COMMITMENT LETTER



 



Exhibit 10.28


Vulcan Inc.

505 Union Station

505 Fifth Avenue South, Suite 900

Seattle, WA 98104



April 14, 2003



Charter Communications VII, LLC

12405 Powerscourt Drive

St. Louis, MO 63131


Ladies and Gentlemen:


     You have requested that Vulcan Inc. (“Vulcan”) agree to, or cause one or
more of its affiliates to, provide a senior secured credit facility (the
“Facility”) to you (the “Borrower”), in an amount not to exceed $300 million
(the “Commitment Amount”). Initially, the Facility will be utilized by the
Borrower to make investments in Falcon Cable Communications, LLC (“CC VII”).
The Borrower will concurrently cause CC VII to utilize loans under the Facility
to repay revolving loans under its credit facility, loan an amount equal to the
loans under the Facility directly to Holdings and/or distribute an amount equal
to such loans to the Borrower. If CC VII makes a distribution to the Borrower,
the Borrower will then distribute such amount to Charter Communications
Holdings LLC (“Holdings”). Holdings will utilize the amount of such loan or
distribution to make direct or indirect investments in Charter Communications
Operating, LLC (“CCO”), CC VI Operating Company, LLC (“CC VI”), and CC VIII
Operating, LLC (“CC VIII Operating”). Each of CC VII, CCO, CC VI and CC VIII
Operating (the “Operating Companies”) will be required to use such amounts to
repay revolving loans under their respective credit facilities, in order to
enable the Operating Companies to create or preserve a 5% (or such higher
percentage, not to exceed 10%, as may be reasonably determined by the Operating
Companies) cushion with respect to the leverage ratio required for compliance
under their respective credit facilities through March 31, 2004 (after giving
effect to the actions reasonably available to the Operating Companies to cause
compliance with financial covenants under the Operating Company credit
facilities).


     The Facility will include a letter of credit subfacility of $100 million;
provided that the aggregate amount of the entire Facility shall not exceed the
Commitment Amount. After such time as 100% of the equity interests in the
Borrower, CCV Holdings, LLC, CC VI Holdings, LLC, and, to the extent permitted
by the lenders under its credit facility, 100% of the equity interests of CCO,
have been contributed to CCH II, LLC (“NewCo”), NewCo will become the borrower
of all subsequent advances under the Facility.







 


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     Vulcan is pleased to advise you of its commitment to provide the entire
amount of the Facility, upon the terms and subject to the conditions set forth
or referred to in this commitment letter (the “Commitment Letter”) and in the
Summary of the Terms of the Facility attached hereto as Exhibit A (the “Term
Sheet”). Vulcan may provide the entire amount of the Facility directly or
indirectly through one or more of its affiliates.


     You hereby represent and covenant that (a) all information other than
financial projections (the “Information”) that has been or will be made
available to Vulcan or Vulcan’s affiliates, representatives and advisors by you
or any of your affiliates, representatives or advisors is or will be, when
furnished, complete and correct in all material respects and does not or will
not, when furnished, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements contained
therein not misleading in light of the circumstances under which such
statements are made and (b) the financial projections that have been or will be
made available to Vulcan or Vulcan’s affiliates, representatives and advisors
by you or any of your affiliates, representatives or advisors have been or will
be prepared in good faith based upon reasonable assumptions, it being
understood that the projections are subject to significant uncertainties and
contingencies, many of which are beyond your control and that no assurance can
be given that such projections will be realized. You understand that we may
use and rely on the Information and financial projections without independent
verification thereof.


     As consideration for Vulcan’s commitment hereunder, you agree to pay to
Vulcan a Facility Fee equal to 1.5% of the Commitment Amount; provided that (a)
a portion of the Facility Fee in an amount equal to 0.5% of the Commitment
Amount shall be earned upon execution of this Commitment Letter and shall be
payable in equal quarterly installments during a three year period commencing
on the date of this Commitment Letter and (b) the remainder of the Facility Fee
in an amount equal to 1% of the Commitment Amount shall be earned upon
execution of the Definitive Documentation (as defined below) and shall be
payable in equal quarterly installments, commencing on the execution of the
Definitive Documentation and ending on the third anniversary of the date of
this Commitment Letter.


     Vulcan’s commitment hereunder is subject to (a) our not becoming aware
after the date hereof of any information or other matter affecting Charter
Communications, Inc., the Borrower, any of their subsidiaries or the
transactions contemplated hereby which is inconsistent in a material and
adverse manner with any such information or other matter disclosed to us prior
to the date hereof, (b) the negotiation, execution and delivery on or before
June 30, 2003 of definitive documentation (the “Definitive Documentation”) with
respect to the Facility reasonably satisfactory to Vulcan and its counsel, (c)
there not being any default or event of default under any of the credit
facilities of the Operating Companies on April 30, 2003 and (d) the other
conditions set forth or referred to in the Term Sheet. The







 


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 terms and conditions of Vulcan’s commitment hereunder and of the Facility
are not limited to those set forth herein and in the Term Sheet; provided that
Vulcan acknowledges and agrees that any additional terms and conditions
required by Vulcan will be consistent with the terms and conditions set forth
in this Commitment Letter and the Term Sheet. Those matters that are not
covered by the provisions hereof and of the Term Sheet are subject to the
approval and agreement of Vulcan and the Borrower.


