SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
Current
Report
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): October 2,
2007
Charter
Communications, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or Other Jurisdiction of Incorporation or Organization)
|
000-27927
|
43-1857213
|
|
|
(Commission
File Number)
|
(I.R.S.
Employer Identification
Number)
|
12405
Powerscourt Drive
St.
Louis, Missouri 63131
(Address
of principal executive offices including zip code)
(314)
965-0555
(Registrant's
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
|
o
|
Written
communications pursuant to Rule 425 under the Securities Act
(17 CFR
230.425)
|
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
| o |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR
240.14d-2(b))
|
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR
240.13e-4(c))
|
ITEM
1.01. ENTRY INTO MATERIAL DEFINITIVE AGREEMENT.
On
October 2, 2007, Charter Communications, Inc. (“Charter”) announced the closing
of the offer by its subsidiary, Charter Communications Holding Company, LLC
(“Charter Holdco”) for $364 million of Charter's outstanding 5.875% Convertible
Senior Notes due 2009 (the “Existing Convertible Notes”) in exchange for $479
million of Charter’s new 6.50% Convertible Senior Notes due 2027 (the “New
Convertible Notes”).
The
Indenture
The
New
Convertible Notes were issued pursuant to the indenture, dated as of October
2,
2007, among Charter and The Bank of New York Trust Company, N.A., as trustee
(the “Indenture”). The New Convertible Notes bear interest at 6.50% per annum
and will mature on October 1, 2027, subject to earlier redemption at the
option
of Charter or repurchase at the option of the holders. Interest is payable
October 1 and March 1 of each year. The New Convertible Notes are the
unsecured and unsubordinated obligations of Charter and rank, in right of
payment, the same as all of Charter’s existing and future senior unsecured
indebtedness, including the Existing Convertible Notes. The New
Convertible Notes have an initial conversion price of $3.41, and initial
conversion rate of 293.3868 per $1,000 principal amount of New Convertible
Notes. The New Convertible Notes provide the holders with the right
to require Charter to repurchase some or all of the New Convertible Notes
for
cash on October 1, 2012, 2017 and 2022 at a repurchase price equal to the
principal amount plus accrued interest. The Indenture restricts the
ability of Charter to consolidate, merge or sell all or substantially all
assets. However, such covenant is subject to a number of important
qualifications and exceptions as described in the Indenture.
The
Indenture is attached hereto as Exhibit 4.1.
The
Amended and Restated Share Lending Agreement
On
October 2, 2007, in connection with the Exchange Offer, Charter and Citigroup
Global Markets Limited (“CGML”) entered into an Amended and Restated Share
Lending Agreement, (the “Amended and Restated Share Lending Agreement”), which
allowed the shares of Charter’s Class A common stock lent by Charter to CGML to
remain outstanding through the maturity of the New Convertible
Notes.
The
Amended and Restated Share Lending Agreement is attached hereto as Exhibit
10.1.
The
Mirror Note and the Amended and Restated Unit Lending Agreement
In
connection with the issuance of the New Convertible Notes, Charter entered
into
certain agreements with Charter Holdco to provide for the issuance of $479
million original principal amount of a 6.50% Mirror Convertible Senior Note
due
2027 of Charter Holdco (the “Mirror Note”) to Charter. These
agreements were entered into in order to facilitate compliance with the
certificate of incorporation of Charter and the governing documents of Charter
Holdco regarding the required issuance of mirror securities by Charter
Holdco. The terms of the Mirror Note mirror the terms of the New
Convertible Notes. Additionally, on October 2, 2007, Charter and
Charter Holdco, entered into an Amended
and Restated Unit Lending Agreement (the “Amended and Restated Unit Lending
Agreement”), that will mirror the terms of the Amended and Restated Share
Lending Agreement.
The
Mirror Note and the Unit Lending Amendment are attached hereto as Exhibit
10.2
and Exhibit 10.3, respectively.
ITEM
2.03. CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN
OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT.
The
information in Item 1.01 of this Form 8-K is hereby incorporated by reference
to
this Item 2.03.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
|
Exhibit
Number
|
|
Description
|
|
|
|
|
|
Exhibit
4.1
|
|
Indenture
relating to the 6.50% Convertible Senior Notes due 2027,
dated as of
October 2, 2007, between Charter Communications, Inc.,
as Issuer, and The
Bank of New York Trust Company, N.A., as Trustee. *
|
|
Exhibit
10.1
|
|
Amended
and Restated Share Lending Agreement, dated October 2,
2007, between
Charter Communications, Inc., Citigroup Global Markets
Limited, through
Citigroup Global Markets, Inc.*
|
|
Exhibit
10.2
|
|
Amended
and Restated Unit Lending Agreement, dated as of October
2, 2007, between
Charter Communications Holding Company, LLC as Lender
and Charter
Communications, Inc. as Borrower.*
|
|
Exhibit
10.3
|
|
6.50%
Mirror Convertible Senior Note due 2027 in the principal
amount of $479
million, dated as of October 2, 2007, made by Charter
Communications
Holding Company, LLC in favor of Charter Communications,
Inc.*
|
* filed
herewith
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, Charter
Communications, Inc. has duly caused this Current Report to be signed on its
behalf by the undersigned hereunto duly authorized.
CHARTER
COMMUNICATIONS, INC.
Registrant
Dated: October
5, 2007
|
|
By:/s/
Kevin D. Howard
Name:
Kevin D. Howard
Title:
Vice President and Chief Accounting
Officer
|
EXHIBIT
INDEX
|
Exhibit
Number
|
|
Description
|
|
|
|
|
|
Exhibit
4.1
|
|
Indenture
relating to the 6.50% Convertible Senior Notes due 2027, dated
as of
October 2, 2007, between Charter Communications, Inc., as Issuer,
and The
Bank of New York Trust Company, N.A., as Trustee. *
|
|
Exhibit
10.1
|
|
Amended
and Restated Share Lending Agreement, dated October 2, 2007,
between
Charter Communications, Inc., Citigroup Global Markets Limited,
through
Citigroup Global Markets, Inc.*
|
|
Exhibit
10.2
|
|
Amended
and Restated Unit Lending Agreement, dated as of October 2,
2007, between
Charter Communications Holding Company, LLC as Lender and Charter
Communications, Inc. as Borrower.*
|
|
Exhibit
10.3
|
|
6.50%
Mirror Convertible Senior Note due 2027 in the principal amount
of $479
million, dated as of October 2, 2007, made by Charter Communications
Holding Company, LLC in favor of Charter Communications,
Inc.*
|
* filed
herewith
Exhibit
4.1
CHARTER
COMMUNICATIONS, INC.
and
THE
BANK OF NEW YORK TRUST COMPANY, N.A.,
as
Trustee
________________
INDENTURE
Dated
as of October 2, 2007
________________
6.50%
Convertible Senior Notes due 2027
TABLE
OF CONTENTS
|
ARTICLE
1 DEFINITIONS AND INCORPORATION BY REFERENCE
|
1
|
|
|
Section
1.01
|
Definitions.
|
1
|
|
Section
1.02
|
Other
Definitions.
|
10
|
|
Section
1.03
|
Incorporation
by Reference of Trust Indenture Act.
|
10
|
|
Section
1.04
|
Rules
of Construction.
|
11
|
|
ARTICLE
2 THE NOTES
|
11
|
|
|
Section
2.01
|
Form
and Dating.
|
11
|
|
Section
2.02
|
Execution
and Authentication.
|
12
|
|
Section
2.03
|
Registrar;
Conversion Agent; and Paying Agent.
|
13
|
|
Section
2.04
|
Paying
Agent to Hold Money in Trust.
|
13
|
|
Section
2.05
|
Holder
Lists.
|
13
|
|
Section
2.06
|
Global
Notes; Non-global Notes; Book-Entry Provisions.
|
14
|
|
Section
2.07
|
Registration;
Registration of Transfer and Exchange; Restrictions on
Transfer.
|
15
|
|
Section
2.08
|
Replacement
Notes.
|
18
|
|
Section
2.09
|
Outstanding
Notes.
|
19
|
|
Section
2.10
|
Treasury
Notes.
|
19
|
|
Section
2.11
|
Temporary
Notes.
|
19
|
|
Section
2.12
|
Cancellation.
|
20
|
|
Section
2.13
|
Defaulted
Interest.
|
20
|
|
Section
2.14
|
Computation
of Interest.
|
20
|
|
Section
2.15
|
CUSIP
Numbers.
|
20
|
|
ARTICLE
3 REDEMPTION AND PREPAYMENT
|
21
|
|
|
Section
3.01
|
Notices
to Trustee.
|
21
|
|
Section
3.02
|
Selection
of Notes to Be Redeemed.
|
21
|
|
Section
3.03
|
Notice
of Redemption.
|
21
|
|
Section
3.04
|
Effect
of Notice of Redemption.
|
22
|
|
Section
3.05
|
Deposit
of Redemption Price.
|
23
|
|
Section
3.06
|
Notes
Redeemed in Part.
|
23
|
|
Section
3.07
|
Optional
Redemption.
|
23
|
|
Section
3.08
|
Mandatory
Redemption.
|
24
|
|
ARTICLE
4 COVENANTS
|
24
|
|
|
Section
4.01
|
Payment
of Notes.
|
24
|
|
Section
4.02
|
Maintenance
of Office or Agency.
|
24
|
|
Section
4.03
|
Reports.
|
25
|
|
Section
4.04
|
Compliance
Certificate.
|
25
|
|
Section
4.05
|
Taxes.
|
26
|
|
Section
4.06
|
Stay,
Extension and Usury Laws.
|
26
|
|
Section
4.07
|
Corporate
Existence.
|
26
|
i
|
Section
4.08
|
Payments
for Consent.
|
26
|
|
Section
4.09
|
Registration
and Listing.
|
26
|
|
Section
4.10
|
Delivery
of Certain Information.
|
27
|
|
Section
4.11
|
Waiver
of Certain Covenants.
|
27
|
|
ARTICLE
5 SUCCESSORS
|
28
|
|
|
Section
5.01
|
Merger,
Consolidation, or Sale of Assets.
|
28
|
|
Section
5.02
|
Successor
Corporation Substituted.
|
28
|
|
ARTICLE
6 DEFAULTS AND REMEDIES
|
29
|
|
|
Section
6.01
|
Events
of Default.
|
29
|
|
Section
6.02
|
Acceleration.
|
30
|
|
Section
6.03
|
Defaults
and Remedies.
|
30
|
|
Section
6.04
|
Waiver
of Existing Defaults.
|
31
|
|
Section
6.05
|
Control
by Majority.
|
31
|
|
Section
6.06
|
Limitation
on Suits.
|
31
|
|
Section
6.07
|
Rights
of Holders of Notes to Receive Payment and to Convert.
|
32
|
|
Section
6.08
|
Collection
Suit by Trustee.
|
32
|
|
Section
6.09
|
Trustee
May File Proofs of Claim.
|
32
|
|
Section
6.10
|
Priorities.
|
33
|
|
Section
6.11
|
Undertaking
for Costs.
|
33
|
|
ARTICLE
7 TRUSTEE
|
33
|
|
|
Section
7.01
|
Duties
of Trustee.
|
33
|
|
Section
7.02
|
Rights
of Trustee.
|
34
|
|
Section
7.03
|
Individual
Rights of Trustee.
|
35
|
|
Section
7.04
|
Trustee’s
Disclaimer.
|
36
|
|
Section
7.05
|
Notice
of Defaults.
|
36
|
|
Section
7.06
|
Reports
by Trustee to Holders of the Notes.
|
36
|
|
Section
7.07
|
Compensation
and Indemnity.
|
36
|
|
Section
7.08
|
Replacement
of Trustee.
|
37
|
|
Section
7.09
|
Successor
Trustee By Merger, etc.
|
38
|
|
Section
7.10
|
Eligibility;
Disqualification.
|
38
|
|
Section
7.11
|
Preferential
Collection of Claims Against the Company.
|
38
|
|
ARTICLE
8 MEETINGS OF HOLDERS OF NOTES
|
39
|
|
|
Section
8.01
|
Purposes
for Which Meetings May be Called.
|
39
|
|
Section
8.02
|
Call,
Notice and Place of Meetings.
|
39
|
|
Section
8.03
|
Persons
Entitled to Vote at Meetings.
|
39
|
|
Section
8.04
|
Quorum;
Action.
|
39
|
|
Section
8.05
|
Determination
of Voting Rights; Conduct and Adjournment of Meetings.
|
40
|
|
Section
8.06
|
Counting
Votes and Recording Action of Meetings.
|
41
|
|
ARTICLE
9 AMENDMENT, SUPPLEMENT AND WAIVER
|
41
|
|
|
Section
9.01
|
Without
Consent of Holders of Notes.
|
41
|
|
Section
9.02
|
With
Consent of Holders of Notes.
|
42
|
ii
|
Section
9.03
|
Compliance
with Trust Indenture Act.
|
44
|
|
Section
9.04
|
Revocation
and Effect of Consents.
|
44
|
|
Section
9.05
|
Notation
on or Exchange of Notes.
|
44
|
|
Section
9.06
|
Trustee
to Sign Amendments, etc.
|
44
|
|
ARTICLE
10 CONVERSION OF NOTES
|
45
|
|
|
Section
10.01
|
Conversion
Privilege and Conversion Rate.
|
45
|
|
Section
10.02
|
Exercise
of Conversion Privilege.
|
46
|
|
Section
10.03
|
Limitation
on Beneficial Ownership
|
47
|
|
Section
10.04
|
Cash
Settlement Option
|
48
|
|
Section
10.05
|
Fractions
of Shares.
|
48
|
|
Section
10.06
|
Exchange
in Lieu of Conversion
|
49
|
|
Section
10.07
|
Adjustment
of Conversion Rate.
|
49
|
|
Section
10.08
|
Interest
Make Whole Upon Conversion.
|
57
|
|
Section
10.09
|
Notice
of Adjustments of Conversion Rate.
|
58
|
|
Section
10.10
|
Notice
of Certain Corporate Action.
|
59
|
|
Section
10.11
|
Company
to Reserve Common Stock.
|
60
|
|
Section
10.12
|
Taxes
on Conversions.
|
60
|
|
Section
10.13
|
Covenant
as to Common Stock.
|
60
|
|
Section
10.14
|
Cancellation
of Converted Notes.
|
60
|
|
Section
10.15
|
Provision
in Case of Consolidation, Merger or Sale of Assets.
|
60
|
|
Section
10.16
|
Responsibility
of Trustee for Conversion Provisions.
|
61
|
|
ARTICLE
11 REPURCHASE OF NOTES AT THE OPTION OF THE HOLDER UPON A FUNDAMENTAL
CHANGE
|
62
|
|
|
Section
11.01
|
Right
to Require Repurchase upon a Fundamental Change.
|
62
|
|
Section
11.02
|
Repurchase
of Notes at the Option of Holders.
|
65
|
|
Section
11.03
|
Consolidation,
Merger, etc.
|
67
|
|
ARTICLE
12 MISCELLANEOUS
|
68
|
|
|
Section
12.01
|
Trust
Indenture Act Controls.
|
68
|
|
Section
12.02
|
Notices.
|
68
|
|
Section
12.03
|
Communication
by Holders of Notes with Other Holders of Notes.
|
69
|
|
Section
12.04
|
Certificate
and Opinion as to Conditions Precedent.
|
69
|
|
Section
12.05
|
Statements
Required in Certificate or Opinion.
|
69
|
|
Section
12.06
|
Rules
by Trustee and Agents.
|
70
|
|
Section
12.07
|
No
Personal Liability of Directors, Officers, Employees, Members
and
Stockholders.
|
70
|
|
Section
12.08
|
Governing
Law.
|
70
|
|
Section
12.09
|
No
Adverse Interpretation of Other Agreements.
|
70
|
|
Section
12.10
|
Successors.
|
70
|
|
Section
12.11
|
Severability.
|
71
|
|
Section
12.12
|
Counterpart
Originals.
|
71
|
|
Section
12.13
|
Table
of Contents, Headings, etc.
|
71
|
|
Section
12.14
|
Waiver
of Jury Trial.
|
71
|
|
Section
12.15
|
Force
Majeure.
|
71
|
iii
|
ARTICLE
13 SATISFACTION AND DISCHARGE
|
71
|
|
|
Section
13.01
|
Satisfaction
and Discharge of Indenture.
|
71
|
|
Section
13.02
|
Application
of Trust Money.
|
72
|
iv
CROSS-REFERENCE
TABLE
|
TIA
Section
|
Indenture
Section
|
|
310(a)(1)
|
7.10
|
|
(a)(2)
|
7.10
|
|
(a)(3)
|
N/A
|
|
(a)(4)
|
N/A
|
|
(a)(5)
|
7.10
|
|
(b)
|
7.10
|
|
(c)
|
N/A
|
|
311(a)
|
7.11
|
|
(b)
|
7.11
|
|
(c)
|
N/A
|
|
312(a)
|
2.05
|
|
(b)
|
N/A
|
|
(c)
|
N/A
|
|
313(a)
|
7.06
|
|
(b)(1)
|
N/A
|
|
(b)(2)
|
7.06,
7.07
|
|
(c)
|
7.06,
12.02
|
|
(d)
|
7.06
|
|
314(a)
|
N/A
|
|
(a)(4)
|
12.05
|
|
(b)
|
N/A
|
|
(c)(1)
|
N/A
|
|
(c)(2)
|
N/A
|
|
(c)(3)
|
N/A
|
|
(d)
|
N/A
|
|
(e)
|
12.05
|
|
(f)
|
N/A
|
|
315(a)
|
N/A
|
|
(b)
|
N/A
|
|
(c)
|
N/A
|
|
(d)
|
N/A
|
|
(e)
|
N/A
|
|
316(a)
(last sentence)
|
N/A
|
|
(a)(1)(A)
|
N/A
|
|
(a)(1)(B)
|
N/A
|
|
(a)(2)
|
N/A
|
|
(b)
|
N/A
|
|
317(a)(1)
|
N/A
|
|
(a)(2)
|
N/A
|
|
(b)
|
N/A
|
|
318(a)
|
N/A
|
|
318(c)
|
12.01
|
N/A
means
Not Applicable
____________
|
|
Note: This
Cross-Reference Table shall not, for any purpose, be deemed to
be part of
this Indenture.
|
v
INDENTURE
dated as of October 2, 2007 among Charter Communications, Inc., a Delaware
corporation (as further defined below, the “Company”), and The
Bank of New York Trust Company, N.A., a national banking association, as
trustee
(the “Trustee”).
The
Company and the Trustee agree as follows for the benefit of each other and
for
the equal and ratable benefit of the Holders of the Notes:
ARTICLE
1
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section
1.01 Definitions.
“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 that beneficial ownership of 10% or more
of the
Voting Stock of a Person shall be deemed to be control. For purposes
of this definition, the terms “controlling, “controlled by” and “under common
control with” shall have correlative meanings.
“Agent”
means any Registrar, Paying Agent or Conversion Agent.
“Agent
Member” means any member of, or participant in, the
Depositary.
“Allen
Affiliate” means any person in which the Principal, directly or
indirectly, owns at least a 50.1% equity interest, provided that the Company,
Charter Holdco or any of its Subsidiaries will not be included in such
definition.
“Applicable
Procedures” means, with respect to any transfer or transaction
involving a Global Note or beneficial interest therein, the rules and procedures
of DTC, in each case to the extent applicable to such transaction and as
in
effect from time to time.
“Bankruptcy
Law” means Title 11, U.S. Code or any similar 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 Section 13(d) of
the Exchange Act and the rules and regulations promulgated thereunder, and
the
term “Beneficial Ownership” shall have a correlative
meaning.
“Beneficial
Owner Entity” means any entity that is a director or indirect
Beneficial Owner of more than 50% of the total voting power of all shares
of an
acquirer’s capital stock that are entitled to vote generally in the election of
directors.
“Board
of Directors” means the Board of Directors of the Company or any
authorized committee of the Board of Directors of the Company.
“Board
Resolution” means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Company to have been duly adopted by the Board
of
Directors of the Company and to be in full force and effect on the date of
such
certification and delivered to the Trustee.
“Business
Day” means any day other than a Legal Holiday.
“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.
“Change
of Control” means the occurrence of any of the following:
(1) the
consummation of any transaction (including any merger or consolidation) the
result of which is that any “person” or “group” within the meaning of
Section 13(d) of the Exchange Act (a “Section 13
Person”), other than the Principal and the Related Parties, becomes the
Beneficial Owner, directly or indirectly, of more than 35% of the Voting
Stock
of the Company, measured by voting power rather than number of shares, unless
the Principal and the Related Parties, collectively, beneficially own, directly
or indirectly, a greater percentage of Voting Stock of the Company, measured
by
voting power rather than number of shares, than such Section 13
Person;
(2) the
consummation of any transaction or event (whether by means of a liquidation,
share exchange, tender offer, consolidation, recapitalization, reclassification,
merger of the Company or any sale, lease or other transfer of the consolidated
assets of the Company and its Subsidiaries) or a series of related transactions
or events pursuant to which the Common Stock is exchanged for, converted
into or
constitutes solely the right to receive cash, securities or other property
more
than 10% of the fair market value of which consists of cash, securities or
other
property that are not, or upon issuance will not be, traded or quoted on
any
U.S. national securities exchange;
(3) the
sale, transfer, conveyance, lease or other disposition (including by way
of
liquidation or dissolution, but excluding by way of merger or consolidation),
in
one or a series of related transactions, of the assets of the Company and
its
Subsidiaries, substantially as an entirety, to any Section 13
Person;
2
(4) at
any time, (i) the Principal or any Allen Affiliates (as defined below)
purchases, in a transaction or series of transactions, shares of Common Stock
and, solely as a result of such purchases, the aggregate number of shares
of
Common Stock held by the Principal and any Allen Affiliates exceeds 70% of
the
total number of shares of Common Stock issued and outstanding at such time
(including any shares borrowed pursuant to the Share Lending Agreement) and
(ii)
the Sale Price of the Common Stock for any five Trading Days within the period
of the 10 consecutive Trading Days immediately after the later of (x) the
last
date of such purchases or (y) the public announcement of such purchases, is
less than 100% of the Conversion Price of the Notes in effect on each of
those
Trading Days (for purposes of this clause (4), a purchase will not include
any
transaction whereby shares of Common Stock are acquired by the Principal
or any
Allen Affiliate as a result of service as a director on the Board of Directors
or the exchange and conversion of membership units of Charter Holdco for
and
into shares of Common Stock or the conversion of shares of the Company’s Class B
Common Stock, par value $.001 per share, into shares of Common Stock or issued
in exchange (by merger or otherwise) for shares of a Person that holds units
of
Charter Holdco; the calculation of the number of shares of Common Stock held
by
the Principal and the Allen Affiliates will not include securities exchangeable
or convertible into shares of Common Stock.
(5) after
the Issue Date, the first day on which a majority of the members of the Board
of
Directors of the Company are not Continuing Directors; or
(6) the
adoption of a plan relating to the liquidation or dissolution of the
Company.
“Charter
Holdco” means Charter Communications Holding Company, LLC.
“Commission”
or “SEC” means the Securities and Exchange Commission.
“common
stock” includes any stock of any class of capital stock which has no
preference in respect of dividends or of amounts payable in the event of
any
voluntary or involuntary liquidation, dissolution or winding up of the issuer
thereof and which is not subject to redemption by the issuer
thereof.
“Common
Stock” means the Class A Common Stock, par value $.001 per share, of
the Company authorized at the date of this instrument as originally
executed. Subject to the provisions of Section 10.14, shares
issuable on conversion or repurchase of Notes shall include only shares of
Common Stock or shares of any class or classes of common stock resulting
from
any reclassification or reclassifications thereof; provided, however, that
if at
any time there shall be more than one such resulting class, the shares so
issuable on conversion of Notes shall include shares of all such classes,
and
the shares of each such class then so issuable shall be substantially in
the
proportion that the total number of shares of such class resulting from all
such
reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
“Company”
means the Person named as the “Company” in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
“Company” shall mean such successor Person.
3
“Continuing
Directors” means, as of any date of determination, any member of the
Board of Directors of the Company who:
(1) was
a member of the Board of Directors on the Issue Date; or
(2) was
nominated for election or elected to the Board of Directors with the approval
of
a majority of the Continuing Directors who were members of the Board of
Directors at the time of such nomination or election or whose election or
appointment was previously so approved.
“Conversion
Agent” means any Person authorized by the Company to convert Notes in
accordance with Article 10. The Company has initially appointed the
Trustee as its Conversion Agent pursuant to Section 2.03
hereof.
“Conversion
Average Price” of Common Stock means, with respect to any conversion of
Notes, the average of the Sale Prices of the Common Stock over the Conversion
Averaging Period.
“Conversion
Averaging Period” means the 20 Trading Day period (i) with respect
to a Conversion Date occurring during the period beginning on the date the
Company gives a notice of redemption and ending on the close of business
on the
Business Day prior to the applicable Redemption Date, beginning on the
Redemption Date; and (ii) in all other cases, beginning on the third scheduled
Trading Day immediately following the applicable Conversion Date for such
conversion of Notes.
“Conversion
Price” as of any date shall equal U.S. $1,000 divided by the Conversion
Rate in effect on such date (rounded to the nearest cent).
“Conversion
Rate” has the meaning specified in Section 10.01(a)
hereof.
“Corporate
Trust Office” means the principal office of the Trustee at which at any
time its corporate trust business shall be administered, which office at
the
date hereof is located at 2 N. LaSalle Street, Suite 1020, Chicago, IL 60602,
Attention: Corporate Trust Administration, or such other address as
the Trustee may designate from time to time by notice to the Holders and
the
Company, or the principal corporate trust office of any successor Trustee
(or
such other address as such successor Trustee may designate from time to time
by
notice to the Holders and the Company).
“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.
“Depositary”
means, with respect to any Notes (including any Global Notes), a clearing
agency
that is registered under the Exchange Act and is designated by the Company
to
act as Depositary for such Notes (or any successor securities clearing agency
so
registered).
“DTC”
means The Depository Trust Company, a New York corporation.
4
“Effective
Date” means the date of consummation or effectiveness of a transaction
described in clause (2) of the definition of Change of Control.
“Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
“Exchange
Offer Prospectus” means the exchange offer prospectus, dated August 29,
2007, as amended on September 14,2007, prepared in connection with the offering
of the Notes being issued on the date hereof.
“Fundamental
Change” means a Change of Control or a Termination of
Trading
“Global
Note” means a Note that is registered in the Note Register for the
Notes in the name of a Depositary or a nominee thereof.
“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.
“Holder”
means the Person in whose name the Note is registered in the Note
Register.
“Indebtedness”
means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent:
(1) in
respect of borrowed money;
(2) evidenced
by bonds, notes, debentures or similar instruments; or
(3) representing
capital lease obligations.
The
amount of any Indebtedness outstanding as of any date shall be (i) the accreted
value thereof, in the case of any Indebtedness issued with original issue
discount; and (ii) the principal amount (or portion of the discounted rental
stream attributable to principal in the case of capitalized leases) thereof,
together with any interest thereon that is more than 30 days past due, in
the
case of any other Indebtedness.
“Indenture”
means this Indenture, as amended or supplemented from time to time.
“Interest
Payment Date” means the Stated Maturity of an installment of interest
on the Notes, such dates being April 1 and October 1 of each year, commencing
April 1, 2008.
“Issue
Date” means October 2, 2007.
“Legal
Holiday”, when used with respect to any place of payment or Place of
Conversion, as the case may be, means a Saturday, a Sunday or a day on which
banking institutions in The City of New York, at such place of payment or
Place
of Conversion, as the
5
case
may
be, 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.
“Maturity”,
when used with respect to any Notes, means the date on which the Principal
Amount of such Notes becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for
redemption, exercise of the repurchase right set forth in Article 11 or
otherwise.
“Non-global
Note” means a Note that is in definitive, fully registered form,
without interest coupons, and that is not a Global Note.
“Notes”
means the Company’s 6.50% Convertible Senior Notes due 2027 and more
particularly means any Notes authenticated and delivered under this Indenture,
including any Additional Notes.
“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 by two
Officers of the Company, one of whom must be the principal executive officer,
the chief financial officer or the treasurer of the Company 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.
“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.
“Place
of Conversion” means any city in which any Conversion Agent is
located.
“Predecessor
Note” of any particular Note means every previous Note evidencing all
or a portion of the same debt as that evidenced by such particular Note;
and,
for the purposes of this definition, any Note authenticated and delivered
under
Section 2.08 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Note shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Note.
“Principal”
means Paul G. Allen.
“Principal
Amount” of a Note means the stated principal amount as set forth on the
face of such Note.
6
“Record
Date Period” means the period from the close of business of any Regular
Record Date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date.
“Redemption
Date”, when used with respect to any Note to be redeemed, means the
date fixed for redemption by or pursuant to this Indenture.
“Redemption
Make Whole Amount” has the meaning specified in
Section 10.08.
“Redemption
Price” has the meaning specified in Section 3.07.
“Regular
Record Date” for interest payable in respect of any Note on any
Interest Payment Date means the March 15 or September 15 (whether or not
a
Business Day), as the case may be, next preceding such Interest Payment
Date.
“Related
Party” means:
(1) the
spouse or an immediate family member, estate or heir of the Principal;
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 the Principal and/or such other
Persons
referred to in the immediately preceding clause (1) or this clause
(2).
“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
Non-global Note” means a Restricted Note other than a Global
Note.
“Restricted
Notes” means all Notes required pursuant to Section 2.07(3) to
bear any Restricted Notes Legend.
“Restricted
Notes Certificate” means a certificate substantially in the form set
forth in Annex A.
“Restricted
Notes Legend” means, collectively, the legends substantially in the
forms of the legends required in the form of Note set forth in Exhibit A
to be
placed upon each Restricted Note.
“Rule
144” means Rule 144 promulgated under the Securities Act.
“Rule
144A” means Rule 144A promulgated under the Securities
Act.
“Sale
Price” of Common Stock or any other security on any date means the
closing sale price per share (or if no closing sale price is reported, the
average of the bid and asked prices or,
7
if
more
than one in either case, the average of the average bid and the average
asked
prices) on that date as reported in transactions for the principal U.S.
securities exchange or market on which the Common Stock or such other security
is traded or quoted. The Sale Price will be determined without
reference to after-hours or extended market trading. If the Common
Stock or such other security is not listed for trading or quoted on a U.S.
national or regional securities exchange or market on the relevant date,
the
Sale Price will be the last quoted bid price for the Common Stock or such
other
security in the Nasdaq Capital Market or in the over-the-counter market
on the
relevant date as reported by Pink Sheets LLC or any similar
organization. If the Common Stock or such other security is not so
quoted, the Sale Price will be the average of the mid-point of the last
bid and
asked prices for the Common Stock or such other security on the relevant
date
from each of at least three nationally recognized independent investment
banking
firms selected by the Company for this purpose.
“Securities
Act” means the Securities Act of 1933, as amended.
“Share
Lending Agreement” means the Share Lending Agreement, dated as of
November 22, 2004, between the Company and Citigroup Global Markets Limited,
as
such agreement may be amended from time to time.
“Significant
Subsidiary” means any Subsidiary of the Company which is a “significant
subsidiary” as defined in Rule 1-02(w) of Regulation S-X under the Exchange
Act.
“Stated
Maturity”, when used with respect to the Principal Amount of any Note
or the payment of interest on any Note, means the date specified in such
Note as
the fixed date on which the Principal Amount of such Note or such installment
of
interest is due and payable.
“Stock
Price” means the price per share of Common Stock paid in connection
with a corporate transaction described in clause (2) of the definition of
Change
of Control, which shall be equal to (i) if holders of Common Stock receive
only
cash in such corporate transaction, the cash amount paid per share of Common
Stock and (ii) in all other cases, the average of the Sale Prices of Common
Stock on the last ten Trading Days up to but not including the Effective
Date.
“Subsidiary”
means, with respect to any Person:
(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 that 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 has the right to control the management of such entity
pursuant to contract or otherwise; and
(2) any
partnership (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 of one or more Subsidiaries of such
Person
(or any combination thereof).
8
“Successor
Note” of any particular Note means every Note issued after, and
evidencing all or a portion of the same debt as that evidenced by, such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.08 in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence
the
same debt as the mutilated, destroyed, lost or stolen Note.
“Surrender
Certificate” means a certificate substantially in the form set forth in
Annex C.
“Termination
of Trading” will be deemed to have occurred if the Common Stock (or
other common stock into which the Notes are convertible) is neither listed
for
trading or quoted on a U.S. national securities exchange; provided that a
Termination of Trading will not occur so long as the Common Stock is listed
for
trading or quoted on the Nasdaq Capital Market or quoted bid prices for the
Common Stock in the over-the-counter market are reported by Pinks Sheets
LLC or
any similar organization.
“TIA”
means the Trust Indenture Act of 1939 (15 U.S.C. ss. 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.
“Trading
Day” means a day during which trading in securities generally occurs
on
the principal U.S. national or regional securities exchange or market on
which
the Common Stock is then listed or quoted or, if the Common Stock is not
then
listed or quoted on a national or regional securities exchange or market,
on the
principal other market on which the Common Stock is traded.
“Trustee”
means The Bank of New York Trust Company, N.A. until a successor replaces
The
Bank of New York Trust Company, N.A. in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
“Unrestricted
Notes Certificate” means a certificate substantially in the form set
forth in Annex B.
“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 of such Person.
9
Section
1.02 Other
Definitions.
|
Defined
in
|
|
|
Term
|
Section
|
|
“Accepted
Purchased Shares”
|
10.07(g)
|
|
“Additional
Notes”
|
2.02
|
|
“Additional
Shares”
|
10.01(b)
|
|
“Authentication
Order”
|
2.02
|
|
“Constituent
Person”
|
10.15
|
|
“Conversion
Date”
|
10.02(a)
|
|
“Conversion
Rate”
|
10.01(a)
|
|
“Conversion
Settlement Date”
|
10.01(a)
|
|
“Current
Market Price”
|
10.07(h)
|
|
“Event
of Default”
|
6.01
|
|
“Ex-date”
|
10.07(i)
|
|
“Expiration
Date”
|
10.07(f)
|
|
“fair
market value”
|
10.07(j)
|
|
“Five
Year Repurchase Date”
|
11.02
|
|
“Fundamental
Change Repurchase Date”
|
11.01(b)
|
|
“Fundamental
Change Repurchase Price”
|
11.01(a)
|
|
“Initial
Notes”
|
2.02
|
|
“Non-Electing
Share”
|
10.15
|
|
“Note
Register”
|
2.03
|
|
“Offer
Expiration Date”
|
10.07(g)
|
|
“Paying
Agent”
|
2.03
|
|
“Payment
Default”
|
6.01
|
|
“Purchased
Shares”
|
10.07(f)
|
|
“Registrar”
|
2.03
|
|
“Repurchase
Notice”
|
11.01
|
|
“Restricted
Global Note”
|
2.01
|
|
“Rule
144A Information”
|
4.10
|
|
“Specified
Percentage”
|
10.03
|
|
“Spin-Off”
|
10.07(e)
|
|
“Statistical
Release”
|
10.08
|
|
“Trigger
Event”
|
10.07(d)
|
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 of a Note;
“indenture
to be qualified” means this Indenture;
“indenture
trustee” or “institutional trustee” means the Trustee;
and
10
“obligor”
on the Notes means the Company 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:
(a) a
term
has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c) “or”
is
not exclusive and “including” means “including without limitation”;
(d) words
in
the singular include the plural, and in the plural include the
singular;
(e) provisions
apply to successive events and transactions;
(f) references
to sections of or rules under the Securities Act shall be deemed to include
substitute, replacement of successor sections or rules adopted by the Commission
from time to time;
(g) 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; and
(h) 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.
