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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 13, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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NTL COMMUNICATIONS CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 4899 52-1822078
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
110 EAST 59TH STREET
NEW YORK, NEW YORK 10022
(212) 906-8440
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
</TABLE>
<TABLE>
<S> <C>
RICHARD J. LUBASCH, ESQ. COPY TO:
SENIOR VICE PRESIDENT, THOMAS H. KENNEDY, ESQ.
GENERAL COUNSEL AND SECRETARY SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
NTL INCORPORATED 919 THIRD AVENUE
110 EAST 59TH STREET NEW YORK, NEW YORK 10022
NEW YORK, NEW YORK 10022 (212) 735-3000
(212) 906-8440
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE(1)(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
9 3/4 Series B Senior
Deferred Coupon Notes Due
2009.................... (pound sterling) (pound sterling)
330,000,000 62.110% 204,963,000 $92,876.93
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(1) Determined solely for the purpose of calculating the registration fee.
(2) Calculation based on an exchange rate of (pound sterling)1.00 -- US$1.63
being the noon buying rate on May 10, 1999.
THE REGISTRANT AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS
MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
The information in this prospectus is not complete and may be changed. We may
not deliver these securities until the Registration Statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Prospectus
Subject to completion, dated May 13, 1999
Offer to Exchange
NTL COMMUNICATIONS CORP.
[NTL LOGO]
9 3/4% SENIOR DEFERRED COUPON NOTES DUE 2009
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- We are offering to exchange an aggregate principal amount at maturity of
up to L330,000,000 of our new 9 3/4% series B senior deferred coupon
notes due 2009 for a like amount of our old 9 3/4% senior deferred coupon
notes due 2009.
- The exchange offer expires at 5:00 p.m., New York City time, on
, 1999, unless we extend it.
- The exchange of outstanding old notes for new notes will not be a taxable
event for United States federal income tax purposes. See "Federal Income
Tax Considerations" on page 60 for more information.
- We will apply to list the new notes on the Luxembourg Stock Exchange.
SEE "RISK FACTORS" BEGINNING ON PAGE 6 FOR A DISCUSSION OF RISK FACTORS
THAT YOU SHOULD CONSIDER BEFORE DECIDING TO TENDER YOUR OLD NOTES.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 1999.
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Until , 1999, which is 90 days after the date of this
prospectus, if you are a dealer effecting transactions in the new notes, whether
or not you participate in the exchange offer, you may be required to deliver a
prospectus. This obligation is in addition to your obligation if you are a
dealer to deliver a prospectus when acting as an underwriter and with respect to
any unsold allotments or subscriptions.
------------------------
You should rely only on the information contained in this prospectus. We
have not authorized any other person to provide you with different information.
If anyone provides you with different or inconsistent information, you should
not rely on it. We are not making an offer of the new notes in any jurisdiction
where the offer or sale is not permitted. You should assume that the information
appearing in this prospectus is accurate as of the date on the front cover of
this prospectus only. Our business, financial condition, results of operations
and prospects may have changed since that date.
------------------------
In this prospectus, references to "pounds sterling," "L" "pence" or "p" are
to the lawful currency of the United Kingdom and references to "U.S. dollars,"
"dollars," "$" or "c" are to the lawful currency of the United States. For your
convenience only we have translated some pound sterling amounts into U.S.
dollars and some U.S. dollar amounts into pounds sterling. We are not making any
representation to you regarding those translated amounts. Unless we otherwise
clearly indicate, the translations of pounds sterling into U.S. dollars have
been made at $1.6595 per L1.00, the noon buying rate in The City of New York for
cable transfers in pounds sterling as certified for customers purposes by the
Federal Reserve Bank of New York on December 31, 1998. On May 10, 1999, the noon
buying rate was 1.63 per L1.00.
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PROSPECTUS SUMMARY
This summary highlights information about us and the exchange offer which
is contained elsewhere or incorporated by reference in this prospectus. This
summary may not contain all the information that is important to you. You should
read the entire prospectus, including the financial statements and related
notes, before making a decision to exchange your old notes. When we refer to NTL
in this prospectus, we mean NTL Communications Corp. and its consolidated
subsidiaries, except where we make it clear that we are only referring to NTL
Communications Corp.
ABOUT NTL
We are a leading communications company in the United Kingdom, providing
residential, business and wholesale customers with the following services:
- residential telecoms and television services, including residential
telephony, cable television and Internet access services;
- national telecoms services including national business telecoms, national
and international carrier telecommunications, Internet services and
satellite and radio communications services; and
- broadcast services including digital and analog television and radio
broadcast transmission services.
Our objective is to exploit the convergence of the telecommunications,
entertainment and information services industries to become a premier new era
communications company in the UK, which will offer these services to
residential, business and wholesale customers on a national scale. We believe
that we will be able to deliver our strategy, based on our entrepreneurial
approach, innovative marketing and technical excellence.
On April 1, 1999, we completed a corporate restructuring to create a
holding company structure and we became a subsidiary of the new holding company
NTL Incorporated and changed our name to NTL Communications Corp.
RECENT DEVELOPMENTS
ACQUISITION OF AUSTRALIAN NATIONAL TRANSMISSION NETWORK
On April 30, 1999, a subsidiary of NTL Incorporated acquired the Australian
National Transmission Network at a purchase price of approximately $407.0
million. While NTL Incorporated ultimately intends to finance the purchase price
by a separate financing, the funds necessary to pay the purchase price for the
Australian network were obtained, from a distribution by NTL Communications
Corp. to NTL Incorporated.
OFFERING OF 9 3/4% NOTES BY NTL COMMUNICATIONS CORP.
On April 7, 1999, NTL Communications Corp. issued L330 million in principal
amount at maturity of 9 3/4% senior deferred coupon notes due 2008 in
transactions exempt from or not subject to the registration requirements of the
Securities Act.
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PROPOSED ACQUISITION OF CABLELINK
On May 6, 1999, NTL Incorporated announced it had won the bid to acquire
Cablelink Limited, Ireland's largest cable television provider. NTL Incorporated
will acquire Cablelink for 535.180 million Irish Pounds (approximately US $730
million). NTL Incorporated expects to close the acquisition in the second
quarter.
THE EXCHANGE OFFER
Notes offered................. We are offering up to L330,000,000 principal
amount at maturity of new 9 3/4% series B
senior deferred coupon notes due 2009.
The series B notes have been registered under
the Securities Act.
The exchange offer............ We are offering to issue the new notes in
exchange for a like principal amount of your
old notes. For procedures for tendering, see
"The Exchange Offer."
Tenders, expiration date;
withdrawal................. The exchange offer will expire at 5:00 p.m. New
York City time on , 1999
unless we extend it. If you decide to tender
your old notes in the exchange offer, you may
withdraw them at any time before
, 1999. If we decide for any
reason not to accept any old note for exchange,
it will be returned without expense to you
promptly after the end of the exchange offer.
United States federal income
tax consequences.............. Your exchange of old notes for new notes in the
exchange offer should not result in any income,
gain or loss to you for federal income tax
purposes. See "Federal Income Tax
Considerations."
Use of proceeds............... We will not receive any proceeds from the
exchange pursuant to the exchange offer.
Exchange agent................ The Chase Manhattan Bank through its offices
specified in this prospectus in New York and
Luxembourg is acting as the exchange agent for
the exchange offer. See "The exchange
offer -- exchange agent" and the inside back
cover of this prospectus for the location of
the offices of the exchange agent.
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CONSEQUENCES OF EXCHANGING OLD NOTES IN THE EXCHANGE OFFER
The following summary is based on interpretations by the staff of the SEC
in no action letters issued to third parties. Unless you are an affiliate of
NTL, generally if you exchange your old notes for new notes in the exchange
offer you may offer those new notes for resale, resell those new notes, and
otherwise transfer those new notes without compliance with the registration and
prospectus delivery provisions of the Securities Act. However new notes must be
acquired in the ordinary course of your business. In addition, unless you are a
broker-dealer, you must not engage in, intend to engage in or have any
arrangement or understanding with any person to participate in, a distribution
of new notes.
If you do not exchange your old notes for new notes in the exchange offer,
your old notes will continue to be subject to provisions of the indenture under
which they were issued regarding transfer and exchange of the old notes and the
restrictions on transfer contained in the legend on the old notes. See "Risk
Factors -- If you do not exchange your old notes for new notes you will continue
to hold notes subject to restrictions on transfer," "The exchange offer" and
"Registration rights."
SUMMARY DESCRIPTION OF THE NEW NOTES
The terms of the new notes and the old notes are identical in all material
respects, except for:
(1) the transfer restrictions and registration rights relating to the old
notes, and
(2) some provisions under the registration rights agreements providing for
special interest on the old notes under some circumstances relating to
timing of the exchange offer, which will terminate on completion of the
exchange offer.
Issuer..................... NTL Communications Corp.
Securities offered......... L330,000,000 principal amount at maturity of 9 3/4%
series B senior deferred coupon notes due 2009.
Maturity date.............. April 15, 2009.
Issue price................ L621.10 per L1,000 principal amount at maturity for
each new note.
Yield and Interest......... The issue price of each old note represents a yield
to maturity of 9.75% per annum, computed on a
semi-annual bond equivalent basis. Cash interest
will only accrue on the new notes from April 15,
2004. From April 15, interest on the new notes will
accrue at the rate of 9 3/4% per annum and will be
payable in cash, semi-annually in arrears, on April
15 and October 15, commencing on October 15, 2004.
Optional redemption........ On or after April 15, 2004, the new notes will be
redeemable at our option, in whole at any time or
in part
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on one or more occasions, at the redemption prices
set forth in this prospectus, plus accrued and
unpaid interest, if any, to the date of redemption.
Ranking.................... The new notes will rank senior in right of payment
to all of our subordinated indebtedness and will
rank equal in right of payment with all of our
existing and future unsubordinated obligations. As
of December 31, 1998, we had approximately $3.7
billion of senior debt outstanding. The new notes
will be effectively subordinated to all existing
and future indebtedness and other liabilities of
our subsidiaries with respect to the cash flow and
assets of those subsidiaries. The new notes will
rank senior to all our 7% convertible subordinated
notes due 2008.
Change of control.......... If a change of control triggering event occurs we
will be required to make an offer to purchase all
of the notes at 101% of their principal amount plus
accrued and unpaid interest to the date of
purchase. In the case of repurchases of notes
before April 15, 2004, the purchase price will be
equal to 101% of the accreted value at the date of
repurchase.
We may not have sufficient funds or the financial
resources necessary to satisfy our obligations to
repurchase the notes and other debt that may become
repayable upon a change of control triggering
event.
Covenants.................. The indentures governing the notes contains
covenants relating to, among other things, the
following matters:
- restricted payments;
- incurrence of additional indebtedness and
issuance of preferred stock;
- liens;
- dividend and other payment restrictions affecting
subsidiaries;
- mergers, consolidations and sales of assets;
- transactions with affiliates; and
- reports.
Listing.................... We will apply to list the new notes on the
Luxembourg Stock Exchange.
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Governing law.............. The new notes and the indentures under which the
new notes will be issued are governed exclusively
by the laws of the State of New York.
Trustee, principal paying
agent and registrar..... The Chase Manhattan Bank.
Paying agent and transfer
agent in Luxembourg..... Chase Manhattan Bank Luxembourg S.A.
Listing agent in
Luxembourg.............. Banque Internationale a Luxembourg.
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<PAGE> 9
RISK FACTORS
You should consider carefully all of the information in this prospectus and
incorporated by reference in this prospectus. See "Where you can find more
information about us." In particular, you should carefully evaluate the
following risks before tendering your old notes in the exchange offer. However,
the risk factors set forth below, other than the first risk factor, are also
generally applicable to the old notes as well as the new notes.
IF YOU DO NOT EXCHANGE YOUR OLD NOTES FOR NEW NOTES YOU WILL CONTINUE TO HOLD
NOTES SUBJECT TO RESTRICTIONS ON TRANSFER AND WHICH ARE NOT FREELY TRADEABLE
If you do not tender your old notes or you tender your old notes and we do
not accept the tender, your old notes will continue to be subject to their
existing restrictions on transfer and exchange. In general, unless the old notes
are registered under the Securities Act, you cannot offer or sell your old notes
except pursuant to an exemption from, or in a transaction not subject to, the
Securities Act and applicable state securities laws. Except in limited
circumstances which we summarize under "Registration rights" in this prospectus,
we do not have any obligation to register your old notes under the Securities
Act. We do not expect that we will take any action to register the old notes
under the Securities Act unless we are required to do so in those limited
circumstances.
OUR SUBSTANTIAL LEVERAGE COULD ADVERSELY AFFECT OUR FINANCIAL HEALTH AND PREVENT
US FROM FULFILLING OUR OBLIGATION UNDER THE NOTES
We are and, for the foreseeable future will continue to be, highly
leveraged. The agreements which govern our existing indebtedness also allow us
to assume additional debt. If our substantial indebtedness adversely affects our
financial health we may not be able to fulfill our obligations under the notes.
On December 31, 1998, our total long-term indebtedness, including our 13%
senior redeemable exchangeable preferred stock, was approximately $5.2 billion.
Our substantial indebtedness could adversely affect our financial health
by, among other things:
- increasing our vulnerability to adverse changes in general economic
conditions or increases in prevailing interest rates particularly if any
of our borrowings are at variable interest rates,
- limiting our ability to obtain the additional financing we need to
operate, develop and expand our business, and
- requiring us to dedicate a substantial portion of our cash flow from
operations to service our debt, which reduces the funds available for
dividends, operations and future business opportunities.
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IN SOME CIRCUMSTANCES INVOLVING A CHANGE OF CONTROL OF NTL WE WILL BE
REQUIRED TO REPURCHASE SOME OF OUR INDEBTEDNESS INCLUDING THE NOTES -- IF THIS
OCCURS, WE MAY NOT HAVE THE FINANCIAL RESOURCES NECESSARY TO MAKE THOSE
REPURCHASES.
We may under some circumstances involving a change of control of NTL be
obligated to offer to repurchase outstanding debt securities, including the
notes, before maturity. We cannot assure you that we will have available
financial resources necessary to repurchase those securities in those
circumstances.
THE ANTICIPATED CONSTRUCTION COSTS OF OUR NETWORK WILL INCREASE AS A RESULT OF
OUR RECENT ACQUISITIONS AND WILL REQUIRE SUBSTANTIAL AMOUNTS OF ADDITIONAL
FUNDING
Following our recent acquisitions, our capital expenses and cost of
operations for the development, construction and operation of our networks will
significantly increase. We estimate that significant amounts of additional
funding will be necessary to meet these capital expenditure and operational
requirements.
We cannot be certain that:
- we will be able to obtain additional financing with acceptable terms,
- we will satisfy conditions precedent to advances under future credit
facilities, or
- we will be able to generate sufficient cash from operations to meet
capital requirements, debt service and other obligations when required.
We do not have any firm additional financing plans to address the factors
enumerated above, except in relation to our new credit facility.
WE WILL REQUIRE ADDITIONAL FINANCING BECAUSE WE DO NOT EXPECT TO GENERATE
SUFFICIENT CASH FLOW TO REPAY AT MATURITY ALL OF OUR OUTSTANDING INDEBTEDNESS
We anticipate that we will not generate sufficient cash flow from
operations to repay at maturity all of our outstanding indebtedness, including
the notes. As a result, we will have to consider, among other things:
- refinancing all or portions of that indebtedness,
- seeking modifications to the terms of that indebtedness,
- seeking additional debt financing, which may require us to obtain the
consent of some of our lenders, and
- seeking additional equity financing.
We cannot be certain that we will succeed in executing any of these
measures.
WE CANNOT BE CERTAIN THAT WE WILL BE SUCCESSFUL IN INTEGRATING ACQUIRED
BUSINESSES INTO OURS, OR THAT WE WILL REALIZE THE BENEFITS WE ANTICIPATE FROM
ANY ACQUISITION
We will continue to consider strategic acquisitions and combinations that
involve operators or owners of licenses to operate cable, telephone, television
or telecommunications systems or services and related businesses that operate
principally in the UK. If
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consummated, some of these transactions would significantly alter our holdings
and might require us to incur substantial indebtedness or raise additional
equity. We cannot assure you that, with respect to the recent acquisitions of
Comcast, ComTel, Eastern and Diamond, as well as future acquisitions, that we:
- will realize any anticipated benefits,
- will successfully integrate the businesses with our operations, or
- will manage such integration without adversely affecting us.
WE ARE A HOLDING COMPANY THAT IS DEPENDENT UPON CASH FLOW FROM OUR SUBSIDIARIES
TO MEET OUR OBLIGATIONS -- OUR ABILITY TO ACCESS THAT CASH FLOW MAY BE LIMITED
IN SOME CIRCUMSTANCES AND YOUR RIGHT TO RECEIVE PAYMENTS ON THE NOTES COULD BE
ADVERSELY AFFECTED IN THE EVENT OF A BANKRUPTCY OF ANY OF OUR SUBSIDIARIES
We are a holding company with no independent operations or significant
assets other than our investments in and advances to our subsidiaries and
affiliated joint ventures. The terms of existing and future indebtedness of our
subsidiaries may limit the payment of dividends, loans and other distributions
to us by our subsidiaries. We depend upon the receipt of sufficient funds from
our subsidiaries and affiliated joint ventures to meet our obligations,
including our obligations on the notes.
Additionally, following the liquidation of a subsidiary or joint venture,
the creditors of that subsidiary or joint venture will generally be entitled to
be paid in full before we are entitled to a distribution of any assets in the
liquidation. The claims of the lenders under our credit facility also rank ahead
of any obligations of our subsidiaries to us. On December 31, 1998, after giving
pro forma effect to the Diamond acquisition, the total liabilities of our
subsidiaries were approximately $2.5 billion.
WE HAVE HISTORICALLY INCURRED LOSSES AND GENERATED NEGATIVE CASH FLOWS AND
CANNOT ASSURE YOU THAT WE WILL BE PROFITABLE IN THE FUTURE
Construction and operating expenditures have resulted in negative cash
flow, which we expect will continue at least until we establish an adequate
customer base. We also expect to incur substantial additional losses. We cannot
assure you that we will achieve or sustain profitability in the future. Failure
to achieve profitability could diminish our ability to sustain our operations
and obtain additional required funds. In addition, a failure to achieve or
sustain profitability would adversely affect our ability to make required
payments on our indebtedness, including the notes.
We had net losses for the years ended December 31,
- 1998: $534.6 million
- 1997: $333.1 million
- 1996: $254.5 million
- 1995: $90.8 million
- 1994: $29.6 million
As of December 31, 1998, our accumulated deficit was $1.3 billion.
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WE HAVE HISTORICALLY HAD A DEFICIENCY OF EARNINGS TO FIXED CHARGES AND EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS AND OUR EARNINGS IN THE
FUTURE MAY NOT BE SUFFICIENT TO COVER THOSE FIXED CHARGES, INCLUDING OUR
OBLIGATIONS ON THE NOTES
For the years ended December 31, 1998, 1997, 1996, 1995 and 1994, our
earnings were insufficient to cover fixed charges by approximately $565.7
million, $355.4 million, $257.1 million, $105.4 million and $31.8 million,
respectively. Our earnings for the year ended December 31, 1998 and 1997 were
insufficient to cover combined fixed charges and preferred stock dividends by
approximately $584.5 million and $367.4 million, respectively. Fixed charges
consist of interest expense, including capitalized interest, amortization of
fees related to debt financing and rent expense deemed to be interest. Our
earnings in the future may not be sufficient to cover those fixed charges,
including our obligations on the notes.
WE HAVE UTILIZED SOME OF OUR EXISTING FINANCIAL RESOURCES TO DISTRIBUTE FUNDS TO
OUR PARENT TO FINANCE AN ACQUISITION BY OUR PARENT -- OUR PARENT IS UNDER NO
OBLIGATION TO REPAY THE FUNDS TO US
Under our existing indentures including the indentures relating to the
notes, we are permitted to dividend or distribute funds to NTL Incorporated, our
parent up to limits specified in those indentures. A distribution may occur in
the near future to finance all or a portion of NTL Inc.'s purchase of the
Australian National Transmission Network for approximately $407.0 million. If
those funds are distributed, NTL Incorporated. may, but is not required to,
recontribute them to us as and if it obtains alternative financing for the
purchase price. Dividends and distribution to our parent, to the extent
permitted, may be made at other times for other purposes.
WE ARE SUBJECT TO SIGNIFICANT COMPETITION, WHICH WE EXPECT TO INTENSIFY, IN EACH
OF OUR BUSINESS AREAS -- IF WE ARE UNABLE TO COMPETE SUCCESSFULLY OUR FINANCIAL
HEALTH COULD BE ADVERSELY AFFECTED
We face significant competition from established and new competitors in the
areas of residential telephony, business telecoms services and cable television.
