Execution Version
Exhibit 4.3
$500,000,000
CCO HOLDINGS, LLC
CCO HOLDINGS
CAPITAL CORP.
8-3/4% SENIOR NOTES
DUE 2013
PURCHASE AGREEMENT
Dated November 4, 2003
November 4, 2003
J.P. Morgan Securities Inc.
Banc of America Securities LLC
Citigroup Global Markets Inc.
Morgan Stanley & Co. Incorporated
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
CCO Holdings, LLC, a Delaware limited liability company (the
"Company"), and CCO Holdings Capital Corp., a Delaware corporation ("CCO
Holdings Capital" and, together with the Company, the "Issuers"), propose,
subject to the terms and conditions stated herein, to issue and sell to the
purchasers named in Schedule I hereto (the "Purchasers") an aggregate of
$500,000,000 principal amount of 8-3/4% Senior Notes due 2013 (the "Notes").
It is understood and agreed that all the Purchasers are joint
book-running managers for the offering of the Notes (in such capacity, the
"Joint Managers"). Any determinations or other actions to be made under this
Agreement by the Joint Managers shall require the consent of J.P. Morgan
Securities Inc.
In connection with the sale of the Notes, the Issuers have
prepared an offering memorandum, dated November 4, 2003 (the "Offering
Memorandum"). The Offering Memorandum sets forth certain information concerning
the Issuers and the Notes. The Issuers hereby confirm that they have authorized
the use of the Offering Memorandum, and any amendment or supplement thereto, in
connection with the offer and sale of the Notes by the Purchasers.
1. Representations and Warranties of the Issuers. The Issuers
represent and warrant to, and agree with, each of the Purchasers that:
(a) The Offering Memorandum and any amendments or supplements
thereto does not and will not, as of their respective dates, contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information relating to the
Purchasers furnished in writing to the Issuers by or on behalf of a
Purchaser through the Joint Managers expressly for use therein;
(b) None of the Issuers or any of their subsidiaries has
sustained since the date of the latest audited financial statements
included in the Offering Memorandum any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Offering Memorandum; and, since the respective dates as of which
information is given in the Offering Memorandum, there has not been any
change in the capital stock or limited liability company interests or
long-term debt of the Issuers or any of their subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, members' or stockholders' equity or
results of operations of Charter Communications, Inc. ("CCI"), Charter
Communications Holding Company, LLC ("CCH LLC"), Charter Communications
Holdings, LLC ("Holdings") CCH I, LLC and CCH II, LLC (collectively
with CCI, CCH LLC, Holdings and CCH I, LLC, the "Parent Companies"),
the Issuers and each of the Issuers' subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Offering Memorandum;
(c) Each of the Issuers and its subsidiaries has good and
marketable title in fee simple to all real property and good and valid
title to all personal property owned by it reflected as owned in the
financial statements included in or elsewhere in the Offering
Memorandum, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Offering Memorandum or
except such as do not materially affect the value of such property and
do not interfere with the use made and proposed to be made of such
property by the Issuers and their subsidiaries; and any real property
and buildings held under lease by the Issuers and their subsidiaries
are held by them under valid, subsisting and enforceable leases with
such exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by the
Issuers and their subsidiaries;
(d) The Company has been duly formed and is validly existing
as a limited liability company in good standing under the laws of the
State of Delaware, and CCO Holdings Capital has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the State of Delaware; each of the Issuers has power and
authority to own its properties and conduct its business as described
in the Offering Memorandum and to execute, deliver and perform its
obligations under this Agreement, and has been duly qualified as a
foreign corporation or limited liability company, as the case may be,
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, and is not
subject to liability or disability by reason of the failure to be so
qualified in any such jurisdiction, except such as would not,
individually or in the aggregate, have a material adverse effect on the
current or future financial position, members' or stockholders' equity
or results of operations of the Parent Companies, the Issuers and the
Issuers' subsidiaries, taken as a whole (a "Material Adverse Effect");
each Parent Company and each of the Issuer's subsidiaries has been duly
incorporated or formed, as the case may be, and is validly existing as
a corporation or limited liability company, as the case may be, in good
standing under the laws of its jurisdiction of incorporation or
formation, in each case except such as would, individually
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or in the aggregate, not result in a Material Adverse Effect. CCO
Holdings Capital has no subsidiaries;
(e) All the outstanding ownership interests of the Issuers
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all the outstanding capital stock or limited
liability company interests, as the case may be, of CCO Holdings
Capital and each "significant subsidiary" (as such term is defined in
Rule 1-02 of Regulation S-X) of the Company (each a "Significant
Subsidiary") of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except as otherwise set
forth in the Offering Memorandum) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims;
(f) This Agreement has been duly authorized and executed by
each of the Issuers;
(g) The Notes have been duly authorized and, when executed by
the Issuers and authenticated by the Trustee (as defined) in accordance
with the provisions of the Indenture (as defined) and when delivered
to, and paid for, by the Purchasers in accordance with the terms of
this Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of
the Issuers entitled to the benefits provided by the indenture dated as
of November 10, 2003 (the "Indenture") between the Issuers and Wells
Fargo Bank, N.A., as trustee (the "Trustee"), under which they are to
be issued and enforceable against the Issuers in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(h) The Indenture has been duly authorized, and when executed
and delivered by the Issuers (assuming the due execution and delivery
thereof by the Trustee), will constitute a valid and legally binding
instrument, enforceable against the Issuers in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the
Indenture meets the requirements for qualification under the United
States Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"); and the Indenture conforms in all material respects to the
descriptions thereof in the Offering Memorandum;
(i) The exchange and registration rights agreement to be
entered into between the Issuers and the Purchasers relating to the
Notes, substantially in the form of Exhibit A hereto (the "Registration
Rights Agreement"), has been duly authorized by the Issuers, and when
executed and delivered by the Issuers (assuming the due execution and
delivery thereof by the Purchasers), will constitute a valid and
legally binding instrument, enforceable against the Issuers in
accordance with its terms, except that (i) the enforcement thereof may
be subject to (A) bankruptcy, insolvency, reorganization and other laws
of general applicability relating to creditors' rights and (B) general
principles of equity, and (ii) any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and
public policy considerations; and the Registration Rights Agreement
will conform in all material respects to the description thereof in the
Offering Memorandum;
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(j) The Exchange Notes (as defined in the Registration Rights
Agreement) have been duly authorized by the Issuers and, when executed,
authenticated, issued and delivered in accordance with the applicable
Indenture and Registration Rights Agreement (assuming the due
authorization, execution and delivery of the Indenture by the Trustee),
will constitute valid and legally binding instruments, entitled to the
benefits provided by the applicable Indenture, and enforceable against
the Issuers in accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general equity principles; and the Exchange Notes will conform in
all material respects to the description thereof in the Offering
Memorandum;
(k) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Notes) will violate or result in a violation of Section 7 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any regulation promulgated thereunder, including, without limitation,
Regulations T, U, and X of the Board of Governors of the Federal
Reserve System;
(l) Prior to the date hereof, none of the Issuers or any of
their affiliates has taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the
Issuers in connection with the offering of the Notes.
