor of the Company;
|
|
|
(3)
|
Liens
to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like
nature and that do not constitute Indebtedness, incurred in the
ordinary course of business;
|
|
|
(4)
|
Liens
for taxes, assessments or governmental charges or claims that are
not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently
concluded; provided, however, that any reserve or other appropriate
provision as shall be required in conformity with GAAP shall have
been made therefor;
|
|
|
(5)
|
statutory
and common law Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other similar Liens
arising in the ordinary course of business and with respect to
amounts not yet delinquent or being contested in good faith by
appropriate legal proceedings promptly instituted and diligently
conducted and for which a reserve or other appropriate provision,
if any, as shall be required in conformity with GAAP shall have
been made;
|
|
|
(6)
|
Liens
incurred or deposits made in the ordinary course of business in
connection with workers’ compensation, unemployment insurance
and other types of social security;
|
|
|
(7)
|
Liens
incurred or deposits made to secure the performance of tenders,
bids, leases, statutory or regulatory obligation, bankers’
acceptance, surety and appeal bonds, government contracts,
performance and return-of-money bonds and other obligations of a
similar nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed
money);
|
|
|
(8)
|
easements,
rights-of-way, municipal and zoning ordinances and similar charges,
encumbrances, title defects or other irregularities that do not
materially interfere with the ordinary course of business of the
Company or any of its Restricted Subsidiaries;
|
|
|
(9)
|
Liens
of franchisors or other regulatory bodies arising in the ordinary
course of business;
|
|
|
(10)
|
Liens
arising from filing Uniform Commercial Code financing statements
regarding leases or other Uniform Commercial Code financing
statements for precautionary purposes relating to arrangements not
constituting Indebtedness;
|
|
|
(11)
|
Liens
arising from the rendering of a final judgment or order against the
Company or any of its Restricted Subsidiaries that does not give
rise to an Event of Default;
|
|
|
(12)
|
Liens
securing reimbursement obligations with respect to letters of
credit (but not with respect to Indebtedness) that encumber
documents and other property relating to such letters of credit and
the products and proceeds thereof;
|
|
|
(13)
|
Liens
consisting of any interest or title of licensor in the property
subject to a license;
|
|
|
(14)
|
Liens
arising from the sales or other transfers of accounts receivable
which are past due or otherwise doubtful of collection in the
ordinary course of business;
|
|
|
(15)
|
Liens
incurred in the ordinary course of business of the Company and its
Restricted Subsidiaries with respect to obligations which in the
aggregate do not exceed $50 million at any one time
outstanding;
|
|
|
(16)
|
Liens
in favor of the Trustee arising under this Indenture and similar
provisions in favor of trustees or other agents or representatives
under indentures or other agreements governing debt instruments
entered into after the date hereof;
|
|
|
(17)
|
Liens
in favor of the Trustee for its benefit and the benefit of Holders
of all of the Notes, as their respective interests
appear;
|
|
|
(18)
|
purchase
money mortgages or other purchase money Liens (including any
Capital Lease Obligations) incurred by the Company or any
Restricted Subsidiary upon any fixed or capital assets, assets
useful in developing a telephony business and/or assets useful for
general operating financing needs acquired after the Issue Date or
purchase money mortgages (including Capital Lease Obligations) on
any such assets, whether or not assumed, existing at the time of
acquisition of such assets, whether or not assumed, so long
as:
|
(a) such
mortgage or lien does not extend to or cover any of the assets
of the Company or such Restricted Subsidiary, except the asset
so developed, constructed or acquired, and directly related
assets such as enhancements and modifications thereto,
substitutions, replacements, proceeds (including insurance
proceeds), products, rents and profits thereof;
and
(b) such
mortgage or lien secures the obligation to pay all or a
portion of the purchase price of such asset, interest thereon
and other charges, costs and expenses (including the cost of
design, development, construction, acquisition,
transportation, installation, improvement and migration) and
is incurred in connection therewith (or the obligation under
such Capital Lease Obligation) only;
|
|
(19)
|
Liens
securing Permitted Refinancing Indebtedness, to the extent that the
Indebtedness being refinanced was secured or was permitted to be
secured by such Liens; and
|
|
|
(20)
|
Liens
securing Indebtedness outstanding under the CCO Credit Facilities
on the Issue Date.