As existing technology develops and new technologies emerge, we believe that
competition will intensify in each of these business areas, particularly
business telecommunications and the Internet. Some of our competitors have
substantially greater financial and technical resources than we do. If we are
unable to compete successfully our financial condition and results of operations
could be adversely affected.
OUR PRINCIPAL BUSINESSES ARE SUBJECT TO EXTENSIVE GOVERNMENT REGULATION,
INCLUDING PRICING REGULATION, WHICH MAY CHANGE ADVERSELY TO US
Our principal business activities in the UK are regulated and supervised by
various governmental bodies. Changes in laws, regulations or governmental policy
or the interpretations of those laws or regulations affecting our activities and
those of our competitors, such as licensing requirements, changes in price
regulation and deregulation of interconnection arrangements, could have a
material adverse effect on us.
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In addition, we are also subject to regulatory initiatives of the European
Commission. Changes in EU Directives may reduce the range of programing and
increase the costs of purchasing television programming or require us to provide
access to our cable network infrastructure to other service providers, which
could have a material adverse effect on us.
OUR BROADCAST SERVICES BUSINESS IS DEPENDENT UPON SITE SHARING ARRANGEMENTS WITH
OUR PRINCIPAL COMPETITOR
As a result of, among other factors, a natural shortage of potential
transmission sites and the difficulties in obtaining planning permission for
erection of further masts, the Castle Tower Corporation Consortium and NTL have
made arrangements to share a large number of sites. We cannot assure you that
the site sharing arrangements will not be terminated. Termination of the site
sharing arrangements would have a material adverse effect on us.
Under the present arrangements, one of the parties is the owner, lessor or
licensor of each site and the other party is entitled to request a license to
use specified facilities at that site. Each site license granted pursuant to the
site sharing agreement is for an initial period expiring on December 31, 2005,
subject to title to the site and to the continuation in force of the site
sharing agreement. Each site sharing agreement provides that, if requested by
the sharing party, it will be extended for further periods. Either party may
terminate the agreement by 5 years' notice in writing to the other expiring on
December 31, 2005 or at any date which is a date 10 years or a multiple of 10
years after December 31, 2005.
FAILURE TO MANAGE OUR GROWTH AND EXPANSION COULD HAVE A MATERIAL ADVERSE EFFECT
ON US
We have experienced rapid growth and development in a relatively short
period, and we plan to meet our strategic objectives and regulatory milestones.
Management of that growth will require, among other things:
- stringent control of construction and other costs,
- continued development of our financial and management controls,
- increased marketing activities, and
- the training of new personnel.
Failure to manage our rapid growth and development successfully could have
a material adverse effect on us.
WE ARE DEPENDENT UPON A SMALL NUMBER OF KEY PERSONNEL
A small number of key executive officers manage our businesses, and the
loss of one or more of them could have a material adverse effect on us. We
believe that our future success will depend in large part on our continued
ability to attract and retain highly skilled and qualified personnel. We have
not entered into written employment contracts or non-compete agreements with,
nor have we obtained life insurance policies covering,
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those key executive officers. Some of our senior managers also serve as members
of senior management of other companies in the telecommunications business which
may reduce the amount of time they are able to dedicate to our businesses.
THE TELECOMMUNICATIONS INDUSTRY IS SUBJECT TO RAPID TECHNOLOGICAL CHANGES AND WE
CANNOT PREDICT THE EFFECT OF ANY CHANGES ON OUR BUSINESSES
The telecommunications industry is subject to rapid and significant changes
in technology and we cannot predict the effect of technological changes on our
businesses. However, the cost of implementation for emerging and future
technologies could be significant, and our ability to fund such implementation
may depend on our ability to obtain additional financing.
WE ARE SUBJECT TO CURRENCY RISK BECAUSE WE OBTAIN A SUBSTANTIAL AMOUNT OF
FINANCING IN US DOLLARS BUT GENERALLY GENERATE REVENUES AND INCUR EXPENSES IN
POUNDS STERLING
We will encounter currency exchange rate risks because we generate revenues
and incur construction and operating expenses primarily in British pounds
sterling while we pay interest and principal obligations with respect to most of
our existing indebtedness in United States dollars. We cannot assure you that
any hedging transaction we might enter into will be successful and that shifts
in the currency exchange rates will not have a material adverse effect on us.
WE DO NOT INSURE THE UNDERGROUND PORTION OF OUR CABLE NETWORK
We obtain insurance of the type and in the amounts that we believe are
customary in the UK for similar companies. Consistent with this practice, we do
not insure the underground portion of our cable network. Substantially all of
our cable network is constructed underground. Any catastrophe that affects a
significant portion of one of our system's underground cable network would
result in substantial uninsured losses and may have a material adverse effect on
us.
YOU SHOULD BE AWARE THAT ACTUAL RESULTS OR OUTCOMES MAY TURN OUT TO BE
MATERIALLY DIFFERENT FROM THOSE CONTAINED IN ANY FORWARD-LOOKING STATEMENTS
INCLUDED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS
This prospectus includes or incorporates by reference projections of
broadcast transmission revenues, build-out results and other forward-looking
statements, including those using words such as "believe," "anticipate,"
"should," "intend," "plan," "will," "expects," "estimates," "projects,"
"positioned," "strategy," and similar expressions. In reviewing that
forward-looking information you should keep in mind that actual results may
differ materially from those expressed or implied in those forward-looking
statements. Important assumptions and factors that could cause actual results to
differ materially from those contemplated or projected, forecast, estimated or
budgeted in or expressed or implied by such projections and forward-looking
statements include those specified in this risk factors section, as well as
- industry trends,
11
<PAGE> 15
- our ability to
-- continue to design network routes and install facilities,
-- obtain and maintain any required government licenses or approvals,
-- finance construction and development,
all in a timely manner, at reasonable costs and on satisfactory terms and
conditions,
- assumptions about
-- customer acceptance,
-- churn rates,
-- overall market penetration and competition from providers of
alternative services, and
-- availability, terms and deployment of capital.
We assume no obligation to update projections or other forward-looking
statements to reflect actual funding requirements, capital expenditures and
results, changes in assumptions or in the factors affecting such projections or
other forward-looking statements. We cannot assure you that:
- any financings will be obtained when required, on acceptable terms or at
all;
- actual amounts required to complete our planned build out will not exceed
the amount we estimate or that additional financing substantially in
excess of that amount will not be required; (see -- "The anticipated
construction costs of our network will increase as a result of our recent
acquisitions and will require substantial amounts of additional
funding");
- we will not acquire franchises, licenses or other new businesses that
would require additional capital;
- operating cash flow will meet expectations or that we will be able to
access such cash from our subsidiaries' operations to meet any unfunded
portion of our capital requirements when required or to satisfy the terms
of the notes, or our other debt instruments and agreements for the
incurrence of additional debt financing (see "-- We are a holding company
that is dependent upon cash flow from our subsidiaries to meet our
obligations -- our ability to access that cash flow may be limited in
some circumstances and your right to receive payments on the notes could
be adversely affected in the event of a bankruptcy of any of our
subsidiaries");
- our subsidiaries will not incur losses from their exposure to exchange
rate fluctuations or be adversely affected by interest rate fluctuations
(see "-- We are subject to currency risk because we obtain a substantial
amount of financing in US dollars but generally generate revenues and
incur expenses in pounds sterling");
12
<PAGE> 16
- there will not be adverse changes in applicable United States, United
Kingdom or Bermuda tax laws; or
- the effects of monetary union in Europe will not be materially adverse to
us.
All forward-looking statements included or incorporated by reference in this
prospectus are expressly qualified by the foregoing.
13
<PAGE> 17
THE EXCHANGE OFFER
TERMS OF THE EXCHANGE OFFER; PERIOD FOR TENDERING OLD NOTES
This prospectus and the accompanying letter of transmittal set out the
terms and conditions of the exchange offer. On and subject to those terms and
conditions we will accept for exchange old notes which are properly tendered on
or before the expiration date and not withdrawn as permitted below. The
expiration date is 5:00 p.m., New York City time, on , 1999.
However, if we, in our sole discretion, extend the period of time for which the
exchange offer is open, the expiration date will be the latest time and date to
which we extend the exchange offer.
This prospectus, together with the letter of transmittal, is first being
sent on or about the date of this prospectus, to all holders of old notes known
to us. Our obligation to accept old notes for exchange under the exchange offer
is subject to the conditions described under "Conditions to the exchange offer"
below.
We expressly reserve the right, at any time or on one or more occasions, to
extend the period of time during which the exchange offer is open, and delay
acceptance for exchange of any old notes, by giving oral or written notice of
the extension to you. During any extension of the exchange offer, all old notes
previously tendered will remain subject to the exchange offer and may be
accepted for exchange by us. If we do not accept any old notes tendered for
exchange for any reason they will be returned to you. We will return those notes
without expense to you as promptly as practicable after the end of the exchange
offer.
Old notes tendered in the exchange offer must be in denominations of
principal amount at maturity of L1,000 and any whole multiple of L1,000.
We expressly reserve the right to amend or terminate the exchange offer,
and not to accept for exchange any old notes which we have not already accepted
for exchange, if any of the conditions of the exchange offer specified below
under "Conditions to the exchange offer" occur. We will give oral or written
notice of any extension, amendment, non-acceptance or termination to you as
promptly as practicable. A notice in the case of any extension will be issued by
means of a press release or other public announcement no later than 9:00 a.m.,
New York City time, on the next business day after the previously scheduled
expiration date.
The tender to us of old notes by you and the acceptance of your tender by
us will be a binding agreement between us on the terms and subject to the
conditions set forth in this prospectus and in the accompanying letter of
transmittal in respect of the old notes tendered by you.
PROCEDURES FOR TENDERING OLD NOTES
When we refer to a holder of old notes in this section of the prospectus
relating to the exchange offer, we include any participant in the DTC system
whose name appears on a security position listing as the holder of those old
notes. Any holder who wishes to tender old notes for exchange in the exchange
offer must transmit the letter of
14
<PAGE> 18
transmittal, properly completed and duly executed, including all other documents
required by the letter of transmittal or, in the case of a book-entry transfer,
an agent's message instead of a letter of transmittal to The Chase Manhattan
Bank as exchange agent at one of the addresses set forth below under "Exchange
agent", on or before the expiration date.
In addition, either
- certificates for the tendered old notes must be received by the exchange
agent along with the letter of transmittal before the expiration date,
- a timely confirmation of a book-entry transfer of the tendered old notes,
which we refer to as a book-entry confirmation, into the appropriate
exchange agent's account at DTC pursuant to the procedure for book-entry
transfer described below, must be received by the exchange agent before
the expiration date along with the letter of transmittal or an agent's
message instead of a letter of transmittal, or
- the holder must comply with the guaranteed delivery procedures we
describe below.
An agent's message means a message, transmitted by DTC to and received by
the exchange agent. An agent's message forms a part of a book-entry
confirmation, which states that DTC has received an express acknowledgment from
the tendering participant stating that the participant has received and agrees
to be bound by, and make the representations and warranties contained in, the
appropriate letter of transmittal and that we may enforce such letter of
transmittal against the participant.
The method of delivery of old notes, letters of transmittal and all other
required documents is at your election and risk. If delivery is by mail, we
recommend that you use registered mail, properly insured, with return receipt
requested. In all cases, you should allow sufficient time to assure delivery
before the expiration date. No letters of transmittal or old notes should be
sent to NTL.
Signatures on a letter of transmittal or a notice of withdrawal, as the
case may be, must be guaranteed unless
- you have not completed the box entitled "Special Issuance Instructions"
or "Special Delivery Instructions" on the letter of transmittal or
- the old notes are tendered for the account of an eligible institution, as
we define that term below.
In the event that a signature on a letter of transmittal or a notice of
withdrawal is required to be guaranteed, the guarantee must be by a firm which
is
- a member of a registered national securities exchange
- a member of the National Association of Securities Dealers, Inc.
15
<PAGE> 19
- by a commercial bank or trust company having an office or correspondent
in the United States or
- by such other Eligible Institution within the meaning of Rule 17(A)(d)-15
of the Exchange Act.
We refer to each of the institutions in the bullet points above as eligible
institutions. If old notes are registered in the name of a person other than a
signer of the letter of transmittal, the old notes surrendered for exchange must
be endorsed by, or be accompanied by a written instrument or instruments of
transfer, or exchange, in satisfactory form as determined by us in our sole
discretion, duly executed by the registered holder with the signature on those
documents guaranteed by an eligible institution.
All questions as to the validity, form, eligibility, including time of
receipt, and acceptance of old notes tendered for exchange will be determined by
us in our sole discretion. Our determination shall be final and binding. We
reserve the absolute right to reject any and all tenders of any particular old
note not properly tendered or to not accept any particular old note which
acceptance might, in our judgment or the judgment of our counsel, be unlawful.
We also reserve the absolute right to waive any defects or irregularities or
conditions of the exchange offer as to any particular old note either before or
after the expiration date, including the right to waive the ineligibility of any
holder who seeks to tender old notes in the exchange offer.
The interpretation by us of the terms and conditions of the exchange offer
as to any particular old note either before or after the expiration date,
including the appropriate letter of transmittal and the instructions to the
letter of transmittal shall be final and binding on all parties. Any defects or
irregularities in connection with tenders of old notes for exchange must be
cured within reasonable period of time determined by us unless we waive those
defects or irregularities. Neither we, the exchange agent nor any other person
shall be under any duty to give you notification of any defect or irregularity
with respect to any tender of old notes by you for exchange, nor shall any of
them incur any liability for failure to give such notification.
If a letter of transmittal is signed by a person or persons other than the
registered holder or holders of old notes, the old notes must be endorsed or
accompanied by appropriate powers of attorney. The old notes or the power of
attorney should be signed exactly as the name or names of the registered holder
or holders that appear on the old notes.
If a letter of transmittal, any old notes or powers of attorney are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, the
person signing should so indicate when signing and, in addition, proper evidence
satisfactory to us of their authority to so act must be submitted with the
letter of transmittal, unless we waive it.
16
<PAGE> 20
By tendering, you will represent to us that, among other things,
- the new notes acquired in the exchange offer are being obtained in the
ordinary course of business of the person receiving the new notes,
whether or not that person is the holder,
- that neither the holder nor any other person receiving the new notes has
an arrangement or understanding with any person to participate in the
distribution of the notes and
- that neither the holder nor any other person receiving the new notes is
an affiliate, as defined under Rule 405 of the Securities Act, of NTL.
If you are an affiliate of NTL, are engaged in or intend to engage in or
have any arrangement with any person to participate in the distribution of the
new notes to be acquired pursuant to the exchange offer, you
- cannot rely on the applicable interpretations of the staff of the SEC and
- must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with any resale transaction.
If you are a broker-dealer who holds old notes acquired for your own
account as a result of market-making activities or other trading activities, and
you receive new notes in exchange for those old notes in the exchange offer, you
may be an "underwriter" within the meaning of the Securities Act and must
acknowledge that you will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of the new notes. The letter of
transmittal states that by so acknowledging and by delivering a prospectus, you
will not be deemed to admit that you are an "underwriter" within the meaning of
the Securities Act.
ACCEPTANCE OF OLD NOTES FOR EXCHANGE; DELIVERY OF NEW NOTES
Upon satisfaction or waiver of all of the conditions to the exchange offer,
we will
- accept, promptly after the expiration date, all old notes properly
tendered,
- issue the new notes promptly after acceptance of the old notes and
- cause the new notes to be authenticated by the trustee.
For purposes of the exchange offer, we shall be deemed to have accepted
properly tendered old notes for exchange when, as and if we have given oral,
promptly confirmed in writing, or written notice of that acceptance to the
exchange agent. For each old note accepted for exchange, the holder of such old
note will receive a new note of the same class having a principal amount at
maturity equal to that of the surrendered old note.
If any old notes tendered by you are not accepted for any reason set forth
in the terms and conditions of the exchange offer or if you submitted old notes
for an amount or quantity greater than you desire to exchange, those unaccepted
or non-exchanged old notes will be returned without expense to you. In the case
of old notes tendered by book-entry transfer into the exchange agent's account
at DTC pursuant to the book-entry
17
<PAGE> 21
procedures described below, those non-exchanged old notes will be credited to an
account maintained with DTC as promptly as practicable after the end of the
exchange offer.
BOOK-ENTRY TRANSFER
The exchange agent will request the establishment of accounts with respect
to the old notes at DTC for purposes of the exchange offer within two business
days after the date of this prospectus unless the exchange agent already has
established an account with DTC suitable for the exchange offer. If you are a
financial institution that is a participant in DTC's system you may make
book-entry delivery of old notes by causing DTC to transfer such old notes into
the exchange agent's account at DTC in accordance with DTC's procedures for
transfer.
Although you may deliver old notes to the exchange agent in the exchange
offer through book-entry transfer at DTC, the letter of transmittal or a
facsimile of it, with any required signature guarantees or an agent's message
instead and any other required documents, must be transmitted to and received by
the exchange agent at one of the addresses set forth below under "exchange
agent," on or before the expiration date. If this is not possible, the
guaranteed delivery procedures described below must be complied with.
GUARANTEED DELIVERY PROCEDURES
If you want to tender old notes and your old notes are not immediately
available, or time will not permit your old notes or other required documents to
reach the exchange agent before the expiration date, or you cannot complete the
procedure for book-entry transfer on a timely basis, you may tender your old
notes if
- the tender is made through an eligible institution,
- before the expiration date, the exchange agent received from the
eligible institution the appropriate notice of guaranteed delivery,
substantially in the form provided by us, by telegram, telex,
facsimile transmission, mail or hand delivery, setting forth your
name and address and the amount of old notes tendered, stating that
the tender is being made by that notice. The notice of guaranteed
delivery must guarantee that within five New York Stock Exchange
trading days after the date of execution of the notice of guaranteed
delivery, the certificates for all physically tendered old notes, in
proper form for transfer, or a book-entry confirmation, as the case
may be, together with a properly completed and duly executed letter
of transmittal, or facsimile of the letter of transmittal or agent's
message instead, with any required signature guarantees, and any
other documents required by the appropriate letter of transmittal
will be deposited by the eligible institution with the exchange agent
and
18
<PAGE> 22
- the certificates for all physically tendered old notes, in proper
form for transfer, or a book-entry confirmation, as the case may be,
together with a properly completed and duly executed appropriate
letter of transmittal, or facsimile of the letter of transmittal or
agent's message instead, with any required signature guarantees, and
all other documents required by the letter of transmittal, are
received by the exchange agent within five New York Stock Exchange
trading days after the date of execution of the notice of guaranteed
delivery.
WITHDRAWAL RIGHTS
You may withdraw tenders of old notes at any time before the expiration
date.
For a withdrawal to be effective, a written notice of withdrawal must be
received by the exchange agent at the addresses set forth below under "exchange
agent". Any notice of withdrawal must:
- specify the name of the person having tendered the old notes to be
withdrawn,
- identify the old notes to be withdrawn, including the principal amount at
maturity,
- and where certificates for old notes have been transmitted, specify the
name in which those old notes are registered, if different from that of
the withdrawing holder.
If certificates for old notes have been delivered or otherwise identified
to the exchange agent then, before the release of such certificates you must
also submit the serial numbers of the particular certificates to be withdrawn
and a signed notice of withdrawal with signatures guaranteed by an eligible
institution unless you are an eligible institution. If tendered old notes under
the procedure for book-entry transfer described above, the executed notice of
withdrawal, guaranteed by an eligible institution, unless you are an eligible
institution, must specify the name and number of the account at DTC to be
credited with the withdrawn old notes and otherwise comply with the procedures
of that facility. All questions as to the validity, form and eligibility,
including time of receipt, of notices of withdrawal will be determined by us.
Our determination will be final and binding on all parties. Any old notes
withdrawn will be deemed not to have been validly tendered for exchange for
purposes of the exchange offer. Any old notes which you tender for exchange but
which are not exchanged for any reason will be returned to you without cost to
you or, in the case of old notes tendered by book-entry transfer into the
exchange agent's account at DTC pursuant to the book-entry transfer procedures
described above, such old notes will be credited to an account maintained with
DTC for the old notes) as soon as practicable after withdrawal. Properly
withdrawn old notes may be retendered by following one of the procedures
described under "-- Procedures for tendering old notes" above at any time on or
before the expiration date.