(m) The issue and sale of the Notes and the compliance by the
Issuers with all provisions of the Notes, the Indenture, the
Registration Rights Agreement and this Agreement and the consummation
of the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement, lease, license, franchise agreement,
permit or other agreement or instrument to which the Issuers, the
Parent Companies or any of the Issuers' subsidiaries is a party or by
which the Issuers, the Parent Companies or any of the Issuers'
subsidiaries is bound or to which any of the property or assets of the
Issuers, the Parent Companies or any of the Issuers' subsidiaries is
subject, nor will such action result in any violation of any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Issuers, the Parent Companies or any
of the Issuers' subsidiaries or any of their properties, including,
without limitation, the Communications Act of 1934, as amended, the
Cable Communications Policy Act of 1984, as amended, the Cable
Television Consumer Protection and Competition Act of 1992, as amended,
and the Telecommunications Act of 1996 (collectively, the "Cable Acts")
or any order, rule or regulation of the Federal Communications
Commission (the "FCC"), except where such conflicts, breaches,
violations or defaults would not, individually or in the aggregate,
have a Material Adverse Effect and would not have the effect of
preventing the Issuers from performing any of their respective
obligations under this Agreement; nor will such action result in any
violation of the certificate of formation or limited liability company
agreement of the Company or the certificate of incorporation or bylaws
of CCO Holdings Capital; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required, including, without limitation,
under the Cable Acts or any order, rule or regulation of the FCC, for
the issue and sale of the Notes or the consummation by the Issuers of
the transactions contemplated by this Agreement, the Indenture or the
Registration Rights Agreement, except such consents, approvals,
authorizations, registrations or qualifications as have
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been made or except as may be required under state or foreign
securities or Blue Sky laws in connection with the purchase and
distribution of the Notes by the Purchasers and except such as will be
made in the case of the Registration Rights Agreement or such as may be
required by the National Association of Securities Dealers, Inc.
("NASD");
(n) None of the Issuers, the Parent Companies or any of the
Issuers' subsidiaries is (i) in violation of its certificate of
incorporation, bylaws, certificate of formation, limited liability
company agreement or other organizational document, as the case may be,
(ii) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease, license, permit or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound or (iii) in violation of the terms of any
franchise agreement, or any law, statute, rule or regulation or any
judgment, decree or order, in any such case, of any court or
governmental or regulatory agency or other body having jurisdiction
over the Issuers, the Parent Companies or any of the Issuers'
subsidiaries or any of their properties or assets, including, without
limitation, the Cable Acts or any order, rule or regulation of the FCC,
except, in the case of clauses (ii) and (iii), such as would not,
individually or in the aggregate, have a Material Adverse Effect;
(o) The statements set forth in the Offering Memorandum under
the caption "Description of Notes," insofar as it purports to
constitute a summary of the terms of the Notes, and under the captions
"Risk Factors," "Business," "Regulation and Legislation," "Management,"
"Certain Relationships and Related Party Transactions," "Description of
Certain Indebtedness," "Exchange Offer; Registration Rights," and
"Important United States Federal Income Tax Considerations" insofar as
they purport to describe the provisions of the laws, documents and
arrangements referred to therein, are accurate in all material
respects;
(p) Other than as set forth in the Offering Memorandum, there
are no legal or governmental proceedings (including, without
limitation, by the FCC or any franchising authority) pending to which
the Issuers, the Parent Companies or any of the Issuers' subsidiaries
is a party or of which any property of the Issuers, the Parent
Companies or any of the Issuers' subsidiaries is the subject which, if
determined adversely with respect to the Issuers, any of the Parent
Companies or any of the Issuers' subsidiaries, would, individually or
in the aggregate, have a Material Adverse Effect; and, to the best
knowledge of the Issuers and except as disclosed in the Offering
Memorandum, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(q) Each of the Issuers, the Parent Companies and the Issuers'
subsidiaries carries insurance (including, without limitation,
self-insurance) in such amounts and covering such risks as in the
reasonable determination of the Issuers is adequate for the conduct of
its business and the value of its properties;
(r) Except as set forth in the Offering Memorandum, there is
no strike, labor dispute, slowdown or work stoppage with the employees
of any of the Issuers or their subsidiaries which is pending or, to the
best knowledge of the Issuers, threatened which would, individually or
in the aggregate, have a Material Adverse Effect;
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(s) When the Notes are issued and delivered pursuant to this
Agreement, the Notes will not be of the same class (within the meaning
of Rule 144A under the Securities Act of 1933, as amended, (the "Act"))
as securities which are listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S.
