This excerpt taken from the CCO 8-K filed Dec 11, 2009.
The Guarantors, as primary obligors and not merely as sureties, will initially jointly and severally irrevocably and unconditionally guarantee, on an unsecured senior basis, in each case, the performance and full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations of the Issuer under the 2017 B Indenture and the 2017 B Notes, whether for payment of principal of or interest on the 2017 B Notes, expenses, indemnification or otherwise, on the terms set forth in the 2017 B Indenture by executing the 2017 B Indenture or a supplemental indenture.
Each Restricted Subsidiary that is a Wholly-Owned Subsidiary of the Company (other than Excluded Subsidiaries) will initially guarantee the 2017 B Notes, subject to release as provided below. The 2017 B Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Company that do not guarantee the 2017 B Notes.
Not all of the Companys Subsidiaries will guarantee the 2017 B Notes. In the event of a bankruptcy, liquidation or reorganization of any of these non-guarantor Subsidiaries, the non-guarantor Subsidiaries will pay the holders of their debt and their trade creditors before they will be able to distribute or contribute, as the case may be, any of their assets to a Guarantor. None of the Companys Excluded Subsidiaries will guarantee the 2017 B Notes. As of the Issue Date, our Excluded Subsidiaries include all Foreign Subsidiaries of the Company and non-Wholly-Owned Subsidiaries of the Company. On a pro forma basis, after giving effect to the Transactions, the non-guarantor Subsidiaries would have accounted for approximately $1,609 million, or 59%, of our revenue, approximately $180 million, or 35%, of our OIBDAN (as such term is described and used in Offering Circular Summary) and approximately $324 million, or 44%, of our Adjusted EBITDA (as such term is described and used in Offering Circular Summary), in each case, for the last twelve months ended September 30, 2009. Our non-guarantor Subsidiaries accounted for approximately $2,586 million, or 36%, of our total assets as of September 30, 2009. As of September 30, 2009, our non-guarantor Subsidiaries had $911 million of total liabilities (including trade payables) to which the 2017 B Notes would have been structurally subordinated.
The obligations of each Guarantor under its Guarantee will be limited as necessary to prevent such Guarantee from constituting a fraudulent conveyance under applicable law.
Any Guarantor that makes a payment under its Guarantee will be entitled upon payment in full of all guaranteed obligations under the 2017 B Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantors pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment (such net assets determined in accordance with GAAP).
If a Guarantee was rendered voidable, it could be subordinated by a court to all other indebtedness (including guarantees and other contingent liabilities) of the Guarantor, and, depending on the amount of such indebtedness, a Guarantors liability on its Guarantee could be reduced to zero.
Each Guarantee by a Restricted Guarantor shall provide by its terms that it shall be automatically and unconditionally released and discharged upon:
(1)(a) any sale, exchange or transfer (by merger or otherwise) of (i) the Capital Stock of such Restricted Guarantor (including any sale, exchange or transfer), after which the applicable Restricted Guarantor is no longer a Restricted Subsidiary or (ii) all or substantially all of the assets of such Restricted Guarantor which sale, exchange or transfer is made in a manner in compliance with the applicable provisions of the 2017 B Indenture;
(b) the designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary;
(c) the Issuer exercising its legal defeasance option or covenant defeasance option as described under Legal Defeasance and Covenant Defeasance or the Issuers obligations under the 2017 B Indenture being discharged in a manner not in violation of the terms of the 2017 B Indenture; or
(d) such Restricted Guarantor ceasing to be a Restricted Subsidiary as a result of a transaction or designation permitted hereunder; provided, however, if such Restricted Guarantor, immediately prior thereto, was a guarantor of other capital markets debt securities of the Issuer or a Guarantor and continues to be a guarantor of such other capital markets debt securities of the Issuer or a Guarantor, no such release shall be permitted; and
(2) such Restricted Guarantor delivering to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in the 2017 B Indenture relating to such transaction have been complied with.
The Guarantee by the Company shall provide by its terms that it shall be automatically and unconditionally released and discharged upon the Issuer exercising its legal defeasance option or covenant defeasance option as described under Legal Defeasance and Covenant Defeasance or the Issuers obligations under the 2017 B Indenture being discharged in a manner in accordance with the terms of the 2017 B Indenture.