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<PAGE> 23
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provision of the exchange offer, we will not be
required to accept for exchange, or to issue new notes in exchange for, the old
notes and may terminate or amend the exchange offer if at any time before the
acceptance of the old notes for exchange or the exchange of the new notes for
the old notes any of the following events occurs:
(1) there shall be threatened, instituted or pending any action or
proceeding before, or any injunction, order or decree shall have been
issued by, any court or governmental agency or other governmental
regulatory or administrative agency or commission,
(a) seeking to restrain or prohibit the making or consummation of
the exchange offer or any other transaction contemplated by
the exchange offer, or assessing or seeking any damages as a
result of the exchange offer or any transaction contemplated
by the exchange offer, or
(b) resulting in a material delay in our ability to accept for
exchange or exchange some or all of the old notes in the
exchange offer,
or any statute, rule, regulation, order or injunction shall be sought,
proposed, introduced, enacted, promulgated or deemed applicable to the
exchange offer or any of the transactions contemplated by the exchange
offer by any government or governmental authority, domestic or foreign, or
any action shall have been taken, proposed or threatened, by any
government, governmental authority, agency or court, domestic or foreign,
that in our sole judgment might directly or indirectly result in any of the
consequences referred to in clauses (a) or (b) above or, in our sole
judgement, might result in the holders of new notes having obligations with
respect to resales and transfers of new notes which are greater than those
described in the interpretation of the SEC referred to in this prospectus,
or would otherwise make it inadvisable to proceed with the exchange offer;
or
(2) there shall have occurred
(a) any general suspension of or general limitation on prices for,
or trading in, securities on any national securities exchange
or in the over-the-counter market,
(b) any limitation by any governmental agency or authority which
may adversely affect the ability of NTL to complete the
transactions contemplated by the exchange offer,
(c) a declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States or any
limitation by any governmental agency or authority which
adversely affects the extension of credit or
(3) a commencement of a war, armed hostilities or other similar
international calamity directly or indirectly involving the United States,
or, in the case of any of
20
<PAGE> 24
the foregoing existing at the time of the commencement of the exchange
offer, a material acceleration or worsening of those circumstances; or
(4) any change or any development involving a prospective change shall
have occurred or be threatened in the business, properties, assets,
liabilities, financial condition, operations, results of operations or
prospects of NTL and our subsidiaries taken as a whole that, in our
reasonable judgment, is or may be adverse to us, or we shall have become
aware of facts that, in our reasonable judgment, have or may have adverse
significance with respect to the value of the old notes or the new notes;
which, in our reasonable judgment in any case, and regardless of the
circumstances, including any action by us, giving rise to that condition, makes
it inadvisable to proceed with the exchange offer and/or with such acceptance or
exchange or with that exchange.
The foregoing conditions are for our sole benefit. Those conditions may be
asserted by us regardless of the circumstances giving rise to that condition or
may be waived by us in whole or in part at any time and from time to time in our
sole discretion. The failure by us at any time to exercise any of the foregoing
rights shall not be deemed a waiver of any of our rights and each of our rights
shall be deemed an ongoing right which may be asserted at any time and from time
to time.
In addition, we will not accept for exchange any old notes tendered, and no
new notes will be issued in exchange for any such old notes, if at such time any
stop order shall be threatened or in effect with respect to the registration
statement of which this prospectus constitutes a part or the qualification of
the indenture under the Trust Indenture Act of 1939, as amended.
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<PAGE> 25
EXCHANGE AGENT
The Chase Manhattan Bank has been appointed as the exchange agent in
respect of the notes for the exchange offer. All executed letters of transmittal
should be sent to the exchange agent at one of the addresses set forth below.
Questions and requests for assistance, requests for additional copies of this
prospectus or of the letter of transmittal in respect of the notes and requests
for notices of guaranteed delivery should be directed to the exchange agent
addressed as follows:
Delivery To: The Chase Manhattan Bank, as exchange agent
<TABLE>
<S> <C>
In New York
By Mail, By Hand and Overnight Courier: By Facsimile:
The Chase Manhattan Bank (212) 638-7380
Corporate Trust-Securities Window (212) 638-7381
Room 234 -- North Building
55 Water Street Confirm by Telephone:
New York, New York 10041 Carlos Esteves: (212) 638-0828
(212) 638-0454
In Luxembourg
By Mail, By Hand and Overnight Courier: By Facsimile:
Chase Manhattan Bank Luxembourg S.A. (352) 46 26 85 380
5 Rue Plaetis
L-2338, Luxembourg Confirm by Telephone:
Veronique Cridel: (352) 46 26 85 284
</TABLE>
Delivery of the letter of transmittal in respect of the notes to an address
other than as set forth above or transmission via facsimile other than as set
forth above is not a valid delivery of the letter of transmittal.
FEES AND EXPENSES
We will not make any payment to brokers, dealers, or others soliciting
acceptances of the exchange offer except for reimbursement of mailing expenses.
The estimated cash expenses to be incurred in connection with the exchange
offer will be paid by us and are estimated in the aggregate to be $250,000.
TRANSFER TAXES
You will not be obligated to pay any transfer taxes in connection with any
tender of old notes for exchange, except if you instruct us to register new
notes in the name of, or request that old notes not tendered or not accepted in
the exchange offer be returned to, a person other than the registered tendering
holder, you will be responsible for the payment of any applicable transfer tax
thereon.
22
<PAGE> 26
USE OF PROCEEDS
We will not receive any cash proceeds from the exchange of old notes for
new notes in the exchange offer. We intend to use the net proceeds from the sale
of the old notes to refinance the Diamond 13 1/4% notes, finance our
construction, capital expenditure and working capital requirements, including
debt service and repayment obligations and make acquisitions of businesses or
assets related to our business.
23
<PAGE> 27
CAPITALIZATION
The following table sets forth our actual capitalization as of December 31,
1998 and as adjusted for:
(1) the acquisition of Diamond,
(2) the proceeds of sale of preferred stock to Microsoft Corp. and
(3) the offering of the 9 3/4% notes and the application of the proceeds
from the notes.
The as adjusted column assumes that we will use a portion of the net
proceeds of the offering of the old notes to repay the 13 1/4% Diamond notes,
excluding the payment of any premium for the Diamond notes. We may, however, use
the proceeds for other corporate purposes. As of December 31, 1998, the accreted
value of the 13 1/4% Diamond notes was approximately $259,159,000. The 13 1/4%
Diamond notes are redeemable at the option of Diamond on September 30, 1999 at
107.125% of the principal amount at maturity.
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1998
-------------------------
ACTUAL AS ADJUSTED
---------- -----------
(IN THOUSANDS)
<S> <C> <C>
Cash, cash equivalents and marketable securities............ $ 996,896 $1,842,253
========== ==========
Current portion of long-term debt........................... $ 23,691 $ 23,691
========== ==========
Long-term debt:
9 3/4% Deferred Coupon Notes due 2009..................... $ -- $ 340,136
12 3/8% Deferred Coupon Notes due 2008.................... 254,718 254,718
11 1/2% Notes due 2008.................................... 625,000 625,000
9 1/2% Notes due 2008(1).................................. 206,800 206,800
10 3/4% Deferred Coupon Notes due 2008.................... 317,511 317,511
9 3/4% Deferred Coupon Notes due 2008..................... 865,880 865,880
10% Notes due 2007........................................ 400,000 400,000
11 1/2% Deferred Coupon Notes due 2006.................... 831,976 831,976
12 3/4% Deferred Coupon Notes due 2005.................... 236,935 236,935
7% Convertible Subordinated Notes due 2008................ 275,000 275,000
7% Convertible Subordinated Notes due 2008................ 600,000 600,000
11.20% Partners Discount Debentures due 2007.............. 421,835 421,835
10% Diamond Senior Notes due 2008......................... -- 224,033
9 1/8% Diamond Senior Notes due 2008...................... -- 110,000
10 3/4% Diamond Senior Discount Notes due 2007............ -- 303,337
11 3/4% Diamond Senior Discount Notes due 2005............ -- 422,554
13 1/4% Diamond Senior Discount Notes due 2004............ -- --
Subsidiary other.......................................... 8,148 22,294
---------- ----------
Total long-term debt.............................. 5,043,803 6,458,009
---------- ----------
Senior redeemable exchangeable preferred stock, par value
$0.01 per share, plus accreted dividends; liquidation
preference $125,000,000; 125,000 shares issued and
outstanding............................................... 124,127 124,127
</TABLE>
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<PAGE> 28
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1998
-------------------------
ACTUAL AS ADJUSTED
---------- -----------
(IN THOUSANDS)
<S> <C> <C>
Shareholders' equity (deficiency):
Series preferred stock, $0.01 par value, 10,000,000 shares
authorized: 177,000 shares (actual) and 677,000 shares
(as adjusted) issued and outstanding................... 2 7
Common stock, $0.01 par value, 400,000,000 shares
authorized: 60,249,000 shares (actual) and 73,197,000
shares (as adjusted) issued and outstanding(2)......... 602 732
Additional paid-in capital(2)............................. 1,501,561 2,987,934
Accumulated other comprehensive income.................... 104,657 104,657
(Deficit)................................................. (1,251,668) (1,251,668)
---------- ----------
Total shareholders' equity........................ 355,154 1,841,662
---------- ----------
Total capitalization.............................. $5,523,084 $8,423,798
========== ==========
</TABLE>
- ---------------
(1) Net of unamortized discount of $639,000.
(2) Does not include an aggregate of 39,528,000 shares of common stock,
consisting of:
(a) 16,451,000 shares of common stock subject to options;
(b) 2,880,000 shares of common stock subject to warrants;
(c) approximately 3,140,000 shares of common stock issuable upon the
conversion of preferred stock; and
(d) 17,057,000 shares of common stock issuable upon conversion of
convertible notes.
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<PAGE> 29
DESCRIPTION OF NOTES
GENERAL
The new notes will be issued under the indenture, dated as of April 14,
1999, between NTL and The Chase Manhattan Bank, as trustee. The following
summary of selected provisions of the indenture is not complete and is qualified
in its entirety by reference to the indenture, including the definitions in the
indenture of various terms used below. The indenture is filed as an exhibit to
the registration statement of which this prospectus forms a part. The
definitions of some terms used in the following summary are set forth below
under "-- Definitions".
In this section of the prospectus entitled "Description of Notes" when we
refer to NTL we are referring only to NTL Communications Corp. and not any of
its subsidiaries.
The notes will be unsecured obligations of NTL, ranking equal in right of
payment with all senior unsecured Indebtedness of NTL and senior in right of
payment to all subordinated Indebtedness of NTL.
The operations of NTL are conducted through its subsidiaries. NTL is
dependent upon the cash flow of its subsidiaries to meet its obligations,
including its obligations under the notes. As a result, the notes will be
effectively subordinated to all existing and future indebtedness and other
liabilities and commitments of NTL's subsidiaries with respect to the cash flow
and assets of those subsidiaries.
Application will be made to list the notes on the Luxembourg Stock
Exchange.
PRINCIPAL, MATURITY AND INTEREST
The new notes to be issued in this exchange offer will be limited in
aggregate principal amount at maturity to L330.0 million. The new notes will be
issued at a substantial discount from their principal amount at maturity. Until
April 15, 2004, no cash interest will accrue on the notes, but the Accreted
Value of the notes will increase, representing amortization of original issue
discount, between the date of original issuance and April 15, 2004, on a
semiannual bond equivalent basis using a 360-day year comprised of twelve 30-day
months, such that the Accreted Value of the notes shall be equal to the full
principal amount at maturity of the notes on April 15, 2004. From April 15,
2004, cash interest on the notes will accrue at the rate of 9 3/4% per annum and
will be payable in cash, semiannually in arrears, on each April 15 and October
15, commencing October 15, 2004, to holders of record on the immediately
preceding April 1 and October 1.
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<PAGE> 30
The Accreted Value of each note on each semi-annual accrual date will be as
set forth below:
<TABLE>
<CAPTION>
SEMI-ANNUAL ACCRUAL DATE ACCRETED VALUE
- ------------------------ --------------
<S> <C>
October 15, 1999....................................... L 651.56
April 15, 2000......................................... L 683.32
October 15, 2000....................................... L 716.63
April 15, 2001......................................... L 751.57
October 15, 2001....................................... L 788.21
April 15, 2002......................................... L 826.63
October 15, 2002....................................... L 866.93
April 15, 2003......................................... L 909.19
October 15, 2003....................................... L 953.52
April 15, 2004......................................... L1,000.00
</TABLE>
Interest on overdue principal and to the extent permitted by law on overdue
installments of interest will accrue at a rate equal to the rate borne by the
notes. Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months. A reference to a payment of interest in respect of the
notes includes a payment of special interest, if any, and a reference to a
payment of principal includes a reference to a payment of premium, if any.
The notes will be payable both as to principal and interest on presentation
of such notes if in certificated form at the offices or agencies of NTL
maintained for such purpose within the City and State of New York or, at the
option of NTL, payment of interest may be made by check mailed to the holders of
the notes at their respective addresses set forth in the register of holders of
notes or, if a holder so requests, by wire transfer of immediately available
funds to an account previously specified in writing by such holder to NTL and
the trustee. Until otherwise designated by NTL, NTL's office or agency in New
York and London, respectively, will be the offices of the trustee maintained for
such purpose. In addition, as described under the caption "Listing", so long as
the notes are listed on the Luxembourg Stock Exchange, an agent for making
payments on, and transfers of, notes will be maintained in Luxembourg. The notes
mature on April 15, 2009, and will be issued in registered form, without
coupons, and in denominations of L1,000 and integral multiples of L1,000.
SUBSTITUTION OF CURRENCY
If the United Kingdom adopts the euro, the regulations of the European
Commission relating to the euro will apply to the notes and the indenture. In
those circumstances neither NTL nor any holder of the notes is entitled to early
redemption, rescission, notice or repudiation of the terms and conditions of the
notes or the indenture. In addition, neither NTL nor any holder of the notes
will be entitled to raise other defenses or to request any compensation claim
nor will any other obligation of NTL under the notes and the indenture be
affected.
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<PAGE> 31
OPTIONAL REDEMPTION
Except as referred to in this offering circular under
"-- Covenants -- Additional amounts; Optional tax redemption", the notes are not
redeemable at NTL's option prior to April 15, 2004. Thereafter, the notes will
be subject to redemption at the option of NTL, in whole or in part, upon not
less than 30 nor more than 60 days' notice, at the redemption prices set forth
below, expressed as percentages of principal amount at maturity, plus accrued
and unpaid interest thereon to the applicable redemption date, if redeemed
during the twelve-month period beginning on April 15 of the years indicated
below:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
- ---- ----------
<S> <C>
2004........................................................ 104.875%
2005........................................................ 103.250%
2006........................................................ 101.625%
2007 and thereafter......................................... 100.000%
</TABLE>
In the case of a redemption of any class of notes referred to herein under
"-- Covenants -- Additional amounts; Optional tax redemption," redemption of
such notes shall be made at the redemption prices specified in the indenture
plus accrued and unpaid interest, if any, to the applicable redemption date.
MANDATORY REDEMPTION AND REPURCHASE
NTL is not required to make mandatory redemption or sinking fund payments
with respect to the notes. NTL is required to make a Change of Control Offer and
an Asset Sale Offer with respect to a repurchase of the notes under the
circumstances described under the captions "Change of control" and "Asset
sales", respectively.
CHANGE OF CONTROL
If a Change of Control Triggering Event occurs, each holder of notes shall
have the right to require NTL to repurchase all or any part of such holder's
notes equal to L1,000 or an integral multiple of L1,000, pursuant to the Change
of Control Offer at a purchase price equal to 101% of the Accreted Value of
those notes as of the date of purchase. The payment shall be referred to as the
Change of Control Payment. Within 40 days following any Change of Control
Triggering Event, NTL shall mail a notice to each holder, stating:
(1) that the Change of Control Offer is being made pursuant to the
covenant entitled Change of Control and that all notes tendered will be
accepted for payment;
(2) the purchase price and the purchase date, which shall be no earlier
than 30 days nor later than 40 days from the date such notice is mailed.
This date is referred to as the Change of Control Payment Date;
(3) that the Accreted Value of any notes not tendered will continue to
increase as provided in those notes;
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<PAGE> 32
(4) that, unless NTL defaults in the payment of the Change of Control
Payment, the Accreted Value of all notes accepted for payment pursuant to
the Change of Control Offer shall cease to accrete after the Change of
Control Payment Date;
(5) that holders electing to have any notes purchased pursuant to a
Change of Control Offer will be required to surrender the notes, with the
form entitled Option of Holder to Elect Purchase on the reverse of the
notes completed, to the paying agent at the address specified in the notice
prior to the close of business on the third Business Day preceding the
Change of Control Payment Date;
(6) that holders will be entitled to withdraw their election if the
paying agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
holder, the principal amount of notes delivered for purchase, and a
statement that such holder is withdrawing his election to have such notes
purchased; and
(7) that holders whose notes are being purchased only in part will be
issued new notes equal in Accreted Value to the unpurchased portion of the
notes surrendered, which unpurchased portion must be equal to L1,000 in
principal amount at maturity or an integral multiple of L1,000.
NTL will comply with the requirements of Rules 13e-4 and 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with the
repurchase of the notes in connection with a Change of Control Triggering Event.
On the Change of Control Payment Date, NTL will, to the extent lawful,
(1) accept for payment notes or portions of notes tendered pursuant to
the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all notes or portions of notes so tendered
and
(3) deliver or cause to be delivered to the trustee the notes so
accepted together with an Officers' Certificate stating the notes or
portions of notes tendered to NTL.
The paying agent shall promptly mail to each holder of notes so accepted,
or, if such a holder requests, wire transfer immediately available funds to an
account previously specified in writing by such holder to NTL and the paying
agent, payment in an amount equal to the purchase price for such notes. The
trustee shall promptly authenticate and mail to each holder a new note equal in
Accreted Value to any unpurchased portion of the notes surrendered, if any;
provided that each such new note shall be in a principal amount at maturity of
L1,000 or an integral multiple of L1,000. NTL will publicly announce the results
of the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
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<PAGE> 33
Except as described above with respect to a Change of Control Triggering
Event, the indenture does not contain any other provision that permit the
holders of the notes to require that NTL repurchase or redeem the notes in the
event of a takeover, recapitalization or similar restructuring. The indenture
contains covenants which may afford holders of the notes protection in the event
of a highly leveraged transaction, reorganization, restructuring, merger or
similar transaction, including the Change of Control provision described above
and the provisions described under "-- Incurrence of indebtedness and issuance
of preferred stock" and "-- Merger, consolidation or sale of assets" below. Each
of those covenants is, however, subject to exceptions which may permit NTL to be
involved in a highly leveraged transaction that may adversely affect the holders
of the notes.
The Change of Control Offer requirement of the notes may, in certain
circumstances, make more difficult or discourage a takeover of NTL, and, thus,
the removal of incumbent management. Management has not entered into any
agreement or plan involving a Change of Control, although it is possible that
NTL would decide to do so in the future. Subject to the limitations discussed
below, NTL could, in the future, enter into various transactions including
acquisitions, refinancings or other recapitalizations, that would not constitute
a Change of Control Triggering Event under the indenture, but that could
increase the amount of indebtedness outstanding at such time or otherwise affect
NTL's capital structure or credit ratings.
The indentures for our other outstanding senior notes and convertible notes
also contain change of control provisions.
NTL's ability to pay cash to the holders of notes pursuant to a Change of
Control Offer may be limited by NTL's then existing financial resources. See
"Risk Factors -- Our substantial leverage could adversely affect our financial
health and prevent us from fulfilling our obligation under the notes" and "-- We
are a holding company that is dependant upon cash flow from our
subsidiaries -- our ability to access that cash flow may be limited in some
circumstances". Our Credit Facility does, and any future credit agreements or
other agreements relating to indebtedness of NTL may, contain prohibitions or
restrictions on NTL's ability to effect a Change of Control Payment. In the
event a Change of Control Triggering Event occurs at a time when such
prohibitions or restrictions are in effect, NTL could seek the consent of its
lenders to the purchase of notes and other Indebtedness containing change of
control provisions or could attempt to refinance the borrowings that contain
such prohibition. If NTL does not obtain such a consent or repay such
borrowings, NTL will be effectively prohibited from purchasing the notes. In
such case, NTL's failure to purchase tendered notes would constitute an Event of
Default under the indenture. Moreover, the events that constitute a Change of
Control or require an Asset Sale Offer under the indenture constitute events of
default under our Credit Facility and may also constitute events of default
under future debt instruments or credit agreements of NTL or NTL's Subsidiaries.
Such events of default may permit the lenders under such debt instruments or
credit agreements to accelerate the debt and, if such debt is not paid or
repurchased, to enforce their security interests in
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<PAGE> 34
what may be all or substantially all of the assets of NTL's Subsidiaries. Any
such enforcement may limit NTL's ability to raise cash to repay or repurchase
the notes.