automated inter-dealer quotation system;
(t) Neither Issuer is, or after giving effect to the offering
and sale of the Notes will be, an "investment company" or any entity
"controlled" by an "investment company" as such terms are defined in
the U.S. Investment Company Act of 1940, as amended (the "Investment
Company Act");
(u) None of the Issuers or any of their affiliates, nor any
person authorized to act on their behalf (other than the Purchasers, as
to whom the Issuers make no representations) has, directly or
indirectly, made offers or sales of any security, or solicited offers
to buy any security, under circumstances that would require the
registration of the Notes under the Act;
(v) None of the Issuers or any of the Parent Companies or the
Issuers' subsidiaries, or any person authorized to act on their behalf
(other than the Purchasers, as to whom the Issuers make no
representation) has offered or sold, the Notes by means of any general
solicitation or general advertising within the meaning of Rule 502(c)
under the Act or, with respect to Notes sold outside the United States
to non-U.S. persons (as defined in Rule 902 under the Act), by means of
any directed selling efforts within the meaning of Rule 902 under the
Act and the Issuers, any affiliate of the Issuers and any person
authorized to act on their behalf (other than the Purchasers, as to
whom the Issuers make no representation) has complied with and will
implement the "offering restriction within the meaning of such Rule
902;
(w) Within the preceding six months, none of the Issuers or
any other person authorized to act on their behalf (other than the
Purchasers, as to whom the Issuers make no representations) has offered
or sold to any person any Notes, or any securities of the same or a
similar class as the Notes, other than Notes offered or sold to the
Purchasers hereunder. The Issuers will take reasonable precautions
designed to ensure that any offer or sale, direct or indirect, in the
United States or to any U.S. person (as defined in Rule 902 under the
Act) of any Notes or any substantially similar security issued by the
Issuers, within six months subsequent to the date on which the
distribution of the Notes has been completed (as notified to the
Issuers by the Joint Managers), is made under restrictions and other
circumstances reasonably designed not to affect the status of the offer
and sale of the Notes in the United States and to U.S. persons
contemplated by this Agreement as transactions exempt from the
registration provisions of the Act;
(x) The consolidated financial statements (including the notes
thereto) included in the Offering Memorandum present fairly in all
material respects the respective consolidated financial positions,
results of operations and cash flows of the entities to which they
relate at the dates and for the periods to which they relate and have
been prepared in accordance with U.S. generally accepted accounting
principles ("GAAP") applied on a consistent basis (except as otherwise
noted therein). The selected historical financial data in the Offering
Memorandum present fairly in all material respects the information
shown therein and, except with respect to the selected historical
financial data for the calendar years ended December 31, 1998 and 1999
(which in each
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case have not been restated), have been prepared and compiled on a
basis consistent with the audited financial statements included
therein;
(y) The pro forma financial information included in the
Offering Memorandum (i) complies as to form in all material respects
with the applicable requirements of Regulation S-X for Form S-1
promulgated under the Exchange Act, and (ii) has been properly computed
on the bases described therein; the assumptions used in the preparation
of the pro forma financial information included in the Offering
Memorandum are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances
referred to therein;
(z) The firm who has certified financial statements included
in the Offering Memorandum is a firm of independent public accountants
as required by the Act and the rules and regulations of the Securities
and Exchange Commission (the "Commission") thereunder, based upon
representations by such firm to us;
(aa) The Issuers, the Parent Companies and the Issuers'
subsidiaries own or possess, or can acquire on reasonable terms,
adequate licenses, trademarks, service marks, trade names and
copyrights (collectively, "Intellectual Property") necessary to conduct
the business now or proposed to be operated by each of them as
described in the Offering Memorandum, except where the failure to own,
possess or have the ability to acquire any Intellectual Property would
not, individually or in the aggregate, have a Material Adverse Effect;
and none of the Issuers or any of the Parent Companies or the Issuers'
subsidiaries has received any notice of infringement of or conflict
with (and none actually knows of any such infringement of or conflict
with) asserted rights of others with respect to any Intellectual
Property which, if any such assertion of infringement or conflict were
sustained would, individually or in the aggregate, have a Material
Adverse Effect;
(bb) Except as described in the Offering Memorandum, the
Issuers, the Parent Companies and the Issuers' subsidiaries have
obtained all consents, approvals, orders, certificates, licenses,
permits, franchises and other authorizations of and from, and have made
all declarations and filings with, all governmental and regulatory
authorities (including, without limitation, the FCC), all
self-regulatory organizations and all courts and other tribunals
legally necessary to own, lease, license and use their respective
properties and assets and to conduct their respective businesses in the
manner described in the Offering Memorandum, except to the extent that
the failure to so obtain or file would not, individually or in the
aggregate, have a Material Adverse Effect;
(cc) The Issuers, the Parent Companies and the Issuers'
subsidiaries have filed all necessary federal, state and foreign income
and franchise tax returns required to be filed as of the date hereof,
except where the failure to so file such returns would not,
individually or in the aggregate, have a Material Adverse Effect, and
have paid all taxes shown as due thereon; and there is no tax
deficiency that has been asserted against the Issuers or any of their
subsidiaries that could reasonably be expected to result, individually
or in the aggregate, in a Material Adverse Effect;
(dd) The Issuers, the Parent Companies and the Issuers'
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of
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financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences;
(ee) Except as described in the Offering Memorandum: (i) each
of the franchises held by, or necessary for any operations of, the
Issuers and their subsidiaries that are material to the Issuers and
their subsidiaries, taken as a whole, is in full force and effect, with
no material restrictions or qualifications; (ii) to the best knowledge
of the Issuers, no event has occurred which permits, or with notice or
lapse of time or both would permit, the revocation or non-renewal of
any such franchises, assuming the filing of timely renewal applications
and the timely payment of all applicable filing and regulatory fees to
the applicable franchising authority, or which would be reasonably
likely to result, individually or in the aggregate, in any other
material impairment of the rights of the Issuers and the Issuers'
subsidiaries in such franchises; and (iii) the Issuers have no reason
to believe that any franchise that is material to the operation of the
Issuers and their subsidiaries will not be renewed;
(ff) Each of the programming agreements entered into by, or
necessary for any operations of, the Issuers, their Parent Companies or
subsidiaries that are material to the Issuers and their subsidiaries,
taken as a whole, is in full force and effect (or in any cases where
the Issuers or their subsidiaries and any suppliers of content are
operating in the absence of an agreement, such content providers and
the Issuers and their subsidiaries provide and receive service in
accordance with terms that have been agreed to or consistently
acknowledged or accepted by both parties, including, without
limitation, situations in which providers or suppliers of content
accept regular payment for the provision of such content); and to the
best knowledge of the Issuers, no event has occurred (or with notice of
lapse of time or both would occur) which would be reasonably likely to
result in the early termination or non-renewal of any such programming
agreements and which would, individually or in the aggregate, result in
a Material Adverse Effect. No amendments or other changes to such
programming agreements, other than amendments relating to intra-company
transfers, extensions of termination dates or pricing adjustments,
together with other changes that are not in the aggregate material,
have been made to the copies of the programming agreements provided for
the review of the Purchasers or their representatives;
(gg) The Issuers, the Parent Companies and the Issuers'
subsidiaries (i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
individually or in the aggregate, have a Material Adverse Effect;
(hh) Immediately after the consummation of this offering
(including after giving effect to the execution, delivery and
performance of this Agreement and the
8
Indenture and the issuance and sale of the Notes), (i) the fair market
value of the assets of each of Holdings, CCH I, LLC, CCH II, LLC and
the Company, each on a consolidated basis with its subsidiaries,
exceeds and will exceed its liabilities, on a consolidated basis with
its subsidiaries; (ii) the present fair saleable value of the assets of
each of Holdings, CCH I, LLC, CCH II, LLC and the Company, each on a
consolidated basis with its subsidiaries, exceeds and will exceed its
liabilities, on a consolidated basis with its subsidiaries; (iii) each
of Holdings, CCH I, LLC, CCH II, LLC and the Company, each on a
consolidated basis with its subsidiaries, is and will be able to pay
its debts, on a consolidated basis with its subsidiaries, as such debts
respectively mature or otherwise become absolute or due; and (iv) each
of Holdings, CCH I, LLC, CCH II, LLC and the Company, on a consolidated
basis with its subsidiaries, does not have and will not have
unreasonably small capital with which to conduct its respective
operations;
(ii) The Issuers and their Parent Companies each maintain a
system of disclosure controls and procedures to ensure that material
information relating to the Issuers and their Parent Companies,
including their consolidated subsidiaries, is made known to each of
them by others within those entities, particularly during the period in
which the periodic reports are being prepared;
(jj) There is, and has been, no failure on the part of the
Issuers, the Parent Companies or the Issuers' subsidiaries, or any of
their directors or officers, in their capacities as such, to comply
with any provision of the Sarbanes Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith, including, without
limitation, Section 402 related to loans and Sections 302 and 906
related to certifications;
(kk) The statistical and market-related data included in the
Offering Memorandum are based on or derived from sources that the
Issuers believe to be reliable and accurate; and
(ll) Each of the relationships and transactions specified in
Item 404 of Regulation S-K that would have been required to be
described in a prospectus if this offering had been registered under
the Act have been so described in the Offering Memorandum (exclusive of
any amendment or supplement thereto).