ARTICLE
2
THE
NOTES
Section
2.01 Form
and Dating.
The
Notes
and the conversion notices 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 Principal Amount of the
Notes shall be in denominations of $1,000 and integral multiples
thereof.
The
terms
and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
11
To
the
extent any provision of any Note conflicts with the express provisions
of this
Indenture, the provisions of this Indenture shall govern and be
controlling.
Upon
their original issuance, Initial Notes shall be issued in the form of one
or
more Global Notes in definitive, fully registered form without interest coupons
and without the Restricted Note Legend. Additional Notes shall be
issued in the form of one or more Global Notes in definitive, fully registered
form without interest coupons and, unless issued pursuant to an effective
registration statement under the Securities Act, bearing the Restricted Note
Legend. Global Notes bearing the Restricted Note Legend, together
with their Successor Notes which are Global Notes, are collectively herein
called the “Restricted Global Notes”. Global Note
shall be registered in the name of DTC, as Depositary, or its nominee and
deposited with the Trustee, as custodian for DTC, for credit by DTC to the
respective accounts of beneficial owners of the Notes represented thereby
(or
such other accounts as they may direct).
Section
2.02 Execution
and Authentication.
Two
Officers shall sign the Notes for the Company 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 Company may deliver Notes executed by the Company to the Trustee for
authentication; and the Trustee shall authenticate and deliver such Notes
upon a
written order of the Company signed by an Officer of the Company (an
“Authentication Order”). Such Authentication Order
shall specify the amount of Notes to be authenticated and the date on which
the
Notes are to be authenticated and whether the Notes are to be issued as one
or
more Global Notes and such other information as the Company may include or
the
Trustee may reasonably request. The aggregate Principal Amount of
Notes that may be outstanding under this Indenture is unlimited; provided
that
upon initial issuance, the aggregate Principal Amount of Notes outstanding
shall
not exceed $479,168,000, except as provided in Section 2.08. The
Company, without the consent of the Holders of Notes, may issue additional
Notes
(the “Additional Notes”) from time to time having identical
terms and conditions as the Notes originally issued under this Indenture
(the
“Initial Notes”), except for any difference in the issue price
and interest accrued prior to the issue date of such Additional Notes; provided
that such Additional Notes are fungible with the Initial Notes for United
States
federal income tax purposes. The Initial Notes and any Additional
Notes shall constitute a single series of debt securities and, in circumstances
in which this Indenture provides for Holders of Notes to vote or take any
action, the Holders of Initial Notes and the Holders of any Additional Notes
shall vote or take such action as a single class.
The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication
12
by
such
agent. An authenticating agent has the same rights as an Agent to
deal with Holders or an Affiliate of the Company.
Section
2.03 Registrar;
Conversion Agent; and Paying Agent.
The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer, exchange, conversion, redemption or repurchase
(“Registrar” and with respect to conversion, “Conversion Agent”) and an office
or agency where Notes may be presented for payment (“Paying
Agent”). The Registrar shall keep a register of the Notes and of
their transfer, exchange and conversion (the register maintained in such
office,
the “Note Register”). The Company may appoint one or more
co-registrars or conversion agents and one or more additional paying
agents. The term “Registrar” includes any co-registrar, the term
“Conversion Agent” includes any co-conversion agent and the term “Paying Agent”
includes any additional paying agent. The Company may change any
Paying Agent, Registrar or Conversion Agent without notice to any
Holder. The Company shall promptly notify the Trustee in writing of
the name and address of any agent not a party to this Indenture. If
the Company fails to appoint or maintain another entity as Registrar, Paying
Agent or Conversion Agent, the Trustee shall act as such. The Company
or any of its Subsidiaries may act as Paying Agent, Registrar or Conversion
Agent.
The
Company initially appoints DTC to act as Depositary with respect to the Global
Notes.
The
Company initially appoints the Trustee to act as the Registrar, Paying Agent
and
Conversion Agent and custodian with respect to the Global Notes.
Section
2.04 Paying
Agent to Hold Money in Trust.
The
Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders
or
the Trustee all money held by the Paying Agent for the payment of the Principal
Amount, premium, if any, or interest on the Notes, and shall notify the Trustee
of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all
money
held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate and hold
in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings
relating to the Company, the Trustee shall serve as Paying Agent for the
Notes.
Section
2.05 Holder
Lists.
The
Trustee shall preserve in as current a form as is reasonably practicable
the
most recent list available to it of the names and addresses of all Holders
and
shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as
the
Trustee may request in writing, a list in such form and as of such date as
the
Trustee may
13
reasonably
require of the names and addresses of the Holders of Notes and the Company
shall
otherwise comply with TIA ss. 312(a).
Section
2.06 Global
Notes; Non-global Notes; Book-Entry Provisions.
(a) Global
Notes
(i) Each
Global Note authenticated under this Indenture shall be registered in the
name
of the Depositary designated by the Company for such Global Note or a nominee
thereof and delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Note shall constitute a single Note for all
purposes of this Indenture.
(ii) Notwithstanding
any other provisions of this Indenture or the Notes, a Global Note shall
not be
exchanged in whole or in part for a Note registered in the name of any Person
other than the Depositary or one or more nominees thereof, provided that
a
Global Note may be exchanged for Notes registered in the names of any Person
designated by the Depositary in the event that (A) the Depositary has notified
the Company that it is unwilling or unable to continue as Depositary for
such
Global Note or such Depositary has ceased to be a “clearing agency” registered
under the Exchange Act, and a successor Depositary is not appointed by the
Company within 90 days, (B) to the extent permitted by the Depositary, the
Company, in its sole discretion, determines at any time that the Notes shall
no
longer be represented by Global Notes and shall inform such Depositary of
such
determination; or (C) there is a request by or on behalf of the Depository
in
accordance with its customary procedures to exchange an interest in the Global
Notes for Non-global Notes. Any Global Note exchanged pursuant to
clause (A) above shall be so exchanged in whole and not in part, and any
Global
Note exchanged pursuant to clause (B) or (C) above may be exchanged in whole
or
from time to time in part as directed by the Depositary. Any Note
issued in exchange for a Global Note or any portion thereof shall be a Global
Note; provided that any such Note so issued that is registered in the name
of a
person other than the Depositary or a nominee thereof shall not be a Global
Note.
(iii) If
any Global Note is to be exchanged for other Notes or canceled in whole,
it
shall be surrendered by or on behalf of the Depositary or its nominee to
the
Trustee, as Note Registrar, for exchange or cancellation, as provided in
this
Article 2. If any Global Note is to be exchanged for other Notes or
canceled in part, or if another Note is to be exchanged in whole or in part
for
a beneficial interest in any Global Note, in each case, as provided in
Section 2.07, then either (A) such Global Note shall be so surrendered for
exchange or cancellation, as provided in this Article 2, or (B) the Principal
Amount thereof shall be reduced or increased by an amount equal to the portion
thereof to be so exchanged or canceled, or equal to the Principal Amount
of such
other Note to be so exchanged for a beneficial interest therein, as the case
may
be, by means of an appropriate adjustment made on the records of the Trustee,
as
Registrar, whereupon the Trustee, in accordance with the Applicable Procedures,
shall instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Note, the Trustee shall, subject to Section 2.07(c)
and as otherwise provided in this Article 2, authenticate and deliver any
Notes
issuable in exchange for such Global Note (or any portion thereof) to or
upon
the order of, and registered in such names as may be directed by, the Depositary
or its authorized representative. Upon the request of the Trustee in
connection with the occurrence of any of the events specified
14
in
the
preceding paragraph, the Company shall promptly make available to the Trustee
a
reasonable supply of Notes that are not in the form of Global
Notes. The Trustee shall be entitled to rely upon any order,
direction or request of the Depositary or its authorized representative
which is
given or made pursuant to this Article 2 if such order, direction or request
is
given or made in accordance with the Applicable Procedures.
(iv) Every
Note authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Note or any portion thereof, whether
pursuant to this Article 2 or otherwise, shall be authenticated and delivered
in
the form of, and shall be, a registered Global Note, unless such Note is
registered in the name of a Person other than the Depositary for such Global
Note or a nominee thereof, in which case such Note shall be authenticated
and
delivered in definitive, fully registered form, without interest
coupons.
(v) The
Depositary or its nominee, as registered owner of a Global Note, shall be
the
Holder of such Global Note for all purposes under the Indenture and the Notes,
and owners of beneficial interests in a Global Note shall hold such interests
pursuant to the Applicable Procedures. Accordingly, any such owner’s
beneficial interest in a Global Note shall be shown only on, and the transfer
of
such interest shall be effected only through, records maintained by the
Depositary or its nominee or its Agent Members and such owners of beneficial
interests in a Global Note shall not be considered the owners or holders
thereof.
(b) Non-global
Notes. Notes issued upon the events described in
Section 2.06(a)(ii) shall be in definitive, fully registered form, without
interest coupons, and shall bear the Restricted Notes Legend if and as required
by this Indenture.
|
Section
2.07
|
Registration;
Registration of Transfer and Exchange; Restrictions on
Transfer.
|
(a) Upon
surrender for registration of transfer of any Note at an office or agency
of the
Company designated pursuant to Section 2.03 for such purpose, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name
of
the designated transferee or transferees, one or more new Notes of any
authorized denominations and of a like aggregate Principal Amount and bearing
such restrictive legends as may be required by this Indenture.
At
the
option of the Holder, and subject to the other provisions of this
Section 2.07, Notes may be exchanged for other Notes of any authorized
denomination and of a like aggregate Principal Amount, upon surrender of
the
Notes to be exchanged at any such office or agency. Whenever any
Notes are so surrendered for exchange, and subject to the other provisions
of
this Section 2.07, the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Holder making the exchange
is
entitled to receive. Every Note presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or
the Registrar) be duly endorsed, or be accompanied by a written instrument
of
transfer in form satisfactory to the Company, the Trustee and the Registrar
duly
executed, by the Holder thereof or its attorney duly authorized in
writing.
All
Notes
issued upon any registration of transfer or exchange of Notes shall be the
legal, valid and binding obligations of the Company, evidencing the same
debt
and entitled to the same
15
benefits
under this Indenture as the Notes surrendered upon such registration of
transfer
or exchange.
No
service charge shall be made to a Holder for any registration of transfer
or
exchange of Notes except as provided in Section 2.08, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer
or
exchange of Notes, other than exchanges pursuant to Section 2.06, 9.05,
10.02, 11.01 or 11.02 (other than where the shares of Common Stock are to
be
issued or delivered in a name other than that of the Holder of the Note)
not
involving any transfer and other than any stamp and other duties, if any,
which
may be imposed in connection with any such transfer or exchange by the United
States or any political subdivision thereof or therein, which shall be paid
by
the Company.
In
the
event of a redemption of the Notes, neither the Company nor the Registrar
will
be required (a) to register the transfer of or exchange any Non-global Note
for
a period of 15 days immediately preceding the date notice is given identifying
the certificate numbers of the Notes called for such redemption or (b) to
register the transfer of or exchange any Non-global Note, or portion thereof,
called for redemption.
(b) Certain
Transfers and Exchanges. Notwithstanding any other provision of this
Indenture or the Notes, transfers and exchanges of Notes and beneficial
interests in a Global Note of the kinds specified in this Section 2.07(b)
shall be made only in accordance with this Section 2.07(b).
(i) Restricted
Global Note to Restricted Non-global Note. In the event that
Non-global Notes are to be issued pursuant to Section 2.06(a)(ii) in
connection with any transfer of Notes, such transfer may be effected only
in
accordance with the provisions of this Clause (b)(i) and subject to the
Applicable Procedures. Upon receipt by the Trustee, as Registrar, of
(A) an Authentication Order from the Company directing the Trustee, as
Registrar, to (x) authenticate and deliver one or more Notes of the same
aggregate Principal Amount as the beneficial interest in the Restricted Global
Note to be transferred, such instructions to contain the name or names of
the
designated transferee or transferees, the authorized denomination or
denominations of the Notes to be so issued and appropriate delivery instructions
and (y) decrease the beneficial interest of a specified Agent Member’s account
in a Restricted Global Note by a specified Principal Amount not greater than
the
Principal Amount of such Restricted Global Note, and (B) such other
certifications, legal opinions or other information as the Company or the
Trustee may reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, then the Trustee, as Registrar,
shall decrease the Principal Amount of the Restricted Global Note by the
specified amount and authenticate and deliver Notes in accordance with such
instructions from the Company as provided in
Section 2.06(a)(iii).
(ii) Restricted
Non-global Note to Restricted Global Note. If the Holder of a
Restricted Non-global Note wishes at any time to transfer all or any portion
of
such Restricted Non-global Note to a Person who wishes to take delivery thereof
in the form of a beneficial interest in the Restricted Global Note, such
transfer may be effected only in accordance with the provisions of this Clause
(b)(ii) and subject to the Applicable Procedures. Upon receipt by the
16
Trustee,
as Registrar, of (A) such Restricted Non-global Note as provided in
Section 2.07(a) and written instructions from the Company directing that a
beneficial interest in the Restricted Global Note in a specified Principal
Amount not greater than the Principal Amount of such Restricted Non-global
Note
be credited to a specified Agent Member’s account and (B) a Restricted Notes
Certificate, satisfactory to the Trustee and duly executed by such Holder
or its
attorney duly authorized in writing, then the Trustee, as Registrar, shall
cancel such Restricted Non-global Note (and issue a new Restricted Non-global
Note in respect of any untransferred portion thereof) as provided in
Section 2.07(a) and increase the Principal Amount of the Restricted Global
Note by the specified Principal Amount as provided in
Section 2.06(a)(iii).
(iii) Exchanges
Between Global Note and Non-global Note. A beneficial interest in a
Global Note may be exchanged for a Non-global Note only as provided in
Section 2.06(a)(iii), provided that, if such interest is a beneficial
interest in the Restricted Global Note, then such interest shall be exchanged
for a Restricted Non-global Note (subject in each case to
Section 2.07(c)). A Restricted Non-global Note may be exchanged
for a beneficial interest in a Global Note only if such exchange occurs in
connection with a transfer effected in accordance with Clause (b)(ii)
above.
(c) Securities
Act Legends. All Additional Notes issued pursuant to this Indenture,
and all Successor Notes therefor, shall bear the Restricted Notes Legend,
subject to the following:
(i) subject
to the following Clauses of this Section 2.07(c), a Note or any portion
thereof which is exchanged, upon transfer or otherwise, for a Global Note
or any
portion thereof shall bear the Restricted Notes Legend borne by such Global
Note
for which the Note was exchanged;
(ii) subject
to the following Clauses of this Section 2.07(c), a new Note which is not a
Global Note and is issued in exchange for another Note (including a Global
Note)
or any portion thereof, upon transfer or otherwise, shall bear the Restricted
Notes Legend borne by the Note for which the new Note was
exchanged;
(iii) the
Initial Notes and any Additional Notes which are sold or otherwise disposed
of
pursuant to an effective registration statement under the Securities Act,
together with their Successor Notes shall not bear a Restricted Notes Legend;
the Company shall inform the Trustee in writing of the effective date of
any
such registration statement registering Additional Notes under the Securities
Act and shall notify the Trustee at any time when prospectuses must be delivered
with respect to Additional Notes to be sold pursuant to such registration
statement. The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the aforementioned
registration statement;
(iv) at
any time after the Notes may be freely transferred without registration under
the Securities Act or without being subject to transfer restrictions pursuant
to
the Securities Act, a new Note which does not bear a Restricted Notes Legend
may
be issued in exchange for or in lieu of a Note (other than a Global Note)
or any
portion thereof which bears such a legend if the Trustee has received an
Unrestricted Notes Certificate, satisfactory to the Trustee and duly executed
by
the Holder of such Note bearing a Restricted Notes Legend or its attorney
duly
17
authorized
in writing, and after such date and receipt of such certificate, the Trustee
shall authenticate and deliver such new Note in exchange for or in lieu
of such
other Note as provided in this Article 2;
(v) a
new Note which does not bear a Restricted Notes Legend may be issued in exchange
for or in lieu of a Note or any portion thereof which bears such a legend
if, in
the Company’s judgment, placing such a legend upon such new Note is not
necessary to ensure compliance with the registration requirements of the
Securities Act, and the Trustee, at the direction of the Company, shall
authenticate and deliver such a new Note as provided in this Article 2;
and
(vi) notwithstanding
the foregoing provisions of this Section 2.07(c), a Successor Note of a
Note that does not bear a Restricted Notes Legend shall not bear such legend
unless the Company has reasonable cause to believe that such Successor Note
is a
“restricted security” within the meaning of Rule 144, in which case the Trustee,
at the direction of the Company, shall authenticate and deliver a new Note
bearing a Restricted Notes Legend in exchange for such Successor Note as
provided in this Article 2.
(d) Any
stock certificate representing shares of Common Stock issued upon conversion
of
Notes bearing the Restricted Notes Legend shall bear a legend substantially
in
the form of the Restricted Notes Legend borne by such Notes, to the extent
required by this Indenture, unless such shares of Common Stock have been
sold
pursuant to a registration statement that has been declared effective under
the
Securities Act (and which continues to be effective at the time of such
transfer) or sold pursuant to Rule 144(k) of the Securities Act, or unless
otherwise agreed by the Company in writing with written notice thereof to
the
transfer agent for the Common Stock. With respect to the transfer of
shares of Common Stock issued upon conversion of Notes that are restricted
hereunder, any deliveries of certificates, legal opinions or other instruments
that would be required to be made to the Registrar in the case of a transfer
of
Notes, as described above, shall instead be made to the transfer agent for
the
Common Stock. Any stock certificate representing shares of Common
Stock issued upon conversion of Notes not bearing the Restricted Notes Legend
shall not bear a legend in the form of the Restricted Notes Legend, unless
the
Company has reasonable cause to believe that such Common Stock is a “restricted
security” within the meaning of Rule 144, in which case such stock certificate
shall bear a legend substantially in the form of the Restricted Notes
Legend.
(e) Neither
the Trustee, the Paying Agent nor any of their agents shall (i) have any
duty to
monitor compliance with or with respect to any federal or state or other
securities or tax laws or (ii) have any duty to obtain documentation on any
transfers or exchanges other than as specifically required
hereunder.
Section
2.08 Replacement
Notes.
If
any
mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of
any
Note, the Company shall issue and the Trustee, upon receipt of an Authentication
Order, shall authenticate a replacement Note if the Trustee’s requirements are
met. If required by the Trustee or the Company, an indemnity bond
must be supplied by the Holder that is sufficient in the judgment of
18
the
Trustee and the Company to protect the Company, the Trustee, any Agent
and any
authenticating agent from any loss that any of them may suffer if a Note
is
replaced. The Company and the Trustee may charge for their expenses
in replacing a Note. Every replacement Note is an additional legally
binding obligation of the Company and shall be entitled to all of the benefits
of this Indenture equally and proportionately with all other Notes duly
issued
hereunder.
Section
2.09 Outstanding
Notes.
The
Notes
outstanding at any time are all the Notes authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions of this Indenture, and those described in
this
Section as not outstanding. Except as set forth in Section 2.10,
a Note does not cease to be outstanding because either of the Company or
an
Affiliate of the Company holds the Note.
If
a Note
is replaced pursuant to Section 2.08, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held
by
a bona fide purchaser.
If
the
Principal Amount of any Note is considered paid under Section 4.01, it
ceases to be outstanding and interest on it ceases to accrue.
If
the
Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a Redemption Date, Fundamental Change Repurchase Date,
Five
Year Repurchase Date or maturity date, money sufficient to pay Notes payable
on
that date, then on and after that date such Notes shall be deemed to be no
longer outstanding and shall cease to accrue interest.
If
a Note
is converted into Common Stock pursuant to Article 10, it ceases to be
outstanding and interest on it ceases to accrue on the day of surrender of
such
Note or conversion.
Section
2.10 Treasury
Notes.
In
determining whether the Holders of the required Principal Amount of Notes
have
concurred in any direction, waiver or consent, or whether the Holders of
the
requisite Principal Amount of outstanding Notes are present at a meeting
of
Holders of Notes for quorum purposes, Notes owned by the Company, or by any
Person directly or indirectly controlling or controlled by or under direct
or
indirect common control with the Company, shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, or
any
such determination as to the presence of a quorum, only Notes that a Responsible
Officer of the Trustee knows are so owned shall be so disregarded.
Section
2.11 Temporary
Notes.
Until
certificates representing Notes are ready for delivery, the Company may prepare
and the Trustee, upon receipt of an Authentication Order, shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form
of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably
19
acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Notes in exchange for temporary
Notes.
Holders
of temporary Notes shall be entitled to all of the benefits of this
Indenture.
Section
2.12 Cancellation.
The
Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar, Conversion Agent and Paying Agent shall
forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange, conversion or payment. The Trustee and no one
else shall cancel all Notes surrendered for registration of transfer, exchange,
conversion, payment, replacement or cancellation and shall dispose of such
canceled Notes in its customary manner. The Company may not issue new
Notes to replace Notes that they have paid or that have been delivered to
the
Trustee for cancellation.
Section
2.13 Defaulted
Interest.
If
the
Company defaults in a payment of interest on the Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the
Notes
and in Section 4.01. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note
and
the date of the proposed payment. The Company shall fix or cause to
be fixed each such special record date and payment date; provided that no
such
special record date shall be less than 10 days prior to the related payment
date
for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause
to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
Section
2.14 Computation
of Interest.
Interest
on the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months.
Section
2.15 CUSIP
Numbers.
The
Company in issuing the Notes may use “CUSIP” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
in the Notes or as contained in any notice of a redemption and that reliance
may
be placed only on the other identification numbers printed on the Notes,
and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change
in the “CUSIP” numbers.
20
ARTICLE
3
REDEMPTION
AND PREPAYMENT
Section
3.01 Notices
to Trustee.
If
the
Company elects to redeem Notes pursuant to the optional redemption provisions
of
Section 3.07, it shall furnish to the Trustee, at least 15 days prior to
the giving of the notice and at least 30 days but not more than 60 days before
a
Redemption Date, an Officers’ Certificate setting forth (i) the Redemption Date,
(ii) the Principal Amount of Notes to be redeemed, (iii) whether the Company
will deliver shares of Common Stock, or cash in lieu thereof, upon conversion
of
Notes called for redemption, (v) if the Company elects to deliver cash upon
any
such conversion, the percentage of the Conversion Rate with respect to which
the
Company will pay cash and (vi) whether the Company will deliver cash or shares
of Common Stock with respect to any Redemption Make Whole Amount owed upon
conversion.
Section
3.02 Selection
of Notes to Be Redeemed.
If
less
than all of the Notes are to be redeemed at any time, the Trustee shall select
the Notes to be redeemed among the Holders of the Notes on a pro rata basis,
by
lot or in accordance with any other method the Trustee considers fair and
appropriate. In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the Redemption Date
by
the Trustee from the outstanding Notes not previously called for
redemption. If any Note selected for partial redemption is converted
in part before termination of the conversion right with respect to the portion
of the Note so selected, the converted portion of such Note shall be deemed
(so
far as may be) to be the portion selected for redemption. Notes which
have been converted during a selection of Notes to be redeemed may be treated
by
the Trustee as outstanding for the purpose of such selection.
The
Trustee shall promptly notify the Company in writing of the Notes selected
for
redemption and, in the case of any Note selected for partial redemption,
the
Principal Amount thereof to be redeemed. The Principal Amount of
Notes and portions of Notes selected shall be in amounts of $1,000 or whole
multiples of $1,000; except that if all of the Notes of a Holder are to be
redeemed, the entire outstanding Principal Amount of Notes held by such Holder,
even if not a multiple of $1,000, shall be redeemed. Except as
provided in the preceding sentence, provisions of this Indenture that apply
to
Notes called for redemption also apply to portions of Notes called for
redemption.
Section
3.03 Notice
of Redemption.
At
least
30 days but not more than 60 days before a Redemption Date, the Company shall
mail or cause to be mailed, by first class mail, a notice of redemption to
each
Holder whose Notes are to be redeemed at its registered address.
The
notice shall identify the Notes (including applicable CUSIP numbers) to be
redeemed and shall state:
21
(a) the
Redemption Date;
(b) the
Redemption Price;
(c) whether
the Company will deliver shares of Common Stock or cash in lieu thereof upon
conversion of any Notes called for redemption;
(d) if
the
Company elects to deliver cash upon any such conversion, the percentage of
the
Conversion Rate with respect to which the Company will pay cash;
(e) whether
the Company will deliver cash or shares of Common Stock with respect to any
Redemption Make Whole Amount owed upon conversion;
(f) if
any
Note is being redeemed in part, the portion of the Principal Amount of such
Note
to be redeemed and that, after the Redemption Date upon surrender of such
Note,
a new Note or Notes in Principal Amount equal to the unredeemed portion shall
be
issued upon cancellation of the original Note;
(g) the
name
and address of the Paying Agent;
(h) that
Notes called for redemption must be surrendered to the Paying Agent to collect
the Redemption Price;
(i) that,
unless the Company defaults in making such redemption payment, interest on
Notes
called for redemption ceases to accrue on and after the Redemption
Date;
(j) that
no
representation is made as to the correctness or accuracy of the CUSIP number,
if
any, listed in such notice or printed on the Notes; and
(k) the
Conversion Rate, that there is a right to convert the Notes to be redeemed,
the
date on which the right to convert the Notes to be redeemed will terminate
(which shall be the Business Day immediately preceding the Redemption Date)
and
the places where Notes may be surrendered for conversion or the procedures
for
surrendering Notes.
At
the
Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense; provided, however, that the Company shall
have delivered to the Trustee, at least 45 days prior to the Redemption Date,
an
Officers’ Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.
Section
3.04 Effect
of Notice of Redemption.
Once
notice of redemption is mailed in accordance with Section 3.03, Notes
called for redemption become irrevocably due and payable on the Redemption
Date
at the Redemption Price. A notice of redemption may not be
conditional.
22
Section
3.05 Deposit
of Redemption Price.
At
or
prior to 10:00 a.m., New York City time, on the Redemption Date, the Company
shall deposit with the Trustee or with the Paying Agent money sufficient
to pay
the Redemption Price of all Notes to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of
the
amounts, including but not limited to any amounts in respect of Notes that
are
converted (subject to Section 10.02), necessary to pay the Redemption Price
of all Notes to be redeemed. If the Company complies with the
provisions of the first sentence of this Section 3.05, on and after the
Redemption Date interest shall cease to accrue on the Notes or the portions
of
Notes called for redemption. If any Note called for redemption shall
not be so paid upon surrender for redemption because of the failure of the
Company to comply with this paragraph, interest shall be paid on the unpaid
Principal Amount from the Redemption Date and such Note shall remain convertible
until such Principal Amount is paid, and to the extent lawful on any interest
not paid on such unpaid Principal Amount, in each case at the rate provided
in
the Notes and in Section 4.01.
Section
3.06 Notes
Redeemed in Part.
Upon
surrender of a Note that is redeemed in part, the Company shall issue and,
upon
the Company’s written request, the Trustee shall authenticate for the Holder at
the expense of the Company a new Note equal in Principal Amount to the
unredeemed portion of the Note surrendered.
Section
3.07 Optional
Redemption.
(a) Prior
to
October 1, 2010, the Company may redeem the Notes, in whole or in part, upon
not
less than 30 nor more than 60 days’ notice, for cash at a price (the
“Redemption Price”) equal to 100% of the Principal Amount of
such Notes plus accrued and unpaid interest, if any, on such Notes to, but
excluding, the Redemption Date, but only if the Sale Price of the Common Stock
has exceeded, for at least 20 Trading Days in any consecutive 30 Trading
Day
period ending on the date the Company gives such notice, 180% of the Conversion
Price on each such Trading Day. Commencing on, and including, October
1, 2010 until, but excluding, October 1, 2012, the Company may redeem the
Notes,
in whole or in part, upon not less than 30 nor more than 60 days’ notice, for
cash at the Redemption Price , but only if the Sale Price of the Common Stock
has exceeded, for at least 20 Trading Days in any consecutive 30 Trading
Day
period ending on the date the Company gives such notice, 150% of the Conversion
Price on each such Trading Day. On and after October 1, 2012, the
Company may redeem the Notes, in whole or in part upon not less than 30 nor
more
than 60 days’ notice, for cash at the Redemption
Price. Notwithstanding the foregoing, if a Note is redeemed on an
Interest Payment Date or during the Record Date Period, then any accrued
and
unpaid interest shall be paid to the Person in whose name such Note was
registered at the close of business on the applicable Regular Record Date
and
the amount of any such interest to be paid shall be excluded from the Redemption
Price.
(b) Any
redemption pursuant to this Section 3.07 shall be made pursuant to the
provisions of Section 3.01 through 3.06.
23
(c) No
Notes
may be redeemed by the Company pursuant to this Section 3.07 if the
Principal Amount of the Notes has been accelerated (other than as a result
of a
failure to pay the relevant Redemption Price), and such acceleration has
not
been rescinded on or prior to the Redemption Date.
Section
3.08 Mandatory
Redemption.
Except
as
otherwise provided in Article 11, the Company shall not be required to make
mandatory redemption payments with respect to the Notes.
ARTICLE
4
COVENANTS
Section
4.01 Payment
of Notes.
The
Company shall pay or cause to be paid the Principal Amount, premium, if any,
and
interest on the Notes on the dates and in the manner provided in the
Notes. The Principal Amount, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 10:00 a.m. New York City time on the
due
date money deposited by the Company in immediately available funds and
designated for and sufficient to pay the Principal Amount, premium, if any,
and
interest then due.
The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on the overdue Principal Amount at the rate equal
to
1% per annum in excess of the then applicable interest rate on the Notes
to the
extent lawful; the Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section
4.02 Maintenance
of Office or Agency.
The
Company shall maintain in the Borough of Manhattan, The City of New York,
an
office or agency (which may be an office of the Trustee or an affiliate or
agent
of the Trustee, Registrar or co-registrar) where Notes may be surrendered
for
conversion, redemption, repurchase, registration of transfer or exchange
and
where notices and demands to or upon the Company in respect of the Notes
and
this Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of
such
office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the
address thereof, such presentations, surrenders, notices and demands may
be made
or served at the Corporate Trust Office .
The
Company may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of their obligation to maintain an office or agency in the Borough of Manhattan,
the City of New York for such purposes. The Company shall give
24
prompt
written notice to the Trustee of any such designation or rescission and
of any
change in the location of any such other office or agency.
The
Company hereby designates the office of the Trustee located at The Bank of
New
York Trust Company, as one such office or agency of the Company in accordance
with Section 2.03.
Section
4.03 Reports.
The
Company shall file with the Trustee and the Commission, and transmit to Holders,
such information, documents and other reports, and such summaries thereof,
as
may be required pursuant to the TIA at the times and in the manner provided
pursuant to the TIA; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act shall be filed with the trustee within 15 days after the
same
is so required to be filed with the Commission.
Delivery
of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable
from
information contained therein, including the Company’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers’ Certificates).
Section
4.04 Compliance
Certificate.
(a) The
Company shall deliver to the Trustee, within 90 days after the end of each
fiscal year, an Officers’ Certificate stating that a review of the activities of
the Company and its Subsidiaries during the preceding fiscal year have been
made
under the supervision of the signing Officers with a view to determining
whether
the Company has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of
the
terms, provisions and conditions of this Indenture (or, if a Default or Event
of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking
or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the Principal Amount of or interest, if any, on the
Notes
is prohibited or if such event has occurred, a description of the event and
what
action the Company is taking or proposes to take with respect
thereto.
(b) The
Company shall, so long as any of the Notes are outstanding, deliver to the
Trustee, within five Business Days of any Officer becoming aware of any Default
or Event of Default, an Officers’ Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
25
Section
4.05 Taxes.
The
Company shall pay, and shall cause each of its Subsidiaries to pay, prior
to
delinquency, all material taxes, assessments, and governmental levies except
such as are contested in good faith and by appropriate proceedings or where
the
failure to effect such payment is not adverse in any material respect to
the
Holders of the Notes.
Section
4.06 Stay,
Extension and Usury Laws.
The
Company covenants (to the extent that it may lawfully do so) that it shall
not
at any time insist upon, plead, or in any manner whatsoever claim or take
the
benefit or advantage of, any stay, extension or usury law wherever enacted,
now
or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder,
delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law
has
been enacted.
Section
4.07 Corporate
Existence.
Subject
to Article 5, the Company shall do or cause to be done all things necessary
to
preserve and keep in full force and effect (i) its corporate existence, and
the
corporate, partnership or other existence of each of its Significant
Subsidiaries, in accordance with the respective organizational documents
(as the
same may be amended from time to time) of the Company or any such Significant
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Significant Subsidiaries; provided, however, that
the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its Significant
Subsidiaries, if the Company shall determine that the preservation thereof
is no
longer desirable in the conduct of the business of the Company and its
Significant Subsidiaries, taken as a whole, and that the loss thereof is
not
adverse in any material respect to the Holders of the Notes.
Section
4.08 Payments
for Consent.
The
Company shall not, and shall not permit any of its Subsidiaries to, directly
or
indirectly, pay or cause to be paid any consideration to or for the benefit
of
any Holder of Notes for or as an inducement to any consent, waiver or amendment
of any of the terms or provisions of this Indenture or the Notes unless such
consideration is offered to be paid and is paid to all Holders of the Notes
that
consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
Section
4.09 Registration
and Listing.
The
Company (i) will effect all registrations with, and obtain all approvals
by, all
governmental authorities that may be necessary under any United States Federal
or state law (including the Securities Act, the Exchange Act and state
securities and Blue Sky laws) before the shares of Common Stock issuable
upon
conversion of Notes are issued and delivered, and qualified or listed as
contemplated by clause (ii); and (ii) will qualify the shares of Common Stock
26
Stock
required to be issued and delivered upon conversion of Notes, prior to
such
issuance or delivery, for quotation on the Nasdaq Global Market or, if
the
Common Stock is not then quoted on the Nasdaq Global Market, on each national
securities exchange or quotation system on which outstanding Common Stock
is
listed or quoted at the time of such delivery (it being understood that
the
Company shall not be required to register the Notes and the shares of Common
Stock under the Securities Act).