|
“
Permitted
Refinancing Indebtedness ” means any Indebtedness
of the Company or any of its Restricted Subsidiaries issued in
exchange for, or the net proceeds of which are used, directly
or indirectly, within 60 days of the date of issuance thereof
to extend, refinance, renew, replace, defease or refund, other
Indebtedness of the Company or any of its Restricted
Subsidiaries (other than intercompany Indebtedness); provided,
however, that unless permitted otherwise by this Indenture, no
Indebtedness of any Restricted Subsidiary may be issued in
exchange for, nor may the net proceeds of Indebtedness be used
to extend, refinance, renew, replace, defease or refund,
Indebtedness of the Company; provided further, however,
that:
|
|
(1)
|
the
principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal
amount of (or accreted value, if applicable) plus accrued interest
and premium, if any, on the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of
reasonable expenses incurred in connection therewith), except to
the extent that any such excess principal amount (or accreted
value, as applicable) would be then permitted to be incurred by
other provisions of Section 4.10;
|
|
|
(2)
|
such
Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and
|
|
|
(3)
|
if
the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the
Notes, such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and is subordinated in
right of payment to, the Notes on terms at least as favorable to
the Holders as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded.
|
“
Person ”
means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company,
trust, unincorporated organization, government or agency or
political subdivision thereof or any other
entity.
“
Post-Petition
Interest ” means any interest or entitlement to
fees or expenses or other charges that accrues after the
commencement of any Insolvency Proceeding, whether or not
allowed or allowable in any such Insolvency
Proceeding.
“
Preferred
Stock ,” as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however
designated) which, by its terms, is preferred as to the
payment of dividends, or as to the distribution of assets upon
any voluntary or involuntary liquidation or dissolution of
such Person, over shares of Capital Stock of any other class
of such Person.
“
Private
Placement Legend ” means the legend set forth in
Section 2.06(f)(i) to be placed on all Notes issued under
this Indenture except where otherwise permitted by the
provisions of this Indenture.
“
Productive
Assets ” means assets (including assets of a
referent Person owned directly or indirectly through ownership
of Capital Stock) of a kind used or useful in the Cable
Related Business.
“
QIB
” means a “qualified institutional buyer” as
defined in Rule 144A.
“
QIB Global
Note ” means a global note substantially in the
form of Exhibit A hereto bearing the Global Note Legend and
the Private Placement Legend and deposited with or on behalf
of, and registered in the name of, the Depositary or its
nominee that will be issued in an initial denomination that,
when aggregated with the initial denomination of the other QIB
Global Notes, will equal the outstanding principal amount of
the Initial Notes or any Additional Notes, in each case
initially sold in reliance on Rule 144A or Section 4(2)
of the Securities Act.
“
Qualified
Capital Stock ” means Capital Stock that is not
Disqualified Stock.
“
Rating
Agencies ” means Moody’s and
S&P.
“
Regulation
S ” means Regulation S promulgated under the
Securities Act.
“
Regulation S
Global Note ” means a global note substantially
in the form of Exhibit A hereto, bearing the Global Note
Legend and the Private Placement Legend and deposited with or
on behalf of, and registered in the name of, the Depositary or
its nominee that will be issued in an initial denomination
that, when aggregated with the initial denominations of the
other Regulation S Global Notes, will equal to the outstanding
principal amount of the Initial Notes or any Additional Notes
, in each case, initially sold in reliance on Rule 903 of
Regulation S.
“
Related Cash
Management Obligations ” means obligations of the
Company or any Restricted Subsidiary arising from treasury,
depository and cash management services provided by one or
more of the Bank Agents or the Lenders or their Affiliates or
designees or other parties permitted under the CCO Credit
Facility.
“
Related
Hedging Obligations ” means Hedging Obligations
of the Company or any Restricted Subsidiary entered into with
one or more of the Bank Agents or the Lenders or their
Affiliates or designees or other parties permitted under the
CCO Credit Facility.
“
Related
Obligations ” means, collectively, the Related
Cash Management Obligations and the Related Hedging
Obligations.
“
Related
Obligations Counterparties ” means the Bank
Agents and/or Lenders and their Affiliates counterparties to
the Related Obligations.