2. Purchase and Sale. Subject to the terms and conditions
herein set forth, the Issuers agree to issue and sell to each of the Purchasers,
and each of the Purchasers agrees, severally and not jointly, to purchase from
the Issuers the principal amount of the Notes set forth opposite the name of
such Purchaser in Schedule I hereto, at an aggregate purchase price of
$492,771,000 (representing 98.5542% of the gross proceeds thereof).
3. Representations, Warranties and Covenants of the
Purchasers. Upon the authorization by you of the release of the Notes, the
several Purchasers propose to offer the Notes for sale upon the terms and
conditions set forth in this Agreement and the Offering Memorandum and each
Purchaser, severally and not jointly, hereby represents and warrants to, and
agrees with the Issuers that:
(a) It will offer and sell the Notes only: (i) to persons who
it reasonably believes are "qualified institutional buyers" ("QIBs")
within the meaning of Rule 144A under the Act in transactions meeting
the requirements of Rule 144A or (ii) upon the terms and conditions set
forth in Annex I to this Agreement;
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(b) It is an institutional "accredited investor" within the
meaning of Regulation D under the Act; and
(c) It has not offered and will not offer or sell the Notes by
any form of general solicitation or general advertising, including,
without limitation, the methods described in Rule 502(c) under the Act.
4. Delivery and Payment.
(a) The Notes to be purchased by each Purchaser hereunder will
be represented by definitive global Notes in book-entry form which will
be deposited by or on behalf of the Issuers with The Depository Trust
Company ("DTC") or its designated custodian. The Issuers will deliver
the Notes to J.P. Morgan Securities Inc., for the account of each
Purchaser, against payment by or on behalf of such Purchaser of the
purchase price therefor by wire transfer of same day funds wired in
accordance with the written instructions of the Company, by causing DTC
to credit the Notes to the account of J.P. Morgan Securities Inc. at
DTC. The Issuers will cause the certificates representing the Notes to
be made available to J.P. Morgan Securities Inc. for checking at least
twenty-four hours prior to the Time of Delivery at the office of DTC or
its designated custodian (the "Designated Office"). The time and date
of such delivery and payment shall be 9:30 a.m., New York City time, on
November 10, 2003 or such other time and date as J.P. Morgan Securities
Inc. and the Issuers may agree upon in writing. Such time and date are
herein called the "Time of Delivery."
(b) The documents to be delivered at the Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof,
including, without limitation, the cross-receipt for the Notes and any
additional documents requested by the Purchasers pursuant to Section
7(j) hereof, will be delivered at such time and date at the offices of
Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York 10153
or such other location as the parties mutually agree (the "Closing
Location"), and the Notes will be delivered at the Designated Office,
all at the Time of Delivery. A meeting will be held at the Closing
Location at 3 p.m., New York City time, on the New York Business Day
next preceding the Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the purposes of
this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated
by law or executive order to close.
5. Agreements. Each of the Issuers agrees with each of the
Purchasers:
(a) To prepare the Offering Memorandum in a form approved by
you; to make no amendment or any supplement to the Offering Memorandum
which shall not be approved by you promptly after reasonable notice
thereof; and to furnish you with copies thereof;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Notes for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Notes, provided that in connection
therewith
10
the Issuers shall not be required to qualify as a foreign corporation
or limited liability company, as the case may be, or to file a general
consent to service of process in any jurisdiction;
(c) To furnish the Purchasers with copies of the Offering
Memorandum and each amendment or supplement thereto signed by an
authorized officer of each of the Issuers with the independent
accountants' reports in the Offering Memorandum, and any amendment or
supplement containing amendments to the financial statements covered by
such reports, signed by the accountants, and additional copies thereof
in such quantities as you may from time to time reasonably request, and
if, at any time prior to the expiration of nine months after the date
of the Offering Memorandum, any event shall have occurred as a result
of which the Offering Memorandum as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Offering Memorandum is delivered, not misleading, or, if for any other
reason it shall be necessary or desirable during such same period to
amend or supplement the Offering Memorandum, to notify you and upon
your request to prepare and furnish without charge to each Purchaser
and to any dealer in securities as many copies as you may from time to
time reasonably request of an amended Offering Memorandum or a
supplement to the Offering Memorandum which will correct such statement
or omission or effect such compliance;
(d) During the period beginning from the date hereof and
continuing until the date 90 days after the Time of Delivery, not to,
and not permit any of its affiliates or anyone authorized to act on
behalf of the Issuers or their affiliates to, without the prior written
consent of J.P. Morgan Securities Inc., offer, sell, contract to sell
or otherwise dispose of, except as provided hereunder, any securities
of the Issuers that are substantially similar to the Notes other than
as provided in the Registration Rights Agreement;
(e) Not to be or become, at any time prior to the expiration
of two years after the Time of Delivery, an open-end investment
company, unit investment trust, closed-end investment company or
face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act;
(f) At any time when any Issuer is not subject to or in
compliance with Section 13 or 15(d) of the Exchange Act, for the
benefit of holders from time to time of Notes, to furnish at the
Issuers' expense, upon request, to holders of Notes and prospective
purchasers of securities information (the "Additional Issuer