Section
4.10 Delivery
of Certain Information.
At
any
time when the Company is not subject to Section 13 or 15(d) of the Exchange
Act, upon the request of a Holder of a Restricted Note or the holder of shares
of Common Stock issued upon conversion thereof, the Company shall promptly
furnish or cause to be furnished Rule 144A Information (as defined below)
to
such Holder of Restricted Notes or such holder of shares of Common Stock
issued
upon conversion of Restricted Notes, or to a prospective purchaser of any
such
security designated by any such Holder or holder, as the case may be, to
the
extent required to permit compliance by such Holder or holder with Rule 144A
under the Securities Act (or any successor provision thereto) in connection
with
the resale of any such security; provided, however, that the Company shall
not
be required to furnish such information in connection with any request made
on
or after the date which is two years from the later of (i) the date such a
security (or any such predecessor security) was last acquired from the Company
or (ii) the date such a security (or any such predecessor security) was last
acquired from an “affiliate” of the Company within the meaning of Rule 144 under
the Securities Act (or any successor provision
thereto). “Rule 144A Information” shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities
Act
(or any successor provision thereto).
Section
4.11 Waiver
of Certain Covenants.
The
Company may omit in any particular instance to comply with any covenant or
condition set forth in Sections 4.05 and 4.07 (other than with respect to
the
existence of the Company (subject to Article 5)) (other than a covenant or
condition which under Article 9 cannot be modified or amended without the
consent of the Holder of each outstanding Note affected), if before the time
for
such compliance the Holders shall either (i) through the written consent
(or as
otherwise in accordance with the Applicable Procedures) of the Holders of
at
least a majority in aggregate Principal Amount of the Notes then outstanding
or
(ii) by the adoption of a resolution, at a meeting of Holders of the outstanding
Notes at which a quorum is present, by the Holders of at least a majority
in
Principal Amount of the outstanding Notes represented at such meeting, either
waive such compliance in such instance or generally waive compliance with
such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived and, until
such
waiver shall become effective, the obligations of the Company and the duties
of
the Trustee or any Paying or Conversion Agent in respect of any such covenant
or
condition shall remain in full force and effect.
27
ARTICLE
5
SUCCESSORS
Section
5.01 Merger,
Consolidation, or Sale of Assets.
The
Company may not, directly or indirectly: (1) consolidate or merge with or
into
another Person (whether or not the Company is the surviving corporation);
or (2)
sell, lease or otherwise transfer in one transaction or a series of related
transactions the consolidated assets of the Company and its Subsidiaries
substantially as an entirety to any corporation, limited liability company,
partnership or trust organized under the laws of the United States or any
of its
political subdivisions; unless:
(a) either:
(i) the Company is the surviving corporation; or (ii) the Person formed by
or
surviving any such consolidation or merger (if other than the Company) or
to
which such sale, assignment, transfer, conveyance or other disposition shall
have been made is a Person organized or existing under the laws of the United
States, any state thereof or the District of Columbia (provided that if the
Person formed by or surviving any such consolidation or merger with the Company
is not a corporation, a corporate co-issuer shall also be an obligor with
respect to the Notes);
(b) the
surviving entity assumes all the obligations of the Company under the Notes
and
this Indenture pursuant to agreements reasonably satisfactory to the
Trustee;
(c) if
as a
result of such transaction the Notes become convertible into common stock
or
other securities issued by a third party that is not the successor under
the
Notes and this Indenture, such third party fully and unconditionally guarantees
all obligations of the Company or such successor under the Notes and this
Indenture;
(d) at
the
time of such transaction, no Default or Event of Default shall have happened
and
be continuing; and
(e) an
Officer’s Certificate and an Opinion of Counsel, each stating that the
consolidation, merger or transfer complies with the provisions herein, have
been
delivered to the Trustee.
This
Section 5.01 shall not apply to a sale, lease, assignment, conveyance or
other transfer of assets between or among (i) the Company and Charter Holdco
or
(ii) the Company and any wholly-owned Subsidiary of Charter Holdco.
Section
5.02 Successor
Corporation Substituted.
Upon
any
consolidation, merger, sale, lease or other transfer of the consolidated
assets
of the Company and its Subsidiaries substantially as an entirety in accordance
with Section 5.01, the successor Person formed by such consolidation or
into which the Company is merged or to which such transfer is made shall
succeed
to and (except in the case of a lease) be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same
effect
as if such successor Person had been named therein as the Company, and (except
in the
28
case
of a
lease) the Company shall be released from the obligations under the Notes
and
this Indenture, except with respect to any obligations that arise from,
or are
related to, such transaction.
ARTICLE
6
DEFAULTS
AND REMEDIES
Section
6.01 Events
of Default.
An
“Event
of Default” occurs if:
(a) the
Company defaults in the payment when due of interest on the Notes and such
default continues for a period of 30 days;
(b) the
Company defaults in payment when due, whether at Maturity, on a Redemption
Date,
a Fundamental Change Repurchase Date, a Five Year Repurchase Date or otherwise,
of the Principal Amount of or premium, if any, on the Notes;
(c) the
Company fails to give timely notice of (i) the anticipated effective date
of a
transaction described in clause (2) of the definition of Change of Control
pursuant to Section 10.01 or (ii) a Fundamental Change pursuant to
Section 11.01;
(d) the
Company fails to comply with any of its other covenants or agreements in
this
Indenture for 30 days after written notice thereof has been given to the
Company
by the Trustee or to the Company and the Trustee by Holders of at least 25%
of
the aggregate Principal Amount of the Notes then outstanding;
(e) the
Company or any of its Significant Subsidiaries fails to make payment under
any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed (or
the
payment of which is guaranteed by the Company or any of its Significant
Subsidiaries) whether such Indebtedness or guarantee now exists or is created
after the Issue Date, if that default:
(1) is
caused by a failure to pay at final stated maturity the principal amount
on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a “Payment Default”); or
(2) results
in the acceleration of such Indebtedness prior to its express maturity, and,
in
the case of each of (1) and (2) above, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has
been
so accelerated, aggregates $100 million or more;
(f) the
Company or any of its Significant Subsidiaries pursuant to or within the
meaning
of Bankruptcy Law:
(i) commences
a voluntary case,
29
(ii) consents
to the entry of an order for relief against it in an involuntary
case,
(iii) consents
to the appointment of a custodian of it or for all or substantially all of
its
property, or
(iv) makes
a general assignment for the benefit of its creditors; or
(g) a
court
of competent jurisdiction enters an order or decree under any Bankruptcy
Law
that:
(i) is
for relief against the Company or any of its Significant Subsidiaries in
an
involuntary case;
(ii) appoints
a custodian of the Company or any of its Significant Subsidiaries or for
all or
substantially all of the property of the Company or any of its Significant
Subsidiaries; or
(iii) orders
the liquidation of the Company or any of its Significant Subsidiaries; and
the
order or decree remains unstayed and in effect for 60 consecutive days;
and
(h) the
Company fails to deliver shares of Common Stock, or cash in lieu thereof,
when
due upon conversion of any Notes, together with cash in respect of any
fractional shares and any Redemption Make Whole Amount due pursuant to
Section 10.08, and such failure continues for ten days.
Section
6.02 Acceleration.
In
the
case of an Event of Default arising from clause (f) or (g) of Section 6.01
with respect to the Company, all outstanding Notes shall become due and payable
immediately without further action or notice. If any other Event of
Default occurs and is continuing, the Trustee by notice to the Company or
the
Holders of at least 25% in aggregate Principal Amount of the then outstanding
Notes may declare all the Notes to be due and payable at their Principal
Amount
together with accrued and unpaid interest, and thereupon the Trustee may,
at its
discretion, proceed to protect and enforce the rights of the Holders of Notes
by
appropriate judicial proceedings.
Section
6.03 Defaults
and Remedies.
If
an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of Principal Amount, premium, if any, and interest
on the Notes or to enforce the performance of any provision of the Notes
or this
Indenture. The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder of a
Note in exercising any right or remedy accruing upon an Event of Default
shall
not impair the right or remedy or constitute a waiver of or acquiescence
in the
Event of Default. All remedies are cumulative to the extent permitted
by law.
30
Section
6.04 Waiver
of Existing Defaults.
Holders,
either (i) through the written consent (or as otherwise in accordance with
the
Applicable Procedures) of the Holders of at least a majority in aggregate
Principal Amount of the then outstanding Notes by notice to the Trustee or
(ii)
by the adoption of a written resolution, at a meeting of Holders of the
outstanding Notes at which a quorum is present, by the Holders of at least
a
majority in Principal Amount of the outstanding Notes represented at such
meeting, may on behalf of the Holders of all of the Notes waive an existing
Default or Event of Default and its consequences hereunder, except (x) a
continuing Default or Event of Default in the payment of the Principal Amount
of, premium, if any, or interest on, the Notes (whether at Stated Maturity,
a
Redemption Date, a Fundamental Change Repurchase Date, a Five Year Repurchase
Date or otherwise); (y) in respect of the failure to convert the Notes; or
(z)
in respect of a covenant or provision hereof which under Article 9 cannot
be
modified or amended without the consent of each Holder of each outstanding
Note
affected (provided, however, that the Holders of a majority in aggregate
Principal Amount of the then outstanding Notes may rescind an acceleration
and
its consequences, including any related payment default that resulted from
such
acceleration). Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have
been
cured for every purpose of this Indenture; but no such waiver shall extend
to
any subsequent or other Default or impair any right consequent
thereon.
Section
6.05 Control
by Majority.
Holders
of a majority in aggregate Principal Amount of the then outstanding Notes
may
direct the time, method and place of conducting any proceeding for exercising
any remedy available to the Trustee or exercising any trust or power conferred
on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability. The Trustee may take any other action
which it deems proper that is not inconsistent with any such
directive.
Section
6.06 Limitation
on Suits.
A
Holder
of a Note may pursue a remedy with respect to this Indenture or the Notes
only
if:
(a) the
Holder of a Note gives to the Trustee written notice of a continuing Event
of
Default;
(b) the
Holders of at least 25% in Principal Amount of the then outstanding Notes
make a
written request to the Trustee to pursue the remedy;
(c) such
Holder of a Note or Holders of Notes offer and, if requested, provide to
the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or
expense;
(d) the
Trustee does not comply with the request within 60 days after receipt of
the
request and the offer and, if requested, the provision of indemnity;
and
31
(e) during
such 60-day period the Holders of a majority in Principal Amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the
request.
A
Holder
of a Note may not use this Indenture to prejudice the rights of another Holder
of a Note or to obtain a preference or priority over another Holder of a
Note.
Section
6.07 Rights
of Holders of Notes to Receive Payment and to Convert.
Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note
to
receive payment of the Principal Amount, premium, if any, and interest on
the
Note, on or after the Stated Maturity dates (including in connection with
a
redemption and/or an offer to purchase), or to convert such Note in accordance
with Article 10, or to bring suit for the enforcement of any such payment
on or
after such respective dates or of such right to convert, shall be absolute
and
unconditional and shall not be impaired or affected without the consent of
such
Holder.
Section
6.08 Collection
Suit by Trustee.
If
an
Event of Default specified in Section 6.01(a) or 6.01(b) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name
and as
trustee of an express trust against the Company for the whole Principal Amount
of, premium, if any, and interest remaining unpaid on the Notes and interest
on
overdue Principal Amount and, to the extent lawful, interest and such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances
of
the Trustee, its agents and counsel.
Section
6.09 Trustee
May File Proofs of Claim.
The
Trustee is authorized to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders of the
Notes allowed in any judicial proceedings relative to the Company (or any
other
obligor upon the Notes), their creditors or their property and shall be entitled
and empowered to collect, receive and distribute any money or other property
payable or deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of
such
payments directly to the Holders, to pay to the Trustee any amount due to
it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 out
of the estate in any such proceeding, shall be denied for any reason, payment
of
the same shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive
in
such proceeding whether in liquidation or under any plan of reorganization
or
arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes
32
or
the
rights of any Holder, or to authorize the Trustee to vote in respect of
the
claim of any Holder in any such proceeding.
Section
6.10 Priorities.
If
the
Trustee collects any money pursuant to this Article, it shall pay out the
money
in the following order:
First:
to
the Trustee, its agents and attorneys for amounts due under Section 7.07,
including payment of all compensation, expense and liabilities incurred,
and all
advances made, by the Trustee and the costs and expenses of
collection;
Second:
to Holders of Notes for amounts due and unpaid on the Notes for Principal
Amount, premium, if any, and interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for Principal
Amount, premium, if any and interest, respectively; and
Third:
to
the Company or to such party as a court of competent jurisdiction shall
direct. The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
Section
6.11 Undertaking
for Costs.
In
any
suit for the enforcement of any right or remedy under this Indenture or in
any
suit against the Trustee for any action taken or omitted by it as a Trustee,
a
court in its discretion may require the filing by any party litigant in the
suit
of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in the suit, having due regard to the merits and
good
faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note
pursuant to Section 6.07, or a suit by Holders of more than 10% in
Principal Amount of the then outstanding Notes.
ARTICLE
7
TRUSTEE
Section
7.01 Duties
of Trustee.
(a) If
an
Event of Default has occurred and is continuing, the Trustee shall exercise
such
of the rights and powers vested in it by this Indenture, and use the same
degree
of care and skill in its exercise, as a prudent person would exercise or
use
under the circumstances in the conduct of such person’s own
affairs.
(b) Except
during the continuance of an Event of Default:
(i) the
duties of the Trustee shall be determined solely by the express provisions
of
this Indenture and the Trustee need perform only those duties that are
specifically
33
set
forth
in this Indenture and no others, and no implied covenants or obligations
shall
be read into this Indenture against the Trustee; and
(ii) in
the absence of bad faith on its part, the Trustee may conclusively rely,
as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions required to be furnished to the Trustee
hereunder and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this
Indenture (but need not confirm or investigate the accuracy of any mathematical
calculations or other facts stated therein).
(c) The
Trustee may not be relieved from liabilities for its own gross negligent
action,
its own gross negligent failure to act, or its own willful misconduct, except
that:
(i) this
paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith
by a
Responsible Officer, unless it is proved that the Trustee was grossly negligent
in ascertaining the pertinent facts; and
(iii) the
Trustee shall not be liable with respect to any action it takes or omits
to take
in good faith in accordance with a direction received by it pursuant to
Section 6.05.
(d) Whether
or not therein expressly so provided, every provision of this Indenture that
in
any way relates to the Trustee is subject to paragraphs (a), (b), and (c)
of
this Section 7.01.
(e) No
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture
at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability, claim,
damage or expense.
(f) The
Trustee shall not be liable for interest on any money received by it except
as
the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture or other paper
or
documents.
Section
7.02 Rights
of Trustee.
(a) The
Trustee may conclusively rely upon any document (whether in its original
or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits
34
to
take
in good faith in reliance on such Officers’ Certificate or Opinion of
Counsel. The Trustee may consult with counsel of its own selection
and the advice or opinion of such counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due
care.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred
upon it by this Indenture.
(e) Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an
Officer
of the Company.
(f) Subject
to the duty of the Trustee during an Event of Default to act with the required
standard of care, the Trustee shall be under no obligation to exercise any
of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it against the costs, expenses
and liabilities that might be incurred by it in compliance with such request
or
direction.
(g) The
Trustee shall not be charged with knowledge of any Default or Event of Default
unless either (i) a Responsible Officer of the Trustee shall have actual
knowledge of such Default or Event of Default or (ii) written notice of such
Default or Event of Default shall have been given to and received by a
Responsible Officer of the Trustee by the Company or any Holder and such
notice
refers to the Notes and this Indenture.
(h) In
no
event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised
of the
likelihood of such loss or damage and regardless of the form of
action.
(i) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended
to, and
shall be enforceable by, the Trustee in each of its capacities hereunder,
and
each agent, custodian and other Person employed to act hereunder.
Section
7.03 Individual
Rights of Trustee.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Affiliate of the
Company
with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the Commission for permission
to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections
Section 7.10 and 7.11.
35
Section
7.04 Trustee’s
Disclaimer.
The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable
for the Company’s use of the proceeds from the Notes or any money paid to the
Company or upon the Company’s direction under any provision of this Indenture,
it shall not be responsible for the use or application of any money received
by
any Paying Agent other than the Trustee, and it shall not be responsible
for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
Section
7.05 Notice
of Defaults.
If
a
Default or Event of Default occurs and is continuing and if it is known to
a
Responsible Officer of the Trustee, the Trustee shall mail to Holders of
Notes a
notice of the Default or Event of Default within 90 days after the Trustee
acquires knowledge thereof. Except in the case of a Default or Event
of Default in payment of Principal Amount of, premium, if any, or interest
on
any Note or in the payment of any obligation in connection with conversion,
redemption or repurchase, the Trustee may withhold the notice if and so long
as
it, in good faith, determines that withholding the notice is in the interests
of
the Holders of the Notes.
Section
7.06 Reports
by Trustee to Holders of the Notes.
Within
60
days after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall
mail
to the Holders of the Notes a brief report dated as of such reporting date
that
complies with TIA ss. 313(a) (but if no event described in TIA
ss. 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply
with TIA ss. 313(b)(2). The Trustee shall also transmit by mail
all reports as required by TIA ss. 313(c).
A
copy of
each report at the time of its mailing to the Holders of Notes shall be mailed
to the Company and filed with the Commission and each stock exchange on which
the Notes are listed in accordance with TIA ss. 313(d). The
Company shall promptly notify the Trustee when the Notes are listed on any
stock
exchange or delisted therefrom.
Section
7.07 Compensation
and Indemnity.
The
Company shall pay to the Trustee from time to time compensation for its
acceptance of this Indenture and services hereunder as separately agreed
in
writing. The Trustee’s compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation
for
its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and
counsel.
The
Company shall fully indemnify the Trustee against any and all losses,
liabilities, claims, damages or expenses (including reasonable legal fees
and
expenses) incurred by it arising out of or in connection with the acceptance
or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company (including this
36
Section 7.07)
and defending itself against any claim (whether asserted by the Company
or any
Holder or any other person) or liability in connection with the exercise
or
performance of any of its powers or duties hereunder, except to the extent
any
such loss, liability or expense shall be determined to have been caused
by its
own gross negligence or willful misconduct. The Trustee shall notify
the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable
fees
and expenses of such counsel. The Company need not pay for any
settlement made without their consent, which consent shall not be unreasonably
withheld.
The
obligations of the Company in this Section 7.07 shall survive resignation
or removal of the Trustee and the satisfaction and discharge of this
Indenture.
The
Trustee shall have a lien prior to the Securities as to all property and
funds
held by it hereunder for any amount owing it or any predecessor Trustee pursuant
to this Section 7.07, except with respect to funds held in trust for the
benefit
of the Holders of particular Securities.
When
the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(f) or (g) occurs, the expenses and the compensation for the
services (including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any Bankruptcy
Law.
The
Trustee shall comply with the provisions of TIA ss. 313(b)(2) to the extent
applicable.
Section
7.08 Replacement
of Trustee.
A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section.
The
Trustee may resign in writing at any time and be discharged from the trust
hereby created by so notifying the Company. The Holders of a majority
in Principal Amount of the then outstanding Notes may remove the Trustee
by so
notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered
with respect to the Trustee under any Bankruptcy Law;
(c) a
custodian or public officer takes charge of the Trustee or its property;
or
(d) the
Trustee becomes incapable of acting.
If
the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the
37
successor
Trustee takes office, the Holders of a majority in Principal Amount of
the then
outstanding Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
If
a
successor Trustee does not take office within 60 days after the retiring
Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders
of at
least 10% in Principal Amount of the then outstanding Notes may petition
at the
expense of the Company any court of competent jurisdiction for the appointment
of a successor Trustee.
If
the
Trustee, after written request by any Holder who has been a Holder for at
least
six months, fails to comply with Section 7.10, such Holder may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under
this
Indenture. The successor Trustee shall mail a notice of its
succession to Holders property held by it as Trustee to the successor Trustee;
provided all sums owing to the Trustee hereunder have been paid as provided
for
in Section 7.07. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company’s obligations under
Section 7.07 shall continue for the benefit of the retiring
Trustee.
Section
7.09 Successor
Trustee By Merger, etc.
If
the
Trustee consolidates, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee.
Section
7.10 Eligibility;
Disqualification.
There
shall at all times be a Trustee hereunder that is a corporation organized
and
doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trustee
power,
that is subject to supervision or examination by federal or state authorities
and that has a combined capital and surplus of at least $50 million as set
forth
in its most recent published annual report of condition. This
Indenture shall always have a Trustee who satisfies the requirements of TIA
ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
Section
7.11 Preferential
Collection of Claims Against the Company.
The
Trustee is subject to TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated
therein.
38
ARTICLE
8
\
MEETINGS
OF HOLDERS OF NOTES
Section
8.01 Purposes
for Which Meetings May be Called.
A
meeting
of Holders of Notes may be called at any time and from time to time pursuant
to
this Article to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to
be made, given or taken by Holders of Notes.
Section
8.02 Call,
Notice and Place of Meetings.
(a) The
Trustee may at any time call a meeting of Holders of Notes for any purpose
specified in Section 8.01, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, as the Trustee shall
determine. Notice of every meeting of Holders of Notes, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in
Section 12.02, not less than 21 nor more than 180 days prior to the date
fixed for the meeting.
(b) In
case
at any time the Company, pursuant to a Board Resolution, or the Holders of
at
least 10% in Principal Amount of the outstanding Notes shall have requested
the
Trustee to call a meeting of the Holders of Notes for any purpose specified
in
Section 8.01, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 21 days after receipt of such request
or shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Notes in the amount specified,
as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in paragraph (a) of this
Section.
Section
8.03 Persons
Entitled to Vote at Meetings.
To
be
entitled to vote at any meeting of Holders of Notes, a Person shall be (i)
a
Holder of one or more outstanding Notes, or (ii) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
outstanding Notes by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders shall
be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of
the
Company and its counsel. In determining Holders entitled to vote at
any meeting of Holders of Notes, Notes owned by the Company, or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company, shall be considered as though not
outstanding.
Section
8.04 Quorum;
Action.
The
Persons entitled to vote a majority in aggregate Principal Amount of the
outstanding Notes shall constitute a quorum. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the
meeting
shall, if convened at the request of Holders of
39
Notes,
be
dissolved. In any other case, the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period not less than 10 days as determined by the chairman of the
meeting
prior to the adjournment of such adjourned meeting (subject to repeated
applications of this sentence). Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 8.02(a), except
that such notice need be given only once not less than five days prior
to the
date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage
of
the aggregate Principal Amount of the outstanding Notes which shall constitute
a
quorum.
Subject
to the foregoing, at the reconvening of any meeting adjourned for a lack
of a
quorum, the Persons entitled to vote 25% in aggregate Principal Amount of
the
outstanding Notes at the time shall constitute a quorum for the taking of
any
action set forth in the notice of the original meeting.
At
a
meeting or an adjourned meeting duly reconvened and at which a quorum is
present
as aforesaid, any resolution and all matters (other than a covenant or condition
which under Section 9.02 cannot be modified or amended without the consent
of the Holder of each outstanding Note affected) shall be effectively passed
and
decided if passed or decided by the lesser of (i) the Holders of not less
than a
majority in aggregate Principal Amount of outstanding Notes and (ii) the
Persons
entitled to vote not less than 66-2/3% in aggregate Principal Amount of
outstanding Notes represented and entitled to vote at such meeting.
Any
resolution passed or decisions taken at any meeting of Holders of Notes duly
held in accordance with this Section shall be binding on all the Holders of
Notes whether or not present or represented at the meeting. The
Trustee shall, in the name and at the expense of the Company, notify all
the
Holders of Notes of any such resolutions or decisions pursuant to
Section 12.02.
Section 2.09
shall determine which Notes are considered to be “outstanding” for purposes of
this Section 8.04.
Section
8.05 Determination
of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Notes
in
regard to proof of the holding of Notes and of the appointment of proxies
and in
regard to the appointment and duties of inspectors of votes, the submission
and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall
deem
appropriate.
(b) The
Trustee shall, by an instrument in writing, appoint a temporary chairman
(which
may be the Trustee) of the meeting, unless the meeting shall have been called
by
the Company or by Holders of Notes as provided in Section 8.02(b), in which
case the Company or the Holders of Notes calling the meeting, as the case
may
be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by
40
vote
of
the Persons entitled to vote a majority in aggregate Principal Amount of
the
outstanding Notes represented at the meeting.
(c) At
any
meeting, each Holder of a Note or proxy shall be entitled to one vote for
each
U.S. $1,000 Principal Amount of Notes held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect
of any
Note challenged as not outstanding and ruled by the chairman of the meeting
to
be not outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Note or proxy.
(d) Any
meeting of Holders of Notes duly called pursuant to Section 8.02 at which a
quorum is present may be adjourned from time to time by Persons entitled
to vote
a majority in aggregate Principal Amount of the outstanding Notes represented
at
the meeting, and the meeting may be held as so adjourned without further
notice.
Section
8.06 Counting
Votes and Recording Action of Meetings.
The
vote
upon any resolution submitted to any meeting of Holders of Notes shall be
by
written ballots on which shall be subscribed the signatures of the Holders
of
Notes or of their representatives by proxy and the Principal Amounts and
certificate numbers of the outstanding Notes held or represented by
them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or
against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the
meeting. A record, at least in duplicate, of the proceedings of each
meeting of Holders of Notes shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by
one or
more Persons having knowledge of the facts setting forth a copy of the notice
of
the meeting and showing that said notice was given as provided in
Section 8.02 and, if applicable, Section 8.04. Each copy
shall be signed and verified by the affidavits of the permanent chairman
and
secretary of the meeting and one such copy shall be delivered to the Company
and
another to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein
stated.
ARTICLE
9
AMENDMENT,
SUPPLEMENT AND WAIVER
Section
9.01 Without
Consent of Holders of Notes.
Notwithstanding
Section 9.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture or the Notes without the consent of any Holder
of a
Note:
(a) to
cure
any ambiguity or correct or supplement any defective provision contained
in the
Indenture; provided that such modification or amendment does not, in the
good
faith opinion of the Board of Directors, adversely affect the interests of
the
Holders of Notes in any material respect; provided further that any amendment
made solely to conform the provisions of the Indenture to the description
of the
Notes in the Exchange Offer Prospectus will not be deemed to adversely affect
the interests of the Holders;
41
(b) to
add
covenants for the benefit of the Holders;
(c) to
add
additional dates on which Holders may require the Company to repurchase their
Notes;
(d) to
surrender any rights or powers conferred upon the Company;
(e) to
provide for the assumption of the Company’s obligations to Holders in the case
of a merger, consolidation, sale, transfer or lease pursuant to Article
5;
(f) to
increase the conversion rate in the manner described in Section 10.07,
provided that the increase will not adversely affect the interests of Holders
in
any material respect;
(g) to
comply
with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the TIA or otherwise as necessary to
comply with applicable law;
(h) to
make
provision with respect to the conversion rights of Holders pursuant to
Section 10.15 or to make provision with respect to the repurchase rights of
Holders of Notes pursuant to Section 11.01 or
Section 11.02;
(i) to
add or
modify any other provision of this Indenture that the Company and the Trustee
may deem necessary or desirable and that will not adversely affect the interests
of the Holders; or
(j) to
provide for the issuance of Additional Notes.
Upon
the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture,
and
upon receipt by the Trustee of the documents described in Section 7.02, the
Trustee shall join with the Company in the execution of any amended or
supplemental Indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may
be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section
9.02 With
Consent of Holders of Notes.
Except
as
provided below in this Section 9.02, this Indenture or the Notes may be
amended or supplemented with either (i) the written consent (or as otherwise
in
accordance with the Applicable Procedures) of the Holders of at least a majority
in aggregate Principal Amount of the Notes then outstanding (including consents
obtained in connection with a purchase of, or a tender offer or exchange
offer
for, Notes), or (ii) by the adoption of a resolution, at a meeting of Holders
of
the outstanding Notes at which a quorum is present, by the Holders of at
least a
majority in aggregate Principal Amount of the outstanding Notes represented
at
such meeting. Section 2.09 shall determine which Notes are
considered to be “outstanding” for purposes of this
Section 9.02.
42
Upon
the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture,
and
upon the filing with the Trustee of evidence satisfactory to the Trustee
of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee
of
the documents described in Section 7.02, the Trustee shall join with the
Company in the execution of such amended or supplemental Indenture unless
such
amended or supplemental Indenture directly affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into
such
amended or supplemental Indenture.
It
shall
not be necessary for the consent of the Holders of Notes under this
Section 9.02 to approve the particular form of any proposed amendment or
supplement, but it shall be sufficient if such consent approves the substance
thereof.
After
an
amendment or supplement under this Section 9.02 becomes effective, the
Company shall mail to the Holders of Notes affected thereby a notice briefly
describing the amendment or supplement. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amended or supplemental
Indenture.
However,
without the consent or affirmative vote of each Holder affected, an amendment
or
supplement under this Section 9.02 may not (with respect to any Notes held
by a non-consenting Holder):
(a) change
the Stated Maturity of the Principal Amount of, or any installment of interest
on, any Note;
(b) reduce
the Principal Amount of, or the premium, if any, on any Note;
(c) reduce
the interest rate or amount of interest on any Note;
(d) change
the currency of payment of the Principal Amount of, premium, if any, or interest
on any Note (including any payment of Redemption Price or Fundamental Change
Repurchase Price in respect of such Note);
(e) impair
the right to institute suit for the enforcement of any payment in respect
of any
Note on or after the Stated Maturity thereof (or, in the case of redemption
or
any repurchase, on or after the Redemption Date, Fundamental Change Repurchase
Date or Five Year Repurchase Date, as the case may be);
(f) except
as
permitted by Section 10.15 adversely affect the right of Holders to convert
any Note as provided in Article 10;
(g) reduce
the Redemption Make Whole Amount or otherwise modify Section 10.08 of the
Indenture in a manner adverse to the Holders;
(h) modify
the provisions of Article 11 relating to notice and repurchase (including
those
relating to the Fundamental Change Repurchase Date, the Fundamental Change
Repurchase Price and the Five Year Repurchase Date) in a manner adverse to
the
Holders;
43
(i) modify
the provisions of Article 3 in a manner adverse to the Holders;
(j) reduce
the requirements of Section 8.04 for quorum or voting, or reduce the
percentage in aggregate Principal Amount of the outstanding Notes the consent
of
whose Holders is required for any such supplemental indenture or the consent
of
whose Holders is required for any waiver of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences provided
for in this Indenture; or
(k) modify
any of the provisions of this Section or Section 4.11 or 6.04, except to
increase any percentage contained herein or therein or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Note affected thereby.
Section
9.03 Compliance
with Trust Indenture Act.
Every
amendment or supplement to this Indenture or the Notes shall be set forth
in an
amended or supplemental Indenture that complies with the TIA as then in
effect.
Section
9.04 Revocation
and Effect of Consents.
Until
an
amendment or supplement becomes effective, a consent to it by a Holder of
a Note
is a continuing consent by the Holder of a Note and every subsequent Holder
of a
Note or portion of a Note that evidences the same debt as the consenting
Holder’s Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the supplement or amendment becomes
effective. An amendment or supplement becomes effective in accordance
with its terms and thereafter binds every Holder.
Section
9.05 Notation
on or Exchange of Notes.
The
Trustee may place an appropriate notation about an amendment or supplement
on
any Note thereafter authenticated. The Company in exchange for all
Notes may issue and the Trustee shall, upon receipt of an Authentication
Order,
authenticate new Notes that reflect the amendment or supplement.
Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment or supplement.
Section
9.06 Trustee
to Sign Amendments, etc.
The
Trustee shall sign any amended or supplemental Indenture authorized pursuant
to
this Article 9 if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental Indenture until the Board of Directors
approves it in writing. In executing any amended or supplemental
indenture, the Trustee shall be provided with and (subject to Section 7.01)
shall be fully protected in relying upon, in addition to the documents required
by Section 12.04, an Officer’s Certificate and an Opinion of Counsel each
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
44
ARTICLE
10
CONVERSION
OF NOTES
Section
10.01 Conversion
Privilege and Conversion Rate.
(a) Subject
to and upon compliance with the provisions of this Article, at the option
of the
Holder thereof, any Note may be converted into fully paid and nonassessable
shares (calculated as to each conversion to the nearest 1/100th of a share)
of
Common Stock of the Company at the Conversion Rate, determined as hereinafter
provided, in effect at the time of conversion. Such conversion right
shall commence on the initial issuance date of the Notes and expire at the
close
of business on the Business Day prior to the date of Maturity of the Notes,
subject, in the case of conversion of any Global Note, to any Applicable
Procedures. In case a Note or portion thereof is called for
redemption at the election of the Company or the Holder thereof exercises
its
right to require the Company to repurchase the Note, such conversion right
in
respect of the Note, or portion thereof so called, shall expire at the close
of
business on the Business Day prior to the Redemption Date, the Fundamental
Change Repurchase Date or the Five Year Repurchase Date, as the case may
be,
unless the Company defaults in making the payment due upon redemption or
repurchase, as the case may be (in each case subject as aforesaid to any
Applicable Procedures with respect to any Global Note); provided that, if
a
Holder has delivered notice of the exercise of its right to have its Note
repurchased pursuant to Section 11.01(c) or Section 11.02(c), such
Holder may not surrender such Note for conversion until such Holder has
withdrawn its election to have its Note repurchased in accordance with
Section 11.01 or Section 11.02, as the case may be.
The
rate
at which shares of Common Stock shall be delivered upon conversion (herein
called the “Conversion Rate”) shall be initially 293.3868
shares of Common Stock for each U.S. $1,000 Principal Amount of
Notes. The Conversion Rate shall be adjusted (rounded to four decimal
places) in certain instances as provided in this Article 10.