“
Related
Party ” means:
|
|
(1)
|
the
spouse or an immediate family member, estate or heir of Paul G.
Allen; or
|
|
|
(2)
|
any
trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of Paul G. Allen
and/or such other Persons referred to in the immediately preceding
clause (1).
|
“Responsible
Officer,” when used with respect to the Trustee, means
any officer within the Corporate Trust Administration of the
Trustee (or any successor group of the Trustee) with direct
responsibility for the administration of this Indenture and
also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the
particular subject.
“
Restricted
Definitive Note ” means a Definitive Note bearing
the Private Placement Legend.
“
Restricted
Global Note ” means a Global Note bearing the
Private Placement Legend.
“
Restricted
Investment ” means an Investment other than a
Permitted Investment.
“
Restricted
Period ” means the relevant 40-day distribution
compliance period as defined in
Regulation S.
“
Restricted
Subsidiary ” of a Person means any Subsidiary of
the referent Person that is not an Unrestricted
Subsidiary.
“
Rule 144
” means Rule 144 promulgated under the Securities
Act.
“
Rule 144A
” means Rule 144A promulgated under the Securities
Act.
“
Rule 144A Global
Note ” means a global note substantially in the
form of Exhibit A hereto, bearing the Global Note Legend and
the Private Placement Legend and deposited with or on behalf
of, and registered in the name of, the Depositary or its
nominee that will be issued in an initial denomination equal
to the outstanding principal amount of the Initial Notes or
any Additional Notes, in each case initially sold in reliance
on Rule 144A.
“
Rule 903
” means Rule 903 promulgated under the Securities
Act.
“
Rule 904
” means Rule 904 promulgated under the Securities
Act.
“
S&P ”
means Standard & Poor’s Ratings Service, a division
of The McGraw-Hill Companies, Inc., or any successor to the
rating agency business thereof.
“
Second Lien
Agreement ” means the collective reference to (i)
the Existing CCO Indenture, (ii) this Indenture,
(iii) each Additional Second Lien Agreement and
(iv) any other credit agreement, loan agreement, note
agreement, promissory note, indenture, or other agreement or
instrument evidencing or governing the terms of any
indebtedness or other financial accommodation that has been
incurred to extend, replace, refinance or refund in whole or
in part the indebtedness and other obligations outstanding
under the Existing CCO Indenture, this Indenture, any
Additional Second Lien Agreement or any other agreement or
instrument referred to in this
clause (iv). Any reference to the Second Lien
Agreement hereunder shall be deemed a reference to any Second
Lien Agreement then extant.
“
Second Lien
Documents ” means each Second Lien Agreement,
each Second Lien Security Document and each Second Lien
Guarantee.
“
Second Lien
Guarantee ” means any Guarantee by any Loan Party
that is a Subsidiary or Parent of the Company of any or all of
the Second Lien Obligations.
“
Second Lien
Obligations ” means (i) the Notes Obligations,
(ii) the Existing CCO Notes Obligations and (iii) any
Additional Second Lien Obligations.
“
Second Lien
Representative ” means the Trustee, but shall
also include any Person identified as a “Second Lien
Representative” in any Second Lien Agreement other than
the Indenture.
“
Secured
Parties ” means, collectively, the Pari Passu
First Priority Secured Parties and the Pari Passu Second
Priority Secured Parties.
“
Securities
Act ” means the Securities Act of 1933, as
amended, or any successor statute or statutes
thereto.
“
Security
Documents ” means, collectively, all security
agreements, mortgages, deeds of trust, pledges, collateral
assignments and other agreements or instruments evidencing or
creating any security in favor of the Trustee and any Holders
in any or all of the Collateral, in each case, as amended from
time to time in accordance with the terms
thereof.