Information") satisfying the requirements of subsection (d)(4)(i) of
Rule 144A under the Act;
(g) If such documents are not then available on the
Commission's EDGAR Database, to furnish or make electronically
available to the holders of the Notes as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, members' or stockholders' equity and cash flows
of the Issuers and their consolidated subsidiaries certified by
independent public accountants), and, as soon as practicable after the
end of each of the first three quarters of each fiscal year (beginning
with the fiscal quarter ending after the date of the Offering
Memorandum), to make electronically available to holders of the Notes
consolidated summary financial information of the Issuers and their
subsidiaries for such quarter in reasonable detail;
11
(h) If such documents are not then available on the
Commission's EDGAR Database, during a period of three years from the
date of the Offering Memorandum, to furnish or make electronically
available to you, copies of all reports or other communications
(financial or other) furnished to holders of ownership interests of the
Issuers or CCI, and to furnish or make electronically available to you,
as soon as they are available, of any reports and financial statements
furnished to or filed with the Commission or any securities exchange on
which the Notes or any class of securities of the Issuers or CCI is
listed;
(i) During the period of two years after the Time of Delivery,
the Issuers will not, and will not permit any of their "affiliates" (as
defined in Rule 144 under the Act) to, resell any of the Notes which
constitute "restricted securities" under Rule 144 that have been
reacquired by any of them;
(j) To use the net proceeds received from the sale of the
Notes pursuant to this Agreement in the manner specified in the
Offering Memorandum under the caption "Use of Proceeds;"
(k) None of the Issuers or any of their affiliates, nor any
person authorized to act on their behalf (other than the Purchasers, as
to whom the Issuers take no responsibility) will engage in any directed
selling efforts with respect to the Notes in contravention of, and each
of them will comply with, the applicable offering restrictions
requirement of Regulation S. Terms used in this paragraph have the
meanings given to them by Regulation S;
(l) None of the Issuers or any of their affiliates, nor any
person authorized to act on their behalf (other than the Purchasers, as
to whom the Issuers take no responsibility) will, directly or
indirectly, make offers or sales of any security, or solicit offers to
buy any security, under circumstances that would require the
registration of the Notes under the Act, except pursuant to the
Registration Rights Agreement;
(m) None of the Issuers or any of their affiliates, nor any
person authorized to act on their behalf (other than the Purchasers, as
to whom the Issuers take no responsibility), will engage in any form of
general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the Notes in the
United States;
(n) Except as otherwise permitted by Regulation M under the
Exchange Act, none of the Issuers or any of their affiliates will take,
directly or indirectly, any action designed to or which has constituted
or which would reasonably be expected to cause or result, under the
Exchange Act or otherwise, in stabilization or manipulation of the
price of any security of the Issuers to facilitate the sale or resale
of the Notes; and
(o) The Issuers will use their best efforts prior to the Time
of Delivery to cause the Notes to be eligible for the PORTAL trading
system of the NASD.
6. Agreement to Pay Certain Fees. Each of the Issuers
covenants and agrees with the several Purchasers that the Issuers will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the
Issuers' counsel and accountants in connection with the issue of the Notes and
all other expenses in connection with the preparation, printing and filing of
the Offering Memorandum and any amendments and supplements thereto and the
12
mailing and delivering of copies thereof to the Purchasers and dealers; (ii) the
cost of printing or producing any Agreement among Purchasers, this Agreement,
the Indenture, the Registration Rights Agreement, the Blue Sky and Legal
Investment Memoranda, closing documents (including, without limitation, any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Notes; (iii) all expenses in connection with
the qualification of the Notes for offering and sale under state securities laws
as provided in Section 5(b) hereof, including, without limitation, the fees and
disbursements of counsel for the Purchasers in connection with such
qualification and in connection with the Blue Sky and Legal Investment surveys;
(iv) any fees charged by securities rating services for rating the Notes; (v)
the cost of preparing the Notes; (vi) the fees and expenses of the Trustee and
any agent of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Notes; (vii) any cost incurred
in connection with the designation of the Notes for trading in PORTAL; and
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 8 and 11 hereof; the Purchasers will pay all their own costs and
expenses, including, without limitation, the fees of their counsel, transfer
taxes on resale of any of the Notes by them, and any advertising expenses
connected with any offers they may make.
7. Conditions to the Obligations of the Purchasers. The
obligations of the Purchasers hereunder shall be subject, in their discretion,
to the condition that all representations and warranties and other statements of
the Issuers herein are, at and as of the date hereof and the Time of Delivery,
true and correct, the condition that the Issuers shall have performed all their
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Purchasers shall have received from Weil, Gotshal &
Manges LLP, counsel for the Purchasers, such opinion or opinions, dated
the Time of Delivery and addressed to the Purchasers, with respect to
the issuance and sale of the Notes, the Indenture, the Registration
Rights Agreement, the Offering Memorandum (as amended or supplemented
at the Time of Delivery) and other related matters as the Purchasers
may reasonably require, and the Issuers shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(b) Irell & Manella LLP, counsel for the Issuers, shall have
furnished to you their written opinion, dated the Time of Delivery,
substantially in the form of Annex II hereto.