(b) If
a
transaction described in clause (2) of the definition of Change of Control
occurs on or prior to October 1, 2012, the Company shall give notice to the
Trustee and all Holders (i) at least ten scheduled Trading Days prior to
the
anticipated Effective Date of such transaction and (ii) within 15 days after
the
actual Effective Date of such Change of Control. If a Holder elects
to convert Notes at any time following the notice described in clause (i)
of the
preceding sentence until the Fundamental Change Repurchase Date corresponding
to
such Change of Control as set forth in Section 11.01, the Conversion Rate
for each $1,000 Principal Amount of Notes converted will be increased by
an
additional number of shares of Common Stock (the “Additional
Shares”) as described below; provided that if the Stock Price
is greater than $39.33 per share (subject in each case to adjustment as
described below) or if the Stock Price is less than $2.62 per share (subject
to
adjustment), the number of Additional Shares shall be zero. The
number of Additional Shares shall be determined by reference to the table
attached as Schedule A hereto, based on the Effective Date and the Stock
Price;
provided that if the Stock Price is between two Stock Price amounts in
the table or the Effective Date is between two Effective Dates in the table,
the
number of Additional Shares shall be determined by a straight-line interpolation
between the number of Additional Shares set forth for the higher and lower
Stock
Price amounts and the two dates, as applicable, based on a 365-day
year. The addition to
45
the
Conversion Rate (whether, for the avoidance of doubt, in shares of Common
Stock
or, if the Company elects to pay cash in lieu of all or a portion of the Common
Stock pursuant to Section 10.04, in cash or cash and shares of Common Stock,
as
applicable) will be made to Holders who elect to convert their Notes in
connection with an applicable Change of Control on the later of (i) five
Business Days following the Effective Date or (ii) the Conversion Settlement
Date for those Notes.
The
Stock
Prices set forth in the first column of the table in Schedule A hereto and
set
forth in the proviso in the first sentence of the preceding paragraph
shall be adjusted as of any date on which the Conversion Rate of the Notes
is
adjusted. The adjusted Stock Prices shall equal the Stock Prices
applicable immediately prior to such adjustment, multiplied by a fraction,
the
numerator of which is the Conversion Rate immediately prior to the adjustment
giving rise to the Stock Price adjustment and the denominator of which is
the
Conversion Rate as so adjusted. The Company’s obligation to deliver
Additional Shares shall be subject to adjustment in the same manner as the
Conversion Rate as set forth Section 10.07 and
Section 10.15.
(c) Notwithstanding
the foregoing, the total number of shares of Common Stock issuable upon
conversion shall not exceed 381.4028 shares per $1,000 Principal Amount of
Notes, subject to adjustments in the same manner as the Conversion Rate as
set
forth in Section 10.07 and Section 10.15.
(d) (d)
Promptly following the Effective Date, the Company shall calculate the Stock
Price and the number of Additional Shares based on the applicable Stock Price
and Effective Date. No less than five Business Days following the
Effective Date, the Company shall notify the Trustee of the results of such
calculations and notify the Holders of the Stock Price and the number of
Additional Shares per $1,000 Principal Amount of Notes. The Company
shall issue a press release containing the information described in this
paragraph and publish such information on its website.
Section
10.02 Exercise
of Conversion Privilege.
(a) In
order
to exercise the conversion privilege, the Holder of any Note to be converted
shall surrender such Note, duly endorsed in blank, at any office or agency
of
the Company maintained for that purpose pursuant to Section 4.02,
accompanied by a duly signed conversion notice substantially in the form
set
forth in Exhibit A stating that the Holder elects to convert such Note or,
if
less than the entire Principal Amount thereof is to be converted, the portion
thereof to be converted. The date a Holder complies with these
requirements for any Notes shall be the “Conversion Date” with
respect to such Notes.
(b) Notes
surrendered for conversion by a Holder during a Record Date Period must be
accompanied by payment in an amount equal to the interest that the Holder
is to
receive on the Notes on such Interest Payment Date; provided, however, that
no
such payment need be made (1) if the Company has specified a Redemption Date
that is during a Record Date Period, (2) if the Company has specified a
Fundamental Change Repurchase Date that is during a Record Date Period or
(3)
unless any overdue interest exists at the time of conversion with respect
to
such Note and then only to the extent of such overdue interest.
46
(c) Notes
shall be deemed to have been converted immediately prior to the close of
business on the Conversion Date, and at such time the rights of the Holders
of
such Notes as Holders shall cease, and the Person or Persons entitled to
receive
the Common Stock issuable upon conversion shall be treated for all purposes
as
the record holder or holders of such Common Stock at such time. The
Company shall issue and deliver to the Trustee, for delivery to the Holder,
a
certificate or certificates for the number of full shares of Common Stock
issuable upon conversion, or cash in lieu thereof pursuant to
Section 10.04, together with payment in lieu of any fraction of a share, as
provided in Section 10.05 and any Redemption Make Whole Amount as required
by Section 10.08 on the “Conversion Settlement Date,”
which shall be as promptly as practicable, but no later
than the fifth Business
Day following the Conversion Date; provided that if the Company elects cash
settlement pursuant to Section 10.04, the Conversion Settlement Date shall
be the third Business Day following the determination of the Conversion Average
Price.
(d) Delivery
to Holders of the full number of shares of Common Stock, or cash in lieu
thereof, into which the Notes are convertible pursuant to this Article 10,
together with payment in lieu of any fraction of a share, as provided in
Section 10.05 and any Redemption Make Whole Amount as required by
Section 10.08 shall be deemed to satisfy the Company’s obligations with
respect to such Notes. Accordingly, except to the extent of any such
Redemption Make Whole Amount, any accrued but unpaid interest shall be deemed
to
be paid in full upon conversion, rather than cancelled, extinguished or
forfeited.
(e) In
the
case of any Note which is converted in part only, upon such conversion the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Note or Notes of authorized
denominations in an aggregate Principal Amount equal to the unconverted portion
of the Principal Amount of such Note. A Note may be converted in
part, but only if the Principal Amount of such Note to be converted is any
integral multiple of U.S. $1,000 and the Principal Amount of such Note to
remain outstanding after such conversion is equal to U.S. $1,000 or any
integral multiple of $1,000 in excess thereof.
(f) If
shares
of Common Stock to be issued upon conversion of a Restricted Note, or Notes
to
be issued upon conversion of a Restricted Note in part only, are to be
registered in a name other than that of the Beneficial Owner of such Restricted
Note, then such Holder must deliver to the Conversion Agent a Surrender
Certificate, dated the date of surrender of such Restricted Note and signed
by
such Beneficial Owner, as to compliance with the restrictions on transfer
applicable to such Restricted Note. Neither the Trustee nor any
Conversion Agent, Registrar or Transfer Agent shall be required to register
in a
name other than that of the Beneficial Owner, shares of Common Stock or Notes
issued upon conversion of any such Restricted Note not so accompanied by
a
properly completed Surrender Certificate.
Section
10.03 Limitation
on Beneficial Ownership
Notwithstanding
anything to the contrary in this Article X, no Person will be entitled to
acquire Beneficial Ownership of shares of Common Stock delivered upon conversion
to the extent (but only to the extent) that such receipt would cause any
Person
to become, directly or indirectly, a Beneficial Owner of more than the Specified
Percentage of the shares of Common
47
Stock
outstanding at such time. With respect to any conversion prior to
October 1, 2011, the “Specified Percentage” shall be 4.9%, and
with respect to any conversion thereafter until Stated Maturity, the Specified
Percentage shall be 9.9%. Any purported delivery of shares of Common
Stock upon conversion of Notes shall be void and have no effect to the
extent
(but only to the extent) that such delivery would result in any Person
becoming
the Beneficial Owner of more than the Specified Percentage of the shares
of
Common Stock outstanding at such time. If any delivery of shares of
Common Stock owed to any Person upon conversion is not made, in whole or
in
part, as a result of these limitations, the Company’s obligation to make such
delivery shall not be extinguished and it shall deliver such shares as
promptly
as practicable after, but in no event later than two Trading Days after,
any
such Person gives notice to the Company that such delivery would not result
in
any Person being the Beneficial Owner of more than the Specified Percentage
of
the shares of Common Stock outstanding at such time. For the
avoidance of doubt, the term “Beneficial Owner” as used in this
Section 10.03 shall not include (i) with respect to any Global Note, the
nominee of the Depositary or any Person having an account with the Depositary
or
its nominee or (ii) with respect to any Non-global Note, the Holder of
such
Non-global Note unless, in each case, such nominee, account holder or Holder
shall also be a Beneficial Owner with respect to such Note.
Section
10.04 Cash
Settlement Option
Upon
conversion, the Company shall have the right to deliver, in lieu of shares
of
Common Stock, cash or a combination of cash and Common Stock. The
Company shall inform converting Holders through the Trustee no later than
the
Business Day prior to the first day of the Conversion Averaging Period if
it
elects to pay cash in lieu of delivering shares of Common Stock and shall
specify in such notice the percentage of the shares of Common Stock that
would
otherwise be deliverable for which it will pay cash, unless it has already
informed the Holders of its election in a notice of redemption pursuant to
Section 3.03.
If
the
Company elects to pay cash upon conversion, such payment will be based on
the
Conversion Average Price of the Common Stock. If the Company elects
cash settlement, the Conversion Settlement Date on which it will deliver
to
converting Holders the cash and shares of Common Stock, if any, together
with
the cash or shares, if applicable, with respect to any Redemption Make Whole
Amount, shall be the third Business Day following the determination of the
Conversion Average Price. The Company shall also deliver cash in lieu
of any fractional shares of Common Stock issuable in connection with any
conversion of Notes based upon the Conversion Average Price.
Section
10.05 Fractions
of Shares.
No
fractional shares of Common Stock shall be issued upon conversion of any
Note or
Notes. If more than one Note shall be surrendered for conversion at
one time by the same Beneficial Owner, the number of full shares which shall
be
issuable upon conversion thereof shall be computed on the basis of the aggregate
Principal Amount of the Notes (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock which
would otherwise be issuable upon conversion of any Note or Notes (or specified
portions thereof), unless Section 10.04 shall apply, the Company shall
calculate and pay a cash adjustment in respect of such fraction (calculated
to
the nearest 1/100th of a share) in an amount equal to the
48
same
fraction of the Sale Price at the close of business on the Conversion Date
(or
round up the number of shares of Common Stock issuable upon conversion
of any
Note or Notes to the nearest whole share).
Section
10.06 Exchange
in Lieu of Conversion
When
a
Holder surrenders Notes for conversion, the Company may, unless it has called
the relevant Notes for redemption, direct the Conversion Agent to surrender,
on
or prior to the date two Business Days following the Conversion Date, such
Notes
to a financial institution designated by the Company for exchange in lieu
of
conversion. The Company must notify such financial institution of the
applicable Conversion Date. In order to accept any such Notes, the
designated institution must agree to deliver, in exchange for such Notes,
a
number of shares of Common Stock equal to the Conversion Rate in effect at
such
time, or at its option, cash or a combination of cash and shares of Common
Stock
in lieu thereof, calculated based on the Conversion Average Price, plus cash
for
any fractional shares.
If
the
designated institution accepts any such Notes, it will deliver the appropriate
number of shares of Common Stock (and cash, if any), or cash in lieu thereof,
to
the Conversion Agent and the Conversion Agent will deliver those shares or
cash
to the Holder. Any Notes exchanged by the designated institution will
remain outstanding. If the designated institution agrees to accept
any Notes for exchange but does not timely deliver the related consideration,
the Company will, as promptly as practical thereafter, but not later than
(1)
the fifth Business Day following the Conversion Date, or (2) if the designated
institution elects to deliver cash or a combination of cash and shares of
Common
Stock, the third Business Day following the determination of the Conversion
Average Price, convert the Notes and deliver shares of Common Stock, or,
at the
Company’s option cash in lieu thereof based on such Conversion Average
Price.
If
the
designated institution declines to accept any Notes surrendered for exchange,
the Company will convert those Notes into shares of Common Stock, or cash
in
lieu thereof at the option of the Company.
Section
10.07 Adjustment
of Conversion Rate.
The
Conversion Rate shall be subject to adjustments from time to time as
follows:
(a) In
case
the Company shall pay or make a dividend or other distribution in shares
of
Common Stock, or shall effect a subdivision into a greater number of shares
or
Common Stock or a combination into a lesser number of shares of Common Stock,
the Conversion Rate in effect at the opening of business on the day following
the Ex-date for such dividend or other distribution, or for such subdivision
or
combination, as the case may be, shall be adjusted based on the following
formula:
CR1
= CR0 x OS1
OS0
49
where,
|
CR0
=
|
the
Conversion Rate in effect immediately prior to the Ex-date for
such
dividend or distribution, or the effective date of such subdivisions
or
combinations of the Common Stock, as the case may
be
|
|
CR1
=
|
the
Conversion Rate in effect immediately after the Ex-date for such
dividend
or distribution, or the effective date of such subdivisions or
combinations of the Common Stock, as the case may
be
|
|
OS0
=
|
the
number of shares of Common Stock outstanding immediately prior
to the
Ex-date for such dividend or distribution, or the effective date
of such
subdivisions or combinations of the Common Stock, as the case may
be
|
|
OS1
=
|
the
number of shares of Common Stock that would be outstanding immediately
after such dividend or distribution, or the effective date of such
subdivisions or combinations of the Common Stock, as the case may
be
|
If,
after
any such Ex-date, any dividend or distribution is not in fact paid or the
outstanding shares of Common Stock are not subdivided or combined, as the
case
may be, the Conversion Rate shall be immediately readjusted, effective as
of the
date the Board of Directors determines not to pay such dividend or distribution,
or subdivide or combine the outstanding shares of Common Stock, as the case
may
be, to the Conversion Rate that would have been in effect if such Ex-date
had
not been fixed.
(b) In
case
the Company shall issue rights or warrants to all holders of its Common Stock
entitling them to subscribe for or purchase shares of Common Stock for a
period
expiring 45 days or less from the date of issuance of such rights or warrants
at
a price per share less than the average of the Sale Prices of the Common
Stock
for the ten consecutive Trading Days prior to the Business Day immediately
preceding the announcement of the issuance of such rights, options or warrants,
the Conversion Rate in effect at the opening of business on the day following
the Ex-date shall be adjusted based on the following formula:
CR1
= CR0 x OS0+ X
OS0 + Y
where,
|
CR0
=
|
the
Conversion Rate in effect immediately prior to the Ex-date for
such
distribution
|
|
CR1
=
|
the
Conversion Rate in effect immediately after the Ex-date for such
distribution
|
|
OS0
=
|
the
number of shares of Common Stock outstanding immediately prior
to the
Ex-date of such distribution
|
|
X
=
|
the
total number of shares of Common Stock issuable pursuant to such
rights
|
50
|
|
Y
=
|
the
number of shares of Common Stock equal to the aggregate price payable
to
exercise such rights divided by the average of the Sale Prices
of the
Common Stock for the ten consecutive Trading Days ending on the
Business
Day immediately preceding the Ex-date for such
distribution
|
If,
after
any such Ex-date, any such rights, options or warrants are not in fact issued,
or are not exercised prior to the expiration thereof, the Conversion Rate
shall
be immediately readjusted, effective as of the date such rights, options
or
warrants expire, or the date the Board of Directors determines not to issue
such
rights, options or warrants, to the Conversion Rate that would have been
in
effect if the unexercised rights, options or warrants had never been granted
or
such Ex-date had not been fixed, as the case may be.
(c) In
case
the Company shall pay a dividend or distribution consisting exclusively of
cash
to all holders of its Common Stock, the Conversion Rate in effect at the
opening
of business on the day following the Ex-date for such dividend or distribution
shall be adjusted based on the following formula:
CR1
= CR0 x
SP0
SP0 - C
where,
|
CR0
=
|
the
Conversion Rate in effect immediately prior to the Ex-date for
such
distribution
|
|
CR1
=
|
the
Conversion Rate in effect immediately after the Ex-date for such
distribution
|
|
SP0
=
|
the
Current Market Price
|
|
C
=
|
|
the
amount in cash per share distributed by the Company to holders
of Common
Stock
|
In
the
event that C is greater than or equal to SP0, in lieu
of the
adjustment contemplated, Holders will be entitled to participate ratably
in the
cash distribution as though their Notes had been converted to shares of Common
Stock on the applicable date of calculation for the amounts to be received
by
holders of Common Stock. If after any such Ex-date, any such dividend
or distribution is not in fact made, the Conversion Rate shall be immediately
readjusted, effective as of the date of the Board of Directors determines
not to
make such dividend or distribution, to the Conversion Rate that would have
been
in effect if such Ex-date had not been fixed.
(d) In
case
the Company shall, by dividend or otherwise, distribute to all holders of
its
Common Stock evidences of its indebtedness, shares of any class of capital
stock
or other property (including cash or assets or securities, but excluding
(i) any
rights, options or warrants referred to in Section 10.07(b), (ii) any
dividend or distribution paid exclusively in cash, (iii) any dividend or
distribution referred to in Section 10.07(a) or 10.07(e), and (iv) mergers
or consolidations to which Section 10.15 applies), the Conversion Rate in
effect at the opening of
51
business
on the day following the Ex-date for such dividend or distribution shall
be
adjusted based on the following formula:
CR1
= CR0 x
SP0
SP0 - FMV
where,
|
CR0
=
|
the
Conversion Rate in effect immediately prior to the Ex-date for
such
distribution
|
|
CR1
=
|
the
Conversion Rate in effect immediately after the Ex-date for such
distribution
|
|
SP0
=
|
the
Current Market Price
|
|
FMV
=
|
the
fair market value (as determined by the Board of Directors) of
the shares
of capital stock, evidences of indebtedness, assets or property
distributed with respect to each outstanding share of Common Stock
on the
Ex-date for such distribution
|
In
the
event that FMV is greater than or equal to SP0, in lieu
of the
adjustment contemplated, Holders will be entitled to participate ratably
in the
relevant distribution as though their Notes had been converted to shares
of
Common Stock on the applicable date of calculation for the amounts to be
received by holders of Common Stock. If after any such Ex-date, any
such dividend or distribution is not in fact made, the Conversion Rate shall
be
immediately readjusted, effective as of the date of the Board of Directors
determines not to make such dividend or distribution, to the Conversion Rate
that would have been in effect if such Ex-date had not been fixed.
Rights
or
warrants distributed by the Company to all holders of Common Stock entitling
the
holders thereof to subscribe for or purchase shares of the Company’s Capital
Stock (either initially or under certain circumstances), which rights or
warrants, until the occurrence of a specified event or events (“Trigger
Event”):
(i) are
deemed to be transferred with such shares of Common Stock,
(ii) are
not exercisable, and
(iii) are
also issued in respect of future issuances of Common Stock
shall
be
deemed not to have been distributed for purposes of this Section 10.07(d)
(and no adjustment to the Conversion Rate under this Section 10.07(d) will
be required) until the occurrence of the earliest Trigger Event. If
such right or warrant is subject to subsequent events, upon the occurrence
of
which such right or warrant shall become exercisable to purchase different
securities, evidences of indebtedness or other assets or entitle the holder
to
purchase a different number or amount of the foregoing or to purchase any
of the
foregoing at a different purchase price, then the occurrence of each such
event
shall be deemed to be the date of issuance
52
and
Ex-date with respect to a new right or warrant (and a termination or expiration
of the existing right or warrant without exercise by the holder
thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event
(of the
type described in the preceding sentence) with respect thereto, that resulted
in
an adjustment to the Conversion Rate under this
Section 10.07(d):
(l) in
the case of any such rights or warrants that shall all have been redeemed
or
repurchased without exercise by any holders thereof, the Conversion Rate
shall
be readjusted upon such final redemption or repurchase to give effect to
such
distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price received
by
a holder of Common Stock with respect to such rights or warrant (assuming
such
holder had retained such rights or warrants), made to all holders of Common
Stock as of the date of such redemption or repurchase, and
(2) in
the case of such rights or warrants all of which shall have expired or been
terminated without exercise, the Conversion Rate shall be readjusted as if
such
rights and warrants had never been issued.
For
purposes of this Section 10.07(d) and Section 10.07(a) and 10.07(b),
any dividend or distribution to which this Section 10.07(d) applies that
also includes shares of Common Stock or a subdivision or combination of Common
Stock to which Section 10.07(a) applies, or rights or warrants to subscribe
for or purchase shares of Common Stock to which Section 10.07(b) applies
(or any combination thereof), shall be deemed instead to be:
(1) a
dividend or distribution of the evidences of indebtedness, assets, shares
of
capital stock, rights or warrants other than such shares of Common Stock,
such
subdivision or combination or such rights or warrants to which
Section 10.07(a) and 10.07(b) apply, respectively (and any Conversion Rate
increase required by this 10.07(d) with respect to such dividend or distribution
shall then be made), immediately followed by
(2) a
dividend or distribution of such shares of Common Stock, such subdivision
or
combination or such rights or warrants (and any further Conversion Rate increase
required by Section 10.07(a) and 10.07(b) with respect to such dividend or
distribution shall then be made), except that any shares of Common Stock
included in such dividend or distribution shall not be deemed “outstanding at
the close of business on the Ex-date” within the meaning of
Section 10.07(a) and any reduction or increase in the number of shares of
Common Stock resulting from such subdivision or combination shall be disregarded
in connection with such dividend or distribution.
53
(e) In
case
the Company shall, by dividend or otherwise, distribute to all holders of
its
Common Stock shares of Capital Stock of, or similar equity interests in,
a
Subsidiary or other business unit of the Company (a
“Spin-Off”), the Conversion Rate in effect immediately before
5:00 p.m. New York City time, on the fifteenth Trading Day immediately
following, and including, the effective date of the Spin-Off shall be increased
based on the following formula:
CR1
= CR0 x FMV0 +
MP0
MP0
where,
|
CR0
=
|
the
Conversion Rate in effect immediately prior to the fifteenth Trading
Day
immediately following, and including, the effective date of the
Spin-Off
|
|
CR1
=
|
the
Conversion Rate in effect immediately after the fifteenth Trading
Day
immediately following, and including, the effective date of the
Spin-Off
|
|
FMV0
=
|
the
average of the Sale Prices of the Capital Stock or similar equity
interest
distributed to holders of Common Stock applicable to one share
of Common
Stock over the 10 Trading Days immediately following, and including,
the
fifth Trading Day immediately following the effective date of the
Spin-Off
|
|
MP0
=
|
the
average of the Sale Prices of the Common Stock on the 10 consecutive
Trading Day period immediately following, and including, the fifth
Trading
Day immediately following the effective date of the
Spin-Off
|
(f) In
case
the Company or any Subsidiary purchases all or any portion of the Common
Stock
pursuant to a tender offer or exchange offer and the cash and value of any
other
consideration included in the payment per share of the Common Stock exceeds
the
Current Market Price per share on the Trading Day next succeeding the last
date
on which tenders or exchanges may be made pursuant to such tender or exchange
offer (the “Expiration Date”), the Conversion Rate shall be
will be adjusted based on the following formula:
CR1
= CR0 x FMV+ (SP1 x
OS1)
OS0 x SP1
where,
|
CR0
=
|
the
Conversion Rate in effect on the Expiration
Date
|
|
CR1
=
|
the
Conversion Rate in effect immediately after the Expiration
Date
|
|
FMV
=
|
the
fair market value (as determined by the Board of Directors) of
the
aggregate value of all cash and any other consideration paid or
payable
for shares of
|
54
|
|
Common
Stock validly tendered or exchanged and not withdrawn as of the
Expiration
Date (the “Purchased
Shares”)
|
|
OS1
=
|
the
number of shares of Common Stock outstanding immediately after
the
Expiration Date less any Purchased
Shares
|
|
OS0
=
|
the
number of shares of Common Stock outstanding immediately after
the
Expiration Date, plus any Purchased
Shares
|
|
SP1
=
|
the
Sale Price of the Common Stock on the Trading Day next succeeding
the
Expiration Date
|
Such
increase (if any) shall become effective immediately prior to the opening
of
business on the Trading Day next succeeding the Expiration Date. In
the event that the Company is obligated to purchase shares pursuant to any
such
tender offer, but the Company is permanently prevented by applicable law
from
effecting any such purchases or all such purchases are rescinded, the Conversion
Rate shall again be adjusted to be the Conversion Rate that would then be
in
effect if such tender or exchange offer had not been made. If the
application of this Section 10.07(f) to any tender or exchange offer would
result in a decrease in the Conversion Rate, no adjustment shall be made
for
such tender or exchange offer under this Section 10.07(f).
(g) In
case
of a tender or exchange offer made by a Person other than the Company or
any
Subsidiary for an amount that increases the offeror’s ownership of Common Stock
to more than twenty-five percent (25%) of the Common Stock outstanding and
shall
involve the payment by such Person of consideration per share of Common Stock
having a fair market value (as determined by the Board of Directors, whose
determination shall be conclusive, and described in a resolution of the Board
of
Directors) that as of the last date (the
“OfferExpiration Date”) tenders or exchanges
may be made pursuant to such tender or exchange offer (as it shall have been
amended) exceeds the Sale Price per share of the Common Stock on the Trading
Day
next succeeding the Offer Expiration Date, and in which, as of the Offer
Expiration Date the Board of Directors is not recommending rejection of the
offer, the Conversation Rate shall be adjusted based on the following
formula:
CR1
= CR0 x FMV+ (SP1 x
OS1)
OS0 x SP1
where,
|
CR0
=
|
the
Conversion Rate in effect on the Offer Expiration
Date
|
|
CR1
=
|
the
Conversion Rate in effect immediately after the Offer Expiration
Date
|
|
FMV=
|
the
fair market value (as determined by the Board of Directors) of
the
aggregate consideration payable to holders of Common Stock based
on the
acceptance (up to any maximum specified in the terms of the tender
or
exchange offer) of all
|
55
|
shares
validly tendered or exchanged and not withdrawn as of the Expiration
Date
(the shares deemed so accepted, up to any such maximum, being
referred to
as the “Accepted Purchased
Shares”)
|
|
OS1
=
|
the
number of shares of Common Stock outstanding immediately after
the Offer
Expiration Date less any Accepted Purchased
Shares
|
|
OS0
=
|
the
number of shares of Common Stock outstanding immediately after
the Offer
Expiration Date, including any Accepted Purchased
Shares
|
Such
adjustment shall become effective immediately prior to the opening of business
on the Trading Day next succeeding the Offer Expiration Date. In the
event that such Person is obligated to purchase shares pursuant to any such
tender or exchange offer, but such Person is permanently prevented by applicable
law from effecting any such purchases or all such purchases are rescinded,
the
Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such tender or exchange offer had not been
made. Notwithstanding the foregoing, the adjustment described in this
Section 10.07(g) shall not be made if, as of the Offer Expiration Date, the
offering documents with respect to such offer disclose a plan or intention
to
cause the Company to engage in any transaction described in
Section 10.15.
(h) “Current
Market Price” of the Common Stock on any day means the average of the
Sale Price of the Common Stock for each of the 10 consecutive Trading Days
ending on the earlier of the day in question and the day before the Ex-date
with
respect to the issuance or distribution requiring such computation.
(A) Notwithstanding
the foregoing, whenever successive adjustments to the Conversion Rate are
called
for pursuant to this Section 10.07, such adjustments shall be made to the
Current Market Price as may be necessary or appropriate to effectuate the
intent
of this Section 10.07 and to avoid unjust or inequitable results as
determined in good faith by the Board of Directors.
(i) “Ex-date,”
when used:
(A) with
respect to any issuance or distribution, means the first date on which the
shares of the Common Stock trade on the applicable exchange or in the applicable
market, regular way, without the right to receive such issuance or
distribution;
(B) with
respect to any subdivision or combination of shares of Common Stock, means
the
first date on which the Common Stock trades regular way on such exchange
or in
such market after the time at which such subdivision or combination becomes
effective, and
56
(C) with
respect to any tender or exchange offer, means the first date on which the
Common Stock trades regular way on such exchange or in such market after
the
Expiration Date or Offer Expiration Date of such offer.
(j) “fair
market value” shall mean the amount that a willing buyer would pay a
willing seller in an arm’s length transaction.
(k) For
purposes of this Section 10.07, the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the Company
but shall include shares issuable in respect of scrip certificates issued
in
lieu of fractions of shares of Common Stock. The Company will not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
(l) Adjustments
to the Conversion Rate under this Section 10.07 shall be rounded to the
fourth decimal point and all other calculations under this Section 10.07
shall be made to the nearest cent or to the nearest one-hundredth of a share,
as
the case may be.
(m) The
Company may make increases in the Conversion Rate by any amount for any period
of at least 20 days. Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall give notice of the
increase to the Holders in the manner provided in Section 12.02 at least
fifteen (15) days prior to the date the increased Conversion Rate takes effect,
and such notice shall state the increased Conversion Rate and the period
during
which it will be in effect. The Company may make such increases in
the Conversion Rate, to the extent permitted by law and subject to applicable
rules of The Nasdaq Stock Market, in addition to the increases set forth
above,
as the Board of Directors deems advisable to avoid or diminish any income
tax to
holders of Common Stock resulting from any dividend or distribution of stock
(or
rights to acquire stock) or from any event treated as such for income tax
purposes.
(n) To
the
extent that the Company has a rights plan in effect upon conversion of the
Notes
into Common Stock, each converting Holder shall receive, in addition to shares
of Common Stock, the rights under the rights plan corresponding to the shares
of
Common Stock received upon conversion, unless prior to any conversion, the
rights shall have separated from the shares of Common Stock, in which case
the
Conversion Rate shall be adjusted as of the date of such separation as if
the
Company had distributed to all holders of Common Stock shares of the Company’s
Capital Stock, evidences of indebtedness or other property as provided in
Section 10.07(d) , subject to readjustment in the event of the expiration,
termination or redemption of such rights.
Section
10.08 Interest
Make Whole Upon Conversion.
Redemption
Make Whole Amount. Any holders who convert Notes after a notice
of redemption has been sent pursuant to the terms of Article 3 and prior
to
October 1, 2012 shall receive, for each $1,000 Principal Amount of Notes
converted, in addition to a number of shares of Common Stock determined pursuant
to Section 10.01, or cash in lieu thereof pursuant to Section 10.04,
the Redemption Make Whole Amount. The “Redemption Make Whole
Amount” shall equal the present value of the interest on the Notes
converted that would have
57
been
payable for the period from and including the Redemption Date, to but excluding
October 1, 2012.
The
Redemption Make Whole Amount shall be calculated by discounting the amount
of
such interest on a semi-annual basis using a discount rate equal to 3.0%
plus
the arithmetic mean of the yields under the respective headings “This Week” and
“Last Week” published in the Statistical Release under the caption “Treasury
Constant Maturities” for the maturity (rounded to the nearest month)
corresponding to the period from and including the Redemption Date to but
excluding October 1, 2012. If no maturity exactly corresponds to such
maturity, yields for the two published maturities most closely corresponding
to
such maturity shall be calculated pursuant to the immediately preceding sentence
and the applicable rate shall be interpolated or extrapolated from such yields
on a straight-line basis, rounding in each of such relevant periods to the
nearest month. For the purpose of calculating the applicable rate,
the most recent Statistical Release published prior to the date of determination
of the Redemption Make Whole Amount shall be used.
The
term
“Statistical Release” shall mean the statistical release
designated “H.15(519)” or any successor publication which is published weekly by
the Federal Reserve System and which establishes yields on actively traded
U.S.
government securities adjusted to constant maturities or, if such statistical
release is not published at the time of any determination under this
Section 10.08 , then such other reasonably comparable index that the
Company shall designate.
The
Company may pay the Redemption Make Whole Amount in cash or in shares of
Common
Stock, with the number of such shares determined based on the average of
the
Sale Prices of the Common Stock over the ten Trading Days immediately preceding
the applicable Conversion Date. If the Company elects to pay the
Redemption Make Whole Amount in shares of Common Stock, the number of shares
deliverable by the Company, together with the shares of Common Stock deliverable
upon conversion pursuant to Section 10.01, shall not exceed 381.4028 shares
of Common Stock per $1,000 Principal Amount of Notes, subject to the same
adjustments as the Conversion Rate pursuant to Section 10.07 and
Section 10.15, and the Company shall deliver cash with respect to the
remainder of the Redemption Make Whole Amount, if any.
Section
10.09 Notice
of Adjustments of Conversion Rate.
Whenever
the Conversion Rate is adjusted as herein provided:
(a) the
Company shall compute the adjusted Conversion Rate in accordance with
Section 10.07 and shall prepare a certificate signed by the Chief Financial
Officer of the Company setting forth the adjusted Conversion Rate and showing
in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall promptly be filed with the Trustee and with each Conversion
Agent; and
(b) upon
each
such adjustment, a notice stating that the Conversion Rate has been adjusted
and
setting forth the adjusted Conversion Rate shall be required, and as soon
as
practicable after it is required, such notice shall be provided by the Company
to all Holders in
58
accordance
with Section 12.02. Neither the Trustee nor any Conversion Agent
shall be under any duty or responsibility with respect to any such certificate
or the information and calculations contained therein, except to exhibit
the
same to any Holder of Notes desiring inspection thereof at its office during
normal business hours, and shall not be deemed to have knowledge of any
adjustment in the Conversion Rate unless and until a Responsible Officer
of the
Trustee shall have received such a certificate. Until a Responsible
Officer of the Trustee receives such a certificate, the Trustee and each
Conversion Agent may assume without inquiry that the last Conversion Rate
of
which the Trustee has knowledge of remains in effect.
Section
10.10 Notice
of Certain Corporate Action.
In
case:
(1) the
Company shall declare a dividend (or any other distribution) on its Common
Stock; or
(2) the
Company shall authorize the granting to all or substantially all of the holders
of its Common Stock of rights, options or warrants to subscribe for or purchase
any shares of capital stock of any class or of any other rights; or
(3) of
any reclassification of the Common Stock, or of any consolidation, merger
or
share exchange to which the Company is a party and for which approval of
any
stockholders of the Company is required, or of the conveyance, sale, transfer
or
lease of the assets of the Company and its Subsidiaries substantially as
an
entirety; or
(4) of
the voluntary or involuntary dissolution, liquidation or winding up of the
Company;
then
the
Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of Notes pursuant to Section 4.02, and shall cause to
be provided to all Holders in accordance with Section 12.02, at least 20
days (or 10 days in any case specified in clause (1) or (2) above) prior
to the
applicable record or effective date hereinafter specified, a notice stating
(x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights, options or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled
to
such dividend, distribution, rights, options or warrants are to be determined
or
(y) the date on which such reclassification, consolidation, merger, conveyance,
transfer, sale, lease, dissolution, liquidation or winding up is expected
to
become effective, and the date as of which it is expected that holders of
Common
Stock of record shall be entitled to exchange their shares of Common Stock
for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, conveyance, transfer, sale, lease, dissolution,
liquidation or winding up. Neither the failure to give such notice or
the notice referred to in the following paragraph nor any defect therein
shall
affect the legality or validity of the proceedings described in clauses (1)
through (4) of this Section 10.10. If at the time the Trustee
shall not be the conversion agent, a copy of such notice shall also forthwith
be
filed by the Company with the Trustee.
The
Company shall cause to be filed at the Corporate Trust Office and each office
or
agency maintained for the purpose of conversion of Notes pursuant to
Section 4.02, and shall
59
cause
to
be provided to all Holders in accordance with Section 12.02, notice of any
tender offer by the Company or any Subsidiary for all or any portion of
the
Common Stock at or about the time that such notice of tender offer is provided
to the public generally.