“
Senior
Secured Leverage Ratio ” means, as to the
Company, as of any date, the ratio of:
|
|
(1)
|
the
Indebtedness, Attributable Debt or Trade Payables of the Company
and any of its Subsidiaries that are secured by, or have the
benefit of, any Lien that is in any respect senior to the Liens in
favor of the Notes on such date to
|
|
|
(2)
|
the
aggregate amount of Consolidated EBITDA for the Company for the
most recently ended fiscal quarter for which internal financial
statements are available (the “Reference Period”)
multiplied by four.
|
In
addition to the foregoing, for purposes of this definition,
“Consolidated EBITDA” shall be calculated on a
pro
forma basis after giving effect to
|
|
(1)
|
the
issuance of the Notes;
|
|
|
(2)
|
the
incurrence of the Indebtedness or the issuance of the Disqualified
Stock or other Preferred Stock (and the application of the proceeds
therefrom) giving rise to the need to make such calculation and any
incurrence or issuance (and the application of the proceeds
therefrom) or repayment of other Indebtedness, Disqualified Stock
or Preferred Stock, other than the incurrence or repayment of
Indebtedness for ordinary working capital purposes, at any time
subsequent to the beginning of the Reference Period and on or prior
to the date of determination, as if such incurrence (and the
application of the proceeds thereof) or the repayment, as the case
may be, occurred on the first day of the Reference Period;
and
|
|
|
(3)
|
any
Dispositions or Asset Acquisitions (including any Asset Acquisition
giving rise to the need to make such calculation as a result of
such Person or one of its Restricted Subsidiaries (including any
Person that becomes a Restricted Subsidiary as a result of such
Asset Acquisition) incurring, assuming or otherwise becoming liable
for or issuing Indebtedness, Disqualified Stock or Preferred Stock)
made on or subsequent to the first day of the Reference Period and
on or prior to the date of determination, as if such Disposition or
Asset Acquisition (including the incurrence, assumption or
liability for any such Indebtedness, Disqualified Stock or
Preferred Stock and also including any Consolidated EBITDA
associated with such Asset Acquisition, including any cost savings
adjustments in compliance with Regulation S-X promulgated by the
Commission) had occurred on the first day of the Reference
Period.
|
“
Significant
Subsidiary ” means (a) with respect to any
Person, any Restricted Subsidiary of such Person which would
be considered a “Significant Subsidiary” as
defined in Rule 1-02(w) of Regulation S-X under the Securities
Act and (b) in addition, with respect to the Company, Capital
Corp.
“
Stated
Maturity ” means, with respect to any installment
of interest or principal on any series of Indebtedness, the
date on which such payment of interest or principal was
scheduled to be paid in the documentation governing such
Indebtedness on the Issue Date, or, if none, the original
documentation governing such Indebtedness, and shall not
include any contingent obligations to repay, redeem or
repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
“
Subsidiary
” means, with respect to any Person:
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|
(1)
|
any
corporation, association or other business entity of which at least
50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of such Person (or a
combination thereof) and, in the case of any such entity of which
50% of the total voting power of shares of Capital Stock is so
owned or controlled by such Person or one or more of the other
Subsidiaries of such Person, such Person and its Subsidiaries also
have the right to control the management of such entity pursuant to
contract or otherwise; and
|
(a) the
sole general partner or the managing general partner of which
is such Person or a Subsidiary of such Person, or
(b) the
only general partners of which are such Person or one or more
Subsidiaries of such Person (or any combination
thereof).
“
Tax
” shall mean any tax, duty, levy, impost, assessment or
other governmental charge (including penalties, interest and
any other liabilities related thereto).
“
Temporary
Regulation S Global Note ” means a
Regulation S Global Note that bears the Temporary
Regulation S Legend.
“
TIA
” means the Trust Indenture Act of 1939 (15 U.S.C.
§§ 77aaa-77bbbb) as in effect on the date on
which this Indenture is qualified under the TIA; provided,
however, that in the event the Trust Indenture Act of 1939 is
amended after such date, then “TIA” means, to the
extent required by such amendment, the Trust Indenture Act of
1939 as so amended.
“
Transfer
Restricted Notes ” means Notes that bear or are
required to bear the Private Placement Legend.
“
Treasury
Rate ” means, for any date, the yield to maturity
at the time of computation of United States Treasury
securities with a constant maturity (as compiled and published
in the most recent Federal Reserve Statistical Release
H.15(519) that has become publicly available at least two
Business Days prior to the applicable redemption date (or, if
such Statistical Release is no longer published, any publicly
available source of similar market data)) most nearly equal to
the period from the applicable redemption date to March 15,
2012; provided, however, that if the period from the
applicable redemption date is not equal to the constant
maturity of a United States Treasury security for which a
weekly average yield is given, the Treasury Rate shall be
obtained by linear interpolation (calculated to the nearest
one-twelfth of a year) from the weekly average yields of
United States Treasury securities for which such
yields
are given except that if the period from the applicable redemption
date to March 15, 2012 is less than one year, the weekly average
yield on actually traded United States Treasury Securities adjusted
to a constant maturity of one year shall be used.