(c) Cole, Raywid & Braverman, L.L.P., special regulatory
counsel to the Issuers, shall have furnished to you their written
opinion, dated the Time of Delivery, in form and substance reasonably
satisfactory to you, to the effect that:
(i) The issue and sale of the Notes and the
compliance by the Issuers with all the provisions of the
Notes, the Indenture, the Registration Rights Agreement and
this Agreement and the consummation of the transactions herein
and therein contemplated do not and will not contravene the
Cable Acts or any order, rule or regulation of the FCC to
which the Issuers or any of their Parent Companies or
subsidiaries or any of their property is subject. However, to
the extent that any document purports to grant a security
interest in licenses issued by the FCC, the FCC has taken the
position that security interests in FCC licenses are not
valid. To the extent that any party seeks to exercise control
of an
13
FCC license in the event of a default or for any other reason,
it may be necessary to obtain prior FCC consent;
(ii) To the best of such counsel's knowledge, no
consent, approval, authorization or order of, or registration,
qualification or filing with the FCC is required under the
Cable Acts or any order, rule or regulation of the FCC in
connection with the issue and sale of the Notes and the
compliance by the Issuers with all the provisions of the
Notes, the Indenture, the Registration Rights Agreement and
this Agreement and the consummation of the transactions herein
and therein contemplated. However, to the extent that any
document purports to grant a security interest in licenses
issued by the FCC, the FCC has taken the position that
security interests in FCC licenses are not valid. To the
extent that any party seeks to exercise control of an FCC
license in the event of a default or for any other reason, it
may be necessary to obtain prior FCC consent;
(iii) The statements set forth in the Offering
Memorandum under the captions "Risk Factors" under the
subheading "Risks Relating to Regulatory and Legislative
Matters" and in "Regulation and Legislation," insofar as they
constitute summaries of laws referred to therein, concerning
the Cable Acts and the published rules, regulations and
policies promulgated by the FCC thereunder, fairly summarize
the matters described therein;
(iv) To the knowledge of such counsel based solely
upon its review of publicly available records of the FCC and
operational information provided by the Issuers' and their
Parent Companies and subsidiaries' management, the Company and
its Parent Companies and subsidiaries hold all FCC licenses
for cable antenna relay services necessary to conduct the
business of the Company and its subsidiaries as currently
conducted, except to the extent the failure to hold such FCC
licenses would not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect; and
(v) Except as disclosed in the Offering Memorandum
and except with respect to rate regulation matters, and
general rulemakings and similar matters relating generally to
the cable television industry, to such counsel's knowledge,
based solely upon its review of the publicly available records
of the FCC and upon inquiry of the Issuer's and their Parent
Companies' and subsidiaries' management, during the time the
cable systems of the Company and its Parent Companies and
subsidiaries have been owned by the Company and its Parent
Companies and subsidiaries (A) there has been no adverse FCC
judgment, order or decree issued by the FCC relating to the
ongoing operations of any of the Company or one of its
subsidiaries that has had or could reasonably be expected to
have a Material Adverse Effect; and (B) there are no actions,
suits, proceedings, inquiries or investigations by or before
the FCC pending or threatened in writing against or
specifically affecting the Company or any of its Parent
Companies or subsidiaries or any cable system of the Company
or any of its Parent Companies or subsidiaries which could,
individually or in the aggregate, be reasonably expected to
result in a Material Adverse Effect;
(d) Curtis Shaw, Esq., General Counsel of the Company, shall
have furnished to you his written opinion, dated as of the Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
14
(i) Each subsidiary of the Company listed on a
schedule attached to such counsel's opinion (the "Charter
Subsidiaries") has been duly incorporated or formed, as the
case may be, and is validly existing as a corporation, limited
liability company or partnership, as the case may be, in good
standing under the laws of its jurisdiction of incorporation
or formation; and all the issued shares of capital stock,
limited liability company interests or partnership interests,
as the case may be, of each Charter Subsidiary are set forth
on the books and records of the Company and, except for those
Charter Subsidiaries that are general partners, assuming
receipt of requisite consideration therefor, are fully paid
and non-assessable (in the case of corporate entities) and not
subject to additional capital contributions (in the case of
limited liability company entities and limited partnerships);
and, except as otherwise set forth in the Offering Memorandum,
and except for liens permitted under the credit agreements
listed on such schedule, all outstanding shares of capital
stock of each of the Charter Subsidiaries are owned by the
Company, either directly or indirectly or through wholly-owned
subsidiaries free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any
other security interest, claim, lien or encumbrance;
(ii) Each of the Issuers and the Charter Subsidiaries
has been duly qualified as a foreign corporation or limited
liability company, as the case may be, for the transaction of
business and is in good standing under the laws of each
jurisdiction set forth in a schedule to such counsel's
opinion;
(iii) To the best of such counsel's knowledge and
other than as set forth in the Offering Memorandum, there are
no legal or governmental proceedings pending to which the
Issuers, the Parent Companies or any of the Issuers'
subsidiaries is party or of which any property of the Issuers,
the Parent Companies or any of the Issuers' subsidiaries is
the subject, of a character required to be disclosed in a
registration statement on Form S-1, which is not disclosed in
the Offering Memorandum, except for such proceedings which are
not likely to have, individually or in the aggregate, a
Material Adverse Effect; and, to the best of such counsel's
knowledge and other than as set forth in the Offering
Memorandum, no such proceedings are overtly threatened by
governmental authorities or by others; and
(iv) The issue and sale of the Notes and the
compliance by the Issuers with all the provisions of the
Notes, the Indenture, the Registration Rights Agreement and
the Purchase Agreement and the consummation of the
transactions therein contemplated will not result in a
violation of the provisions of the certificate of
incorporation or by-laws, or certificate of formation or
limited liability company agreement, as the case may be, of
any of the Charter Subsidiaries;
(e) On the date of the Offering Memorandum and also at the
Time of Delivery, KPMG LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you;
(f) (i) None of the Issuers, any of the Parent Companies or
any of the Issuers' subsidiaries shall have sustained since the date of
the latest audited financial statements included in the Offering
Memorandum any loss or interference with its
15
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Offering
Memorandum, and (ii) since the respective dates as of which information
is given in the Offering Memorandum (for clarification purposes, this
excludes any amendment or supplement to the Offering Memorandum on or
after the date of this Agreement) there shall not have been any change
in the capital stock, limited liability company interests or long-term
debt of the Issuers or any of their subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' or members'
equity, or results of operations of the Issuers and their subsidiaries,
otherwise than as set forth or contemplated in the Offering Memorandum,
the effect of which, in any such case described in clause (i) or (ii),
is in the judgment of the Purchasers so material and adverse as to make
it impracticable or inadvisable to proceed with the offering or the
delivery of the Notes on the terms and in the manner contemplated in
this Agreement and in the Offering Memorandum;
(g) Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating
accorded the Notes or any other debt securities or preferred stock
issued or guaranteed by the Issuers by any "nationally recognized
statistical rating organization," as such term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act; and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, or has changed its outlook with respect to, its
rating of the Notes or of any other debt securities or preferred stock
issued or guaranteed by the Issuers (other than an announcement with
positive implications of a possible upgrading).
(h) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange or on
the Nasdaq National Market; (ii) a suspension or material limitation in
trading in CCI's Class A common stock on the Nasdaq National Market,
(iii) a general moratorium on commercial banking activities declared by
either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities or the declaration of a national emergency or
war or the occurrence of any other calamity or crisis, if the effect of
any such event specified in this clause (iv) in the judgment of the
Purchasers makes it impracticable or inadvisable to proceed with the
offering, sale or the delivery of the Notes on the terms and in the
manner contemplated in the Offering Memorandum;
(i) The Notes shall have been designated for trading on
PORTAL; and
(j) The Issuers shall have furnished or caused to be furnished
to you at the Time of Delivery certificates of officers of each Issuer
satisfactory to you as to the accuracy of the representations and
warranties of the Issuers herein at and as of such Time of Delivery, as
to the performance by the Issuers of all their obligations hereunder to
be performed at or prior to such Time of Delivery, as to the matters
set forth in subsections (f) and (g) of this Section and as to such
other matters as you may reasonably request.
8. Indemnification and Contribution.
16
(a) Indemnification of the Purchasers. The Issuers jointly and
severally agree to indemnify and hold harmless each Purchaser, its
affiliates, directors and officers and each person, if any, who
controls such Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation,
reasonable legal fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted, as such fees and
expenses are incurred), joint or several, that arise out of, or are
based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Offering Memorandum (or any amendment or
supplement thereto) or any omission or alleged omission to state
therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon
and in conformity with any information relating to any Purchaser
furnished to the Issuers in writing by such Purchaser through the Joint
Managers expressly for use therein.