Section
10.11 Company
to Reserve Common Stock.
The
Company shall at all times reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock, for the purpose
of
effecting the conversion of Notes, the full number of shares of Common Stock
then issuable upon the conversion of all outstanding Notes.
Section
10.12 Taxes
on Conversions.
Except
as
provided in the next sentence, the Company will pay any and all taxes and
duties, excluding any taxes relating to the net or gross income or gain to
the
Holder on conversion, that may be payable in respect of the issue or delivery
of
shares of Common Stock on conversion of Notes pursuant hereto. The
Company shall not, however, be required to pay any tax or duty which may
be
payable in respect of any transfer involved in the issue and delivery of
shares
of Common Stock in a name other than that of the Holder of the Note or Notes
to
be converted, and no such issue or delivery shall be made unless and until
the
Person requesting such issue has paid to the Company the amount of any such
tax
or duty, or has established to the satisfaction of the Company that such
tax or
duty has been paid.
Section
10.13 Covenant
as to Common Stock.
The
Company agrees that all shares of Common Stock which may be delivered upon
conversion of Notes, upon such delivery, will have been duly authorized and
validly issued and will be fully paid and nonassessable and, except as provided
in Section 10.12, the Company will pay all taxes, liens and charges with
respect to the issue thereof.
Section
10.14 Cancellation
of Converted Notes.
Subject
to Section 10.06, all Notes delivered for conversion shall be delivered to
the
Trustee or its agent to be canceled by or at the direction of the Trustee,
which
shall dispose of the same as provided in Section 2.12.
Section
10.15 Provision
in Case of Consolidation, Merger or Sale of Assets.
In
case
of any recapitalization, reclassification or change in the Common Stock (other
than changes resulting from a subdivision or combination), a consolidation,
merger or combination of the Company with or into any other Person, any merger
of another Person with or into the Company (other than a merger which does
not
result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company) or any conveyance, sale,
transfer or lease of the consolidated assets of the Company and its Subsidiaries
substantially as an entirety, or any statutory share exchange, in each case
as a
result of which holders of Common Stock are entitled to receive stock, other
securities, other property or assets (including cash or any combination thereof)
with respect to or in exchange for the Common Stock, the Person formed by
such
consolidation or resulting from such merger or
60
which
acquires such assets, as the case may be, shall execute and deliver to
the
Trustee a supplemental indenture providing that the Holder of each Note
then
outstanding shall have the right thereafter, during the period such Note
shall
be convertible as specified in Section 10.01, to convert such Note only
into the kind and amount of securities, cash and other property receivable
upon
such recapitalization, reclassification, change, consolidation, merger,
combination, sale, lease, transfer or statutory share exchange by a holder
of
the number of shares of Common Stock of the Company into which such Note
might
have been converted immediately prior to such recapitalization,
reclassification, change, consolidation, merger, combination, sale, lease,
transfer or statutory share exchange, assuming such holder of Common Stock
of
the Company is not (A) a Person with which the Company consolidated or
merged
with or into or which merged into or with the Company or to which such
conveyance, sale, transfer or lease was made, as the case may be (a
“Constituent Person”), or (B) an Affiliate of a Constituent
Person. If the holders of the Common Stock have the right to elect
the kind or amount of securities, cash and other property receivable upon
such
consolidation, merger, conveyance, sale, transfer, or lease for each share
of
Common Stock of the Company held immediately prior to such recapitalization,
reclassification, change, consolidation, merger, combination, sale, lease,
transfer or statutory share exchange by others than a Constituent Person
or an
Affiliate thereof, then for the purpose of this Section 10.15 the kind and
amount of securities, cash and other property receivable upon such
recapitalization, reclassification, change, consolidation, merger, combination,
sale, lease, transfer or statutory share exchange by the holders of each
Non-electing Share shall be deemed to be the weighted average of the types
and
amounts received by such holders upon the occurrence of such transaction
or
event. Such supplemental indenture shall provide for adjustments
which, for events subsequent to the effective date of such supplemental
indenture, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 10.
The
above
provisions of this Section 10.15 shall similarly apply to successive
consolidations, mergers, conveyances, sales, transfers or
leases. Notice of the execution of such a supplemental indenture
shall be given by the Company to the Holder of each Note as provided in
Section 12.02 within 20 days after execution thereof. Neither
the Trustee nor any Conversion Agent shall be under any responsibility to
determine the correctness of any provisions contained in any such supplemental
indenture relating either to the kind or amount of shares of stock or other
securities or property or cash receivable by Holders of Notes upon the
conversion of their Notes after any such consolidation, merger, conveyance,
transfer, sale or lease or to any such adjustment, but may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected
in
relying upon, an Opinion of Counsel with respect thereto, which the Company
shall cause to be furnished to the Trustee.
Section
10.16 Responsibility
of Trustee for Conversion Provisions.
The
Trustee, subject to the provisions of Section 7.01, and any Conversion
Agent shall not at any time be under any duty or responsibility to any Holder
of
Notes to determine whether any facts exist which may require any adjustment
of
the Conversion Rate, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, herein or in
any
supplemental indenture provided to be employed, in making the same, or whether
a
supplemental indenture need be entered into. Neither the Trustee nor
any Conversion Agent shall be accountable with respect to the validity or
value
(or the kind or amount) of any
61
Common
Stock, or of any other Notes or property or cash, which may at any time
be
issued or delivered upon the conversion of any Note; and it or they do
not make
any representation with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to
make or
calculate any cash payment or to issue, transfer or deliver any shares
of Common
Stock or share certificates or other Notes or property or cash upon the
surrender of any Note for the purpose of conversion. Neither the
Trustee nor any Conversion Agent shall be responsible for any failure of
the
Company to comply with any of the covenants of the Company contained in
this
Article.
ARTICLE
11
REPURCHASE
OF NOTES AT THE OPTION OF THE HOLDER UPON A FUNDAMENTAL
CHANGE
Section
11.01 Right
to Require Repurchase upon a Fundamental Change.
(a) If
a
Fundamental Change occurs, each Holder shall have the right, at the Holder’s
option, to require the Company to repurchase, and upon the exercise of such
right the Company shall repurchase, for cash some or all of such Holder’s Notes
not theretofore called for redemption, or any portion of the Principal Amount
thereof that is equal to U.S. $1,000 or any integral multiple of
U.S. $1,000 in excess thereof (provided that no single Note may be
repurchased in part unless the portion of the Principal Amount of such Note
to
be outstanding after such repurchase is equal to U.S. $1,000 or integral
multiples of U.S. $1,000 in excess thereof). The Company shall
offer a payment (the “Fundamental Change Repurchase Price”)
equal to 100% of the Principal Amount of the Notes to be repurchased plus
any
accrued and unpaid interest to but excluding the Fundamental Change Repurchase
Date, unless such Fundamental Change Repurchase Date falls during a Record
Date
Period, in which case the Company will pay the full amount of accrued and
unpaid
interest payable on such Interest Payment Date to the holder of record at
the
close of business on the corresponding Regular Record Date. Whenever
in this Indenture there is a reference, in any context, to the Principal
Amount
of any Note as of any time, such reference shall be deemed to include reference
to the Fundamental Change Repurchase Price payable in respect of such Note
to
the extent that such Fundamental Change Repurchase Price is, was or would
be so
payable at such time, and express mention of the Fundamental Change Repurchase
Price in any provision of this Indenture shall not be construed as excluding
the
Fundamental Change Repurchase Price in those provisions of this Indenture
when
such express mention is not made.
(b) Within
20
days following any Fundamental Change, the Company shall mail or cause to
be
mailed a notice to each Holder (with a copy to the Trustee) describing the
transaction or transactions that constitute the Fundamental Change and
stating:
(i) the
repurchase date, which shall be a date specified by the Company that is not
less
than 20 nor more than 35 Business Days from the date such notice is mailed
(the
“Fundamental Change Repurchase Date”);
(ii) the
time by which the repurchase right must be exercised, which shall be the
close
of business on the Fundamental Change Repurchase Date;
62
(iii) the
Fundamental Change Repurchase Price;
(iv) a
description of the procedure which a Holder must follow to exercise a repurchase
right, and the place or places where, or procedures by which, such Notes
are to
be surrendered for payment of the Fundamental Change Repurchase
Price;
(v) that
on the Fundamental Change Repurchase Date the Fundamental Change Repurchase
Price will become due and payable upon each such Note designated by the Holder
to be repurchased, and that interest thereon shall cease to accrue on and
after
said date;
(vi) the
Conversion Rate then in effect, the date on which the right to convert the
Notes
to be repurchased will terminate (which shall be the close of business on
the
Business Day immediately preceding the Fundamental Change Repurchase Date)
and
the place or places where, or procedures by which, such Notes may be surrendered
for conversion;
(vii) the
place or places that the Note with the “Option of Holder to Purchase” as
specified on the reverse of the Note shall be delivered;
(viii) that
any Note not tendered shall continue to accrue interest;
(ix) that
Holders shall be entitled to withdraw their election if the Paying Agent
receives, prior to 5:00 p.m., New York City time on the Fundamental Change
Repurchase Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the Principal Amount of Notes delivered for
purchase, and a written statement that (a) states such Holder is withdrawing
its
election to have the Notes purchased, (b) if certificated Notes have been
issued, states the certificate number of the withdrawn Notes, (c) if the
Notes
are not certificated, contains such statements as required by the Depositary
and
(d) states the Principal Amount, if any, that remains subject to the Repurchase
Notice; and
(x) that
Holders whose Notes are being purchased only in part shall be issued new
Notes
equal in Principal Amount to the unpurchased portion of the Notes surrendered,
which unpurchased portion must be equal to $1,000 in Principal Amount or
an
integral multiple thereof.
No
failure of the Company to give the foregoing notices or defect therein shall
limit any Holder’s right to exercise a repurchase right or affect the validity
of the proceedings for the repurchase of Notes.
If
any of
the foregoing provisions or other provisions of this Section 11.01 are
inconsistent with applicable law, such law shall govern.
(c) To
exercise a repurchase right pursuant to this Section 11.01, a Holder shall
deliver to the Trustee on or before the Fundamental Change Repurchase Date
(i)
written notice (the “Repurchase Notice”) of the Holder’s
exercise of such right, which notice, if the Note is certificated, shall
be in
the form set forth on the reverse of the Note duly completed or, if the
63
Note
is
represented by a Global Note, shall set forth the name of the Holder, the
Principal Amount of the Notes to be repurchased (and, if any Note is to
repurchased in part, the certificate number thereof, the portion of the
Principal Amount thereof to be repurchased and the name of the Person in
which
the portion thereof to remain outstanding after such repurchase is to be
registered) and a statement that an election to exercise the repurchase
right is
being made thereby and (ii) the Notes with respect to which the repurchase
right
is being exercised. Holders may withdraw such election at any time
prior to 5:00 p.m., New York City time on the Fundamental Change Repurchase
Date. The right of the Holder to convert the Notes with respect to
which the repurchase right is being exercised shall continue until 5:00
p.m.,
New York City time on the Business Day prior to the Fundamental Change
Repurchase Date.
(d) In
the
event a repurchase right shall be exercised in accordance with the terms
hereof,
on the Fundamental Change Repurchase Date, the Company shall accept for payment
all Notes or portions thereof properly tendered, deposit with or pay or cause
to
be paid to the Trustee the Fundamental Change Repurchase Price in cash for
payment by the Trustee to the Holder on the Fundamental Change Repurchase
Date;
provided, however, that installments of interest that mature on or prior
to the
Fundamental Change Repurchase Date shall be payable in cash to the Holders
of
such Notes, or one or more Predecessor Notes, registered as such at the close
of
business on the relevant Regular Record Date; and deliver or cause to be
delivered to the Trustee the Notes so accepted together with an Officers’
Certificate stating the aggregate Principal Amount of Notes or portions thereof
being purchased by the Company.
(e) If
any
Note (or portion thereof) surrendered for repurchase shall not be so paid
on the
Fundamental Change Repurchase Date, the Principal Amount of such Note (or
portion thereof, as the case may be) shall, until paid, bear interest to
the
extent permitted by applicable law from the Fundamental Change Repurchase
Date
at the rate specified therein, and each Note shall remain convertible into
Common Stock until the Principal Amount of such Note (or portion thereof,
as the
case may be) shall have been paid or duly provided for.
(f) Any
Note
which is to be repurchased only in part shall be surrendered to the Trustee
(with, if the Company or the Trustee so requires, due endorsement by, or
a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or its attorney duly authorized
in
writing), and the Company shall execute, and the Trustee shall authenticate
and
mail (or cause to be transferred by book entry) to the Holder of such Note
without service charge, a new Note or Notes, containing identical terms and
conditions, each in an authorized denomination in aggregate Principal Amount
equal to and in exchange for the unrepurchased portion of the Principal Amount
of the Note so surrendered; provided that each such new Note shall be in
Principal Amount of $1,000 or an integral multiple thereof.
(g) All
Notes
delivered for repurchase shall be delivered to the Trustee to be canceled
at the
direction of the Trustee, which shall dispose of the same as provided in
Section 2.12.
(h) In
connection with any purchase of Notes pursuant to this Section 11.01, the
Company will comply with Rule 13e-4 under the Exchange Act to the extent
applicable at that time.
64
(i) No
Notes
may be purchased by the Company pursuant to this Section 11.01 if the
Principal Amount of the Notes has been accelerated, and such acceleration
has
not been rescinded on or prior to such date.
Section
11.02 Repurchase
of Notes at the Option of Holders.
(a) Each
Holder shall have the right, at such Holder’s option, to require the Company to
repurchase such Holder’s Notes, or any portion thereof that is an integral
multiple of $1,000 Principal Amount, in cash, on October 1, 2012, October
1,
2017 and October 1, 2022 (each a “Five Year Repurchase Date”),
at a repurchase price of 100% of the Principal Amount of the Notes being
repurchased, plus accrued and unpaid interest to, but excluding, the Five
Year
Repurchase Date. Notwithstanding the foregoing, if the Five Year
Repurchase Date is during the Record Date Period, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note was registered
at
the close of business on the applicable Regular Record Date and the amount
of
any such interest to be paid shall be excluded from the repurchase
price.
(b) Not
less
than 20 Business Days prior to each Five Year Repurchase Date, the Company
shall
mail or cause to be mailed to all Holders of record on such date (with a
copy to
the Trustee) a written notice to Holders setting forth the information specified
in this Section 11.02(b). Such notice shall:
(i) state
the
repurchase price and the Five Year Repurchase Date to which such notice
relates;
(ii) state
that Holders must exercise their right to elect to repurchase prior to 5:00
p.m., New York City time, on the Business Day immediately prior to the
applicable Five Year Repurchase Date;
(iii) include
a
form of Repurchase Notice;
(iv) state
the
name and address of the Trustee and any Paying Agent;
(v) state
the
Notes must be surrendered to the Paying Agent to collect the repurchase
price;
(vi) state
that a Holder may withdraw its Repurchase Notice if such Holder shall deliver
to
the Paying Agent, at any time prior to 5:00 p.m., New York City time, on
the
Business Day immediately prior to the applicable Five Year Repurchase Date,
a
notice of withdrawal stating the following: (A) the certificate numbers of
the
Notes to be withdrawn (if the Note is certificated) or that the notice of
withdrawal complies with the Applicable Procedures (if the Note is represented
by Global Note), (B) the Principal Amount of the withdrawn Notes and (C)
the
Principal Amount of Notes of such Holder, if any, that remains subject to
the
Repurchase Notice, which must be in Principal Amounts of $1,000 or an integral
multiple of $1,000;
(vii) that
the
notes are convertible pursuant to Article X and may be converted only if
the
Repurchase Notice is withdrawn in accordance with the terms of the
Indenture;
65
(viii) state
that, unless the Company defaults in making payment of the repurchase price,
interest on the Notes covered by any Repurchase Notice shall cease to accrue
on
and after the Five Year Repurchase Date; and
(ix) state
the CUSIP number of the Notes, if CUSIP numbers are then in use.
No
failure of the Company to give the foregoing notices and no defect therein
shall
limit the Holders’ repurchase rights or affect the validity of the proceedings
for the repurchase of the Notes.
(c) To
exercise a repurchase right pursuant to this Section 11.02, a Holder shall
deliver to the Paying Agent, during the period beginning 20 Business Days
prior
to the applicable Five Year Repurchase Date and ending at 5:00 p.m., New
York
City time, on the Business Day immediately prior to the applicable Five Year
Repurchase Date, (i) a Repurchase Notice in the form set forth on the reverse
of
the Note duly completed (if the Note is certificated) or stating the following
(if the Note is represented by a Global Note): (A) the certificate number
of the
Note which the Holder will deliver to be repurchased (if the Note is
certificated) or that the relevant Repurchase Notice complies with the
Applicable Procedures (if the Note is represented by Global Note), (B) the
portion of the Principal Amount of the Note which the Holder will deliver
to be
repurchased, which portion must be in Principal Amounts of $1,000 or an integral
multiple of $1,000 (provided that the remaining Principal Amount of
Notes not subject to repurchase must be in an integral multiple of $1,000)
and
(C) that such Note shall be repurchased as of the Five Year Repurchase Date
pursuant to the terms and conditions specified in the Note and in this
Indenture; together with (ii) such Notes duly endorsed for transfer (if the
Note
if certificated) or book entry transfer of such Note (if the Note is represented
by a Global Note). The delivery of such Note to the Paying Agent
with, or at any time after delivery of, the Repurchase Notice (together with
all
necessary endorsements) at the office of the Paying Agent shall be a condition
to the receipt by the Holder of the repurchase price therefor.
Holders
may withdraw such election if such Holder shall deliver to the Paying Agent,
at
any time prior to 5:00 p.m., New York City time, on the Business Day immediately
prior to the applicable Five Year Repurchase Date, a notice of withdrawal
stating the following: (A) the certificate numbers of the Notes to be withdrawn
(if the Note is certificated) or that the notice of withdrawal complies with
the
Applicable Procedures (if the Note is represented by Global Note), (B) the
Principal Amount of the withdrawn Notes and (C) the Principal Amount of Notes
of
such Holder, if any, that remains subject to the Repurchase Notice, which
must
be in Principal Amounts of $1,000 or an integral multiple of
$1,000.
(d) The
Company, if so requested, shall repurchase from the Holder thereof, pursuant
to
this Section 11.02, a portion of a Note, if the Principal Amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of
this Indenture that apply to the repurchase of all of a Note also apply to
the
repurchase of such portion of such Note.
(e) The
Paying Agent shall promptly notify the Company of the receipt by it of any
Repurchase Notice or written notice of withdrawal thereof.
66
(f) The
Company may arrange for a third party to purchase any Notes (provided that
the
Trustee is so notified by the Company promptly) for which the Company receives
a
valid Repurchase Notice that is not withdrawn, in the manner and otherwise
in
compliance with the requirements set forth herein. If a third party
purchases any Notes under these circumstances, interest will continue to
accrue
on those Notes and such Notes will continue to be outstanding after the Five
Year Repurchase Date. The third party subsequently may resell such
purchased Notes to other investors.
(g) Any
repurchase by the Company contemplated pursuant to the provisions of this
Section 11.02 shall be consummated by the delivery of the consideration to
be received by the Holder (i) on the Five Year Repurchase Date if the book-entry
transfer or delivery of the Notes to the Paying Agent is effected prior to
5:00
p.m., New York City time on the Business Day prior to the Five Year Repurchase
Date, and (ii) if delivered later, within two (2) Business Days following
the
time of the book-entry transfer or delivery of the Note. Payment of
the repurchase price for a Note for which a Repurchase Notice has been delivered
and not withdrawn is conditioned upon book-entry transfer or delivery of
the
Notes, together with necessary endorsements, to the Paying Agent.
(h) In
connection with any purchase of Notes pursuant to this Section 11.02, the
Company will comply with Rule 13e-4 under the Exchange Act to the extent
applicable at that time. If any of the foregoing provisions or other
provisions of this Section 11.02 are inconsistent with applicable law, such
law shall govern.
Section
11.03 Consolidation,
Merger, etc.
In
the
case of any consolidation, merger or combination of the Company with or into
any
other Person, any merger of another Person with or into the Company (other
than
a merger which does not result in any reclassification, conversion, exchange
or
cancellation of outstanding shares of Common Stock of the Company) or any
conveyance, sale, transfer or lease of the consolidated assets of the Company
and its Subsidiaries substantially as an entirety to which Section 10.15
applies, in which the Common Stock of the Company is changed or exchanged
as a
result into the right to receive shares of stock and other property or assets
(including cash) that includes shares of Common Stock of the Company or common
stock of another Person that are, or upon issuance will be, traded on a United
States national securities exchange or approved for trading on an established
automated over-the-counter trading market in the United States and such shares
constitute at the time such change or exchange becomes effective in excess
of
50% of the aggregate fair market value of such shares of stock and other
securities, property and assets (including cash) (as determined by the Company,
which determination shall be conclusive and binding), then the Person formed
by
such consolidation or resulting from such merger or combination or which
acquires the properties or assets (including cash) of the Company, as the
case
may be, shall execute and deliver to the Trustee a supplemental indenture
(which
shall comply with the Trust Indenture Act as in force at the date of execution
of such supplemental indenture) modifying the provisions of this Indenture
relating to the right of Holders to cause the Company to repurchase the Notes
following a Fundamental Change, including the applicable provisions of this
Article 11 and the definitions of the Common Stock and Change of Control,
as
appropriate, and such other related definitions set forth herein as determined
in good faith by the Company (which determination shall be conclusive and
binding), to make such provisions apply
67
in
the
event of a subsequent Fundamental Change to the common stock and the issuer
thereof if different from the Company and Common Stock of the Company (in
lieu
of the Company and the Common Stock of the Company).
ARTICLE
12
MISCELLANEOUS
Section
12.01 Trust
Indenture Act Controls.
If
any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by TIA ss. 318(c), the imposed duties shall control.
Section
12.02 Notices.
Any
notice or communication by the Company or the Trustee to the others is duly
given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others’
address:
If
to the
Company:
c/o
Charter Communications, Inc.
12405
Powerscourt Drive
St.
Louis, Missouri 63131
Telecopier
No.: (314) 965-8793
Attention:
Secretary
With
a
copy to:
Gibson,
Dunn & Crutcher LLP
200
Park
Avenue
New
York,
New York 10166
Telecopier
No.: (212) 351-4008
Attention:
Joerg H. Esdorn, Esq.
If
to the
Trustee:
The
Bank
of New York Trust Company, N.A.
Corporate
Trust Administration
2
North
LaSalle Street, Suite 1020
Chicago,
Illinois 60602
Fax: 312-827-8542
The
Company or the Trustee, by notice to the others may designate additional
or
different addresses for subsequent notices or communications.
68
All
notices and communications (other than those sent to Holders) shall be deemed
to
have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and the next Business Day after timely delivery to the courier,
if
sent by overnight air courier guaranteeing next day delivery.
Any
notice or communication to a Holder shall be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept
by the
Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the
TIA. Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other
Holders.
If
a
notice or communication is mailed in the manner provided above within the
time
prescribed, it is duly given, whether or not the addressee receives
it.
If
the
Company mails a notice or communication to Holders, it shall mail a copy
to the
Trustee and each Agent at the same time.
Section
12.03 Communication
by Holders of Notes with Other Holders of Notes.
Holders
may communicate pursuant to TIA ss. 312(b) with other Holders with respect
to
their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA
ss. 312(c).
Section
12.04 Certificate
and Opinion as to Conditions Precedent.
Upon
any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:
(a) an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.05)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(b) an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05) stating
that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.
Section
12.05 Statements
Required in Certificate or Opinion.
Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant
to
TIA ss. 314(a)(4)) shall comply with the provisions of TIA ss. 314(e)
and shall include:
(a) a
statement that the Person making such certificate or opinion has read such
covenant or condition;
69
(b) a
brief
statement as to the nature and scope of the examination or investigation
upon
which the statements or opinions contained in such certificate or opinion
are
based;
(c) a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a
statement as to whether or not, in the opinion of such Person, such condition
or
covenant has been satisfied.
Section
12.06 Rules
by Trustee and Agents.
The
Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section
12.07 No
Personal Liability of Directors, Officers, Employees, Members and
Stockholders.
No
director, officer, employee, incorporator, member or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under
the
Notes, this Indenture or for any claim based on, in respect of, or by reason
of,
such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes.
Section
12.08 Governing
Law.
THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS
INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY. EACH OF THE PARTIES HERETO
AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR
THE
NOTES.
Section
12.09 No
Adverse Interpretation of Other Agreements.
This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section
12.10 Successors.
All
agreements of the Company in this Indenture and the Notes, as the case may
be,
shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
70
Section
12.11 Severability.
In
case
any provision in this Indenture or the Notes, as the case may be, shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of
the remaining provisions shall not in any way be affected or impaired
thereby.
Section
12.12 Counterpart
Originals.
The
parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
Section
12.13 Table
of Contents, Headings, etc.
The
Table
of Contents, Cross-Reference Table and Headings of the Articles and Sections
of
this Indenture have been inserted for convenience of reference only, are
not to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions.
Section
12.14 Waiver
of
Jury Trial.
EACH
OF
THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.
Section
12.15 Force
Majeure.
In
no event shall the Trustee be
responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware)
services; it being understood that the Trustee shall use reasonable efforts
which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
ARTICLE
13
SATISFACTION
AND DISCHARGE
Section
13.01 Satisfaction
and Discharge of Indenture.
This
Indenture shall cease to be of further effect (except as to any surviving
rights
of registration of transfer or exchange or conversion of Notes herein expressly
provided for), and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge
of
this Indenture, when
71
(a) either
(i) all
Notes theretofore authenticated and delivered (other than (i) Notes which
have
been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.08 and (ii) Notes for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust,) have been delivered
to the
Trustee for cancellation; or
(ii) all
such Notes not theretofore delivered to the Trustee for cancellation have
become
due and payable and the Company has deposited or caused to be deposited with
the
Trustee as trust funds in trust for the purpose an amount sufficient to pay
and
discharge the entire indebtedness on such Notes not theretofore delivered
to the
Trustee for cancellation, for the Principal Amount (and premium, if any)
and
interest to the date of such deposit;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by
the
Company; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied
with. Notwithstanding the satisfaction and discharge of this
Indenture pursuant to this Article 14, the obligations of the Company to
the
Trustee, and the obligations of the Trustee under Section 13.02 shall
survive such satisfaction and discharge.
Section
13.02 Application
of Trust Money.
All
money
deposited with the Trustee pursuant to Section 13.01 shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent as
the
Trustee may determine, to the Persons entitled thereto, of the Principal
Amount
(and premium, if any) and interest for whose payment such money has been
deposited with the Trustee.
[Signatures
on following page]
72
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
CHARTER
COMMUNICATIONS, INC.
By: /s/
Jeffrey T.
Fisher
Name:
Jeffrey T. Fisher
Title: Executive
Vice President and ChiefFinancial Officer
By: /s/
Thomas M.
Degnan_______
Name:
Thomas M. Degnan
Title: Vice
President – Finance and CorporateTreasurer
THE
BANK
OF NEW YORK TRUST COMPANY, N.A., as trustee
By:
/s/ M.
Callahan
Name:
M.
Callahan
Title:
Vice President
SCHEDULE
A
EXHIBIT
A
{FACE
OF
NOTE}
FOR
PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF
1986,
AS AMENDED (THE “CODE”), THIS SECURITY MAY BE ISSUED WITH
ORIGINAL ISSUE DISCOUNT AND THE ISSUE DATE OF THIS SECURITY IS OCTOBER 2,
2007. THE COMPANY AGREES TO PROVIDE PROMPTLY TO THE HOLDER OF THIS
SECURITY, UPON WRITTEN REQUEST, THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE
DISCOUNT AND ISSUE DATE. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO
THE COMPANY AT THE FOLLOWING ADDRESS: CHARTER COMMUNICATIONS, INC, 12405
POWERSCOURT DRIVE, ST. LOUIS, MISSOURI 63131, ATTENTION: SENIOR VICE PRESIDENT,
INVESTOR RELATIONS.
{THE
FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH RESTRICTED NOTE:
THIS
SECURITY AND THE SHARES OF CLASS A COMMON STOCK OF CHARTER COMMUNICATIONS,
INC.
(THE “COMPANY’’) ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT’’), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE
RESTRICTION TERMINATION DATE’’) WHICH IS TWO YEARS AFTER THE LAST
ORIGINAL ISSUE DATE HEREOF, ONLY (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A’’),
TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER’’ AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING
MADE IN RELIANCE ON RULE 144A, OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.}
{THE
FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL NOTE:
THIS
NOTE
IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND
IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY,
WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS
OWNER
AND HOLDER OF THIS NOTE FOR ALL PURPOSES.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE
REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE INDENTURE,
THIS
GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.}
CHARTER
COMMUNICATIONS, INC.
6.50%
Convertible Senior Notes due 2027
CUSIP
NO.
16117M AF4
No.
R-
Principal
Amount:
${ }
CHARTER
COMMUNICATIONS, INC., a Delaware corporation (the “Company”,
which term includes any successor corporation under the Indenture hereinafter
referred to) promises to pay to or registered assigns, the Principal Amount
(as
defined in the Indenture referred to on the reverse side of this Note) on
October 1, 2027.
Interest
Payment Dates: April 1 and October 1
Regular
Record Dates: March 15 and September 15
Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect
as
if set forth at this place.
Dated:
October 2, 2007
CHARTER
COMMUNICATIONS,
INC.
By:
Name:
Thomas M. Degnan
Title:
Vice President – Finance and Corporate Treasurer
By:
Name:
Jeffrey T. Fisher
Title:
Executive Vice President and Chief Financial Officer
This
is
one of the 6.50% Convertible Senior Notes due 2027 referred to in the
within-mentioned Indenture:
THE
BANK
OF NEW YORK TRUST COMPANY, N.A., as Trustee
By:
Authorized
Signatory:
{BACK
OF
NOTE}
6.50%
Convertible Senior Notes due 2027
Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1. INTEREST. The
Company promises to pay interest on the Principal Amount of this Note at
the
rate of 6.50% per annum from October 2, 2007 until Maturity. The
Company will pay interest semi-annually in arrears on April 1 and October
1 of
each year (each an “Interest Payment Date”), or if any such day
is not a Business Day, on the next succeeding Business Day. Interest
on the Notes will accrue from the most recent date to which interest has
been
paid or, if no interest has been paid, from the date of issuance; provided
that
if there is no existing Default in the payment of interest, and if this Note
is
authenticated between a Regular Record Date referred to on the face and the
next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date. The first Interest Payment Date
shall be April 1, 2008. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that
is 1%
per annum in excess of the rate then in effect; and it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy
Law) on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD
OF PAYMENT. The Company shall pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at
the
close of business on the March 15 or September 15 immediately preceding the
Interest Payment Date, even if such Notes are canceled after such Regular
Record
Date and on or before such Interest Payment Date, except as provided in
Section 2.13 of the Indenture with respect to defaulted
interest. The Notes will be payable as to Principal Amount, premium,
if any, and interest at the office or agency of the Company maintained for
such
purpose within or without the City and State of New York, or, at the option
of
the Company, payment of interest may be made by check mailed to the Holders
at
their addresses set forth in the Note Register, and provided that payment
by
wire transfer of immediately available funds will be required with respect
to
principal of and interest and premium on all Global Notes and all other Notes
the Holders of which shall have provided wire transfer instructions to the
Company or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
3. PAYING
AGENT, REGISTRAR AND CONVERSION AGENT. Initially, The Bank of New
York Trust Company, N.A., the Trustee under the Indenture, will act as Paying
Agent, Registrar and Conversion Agent. The Company may change any
Paying Agent, Registrar or Conversion Agent without notice to any
Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The
Company issued the Notes under an Indenture dated as of October 2, 2007 (the
“Indenture”) between the Company and the
Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the TIA. The
Notes are subject to all such terms, and Holders are referred to the Indenture
and the TIA for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The
Notes are obligations of the Company. The aggregate Principal Amount
of Notes that may be outstanding under the Indenture is unlimited; provided
that
upon initial issuance, the aggregate Principal Amount of Notes outstanding
shall
not exceed $479,168,000, except as provided in Section 2.08 of the
Indenture.
5. OPTIONAL
REDEMPTION. Prior to October 1, 2010, the Company may redeem the
Notes, in whole or in part, for cash at a price (the “Redemption
Price”) equal to 100% of the Principal Amount of such Notes plus
accrued and unpaid interest, if any, on such Notes to, but excluding, the
Redemption Date, but only if the Sale Price of the Common Stock has exceeded,
for at least 20 Trading Days in any consecutive 30 Trading Day period ending
on
the date the Company gives such notice, 180% of the Conversion Price on each
such Trading Day. Commencing on, and including, October 1, 2010
until, but excluding, October 1, 2012, the Company may redeem the Notes,
in
whole or in part, for cash at the Redemption Price, but only if the Sale
Price
of the Common Stock has exceeded, for at least 20 Trading Days in any
consecutive 30 Trading Day period ending on the date the Company gives such
notice, 150% of the Conversion Price on each such Trading Day. On and
after October 1, 2012, the Company may redeem the Notes, in whole or in part,
for cash at the Redemption Price.
6. NOTICE
OF REDEMPTION. Notice of redemption will be mailed by first class
mail at least 30 days but not more than 60 days before the Redemption Date
to
each Holder whose Notes are to be redeemed at its registered
address. Notices of redemption may not be conditional. No
Notes of $1,000 Principal Amount or less may be redeemed in
part. Notes in denominations larger than $1,000 Principal Amount may
be redeemed in part but only in whole multiples of $1,000 Principal Amount,
unless all of the Notes held by a Holder are to be redeemed. On and
after the Redemption Date, interest ceases to accrue on Notes or portions
thereof called for redemption.
7. MANDATORY
REDEMPTION. Except as otherwise provided in Article 11 of the
Indenture, the Company shall not be required to make mandatory redemption
payments with respect to the Notes.
8. REPURCHASE
AT OPTION OF HOLDER. If a Fundamental Change occurs, the Company
shall, in accordance with the terms of the Indenture, make an offer to
repurchase for cash all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder’s Notes at a purchase price equal to 100% of the
Principal Amount of the Notes to be purchased, plus any accrued and unpaid
interest to but excluding the Fundamental Change Repurchase Date, unless
such
Fundamental Change Repurchase Date falls after a Regular Record Date and
on or
prior to the corresponding Interest Payment Date, in which case the Company
will
pay the full amount of accrued and unpaid interest payable on such Interest
Payment Date to the holder of record at the close of business on the
corresponding Regular Record Date. Within 20 days following any
Fundamental Change, the Company shall mail a notice to each Holder describing
the transaction
or
transactions that constitute the Fundamental Change and offering to repurchase
Notes on the Fundamental Change Repurchase Date specified in such notice,
pursuant to the procedures required by the Indenture and described in such
notice.