“
Trustee ”
means Wilmington Trust Company until a successor replaces
Wilmington Trust Company in accordance with the applicable
provisions of this Indenture and thereafter means the
successor serving hereunder.
“
Unrestricted
Definitive Note ” means one or more Definitive
Notes that do not bear and are not required to bear the
Private Placement Legend.
“
Unrestricted
Global Note ” means a permanent global note
substantially in the form of Exhibit A attached hereto that
bears the Global Note Legend and that has the “Schedule
of Exchanges of Interests in the Global Note” attached
thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing Notes
that do not bear the Private Placement Legend.
“
Unrestricted
Subsidiary ” means any Subsidiary of the Company
that is designated by the Board of Directors of the Company or
CCI as an Unrestricted Subsidiary pursuant to a board
resolution, but only to the extent that such
Subsidiary:
|
|
(1)
|
has
no Indebtedness other than Non-Recourse Debt;
|
|
|
(2)
|
is
not party to any agreement, contract, arrangement or understanding
with the Company or any Restricted Subsidiary of the Company unless
the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or any
Restricted Subsidiary of the Company than those that might be
obtained at the time from Persons who are not Affiliates of the
Company unless such terms constitute Investments permitted by
Section 4.08, Asset Sales permitted by Section 4.11 or
sale-leaseback transactions permitted by Section 4.12;
|
|
|
(3)
|
is
a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect
obligation
|
(a) to
subscribe for additional Equity Interests or
(b) to
maintain or preserve such Person’s financial condition
or to cause such Person to achieve any specified levels of
operating results;
|
|
(4)
|
has
not guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its
Restricted Subsidiaries; and
|
|
|
(5)
|
does
not own any Capital Stock of any Restricted Subsidiary of the
Company.
|
Any
designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with
the Trustee a certified copy of the board resolution giving
effect to such designation and an Officers’ Certificate
certifying that such designation complied with the preceding
conditions and was permitted by Section 4.08. If,
at any time, any Unrestricted Subsidiary would fail to meet
the preceding requirements as an Unrestricted Subsidiary, it
shall thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture, except in the case of an
Unrestricted Subsidiary that is deemed to become
a
Restricted
Subsidiary on any Reversion Date, and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary of the Company as of such date and, if such
Indebtedness is not permitted to be incurred as of such date
under Section 4.10, the Company shall be in default of
Section 4.10. The Board of Directors of the Company
or CCI may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided, however, that such
designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of any outstanding
Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if:
|
|
(1)
|
such
Indebtedness is permitted under Section 4.10, calculated on a pro
forma basis as if such designation had occurred at the beginning of
the four-quarter reference period; and
|
|
|
(2)
|
no
Default or Event of Default would be in existence immediately
following such designation.
|
Any
such designation shall be evidenced to the Trustee by filing
with the Trustee a certified copy of the board resolution
giving effect to such designation and an Officer’s
Certificate certifying such designation complied with the
preceding conditions.
“
U.S.
Person ” means a U.S. person as defined in
Rule 902(k) under the Securities Act.
“
Voting
Stock ” of any Person as of any date means the
Capital Stock of such Person that is at the time entitled to
vote in the election of the board of directors or comparable
governing body of such Person.
“
Weighted
Average Life to Maturity ” means, when applied to
any Indebtedness at any date, the number of years obtained by
dividing:
|
|
(1)
|
the
sum of the products obtained by multiplying
|
(a) the
amount of each then remaining installment, sinking fund,
serial maturity or other required payments of principal,
including payment at final maturity, in respect thereof,
by
(b) the
number of years (calculated to the nearest one-twelfth) that
will elapse between such date and the making of such payment;
by
|
|
(2)
|
the
then outstanding principal amount of such
Indebtedness.
|
“
Wholly Owned
Restricted Subsidiary ” of any Person means a
Restricted Subsidiary of such Person all of the outstanding
common equity interests or other ownership interests of which
(other than directors’ qualifying shares) shall at the
time be owned by such Person and/or by one or more Wholly
Owned Restricted Subsidiaries of such Person.