NTL will not be required to make a Change of Control Offer in the event NTL
enters into a transaction with management or their affiliates who are Permitted
Holders. The definition of Change of Control includes a phrase relating to the
sale, lease, transfer, conveyance or other disposition of all or substantially
all of NTL's assets. Although there is a developing body of case law
interpreting the phrase substantially all, there is no precise established
definition of the phrase under applicable law. Accordingly, the ability of a
holder of notes to require NTL to repurchase those notes as a result of a sale,
lease, transfer, conveyance or other disposition of less than all of the assets
of NTL and its Subsidiaries to another Person may be uncertain.
ASSET SALE
The indenture provides that NTL will not and will not permit any of its
Restricted Subsidiaries to cause, make or suffer to exist any Asset Sale, unless
(1) no Default exists or is continuing immediately prior to and after
giving effect to such Asset Sale,
(2) NTL or the Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the
fair market value, evidenced for purposes of this covenant by a
resolution of the Board of Directors set forth in an Officers'
Certificate delivered to the Trustee, of the assets sold or
otherwise disposed of and
(3) at least 80% of the consideration therefor received by NTL or the
Restricted Subsidiary is in the form of
(a) Cash Equivalents,
(b) Replacement Assets,
(c) publicly traded Equity Interests of a Person who is, directly
or indirectly, engaged primarily in one or more Cable
Businesses; provided, however, that NTL or the Restricted
Subsidiary shall Monetize the Equity Interests by sale to one
or more Persons, other than to NTL or a Subsidiary NTL, at a
price not less than the fair market value thereof within 180
days of the consummation of the Asset Sale, or
(d) any combination of the foregoing clauses (a) through (c);
provided, however, that the amount of
(x) any liabilities, as shown on NTL's or the Restricted
Subsidiary's most recent balance sheet or in the notes
thereto, of NTL or any Restricted Subsidiary, other than
liabilities that are by their terms subordinated to the
notes, that are assumed by the transferee of any such assets
and
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<PAGE> 35
(y) any notes or other obligations received by NTL or any
Restricted Subsidiary from such transferee that are within
five Business Days converted by NTL or the Restricted
Subsidiary into cash, shall be deemed to be Cash Equivalents,
to the extent of the Cash Equivalents received in such
conversion, for purposes of this clause (3).
Within 360 days after any Asset Sale, NTL, or the Restricted Subsidiary, as
the case may be, will cause the Net Proceeds from the Asset Sale
(1) to be used to permanently reduce Indebtedness of a Restricted
Subsidiary or
(2) to be invested or reinvested in Replacement Assets.
Pending final application of any Net Proceeds, NTL may temporarily reduce
revolving credit borrowings or otherwise invest those Net Proceeds in any manner
that is not prohibited by the indenture.
Any Net Proceeds from any Asset Sale that are not used or reinvested as
provided in the preceding sentence constitute Excess Proceeds. When the
aggregate amount of Excess Proceeds exceeds $15 million, NTL will make an Asset
Sale Offer to all holders of notes and Other Qualified Notes to purchase the
maximum principal amount of notes and Other Qualified Notes, determined on a pro
rata basis according to the Accreted Value or principal amount, as the case may
be, of the notes and the Other Qualified Notes that may be purchased out of the
Excess Proceeds:
(1) with respect to the Other Qualified Notes, based on the terms set
forth in the indenture related to each issue of the Other Qualified
Notes and
(2) with respect to the notes, at an offer price in cash in an amount
equal to 100% of the Accreted Value of those notes as of the date
of repurchase in accordance with the procedures set forth in the
indenture.
To the extent that the Accreted Value of notes and Other Qualified Notes
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, NTL
may use such deficiency for general corporate purposes. If the Accreted Value of
notes and Other Qualified Notes surrendered by holders thereof exceeds the
amount of Excess Proceeds then the remaining Excess Proceeds will be allocated
pro rata according to Accreted Value to the notes and each issue of the Other
Qualified Notes, and the trustee will select the notes to be purchased from the
amount allocated to the notes on the basis set forth under "Selection and
notice" below. Upon completion of such offers to purchase each of the notes and
the Other Qualified Notes, the amount of Excess Proceeds will be reset at zero.
Notwithstanding the foregoing, NTL and its Subsidiaries may
(1) sell, lease, transfer, convey or otherwise dispose of assets or
property acquired after October 14, 1993, by NTL or any Subsidiary
in a sale-and-leaseback transaction so long as the proceeds of such
sale are applied within five Business Days to permanently reduce
Indebtedness of a
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<PAGE> 36
Restricted Subsidiary or if there is no such Indebtedness or such
proceeds exceed the amount of such Indebtedness then such proceeds
or excess proceeds are reinvested in Replacement Assets within 360
days after such sale, lease, transfer, conveyance or disposition,
(2) (x) swap or exchange assets or property with a Cable Controlled
Subsidiary or
(y) issue, sell, lease, transfer, convey or otherwise dispose of
equity securities of any of NTL's Subsidiaries to a Cable
Controlled Subsidiary, in each of cases (x) and (y) so long
as
(A) the ratio of Indebtedness to Annualized Pro Forma EBITDA
of NTL after such transaction is equal to or less than
the ratio of Indebtedness to Annualized Pro Forma EBITDA
of NTL immediately preceding such transaction; provided,
however, that if the ratio of Indebtedness to Annualized
Pro Forma EBITDA of NTL immediately preceding such
transaction is 6:1 or less, then the ratio of
Indebtedness to Annualized Pro Forma EBITDA of NTL may
be 0.5 greater than such ratio immediately preceding
such transaction and
(B) either
(I) the assets so contributed consist solely of a
license to operate a Cable Business and the Net
Households covered by all of the licenses to
operate cable and telephone systems held by NTL and
its Restricted Subsidiaries immediately after and
giving effect to such transaction equals or exceeds
the number of Net Households covered by all of the
licenses to operate cable and telephone systems
held by NTL and its Restricted Subsidiaries
immediately prior to such transaction or
(II) the assets so contributed consist solely of Cable
Assets and the value of the Capital Stock received,
immediately after and giving effect to such
transaction, as determined by an investment banking
firm of recognized standing with knowledge of the
Cable Business, equals or exceeds the value of the
Cable Assets exchanged for such Capital Stock, or
(3) issue, sell, lease, transfer, convey or otherwise dispose of Equity
Interests of NTL, or any Capital Stock Sales Proceeds therefrom, to
any Person including Non-Restricted Subsidiaries.
SELECTION AND NOTICE
If less than all of the notes are to be redeemed at any time, selection of
notes for redemption will be made by the trustee in compliance with the
requirements of any
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<PAGE> 37
securities exchange on which the notes are listed. In the absence of any
requirements of any securities exchange or if the notes are not listed,
selection of the note to be redeemed will be made on a pro rata basis, provided
that no notes of L1,000 or less at maturity shall be redeemed in part. Notice of
redemption shall be mailed by first class mail at least 30 but not more than 60
days before the redemption date to each holder of notes to be redeemed at its
registered address. If any note is to be redeemed in part only, the notice of
redemption that relates to such note shall state the portion of the principal
amount at maturity thereof to be redeemed. A new note in principal amount at
maturity equal to the unredeemed portion thereof will be issued in the name of
the holder thereof upon cancellation of the original note. On and after the
redemption date, interest ceases to accrue or, if applicable, the Accreted Value
of any notes tendered will cease to increase as provided in the notes, on notes
or portions of them called for redemption.
COVENANTS
Restricted payments
The indenture provides that NTL will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any distribution on account of
NTL's or any of its Restricted Subsidiaries' Equity Interests,
other than:
(x) dividends or distributions payable in Equity Interests (other
than Disqualified Stock) of NTL or such Restricted Subsidiary
or
(y) dividends or distributions payable to NTL or any Wholly Owned
Subsidiary of NTL, or
(z) pro rata dividends or pro rata distributions payable by a
Restricted Subsidiary;
(2) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of NTL, other than any such Equity Interests owned
by NTL or any Wholly Owned Subsidiary of NTL;
(3) voluntarily purchase, redeem or otherwise acquire or retire for
value any Indebtedness that is subordinated to the notes; or
(4) make any Restricted Investment.
All such payments and other actions set forth in clauses (1) through (4)
above are collectively referred to as Restricted Payments.
NTL or the Restricted Subsidiary may make a Restricted Payment if, at the
time of such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
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<PAGE> 38
(b) such Restricted Payment, together with the aggregate of all
other Restricted Payments made by NTL and its Restricted
Subsidiaries after the Issuance Date, including Restricted
Payments permitted by clauses (2) through (10) of the next
succeeding paragraph, is less than the sum of
(x) the difference between Cumulative EBITDA and 1.5 times
Cumulative Interest Expense plus
(y) Capital Stock Sale Proceeds plus
(z) cash received by NTL or a Restricted Subsidiary from a
Non-Restricted Subsidiary, other than cash which is or is
required to be repaid or returned to such Non-Restricted
Subsidiary; provided, however, that to the extent that any
Restricted Investment that was made after the date of the
indenture is sold for cash or otherwise liquidated or
repaid for cash, the amount credited pursuant to this
clause (z) shall be the lesser of
(A) the cash received with respect to such sale,
liquidation or repayment of such Restricted
Investment, less the cost of such sale, liquidation
or repayment, if any, and
(B) the initial amount of such Restricted Investment, in
each case as determined in good faith by NTL's Board
of Directors.
The foregoing provisions will not prohibit
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment
would have complied with the provisions of the indenture;
(2) (x) the redemption, repurchase, retirement or other acquisition of
any Equity Interests of NTL or any Restricted Subsidiary or
(y) an Investment in any Person,
in each case, in exchange for, or out of the proceeds of, the
substantially concurrent sale, other than to a Restricted
Subsidiary of NTL, of other Equity Interests, other than any
Disqualified Stock, of NTL provided that NTL delivers to the
trustee:
(1) with respect to any transaction involving in excess of $1
million, a resolution of the Board of Directors set forth
in an Officers' Certificate certifying that such
transaction is approved by a majority of the directors on
the Board of Directors; and
(2) with respect to any transaction involving in excess of
$25 million, an opinion as to the fairness to NTL or the
Restricted Subsidiary from a financial point of view
issued by an investment banking firm of national
standing with high yield experience, together with
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<PAGE> 39
an Officers' Certificate to the effect that such opinion
complies with this clause (2), provided, that the amount
of such proceeds from the sale of such Equity Interests
shall be excluded in each case from Capital Stock Sale
Proceeds for purposes of clause (b)(y), above;
(3) Investments by NTL or any Restricted Subsidiary in a Non-Controlled
Subsidiary which
(A) has no Indebtedness on a consolidated basis other than
Indebtedness incurred to finance the purchase of equipment
used in a Cable Business,
(B) has no restrictions, other than restrictions imposed or
permitted by the indenture or the indentures governing the
Other Qualified Notes or any other instrument governing
unsecured indebtedness of NTL which is equal in right of
payment with the notes, on its ability to pay dividends or
make any other distributions to NTL or any of its Restricted
Subsidiaries,
(C) is or will be a Cable Business and
(D) uses the proceeds of such Investment for constructing a Cable
Business or the working capital needs of a Cable Business;
(4) the redemption, purchase, defeasance, acquisition or retirement of
Indebtedness that is subordinated to the notes, including premium,
if any, and accrued and unpaid interest, made by exchange for, or
out of the proceeds of the substantially concurrent sale, other
than to a Restricted Subsidiary of NTL, of,
(A) Equity Interests of NTL provided, that the amount of such
proceeds from the sale of such Equity Interests shall be excluded
in each case from Capital Stock Sale Proceeds for purposes of
clause (b)(y), above or
(B) Refinancing Indebtedness permitted to be incurred under the
"Incurrence of indebtedness and issuance of preferred stock"
covenant;
(5) Investments by NTL or any Restricted Subsidiary in a
Non-Controlled Subsidiary which is or will be a Cable Business in
an amount not to exceed $80 million in the aggregate plus the sum
of
(x) cash received by NTL or a Restricted Subsidiary from a Non-
Restricted Subsidiary, other than cash which is or is required to
be repaid or returned to such Non-Restricted Subsidiary and
(y) Capital Stock Sale Proceeds, excluding the aggregate net sale
proceeds to be received upon conversion of the Convertible
Subordinated Notes, provided, that the amount of such proceeds
from the sale of such
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<PAGE> 40
Equity Interests shall be excluded in each case from Capital Stock
Sale Proceeds for purposes of clause (2)(y), above;
(6) Investments by NTL or any Restricted Subsidiary in Permitted Non-
Controlled Assets;
(7) Investments by NTL or any Restricted Subsidiary in SDN Limited, a
joint venture organized to operate a digital terrestrial
television multiplex, in an amount not exceeding L11.4 million;
(8) the extension by NTL or any Restricted Subsidiary of trade credit
to a Non-Restricted Subsidiary extended on usual and customary
terms in the ordinary course of business, provided that the
aggregate amount of such trade credit shall not exceed $25 million
at any one time;
(9) the payment of cash dividends on the Preferred Stock accruing on
or after February 15, 2004 or any mandatory redemption or
repurchase of the Preferred Stock, in each case, in accordance
with the Certificate of Designations therefor; and
(10) the exchange of all of the outstanding shares of Preferred Stock
for Subordinated Debentures in accordance with the Certificate of
Designation for the Preferred Stock.
Any Investment in a Subsidiary, other than the issuance, transfer or other
conveyance of Equity Interests of NTL or any Capital Stock Sales Proceeds
therefrom, that is designated by the Board of Directors as a Non-Restricted
Subsidiary shall become a Restricted Payment made on the date of such
designation in the amount of the greater of
(x) the book value of such Subsidiary on the date such Subsidiary
becomes a Non-Restricted Subsidiary and
(y) the fair market value of such Subsidiary on such date as determined
(A) in good faith by the Board of Directors of such Subsidiary if
such fair market value is determined to be less than $25
million and
(B) by an investment banking firm of national standing with high
yield underwriting expertise if such fair market value is
determined to be in excess of $25 million.
Not later than the fifth Business Day after making any Restricted Payment,
other than those referred to in sub-clause (8) of the second paragraph preceding
this paragraph, NTL shall deliver to the trustee an Officers' Certificate
stating that such Restricted Payment is permitted and setting forth the basis
upon which the calculations required by the covenant "Restricted payments" were
computed, which calculations may be based upon NTL's latest available financial
statements.
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Incurrence of indebtedness and issuance of preferred stock
The indenture provides that NTL will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guaranty or otherwise become directly or indirectly liable with respect
to any Indebtedness, including Acquired Debt, and that NTL will not issue any
Disqualified Stock and will not permit any of its Restricted Subsidiaries to
issue any shares of preferred stock that is Disqualified Stock; provided,
however, that NTL may incur Indebtedness or issue shares of Disqualified Stock
and any of its Restricted Subsidiaries may issue shares of preferred stock that
is Disqualified Stock if after giving effect to such issuance or incurrence on a
pro forma basis, the sum of
(x) Indebtedness of NTL and its Restricted Subsidiaries, on a
consolidated basis,
(y) the liquidation value of outstanding preferred stock of Restricted
Subsidiaries and
(z) the aggregate amount payable by NTL and its Restricted
Subsidiaries, on a consolidated basis, upon redemption of
Disqualified Stock to the extent such amount is not included in the
preceding clause (y) shall be less than the product of Annualized
Pro Forma EBITDA for the latest fiscal quarter for which internal
financial statements are available immediately preceding the date
on which such additional Indebtedness is incurred or such
Disqualified Stock or preferred stock is issued multiplied by 7.0,
determined on a pro forma basis, including a pro forma application
of the net proceeds therefrom, as if the additional Indebtedness
had been incurred, or the Disqualified Stock or preferred stock had
been issued, as the case may be, at the beginning of such quarter.
The foregoing limitations will not apply to
(a) the incurrence by NTL or any Restricted Subsidiary of Indebtedness
pursuant to the Credit Facility,
(b) the issuance by any Restricted Subsidiary of preferred stock,
other than Disqualified Stock, to NTL, any Restricted Subsidiary
of NTL or the holders of Equity Interests in any Restricted
Subsidiary on a pro rata basis to such holders,
(c) the incurrence of Indebtedness or the issuance of preferred stock
by NTL or any of its Restricted Subsidiaries the proceeds of which
are, or the credit support provided by any such Indebtedness is,
in each case, used to finance the construction, capital
expenditure and working capital needs of a Cable Business,
including, without limitation, payments made pursuant to any
License, the acquisition of Cable Assets or the Capital Stock of a
Qualified Subsidiary,
(d) the incurrence by NTL or any of its Restricted Subsidiaries of
additional Indebtedness in an aggregate principal amount not to
exceed $50 million,
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(e) the incurrence by NTL or any Restricted Subsidiary of any
Permitted Acquired Debt,
(f) the incurrence by NTL or any Subsidiary of Indebtedness issued in
exchange for, or the proceeds of which are used to extend,
refinance, renew, replace, or refund the notes, Existing
Indebtedness or Indebtedness referred to in clauses (a), (b), (c),
(d) or (e) above or the Refinancing Indebtedness incurred pursuant
to the preceding paragraph; provided, however, that
(1) the principal amount of, and any premium payable in respect
of, such Refinancing Indebtedness shall not exceed the principal
amount of Indebtedness so extended, refinanced, renewed, replaced
or refunded plus the amount of reasonable expenses incurred in
connection therewith;
(2) the Refinancing Indebtedness shall have
(A) a Weighted Average Life to Maturity equal to or greater
than the Weighted Average Life to Maturity of, and
(B) a stated maturity no earlier than the stated maturity of,
the Indebtedness being extended, refinanced, renewed, replaced or
refunded; and
(3) the Refinancing Indebtedness shall be subordinated in right
of payment to the notes as and to the extent of the Indebtedness
being extended, refinanced, renewed, replaced or refunded,
(g) the issuance of the Preferred Stock in lieu of payment of cash
interest on the Subordinated Debentures or the incurrence by NTL
of Indebtedness represented by the Subordinated Debentures upon
the exchange of the Preferred Stock in accordance with the
Certificate of Designations therefor,
(h) Indebtedness under Exchange Rate Contracts, provided that such
Exchange Rate Contracts are related to payment obligations under
Existing Indebtedness or Indebtedness incurred under this
paragraph or the preceding paragraph that are being hedged
thereby, and not for speculation and that the aggregate notional
amount under each such Exchange Rate Contract does not exceed the
aggregate payment obligations under such Indebtedness,
(i) Indebtedness under Interest Rate Agreements, provided that the
obligations under such agreements are related to payment
obligations on Existing Indebtedness or Indebtedness otherwise
incurred pursuant to this paragraph or the preceding paragraph,
and not for speculation,
(j) the incurrence of Indebtedness between NTL and any Restricted
Subsidiary, between or among Restricted Subsidiaries and between
any Restricted Subsidiary and other holders of Equity Interests of
such
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Restricted Subsidiary, or other Persons providing funding on their
behalf, on a pro rata basis and on substantially identical
principal financial terms, provided, however, that if any such
Restricted Subsidiary that is the payee of any such Indebtedness
ceases to be a Restricted Subsidiary or transfers such
Indebtedness, other than to NTL or a Restricted Subsidiary of NTL,
such events shall be deemed, in each case, to constitute the
incurrence of such Indebtedness by NTL or by a Restricted
Subsidiary, as the case may be, at the time of such event, and
(k) Indebtedness of NTL and/or any Restricted Subsidiary in respect of
performance bonds of NTL or any Subsidiary or surety bonds
provided by NTL or any Restricted Subsidiary received in the
ordinary course of business in connection with the construction or
operation of a Cable Business.
Any redesignation of a Non-Restricted Subsidiary as a Restricted Subsidiary
shall be deemed for purposes of the foregoing covenant to be an incurrence of
Indebtedness by NTL and its Restricted Subsidiaries of the Indebtedness of such
Non-Restricted Subsidiary as of the time of such redesignation to the extent
such Indebtedness does not already constitute Indebtedness of NTL or one of its
Restricted Subsidiaries.
Liens
The indenture provides that neither NTL nor any of its Restricted
Subsidiaries may directly or indirectly create, incur, assume or suffer to exist
any Lien on any asset now owned or hereafter acquired, or any income or profits
therefrom or assign or convey any right to receive income therefrom, except:
(1) Permitted Liens;
(2) Liens securing Indebtedness and related obligations incurred under
clauses (a), (b), (c), (d), (e), (h), (i) and (k) of the second
paragraph of the "Incurrence of indebtedness and issuance of
preferred stock" covenant;
(3) Liens on the assets acquired or leased with the proceeds of
Indebtedness permitted to be incurred under the "Incurrence of
indebtedness and issuance of preferred stock" covenant; and
(4) Liens securing Refinancing Indebtedness permitted to be incurred
under the "Incurrence of indebtedness and issuance of preferred
stock" covenant; provided that the Refinancing Indebtedness so
issued and secured by such Lien shall not be secured by any
property or assets of NTL or any of its Restricted Subsidiaries
other than the property or assets subject to the Liens securing
such Indebtedness being refinanced.