In
addition, each Holder shall have the right, at such Holder’s option, to require
the Company to repurchase such Holder’s Notes, or any portion thereof that is an
integral multiple of $1,000 Principal Amount, in cash, on October 1, 2012,
October 1, 2017 and October 1, 2022, at a repurchase price of 100% of the
Principal Amount of the Notes being repurchased, plus accrued and unpaid
interest to, but excluding, the Five Year Repurchase Date unless such Five
Year
Repurchase Date falls after a Regular Record Date and on or prior to the
corresponding Interest Payment Date, in which case the Company will pay the
full
amount of accrued and unpaid interest payable on such Interest Payment Date
to
the holder of record at the close of business on the corresponding Regular
Record Date. Not less than 20 Business Days prior to each Five Year
Repurchase Date, the Company shall mail a a written notice of repurchase
in the
form set forth on the reverse of this Note.
9. DENOMINATIONS,
TRANSFER, EXCHANGE. The Notes are in registered form without coupons
in denominations of $1,000 Principal Amount and integral multiples of $1,000
Principal Amount. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder
to pay
any taxes and fees required by law or permitted by the Indenture.
10. PERSONS
DEEMED OWNERS. The registered Holder of a Note may be treated as its
owner for all purposes.
11. AMENDMENT
AND SUPPLEMENT. The Indenture or the Notes may be amended or
supplemented only as set forth in Article 9 of the Indenture.
12. DEFAULTS
AND REMEDIES. The Notes shall have the Events of Default set forth in
Section 6.01 of the Indenture. In the case of an Event of
Default set forth in Section 6.01(f) or (g), the Principal Amount of all
outstanding Notes will become due and payable without further action or
notice. If any other Event of Default occurs and is continuing, the
Trustee by notice to the Company or the Holders of at least 25% in Principal
Amount of the then outstanding Notes by notice to the Company and the Trustee
may declare the Principal Amount of all the Notes to be due and payable
immediately. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. Holders shall have such other
rights as set forth in Article 6 of the Indenture.
13. CONVERSION. Subject
to and upon compliance with the provisions of the Indenture, the Holder of
this
Note is entitled, at its option, to convert this Note (or any portion of
the
Principal Amount hereof that is an integral multiple of U.S.$1,000, provided
that the unconverted portion of such Principal Amount is U.S.$1,000 or any
integral multiple of U.S.$1,000 in excess thereof) into fully paid and
nonassessable shares of Common Stock of the Company at an initial Conversion
Rate of 293.3868 shares of Common Stock for each U.S.$1,000 Principal Amount
of
Notes (or at the current adjusted Conversion Rate if an
adjustment
has been made as provided in the Indenture), plus the Redemption Make Whole
Amount if required pursuant to the terms of the Indenture.
The
Conversion Rate is subject to adjustment as provided in the
Indenture.
14. TRUSTEE
DEALINGS WITH COMPANY. The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for
the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
15. NO
RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator
or stockholder of the Company, as such, shall not have any liability for
any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration
for the issuance of the Notes.
16. GOVERNING
LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS NOTE AND THE INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE
LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
17. AUTHENTICATION. This
Note shall not be valid until authenticated by the manual signature (which
may
be by facsimile) of the Trustee or an authenticating agent.
18. ABBREVIATIONS. Customary
abbreviations may be used in the name of a Holder or an assignee, such as:
TEN
COM (= tenants in common), TENANT (= tenants by the entireties), JT TEN (=
joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
19. CUSIP
NUMBERS. No representation is made as to the accuracy of any CUSIP
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
The
Company will furnish to any Holder upon written request and without charge
a
copy of the Indenture. Requests may be made to:
Charter
Communications, Inc.
12405
Powerscourt Drive
St.
Louis, Missouri 63131
Attention:
Secretary
Telecopier
No.: (314) 965-0555
Schedule
I
[Include
Schedule I only for a Global Note]
CHARTER
COMMUNICATIONS, INC.
6.50%
Convertible Senior Note Due 2027
No.
The
initial Principal Amount of this Global Note is $_________.
|
Date
|
Principal
Amount
|
Notation
Explaining Principal
Amount
Recorded
|
Authorized
Signature
of
Trustee or
Custodian
|
ASSIGNMENT
FORM
To
assign
this Note, fill in the form below:
(I)
or
(we) assign and transfer this Note
to:
(Insert
assignee’s legal name)
(Insert
assignee’s soc. sec. or tax I.D. no.)
(Print
or
type assignee’s name, address and zip code)
and
irrevocably appoint __________ to __________ transfer this Note on the books
of
the Company. The agent may substitute another to act for
him.
Date:
Your
Signature:
(Sign
exactly as your name appears on the face of this Note)
Signature
Guarantee*:
;
|
*
|
Participant
in a recognized Signature Guarantee Medallion Program (or other
signature
guarantor acceptable to the
Trustee).
|
CONVERSION
NOTICE
The
undersigned Holder of this Note hereby irrevocably exercises the option to
convert this Note, or any portion of the Principal Amount hereof (which is
U.S.$1,000 or an integral multiple of U.S.$1,000 in excess thereof, provided
that the unconverted portion of such Principal Amount is U.S.$1,000 or any
integral multiple of U.S.$1,000 in excess thereof) below designated, into
shares
of Common Stock in accordance with the terms of the Indenture referred to
in
this Note, and directs that such shares, together with a check in payment
for
any fractional share, any other amounts payable to the Holder in connection
with
such conversion and any Notes representing any unconverted Principal Amount
hereof, be delivered to and be registered in the name of the undersigned
unless
a different name has been indicated below. If shares of Common Stock
or Notes are to be registered in the name of a Person other than the
undersigned, (a) the undersigned will pay all transfer taxes payable with
respect thereto and (b) signature(s) must be guaranteed by an Eligible Guarantor
Institution with membership in an approved signature guarantee program pursuant
to Rule 17Ad-15 under the Notes Exchange Act of 1934. Any amount
required to be paid by the undersigned on account of interest accompanies
this
Note.
Dated: &
#160;
60;
Signature(s)
If
shares
or Notes are to be
registered
in the name of a
Person
other than the
Holder,
please print such
Person’s
name and address:
Name
____________________________________________________________
____________________________________________________________
(Address)
____________________________________________________________
Social
Security or other Identification Number, if any
____________________________________________________________
(Signature
Guaranteed)
If
only a
portion of the
Notes
is
to be converted,
please
indicate:
|
1.
|
Principal
Amount to be converted:
U.S. $
|
|
2.
|
Principal
Amount and denomination of Notes representing unconverted principal
amount
to be issued:
|
|
Amount:
U.S. $
Denominations:
U.S. $
|
(U.S.$1,000
or any integral multiple of U.S.$1,000 in excess thereof, provided that the
unconverted portion of such Principal Amount is U.S. $1,000 or any integral
multiple of U.S. $1,000 in excess thereof)
REPURCHASE
NOTICE
The
undersigned registered owner of this Note hereby irrevocably acknowledges
receipt of a notice from Charter Communications, Inc. (the
“Company”) regarding the right of Holders to elect to require
the Company to repurchase the Notes and requests and instructs the Company
to
repay the entire principal amount of this Note, or the portion thereof (which
is
$1,000 or an integral multiple thereof) below designated, in cash, in accordance
with the terms of the Indenture at the price of 100% of such entire principal
amount or portion thereof, together with accrued and unpaid interest to,
but
excluding, the Five Year Repurchase Date, to the registered holder
hereof. Capitalized terms used herein but not defined shall have the
meanings ascribed to such terms in the Indenture. The Notes shall be
repurchased by the Company as of the Five Year Repurchase Date, pursuant
to the
terms and conditions specified in the Indenture.
Dated:
____________________ _________________________________________
Signature(s)
Social
Security or other Identification Number, if any
____________________________________
(Signature
Guaranteed)
If
only a
portion of the Notes
are
to be
repurchased, please
indicate:
|
1.
|
Principal
Amount to be repurchased:
U.S. $
|
|
2.
|
Principal
Amount and denomination of Notes representing unrepurchased Principal
Amount to be issued:
|
|
Amount:
U.S.
$
Denominations:
U.S. $
|
(U.S.$1,000
or any integral multiple of U.S.$1,000 in excess thereof, provided that the
unrepurchased portion of such Principal Amount is U.S. $1,000 or any
integral multiple of U.S. $1,000 in excess thereof)
ANNEX
A — FORM OF RESTRICTED NOTES CERTIFICATE
RESTRICTED
NOTES CERTIFICATE
(For
transfers pursuant to Section 2.07(b)(ii) and 2.07(b)(iii) of the
Indenture)
The
Bank
of New York Trust Company, N.A.
2
North
LaSalle Street, Suite 1020
Chicago,
Illinois 60602
Attention:
Corporate Trust Services
Fax:
[ ]
Re:
6.50%
CONVERTIBLE SENIOR NOTES DUE 2027 OF CHARTER COMMUNICATIONS, INC. (THE
“NOTES”)
Reference
is made to the Indenture, dated as of October 2, 2007 (the
“Indenture”), from Charter Communications, Inc. (the
“Company”) to The Bank of New York Trust Company,
N.A., as
Trustee. Terms used herein and defined in the Indenture or Rule 144
under the U.S. Securities Act of 1933 (the “Securities Act”)
are used herein as so defined.
This
certificate relates to
U.S. $ Principal
Amount of Notes, which are evidenced by the following certificate(s) (the
“Specified Notes”):
CUSIP
No.
16117M AF4
CERTIFICATE
No(s). __________________
The
person in whose name this certificate is executed below (the
“Undersigned”) hereby certifies that either (i) it is the sole
beneficial owner of the Specified Notes or (ii) it is acting on behalf of
all
the beneficial owners of the Specified Notes and is duly authorized by them
to
do so. Such beneficial owner or owners are referred to herein
collectively as the “Owner”. If the Specified Notes are represented
by a Global Note, they are held through the Depositary or an Agent Member
in the
name of the Undersigned, as or on behalf of the Owner. If the
Specified Notes are not represented by a Global Note, they are registered
in the
name of the Undersigned, as or on behalf of the Owner.
The
Owner
has requested that the Specified Notes be transferred to a person (the
“Transferee”) who will take delivery in the form of a
Restricted Note. In connection with such transfer, the Owner hereby
certifies that such transfer is being effected pursuant to an effective
registration statement under the Securities Act or it is being effected in
accordance with Rule 144A, or pursuant to another exemption from registration
under the Securities Act (if available) or Rule 144 under the Securities
Act and
all applicable laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as
follows:
(1) Rule
144A Transfers. If the transfer is being effected in accordance
with Rule 144A:
(A) the
Specified Notes are being transferred to a person that the Owner and any
person
acting on its behalf reasonably believe is a “qualified institutional buyer”
within the meaning of Rule 144A, acquiring for its own account or for the
account of a qualified institutional buyer; and
(B) the
Owner and any person acting on its behalf have taken reasonable steps to
ensure
that the Transferee is aware that the Owner may be relying on Rule 144A in
connection with the transfer; and
(2) Rule
144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(A) the
transfer is occurring after a holding period of at least one year (computed
in
accordance with paragraph (d) of Rule 144) has elapsed since the date the
Specified Notes were acquired from the Company or from an affiliate (as such
term is defined in Rule 144) of the Company, whichever is later, and is being
effected in accordance with the applicable amount, manner of sale and notice
requirements of paragraphs (e), (f) and (h) of Rule 144; or
(B) the
transfer is occurring after a period of at least two years has elapsed since
the
date the Specified Notes were acquired from the Company or from an affiliate
(as
such term is defined in Rule 144) of the Company, whichever is later, and
the
Owner is not, and during the preceding three months has not been, an affiliate
of the Company.
(3) Transfers
Pursuant to Other Securities Act Exemptions. If the transfer is
being effected pursuant to a Securities Act exemption other than ones set
forth
in (1) or (2) above, there shall be delivered to the Company an opinion of
counsel with respect to such Owners.
This
certificate and the statements contained herein are made for your benefit
and
the benefit of the Company.
Dated:
Print
the
name of the Undersigned, as such term is defined in the second paragraph
of this
certificate.)
Dated:
Name:
Title:
(If
the
Undersigned is a corporation, partnership or fiduciary, the title of the
person
signing on behalf of the Undersigned must be stated.)
ANNEX
B — FORM OF UNRESTRICTED NOTES CERTIFICATE
UNRESTRICTED
NOTES CERTIFICATE
(For
removal of Restricted Notes Legend pursuant to
Section 2.07(c))
The
Bank
of New York Trust Company, N.A.
2
North
LaSalle Street, Suite 1020
Chicago,
Illinois 60602
Attention:
Corporate Trust Services
Fax:
[ ]
RE:
6.50%
CONVERTIBLE SENIOR NOTES DUE 2027 OF CHARTER COMMUNICATIONS, INC. (THE
“NOTES”)
Reference
is made to the Indenture, dated as of October 2, 2007 (the
“Indenture”), from Charter Communications, Inc. (the
“Company”) to The Bank of New York Trust Company,
N.A., as
Trustee. Terms used herein and defined in the Indenture or in Rule
144 under the U.S. Securities Act of 1933 (the
“SecuritiesAct”) are used herein as so
defined.
This
certificate relates to
U.S.$ Principal Amount of Notes,
which are evidenced by the following certificate(s) (the “Specified
Notes”):
CUSIP
No.
16117M AF4
CERTIFICATE
No(s).__________________
The
person in whose name this certificate is executed below (the
“Undersigned”) hereby certifies that either (i) it is the sole
beneficial owner of the Specified Notes or (ii) it is acting on behalf of
all
the beneficial owners of the Specified Notes and is duly authorized by them
to
do so. Such beneficial owner or owners are referred to herein
collectively as the “Owner”. If the Specified Notes are represented
by a Global Note, they are held through the Depositary or an Agent Member
in the
name of the Undersigned, as or on behalf of the Owner. If the
Specified Notes are not represented by a Global Note, they are registered
in the
name of the Undersigned, as or on behalf of the Owner.
The
Owner
has requested that the Specified Notes be exchanged for Notes bearing no
Restricted Notes Legend pursuant to Section 2.07(c) of the
Indenture. In connection with such exchange, the Owner hereby
certifies that the exchange is occurring (i) pursuant to an effective
registration statement under the Securities Act, or (ii) after a period of
at
least two years has elapsed since the date the Specified Notes were acquired
from the Company or from an “affiliate” (as such term is defined in Rule 144) of
the Company, whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company. The Owner
also acknowledges that any future transfers of the Specified Notes must comply
with all applicable Notes laws of the states of the United States and other
jurisdictions.
This
certificate and the statements contained herein are made for your benefit
and
the benefit of the Company.
Dated:
Print
the
name of the Undersigned, as such term is defined in the second paragraph
of this
certificate.)
Dated:
Name:
Title:
(If
the
Undersigned is a corporation, partnership or fiduciary, the title of the
person
signing on behalf of the Undersigned must be stated.)
ANNEX
C — FORM OF SURRENDER CERTIFICATE
In
connection with the certification contemplated by Section 10.02 relating to
compliance with certain restrictions relating to transfers of Restricted
Notes,
such certification shall be provided substantially in the form of the following
certificate, with only such changes thereto as shall be approved by the
Company:
CERTIFICATE
CHARTER
COMMUNICATIONS, INC.
6.50%
CONVERTIBLE SENIOR NOTES DUE 2027
This
is
to certify that as of the date hereof with respect to
U.S.$ Principal Amount of the above-captioned Notes
surrendered on the date hereof (the “Surrendered Notes”) for
registration of transfer, or for conversion or repurchase where the Notes
issuable upon such conversion or repurchase are to be registered in a name
other
than that of the undersigned Holder (each such transaction being a
“transfer”), the undersigned Holder (as defined in the
Indenture) certifies that the transfer of Surrendered Notes associated with
such
transfer complies with the restrictive legend set forth on the face of the
Surrendered Notes for the reason checked below:
|
The
transfer of the Surrendered Notes is being made pursuant to an
effective
registration statement under the Securities Act; or
|
||
|
The
transfer of the Surrendered Notes complies with Rule 144A under
the
Securities Act; or
|
||
|
The
transfer of the Surrendered Notes complies with Rule 144 under
the United
States Securities Act of 1933, as amended (the “Securities Act”);
or
|
||
|
The
transfer of the Surrendered Notes has been made pursuant to an
exemption
from registration under the Securities Act and an opinion of counsel
has
been delivered to the Company with respect to such
transfer.
|
{Name
of
Holder}
Dated:
|
*
|
To
be dated the date of surrender
|
____________
Exhibit
10.1
AMENDED
AND RESTATED SHARE LENDING AGREEMENT
Dated
as
of October 2, 2007
Between
CHARTER
COMMUNICATIONS, INC. (“Lender”),
and
CITIGROUP
GLOBAL MARKETS LIMITED (“Borrower”), through CITIGROUP GLOBAL
MARKETS INC., as agent for Borrower (“Agent”),
and
CITIGROUP
GLOBAL MARKETS HOLDINGS INC., as guarantor of Borrower’s obligations hereunder
(the “Guarantor”),
and
CITIGROUP
GLOBAL MARKETS INC., in its capacity as Collateral Agent (as hereinafter
defined).
WHEREAS,
in connection with the issuance by Lender of $862,500,000 aggregate principal
amount of 2009 Convertible Senior Notes (as defined herein), Lender, Borrower
and Guarantor entered into that certain Share Lending Agreement dated as of
November 22, 2004 (the “Share Lending Agreement”);
WHEREAS,
Lender, Borrower and Guarantor desire to amend and restate the Share Lending
Agreement in connection with an exchange offer (the “Exchange
Offer”) pursuant to which $363,847,000 aggregate principal amount of
2009 Convertible Notes are being exchanged for 2027 Convertible Notes (as
defined herein) in order to maintain and extend the Loans (as defined herein)
to
Borrower under the Share Lending Agreement;
WHEREAS,
Agent is entering into this Agreement solely in its capacity as Agent for
Borrower;
AND
WHEREAS, this AGREEMENT sets forth the terms and conditions under which Lender
and Borrower agree to maintain and extend the Loans made to Borrower under
the
Share Lending Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, hereby mutually
covenant and agree as follows:
Section
1. Certain Definitions. The following capitalized
terms shall have the following meanings:
“2009
Convertible Notes” means the $862,500,000 aggregate principal amount of
Convertible Senior Notes due 2009 issued by Lender.
“2027
Convertible Notes” means the $479,168,000 aggregate principal amount of
Convertible Senior Notes due 2027 issued by Lender.
“Business
Day” means a day on which regular trading occurs in the principal
trading market for the Common Stock.
“Cash”
means any coin or currency of the United States as at the time shall be legal
tender for payment of public and private debts.
“Clearing
Organization” means The Depository Trust Company, or, if agreed to by
Borrower and Lender, such other securities intermediary at which Borrower (or
Agent) and Lender maintain accounts.
“Closing
Price” on any day means, with respect to the Common Stock (i) if the
Common Stock is listed on a U.S. securities exchange registered under the
Exchange Act, is traded on The Nasdaq National Market or is included in the
OTC
Bulletin Board Service (operated by the National Association of Securities
Dealers, Inc.), the last reported sale price, regular way, in the principal
trading session on such day on such market on which the Common Stock is then
listed or is admitted to trading (or, if the day of determination is not a
Business Day, the last preceding Business Day) and (ii) if the Common Stock
is
not so listed or admitted to trading or if the last reported sale price is
not
obtainable (even if the Common Stock is listed or admitted to trading on such
market ), the average of the bid prices for the Common Stock obtained from
as
many dealers in the Common Stock (which may include Borrower or its affiliates),
but not exceeding three, as shall furnish bid prices available to the
Lender.
“Collateral”
means any Cash or Non-Cash Collateral. Each of the parties to this
Agreement hereby agree that Cash and each item within the definition of Non-Cash
Collateral shall be treated as a “financial asset” as defined by Section
8-102(a)(9) of the UCC.
“Collateral
Account” means a securities account of the Collateral Agent maintained
on the books of Citigroup Global Markets Inc., as Securities Intermediary,
and
designated “Citigroup Global Markets Inc., as Collateral Agent of Charter
Communications, Inc., as pledgee of Citigroup Global Markets Limited, as
Borrower of Loaned Shares”. Any Collateral deposited in the
Collateral Account shall be segregated from all other assets and property of
the
Collateral Agent, which such segregation may be accomplished by appropriate
identification on the books and records of Collateral Agent, as a “securities
intermediary” within the meaning of the UCC. The Securities
Intermediary
acknowledges
that the Collateral Account is maintained for the Collateral Agent and
undertakes to treat the Collateral Agent as entitled to exercise the rights
that
comprise the Collateral credited to the Collateral Account. The
Collateral Agent shall establish the Collateral Account upon receiving notice
from Borrower of the occurrence of a Collateral Trigger Event.
“Collateral
Agent” means Citigroup Global Markets Inc., in its capacity as
collateral agent for Lender hereunder, or any successor thereto under
Section 20.
“Collateral
Percentage” means 100%.
“Collateral
Trigger Event” means that the senior unsecured debt rating assigned to
Guarantor (i) by both S&P and Moody’s is at or below A- and A3, respectively
or (ii) by either S&P or Moody’s is at or below BBB+ or Baa1, respectively,
or neither S&P nor Moody’s assigns such a rating to Guarantor.
“Convertible
Notes” means collectively the 2009 Convertible Notes and the 2027
Convertible Notes.
“Common
Stock” means shares of Class A Common Stock, par value $.001, of
Lender, or any other security, assets or other consideration (including cash)
into which the Common Stock shall be exchanged or converted as the result of
any
merger, consolidation, other business combination, reorganization,
reclassification, recapitalization or other corporate action (including, without
limitation, a reorganization in bankruptcy).
“Cutoff
Time” shall mean 10:00 a.m. in the jurisdiction of the Clearing
Organization, or such other time on a Business Day by which a transfer of Loaned
Shares must be made by Borrower to Lender, as shall be determined in accordance
with market practice.
“Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
“Facility
Termination Date” means the earlier to occur of (i) the first date as
of which all of the Convertible Notes have been converted, repaid, repurchased,
redeemed or are otherwise no longer outstanding and (ii) October 1,
2027.
“FHLMC
Certificates” means single-class mortgage participation certificates in
book-entry form backed by single-family residential mortgage loans, the full
and
timely payment of interest at the applicable certificate rate and the ultimate
collection of principal of which are guaranteed by the Federal Home Loan
Mortgage Corporation (excluding Real Estate Mortgage Investment Conduit
(“REMIC”) or other multi-class pass-through certificates,
pass-through certificates backed by adjustable rate mortgages and securities
paying interest or principal only).
“FNMA
Certificates” means single-class mortgage pass-through certificates in
book-entry form backed by single-family residential mortgage loans, the full
and
timely payment of interest at the applicable certificate rate and the ultimate
collection of principal of which are guaranteed by the Federal National Mortgage
Association (excluding REMIC or other multi-class pass-through certificates,
pass-through certificates backed by adjustable rate mortgages and securities
paying interest or principal only).
“GNMA
Certificates” means single-class fully modified pass-through
certificates in book-entry form backed by single-family residential mortgage
loans, the full and timely payment of principal and interest of which is
guaranteed by the Government National Mortgage Association (excluding REMIC
or
other multi-class pass-through certificates, pass-through certificates backed
by
adjustable rate mortgages and securities paying interest or principal
only).
“Loan
Availability Period” means the period that began on November 22, 2004
and ended on November 16, 2006.
“Loaned
Shares” means shares of Common Stock transferred in a Loan hereunder
until such Common Stock (or identical Common Stock) is transferred back to
Lender hereunder. If, as the result of a stock dividend, stock split
or reverse stock split, the number of outstanding shares of Common Stock is
increased or decreased, then the number of outstanding Loaned Shares shall
be
proportionately increased or decreased, as the case may be. If any
new or different security (or two or more securities) shall be exchanged for
the
outstanding shares of Common Stock as the result of any reorganization, merger,
consolidation, other business combination, reclassification, recapitalization
or
other corporate action (including, without limitation, a reorganization in
bankruptcy), such new or different security (or such two or more securities
collectively) shall, effective upon such exchange, be deemed to become a Loaned
Share in substitution for the former Loaned Share for which such exchange is
made and in the same proportion for which such exchange was made. For
purposes of return of Loaned Shares by the Borrower or purchase or sale of
securities pursuant to Section 6 or 12, such term shall include securities
of
the same issuer, class and quantity as the Loaned Shares as adjusted pursuant
to
the two preceding sentences.
“Market
Value” on any day means (i) with respect to Common Stock, the most
recent Closing Price of the Common Stock prior to such day and (ii) with respect
to any Collateral that is (a) Cash, the face amount thereof, (b) a letter of
credit, the undrawn amount thereof and (c) any other security or property,
the
market value thereof, as determined by the Collateral Agent, in accordance
with
market practice for such securities or property, based on the price for such
security or property as of the most recent close of trading obtained from a
generally recognized source or the closing bid quotation at the most recent
close of trading obtained from such source, plus accrued interest to the extent
not included therein, unless market practice with respect to the valuation
of
such
securities
or property in connection is to the contrary; provided that with
respect to Collateral consisting of (i) Treasuries and Mortgage-Backed
Securities with a maturity of at least one year but less than five years, such
Market Value shall be multiplied by 98%, (ii) Treasuries and Mortgage-Backed
Securities with a maturity of at least five years but less than ten years,
such
Market Value shall be multiplied by 97%, and (iii) Treasuries and
Mortgage-Backed Securities with a maturity of at least five years, such Market
Value shall be multiplied by 95%.
“Maximum
Number of Shares” means 29,845,200 shares of Common Stock, subject to
the following adjustments:
(a) If,
as
the result of a stock dividend, stock split or reverse stock split, the number
of outstanding shares of Common Stock is increased or decreased, the Maximum
Number of Shares shall, effective as of the payment or delivery date of any
such
event, be proportionally increased or decreased, as the case may
be.
(b) If,
pursuant to a merger, consolidation, other business combination, reorganization,
reclassification, recapitalization or other corporate action (including, without
limitation, a reorganization in bankruptcy), the Common Stock is exchanged
for
or converted into cash, securities or other property, the Maximum Number of
Shares shall, effective upon such exchange, be adjusted by multiplying the
Maximum Number of Shares at such time by the number of securities, the amount
of
cash or the fair market value of any other property exchanged for one share
of
Common Stock in such event.
(c) Upon
the
termination of any Loan pursuant to Section 6(a),
the Maximum Number of Shares shall be reduced by the number of Loaned Shares
surrendered by Borrower to Lender; provided that if the number of
Loaned Shares offered and sold by Borrower in any registered public offering
under the Securities Act is less than the number of shares of Common Stock
constituting the Loan made in connection with such registered public offering
(such difference, the “Unsold Amount”), any termination of a
Loan of the Unsold Amount prior to the date 30 calendar days following the
date
of the Borrowing Notice with respect to such Loan shall not so reduce the
Maximum Number of Shares.
“Moody’s”
means Moody’s Investors Service and its successors.
“Mortgage-Backed
Securities” means FHLMC Certificates, FNMA Certificates or GNMA
Certificates, but excluding zero-coupon securities.
“Non-Cash
Collateral” means (i) any evidence of indebtedness issued, or directly
and fully guaranteed or insured, by the United States of America or any agency
or instrumentality thereof, including Treasuries and Mortgage-Backed Securities;
(ii) any deposits, certificates of deposit or acceptances of any institution
which is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500 million at the time of
deposit (and which may include the Collateral Agent or any affiliate of
the
Collateral
Agent so long as the Collateral Agent is other than Borrower or an affiliate
of
Borrower); (iii) any marketable obligations of any Person that is fully and
unconditionally guaranteed by a bank referred to in clause (ii); (iv) any
repurchase agreements and reverse repurchase agreements relating to marketable
direct obligations issued or unconditionally guaranteed by the United States
of
America or issued by any agency thereof and backed as to timely payment by
the
full faith and credit of the United States of America; (v) commercial paper
of
any corporation incorporated under the laws of the United States or any State
thereof that is rated “investment grade” A-1 by S&P or P-1 by Moody’s; (vi)
any money market funds (including, but not limited to, money market funds
managed by the Collateral Agent or an affiliate of the Collateral Agent)
registered under the Investment Company Act of 1940, as amended; (vii) any
letter of credit issued by a bank referred to in clause (ii); and (viii) all
proceeds of the foregoing; provided that in no event shall Non-Cash
Collateral include “margin stock” as defined by Regulation U of the Board of
Governors of the Federal Reserve System.
“S&P”
means Standard & Poor’s Rating Services, a division of The McGraw-Hill
Companies, Inc. and its successors
“Securities
Act” means the Securities Act of 1933, as amended.
“Securities
Intermediary” means a “securities intermediary” as defined by Section
8-102(a)(14) of the UCC.
“Treasuries”
means negotiable debt obligations issued by the U.S. Treasury
Department.
“UCC”
means the Uniform Commercial Code as in effect in the State of New York on
the
date hereof and as it may be amended from time to time.
Section 2. Loans
of Shares; Transfers of Loaned Shares
(a) During
the Loan Availability Period, Lender loaned to Borrower 116,949,300 shares
of
Common Stock, of which 29,845,200 shares of Common Stock remain outstanding
as
of the date hereof. Such loans were made subject to the terms of the
Share Lending Agreement (each such issuance and loan, a “Loan”)
and were confirmed by a schedule and receipt listing the Loaned Shares provided
by Borrower to Lender (the “Confirmation”). Such
Confirmation constitutes conclusive evidence with respect to the Loan, including
the number of shares of Common Stock that are the subject of the Loan to which
the Confirmation relates, until such Loan is terminated and the Loaned Shares
are returned to Lender in accordance with this Agreement.
Section
3. Collateral.
(a) Prior
to
the occurrence of a Collateral Trigger Event, Borrower will not be required
and
is under no obligation to provide any Collateral to Lender for any Loan
hereunder.
(b) Upon
the
occurrence of a Collateral Trigger Event, Borrower shall notify Lender and
Collateral Agent in writing and upon receipt of such notice, the Collateral
Agent shall establish the Collateral Account and, unless otherwise agreed by
Borrower and Lender, Borrower shall, within five business days, transfer to
Collateral Agent, for deposit to the Collateral Account, Collateral with a
Market Value at least equal to the Collateral Percentage of the Market Value
of
all outstanding Loaned Shares.
(c) Following
the occurrence and during the continuance of a Collateral Trigger Event, unless
otherwise agreed by Borrower and Lender, Borrower shall, prior to or
concurrently with the transfer of the Loaned Shares to Borrower, but in no
case
later than the close of business on the day of such transfer, transfer to
Collateral Agent, for deposit to the Collateral Account, Collateral with a
Market Value at least equal to the Collateral Percentage of the Market Value
of
the Loaned Shares as of the date of such transfer.
(d) Any
Collateral transferred by Borrower to Collateral Agent shall be security for
Borrower’s obligations in respect of the Loaned Shares and for any other
obligations of Borrower to Lender hereunder. Borrower hereby pledges
with, assigns to, and grants Collateral Agent for the benefit of Lender a
continuing first priority security interest in, and a lien upon, all of
Borrower’s right, title and interest in and to the Collateral, whether now
existing or hereafter acquired or arising, together with all proceeds thereof,
which security interest shall not attach, in the case of Section 3(c) above,
until the transfer of the Loaned Shares by Lender to Borrower. To
provide for the effectiveness, validity, enforceability, perfection and priority
of Lender's rights as a secured party, Borrower acknowledges that Collateral
Agent has obtained control of the Collateral within the meaning of Sections
8-106 and 9-106 of the UCC, and Collateral Agent acknowledges that it has
control of the Collateral on behalf of Lender within the meaning of Section
8-106(d)(3) of the UCC. Notwithstanding anything to the contrary
herein or in the UCC, Lender may not use or invest the Collateral and Collateral
Agent shall take no instruction from Lender regarding the use or investment
of
Collateral.
(e) Following
written notice by Borrower to Lender that any Collateral Trigger Event no longer
exists, Collateral Agent shall release to Borrower Collateral with a Market
Value equal to the Collateral Percentage of the Market Value of all outstanding
Loaned Shares. Such transfer of Collateral shall be made no later
than the Cutoff Time on the Business Day immediately following the day that
Borrower provides such written notice.
(f) Following
the transfer to Lender of Loaned Shares pursuant to Section 6, Collateral Agent shall release to Borrower
Collateral with a Market Value equal to the Collateral Percentage of the Market
Value of the Loaned Shares so transferred but only to the extent that
immediately following such transfer of Collateral, no Collateral Deficit would
exist. Such transfer of Collateral shall be made no later than the
Cutoff Time on the day the Loaned Shares are transferred, or if such day is
not
a day on which a transfer of such Collateral may be effected under Section 13, or if the transfer of Loaned Shares by
Lender to Borrower occurs after the Cutoff Time on such day, then in each case
the next day on which such a transfer may be effected.
(g) If
Borrower transfers Collateral to Collateral Agent pursuant to Section 3(c)
above, and Lender does not transfer the Loaned Shares to Borrower, Borrower
shall have the absolute right to the return of the Collateral; and if Lender
transfers Loaned Shares to Borrower and Borrower does not transfer Collateral
to
Collateral Agent when required pursuant to Section 3(c) above, Lender shall
have
the absolute right to the return of the Loaned Shares.
(h) Borrower
may, upon notice to Lender and Collateral Agent, substitute Collateral for
Collateral securing any Loan or Loans; provided that such substituted
Collateral shall have a Market Value such that the aggregate Market Value of
such substituted Collateral, together with all other Collateral, shall equal
or
exceed the Collateral Percentage of the Market Value of the Loaned Shares as
of
the date of such substitution.
Section 4. Mark
To Market.
(a) If
at the
close of trading on any Business Day prior to the Facility Termination Date
following the occurrence and during the continuance of a Collateral Trigger
Event the aggregate Market Value of all Collateral shall be less than the
Collateral Percentage of the Market Value of all the outstanding Loaned Shares
(a “Collateral Deficit”), Lender may, by notice to Borrower and
Collateral Agent, demand that Borrower transfer to Collateral Agent, for deposit
to the Collateral Account, no later than the following Business Day, additional
Collateral so that the Market Value of such additional Collateral, when added
to
the Market Value of all other Collateral, shall equal or exceed the Collateral
Percentage of the Market Value of the Loaned Shares on such Business Day of
determination.