(b) Indemnification of the Issuers. Each Purchaser agrees,
severally and not jointly, to indemnify and hold harmless each Issuer,
its affiliates, officers, directors, employees, members, managers and
agents, and each person, if any, who controls an Issuer within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act to
the same extent as the indemnity set forth in paragraph (a) above, but
only with respect to any losses, claims, damages or liabilities that
arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Purchaser furnished to
the Issuers in writing by such Purchaser through the Joint Managers
expressly for use in the Offering Memorandum (or any amendment or
supplement thereto), it being understood and agreed that the only such
information consists of the following: the statements set forth in the
last paragraph of the cover page regarding the delivery of the Notes,
and under the heading "Plan of Distribution," the paragraph related to
over-allotment, covering and stabilization transactions.
(c) Notice and Procedures. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or
demand shall be brought or asserted against any person in respect of
which indemnification may be sought pursuant to either paragraph (a) or
(b) above, such person (the "Indemnified Person") shall promptly notify
the person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify
the Indemnifying Person shall not relieve it from any liability that it
may have under this Section 8 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided, further, that the failure to
notify the Indemnifying Person shall not relieve it from any liability
that it may have to an Indemnified Person otherwise than under this
Section 8. If any such proceeding shall be brought or asserted against
an Indemnified Person and it shall have notified the Indemnifying
Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this
Section 8 that the Indemnifying Person may designate in such proceeding
and shall pay the reasonable fees and expenses of such counsel related
to such proceeding, as incurred. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the
17
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain
counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be
legal defenses available to it which if raised in a proceeding
involving both parties would be inappropriate under applicable legal or
ethical standards due to actual or potential differing interests
between it and the Indemnifying Person; or (iv) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate under
applicable legal or ethical standards due to actual or potential
differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such reasonable fees
and expenses shall be reimbursed as they are incurred. Any such
separate firm for any Purchaser, its affiliates, directors and officers
and any control persons of such Purchaser shall be designated in
writing by J.P. Morgan Securities Inc. and any such separate firm for
the Issuers and any control persons of the Issuers shall be designated
in writing by the Issuers. The Indemnifying Person shall not be liable
for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final
judgment for the plaintiff, not subject to further appeal, the
Indemnifying Person agrees to indemnify each Indemnified Person from
and against any loss or liability provided for in such settlement or
judgment. No Indemnifying Person shall, without the written consent of
the Indemnified Person (which shall not be unreasonably withheld),
effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party
and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability
on claims that are the subject matter of such proceeding and (y) does
not include any statement as to or any admission of fault, culpability
or a failure to act by or on behalf of such Indemnified Person.
(d) Contribution. If the indemnification provided for in
paragraphs (a) and (b) above is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits
received by the Issuers on the one hand and the Purchasers on the other
from the offering of the Notes or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) but also the relative fault of the Issuers on the one hand
and the Purchasers on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities,
as well as any other relevant equitable considerations. The relative
benefits received by the Issuers on the one hand and the Purchasers on
the other shall be deemed to be in the same respective proportions as
the net proceeds (before deducting expenses) received by the Issuers
from the sale of the Notes and the total discounts and commissions
received by the Purchasers in connection therewith, as provided in this
Agreement, bear to the aggregate offering price of the Notes. The
relative fault of the Issuers on the one hand and the Purchasers on the
other shall be determined by reference to, among other things, whether
the untrue or
18
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Issuers or by the Purchasers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission .
(e) Limitation on Liability. The Issuers and the Purchasers
agree that it would not be just and equitable if contribution pursuant
to this Section 8 were determined by pro rata allocation (even if the
Purchasers were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the
provisions of this Section 8, in no event shall a Purchaser be required
to contribute any amount in excess of the amount by which the total
discounts and commissions received by such Purchaser with respect to
the offering of the Notes exceeds the amount of any damages that such
Purchaser has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Purchasers'
obligations to contribute pursuant to this Section 8 are several in
proportion to their respective purchase obligations hereunder and not
joint.
(f) Non-Exclusive Remedies. The remedies provided for in this
Section 8 are not exclusive and shall not limit any rights or remedies
that may otherwise be available to any Indemnified Person at law or in
equity.
9. Default by a Purchaser.
(a) If any Purchaser shall default in its obligation to
purchase the Notes which it has agreed to purchase hereunder, you may
in your discretion arrange for you or another party or other parties to
purchase such Notes on the terms contained herein. If within thirty-six
hours after such default by any Purchaser you do not arrange for the
purchase of such Notes, then the Issuers shall be entitled to a further
period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Notes on such terms.
In the event that, within the respective prescribed periods, you notify
the Issuers that you have so arranged for the purchase of such Notes,
or the Issuers notify you that they have so arranged for the purchase
of such Notes, you or the Issuers shall have the right to postpone the
Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Offering
Memorandum, or in any other documents or arrangements, and the Issuers
agree to prepare promptly any amendments to the Offering Memorandum
which in your opinion may thereby be made necessary. The term
"Purchaser" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Notes.
(b) If, after giving effect to any arrangements for the
purchase of the Notes of a defaulting Purchaser or Purchasers by you
and the Issuers as provided in subsection (a) above, the aggregate
principal amount of such Notes which remains unpurchased does not
exceed one-tenth of the aggregate principal amount of all the Notes,
then the Issuers
19
shall have the right to require each non-defaulting Purchaser to
purchase the principal amount of Notes which such Purchaser agreed to
purchase hereunder and, in addition, to require each non-defaulting
Purchaser to purchase its pro rata share (based on the principal amount
of Notes which such Purchaser agreed to purchase hereunder) of the
Notes of such defaulting Purchaser or Purchasers for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Purchaser from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Notes of a defaulting Purchaser or Purchasers by you
and the Issuers as provided in subsection (a) above, the aggregate
principal amount of Notes which remains unpurchased exceeds one-tenth
of the aggregate principal amount of all the Notes, or if the Issuers
shall not exercise the right described in subsection (b) above to
require non-defaulting Purchasers to purchase Notes of a defaulting
Purchaser or Purchasers, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Purchaser or the
Issuers, except for the expenses to be borne by the Issuers and the
Purchasers as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Purchaser from liability for its default.