Dividend and other payment restrictions affecting restricted subsidiaries
The indenture provides that NTL will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or
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<PAGE> 44
become effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to
(1) (a) pay dividends or make any other distributions to NTL or any of
its Subsidiaries
(A) on its Capital Stock or
(B) with respect to any other interest or participation in,
or measured by, its profits, or
(b) pay any indebtedness owed to NTL or any of its Subsidiaries or
(2) make loans or advances to NTL or any of its Subsidiaries or
(3) transfer any of its properties or assets to NTL or any of its
Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of
(a) Existing Indebtedness as in effect on the Issuance Date,
(b) the indenture and the notes,
(c) any agreement covering or relating to Indebtedness permitted
to be incurred under clause (a), (b), (c), (d), (e), (h) or
(i), but only, in the case of clause (h) or (i), to the extent
contemplated by the then-existing Credit Facility, of the
second paragraph of the "Incurrence of indebtedness and
issuance of preferred stock" covenant, provided that the
provisions of such agreement permit any action referred to in
clause (1) above in aggregate amounts sufficient to enable the
payment of interest and principal and mandatory repurchases
pursuant to the terms of the indentures and the notes but
provided further that:
(A) any such agreement may nevertheless encumber, prohibit
or restrict any action referred to in clause (1) above
if an event of default under such agreement has
occurred and is continuing or would occur as a result
of any such action; and
(B) any such agreement may nevertheless contain
(I) restrictions limiting the payment of dividends or
the making of any other distributions to all or a
portion of excess cash-flow or any similar
formulation thereof and
(II) subordination provisions governing Indebtedness
owed to NTL or any Restricted Subsidiary,
(4) applicable law,
(5) any instrument governing Indebtedness or Capital Stock of a
Person acquired by NTL or any of its Subsidiaries as in effect
at the time of such acquisition, except to the extent such
Indebtedness was incurred in connection with such acquisition,
which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any
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Person, other than the Person, or the property or assets of
the Person, so acquired; provided that the EBITDA of such
Person is not taken into account in determining whether such
acquisition was permitted by the terms of the indenture,
(6) customary nonassignment provisions in leases entered into in
the ordinary course of business and consistent with past
practices,
(7) provisions of joint venture or stockholder agreements, so long
as such provisions are determined by a resolution of the Board
of Directors to be, at the time of such determination,
customary for such agreements,
(8) with respect to clause (c) above, purchase money obligations
for property acquired in the ordinary course of business or
the provisions of any agreement with respect to any Asset
Sale, or transaction which, but for its size, would be an
Asset Sale, solely with respect to the assets being sold, or
(9) permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such
Refinancing Indebtedness are determined by a resolution of the
Board of Directors to be no more restrictive than those
contained in the agreements governing the Indebtedness being
refinanced.
Merger, consolidation or sale of assets
The indenture provides that NTL may not consolidate or merge with or into,
whether or not NTL is the surviving corporation, or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties
or assets in one or more related transactions to, another corporation, Person or
entity unless
(1) NTL is the surviving corporation or the entity or the Person formed
by or surviving any such consolidation or merger, if other than
NTL, or to which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made is a corporation
organized or existing under the laws of the United Kingdom, the
Netherlands, the Netherlands Antilles, Bermuda or the Cayman
Islands or of the United States, any state thereof or the District
of Columbia;
(2) the entity or Person formed by or surviving any such consolidation
or merger, if other than NTL, or the entity or Person to which such
sale, assignment, transfer, lease, conveyance or other disposition
will have been made assumes all the Obligations, including the due
and punctual payment of Additional Amounts as defined in the
indenture if the surviving corporation is a corporation organized
or existing under the laws of the United Kingdom, the Netherlands,
the Netherlands Antilles, Bermuda or the Cayman Islands, of NTL,
pursuant to a supplemental indenture in a form reasonably
satisfactory to the trustee, under the notes and the indenture;
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(3) immediately after such transaction no Default or Event of Default
exists;
(4) NTL or any entity or Person formed by or surviving any such
consolidation or merger, or to which such sale, assignment,
transfer, lease, conveyance or other disposition will have been
made will have a ratio of Indebtedness to Annualized Pro Forma
EBITDA equal to or less than the ratio of Indebtedness to
Annualized Pro Forma EBITDA of NTL immediately preceding the
transaction provided, however, that if the ratio of Indebtedness to
Annualized Pro Forma EBITDA of NTL immediately preceding such
transaction is 6:1 or less, then the ratio of Indebtedness to
Annualized Pro Forma EBITDA of NTL may be 0.5 greater than such
ratio immediately preceding such transaction; and
(5) such transaction would not result in the loss of any material
authorization or Material License of NTL or its Subsidiaries.
Additional amounts; optional tax redemption
The indenture provides that the "Payment of Additional Amounts" provision
in the indenture, relating to United Kingdom, Netherlands, Netherlands Antilles,
Bermuda and Cayman Islands withholding and other United Kingdom, Netherlands,
Netherlands Antilles, Bermuda and Cayman Islands taxes, and the "Optional Tax
Redemption" provision in the indenture, relating to NTL's option to redeem the
notes under specified circumstances if Additional Amounts are payable, apply to
the notes in specified circumstances. The provisions of the indenture relating
to the payment of Additional Amounts will only apply in the event that NTL
becomes, or a successor to NTL is, a corporation organized or existing under the
laws of the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda
or the Cayman Islands. In such circumstances, all payments made by NTL on the
notes will be made without deduction or withholding, for or on account of, any
and all present or future taxes, duties, assessments, or governmental charges of
whatever nature unless the deduction or withholding of such taxes, duties,
assessments or governmental charges is then required by law. If any deduction or
withholding for or on account of any present or future taxes, assessments or
other governmental charges of the United Kingdom, the Netherlands, the
Netherlands Antilles, Bermuda or the Cayman Islands, or any political
subdivision or taxing authority thereof or therein, shall at any time be
required in respect of any amounts to be paid by NTL under the notes, NTL will
pay or cause to be paid such Additional Amounts as may be necessary in order
that the net amounts received by a holder of the notes after such deduction or
withholding shall be not less than the amounts specified in the notes to which
the holder of such notes is entitled; provided, however, that NTL shall not be
required to make any payment of Additional Amounts for or on account of:
(1) any tax, assessment or other governmental charge to the extent such
tax, assessment or other governmental charge would not have been
imposed but for
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<PAGE> 47
(a) the existence of any present or former connection between
such holder, or between a fiduciary, settlor, beneficiary,
member or shareholder of, or possessor of a power over, such
holder, if such holder is an estate, nominee, trust,
partnership or corporation, other than the holding of the
notes or the receipt of amounts payable in respect of the
notes and the United Kingdom, the Netherlands, the
Netherlands Antilles, Bermuda or the Cayman Islands or any
political subdivision or taxing authority thereof or therein,
including, without limitation, such holder, or such
fiduciary, settlor, beneficiary, member, shareholder or
possessor, being or having been a citizen or resident thereof
or being or having been present or engaged in trade or
business therein or having had a permanent establishment
therein or
(b) the presentation of the notes, where presentation is required,
for payment on a date more than 30 days after the date on
which such payment became due and payable or the date on which
payment thereof is duly provided for, whichever occurs later,
except to the extent that the holder would have been entitled
to Additional Amounts had the notes been presented on the last
day of such period of 30 days;
(2) any governmental charge that is imposed or withheld by reason of
the failure to comply by the holder of the notes or, if different,
the beneficial owner of the interest payable on the notes, with a
timely request of NTL addressed to such holder or beneficial owner
to provide information, documents or other evidence concerning the
nationality, identity or connection with the taxing jurisdiction of
such holder or beneficial owner which is required or imposed by a
statute, regulation or administrative practice of the taxing
jurisdiction as a precondition to exemption from all or part of
such tax assessment or governmental charge;
(3) any estate, inheritance, gift, sales, transfer, personal property
or similar tax assessment or other governmental charge;
(4) any tax assessment or other governmental charge which is
collectible otherwise than by withholding from payments of
principal amount, redemption amount, Change of Control Payment or
interest with respect to a note or withholding from the proceeds of
a sale or exchange of a note;
(5) any tax, assessment or other governmental charge required to be
withheld by any paying agent from any payment of principal amount,
redemption amount, Change of Control Payment or interest with
respect to a note, if such payment can be made, and is in fact
made, without such withholding by any other paying agent located
inside the United States;
(6) any tax, assessment or other governmental charge imposed on a
holder that is not the beneficial owner of a note to the extent
that the beneficial
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<PAGE> 48
owner would not have been entitled to the payment of any such
Additional Amounts had the beneficial owner directly held the
note;
(7) any combination of items (1), (2), (3), (4), (5) and (6) above;
nor shall Additional Amounts be paid with respect to any payment of the
principal of, or any interest on the notes to any holder who is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent that a beneficiary or settlor would not have been entitled to any
Additional Amounts had such beneficiary or settlor been the holder of the notes.
The notes may be redeemed at the option of NTL, in whole but not in part,
upon not less than 30 nor more than 60 days notice, at any time upon the
circumstances set forth below. The redemption price will be equal to the
principal amount of the notes plus accrued and unpaid interest to the date fixed
for redemption or in the case of redemption of notes prior to April 15, 2004, at
a redemption price equal to 100% of the Accreted Value of the notes as of the
date fixed for redemption if after the Issuance Date there has occurred any
change in or amendment to the laws, or any regulations or official rulings
promulgated thereunder, of the United Kingdom, the Netherlands, the Netherlands
Antilles, Bermuda or the Cayman Islands, or any political subdivision or taxing
authority thereof or therein, or any change in or amendment to the official
application or interpretation of such laws, regulation or rulings which becomes
effective after the Issuance Date, as a result of which NTL is or would be so
required on the next succeeding Interest Payment Date to pay Additional Amounts
with respect to the notes with respect to Withholding Taxes imposed by the
United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman
Islands, or any political subdivision or taxing authority thereof or therein and
such Withholding Tax is imposed at a rate that exceeds the rate, if any, at
which Withholding Tax was imposed on the Issuance Date provided, that,
(1) this paragraph shall not apply to the extent that, at the Relevant
Date it was known or would have been known had professional advice
of a nationally recognized accounting firm in the United Kingdom,
Netherlands, Netherlands Antilles, Bermuda or the Cayman Islands,
as the case may be, been sought, that a Change in Tax Law in the
United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda
or the Cayman Islands, was to occur after the Issuance Date,
(2) no such notice of redemption may be given earlier than 90 days
prior to the earliest date on which NTL would be obliged to pay
such Additional Amounts were a payment in respect of the notes then
due,
(3) at the time such notice of redemption is given, such obligation to
pay such Additional Amount remains in effect and
(4) the payment of such Additional Amounts cannot be avoided by the use
of any reasonable measures available to NTL.
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The notes may also be redeemed, in whole but not in part, at any time upon
the circumstances set forth below. The redemption price will be equal to the
principal amount of the notes plus accrued and unpaid interest to the date fixed
for redemption or in the case of redemption of notes prior to April 15, 2004, at
a redemption price equal to 100% of the Accreted Value of the notes as of the
date fixed for redemption if the Person formed after the Issuance Date by a
consolidation, amalgamation, reorganization, reconstruction or other similar
arrangement of NTL or the Person into which NTL is merged after the Issuance
Date or to which NTL conveys, transfers or leases its properties and assets
after the Issuance substantially as an entirety is required, as a consequence of
such Subsequent Consolidation and as a consequence of a Change in Tax Law in the
United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman
Islands occurring after the date of such Subsequent Consolidation to pay
Additional Amounts with respect to Notes with respect to Withholding Tax and
such Withholding Tax is imposed at a rate that exceeds the rate, if any, at
which Withholding Tax was or would have been imposed on the date of such
Subsequent Consolidation. This paragraph shall not apply to the extent that, at
the date of such Subsequent Consolidation it was known or would have been known
had professional advice of a nationally recognized accounting firm in the United
Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman
Islands, as the case may be, been sought, that a Change in Tax Law in the United
Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman
Islands, was to occur after such date.
NTL will also pay, or make available for payment, to holders on the
redemption date any Additional Amounts resulting from the payment of such
redemption price.
Transactions with affiliates
The indenture provides that NTL will not, and will not permit any of its
Restricted Subsidiaries to enter into an Affiliate Transaction. This prohibits
NTL and any Restricted Subsidiary to sell, lease, transfer or otherwise dispose
of any of its properties or assets to, or purchase any property or assets from,
or enter into or amend any contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate, unless
(1) such Affiliate Transaction is on terms that are no less favorable
to NTL or the relevant Subsidiary than those that could have been
obtained in a comparable transaction by NTL or such Subsidiary with
an unrelated Person and
(2) NTL delivers to the trustee
(a) with respect to any Affiliate Transaction involving aggregate
payments in excess of $1 million or any series of Affiliate
Transactions with an Affiliate involving aggregate payments
in excess of $1 million, a resolution of the Board of
Directors set forth in an Officers' Certificate certifying
that such Affiliate Transaction complies with clause (1)
above and such Affiliate Transaction is
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approved by a majority of the disinterested directors on the
Board of Directors and
(b) with respect to any Affiliate Transaction or any series of
Affiliate Transactions involving aggregate payments in excess
of $25 million, an opinion as to the fairness to NTL or such
Subsidiary from a financial point of view issued by an
investment banking firm of national standing with high yield
experience together with an Officers' Certificate to the
effect that such opinion complies with this clause (b);
provided, however, that notwithstanding the foregoing provisions, the following
shall not be deemed to be Affiliate Transactions:
(1) any employment agreement entered into by NTL or any of its
Subsidiaries in the ordinary course of business and consistent with
the past practice of NTL or its predecessor or such Subsidiary;
(2) transactions between or among NTL and/or its Restricted
Subsidiaries;
(3) transactions permitted by the provisions of the indenture described
above under the covenant "Restricted payments";
(4) Liens permitted under the Liens covenant which are granted by NTL
or any of its Subsidiaries to an unrelated Person for the benefit
of NTL or any other Subsidiary of NTL;
(5) any transaction pursuant to an agreement in effect on the Issuance
Date;
(6) the incurrence of Indebtedness by a Restricted Subsidiary where
such Indebtedness is owed to the holders of the Equity Interests of
such Restricted Subsidiary on a pro rata basis and on substantially
identical principal financial terms;
(7) management, operating, service or interconnect agreements entered
into in the ordinary course of business with any Cable Business in
which NTL or any Restricted Subsidiary has an Investment and which
is not a Cable Controlled Subsidiary, and of which no Affiliate of
NTL is an Affiliate other than as a result of such Investment; and
(8) any tax sharing agreement.
Reports
Whether or not required by the rules and regulations of the SEC, so long as
any notes are outstanding, NTL will file with the SEC and furnish to the holders
of notes all quarterly and annual financial information required to be contained
in a filing with the SEC on Forms 10-Q and 10-K, or the equivalent of those
reports under the Exchange Act for foreign private issuers in the event NTL
becomes a corporation organized under the laws of the United Kingdom, the
Netherlands, the Netherlands Antilles, Bermuda or the Cayman Islands, including
a "Management's Discussion and Analysis of Results of
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Operations and Financial Condition" and, with respect to the annual information
only, a report by NTL's certified independent accountants, in each case, as
required by the rules and regulations of the SEC as in effect on the Issuance
Date. NTL does not publish unconsolidated financial reports.
EVENTS OF DEFAULT AND REMEDIES
The indenture provides that each of the following constitutes an Event of
Default:
(1) default for 30 days in the payment when due of interest and
Additional Amounts, if applicable, on the notes;
(2) default in payment when due of principal on the notes;
(3) failure by NTL to comply with the provisions described under the
covenants "Change of control", "Restricted payments" or "Incurrence
of indebtedness and issuance of preferred stock";
(4) failure by NTL for 60 days after notice to comply with certain
other covenants and agreements contained in the indenture or the
notes;
(5) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by NTL or any of its Restricted
Subsidiaries, or the payment of which is guaranteed by NTL or any
of its Restricted Subsidiaries, whether such Indebtedness or
guarantee now exists, or is created after the Issuance Date, which
default
(a) is caused by a failure to pay when due principal or interest
on such Indebtedness within the grace period provided in such
Indebtedness, which Payment Default continues beyond any
applicable grace period or
(b) results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the principal amount of
any such Indebtedness, together with the principal amount of
any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so
accelerated, aggregates $10 million or more;
(6) failure by NTL or any Restricted Subsidiary of NTL to pay final
judgments (other than any judgment as to which a reputable
insurance company has accepted full liability) aggregating in
excess of $5 million, which judgments are not stayed within 60 days
after their entry;
(7) certain events of bankruptcy or insolvency with respect to NTL or
any of its Material Subsidiaries; and
(8) the revocation of a Material License.
If any Event of Default occurs and is continuing, the trustee or the
holders of at least 25% in Accreted Value (if prior to April 15, 2004) or
principal amount (if on or
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after April 15, 2004), as applicable, of the then outstanding notes may declare
all the notes to be due and payable immediately. Notwithstanding the foregoing,
in the case of an Event of Default arising from certain events of bankruptcy or
insolvency, with respect to NTL or any Material Subsidiary, all outstanding
notes will become due and payable without further action or notice. Holders of
the notes may not enforce the indenture or the notes except as provided in the
indenture. Subject to certain limitations, holders of a majority in principal
amount at maturity of outstanding notes may direct the trustee in its exercise
of any trust or power. The trustee may withhold from holders of the notes notice
of any continuing Default or Event of Default, except a Default or Event of
Default relating to the payment of principal or interest, if it determines that
withholding notice is in their interest.
The holders of a majority in aggregate principal amount at maturity of each
class of notes then outstanding by notice to the trustee may on behalf of the
holders of all of the applicable class of notes waive any existing Default or
Event of Default and its consequences under the indenture except a continuing
Default or Event of Default in the payment of interest on, or the principal of,
the notes.
NTL is required to deliver to the trustee annually a statement regarding
compliance with the indenture, and NTL is required, upon becoming aware of any
Default or Event of Default, to deliver to the trustee a statement specifying
such Default or Event of Default.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND SHAREHOLDERS
No director, officer, employee, incorporator or shareholder of NTL, as
such, shall have any liability for any Obligations of NTL under the notes or the
indenture or for any claim based on, in respect of, or by reason of, such
Obligations or their creation. Each holder of the notes by accepting a note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the notes. Such waiver may not be effective to
waive liabilities under the federal securities laws, and it is the view of the
commission that a waiver of such liabilities is against public policy.
DEFEASANCE AND DISCHARGE OF THE INDENTURE AND THE NOTES
NTL may cause the defeasance of the notes if NTL irrevocably deposits, or
causes to be deposited, in trust with the trustee or the Paying Agent, at any
time prior to the stated maturity of the notes or the date of redemption of all
the outstanding notes, as trust funds in trust, money or direct noncallable
obligations of or guaranteed by the United States of America in an amount
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, without reinvestment thereof, to pay timely and discharge all
amounts payable in respect of Accreted Value (if prior to April 15, 2004) or
principal amount (if on or after April 15, 2004), of the then outstanding notes
and all interest due thereon to maturity or redemption. The indenture will then
cease to be of further effect as to all outstanding notes except, among other
things, as to
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(1) remaining rights of registration of transfer and substitution and
exchange of the notes,
(2) rights of holders to receive payment of principal of and interest
on the notes, and
(3) the rights, obligations and immunities of the trustee.