     You agree (a) to indemnify and hold harmless Vulcan and its affiliates and
their respective officers, directors, employees, representatives, advisors and
agents (each, an “indemnified person”) from and against any and all losses,
claims, damages and liabilities to which any such indemnified person may become
subject arising out of or in connection with this Commitment Letter, the
Facility, the use of the proceeds thereof or any related transaction or any
claim, litigation, investigation or proceeding relating to any of the
foregoing, regardless of whether any indemnified person is a party thereto, and
to reimburse each indemnified person upon demand for any legal or other
expenses incurred in connection with investigating or defending any of the
foregoing, provided that the foregoing indemnity will not, as to any
indemnified person, apply to losses, claims, damages, liabilities or related
expenses to the extent (1) they are found by a final, non-appealable judgment
of a court to arise from the willful misconduct or gross negligence of such
indemnified person, or (2) they relate to the duties owed by an indemnified
person or any of its affiliates as a director or stockholder of Charter
Communications, Inc., including any claims that arise out of claims that the
transactions contemplated by this Commitment Letter and the Term Sheet involve
transactions with an interested director, and (b) to reimburse Vulcan and its
affiliates on demand for all reasonable out-of-pocket expenses (including
reasonable fees, charges and disbursements of counsel) incurred in connection
with the Facility and any related documentation (including this Commitment
Letter, the Term Sheet, and the Definitive Documentation) or the
administration, amendment, modification or waiver thereof; provided that
expenses to be reimbursed pursuant to this clause (b) incurred through the date
of execution of the Definitive Documentation shall not exceed $1,000,000. No
indemnified person shall be liable for any damages arising from the use by
others of Information or other materials obtained through electronic,
telecommunications or other information transmission systems or for any
special, indirect, consequential or punitive damages in connection with the
Facilities.


     This Commitment Letter shall not be assignable by you, other than to
NewCo, without the prior written consent of Vulcan (and any purported
assignment without such consent shall be null and void), is intended to be
solely for the benefit of the parties hereto and is not intended to confer any
benefits upon, or create any rights in favor of, any person other than the
parties hereto. This Commitment Letter may not be amended or waived except by
an instrument in writing signed by you and Vulcan. Any provision of this
Commitment Letter which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without







 


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 invalidating the remaining provisions of this Commitment Letter or
affecting the validity or enforceability of such provision in any other
jurisdiction. This Commitment Letter may be executed in any number of
counterparts, each of which shall be an original, and all of which, when taken
together, shall constitute one agreement. Delivery of an executed signature
page of this Commitment Letter by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof. This Commitment Letter is
the only agreement that has been entered into among us with respect to the
Facility and sets forth the entire understanding of the parties with respect
thereto.


     This Commitment Letter shall be governed by, and construed in accordance
with, the laws of the State of New York. To the fullest extent permitted by
applicable law, each of the parties hereto hereby irrevocably submits to the
nonexclusive jurisdiction of any New York State court or Federal court sitting
in the Borough of Manhattan in New York City in respect of any suit, action or
proceeding arising out of or relating to the provisions of this Commitment
Letter or the making of the commitment and irrevocably agrees that all claims
in respect of any such suit, action or proceeding may be heard and determined
in any such court. Each of the parties hereto waives to the fullest extent
permitted by applicable law, any objection which it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding brought in
any such court, any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum and any right to trial
by jury in any such suit, action or proceeding. Service of any process,
summons, notice or document by registered mail addressed to either party shall
be effective service of process against such party for any suit, action or
proceeding brought in any court.


     The compensation, reimbursement and indemnification provisions contained
herein shall remain in full force and effect regardless of whether Definitive
Documentation shall be executed and notwithstanding the termination of this
Commitment Letter or Vulcan’s commitment hereunder.


     This Commitment Letter is delivered to you on the understanding that
neither this Commitment Letter nor the Term Sheet nor any of their terms or
substance shall be disclosed, directly or indirectly, to any other person
except (a) to your officers, agents, auditors and advisors who are directly
involved in the consideration of this matter, (b) to your lenders if required
by them (in which case you agree to consult with us prior to such disclosure),
or (c) as may be compelled in a judicial or administrative proceeding or as
otherwise required by law (in which case you agree to inform us prior to such
disclosure). Notwithstanding the foregoing, the parties (and each employee,
representative, or other agent of the parties) may disclose to any and all
persons, without limitation of any kind, the tax treatment and tax structure of
the Facility, provided, however, that no party (and no employee,
representative, or other agent thereof) shall, except as otherwise permitted
herein, disclose any information that is not necessary to understanding the tax
treatment and tax structure of the







 


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 Facility (including any information to the extent that such disclosure
could result in a violation of any federal or state securities law).


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          If the foregoing correctly sets forth our agreement, please indicate your
acceptance of the terms hereof and of the Term Sheet by returning to us an
executed counterpart hereof not later than 5:00 p.m., New York City time, on
April 18, 2003. Vulcan’s commitment will expire at such time in the event
Vulcan has not received such executed counterparts in accordance with the
immediately preceding sentence, along with payment of the initial installment
of the Facility Fee.




	 	 	 	 	 
	 	 	Very truly yours,
	 	 	 	 	 
	 	 	VULCAN INC.
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:








 


 

Accepted and agreed to as of

the date first written above by:


CHARTER COMMUNICATIONS VII, LLC



	 	 	 	 	 
	By:	 	
/s/ Curtis S. Shaw
	 	 
	 	 	

	 	 
	 	 	
Name: Curtis S. Shaw	 	 
	 	 	
Title: Senior Vice President