10. Representations and Indemnities to Survive. The respective
indemnities, agreements, representations, warranties and other statements of the
Issuers and the several Purchasers, as set forth in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement, shall remain in
full force and effect, regardless of any investigation (or any statement as to
the results thereof) made by or on behalf of any Purchaser or any controlling
person of any Purchaser, or the Issuers, or any officer or director or
controlling person of the Issuers, and shall survive delivery of and payment for
the Notes.
11. Termination. If this Agreement shall be terminated
pursuant to Section 9 hereof, the Issuers shall not then be under any liability
to any Purchaser except as provided in Sections 6 and 8 hereof; but, if for any
other reason other than a termination pursuant to Section 7(h), the Notes are
not delivered by or on behalf of the Issuers as provided herein, the Issuers
will reimburse the Purchasers through you for all out-of-pocket expenses
approved in writing by you, including, fees and disbursements of counsel,
reasonably incurred by the Purchasers in making preparations for the purchase,
sale and delivery of the Notes, but the Issuers shall then be under no further
liability to any Purchaser except as provided in Sections 6 and 8 hereof.
12. Reliance and Notices. In all dealings hereunder, you shall
act on behalf of each of the Purchasers, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Purchaser made or given by you jointly or by the Joint Managers on
behalf of you as Purchasers.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Purchasers (or any of them) shall be
delivered or sent by mail, telex or facsimile transmission to you as Purchasers
(or a Purchaser) c/o J.P. Morgan Securities Inc., Attn: James P. Casey, Managing
Director, 270 Park Avenue, New York, New York 10017 (fax: (212) 270-1063), and
if to the Issuers shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Issuers set forth in the Offering Memorandum,
Attention: Secretary. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
13. Successors. This Agreement shall be binding upon, and
inure solely to the benefit of, the Purchasers, the Issuers, and, to the extent
provided in Sections 8 and 10 hereof,
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the officers and directors of the Issuers and the Purchasers and each person who
controls the Issuers or any Purchaser, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Notes from any Purchaser shall be deemed a successor or assign by reason merely
of such purchase.
14. Timeliness. Time shall be of the essence in this
Agreement.
15. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
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If the foregoing is in accordance with your understanding,
please sign and return to us counterparts hereof, and upon the acceptance hereof
by you, on behalf of each of the Purchasers, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Purchasers and
the Issuers. It is understood that your acceptance of this letter on behalf of
each of the Purchasers is pursuant to the authority set forth in a form of
Agreement among Purchasers, the form of which shall be submitted to the Issuers
for examination upon request, but without warranty on your part as to the
authority of the signers thereof.
Very truly yours,
CCO HOLDINGS, LLC
By:
----------------------------------------------
Name:
Title:
CCO HOLDINGS CAPITAL CORP.
By:
----------------------------------------------
Name:
Title:
Signature to Purchase Agreement
Accepted as of the date hereof
J.P. MORGAN SECURITIES INC.
Acting severally on behalf of themselves
and the several Purchasers named in Schedule I hereto.
By:
------------------------------------
Name:
Title:
Signature to Purchase Agreement
SCHEDULE I
Principal Amount of
of Notes to be
Purchasers Purchased
---------- -------------------
J.P. Morgan Securities Inc. US $246,395,000
Banc of America Securities LLC 69,165,000
Citigroup Global Markets Inc. 92,220,000
Morgan Stanley & Co. Incorporated 92,220,000
Total......................................................... US$500,000,000
ANNEX I
Selling Restrictions for Offers and
Sales outside the United States
(1)(a) The Securities have not been and will not be registered
under the Act and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except in accordance with Regulation
S under the Act or pursuant to an exemption from the registration requirements
of the Act. Each Purchaser represents and agrees that, except as otherwise
permitted under Section 3(a)(i) of the Agreement to which this is an annex, it
has offered and sold the Securities, and will offer and sell the Securities, (i)
as part of their distribution at any time; and (ii) otherwise until 40 days
after the later of the commencement of the offering and the Time of Delivery,
only in accordance with Rule 903 of Regulation S under the Act. Accordingly,
each Purchaser represents and agrees that neither it, nor any of its affiliates
nor any person acting on its or their behalf has engaged or will engage in any
directed selling efforts with respect to the Securities, and that it and they
have complied and will comply with the offering restrictions requirement of
Regulation S. Each Purchaser agrees that, at or prior to the confirmation of
sale of Securities (other than a sale of Securities pursuant to Section 3(a)(i)
of the Agreement to which this is an annex), it shall have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Securities from it during the distribution
compliance period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "Act") and
may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons (i) as part of
their distribution at any time or (ii) otherwise until 40 days
after the later of the commencement of the offering and
[SPECIFY CLOSING DATE OF THE OFFERING], except in either case
in accordance with Regulation S or Rule 144A under the Act.
Terms used above have the meanings given to them by Regulation
S."
(b) Each Purchaser also represents and agrees that it
has not entered and will not enter into any contractual
arrangement with any distributor with respect to the
distribution of the Securities, except with its affiliates or
with the prior written consent of the Company.
(c) Terms used in this section have the meanings
given to them by Regulation S.
(2) Each Purchaser represents and agrees that:
(a) It has not offered or sold and prior to the
expiry of the period of six months from the closing of the offering of
the Securities, will not offer or sell any Securities to persons in the
United Kingdom, except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise
in circumstances that have not resulted and will not result in an offer
to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995.
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(b) It has only communicated or caused to be
communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the
meaning of section 21 of the Financial Services and Markets Act 2000
("FSMA")) received by it in connection with the issue or sale of any
Securities or Exchange Notes in circumstances in which section 21(1) of
the FSMA does not apply to the Company.
(c) It has complied and will comply with all
applicable provisions of the FSMA) with respect to anything done by it
in relation to the Securities or Exchange Notes in, from or otherwise
involving the United Kingdom.
(d) The offer in the Netherlands of the Securities or
Exchange Notes is exclusively limited to persons who trade or invest in
securities in the conduct of a profession or business (which includes
banks, stockbrokers, insurance companies, pension funds, other
institutional investors and finance companies and treasury departments
of large enterprises).
(3) Each Purchaser agrees that it will not offer, sell or
deliver any of the Securities in any jurisdiction outside the United States
except under circumstances that will result in compliance with the applicable
laws thereof, and that it will take at its own expense whatever action is
required to permit its purchase and resale of the Securities in such
jurisdictions. Each Purchaser understands that no action has been taken to
permit a public offering in any jurisdiction outside the United States where
action would be required for such purpose. Each Purchaser agrees not to cause
any advertisement of the Securities to be published in any newspaper or
periodical or posted in any public place and not to issue any circular relating
to the Securities, except in any such case with the express written consent of
J.P. Morgan Securities Inc. and then only at such Purchaser's own risk and
expense.
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