In order to exercise Defeasance:
(1) NTL shall have delivered to the trustee an Opinion of Counsel
reasonably acceptable to the trustee confirming that
(a) NTL has received from, or there has been published by, the
Internal Revenue Service, a ruling or
(b) since the date of the indenture, there has been a change in
the applicable federal income tax law, in either case to the
effect that, and based thereon, such Opinion of Counsel shall
confirm that the holders of the outstanding notes will not
recognize income, gain or loss for federal income tax
purposes as a result of such Defeasance and will be subject
to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such
Defeasance had not occurred;
(2) no Event of Default shall have occurred and be continuing on the
date of such deposit, other than an Event of Default resulting from
the borrowing of funds to be applied to such deposit, or insofar as
Events of Default from bankruptcy or insolvency events are
concerned, at any time in the period ending on the 91st day after
the date of deposit;
(3) such Defeasance shall not result in a breach or violation of, or
constitute a default under, any material agreement or instrument,
other than the indenture, to which NTL or any of its Subsidiaries
is a party or by which NTL or any of its Subsidiaries is bound;
(4) NTL shall have delivered to the trustee an Opinion of Counsel to
the effect that after the 91st day following the deposit, the trust
funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(5) NTL shall have delivered to the trustee an Officers' Certificate
stating that the deposit was not made by NTL with the intent of
preferring the holders of the notes over the other creditors of NTL
with the intent of defeating, hindering, delaying or defrauding
creditors of NTL or others;
(6) the deposit shall not result in NTL, the trustee or the trust being
subject to the Investment Company Act;
(7) holders of the notes will have a valid, perfected and unavoidable,
under applicable bankruptcy or insolvency laws, subject to the
passage of time
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referred to in clause (4) above, first priority security interest
in the trust funds; and
(8) NTL shall have delivered to the trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions
precedent relating to the Defeasance have been complied with.
UNCLAIMED MONEY, PRESCRIPTION
If money deposited with the trustee or Paying Agent for the payment of
principal or interest remains unclaimed for two years, the trustee and the
Paying Agent shall pay the money back to NTL at its written request. After that,
holders of notes entitled to the money must look to NTL for payment unless an
abandoned property law designates another person and all liability of the
trustee and the Paying Agent shall cease. Other than as set forth in this
paragraph, the indenture does not provide for any prescription period for the
payment of interest and principal on the notes.
BOOK-ENTRY, DELIVERY AND FORM
The notes will be represented by a note in registered, global form (the
"Global Note") deposited with the Paying Agent in London as common depositary
(such capacity, the "Common Depositary") for Euroclear System ("Euroclear") and
Cedel Bank, societe anonyme ("Cedelbank").
Except in the limited circumstances set forth below, notes in certificated
form will not be issued.
DEPOSITARY PROCEDURES
Euroclear and Cedelbank. NTL understands as follows with respect to
Euroclear and Cedelbank: Euroclear and Cedelbank each hold securities for their
account holders and facilitate the clearance and settlement of securities
transactions by electronic book-entry transfer between their respective account
holders, thereby eliminating the need for physical movements of certificates and
any risk from lack of simultaneous transfers of securities. Euroclear and
Cedelbank each provide various services including safekeeping, administration,
clearance and settlement of internationally traded securities and securities
lending and borrowing. Each of Euroclear and Cedelbank can settle securities
transactions in any of more than 30 currencies, including pounds sterling.
Euroclear and Cedelbank each also deal with domestic securities markets in
several countries through established depository and custodial relationships.
The respective systems of Euroclear and Cedelbank have established an electronic
bridge between their two systems across which their respective account holders
may settle trades with each other. Account holders in both Euroclear and
Cedelbank are world-wide financial institutions including underwriters,
securities brokers and dealers, banks, trust companies and clearing
corporations. Indirect access to both Euroclear and Cedelbank is available to
other institutions that clear through or maintain a custodial relationship with
an account holder of either system. An account holder's overall contractual
relations with either Euroclear or Cedelbank are governed by the respective
rules and operating procedures of Euroclear
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or Cedelbank and any applicable laws. Both Euroclear and Cedelbank act under
such rules and operating procedures only on behalf of their respective account
holders and have no record of or relationship with any persons who are not
direct account holders.
Investors who hold accounts with Euroclear or Cedelbank may acquire, hold
and transfer security entitlements with respect to Global Notes against
Euroclear or Cedelbank and its respective property by book-entry to accounts
with Euroclear or Cedelbank, each of which has an account with the Common
Depositary and subject at all times to the procedures and requirements of
Euroclear or Cedelbank, as the case may be. "Security entitlement" means the
rights and property interests of an account holder against its securities
intermediary under applicable law in or with respect to a security, including
any ownership, co-ownership, contractual or other rights. Investors who do not
have accounts with Euroclear or Cedelbank may acquire, hold and transfer
security entitlements with respect to a Global Note against the securities
intermediary and its property with which such investors hold accounts by
book-entry to accounts with such securities intermediary, which in turn may hold
a security entitlement with respect to the Global Note through Euroclear or
Cedelbank. Investors electing to acquire security entitlements with respect to a
Global Note through an account with Euroclear or Cedelbank or some other
securities intermediary must follow the settlement procedures of their
securities intermediary with respect to the settlement of new issues of
securities. Security entitlements with respect to the Global Notes to be
acquired through an account with Euroclear or Cedelbank will be credited to such
account as of the settlement date against payment in pounds sterling for value
as of the settlement date. Investors electing to acquire, hold or transfer
security entitlements with respect to a Global Note through an account with
Euroclear, Cedelbank or some other securities intermediary other than in
connection with the initial distribution of the notes must follow the settlement
procedures of their securities intermediary with respect to the settlement of
secondary market transactions in securities.
Except as described below, owners of interests in the Global Notes will not
have notes registered in their names, will not receive physical delivery of
notes in certificated form and will not be considered the registered owners or
holders of notes for any purpose. So long as the Common Depositary is the
registered owner or holder of a Global Note, such party will be considered the
sole owner or holder of the notes represented by such Global Note for all
purposes under the indenture and the notes. Accordingly, each person owning a
beneficial interest in a Global Note must rely on the procedures of Euroclear
and Cedelbank, as the case may be, and their participants or account holders to
exercise any rights and remedies of a holder of notes under the indenture.
Payments of principal and interest on the Global Notes will be made to the
Common Depositary on behalf of Euroclear and Cedelbank, as the case may be, as
the registered owners thereof.
The laws of some countries and some states in the United States require
that certain persons take physical delivery in definitive form of securities
that they own. Consequently, the ability to transfer beneficial interests in a
Global Note to such persons may be limited to that extent. Because Euroclear and
Cedelbank can act only on behalf
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of their respective participants or account holders, as the case may be, the
ability of a person having beneficial interests in a Global Note to pledge such
interests to persons or entities that do not participate in the relevant
clearing system, or otherwise take actions in respect of such interests, may be
affected by the lack of a physical certificate evidencing such interests.
PAYMENTS ON THE GLOBAL NOTES
Payments in respect of the principal of, premium, if any, and interest on a
Global Note will be made through a payment agent appointed pursuant to the
indenture and will be payable to the Common Depositary on behalf of Euroclear
and Cedelbank each in its capacity as the registered holder of the notes under
the indenture. Under the terms of the indenture, NTL and the trustee will treat
the persons in whose names the notes, including the Global Notes, are registered
as the owners thereof for the purpose of receiving such payments and for any and
all other purposes whatsoever. Consequently, none of NTL, the trustee, or any
agent of NTL, or the trustee has or will have any responsibility or liability
for
(1) any aspect or accuracy of the records of the relevant clearing
system, the participants therein or the account holders thereof, as the
case may be, relating to payments made on account of beneficial ownership
interests in the Global Notes, or for maintaining, supervising or reviewing
any records of such clearing system, participant or account holder relating
to beneficial ownership interests in the Global Notes, or
(2) any other matter relating to the actions and practices of the
relevant clearing system or the participants therein or the account holders
thereof.
Euroclear or Cedelbank upon receipt of any such payment, will immediately
credit the accounts of their relevant participants or account holders, as the
case may be, with payments in amounts proportionate to their respective holdings
in principal amount of beneficial interests in the Global Notes, as shown on the
records of Euroclear or Cedelbank. NTL expects that payments by such
participants or account holders, as the case may be, to the beneficial owners of
Global Notes will be governed by standing instructions and customary practices
and will be the responsibility of such participants or account holders. Neither
NTL nor the trustee will have responsibility or liability for the payment of
amounts owing in respect of beneficial interests in the Global Notes held by the
Common Depositary for Euroclear and Cedelbank.
TRANSFERS OF GLOBAL SECURITIES AND INTERESTS THEREIN
Unless definitive securities are issued, the Global Notes may be
transferred, in whole and not in part, only by Euroclear and Cedelbank to the
Common Depositary, as the case may be, or by the Common Depositary to Euroclear
and Cedelbank, respectively, or to another nominee or successor thereof or a
nominee of such successor.
Transfers of beneficial interests in the Global Notes will be subject to
the applicable rules and procedures of Euroclear and Cedelbank, as the case may
be, and their
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respective account holders and intermediaries. Any secondary market trading
activity in beneficial interests in the Global Notes is expected to occur
through the participants or account holders and intermediaries, as the case may
be, of Euroclear and Cedelbank, and the securities custody accounts of investors
will be credited with their holdings against payment in same-day funds on the
settlement date.
No service charge will be made for any registration of transfer or exchange
of the notes, but the trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Although Euroclear and Cedel Bank have agreed to various procedures to
facilitate transfers of interests in the Global Notes among participants and
account holders in Euroclear and Cedel Bank, they are under no obligation to
perform or to continue to perform such procedures, and such procedures may be
discontinued at any time. None of NTL, the trustee, nor any agent of NTL or the
trustee will have any responsibility for the nonperformance or misperformance
(as a result of insolvency, mistake, misconduct or otherwise) by Euroclear or
Cedelbank or their respective participants, indirect participants, account
holders or intermediaries of their respective obligations under the rules and
procedures governing their operations.
NTL understands that under existing industry practices, if either NTL or
the trustee requests any action of holders of notes, or if an owner of a
beneficial interest in a Global Note desires to give instructions or take an
action that a holder is entitled to give or take under the indenture, Euroclear
or Cedelbank, as the case may be, would authorize their respective participants
or account holders, as the case may be, owning the relevant beneficial interest
to give instructions to take such action, and such participants or account
holders would authorize indirect participants or intermediaries to give
instructions or take such action, or would otherwise act upon the instructions
of such indirect participants or intermediaries.
NTL understands that under existing practices of Euroclear or Cedelbank if
less than all of the notes are to be redeemed at any time, Euroclear or
Cedelbank, as the case may be, will credit their participants' or account
holders' accounts on a proportionate basis, with adjustments to prevent
fractions, or by lot or on such other basis as Euroclear or Cedelbank, as the
case may be, deems fair and appropriate, provided that no beneficial interests
of less than L1,000, may be redeemed in part.
CERTIFICATED NOTES
Beneficial interests in a Global Note are exchangeable for definitive notes
in registered certificated form only if Euroclear and Cedelbank are unwilling or
unable to continue as depositary for such Global Note and NTL fails to appoint a
successor depositary within 90 days or there shall have occurred and be
continuing a Default or an Event of Default with respect to the applicable
notes. In all cases, certificated notes delivered in exchange for any Global
Note or beneficial interest in the Global Notes will be registered in the names,
and issued in any approved denominations, requested by or on behalf of Euroclear
or Cedelbank, as the case may be, in accordance with their customary procedures.
The notes may not be issued in bearer form.
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In the case of the issuance of certificated notes in the limited
circumstances set forth above, the Holder of any such certificated note may
transfer such note by surrendering it at the offices or agencies of NTL
maintained for such purpose within the City and State of New York. Until
otherwise designated by NTL, NTL's office or agency in the City and State of New
York and London, England, respectively, will be the offices of the trustee
maintained for such purpose. In the event of a partial transfer of a holding of
notes represented by one certificate, or partial redemption of such a holding
represented by one certificate, a new certificate shall be issued to the
transferee in respect of the part transferred or redeemed and a further new
certificate in respect of the balance of the holding not transferred or redeemed
shall be issued to the transferor, provided that no certificate in denominations
less than L1,000 shall be issued. Each new certificate to be issued shall be
available for delivery within ten business days at the office of the trustee.
The cost of preparing, printing, packaging and delivering the certificated notes
shall be borne by NTL.
NTL shall not be required to register the transfer or exchange of
certificated notes for a period of 15 days preceding
(a) the due date for any payment of principal of or interest on the
notes or
(b) a selection of notes to be redeemed.
Also, NTL is not required to register the transfer or exchange of any notes
selected for redemption. In the event of the transfer of any certificated note,
the trustee may require a holder, among other things, to furnish appropriate
endorsements and transfer documents, and NTL may require a holder to pay any
taxes and fees required by law and permitted by the indenture and the notes.
If certificated notes are issued and a holder of a certificated note claims
that the note has been lost, destroyed or wrongfully taken or if such note is
mutilated and is surrendered to the trustee, NTL shall issue and the trustee
shall authenticate a replacement note if the trustee's and NTL's requirements
are met. If required by the trustee or NTL, an indemnity bond sufficient in the
judgment of both to protect NTL, the trustee or any paying agent or
authenticating agent appointed pursuant to the indenture from any loss which any
of them may suffer if a note is replaced must be posted. NTL may charge for its
expenses in replacing a note.
In case any such mutilated, destroyed, lost or stolen note has become or is
about to become due and payable, or is about to be redeemed or purchased by NTL
pursuant to the provisions of the Indenture, NTL in its discretion may, instead
of issuing a new note, pay, redeem or purchase such note, as the case may be.
TRANSFER AND EXCHANGE
A holder may transfer or exchange interests in the notes in accordance with
procedures described in "Book-Entry; Delivery and Form". The registrar and the
trustee may require a holder, among other things, to furnish appropriate
endorsements and transfer documents and NTL may require a holder to pay any
taxes and fees required by law or permitted by the indenture. NTL is not
required to transfer or exchange any note
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selected for redemption. Also, NTL is not required to transfer or exchange any
note for a period of 15 days before a selection of notes to be redeemed.
The registered holder of a note will be treated as the owner of it for all
purposes.
AMENDMENT, SUPPLEMENT AND WAIVER
Except as provided in the next succeeding paragraph, the indenture or the
notes may be amended or supplemented with the consent of the holders of at least
a majority in principal amount at maturity of the then outstanding notes,
including consents obtained in connection with a tender offer or exchange offer
for the notes, and any existing default or compliance with any provision of the
indenture or the notes may be waived with the consent of the holders of a
majority in principal amount at maturity of the then outstanding notes,
including consents obtained in connection with a tender offer or exchange offer
for the notes.
The holders of a majority in Accreted Value (if prior to April 15, 2004) or
principal amount (if on or after April 15, 2004), as applicable, of the then
outstanding notes will have the right to direct the time, method and place of
conducting any proceeding for exercising any remedy available to the trustee
under the indenture, subject to certain exceptions. The indenture provides that
in case an Event of Default shall occur, which shall not be cured, the trustee
will be required, in the exercise of its power, to use the degree of care of a
prudent man in the conduct of his own affairs. Subject to such provisions, the
trustee will be under no obligation to exercise any of its rights or powers
under the indenture at the request of any holder of notes, unless such holder
shall have offered to the trustee security and indemnity satisfactory to it
against any loss, liability or expense.
The Chase Manhattan Bank is also the trustee for all of the Existing Notes
and the convertible notes.
LISTING
Application will be made to list the new notes on the Luxembourg Stock
Exchange. The legal notice relating to the issue of the new notes and the
articles of association of NTL will be registered prior to the listing with the
Registrar of the District Court in Luxembourg, where such documents are
available for inspection and where copies thereof can be obtained upon request.
In addition, as long as the notes are listed on the Luxembourg Stock Exchange,
an agent for making payments on, and transfers of, notes will be maintained in
Luxembourg. NTL has initially designated Banque Internationale a Luxembourg S.A.
as its agent for such purposes.
DEFINITIONS
Set forth below are selected defined terms used in the indenture. Reference
is made to the indenture for a full definition of all terms, as well as any
other capitalized terms used in this description of the notes for which no
definition is provided.
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"Accreted Value" means, as of any date of determination prior to April 15,
2004, with respect to any note, the sum of
(a) the initial offering price (which shall be calculated by discounting
the aggregate principal amount at maturity of such note, at a rate of
9 3/4% per annum, compounded semiannually on each April 15 and October
15, from April 15, 2004 to the date of issuance) of such note, and
(b) the portion of the excess of the principal amount of such note over
such initial offering price which shall have been accreted thereon
through such date, such amount to be so accreted on a daily basis at a
rate of 9 3/4% per annum of the initial offering price of a note
compounded semiannually on each April 15 and October 15 from the date
of issuance of the note through the date of determination, computed on
the basis of a 360-day year of twelve 30-day months.
"Acquired Debt" means, with respect to any specified Person, Indebtedness
of any other Person (the "Acquired Person") existing at the time such Acquired
Person merged with or into or became a Subsidiary of such specified Person,
including Indebtedness incurred in connection with, or in contemplation of, such
Acquired Person merging with or into or becoming a Subsidiary of such specified
Person.
"Acquired Person" has the meaning specified in the definition of Acquired
Debt.
"Adjusted Total Assets" means the total amount of assets of NTL and its
Restricted Subsidiaries, including the amount of any Investment in any
Non-Restricted Subsidiary, except to the extent resulting from write-ups of
assets, other than write-ups in connection with accounting for acquisitions in
conformity with GAAP, after deducting therefrom
REGISTRATION RIGHTS
The following summary of the registration rights provided in the
registration rights agreement and the old notes is not complete. You should
refer to the registration rights agreement and the notes for a full description
of the registration rights that apply to the old notes. The registration rights
agreement is filed as an exhibit to the registration statement of which this
prospectus forms a part.
Under the registration rights agreement, we agreed to file with the SEC a
registration statement, including a prospectus, on the appropriate form under
the Securities Act with respect to an offer to exchange the old notes for new
notes registered under the Securities Act with terms substantially identical to
those of the old notes. If:
(1) on or prior to the time the exchange offer is completed existing SEC
interpretations are changed such that the debt securities received by
holders other than restricted holders in the exchange offer for
registrable securities are not or would not be, upon receipt,
transferable by each such holder without restriction under the
Securities Act,
(2) the exchange offer has not been completed by November 26, 1999 or
(3) the exchange offer is not available to any holder of the old notes,
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we will file with the SEC a shelf registration statement to cover resales of the
old notes by the holders who satisfy certain conditions relating to the
provision of information in connection with the shelf registration statement. We
will use our best efforts to cause the applicable registration statement to be
declared effective as promptly as practicable by the SEC.
The registration rights agreement provides that:
(a) we will file an exchange registration statement with the SEC by July
14, 1999,
(b) we will use our best efforts to have the exchange registration
statement declared effective by the SEC October 12, 1999,
(c) unless the exchange offer would not be permitted by applicable law or
SEC policy, we will commence the exchange offer and use our best
efforts to issue by the forty-fifth day following the date on which the
exchange registration statement is declared effective, new notes in
exchange for all notes tendered before that date in the exchange offer
and
(d) if obligated to file the shelf registration statement, we will use our
best efforts to file the shelf registration statement with the SEC as
promptly as practicable after such filing obligation arises and to
cause the shelf registration to be declared effective by the SEC within
120 days after the filing of such shelf registration statement.
If, with respect to the old notes:
(1) we fail to file the exchange registration statement or the shelf
registration statement on or before the date specified for such filing,
(2) the exchange registration statement is not declared effective October
12, 1999 or the shelf registration statement is not declared effective
within 120 days from the date such shelf registration statement is
filed,
(3) we fail to complete the exchange offer within the specified time frame,
or
(4) the exchange registration statement or the shelf registration statement
is filed and declared effective but is thereafter either withdrawn or
becomes subject to an effective stop order suspending the
effectiveness, except as specifically permitted in the registration
rights agreement, without being succeeded immediately by an additional
registration statement which becomes effective,
then we will pay special interest pursuant to provisions of the registration
rights agreement and the old notes to each holder of the old notes.
Special interest will accrue from:
(1) the date specified for such filing, in the case of clause (1)
above,
(2) the date specified for effectiveness in the case of clause (2)
above,
(3) the date specified for completion of the exchange offer, in the
case of clause (3) above or
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(4) the date such exchange registration statement or shelf registration
statement ceases to be effective, in the case of clause (4) above
(each such period referred to in clauses (1)-(4) above an "Accrual
Period"),
at a rate per annum equal to 0.25% for the first 90 days of the Accrual Period;
0.50% for the second 90 days of the Accrual Period; 0.75% for the third 90 days
of the Accrual Period and 1.0% for the remaining portion of the Accrual Period
of the Accreted Value of the notes, determined daily.
All accrued special interest will be paid by us on each interest payment
date to the applicable global note holder by wire transfer of immediately
available funds or by federal funds check and to holders of certificated
securities by wire transfer to the accounts specified by them in writing or by
mailing checks to their registered addresses if no such accounts have been
specified in writing. Following the cure of all registration defaults, the
accrual of special interest will cease.
Special interest on the old notes, if any, will be computed on the basis of
a 360-day year comprised of twelve 30-day months.