(b) If
at the
close of trading on any Business Day prior to the Facility Termination Date
the
aggregate Market Value of all Collateral shall be greater than the Collateral
Percentage of the Market Value of all the outstanding Loaned Shares (a
“Collateral Excess”), Borrower may, by notice to Lender and
Collateral Agent, demand that Collateral Agent transfer to Borrower such amount
of the Collateral selected by Borrower so that the Market Value of the
Collateral, after deduction of such amounts, shall thereupon be at least equal
to the Collateral
(c) Notwithstanding
the foregoing, with respect to any outstanding Loans secured by Collateral,
the
respective rights of Lender and Borrower under Section 4(a) and Section 4(b)
may
be exercised only where a Collateral Excess or Collateral Deficit exceeds 2%
of
the Market Value of the Loaned Shares.
Section 5. Loan
Fee. Borrower paid Lender a single loan fee per Loan (a
“Loan Fee”) equal to $.001 per Loaned Share included in such
Loan.
Section 6. Loan
Terminations.
(a) Borrower
may terminate all or any portion of a Loan on any Business Day by giving written
notice thereof to Lender and transferring the corresponding number of Loaned
Shares to Lender, without any consideration being payable in respect thereof
by
Lender to Borrower. Any such loan termination shall be effective upon
delivery of the Loaned Shares in accordance with the terms hereof.
(b) All
outstanding Loans, if any, shall terminate on the Facility Termination Date
and
all Loaned Shares then outstanding, if any, shall be delivered by Borrower
to
Lender, without any consideration being payable in respect thereof by Lender
to
Borrower, no later than the fifth Business Day following the Facility
Termination Date.
(c) If
on any
date, the number of Loaned Shares exceeds the Maximum Number of Shares, the
number of Loaned Shares in excess of the Maximum Number of Shares shall be
delivered by Borrower to Lender, without any consideration being payable in
respect thereof by Lender to Borrower, no later than the third Business Day
following such date.
(d) If
a Loan
is terminated upon the occurrence of a Default as set forth in Section 11, the Loaned Shares shall be delivered by
Borrower to Lender, without any consideration being payable in respect thereof
by Lender to Borrower, no later than the third Business Day following the
termination date of such Loan as provided in Section
11.
Section 7. Distributions.
(a) If
at any
time when there are Loaned Shares outstanding under this Agreement, Lender
pays
a cash dividend or makes a cash distribution in respect of its outstanding
Common Stock, Borrower shall pay to Lender (whether or not Borrower is a holder
of any or all of the outstanding Loaned Shares), within one Business Day after
the payment of such dividend or distribution, an amount in cash equal to the
product of (i) the amount per share of such dividend or distribution and (ii)
the number of Loaned Shares outstanding at such time.
(b) If
at any
time when there are Loaned Shares outstanding under this Agreement, Lender
makes
a distribution in respect of its outstanding Common Stock (in liquidation or
otherwise) in property or securities, including any options, warrants, rights
or
privileges in respect of securities (other than a distribution of Common Stock,
but including any options, warrants, rights or privileges exercisable for,
convertible into or exchangeable for Common Stock) to the then holder or holders
of such Loaned Shares (a “Non-Cash Distribution”), Borrower
shall deliver to Lender in kind (whether or not Borrower is a holder of any
or
all of the outstanding Loaned Shares), within one Business Day after the date
of
such Non-Cash Distribution, the property or securities so distributed in an
amount (the “Delivery Amount”) equal to the product of (i) the
amount per share of Common Stock of such Non-Cash Distribution and (ii) the
number of Loaned Shares outstanding at such time; provided that in lieu
of such delivery, Borrower may deliver to Lender the market value of the
Delivery Amount, as determined by the Agent in accordance with market practice
for the property or securities constituting the Non-Cash
Distribution.
Section 8. Rights
in Respect of Loaned Shares.
(a) Subject
to the terms of this Agreement, including Borrower’s obligation to return the
Loaned Shares in accordance with the terms of this Agreement, and except as
otherwise agreed by Borrower and Lender, Borrower and any subsequent transferee
of Loaned Shares shall have all of the incidents of ownership in respect of
any
Loaned Shares, including the right to transfer the Loaned Shares to
others. Lender hereby waives the right to vote, or to provide any
consent or to take any similar action with respect to, the Loaned Shares in
the
event that the record date or deadline for such vote, consent or other action
falls during the term of the Loan. Borrower agrees that it and any of
its affiliates that are the record owner of any Loaned Shares will not vote
such
Loaned Shares on any matter submitted to a vote of Lender’s stockholders
generally.
Section 9. Representations
and Warranties.
(a) Each
of
Borrower and Lender represent and warrant to the other that:
(i) it
has
full power to execute and deliver this Agreement, to enter into the Loans
contemplated hereby and to perform its obligations hereunder;
(ii) it
has
taken all necessary action to authorize such execution, delivery and
performance;
(iii) this
Agreement constitutes its legal, valid and binding obligation enforceable
against it in accordance with its terms; and
(iv) the
execution, delivery and performance of this Agreement does not and will not
violate, contravene, or constitute a default under, (A)
its
certificate of incorporation, bylaws or other governing documents, (B) any
laws,
rules or regulations of any governmental authority to which it is subject,
(C)
any contracts, agreements or instrument to which it is a party or (D) any
judgment, injunction, order or decree by which it is bound.
(b) Lender
represents and warrants to Borrower, as of the date hereof, that the Loaned
Shares and all other outstanding shares of Common Stock of the Company have
been
duly authorized and are validly issued, fully paid nonassessible shares of
Common Stock; and the stockholders of Lender have no preemptive rights with
respect to the Loaned Shares.
(c) Lender
represents and warrants to Borrower, as of the date hereof, that the outstanding
shares of Common Stock are quoted on The NASDAQ Global Market.
(d) The
representations and warranties of Borrower and Lender under this Section 9 shall remain in full force and effect at all
times during the term of this Agreement and shall survive the termination for
any reason of this Agreement.
Section 10. Covenants.
(a) Borrower
covenants and agrees with Lender that (i) it will not hedge any short position
resulting from the sale of any Loaned Shares (except in connection with a hedge
of the Convertible Notes) and (ii) at all times when it is the record owner
of,
or has the power to give instructions or entitlement orders with respect to,
any
Loaned Shares, it will not transfer or dispose of such Loaned Shares, in each
case except for the purpose of directly or indirectly facilitating the hedging
of the Convertible Notes by the holders thereof.
(b) The
parties hereto acknowledge that Borrower has informed Lender that Borrower
is a
“financial institution” within the meaning of Section 101(22) of Title 11 of the
United States Code (the “Bankruptcy Code”). The parties hereto
further acknowledge and agree that (i) each Loan hereunder is intended to be
a
“securities contract,” as such term is defined in Section 741(7) of the
Bankruptcy Code; and (ii) each and every transfer of funds, securities and
other
property under this Agreement is intended to be a “settlement payment” or a
“margin payment,” as such terms are used in Sections 362(b)(6) and 546(e) of the
Bankruptcy Code.
(c) Lender
shall, no later than five Business Days prior to any repurchase of Common Stock,
give Borrower a written notice of such repurchase (a “Repurchase
Notice”) if, following such repurchase, the Outstanding Borrow
Percentage after giving effect to such repurchase would be greater by 0.5%
than
the Outstanding Borrow Percentage included in the immediately preceding
Repurchase Notice (or, in the case of the first such Repurchase Notice, greater
than the Outstanding Borrow Percentage as of the date hereof). The
“Outstanding Borrow Percentage” as of any day is the fraction
(A) the numerator of which is the number of Loaned Shares outstanding on such
day and (B) the denominator of which is the
number
of
shares of Common Stock outstanding on such day, including such Loaned
Shares.
Section 11. Events
of Default.
(a) All
Loans
may, at the option of the Lender by a written notice to Borrower (which option
shall be deemed exercised, even if no notice is given, immediately on the
occurrence of an event specified in either Section
11(a)(iii) or Section 11(a)(iv) below), be
terminated (i) immediately on the occurrence of any of the events set forth
in
Section 11(a)(iii) or Section 11(a)(iv) below and (ii) two
Business Days
following such notice on the occurrence of any of the other events set forth
below, (each, a “Default”):
(i) Borrower
fails to deliver Loaned Shares to Lender as required by Section 6;
(ii) Borrower
fails to deliver or pay to Lender when due any cash, securities or other
property as required by Section 7;
(iii) the
filing by or on behalf of Borrower of a voluntary petition or an answer seeking
reorganization, arrangement, readjustment of its debts or for any other relief
under any bankruptcy, reorganization, receivership, compromise, arrangement,
insolvency, readjustment of debt, dissolution, winding-up or liquidation or
similar act or law, of any state, federal or other applicable foreign
jurisdictions, now or hereafter existing (“Bankruptcy Law”), or
any action by Borrower for, or consent or acquiescence to, the appointment
of a
receiver trustee or other custodian of Borrower, or of all or a substantial
part
of its property; or the making by Borrower of a general assignment for the
benefit of creditors; or the admission by Borrower in writing of its inability
to pay its debts as they become due;
(iv) the
filing of any involuntary petition against Borrower in bankruptcy or seeking
reorganization, arrangement, readjustment of its debts or for any other relief
under any Bankruptcy Law and an order for relief by a court having jurisdiction
in the premises shall have been issued or entered therein; or any other similar
relief shall be granted under any applicable federal or state law or law of
any
other applicable foreign jurisdictions; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee or other officer having similar powers over Borrower
or
over all or a part of its property shall have been entered; or the involuntary
appointment of an interim receiver, trustee or other custodian of Borrower
or of
all or a substantial part of its property; or the issuance of a warrant of
attachment, execution or similar process against any substantial part of the
property of Borrower; and continuance of any such event for 15 consecutive
calendar
days unless dismissed, bonded to the satisfaction of the court having
jurisdiction in the premises or discharged;
(v) Borrower
fails to provide any indemnity as required by Section
14;
(vi) Borrower
notifies Lender of its inability to or intention not to perform its obligations
hereunder or otherwise disaffirms, rejects or repudiates any of its obligations
hereunder; or
(vii) any
representation made by Borrower in this Agreement or in connection with any
Loan
or Loans hereunder shall be incorrect or untrue in any material respect during
the term of any Loan hereunder or Borrower fails to comply in any material
respect with any of its covenants under this Agreement.
Section
12.. Lender’s
Remedies.
(a) Notwithstanding
anything to the contrary herein, if, upon the termination of any Loan by Lender
under Section 11 and, at the time of such
termination, the purchase of Common Stock in an amount equal to all or any
portion of the Loaned Shares to be delivered to Lender in accordance with Section 6(d) (i) shall be prohibited by any law, rules
or regulation of any governmental authority to which it is or would be subject,
(ii) shall violate, or would upon such purchase likely violate, any order or
prohibition of any court, tribunal or other governmental
authority, (iii) shall require the prior consent of any court,
tribunal or governmental authority prior to any such repurchase, (iv) would
subject Borrower, in the sole reasonable judgment of Borrower, to any liability
or potential liability under any applicable federal securities laws (including,
without limitation, Section 16 of the Exchange Act), or (v) shall be
commercially impracticable, in the reasonable judgment of Borrower, in the
time
period required by Section 6(d) (each of (i), (ii), (iii), (iv) and (v), a
“Legal Obstacle”), then, in each case, Borrower shall
immediately notify Lender of the Legal Obstacle and the basis therefor,
whereupon Borrower's obligations under Section 6(d)
shall be suspended until such time as no Legal Obstacle with respect to such
obligations shall exist (a “Repayment
Suspension”). Following the occurrence of and during the
continuation of any Repayment Suspension, Borrower shall use its reasonable
best
efforts to remove or cure the Legal Obstacle as soon as
practicable. If Borrower is unable to remove or cure the Legal
Obstacle within five Business Days of the termination of any Loan by Lender
under Section 11, Borrower shall pay to Lender, in lieu of the delivery of
Loaned Shares in accordance with Section 6(d), an amount in immediately
available funds (the “Replacement Cash”) equal to the product
of the Closing Price as of the Business Day immediately preceding the date
Borrower makes such payment and the number of Loaned Shares otherwise required
to be delivered.
(b) If
Borrower shall fail to deliver Loaned Shares to Lender pursuant to Section 6(d) when due, then, in addition to any other
remedies available to Lender under this Agreement or under applicable law,
Lender shall have the right (upon prior written notice to Borrower) to purchase
a like amount of Loaned Shares (“Replacement Shares”) in the
principal market for such securities in a commercially reasonable manner;
provided that if any Repayment Suspension shall exist and be
continuing, Lender may not exercise its right to purchase Replacement Shares
unless Borrower shall fail to pay the Replacement Cash to Lender when due in
accordance with Section 12(a) above. To the extent Lender shall
exercise such right, Borrower’s obligation to return a like amount of Loaned
Shares or to pay the Replacement Cash, as applicable, shall terminate and
Borrower shall be liable to Lender for the purchase price of Replacement Shares
(plus all other amounts, if any, due to Lender hereunder), all of which shall
be
due and payable within one Business Day of notice to Borrower by Lender of
the
aggregate purchase price of the Replacement Shares. The purchase
price of Replacement Shares purchased under this Section
12 shall include broker’s fees and commissions and all other reasonable
costs, fees and expenses related to such purchase; provided that Borrower shall
not be liable for any broker’s fees and commissions to the extent that an
affiliate of Borrower offered to act as broker for purchases of Replacement
Shares and Lender elected to use a different broker.
Section
13. Transfers.
(a) All
transfers of Loaned Shares to Lender hereunder shall be made by the crediting
by
a Clearing Organization of such financial assets to the transferee’s “securities
account” (within the meaning of Section 8-501 of the UCC) maintained with such
Clearing Organization. In every transfer of “financial assets”
(within the meaning of Section 8-102 of the UCC) hereunder, the transferor
shall
take all steps necessary (a) to effect a delivery of such financial assets
to
the transferee under Section 8-301 of the UCC, or to cause the creation of
a
security entitlement in favor of the transferee in such financial assets under
Section 8-501 of the UCC, (b) to enable the transferee to obtain “control”
(within the meaning of Section 8-106 of the UCC) of such financial assets,
and
(c) to provide the transferee with comparable rights under any corresponding
law
or regulation of any other applicable jurisdiction.
(b) All
transfers of cash hereunder to Borrower or Lender shall be by wire transfer
in
immediately available, freely transferable funds.
(c) A
transfer of securities or cash may be effected under this Section 13 on any day except (i) a day on which the
transferee is closed for business at its address set forth in Section 18 or
(ii) a day on which a Clearing Organization or wire transfer system
is closed, if the facilities of such Clearing Organization or wire transfer
system are required to effect such transfer.
Section
14 . Indemnities.
(a) Lender
hereby agrees to indemnify and hold harmless Borrower and its affiliates and
its
former, present and future directors, officers, employees and other agents
and
representatives from and against any and all liabilities, judgments, claims,
settlements, losses, damages, fees, liens, taxes, penalties, obligations and
expenses (and losses relating to Borrower’s market activities as a consequence
of becoming, or of the risk of becoming, subject to Section 16(b) under the
Exchange Act, including without limitation, any forbearance from market
activities or cessation of market activities and any losses in connection
therewith or with respect to this Agreement) incurred or suffered by any such
person or entity directly or indirectly arising from, by reason of, or in
connection with, (i) any breach by Lender of any of its representations or
warranties contained in Section 9 or (ii) any breach
by Lender of any of its covenants or agreements in this Agreement.
(b) Borrower
hereby agrees to indemnify and hold harmless Lender and its affiliates and
its
former, present and future directors, officers, employees and other agents
and
representatives from and against any and all liabilities, judgments, claims,
settlements, losses, damages, fees, liens, taxes, penalties, obligations and
expenses incurred or suffered by any such person or entity directly or
indirectly arising from, by reason of, or in connection with (i) any breach
by
Borrower of any of its representations or warranties contained in Section 9 or (ii) any breach by Borrower of any of its
covenants or agreements in this Agreement.
(c) In
case
any claim or litigation which might give rise to any obligation of a party
under
this Section 14 (each an “Indemnifying
Party”) shall come to the attention of the party seeking
indemnification hereunder (the “Indemnified Party”), the
Indemnified Party shall promptly notify the Indemnifying Party in writing of
the
existence and amount thereof; provided that the failure of the Indemnified
Party
to give such notice shall not adversely affect the right of the Indemnified
Party to indemnification under this Agreement, except to the extent the
Indemnifying Party is materially prejudiced thereby. The Indemnifying
Party shall promptly notify the Indemnified Party in writing if it accepts
such
claim or litigation as being within its indemnification obligations under this
Section 14. Such response shall be
delivered no later than 30 days after the initial notification from the
Indemnified Party; provided that, if the Indemnifying Party reasonably cannot
respond to such notice within 30 days, the Indemnifying Party shall respond
to
the Indemnified Party as soon thereafter as reasonably possible.
(d) An
Indemnifying Party shall be entitled to participate in and, if (i) in the
judgment of the Indemnified Party such claim can properly be resolved by money
damages alone and the Indemnifying Party has the financial resources to pay
such
damages and (ii) the Indemnifying Party admits that this indemnity fully covers
the claim or litigation, the Indemnifying Party shall be entitled to direct
the
defense of any claim at its expense, but such defense shall be conducted by
legal counsel reasonably satisfactory to the Indemnified Party. An
Indemnified Party
shall
not
make any settlement of any claim or litigation under this Section 14 without the written consent of the
Indemnifying Party.
Section
15. Termination
Of Agreement.
(a) This
Agreement may be terminated (i) at any time by the written agreement of Lender
and Borrower, or (ii) by Lender upon the occurrence of a Default.
(b) Unless
otherwise agreed by Borrower and Lender, the provisions of Section 14 shall survive the termination of this
Agreement.
Section
16. [Omitted].
Section
17.
Guarantee. Guarantor shall execute a guarantee in favor of
Lender substantially in the form attached hereto as Annex A (the
“Guarantee”) that will guaranty all obligations of Borrower
with respect to this Agreement.
Section
18. Notices.
(a) All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given when received.
(b) All
such
notices and other communications shall be directed to the following
address:
(i) If
to
Borrower or Agent to:
Citigroup
Global Markets Inc.
390
Greenwich Street
New
York,
NY 10013
Telephone: 212-723-7323
Telecopier: 212-723-8871
Attention:
Suvir Thadani
(ii)
If
to Lender to:
Charter
Communications, Inc.
12405
Powerscourt Drive
St.
Louis, Missouri 63131
Attention:
Executive Vice President and General Counsel
Telecopier
No.: (314) 965-0555
With
a
copy to:
Gibson,
Dunn & Crutcher LLP
200
Park
Avenue
New
York,
NY 10166
Attention:
Dennis J. Friedman, Esq.
Telecopier
No.: (212) 351-6201
In
the
case of any party, at such other address as may be designated by written notice
to the other parties.
Section
19. Governing
Law; Submission To Jurisdiction; Severability.
(a) This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, but excluding any choice of law provisions that would require
the application of the laws of a jurisdiction other than New York.
(b) EACH
PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN
NEW
YORK CITY, AND ANY APPELLATE COURT FROM ANY SUCH COURT, SOLELY FOR THE PURPOSE
OF ANY SUIT, ACTION OR PROCEEDING BROUGHT TO ENFORCE ITS OBLIGATIONS HEREUNDER
OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY LOAN HEREUNDER AND (B) WAIVES,
TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, ANY DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT AND
ANY
RIGHT OF JURISDICTION ON ACCOUNT OF ITS PLACE OF RESIDENCE OR
DOMICILE.
(c) EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO TRIAL
BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(d) To
the
extent permitted by law, the unenforceability or invalidity of any provision
or
provisions of this Agreement shall not render any other provision or provisions
herein contained unenforceable or invalid.
Section
20.. Designation of Replacement Collateral
Agent. If at any time while this Agreement is in effect (i)
Citigroup Global Markets Inc. ceases to be a Securities Intermediary or (ii)
Lender shall determine, in its sole discretion, that any of the relationships
by
or among the parties hereto are reasonably likely to prevent Lender from
acquiring, or jeopardize the continuation of, a first priority security interest
in any Collateral, Lender shall be entitled, following the occurrence and during
the continuance of any Collateral Trigger Event, to designate a bank or trust
company reasonably satisfactory to Borrower as a successor Collateral
Agent. In the event of a designation of a successor Collateral Agent,
each of the parties to this Agreement agrees to take all such actions as are
reasonably necessary to effect the transfer of rights and obligations of
Citigroup Global Markets Inc. as Collateral Agent hereunder to such successor
Collateral Agent, including the execution and delivery of amendments to this
Agreement as shall be necessary to effect such designation and
transfer.
Section 21. Counterparts. This
Agreement may be executed in any number of counterparts, and all such
counterparts taken together shall be deemed to constitute one and the same
agreement.
IN
WITNESS WHEREOF, the parties hereto to have executed this Share Lending
Agreement as of the date and year first above written.
|
CHARTER
COMMUNICATIONS, INC. as Lender
|
CITIGROUP
GLOBAL MARKETS LIMITED as Borrower
|
|
|
By:
/s/ Thomas J. Degnan
Name:
Thomas J. Degnan
Title:
Vice President - Finance and Corporate Treasurer
|
By:
/s/ Daniel Richards
Name:
Daniel Richards
Title:
Managing Director
|
|
CITIGROUP
GLOBAL MARKETS INC. as Collateral Agent
|
CITIGROUP
GLOBAL MARKETS INC. as Agent
|
|
|
By:
/s/ Daniel Richards
Name:
Daniel Richards
Title:
Managing Director
|
By:
/s/ Daniel Richards
Name:
Daniel Richards
Title:
Managing Director
|
Annex
A
Form
of Guarantee
Guarantee,
dated as of October 2, 2007, of CITIGROUP GLOBAL MARKETS HOLDINGS INC., aNew
York corporation (the “Guarantor”), in favor of CHARTER COMMUNICATIONS, INC.
(the “Counterparty”).
1. Guarantee. In
order to induce the Counterparty to amend and restate as of the date hereof
the
Share Lending Agreement, dated as of November 22, 2004 (the “Agreement” and as
such Agreement is amended and restated as of the date hereof, the “Amended and
Restated Agreement”), with the Guarantor's wholly-owned subsidiary Citigroup
Global Markets Limited (“Citigroup”), the Guarantor absolutely and
unconditionally guarantees to the Counterparty, its successors and permitted
assigns, the prompt payment of all amounts payable by Citigroup under the
Amended and Restated Agreement, whether due or to become due, secured or
unsecured, joint or several after taking into account the proceeds of
liquidation of any collateral or other security held by the Counterparty (the
“Obligations”) all without regard to any counterclaim, set-off, deduction or
defense of any kind which Citigroup or the Guarantor may have or assert, and
without abatement, suspension, deferment or diminution on account of any event
or condition whatsoever; providedhowever, that Guarantor’s
obligations under this Guarantee shall be subject to Citigroup’s defenses,
rights to set-off, counterclaim or withhold payment as provided in the Amended
and Restated Agreement. Any capitalized term used herein and not
otherwise defined shall have the meaning assigned to it in the Amended and
Restated Agreement.
2. Nature
of Guarantee. This Guarantee is a guarantee of payment and
not of collection. The Counterparty shall not be obligated, as a
condition precedent to performance by the Guarantor hereunder, to file any
claim
relating to the Obligations in the event that Citigroup becomes subject to
a
bankruptcy, reorganization or similar proceeding, and the failure of the
Counterparty to file a claim shall not affect the Guarantor's obligations
hereunder. This Guarantee shall continue to be effective or be
reinstated if any payment to the Counterparty by Citigroup on account of any
Obligation is returned to Citigroup or is rescinded upon the insolvency,
bankruptcy or reorganization of Citigroup.
3. Consents,
Waivers and Renewals. The Guarantor agrees that the
Counterparty may at any time and from time to time, either before or after
the
maturity thereof, without notice to or further consent of the Guarantor, change
the time, manner or place of payment or any other term of, any Obligation,
exchange, release, nonperfection or surrender any collateral for, or renew
or
change any term of any of the Obligations owing to it, and may also
enter into a written agreement with Citigroup or with any other party to the
Amended and Restated Agreement or person liable on any Obligation, or interested
therein, for the extension, renewal, payment, compromise, modification, waiver,
discharge or release thereof, in whole or in part, without impairing or
affecting this Guarantee. The Obligations of the Guarantor under this
Guarantee are unconditional, irrespective of the value, genuineness, validity,
or enforceability of the Obligations. The Guarantor waives demands,
promptness, diligence and all notices that may be required by law or to perfect
the Counterparty's rights hereunder except notice to the Guarantor of a default
by Citigroup under the Amended and Restated Agreement. No failure,
delay or single or partial exercise by the Counterparty of its rights or
remedies hereunder shall operate as a waiver of such rights or
remedies. All
rights and remedies hereunder or allowed by law shall be cumulative and
exercisable from time to time.
4. Representations
and Warranties. The Guarantor hereby represents and warrants
that:
(i) the
Guarantor is duly organized, validly existing and in good standing under the
laws of the State of New York;
(ii) the
Guarantor has the requisite corporate power and authority to issue this
Guarantee and to perform its obligations hereunder, and has duly authorized,
executed and delivered this Guarantee;
(iii) the
Guarantor is not required to obtain any authorization, consent, approval,
exemption or license from, or to file any registration with, any government
authority as a condition to the validity of, or to the execution, delivery
or
performance of, this Guarantee;
(iv) as
of the date of this Guarantee, there is no action, suit or proceeding pending
or
threatened against the Guarantor before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable possibility
of an adverse decision which could affect, in a materially adverse manner,
the
ability of the Guarantor to perform any of its obligations under, or which
in
any manner questions the validity of, this Guarantee;
(v) the
execution, delivery and performance of this Guarantee by the Guarantor does
not
contravene or constitute a default under any statute, regulation or rule of
any
governmental authority or under any provision of the Guarantor's certificate
of
incorporation or by-laws or any contractual restriction binding on the
Guarantor; and
(vi) this
Guarantee constitutes the legal, valid and binding obligation of the Guarantor
enforceable in accordance with its terms, subject to
the
effect of any bankruptcy, insolvency, reorganization, moratorium or similar
law
affecting creditors' rights generally, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
5. Subrogation. Upon
payment by Guarantor of any sums to Counterparty under this Guarantee, all
rights of Guarantor against Citigroup arising as a result thereof by way of
right of subrogation or otherwise shall in all respects be subordinate and
junior in right of payment to the prior indefeasible payment in full of all
the
obligations of Citigroup under the Amended and Restated Agreement, including
all
Transactions then in effect between Citigroup and Counterparty.
6. Termination.
This Guarantee is a continuing guarantee and shall remain in full
force
and effect until such time as it may be revoked by the Guarantor by notice
given
to the Counterparty, such notice to be deemed effective upon receipt thereof
by
the Counterparty or at such later date as may be specified in such notice;
provided, however, that such revocation shall not limit or
terminate this Guarantee in respect of any Transaction effected under the
Amended and Restated Agreement which shall have been entered into prior to
the
effectiveness of such revocation. Notwithstanding anything to the
contrary in this Paragraph 6, this Guarantee shall terminate, and Guarantor
shall be released from all of the Obligations hereunder with respect to any
Transaction(s), immediately upon the transfer or assignment of such
Transaction(s) to an entity which is not an Affiliate of Citigroup (as such
term
is defined in Section 14 of the Amended and Restated Agreement), if such
transfer or assignment is completed in accordance with the provisions of Section
7 of the Amended and Restated Agreement.
7. Notices. Any
notice or communication required or permitted to be made hereunder shall be
made
in the same manner and with the same effect, unless otherwise specifically
provided herein, as set forth in the Amended and Restated
Agreement.
8. GOVERNING
LAW; JURISDICTION. THIS GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO CHOICE OF LAW DOCTRINE AND WITHOUT GIVING EFFECT TO ANY PROVISION
THEREOF THAT WOULD PERMIT OR REQUIRE THE LAWS OF ANOTHER JURISDICTION TO
APPLY. THE GUARANTOR HEREBY IRREVOCABLY CONSENTS TO, FOR THE PURPOSES
OF ANY PROCEEDING ARISING OUT OF THIS GUARANTEE, THE EXCLUSIVE JURISDICTION
OF
THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED
IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY.
9. Miscellaneous. Each
reference herein to the Guarantor, Counterparty or Citigroup shall be deemed
to
include their respective successors and assigns. The provisions
hereof shall inure in favor of each such successor or assign. This
Guarantee (i) shall supersede any prior or contemporaneous representations,
statements or agreements, oral or written, made by or between the parties with
regard to the subject matter hereof, (ii) may be amended only by a
written instrument executed by the Guarantor and Counterparty and (iii) may
not
be assigned by either party without the prior written consent of the other
party.
In
Witness Whereof, the undersigned has
executed this Guarantee as of the date first above written.
CITIGROUP
GLOBAL MARKETS
HOLDINGS
INC.
By:
/s/ Daniel Richards
Name:
Daniel Richards
Title:
Managing Director
Exhibit
10.2
AMENDED
AND RESTATED UNIT LENDING AGREEMENT
Dated
as
of October 2, 2007
Between
CHARTER
COMMUNICATIONS HOLDING COMPANY, LLC ("LENDER"),
and
CHARTER
COMMUNICATIONS, INC. ("BORROWER").
WHEREAS,
in connection with the issuance by Lender of $862,500,000 aggregate principal
amount of 2009 Mirror Convertible Senior Notes (as defined herein), Lender
and
Borrower entered into that certain Unit Lending Agreement dated as of November
22, 2004 (the “Unit Lending Agreement”);
WHEREAS,
Lender and Borrower desire to amend and restate the Unit Lending Agreement
in
connection with an exchange offer (the “Exchange Offer”)
pursuant to which $363,847,000 aggregate principal amount of 2009 Mirror
Convertible Notes are being exchanged for 2027 Mirror Convertible Notes (as
defined herein) in order to maintain and extend the Loans (as defined herein)
to
Borrower under the Unit Lending Agreement; and
WHEREAS,
this AGREEMENT sets forth the terms and conditions under which Lender and
Borrower agree to maintain and extend the Loans made to Borrower under the
Unit
Lending Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and
other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, hereby mutually
covenant and agree as follows:
This
AGREEMENT sets forth the terms and conditions under which Borrower may, from
time to time, borrow from Lender Class B Common Units of Lender.
The
parties hereto agree as follows:
Section
1. Certain Definitions. The following capitalized terms shall have the following
meanings:
“2009
MIRROR CONVERTIBLE NOTES” means the $862,500,000 aggregate principal amount of
Convertible Senior Notes due 2009 issued by Lender.
“2027
MIRROR CONVERTIBLE NOTES” means the $479,168,000 aggregate principal amount of
Convertible Senior Notes due 2027 issued by Lender.
"BUSINESS
DAY" means a day on which regular trading occurs in the principal trading
market
for the common stock of Borrower.
"CASH"
means any coin or currency of the United States as at the time shall be legal
tender for payment of public and private debts.
"CONVERTIBLE
NOTES" means collectively the $862,500,000 aggregate principal amount of
Convertible Senior Notes due 2009 issued by Lender and the $479,168,000
aggregate principal amount of Convertible Senior Notes due 2027 issued by
Lender.
"COMMON
STOCK" means shares of Class A Common Stock, par value $.001, of Borrower,
or
any other security into which the Common Stock shall be exchanged or converted
as the result of any merger, consolidation, other business combination,
reorganization, reclassification, recapitalization or other corporate action
(including, without limitation, a reorganization in bankruptcy).
"FACILITY
TERMINATION DATE" means the earlier to occur of (i) the first date on which
all
of the Convertible Notes have been converted, repaid, repurchased, redeemed
or
are otherwise no longer outstanding, and (ii) October 1, 2027.
"LLC
AGREEMENT" means the Amended and Restated Limited Liability Company Agreement
of
Charter Communications Holding Company, LLC.
"LOAN
AVAILABILITY PERIOD" means the period that began on November 22, 2004 and
ended
on November 16, 2006.
"LOANED
SHARES" means shares of Common Stock transferred in a Loan as defined in
and
pursuant to the Share Lending Agreement until such Common Stock (or identical
Common Stock) is transferred back to Lender thereunder. If, as the result
of a
stock dividend, stock split or reverse stock split, the number of outstanding
shares of Common Stock is increased or decreased, then the number of outstanding
Loaned Shares shall be proportionately increased or decreased, as the case
may
be. If any new or different security (or two or more securities) shall be
exchanged for the outstanding shares of Common Stock as the result of any
reorganization, merger, consolidation, other business combination,
reclassification, recapitalization or other corporate action (including,
without
limitation, a reorganization in bankruptcy), such new or different security
(or
such two or more securities collectively) shall, effective upon such exchange,
be
deemed
to become a Loaned Share in substitution for the former Loaned Share for
which
such exchange is made and in the same proportion for which such exchange
was
made.
"LOANED
UNITS" means Units transferred in a Loan hereunder until such Units are returned
to Lender hereunder and cancelled. If, as the result of a stock dividend,
stock
split or reverse stock split by Borrower, the number of outstanding shares
of
Common Stock is increased or decreased, then the number of outstanding Loaned
Units shall be
proportionately
increased or decreased, as the case may be. If any new or different security
(or
two or more securities) shall be exchanged for the outstanding shares of
Common
Stock as the result of any reorganization, merger, consolidation, other business
combination, reclassification, recapitalization or other corporate action
with
respect to
Borrower
(including, without limitation, a reorganization in bankruptcy), such new
or
different security (or such two or more securities collectively) or mirror
securities of Lender, as appropriate, shall, effective upon such exchange,
be
deemed to become a Loaned Unit in substitution for the former Loaned Unit
for
which such exchange is made and in the same proportion for which such exchange
was made.
"MAXIMUM
NUMBER OF UNITS" means 29,845,200 Units, subject to the following
adjustments:
(a)
If, as the result of a stock dividend, stock split or reverse stock split
by
Borrower, the number of outstanding shares of Common Stock is increased or
decreased, the Maximum Number of Units shall, effective as of the payment
or
delivery date of any such event, be proportionally increased or decreased,
as
the case may be.
(b)
If, pursuant to a merger, consolidation, other business combination,
reorganization, reclassification, recapitalization or other corporate action
(including, without limitation, a reorganization in bankruptcy) involving
the
Borrower and the result of which is that Lender remains in existence, the
Common
Stock is exchanged for or converted into Cash, securities or other property,
the
Maximum Number of Units shall, effective upon such exchange, be adjusted
by
multiplying the Maximum Number of Units at such time by the number of
securities, the amount of Cash or the fair market value of any other property
exchanged for one share of Common Stock in such event (or mirror securities
or
property, as the case may be exchanged for one Unit).