Section 1.02
Other
Definitions.
|
Term
|
|
|
|
|
“Adjusted Net
Assets”
|
|
|
11.05 |
|
|
“Affiliate
Transaction”
|
|
|
4.13 |
|
|
“Agent
Members
|
|
|
2.06 |
|
|
“Asset Sale
Offer”
|
|
|
3.09 |
|
|
“Authentication
Order”
|
|
|
2.02 |
|
|
“Change of Control
Offer”
|
|
|
4.16 |
|
|
“Change of Control
Payment”
|
|
|
4.16 |
|
|
“Change of Control Payment
Date”
|
|
|
4.16 |
|
|
“Company
Notice”
|
|
|
10.03 |
|
|
“Covenant
Defeasance”
|
|
|
8.03 |
|
|
“DTC”
|
|
|
2.03 |
|
|
“Effectiveness
Condition”
|
|
|
11.03 |
|
|
“Event of
Default”
|
|
|
6.01 |
|
|
“Excess
Proceeds”
|
|
|
4.11 |
|
|
“Funding
Guarantor”
|
|
|
11.05 |
|
|
“incur”
|
|
|
4.10 |
|
|
“Legal
Defeasance”
|
|
|
8.02 |
|
|
“Offer
Amount”
|
|
|
3.09 |
|
|
“Offer
Period”
|
|
|
3.09 |
|
|
“Paying
Agent”
|
|
|
2.03 |
|
|
“Payment
Default”
|
|
|
6.01 |
|
|
“Permitted
Debt”
|
|
|
4.10 |
|
|
“Purchase
Date”
|
|
|
3.09 |
|
|
“QIB
|
|
|
2.01 |
|
|
“Ratio
Debt”
|
|
|
4.10 |
|
|
“Reference
Date”
|
|
|
4.07 |
|
|
“Registrar”
|
|
|
2.03 |
|
|
“Released
Collateral”
|
|
|
10.03 |
|
|
“Restricted
Payments”
|
|
|
4.07 |
|
|
“Reversion
Date”
|
|
|
4.19 |
|
|
“Regulations
S”
|
|
|
2.01 |
|
|
“Rule 144A”
|
|
|
2.01 |
|
|
“Suspended
Covenants”
|
|
|
4.19 |
|
|
“Suspension
Period”
|
|
|
4.19 |
|
|
“Temporary Regulation S
Legend”
|
|
|
2.06 |
|
|
“Trustee”
|
|
|
8.05 |
|
Section 1.03
Incorporation
by Reference of Trust Indenture Act.
Whenever
this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this
Indenture.
The
following TIA terms used in this Indenture have the following
meanings:
“indenture
securities” means the Notes;
“indenture
security holder” means a Holder;
“indenture
to be qualified” means this Indenture;
“indenture
trustee” or “institutional trustee” means
the Trustee; and
“obligor”
on the Notes means the Issuers and any successor obligor upon
the Notes.
All
other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by
SEC rule under the TIA have the meanings so assigned to
them.
Section 1.04
Rules
of Construction.
Unless
the context otherwise requires:
(i)
a
term has the meaning assigned to it;
(ii)
an
accounting term not otherwise defined has the meaning assigned to
it, and all accounting determinations shall be made, in accordance
with GAAP;
(iii)
“or”
is not exclusive and “including” means “including
without limitation”;
(iv)
words
in the singular include the plural, and in the plural include the
singular;
(v)
all
exhibits are incorporated by reference herein and expressly made a
part of this Indenture;
(vi)
references
to sections of or rules under the Securities Act shall be deemed to
include substitute, replacement or successor sections or rules
adopted by the SEC from time to time;
(vii)
references
to any statute, law, rule or regulation shall be deemed to refer to
the same as from time to time amended and in effect and to any
successor statute, law, rule or regulation;
(viii)
references
to any contract, agreement or instrument shall mean the same as
amended, modified, supplemented or amended and restated from time
to time, in each case, in accordance with any applicable
restrictions contained in this Indenture; and
(ix)
any
transaction or event shall be considered “permitted by”
or made “in accordance with” or “in compliance
with” this Indenture or any particular provision thereof if
such transaction or event is not expressly prohibited by this
Indenture or such provision, as the case may be.