Holders of old notes will be required to make certain representations to us
as described in the registration rights agreement in order to participate in the
exchange offer and will be required to deliver information to be used in
connection with the shelf registration statement and to provide comments on the
shelf registration statement within the time periods set forth in the
registration rights agreement in order to have their old notes included in the
shelf registration statement and benefit from the provisions regarding special
interest pursuant to provisions of the old notes, as set forth above.
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FEDERAL INCOME TAX CONSIDERATIONS
The following is a discussion of the material U.S. federal income tax
consequences of an exchange of old notes for the new notes and the ownership of
the new notes. It deals only with notes held as capital assets by initial
holders of old notes, and does not deal with special situations, such as those
of dealers in securities, financial institutions, insurance companies and
holders whose "functional currency" is not the U.S. dollar, or special rules
with respect to straddle or "hedging" transactions. The discussion below is
based upon the Internal Revenue Code of 1986, as amended and regulations,
rulings and judicial decisions thereunder as of the date hereof, and such
authorities may be repealed, revoked or modified (including retroactively) so as
to result in federal income tax consequences different from those discussed
below.
You are urged to consult your tax advisor regarding the tax consequences
that may be specific to you of the exchange of old notes for new notes and the
ownership of the new notes, as well as any tax consequences arising under any
state, local or foreign laws.
As used herein, the term "U.S. holder" means a beneficial owner of a note
that is for United States federal income tax purposes
(1) a citizen or resident of the United States,
(2) a corporation, partnership or other entity created or organized under
the laws of the United States or any political subdivision thereof or
therein,
(3) an estate or trust described in Section 7701(a)(30) of the Internal
Revenue Code, or
(4) a person whose worldwide income or gain is otherwise subject to U.S.
federal income taxation on a net income basis.
As used herein, the term "Non-U.S. holder" means a holder of a note that is not
a U.S. holder.
EXCHANGE OF NOTES
There will be no federal income tax consequences to holders exchanging old
notes for new notes pursuant to the exchange offer since the exchange offer will
be by operation of the original terms of the old notes, pursuant to a unilateral
act by us, and will not result in any material alteration in the terms of the
old notes. Each exchanging holder will have the same adjusted tax basis and
holding period in the new notes as it had in the old notes immediately before
the exchange.
TAXATION OF NOTES -- U.S. HOLDERS
Original Issue Discount. Because the old notes were issued with original
issue discount ("OID") for federal income tax purposes, the new notes issued in
exchange for the old notes will also bear OID that each U.S. holder of a new
note will be required to include OID in income as it accrues on a
yield-to-maturity basis over the term of the new note in advance of cash
payments attributable to such income (regardless of whether the holder is a cash
or accrual basis taxpayer). The amount of OID with respect
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to a new note equals the excess of the stated redemption price at maturity of
such new note over its issue price. The stated redemption price at maturity of a
new note will include all payments required to be made on the new note whether
denominated as principal or interest (other than payments subject to remote or
incidental contingencies). The issue price of the new notes equals the issue
price of the old notes, which was L621.10 per $1,000 principal amount at
maturity.
A U.S. holder of a debt instrument that bears OID is required to include in
gross income an amount equal to the sum of the daily portions of OID for each
day during the taxable year in which the U.S. holder holds the debt instrument.
The daily portions of OID are determined by allocating to each day in an accrual
period the pro rata portion of the OID that is allocable to the accrual period.
The amount of OID that is allocable to an accrual period with respect to the new
notes generally will be equal to the product of the adjusted issue price of the
new notes at the beginning of the accrual period (the issue price of the new
notes determined as described above, generally increased by all prior accruals
of OID and decreased by the amount of payments made on the new notes) and the
notes' yield-to-maturity (the discount rate, which, when applied to all payments
under the notes, results in a present value equal to the issue price of the new
notes). In the case of the final accrual period, the allocable OID generally is
the difference between the amount payable at maturity and the adjusted issue
price at the beginning of the accrual period. All payments on a note generally
will be viewed first as a payment of previously accrued OID (to the extent
thereof), with payments considered made from the earliest accrual period, and
then as a payment of principal.
We will furnish annually to the IRS and to U.S. holders (other than with
respect to certain exempt holders, including, in particular, corporations)
information with respect to the OID accruing while the notes were held by the
U.S. holders.
Under certain circumstances described above, we will be required to pay
special interest on the notes if we fail to comply with certain of our
obligations under the registration rights agreement. Although not free from
doubt, such additional amount should be taxable to a U.S. holder as ordinary
income at the time it accrues or is received in accordance with such holder's
regular method of accounting. It is possible, however, that the IRS may take a
different position, in which case the timing and the amount of income on the
notes may be different.
If we meet the Foreign Active Business Requirement described below,
interest income (including OID) with respect to a note may be treated as foreign
source income. Due to the factual nature of this issue, it is not certain that
we will meet this requirement.
Disposition of new notes. A U.S. holder will generally recognize gain or
loss upon the sale, exchange, retirement or other disposition of new notes equal
to the difference between the amount realized on the disposition (other than
amounts attributable to accrued but unpaid OID) and the U.S. holder's adjusted
tax basis in the new notes. A U.S. holder's adjusted tax basis in a new note
will generally be the cost of the new note, increased by any OID previously
included in income by such holder and decreased by any amount received on the
new note. Such gain or loss generally would be capital gain
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or loss (except to the extent of any exchange gain or loss with respect to
foreign currency, as discussed below).
Foreign currency. The new notes will be denominated in a currency other
than the U.S. dollar. The following summarizes certain of the United States
federal income tax consequences to U.S. holders as a result of the new notes'
foreign currency denomination.
OID. For purposes of computing OID, (i) OID will be determined in units
of pounds sterling, (ii) such accrued discount will be translated into U.S.
dollars as if the U.S. holder were receiving interest using the accrual method
of accounting (as discussed below), and (iii) the amount of foreign currency
gain or loss on the accrued discount will be determined by comparing the amount
determined under (ii) with the amount of income received attributable to the
discount (either upon payment, maturity or an earlier disposition), as
translated into U.S. dollars at the rate of exchange on the date of such
receipt, with the amount of discount accrued. In general, a U.S. holder who uses
the accrual method of accounting for federal income tax purposes would include
in income the U.S. dollar value of the amount of accrued discount with respect
to a new note during an accrual period, which is generally determined by
translating such income at the average rate of exchange for the accrual period,
or with respect to an accrual period that spans two taxable years, at the
average rate for the partial period within the taxable year.
Disposition of new notes. As discussed above, upon the sale, exchange or
retirement of a new note, a U.S. holder will recognize taxable gain or loss
equal to the difference between the amount realized on the sale, exchange or
retirement and such holder's adjusted tax basis in the new note. Such gain or
loss generally will be capital gain or loss and will be long term capital gain
or loss if the new note was held for more than one year. If a U.S. holder
receives foreign currency on such a sale, exchange or retirement, the amount
realized will be based on the U.S. dollar value of the foreign currency on the
date of disposition (assuming the new notes are not publicly traded). A U.S.
holder's adjusted tax basis in a new note will equal the U.S. dollar cost of the
note (determined on the date of the purchase) to such holder, increased by the
U.S. dollar value of the amounts of any OID previously included in income by the
holder with respect to such new note and reduced by the U.S. dollar value of any
payments received by the holder. In the case of an adjustment resulting from the
accrual of OID, such adjustment will be made at the rate at which such OID is
translated into U.S. dollars under the rules described above. If a U.S. holder
purchases a new note with previously owned foreign currency, the holder will
recognize ordinary income or loss in an amount equal to the difference, if any,
between such holder's tax basis in the foreign currency and the U.S. dollar fair
market value of the foreign currency used to purchase the new note, determined
on the date of purchase.
For purposes of the foregoing, there is a special rule for purchases and
sales of publicly traded notes by a cash basis taxpayer under which units of
foreign currency paid or received are translated into U.S. dollars at the spot
rate on the settlement date of the purchase or sale. In that case, no exchange
gain or loss will result from currency
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fluctuations between the trade date and the settlement of such a purchase or
sale. An accrual basis taxpayer may elect the same treatment required of cash
basis taxpayers with respect to purchases and sales of publicly traded notes,
provided the election is applied consistently. Such election cannot be changed
without the consent of the IRS.
Gain or loss realized upon the sale, exchange or retirement of a note that
is attributable to fluctuations in currency exchange rates will be ordinary
income or loss, which will not be treated as interest income or expense. Gain or
loss attributable to fluctuations in exchange rates will equal the difference
between the U.S. dollar value of the foreign currency principal amount (which
means, for this purpose, purchase price) of the note, determined on the date
such payment is received or the new note is disposed of, and the U.S. dollar
value of the foreign currency principal amount of the new note, determined on
the date the U.S. holder acquired the new note. Such foreign currency gain or
loss will be recognized only to the extent of the total gain or loss realized by
the U.S. holder on the sale, exchange or retirement of the new note.
Exchange of Foreign Currencies. A U.S. holder will have a tax basis in
any foreign currency received as interest or on the sale, exchange or retirement
of a note equal to the U.S. dollar value of such foreign currency, determined at
the time the interest is received or at the time of the sale, exchange or
retirement. Any gain or loss realized by a U.S. holder on a sale or other
disposition of foreign currency (including its exchange for U.S. dollars or its
use to purchase new notes) will be ordinary income or loss.
TAXATION OF NOTES -- NON-U.S. HOLDERS
The following discussion is limited to the U.S. federal income tax
consequences relevant to a holder of a note that is a non-U.S. holder.
Subject to the discussion of backup withholding below, payments of interest
on a new note to any non-U.S. holder will generally not be subject to U.S.
federal income or withholding tax, provided that
(1) the holder is not
(a) a direct or indirect owner of 10% or more of the total voting
power of all our voting stock,
(b) a controlled foreign corporation related to us through stock
ownership or
(c) a foreign tax-exempt organization or a foreign private
foundation for U.S. federal income tax purposes,
(2) such interest payments are not effectively connected with the
conduct by the non-U.S. holder of a trade or business within the United
States and
(3) we (or our paying agent) receive
(a) from the non-U.S. holder, a properly completed Form W-8 (or
substitute Form W-8) under penalties of perjury which provides the
non-U.S.
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holder's name and address and certifies that the non-U.S. holder of the
note is a non-U.S. holder or
(b) from a security clearing organization, bank or other
financial institution that holds the notes in the ordinary course of
its trade or business (a "financial institution") on behalf of the
non-U.S. holder, certification under penalties of perjury that such a
Form W-8 (or substitute Form W-8) has been received by it, or by
another such financial institution, from the non-U.S. holder, and a
copy of the Form W-8 (or substitute Form W-8) is furnished to us or our
paying agent.
A non-U.S. holder that does not qualify for exemption from withholding
under the preceding paragraph generally will be subject to withholding of U.S.
federal income tax at the rate of 30% (or lower applicable treaty rate) on
payments of interest (including OID) on the new notes unless the Foreign Active
Business Requirement is met, as described below.
If the payments of interest on a new note are effectively connected with
the conduct by a non-U.S. holder of a trade or business in the United States,
such payments will be subject to U.S. federal income tax on a net basis at the
rates applicable to United States persons generally (and, with respect to
corporate holders, may also be subject to a 30% branch profits tax). If payments
are subject to U.S. federal income tax on a net basis in accordance with the
rules described in the preceding sentence, such payments will not be subject to
United States withholding tax so long as the holder provides us or our paying
agent with a properly executed Form 4224.
In addition, if we can show to the satisfaction of the IRS that at least
80% of the gross income from all sources for the 3-year period ending with the
close of our taxable year preceding the interest payment (or such period as may
be applicable) is "active foreign business income" (the "Foreign Active Business
Requirement") then interest (including OID) on the new notes would be treated as
foreign source income that is not subject to U.S. withholding. Active foreign
business income is generally gross income of a corporation derived from sources
outside the U.S., or is attributable to income so derived by a subsidiary of the
corporation, which is attributable to the active conduct of a trade or business
in the foreign jurisdiction by the corporation (or subsidiary). It is uncertain
whether we would meet the Foreign Active Business Requirement for treating
interest income as non-U.S. source.
Non-U.S. holders should consult any applicable income tax treaties, which
may provide for a lower rate of withholding tax exemption from or reduction of
branch profits tax, or other rules different from those described above.
Sale, exchange or redemption of new notes. Subject to the discussion
concerning backup withholding, any gain realized by a non-U.S. holder on the
sale, exchange, retirement or other disposition of a new note generally will not
be subject to a U.S. federal income tax, unless
(1) such gain is effectively connected with the conduct by such
non-U.S. holder of a trade or business within the United States,
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(2) the non-U.S. holder is an individual who is present in the United
States for 183 days or more in the taxable year of the disposition and
certain other conditions are satisfied, or
(3) the non-U.S. holder is subject to tax pursuant to the provisions of
U.S. tax law applicable to certain U.S. expatriates.
INFORMATION REPORTING AND BACKUP WITHHOLDING
Payments with respect to the new notes and the proceeds upon the sale or
other disposition of the new notes may be subject to the information reporting
and possible U.S. backup withholding at a 31% rate. Backup withholding will not
apply to U.S. holders who furnish a correct taxpayer identification number and
provide other certification or who are otherwise exempt from backup withholding.
Copies of those information returns may also be made available, under the
provisions of a specific treaty or agreement, to the tax authorities of the
country in which the non-U.S. holder resides.
The regulations provide that backup withholding (which generally is a
withholding tax imposed at the rate of 31% on payments to persons that fail to
furnish certain required information) and information reporting will not apply
to payments made in respect to the exchange notes by us to a non-U.S. holder, if
the holder certifies as to its non-U.S. status under penalties of perjury or
otherwise establishes an exemption (provided that neither the Company nor its
paying agent has actual knowledge that the holder is a U.S. person or that the
condition of any other exemption are not, if fact, satisfied).
The payment of the proceeds from the disposition of notes to or through the
United States office of any broker, U.S. or foreign, will be subject to
information reporting and possible backup withholding unless the owner certifies
as to its non-U.S. status under penalty of perjury or otherwise establishes an
exemption, provided that the broker does not have actual knowledge that the
holder is a U.S. person or that the conditions of any other exemption are not,
in fact, satisfied. The payment of the proceeds from the disposition of a note
to or through a non-U.S. office of a non-U.S. broker that is not a U.S. related
person will not be subject to information reporting or backup withholding. For
this purpose, a "U.S. related person" is (i) a "controlled foreign corporation"
for U.S. federal income tax purposes or (ii) a foreign person 50% or more of
whose gross income from all sources for the three-year period ending with the
close of its taxable year preceding the payment (or for such part of the period
that the broker has been in existence) is derived from activities that are
effectively connected with the conduct of a U.S. trade or business.
In the case of the payment of proceeds from the disposition of new notes to
or through a non-U.S. office of a broker that is a U.S. related person, the
regulations require information reporting on the payment unless the broker has
documentary evidence in its files that the owner is a non-U.S. holder and the
broker has no knowledge to the contrary. Backup withholding will not apply to
payments made through foreign offices of a broker that is a U.S. person or a
U.S. related person (absent actual knowledge that the payee is a U.S. person.)
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Any amounts withheld under the backup withholding rules from a payment to a
non-U.S. holder will be allowed as a refund or a credit against such non-U.S.
holders' federal income tax liability, provided that the requisite procedures
are followed.
The Treasury Department promulgated new final regulations regarding the
withholding and information reporting rules discussed above applicable to
non-U.S. holders. In general, the final regulations do not significantly alter
the substantive withholding and information reporting requirements but rather
unify current certification procedures and forms and clarify reliance standards.
The final regulations are generally effective for payments made after December
31, 1999, subject to certain transition rules. Non-U.S. holders should consult
their own tax advisors with respect to the impact, if any, of the final
regulations.
POTENTIAL FEDERAL INCOME TAX CONSEQUENCES TO US AND TO CORPORATE HOLDERS
The notes will constitute applicable high yield discount obligations
("AHYDOs") if their yield-to-maturity is greater than the sum of the relevant
applicable federal rate (the "AFR") plus five percentage points and the notes
were issued with significant OID. In such event, we will not be entitled to
deduct OID that accrues with respect to such notes until amounts attributable to
such OID are paid. In addition, if any notes are AHYDOs and the
yield-to-maturity of such notes exceeds the sum of the relevant AFR plus six
percentage points (the "Excess Yield"), our deduction for the "disqualified
portion" of the OID for any accrual period will be equal to the product of
(1) the Excess Yield divided by the yield-to-maturity on such notes,
and
(2) the OID for the accrual period.
Subject to otherwise applicable limitations, holders that are U.S.
corporations will be entitled to a dividends received deduction (generally at a
current rate of 70%) with respect to any disqualified portion of the accrued OID
to the extent that we have sufficient current or accumulated earnings and
profits. If the disqualified portion exceeds our current and accumulated
earnings and profits, the excess will continue to be taxed as ordinary OID
income in accordance with the rules described above in "Original Issue
Discount."
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PLAN OF DISTRIBUTION
If you are a broker-dealer and hold old notes for your own account as a
result of market-making activities or other trading activities and you receive
new notes in exchange for old notes in the exchange offer, you may be a
statutory underwriter and must acknowledge that you will deliver a prospectus in
connection with any resale of such new notes. This prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of new notes received in exchange for old notes where
such old notes were acquired as a result of market-making activities or other
trading activities. We acknowledge and, unless you are a broker-dealer, you must
acknowledge that you are not engaged in, do not intend to engage in, and have no
arrangement or understanding with any person to participate in a distribution of
new notes. We have agreed that starting on the expiration date of the exchange
offer and ending on the close of business on the 180th day following the
expiration date of the exchange offer, we will make this prospectus, as amended
or supplemented, available to any broker-dealer for use in connection with any
such resale.
We will not receive any proceeds from any sale of new notes by
broker-dealers. New notes received by broker-dealers for their own account
pursuant to the exchange offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the new notes or a combination of those methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any resale of that kind may
be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such new notes. Any broker-dealer
that resells new notes that were received by it for its own account pursuant to
the exchange offer and any broker or dealer that participates in a distribution
of such new notes may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any such resale of new notes and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The letter of transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the expiration date, we will promptly send
additional copies of this prospectus and any amendment or supplement to this
prospectus to any broker-dealer that requests such documents in the letter of
transmittal.
We have agreed to pay all expenses incident to the exchange offer
(including the expenses of one counsel for the holders of the notes) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the notes, including any broker-dealers, against various liabilities,
including liabilities under the Securities Act.
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LEGAL MATTERS
The validity of the issuance of the new notes will be passed upon for NTL
Communications Corp. by Skadden, Arps, Slate, Meagher & Flom LLP, New York, New
York, special counsel for NTL Communications Corp.
EXPERTS
The consolidated financial statements and schedules of NTL Incorporated
appearing in NTL Incorporated's Annual Report (Form 10-K) for the year ended
December 31, 1998 have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
The consolidated financial statements as of December 31, 1997 and 1996 and
for each of the three years in the period ended December 31, 1997 of Comcast UK
Cable Partners Limited and subsidiaries incorporated by reference in this
prospectus have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report, which is also incorporated by reference in this
prospectus and have been so incorporated by reference in reliance upon the
report of that firm given upon their authority as experts in accounting and
auditing.
The consolidated financial statements as of December 31, 1997 and 1996 and
for each of the three years in the period ended December 31, 1997 of Birmingham
Cable Corporation Limited and Cable London PLC incorporated by reference in this
prospectus have been audited by Deloitte & Touche, independent auditors, as
stated in their reports, which are also incorporated by reference in this
prospectus and have been so incorporated by reference in reliance upon the
reports of that firm given upon their authority as experts in accounting and
auditing.
The combined financial statements of ComTel UK Finance, B.V. and its
subsidiaries as of and for the year ended December 31, 1997, and the combined
financial statements of Telecential as of and for the 16 months ended December
31, 1996, incorporated by reference in this prospectus have been audited by
Deloitte & Touche, independent auditors, as stated in their reports, which are
also incorporated by reference in this prospectus.
The combined financial statements as of and for the year ended December 31,
1996 of ComTel UK Finance B.V. incorporated by reference in this prospectus have
been incorporated by reference in reliance on the report of Coopers & Lybrand,
independent Chartered Accountants.
The consolidated financial statements of Diamond Cable Communications Plc
as of December 31, 1997 and 1998 and for each of the years in the three-year
period ended December 31, 1998 incorporated by reference herein have been
audited by KPMG, independent auditors, to the extent and for the periods
indicated in their reports on those financial statements. Those financial
statements have been incorporated by reference in
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reliance upon the reports of KPMG given on their authority as experts in
accounting and auditing.
ENFORCEABILITY OF CIVIL LIABILITIES
A substantial majority of our assets are located outside the United States.