Upon
the termination of any Loan pursuant to Section 4(a), the Maximum Number
of
Units shall be reduced by the number of Loaned Units surrendered by Borrower
to
Lender; provided that if the number of Loaned Units corresponding to an Unsold
Amount (as defined in the Share Lending Agreement) is properly returned to
Lender at the time that the Unsold Amount is properly returned to Borrower
under
the Share Lending Agreement, such returned Units shall not so reduce the
Maximum
Number of Units.
"SHARE
LENDING AGREEMENT" means that certain Amended and Restated Share Lending
Agreement, dated of even date hereof, between Borrower and Citigroup Global
Markets Limited.
"UNITS"
means Class B Common Units of Lender.
Section
2. Loans Of Units; Transfers of Loaned Units
(a)
During the Loan Availability Period, Lender loaned to Borrower 116,949,300
Units, of which 29,845,200 Units remain outstanding as of the date
hereof. Such loans were made subject to the terms of the Unit Lending
Agreement (each such issuance and
loan,
a
"LOAN") and were confirmed by a schedule and receipt listing the Loaned Units
provided by Borrower to Lender (the "CONFIRMATION"). Such Confirmation
constitutes conclusive evidence with respect to the Loan, including the number
of Units that are the subject of the Loan to which the Confirmation relates,
until such Loan is terminated and the Loaned Units are returned to Lender
in
accordance with this Agreement.
Section
3. Loan Fee. Borrower paid Lender a single loan fee per Loan (a "LOAN FEE")
equal to $.001 per Loaned Unit included in such Loan.
Section
4. Loan Terminations.
(a)
Borrower may terminate all or any portion of a Loan on any Business Day by
giving written notice thereof to Lender, without any consideration being
payable
in respect thereof by Lender to Borrower. Any such loan termination shall
be
effective upon such written notice in accordance with the terms hereof and
Lender shall amend its LLC Agreement (and in any event, without the necessity
of
any action by Lender, Lender's LLC Agreement shall automatically be deemed
to be
amended) to reflect the reduction in the number of outstanding
Units.
(b)
All outstanding Loans shall terminate on the first Business Day following
the
Facility Termination Date and all Loaned Units then outstanding, if any,
shall
be cancelled by Lender by amending its LLC Agreement (and in any event, without
the necessity of any action by Lender, Lender's LLC Agreement shall
automatically be deemed to be amended), without any consideration being payable
in respect thereof by Lender to Borrower, on the day that Borrower receives
the
Loaned Shares under the Share Lending Agreement from its Borrower
thereunder.
(c)
If on any date, the number of Loaned Units exceeds the Maximum Number of
Units,
the number of Loaned Units in excess of the Maximum Number of Units shall
be
cancelled by Lender by amending its LLC Agreement (and in any event, without
the
necessity of any action by Lender, Lender's LLC Agreement shall automatically
be
deemed to be amended), without any consideration being payable in respect
thereof by Lender to Borrower, on the day that Borrower receives the equivalent
number of Loaned Shares under the Share Lending Agreement from its Borrower
thereunder.
(d)
If a Loan is terminated upon the occurrence of a Default as set forth in
Section
8 or if the Share Lending Agreement is terminated puruant to Section 11 thereof,
the Loaned Units shall be cancelled by Lender by amending its LLC Agreement
(and
in any event, without the necessity of any action by Lender, Lender's LLC
Agreement shall automatically be deemed to be amended), without any
consideration being payable in respect thereof by Lender to Borrower, on
the day
that Borrower receives the Loaned Shares under the Share Lending Agreement
from
its Borrower thereunder.
Section
5. Distributions.
(a)
If at any time when there are Loaned Units outstanding under this Agreement,
Lender makes a Cash distribution in respect of its outstanding Units, Borrower
shall pay to Lender (whether or not Borrower is a holder of any or all of
the
outstanding Loan Units), within one Business Day after the payment of such
distribution, an amount in Cash equal to the product of (i) the amount per
Unit
of such dividend or distribution and (ii) the number of Loaned Units outstanding
at such time.
(b)
If at any time when there are Loaned Units outstanding under this Agreement,
Lender makes a distribution in respect of its outstanding Units in property
or
securities, including any options, warrants, rights or privileges in respect
of
securities (other than a distribution of Units, but including any options,
warrants, rights or privileges exercisable for, convertible into or exchangeable
for Units) to the then holder or holders of such Loaned Units (a "NON-CASH
DISTRIBUTION"), Borrower shall deliver to Lender in kind (whether or not
Borrower is a holder of any or all of the outstanding Loaned Units), within
one
Business Day after the date of such Non-Cash Distribution, the property or
securities so distributed in an amount (the "DELIVERY AMOUNT") equal to
the
product
of (i) the amount per Unit of such Non-Cash Distribution and (ii) the number
of
Loaned Units outstanding at such time; provided that in lieu of such delivery,
Borrower may deliver to Lender the market value of the Delivery Amount, as
determined by the Agent (as defined in the Share Lending Agreement) in
accordance with market practice for the property or securities constituting
the
Non-Cash Distribution.
Section
6. Rights in Respect of Loaned Units. Subject to the terms of this Agreement,
including Borrower's obligation to return the Loaned Units in accordance
with
the terms of this Agreement, and except as otherwise agreed by Borrower and
Lender, Borrower shall have all of the incidents of ownership in respect
of any
Loaned Units.
Section
7. Covenants.
(a)
Any Cash or other property received by Borrower pursuant to the Share Lending
Agreement shall be paid or transferred immediately to Lender.
(b)
If Borrower determines that it will redeem or purchase shares of Common Stock
pursuant to the Share Lending Agreement, Borrower will notify Lender in writing
of the number of shares of Common Stock to be redeemed and the aggregate
cost of
such redemption at least two Business Days prior to settlement of such
redemption. On the date of settlement of such redemption, Lender will redeem
the
number of Units equal to the number of shares of Common Stock provided in
Borrower's notice for the amount of Cash or other property provided in such
notice.
Section
8. Events of Default.
All
Loans may, at the option of the Lender by a written notice to Borrower, be
terminated two Business Days following such notice on the occurrence of the
events set forth below, (each, a "DEFAULT"):
(a)
Borrower fails to deliver or pay to Lender when due any Cash, securities
or
other property as required by Section 5; or
(b)
Borrower notifies Lender of its inability to or intention not to perform
its
obligations hereunder or otherwise disaffirms, rejects or repudiates any
of its
obligations hereunder.
Section
9. Limitation on Lender's Remedies. Notwithstanding anything to the contrary
herein, upon the termination of any Loan by Lender under Section 8 or upon
any
other breach of this Agreement by Borrower, Lender shall only be entitled
to
cancel Loaned Units at the time that Borrower receives Loaned Shares from
its
borrower under the Share Lending Agreement. Furthermore, Lender shall only
be
entitled to the receipt of any other form of damages or compensation at the
time
and to the extent that Borrower receives damages and compensation under the
Share Lending Agreement.
Section
10. Transfers.
(a)
All transfers of Loaned Units to Borrower hereunder shall be made by appropriate
amendment to Lender's LLC Agreement.
(b)
All transfers of Cash hereunder to Borrower or Lender shall be by wire transfer
or internal bank book entry debit/credit in immediately available, freely
transferable funds.
(c)
A transfer of securities or Cash may be effected under this Section 10 on
any
day except (i) a day on which the transferee is closed for business at its
address set forth in Section 12 or (ii) a day on which a wire transfer system
is
closed, if the facilities of such wire transfer system are required to effect
such transfer.
Section
11. Termination of Agreement. This Agreement may be terminated at any time
by
the written agreement of Lender and Borrower.
Section
12 Notices.
(a)
All notices and other communications hereunder shall be in writing and shall
be
deemed to have been duly given when received.
(b)
All such notices and other communications shall be directed to the following
address:
If
to Borrower or Lender to:
Charter
Communications, Inc.
12405
Powercourt Dr.
St.
Louis, MO 63131
Telephone: 314-965-0555
Telecopier: 314-965-8793
Attention: General
Counsel
(c)
In the case of any party, at such other address as may be designated by written
notice to the other parties.
Section
13. Governing Law; Submission To Jurisdiction; Severability.
(a)
This Agreement shall be governed by and construed in accordance with the
laws of
the State of New York, but excluding any choice of law provisions that would
require the application of the laws of a jurisdiction other than New
York.
(b)
EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE
COURT
SITTING IN NEW YORK CITY, AND ANY APPELLATE COURT FROM ANY SUCH COURT, SOLELY
FOR THE PURPOSE OF ANY SUIT, ACTION OR PROCEEDING BROUGHT TO ENFORCE ITS
OBLIGATIONS HEREUNDER OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY LOAN
HEREUNDER AND (B) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO,
ANY
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT AND ANY RIGHT OF JURISDICTION ON ACCOUNT OF ITS PLACE OF
RESIDENCE OR DOMICILE.
(c)
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO
TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING
TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(d)
To the extent permitted by law, the unenforceability or invalidity of any
provision or provisions of this Agreement shall not render any other provision
or provisions herein contained unenforceable or invalid.
Section
14. Counterparts. This Agreement may be executed in any number of counterparts,
and all such counterparts taken together shall be deemed to constitute one
and
the same agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties
hereto to have executed this Unit Lending Agreement as of the date and year
first above written.
CHARTER
COMMUNICATIONS
HOLDING
COMPANY, LLC
as
Lender,
By:___/s/
Thomas M. Degnan________
Name: Thomas
M.
Degnan
Title: Vice
President – Finance and
Corporate
Treasurer
CHARTER
COMMUNICATIONS,
INC.
as
Borrower,
By:___/s/
Thomas M.
Degnan________
Name: Thomas
M.
Degnan
Title: Vice
President – Finance and
Corporate
Treasurer
Exhibit
10.3
CHARTER
COMMUNICATIONS HOLDING COMPANY, LLC
6.50%
MIRROR CONVERTIBLE SENIOR NOTE DUE 2027
ISSUE
DATE OCTOBER 2, 2007
IN
THE
ORIGINAL PRINCIPAL AMOUNT OF $479,168,000
THIS
MIRROR NOTE dated October 2, 2007, is made by Charter Communications Holding
Company, LLC, a Delaware limited liability company (including any successor,
"Obligor"), in favor of Charter Communications, Inc., a Delaware
corporation (including any successor, "CCI").
Reference
is hereby made to the Indenture, dated as of October 2, 2007 between CCI and
The
Bank of New York Trust Company, N.A., as trustee, as amended or supplemented
from time to time (the "Indenture").
Obligor
and Holder agree as follows for the benefit of each other:
ARTICLE
1
DEFINITIONS
Section
1.01. Definitions. Capitalized terms used and not otherwise defined herein
shall
have the respective meanings assigned to them in the Indenture, whether directly
or by reference. As used herein, the following terms shall have the following
meanings:
"CCI
Event of Default" means an Event of Default under the
Indenture.
"CCI
Interest Payment Date" means an Interest Payment Date under the
Indenture.
"CCI
Notes" means the 6.50% Convertible Senior Notes due 2027 of Holder issued
pursuant to the Indenture.
"CCI
Redemption Date" means any date fixed for redemption of CCI Notes pursuant
to the Indenture.
"CCI
Redemption Price", when used with respect to any CCI Notes to be redeemed,
means the price at which any such CCI Notes are to be redeemed pursuant to
the
Indenture.
"CCI
Repurchase Date" means a Fundamental Change Repurchase Date or a Five-Year
Repurchase Date, as the case may be.
"CCI
Repurchase Price" when used with respect to any CCI Notes to be repurchased,
means the price at which any such CCI Notes are to be repurchased pursuant
to
the Indenture.
"Holder"
means initially CCI, and any successor or assignee of CCI which acquires CCI's
interest in this Mirror Note pursuant to a transaction permitted by the
Indenture and by the organizational documents of Holder and
Obligor.
"Indenture"
has the meaning specified in the recitals.
"Manager"
means Charter Communications, Inc., in its capacity as manager of
Obligor.
"Membership
Units" means Class B Common Units of Obligor.
"Mirror
Conversion Rate" has the meaning specified in Section 6.01
hereof.
"Mirror
Default" means any event that is, or with the passage of time or the giving
of notice or both would be, a Mirror Event of Default.
"Mirror
Event of Default" has the meaning specified in Section 5.01
hereof.
"Mirror
Fundamental Change Repurchase Date" means a date that is one Business Day
prior to a Fundamental Change Repurchase Date under the Indenture.
"Mirror
Interest Payment Date" means the Stated Maturity of a payment of interest on
this Mirror Note.
"Mirror
Note" means this 6.50% Mirror Convertible Senior Note due 2027.
"Mirror
Redemption Date" means a date that is a CCI Redemption Date.
"Mirror
Redemption Price" has the meaning specified in Section 301.
"Mirror
Repurchase Date" means a date that is a CCI Repurchase Date.
"Mirror
Repurchase Price" has the meaning specified in Section 7.01
hereof.
"Principal
Amount" means, with respect to this Mirror Note, the original principal
amount on the Issue Date of $479,168,000 (Four Hundred Seventy-Nine Million
One
Hundred Sixty-Eight Thousand Dollars), as the same may be reduced from time
to
time by redemption, repurchase, conversion or otherwise.
"CCI
Redemption Make-Whole Amount" means the Redemption Make-Whole Amount
determined by Section 10.08 of the Indenture.
"Significant
Subsidiary" means any Subsidiary of Obligor which is a "Significant
Subsidiary" as defined in Rule l-02(w) of Regulation S-X under the Exchange
Act.
"Stated
Maturity", when used with respect to the principal amount of this Mirror
Note or any payment of interest thereon, means the date specified in such Mirror
Note as the fixed date on which such principal amount or such payment of
interest is due and payable.
Section
1.02. Rules of Construction.
Unless
the context otherwise requires:
(a)
a term has the meaning assigned to it;
(b)
an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c)
"or" is not exclusive and "including" is not limiting;
(d)
words in the singular include the plural, and in the plural include the
singular;
(e)
provisions apply to successive events and transactions;
(f)
references to sections of or rules under the Securities Act shall be deemed
to
include substitute, replacement of successor sections or rules adopted by the
Commission from time to time;
(g)
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; and
(h)
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
Mirror Note.
ARTICLE
2
MIRROR
NOTE TERMS
Section
2.01. Repayment Principal.
Obligor
promises to pay to Holder the outstanding Principal Amount of this Mirror Note
on October 1, 2027.
Section
2.02. Interest.
Obligor
promises to pay to Holder interest on the Principal Amount of this Mirror Note
at the rate of 6.50% per annum from October 2, 2007 until this Mirror Note
has
been repaid in full. Obligor will pay interest semi-annually in arrears on
April
1 and October 1 of each year (each a "Mirror Interest Payment Date"), or
if any such day is not a Business Day, on the next succeeding Business Day.
Interest on this Mirror Note will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance. The first Mirror Interest Payment Date shall be April 1, 2008. Obligor
shall pay interest (including post-petition interest in any proceeding under
any
Bankruptcy Law) on the overdue Principal Amount and premium, at a rate that
is
equal to 1% per annum in excess of the rate then in effect pursuant to
the
terms
of
this Mirror Note to the extent lawful; Obligor shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods) at
the
same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
Section
2.03. Method of Payment.
This
Mirror Note shall be payable as to principal, premium, if any, and interest
in
immediately available funds in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. All payments hereunder shall be made on the due date
or on the Business Day prior to the due date.
Section
2.04. Outstanding Principal Amount of Mirror Note.
To
the extent that any portion of the Principal Amount of this Mirror Note is
considered paid pursuant to Section 4.01, such amount shall cease to be
outstanding and cease to accrue interest.
Section
2.05. Defaulted Interest.
If
Obligor defaults in a payment of interest on this Mirror Note, it shall pay
the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest to Holder at the rate provided in Section
2.02
hereof, in the amounts, on the terms, and on the date on which Holder makes
any
required payment of defaulted interest on the CCI Notes.
ARTICLE
3
REDEMPTION
AND PREPAYMENT
Section
3.01. Redemption.
(a) If
Holder
has elected to exercise the option to redeem all or any portion of the CCI
Notes
by Holder pursuant to Section 3.07 of the Indenture, Obligor shall, on the
date
of such redemption, redeem a portion of this Mirror Note equal to 100% of the
aggregate principal amount of the CCI Notes being so redeemed. Such
redemption shall be for a redemption price (the "Mirror Redemption
Price") equal to the aggregate CCI Redemption Price being paid by Holder,
plus, subject to Section 3.02, interest accrued on the portion of this Mirror
Note being redeemed to but excluding the applicable CCI Redemption
Date. In addition, in the event that Holder is required to pay any
CCI Redemption Make Whole Amount, Obligor shall pay to Holder on such Mirror
Redemption Date an amount equal to such CCI Redemption Make Whole
Amount.
(b) If
and to the extent, as a result of the conversion of the CCI Notes for which
notice of redemption was given, Holder, rather than paying CCI Redemption
Price
(including
any CCI Redemption Make Whole Amount payable in respect thereof) in cash, issues
shares of Common Stock to the holders of the subject CCI Notes (including,
if
applicable, in payment of the CCI Redemption Make Whole Amount), Obligor shall
on the related Mirror Redemption Date issue Membership Units to Holder in a
number equal to the number of shares of Common Stock so issued by Holder to
holders of the CCI Notes, in lieu of all or the applicable portion of the cash
payment otherwise payable on such Mirror Redemption Date in respect of this
Mirror Note, as described in paragraph (a) of this Section 3.01.
Section
3.02. Payment of Mirror Redemption Price.
At
or prior to 9:30 a.m., New York City time on the Mirror Redemption Date, Obligor
shall pay to Holder the Mirror Redemption Price in respect of the portion of
this Mirror Note being redeemed on such Mirror Redemption Date.
If
Obligor complies with the provisions of the preceding paragraph, on and after
the Mirror Redemption Date, interest shall cease to accrue on the portion of
the
Principal Amount of this Mirror Note redeemed. If any of the CCI Notes are
redeemed on or after a Regular Record Date under the Indenture but on or prior
to the related Mirror Interest Payment Date, and any accrued and unpaid interest
is paid to the holders of such CCI Notes by Holder at the close of business
on
such Regular Record Date pursuant to the Indenture, then Obligor shall pay
to
Holder interest on this Mirror Note in an amount equal to the amount paid by
Holder to the holders of such CCI Notes. If Holder fails to redeem any CCI
Notes
in accordance with Section 3.05 of the Indenture and, as a result, interest
on
such CCI Notes accrues and becomes payable at the rate described in Section
3.05
of the Indenture, then interest payable by Obligor to Holder hereunder on such
Principal Amount hereof corresponding to the aggregate principal amount of
the
affected CCI Notes shall likewise accrue and become payable by Obligor to Holder
at the rate described in Section 3.05 of the Indenture, for so long as interest
on such CCI Notes remains payable at such rate.
Section
3.03. Mandatory Redemption.
Except
as otherwise provided in Article 7, Obligor shall not be required to make
mandatory redemption payments with respect to this Mirror Note.
ARTICLE
4
COVENANTS
Section
4.01. Payment of Mirror Note.
Obligor
shall pay or cause to be paid the principal, premium, if any, and interest
on
this Mirror Note on the dates and in the manner provided herein. Principal,
premium, if any, and interest shall be considered paid on the date due if Holder
holds as of 9:30 a.m. New York City time on the due date money deposited by
Obligor in immediately
available
funds and designated for and sufficient to pay all principal, premium, if any,
and interest then due.
Section
4.02. Limited Liability Company Existence.
Subject
to Article 5, Obligor shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its limited liability company
existence, and the corporate, partnership or other existence of each of its
Significant Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of Obligor or any
such
Significant Subsidiary and (ii) the rights (charter and statutory), licenses
and
franchises of Obligor and its Significant Subsidiaries;
provided,
however, that Obligor shall not be required to preserve any such right, license
or franchise, or the corporate, partnership or other existence of any of its
Significant Subsidiaries, if the Manager shall determine that the preservation
thereof is no longer desirable in the conduct of the business of Obligor and
its
Significant Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to Obligor.
Section
4.03. Stay, Extension and Usury Laws.
Obligor
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law wherever enacted, now or
at
any time hereafter in force, that may affect the covenants or the performance
of
this Mirror Note; and Obligor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law.
ARTICLE
5
DEFAULTS
AND REMEDIES
Section
5.01. Events of Default.
A
"Mirror Event of Default" shall have occurred if:
(a)
Obligor defaults in the payment when due of interest on this Mirror Note and
such default continues for a period of 30 days;
(b)
Obligor defaults in payment when due of the principal of or premium, if any,
on
this Mirror Notes; or
(c)
A CCI Event of Default has occurred.
Section
5.02. Acceleration.
Upon
the acceleration of any amounts payable by Holder pursuant to
Section
6.02
of
the Indenture, the same Principal Amount of this Mirror Note, together with
any
accrued and unpaid interest thereon, shall immediately and automatically become
due and payable by Obligor to Holder.
Holder
by written notice to Obligor may rescind an acceleration and its consequences
if
the rescission would not conflict with any judgment or decree and if all
existing CCI Events of Default under the Indenture (except nonpayment of
principal, interest or premium that has become due solely because of the
acceleration) have been cured or waived; provided that such rescission shall
be
automatic if such acceleration has been rescinded pursuant to the terms of
the
Indenture.
Section
5.03. Other Remedies.
If
a Mirror Event of Default occurs and is continuing, Holder may pursue any
available remedy to collect the payment of principal, premium, if any, and
interest on this Mirror Note or to enforce the performance of any provision
of
this Mirror Note.
A
delay or omission by Holder in exercising any right or remedy accruing upon
a
Mirror Event of Default shall not impair the right or remedy or constitute
a
waiver of or acquiescence in the Mirror Event of Default. All remedies are
cumulative to the extent permitted by law.
Section
5.04. Waiver of Existing Mirror Defaults.
Holder
by the adoption of a resolution of Holder's board of directors may waive an
existing Mirror Default or Mirror Event of Default and its consequences
hereunder; provided, that such waiver shall be automatic in the case of any
Mirror Event of Default predicated solely on a CCI Event of Default, to the
extent that the underlying CCI Event of Default has been cured or waived in
accordance with the Indenture. Upon any such waiver, such Mirror Default shall
cease to exist, and any Mirror Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Mirror Note; but no such
waiver shall extend to any subsequent or other Mirror Default or impair any
right consequent thereon.
ARTICLE
6
CONVERSION
OF MIRROR NOTE
Section
6.01. Conversion and Conversion Rate.
Subject
to and upon compliance with the provisions of this Article 6, upon conversion
of
any principal amount of the CCI Notes pursuant to the terms of the Indenture,
a
portion of this Mirror Note in a Principal Amount equal to the principal amount
of the CCI Notes so converted shall convert automatically into fully paid and
nonassessable (calculated as to each conversion to the nearest 1/100th of a
Membership Unit) Membership Units of Obligor at the Mirror Conversion Rate,
determined as hereinafter
provided,
in effect at the time of conversion, plus a number of Membership Units equal
to
the number of shares of Common Stock issued in payment of the CCI Redemption
Make Whole Amount if required to be paid by CCI to the converting holders of
the
CCI Notes pursuant to the terms of the Indenture and to the extent paid by
CCI
to such holders in Common Stock.
The
rate at which Membership Units shall be delivered upon conversion (herein called
the "Mirror Conversion Rate") shall be initially 293.3868 Membership
Units for each U.S. $1,000 principal amount of this Mirror Note. The Mirror
Conversion Rate shall be adjusted (rounded to four decimal places) in certain
instances as provided in this Article 6.
Notwithstanding
the foregoing, to the
extent the Holder elects pursuant to the terms of the Indenture to pay all
or
any portion of the conversion price of the CCI Notes (the "CCI Conversion
Price") being converted in cash rather than Common Stock, the Obligor shall
pay cash to the Holder in an amount equal to the portion of the CCI Conversion
Price of the CCI Notes being converted to be paid in cash by Holder, in lieu
of
issuing Membership Units to Holder; provided that if a One-for-One Event has
occurred, Obligor shall pay cash to the Holder in an amount based on the fair
market value of a Membership Unit.
Section
6.02. Conversion.
If
this Mirror Note, or a portion thereof, is converted during any Record Date
Period, Holder shall pay Obligor cash in an amount equal to the interest payable
on the related Mirror Interest Payment Date on the principal amount of this
Mirror Note being converted, provided that no such payment needs to be made
if
this Mirror Note or any portion thereof has been called for redemption on a
Mirror Redemption Date that is during that Record Date Period or is subject
to
repurchase on a Mirror Fundamental Change Repurchase Date occurring during
that
Record Date Period or unless any overdue interest exists at the time of
conversion with respect to this Mirror Note (and then only to the extent of
such
overdue interest). The interest payable on a Mirror Interest Payment Date when
this Mirror Note (or portion thereof, if applicable) is converted during the
Record Date Period shall be paid to Holder as of the related Regular Record
Date
in an amount equal to the interest that would have been payable on the portion
of this Mirror Note so converted if such amount had been converted as of the
close of business on such Mirror Interest Payment Date. Except as provided
in
this paragraph, no cash payment or adjustment shall be made upon any conversion
on account of any interest accrued from the Mirror Interest Payment Date next
preceding the conversion date, in respect of any portion of this Mirror Note
converted, or on account of any dividends on the Membership Units issued upon
conversion. Obligor's delivery to Holder of the number of Membership Units
into
which any portion of this Mirror Note is convertible will be deemed to satisfy
Obligor's obligation to pay such portion of the principal amount of this Mirror
Note.
If
any CCI notes are exchanged pursuant to Section 10.06 of the Indenture,
appropriate adjustments shall be made to the provisions of this Article 6 as
reasonably agreed by Holder and Obligor.
The
portion of the Principal Amount of this Mirror Note converted pursuant to this
Article 6 shall be deemed to have been converted immediately prior to the close
of business on the day of surrender of the CCI Notes that triggered the
conversion of such portion of this Mirror Note in accordance with the foregoing
provisions. At such time, the rights of Holder with respect to that portion
of
this Mirror Note that converted into Membership Units shall cease and Holder
shall be treated for all purposes as the record holder or holders of such
Membership Units at such time.
This
Mirror Note may be converted in part, but only if the principal amount to be
converted is any integral multiple of U.S. $1,000 and the principal amount
of
this Mirror Note to remain outstanding after such conversion is equal to U.S.
$1,000 or any integral multiple of $1,000 in excess thereof.
Section
6.03. Fractions of Membership Units.
No
fractional Membership Units shall be issued upon conversion of all or a portion
of this Mirror Note. Instead of any fractional Membership Unit which would
otherwise be issuable upon conversion of all or any portion of this Mirror
Note,
Obligor shall calculate and pay a cash adjustment in respect of such fraction
(calculated to the nearest 1/100th of a Membership Unit) in an amount equal
to
the same fraction of the Sale Price at the close of business on the day of
conversion (or round up the number of Membership Units issuable upon conversion
of any portion of this Mirror Note to the nearest whole Membership Unit if
Holder is rounding up to the nearest whole number of shares under Section 6.03
of the Indenture); provided that if a One-for-One Event has occurred, Obligor
shall deliver to Holder cash in the amount determined by multiplying the fair
market value of a Membership Unit by the fraction and rounding the result to
the
nearest whole cent.
Section
6.04. Adjustment of Conversion Rate.
(a)
The Mirror Conversion Rate shall be automatically adjusted upon each adjustment
of the Conversion Rate under the Indenture, by applying the applicable formula
for adjustment of the Conversion Rate to the Mirror Conversion Rate, so as
to
increase or decrease the Mirror Conversion Rate by a number of Membership Units
equal to the number of shares of Common Stock by which the Conversion Rate
is
increased or decreased under the Indenture.
(b)
Notwithstanding any other provision of this Section 6, if (i) any of Clause
(b)
of Article Third and Clauses (a)(ii) and (b)(iii) of Article Fourth of CCI's
Restated Certificate of Incorporation as in effect on the date hereof or
Sections 3.5.4, 3.6.1, 3.6.4(b), 3.6.4(c), and 5.1.7 of the Amended and Restated
Limited Liability Company Agreement of Obligor as in effect on the date hereof
has been amended so as to substantively modify the provisions thereof, or (ii)
CCI or Obligor is not in substantial compliance with the provisions described
in
clause (i) (each of the events described in clauses (i) and (ii) above, a
"One-for-One Event"), the Mirror Conversion Rate shall
not
be
adjusted pursuant to the Indenture and instead shall be adjusted upon the
occurrence of certain events affecting Holder's economic interest in Obligor
receivable upon conversion of the Mirror Note, including but not limited to
subdivisions or combinations of, or distributions of securities on the
Membership Units, to the extent necessary to reflect the economic interest
Holder would have had in Obligor if this Mirror Note had been converted prior
to
the occurrence of a One-for-One Event. In the event a One-for-One Event occurs,
the Mirror Conversion Rate shall be reasonably adjusted such that upon
conversion
of this Mirror Note, or a portion hereof, Holder shall be entitled to receive
the kind and amount of securities (or any successor securities) that Holder
would have owned if it had converted this Mirror Note, or such portion hereof,
immediately prior to the One-for-One Event and had retained the securities
received in such hypothetical conversion until after the event or events
requiring any adjustment to the Mirror Conversion Rate.
Section
6.05. Obligor to Reserve Membership Units.
Obligor
shall at all times reserve and keep available, free from preemptive rights,
out
of its authorized but unissued Membership Units, for the purpose of effecting
the conversion of all or any portion of the principal amount outstanding under
this Mirror Note, the full number of Membership Units issuable upon the
conversion of the entire principal amount outstanding from time to time under
this Mirror Note based upon the then effective Mirror Conversion
Rate.
Section
6.06. Taxes on Conversions.
Obligor
will pay any and all taxes and duties that may be payable in respect of the
issue or delivery of Membership Units on conversion of all or any portion of
this Mirror Note pursuant hereto.
Section
6.07. Representation Regarding Membership Units.
Obligor
represents that all Membership Units which may be delivered upon conversion
of
all or any portion of this Mirror Note, upon such delivery, will have been
duly
authorized and validly issued and will be fully paid and
nonassessable.
ARTICLE
7
REPURCHASE
OF AMOUNTS OUTSTANDING UNDER THIS MIRROR NOTE
Section
7.01. Mandatory Repurchase.
Upon
a repurchase of any CCI Notes by CCI (but not by a third party pursuant to
Section 11.02(f) pursuant to Article 11 of the Indenture), Obligor shall
repurchase a portion of the Principal Amount of this Mirror Note
equal to 100% of the aggregate principal amount of the CCI Notes so repurchased
at a price equal to the CCI Repurchase Price, plus interest accrued on this
Mirror Note to but excluding the Mirror Repurchase Date (the "Mirror
Repurchase Price"); provided, however, that installments of interest
on
the
portion of this Mirror Note whose Stated Maturity is on or prior to the CCI
Repurchase Date shall be payable to Holder according to the terms of this Mirror
Note. Whenever there is a reference, in any context, to the principal of this
Mirror Note as of any time, such reference shall be deemed to include reference
to the Mirror Repurchase Price payable in respect of amounts outstanding under
this Mirror Note to the extent that such Mirror Repurchase Price is, was or
would be so payable at such time, and express mention of the Repurchase Price
in
any provision of this Mirror Note shall not be construed as excluding the Mirror
Repurchase Price in those provisions of this Mirror Note when such express
mention is not made.
Section
7.02. Mechanics of Repurchase.
(1)
On each Mirror Repurchase Date, Obligor shall pay or cause to be paid to Holder
the Mirror Repurchase Price of the portion of this Mirror Note to be repurchased
in cash, or, if Membership Units are to be issued as provided above, such units
shall be issued as promptly after the CCI Repurchase Date as practicable;
provided, however, that installments of interest that mature on or prior to
the
CCI Repurchase Date shall be payable in cash to Holder.
(2)
If any portion of this Mirror Note to be repurchased pursuant to this Article
7
shall not be paid on the CCI Repurchase Date, such principal amount shall,
until
paid, bear interest to the extent permitted by applicable law from the CCI
Repurchase Date at the rate specified in Section 2.02 hereof and such unpaid
portion shall remain convertible into Membership Units until such portion shall
have been paid or duly provided for.
(3)
Any issuance of Membership Units in respect of the Mirror Repurchase Price
shall
be deemed to have been effected immediately prior to the close of business
on
the CCI Repurchase Date and Holder shall be deemed to have become on the CCI
Repurchase Date the holder of record of such Membership Units.
(4)
For purposes of this Section 7, the current market price of a share of Common
Stock is the Closing Price Per Share of the Common Stock on the Trading Day
immediately preceding the CCI Repurchase Date.
The
provisions of this Article 7 above that require the Obligor to repurchase all
or
a portion of this Mirror Note shall be applicable regardless of whether or
not
any other provisions in this Mirror Note are applicable.
ARTICLE
8
MISCELLANEOUS
Section
8.01. Notices.
Any
notice or communication by Obligor or Holder to the other is duly given if
in
writing and delivered in Person to the other's address:
If
to Obligor or Holder:
c/o
Charter Communications, Inc.
12405
Powerscourt Drive
St.
Louis, Missouri 63131
Facsimile:
(314) 965-8793
Attention:
Corporate Secretary
Obligor
or Holder, by notice to the other, may designate additional or different
addresses for subsequent notices or communications. All notices and
communications shall be deemed to have been duly given at the time delivered
by
hand.
Section
8.02. No Personal Liability of Directors, Officers, Employees, Members and
Equity Holders.
No
director, officer, employee, incorporator, member or equity holder of Obligor,
as such, shall have any liability for any obligations of Obligor under this
Mirror Note or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Holder by accepting this Mirror Note
waives and releases all such liability. This waiver and release are part of
the
consideration for issuance of this Mirror Note.
Section
8.03. Governing Law.
THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS
MIRROR NOTE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD
BE
REQUIRED THEREBY. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS MIRROR NOTE.
Section
8.04. No Adverse Interpretation of Other Agreements.
This
Mirror Note may not be used to interpret any other indenture, loan or debt
agreement of Holder, Obligor or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this Mirror
Note.
Section
8.05. Successors and Assigns.
All
agreements of Obligor in this Mirror Note shall bind its successors and assigns
and inure to the benefit of Holder.
Section
8.06. Severability.
In
case any provision in this Mirror Note shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
8.07. Headings, Sections, etc.
The
Headings of the Articles and Sections of this Mirror Note have been inserted
for
convenience of reference only, are not to be considered a part of this Mirror
Note and shall in no way modify or restrict any of the terms or
provisions.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF, the undersigned has caused this Mirror Note to be duly executed
as of the day and year first above written.
CHARTER
COMMUNICATIONS HOLDING COMPANY,
LLC
By:
Charter Communications, Inc., as manager
By: ___/s/
Thomas M. Degnan________
Name:
Thomas M.
Degnan
Title:
Vice President – Finance
and Corporate Treasurer