ARTICLE
2
THE NOTES
Section 2.01
Form
and Dating.
(a)
General. The
Notes and the Trustee’s certificate of authentication shall
be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Note shall be dated
the date of its authentication. The Notes shall be in
denominations of $2,000 and integral multiples of $1,000 in excess
thereof .
The
Global Notes shall be deposited on behalf of the purchasers of
the Notes represented thereby with the Trustee as custodian
for the Depositary, and registered in the name of the
Depositary or a nominee of the Depositary, duly executed by
the Issuers and authenticated by the Trustee as hereinafter
provided.
Each
Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it
shall represent the aggregate amount of outstanding Notes from
time to time endorsed thereon and that the aggregate amount of
outstanding Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges,
redemptions and transfers of interests. Any
endorsement of a Global Note to reflect the amount of any
increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Note
Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by
Section 2.06 hereof.
(b)
The
Initial Notes are being issued by the Issuers only (i) to
“qualified institutional buyers” (as defined in Rule
144A under the Securities Act (“
Rule 144A ”))
(“
QIBs ”)
and (ii) in reliance on Regulation S under the Securities
Act (“
Regulation S ”). After
such initial offers, Initial Notes that are Transfer Restricted
Notes may be transferred (i) to an Issuer, (ii) pursuant to an
effective registration statement under the Securities Act, (iii) so
long as such Initial Note is eligible for resale pursuant to Rule
144A, to a person whom the transferor reasonably believes is a QIB
purchasing for its own account or for the account of a QIB, in each
case, to whom notice is given that the offer, resale, pledge or
other transfer is being made in reliance on Rule 144A, (iv) to
Non-U.S. Persons in an offshore transaction in accordance with
Rule 904 of Regulation S, or (v) in any other transaction
that does not require registration under the Securities
Act. Initial Notes that are offered to QIBs in reliance
on Section 4(2) of the Securities Act shall be issued in the form
of one or more permanent QIB Global Notes deposited with the
Trustee, as Note Custodian, duly executed by the Issuers and
authenticated by the Trustee as hereinafter
provided. Initial Notes that are offered in offshore
transactions in reliance on Regulation S shall be issued in the
form of one or more Temporary Regulation S Global Notes deposited
with the Trustee, as Note Custodian, duly executed by the Issuers
and authenticated by the Trustee as hereinafter
provided. The QIB Global Notes and the Regulation S
Global Notes shall each be issued with separate CUSIP
numbers. The aggregate principal amount of each Global
Note may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as Note
Custodian. Transfers of Notes between or among QIBs and
to or by purchasers pursuant to Regulation S shall be
represented by appropriate increases and decreases to the
respective amounts of the appropriate Global Notes, as more fully
provided in Sections 2.06 and 2.14.
Section
2.01(b) shall apply only to Global Notes deposited with or on
behalf of the Depositary.
(c)
The
Trustee shall have no responsibility or obligation to any Holder
that is a member of (or a participant in) DTC or any other Person
with respect to the accuracy of the records of DTC (or its nominee)
or of any participant or member thereof, with respect to any
ownership interest in the Notes or with respect to the delivery of
any notice (including any notice of redemption) or the payment of
any amount or delivery of any Notes (or other security or property)
under or with respect to the Notes. The Trustee may rely
(and shall be fully protected in relying) upon information
furnished by DTC with respect to its members, participants and any
beneficial owners in the Notes.
Section 2.02
Execution
and Authentication.
Two
Officers shall sign the Notes for each Issuer by manual or
facsimile signature.
If
an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall
nevertheless be valid.
A
Note shall not be valid until authenticated by the manual
signature (which may be by facsimile) of the
Trustee. The signature shall be conclusive evidence
that the Note has been authenticated under this
Indenture.
At
any time and from time to time after the execution and
delivery of this Indenture, the Issuers may deliver Notes
executed by the Issuers to the Trustee for authentication; and
the Trustee shall authenticate and deliver (i) Initial
Notes for original issue in the aggregate principal amount of
$545,896,000, and (ii) Additional Notes from time to time for
original issue in aggregate principal amount specified by the
I