As a result, it may not be possible for you to realize in the United States upon
judgments of courts of the United States predicated upon the civil liability
under the federal securities laws of the United States. The United States and
England do not currently have a treaty providing for the reciprocal recognition
and enforcement of judgments, other than arbitration awards, in civil and
commercial matters. Therefore, a final judgment for the payment of a fixed debt
or sum of money rendered by any United States court based on civil liability,
whether or not predicated solely upon the United States federal securities laws,
would not automatically be enforceable in England. In order to enforce in
England a United States judgment, proceedings must be initiated by way of common
law action before a court of competent jurisdiction in England. An English court
will, subject to what is said below, normally order summary judgment on the
basis that there is no defense to the claim for payment and will not
reinvestigate the merits of the original dispute. In such an action, an English
court will treat the United States judgment as creating a valid debt upon which
the judgment creditor could bring an action for payment, as long as
(1) the United States court had jurisdiction over the original proceeding,
(2) the judgment is final and conclusive on the merits,
(3) the judgment does not contravene English public policy,
(4) the judgment must not be for a tax, penalty or a judgment arrived at by
doubling, trebling or otherwise multiplying a sum assessed as
compensation for the loss or damage sustained and
(5) the judgment has not been obtained by fraud or in breach of the
principles of natural justice.
Based on the foregoing, there can be no assurance that you will be able to
enforce in England judgments in civil and commercial matters obtained in any
United States court. There is doubt as to whether an English court would impose
civil liability in an original action predicated solely upon the United States
federal securities laws brought in a court of competent jurisdiction in England.
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WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We are currently subject to the informational requirements of the
Securities Exchange Act. We file reports, proxy statements, information
statements and other information with the commission under the Exchange Act. You
can inspect and copy any reports, proxy statements, information statements and
other information we file with the commission at the public reference facilities
the SEC maintains at:
Room 1024, Judiciary Plaza,
450 Fifth Street, N.W.,
Washington, D.C. 20549,
and at the SEC's regional offices located at:
Suite 1400, Northwestern Atrium Center,
500 West Madison Street,
Chicago, Illinois 60661
and
13th Floor, Seven World Trade Center,
New York, New York 10048,
and you may also obtain copies of that material by mail from the public
reference section of the SEC at:
450 Fifth Street, N.W.,
Washington, D.C. 20549,
at prescribed rates.
The SEC also maintains a site on the world wide web, the address of which
is http://www.sec.gov. That site also contains our reports, proxy and
information statements and other information. You can also inspect reports,
proxy statements and other information concerning NTL at the offices of the
Nasdaq Stock Market, Reports Section, at:
1735 K Street, N.W.,
Washington, D.C. 20006.
If the new notes are listed on the Luxembourg Stock Exchange, copies of our
reports, proxy statements and other information will also be made available free
of charge at the office of our agent in Luxembourg, Banque Internationale a
Luxembourg S.A.
This prospectus is part of a registration statement filed by us with the
SEC. It does not contain all the information included or incorporated in the
registration statement. The full registration statement can be obtained from the
SEC as indicated above or from us.
The SEC allows us to incorporate by reference some information about NTL
that we file with the SEC. This allows us to disclose important information to
you by
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referencing those filed documents. Any information that we reference this way is
considered part of this prospectus.
The following documents filed by us with the SEC are incorporated by
reference into this prospectus:
(a) our Annual Report on Form 10-K for the year ended December 31,
1998, dated March 31, 1999;
(b) our Current Reports on Form 8-K dated January 25, 1999 (filed on
January 25, 1999), March 18, 1999 (filed on March 23, 1999), March 8, 1999
(filed on March 11, 1999), April 8, 1999 (filed on April 12, 1999) and
April 8 (filed on April 1);
(c) our Proxy Statement on Schedule 14A dated January 29, 1999;
(d) the financial statements included under Item 14 to the Annual
Report on Form 10-K for the year ended December 31, 1998 of Diamond Cable
Communications Plc, dated March 30, 1999; and
(e) NTL Inc.'s Proxy Statement on Schedule 14A dated April 28, 1999.
We are incorporating by reference the documents listed above and any
current reports and proxy statements we file with the commission until the end
of the exchange offer. Any information incorporated by reference this way will
automatically be deemed to update and supersede this information.
We will provide you without charge on your request, a copy of any or all
documents which are incorporated by reference to this prospectus, except for
exhibits which are specifically incorporated by reference into those documents.
You should make your request in writing or by telephone to:
NTL Communications Corp.
110 East 59th Street
26th Floor
New York NY 10022
Attention: Richard J. Lubasch
Tel: (212) 906 8440
To ensure timely delivery of any documents you request, you should make
such a request at least five days before the exchange offer expires. In
addition, copies of those documents will also be made available free of charge
at the office of our agent in Luxembourg.
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GENERAL INFORMATION
CLEARING SYSTEMS
The International Security Identification Number ("ISIN") for the new notes
is and the common code is .
AUTHORIZATION
The issue of the new notes was authorized by a resolution of the board of
directors of NTL on April 7, 1999.
AVAILABLE DOCUMENTS, FINANCIAL REPORTS AND INFORMATION
Copies of the indentures and the registration rights agreements referred to
in this prospectus will, so long as the notes are listed on the Luxemburg Stock
Exchange, be available for inspection during normal business hours at the office
of our Luxembourg agent specified on the inside back cover of this prospectus.
A copy of the certificate of incorporation and by-laws of NTL will be
available for inspection during normal business hours at the office of the
Luxembourg Agent.
Whether or not required by the rules and regulations of the SEC, so long as
the notes are outstanding, we will file with the SEC and furnish to holders of
notes all quarterly and annual financial information required to be contained in
a filing with the SEC on Forms 10-Q and 10-K (or the equivalent thereof under
the Exchange Act for foreign private issuers in the event we become a
corporation organized under the laws of the United Kingdom, the Netherlands, the
Netherlands Antilles, Bermuda or the Cayman Islands), including a "Management's
Discussion and Analysis or Results of Operations and Financial Condition" and,
with respect to the annual information only, a report thereon by our certified
independent public accountants, in each case, as required by the rules and
regulations of the Commission as in effect on November 6, 1998.
In compliance with Forms 10-Q and 10-K, we currently publish audited annual
consolidated financial reports and unaudited quarterly consolidated financial
reports. As long as the notes are listed on the Luxembourg Stock Exchange,
copies of such reports or any other reports we are required to furnish to
holders of the notes in accordance with the preceding paragraph, will be
available at the specified office of the listing, paying and transfer agent in
Luxembourg. We do not publish unconsolidated financial reports.
Copies of reports, proxy statements and other information concerning NTL
filed by NTL with the Commission will, as long as the notes are listed on the
Luxembourg Stock Exchange, be available at the specified office of the listing,
paying and transfer agent in Luxembourg.
MATERIAL ADVERSE CHANGE
Except as disclosed in this prospectus, there has been no material adverse
change in the financial position of NTL since December 31, 1998.
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You should rely only on the information contained in this document or that
we have referred you to. We have not authorized any other person to provide you
with different information. This prospectus may be delivered to you after the
date of this prospectus. However, you should realize that the affairs of NTL may
have changed since the date of this prospectus. This prospectus will not reflect
such changes. You should not consider this prospectus to be an offer or
solicitation relating to the notes in any jurisdiction in which such an offer or
solicitation is not authorized.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Incorporation of Certain Documents by
Reference...........................
Prospectus Summary.................... 1
Risk Factors.......................... 6
The Exchange Offer.................... 14
Use of Proceeds....................... 23
Capitalization........................ 24
Description of Notes.................. 26
Registration Rights................... 57
Federal Income Tax Considerations..... 60
Plan of Distribution.................. 67
Legal Matters......................... 68
Experts............................... 68
Enforceability of Civil Liabilities... 69
Where You Can Find More Information... 70
General Information................... 72
</TABLE>
Until , 1999, which is 90 days after the date of this prospectus,
if you are a dealer effecting transactions in the new notes, whether or not you
are participating in the exchange offer, you may be required to deliver a
prospectus. This obligation is in addition to the obligation of dealers to
deliver a prospectus when acting as underwriters and with respect to their
unsold allotments or subscriptions.
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[NTL LOGO]
NTL COMMUNICATIONS CORP.
L330,000,000
9 3/4% SERIES B
SENIOR DEFERRED
COUPON NOTES DUE 2009
------------------------
PROSPECTUS
------------------------
, 1999
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<PAGE> 77
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 102 of the Delaware General Corporation Law (the
"DGCL"), the Company's Amended and Restated Certificate of Incorporation
eliminates a director's personal liability for monetary damages to the Company
and its stockholders arising from a breach or alleged breach of a director's
fiduciary duty except for liability under Section 174 of the DGCL or liability
for a breach of the director's duty of loyalty to the Company or its
stockholders, for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law or for any transaction in
which the director derived an improper personal benefit. The effect of this
provision in the certificate of incorporation is to eliminate the rights of the
Company and its stockholders (through stockholders, derivative suits on behalf
of the Company) to recover monetary damages against a director for breach of
fiduciary duty as a director (including breaches resulting from negligent or
grossly negligent behavior) except in the situations described above.
The Company's Restated By-laws provide that directors and officers of the
Company shall be indemnified against liabilities arising from their service as
directors and officers to the full extent permitted by law. Section 145 of the
DGCL empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the corporation
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorney's fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in, or not opposed to, the best interests
of the corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful.
Section 145 also empowers a corporation to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the fight of the corporation to procure a
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorney's fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted under similar standards, except
that no indemnification may be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the corporation
unless, and only to the extent that, the Court of Chancery or the court in which
such action was brought shall determine that despite the adjudication of
liability such person
II-1
<PAGE> 78
is fairly and reasonably entitled to indemnify for such expenses which the court
shall deem proper.
Section 145 further provides that to the extent that a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to above or in the defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation is empowered to purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liabilities under Section 145.
The Company has entered into a director and officer indemnity agreement
("Indemnity Agreement") with each officer and director of the Company (an
"Indemnitee"). Under the bylaws and these Indemnity Agreements, the Company must
indemnify an Indemnitee to the fullest extent permitted by the DGCL for losses
and expenses incurred in connection with actions in which the indemnitee is
involved by reason of having been a director or officer of the Company. The
Company is also obligated to advance expenses an indemnitee may incur in
connection with such actions before any resolution of the action.
ITEM 21. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
3.1 Restated Certificate of Incorporation of the Company(13)
3.1(a) Certificate of Ownership and Merger, dated as of March 26,
1997(6)
3.2 Restated By-laws of the Company(1)
4.1 Indenture, dated as of April 14, 1998, by and between the
Company and The Chase Manhattan Bank, as Trustee, with
respect to the new notes*
4.2 Indenture, dated as of November 2, 1998, by and between the
Company and The Chase Manhattan Bank, as Trustee, with
respect to the 11 1/2% Notes(13)
4.3 Indenture, dated as of November 6, 1998, by and between the
Company and The Chase Manhattan Bank, as Trustee, with
respect to the 12 3/8% Notes(13)
4.4 Registration Rights Agreement, dated as of April 14, 1998,
by and among the Company and Goldman Sachs International,
Morgan Stanley & Co. International Limited, Bankers Trust
International PLC, Chase Manhattan International, Donaldson,
Lufkin & Jenrette International, Salomon Brothers
International Limited and of UBS AG, acting through its
division Warburg Dillon Read, with respect to the notes*
</TABLE>
II-2
<PAGE> 79
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
4.5 Registration Rights Agreement, dated as of November 2, 1998,
by and among the Company and Morgan Stanley & Co.
Incorporated, Chase Securities Inc., Donaldson, Lufkin &
Jenrette Securities Corporation and Goldman, Sachs & Co.
with respect to the 11 1/2% Notes(13)
4.6 Registration Rights Agreement, dated as of November 6, 1998,
by and among the Company and Morgan Stanley & Co.
Incorporated, Chase Securities Inc., Donaldson, Lufkin &
Jenrette Securities Corporation and Goldman, Sachs & Co.
with respect to the 12 3/8% Notes(13)
4.7 Indenture, dated as of February 12, 1997, by and between the
Company and The Chase Manhattan Bank, as Trustee, with
respect to the 10% Notes(10)
4.8 Certificate of Designation, dated February 12, 1997, with
respect to the Redeemable Preferred Stock(10)
4.9 Registration Rights Agreement, dated February 12, 1997, by
and among the Company and Donaldson, Lufkin & Jenrette
Securities Corporation, Chase Securities Inc. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated with respect to
the 10% Notes(10)
4.10 Registration Rights Agreement, dated February 12, 1997, by
and among the Company and Donaldson, Lufkin & Jenrette
Securities Corporation, Chase Securities Inc. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated with respect to
the Redeemable Preferred Stock(10)
4.11 Form of new notes (included in Exhibit 4.1)
4.12 Indenture, dated as of June 12, 1996, by and between the
Company and Chemical Bank, as Trustee, with respect to the
7% Convertible Notes(8)
4.13 Registration Rights Agreement, dated June 12, 1996, by and
among the Company and Donaldson, Lufkin & Jenrette
Securities Corporation and Salomon Brothers Inc, with
respect to the 7% Convertible Notes(8)
4.14 Indenture, dated as of January 30, 1996, by and among the
Company and Chemical Bank, as Trustee, with respect to the
11 1/2% Notes(7)
4.15 Registration Rights Agreement, dated January 30, 1996, by
and among the Company and Donaldson, Lufkin & Jenrette
Securities Corporation, Salomon Brothers Inc and Chase
Securities, Inc., with respect to the 11 1/2% Notes(7)
4.16 Indenture, dated as of April 20, 1995, by and among the
Company and Chemical Bank, as Trustee, with respect to the
12 3/4% Notes(2)
4.17 First Supplemental Indenture, dated as of January 22, 1996,
by and among the Company and Chemical Bank, as Trustee with
respect to the Indenture included as Exhibit 4.19(7)
4.18 Registration Agreement, dated April 13, 1995 by and among
the Company and Salomon Brothers Inc, Donaldson, Lufkin &
Jenrette Securities Corporation and Goldman, Sachs & Co.,
with respect to the 12 3/4% Notes(2)
4.19 Indenture, dated as of April 20, 1995, by and among the
Company and Chemical Bank, as Trustee, with respect to the
7 1/4% Convertible Notes(3)
</TABLE>
II-3
<PAGE> 80
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
4.20 Registration Agreement, dated April 12, 1995, by and among
the Company and Salomon Brothers Inc, Donaldson, Lufkin &
Jenrette Securities Corporation and Goldman Sachs & Co.,
with respect to the 7 1/4% Convertible Notes(3)
4.21 Indenture, dated as of October 1, 1993, by and among the
Company and Chemical Bank, as Trustee with respect to the
10 7/8% Senior Notes(4)
4.22 First Supplemental Indenture, dated January 23, 1996, by and
among the Company and Chemical Bank, as Trustee, with
respect to the Indenture included as Exhibit 4.24(7)
4.23 Rights Agreement, dated as of October 1, 1993, between the
Company and Continental Transfer & Trust Company, as Rights
Agent(1)
4.24 Indenture, dated as of November 15, 1995, between Comcast
U.K. Cable Partners Limited and Bank of Montreal Trust
Company, as Trustee, with respect to the 11.20% Senior
Discount Debentures Due 2007 of Comcast U.K. Cable Partners
Limited.(12)
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to
the legality of the notes being registered hereby**
10.1 Compensation Plan Agreements, as amended and restated
effective June 3, 1997(11)
10.2 Form of Director and Officer Indemnity Agreement (together
with a schedule of executed Indemnity Agreements)(2)
11.1 Statement of computation of per share earnings(11)
12.1 Computation of Ratio of Earnings to Fixed Charges and
Combined Fixed Charges and Preferred Stock Dividends**
21.1 Subsidiaries of the Company(11)
23.1 Consent of Ernst & Young, LLP*
23.2 Consent of Deloitte & Touche LLP*
23.3 Consent of Deloitte & Touche -- Birmingham*
23.4 Consent of Deloitte & Touche -- London*
23.5 Consent of Deloitte & Touche -- Comtel*
23.6 Consent of Coopers & Lybrand -- ComTel*
23.7 Consent of KPMG -- Diamond*
23.8 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1)**
24.1 Powers of Attorney (included in the signature page to this
Registration Statement)
25.1 Form T-1 Statement of Eligibility of Trustee with respect to
Indenture included as Exhibit 4.1*
99.1 Form of Letter of Transmittal in respect of the Notes**
99.2 Form of Notice of Guaranteed Delivery**
99.3 Form of Letter to Client**
</TABLE>
II-4
<PAGE> 81
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
99.4 Form of Letter to Brokers, Dealers, Trust Companies and
others Nominees**
99.5 Prescribed Diffusion Service License, dated July 21, 1987,
issued to British Cable Services Limited (now held by
CableTel Surrey and Hampshire Limited) for the area of West
Surrey and East Hampshire, England(5)
99.6 Prescribed Diffusion Service License, dated December 3,
1990, issued to Clyde Cablevision (renamed CableTel Glasgow)
for the area of Inverclyde, Scotland(5)
99.7 Prescribed Diffusion Service License, dated December 3,
1990, issued to Clyde Cablevision (renamed CableTel Glasgow)
for the area of Bearsden and Milngavie, Scotland(5)
99.8 Prescribed Diffusion Service License, dated December 3,
1990, issued to Newport Cablevision Limited (renamed
CableTel Newport) for the area of Newport, Wales(5)
99.9 Prescribed Diffusion Service License, dated July 10, 1984,
issued to Clyde Cablevision (renamed CableTel Glasgow) for
the area of North Glasgow and Clydebank, Strathclyde,
Scotland(5)
99.10 Prescribed Diffusion Service License, dated December 3,
1990, issued to Clyde Cablevision (renamed CableTel Glasgow)
for the area of Greater Glasgow, Scotland(5)
99.11 Prescribed Diffusion Service License, dated December 3,
1990, issued to Clyde Cablevision (renamed CableTel Glasgow)
for the area of Paisley and Renfrew, Scotland(5)
99.12 Prescribed Diffusion Service License, dated December 3,
1990, issued to Cable and Satellite Television Holdings Ltd
(renamed CableTel West Glamorgan Limited) for the area of
West Glamorgan, Wales(5)
99.13 Prescribed Diffusion Service License, dated December 3,
1990, issued to British Cable Services Limited for the area
of Cardiff and Penarth, Wales (now held by CableTel Cardiff
Limited)(5)
99.14 Prescribed Diffusion Service License, dated December 3,
1990, issued to Kirklees Cable (renamed CableTel Kirklees)
for the area of Huddersfield and Dewsbury, West Yorkshire,
England(5)
99.15 Prescribed Diffusion Service License, dated December 3,
1990, issued to CableVision Communications Company of
Hertfordshire Ltd (renamed CableTel Hertfordshire Limited)
for the area of Broxbourne and East Hertfordshire,
England(5)
99.16 Prescribed Diffusion Service License, dated December 3,
1990, issued to CableVision Communications Company Ltd
(renamed CableTel Central Hertfordshire Limited) for the
area of Central Hertfordshire, England(5)
99.17 Prescribed Diffusion Service License, dated March 26, 1990,
issued to CableVision Bedfordshire Limited (renamed CableTel
Bedfordshire Ltd.) for the area of Luton and South
Bedfordshire(5)
</TABLE>
II-5
<PAGE> 82
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
99.18 Prescribed Diffusion Service License, dated December 3,
1990, issued to CableVision North Bedfordshire Ltd (renamed
CableTel North Bedfordshire Ltd.) for the area of North
Bedfordshire, England(5)
99.19 Local Delivery Service License, dated October 2, 1995,
issued to CableTel Northern Ireland Limited for Northern
Ireland(5)
99.20 Local Delivery Service License, dated December 6, 1995,
issued to CableTel South Wales Limited for Glamorgan and
Gwent, Wales(5)
99.21 Local Delivery Service License, dated March 13, 1991, issued
to Maxwell Cable TV Limited for Pembroke Dock, Dyfed, Wales
(now held by Metro South Wales Limited)(5)
99.22 Local Delivery Service License, dated March 15, 1991, issued
to Maxwell Cable TV Limited for Camarthen, Wales (now held
by Metro South Wales Limited)(5)
99.23 Local Delivery Service License, dated March 15, 1991, issued
to Maxwell Cable TV Limited for Milford Haven, Wales (now
held by Metro South Wales Limited)(5)
99.24 Local Delivery Service License, dated March 15, 1991, issued
to Maxwell Cable TV Limited for Cwmgors (Amman Valley), West
Glamorgan, Wales(5)
99.25 Local Delivery Service License, dated March 15, 1991, issued
to Maxwell Cable TV Limited for Ammanford, West Glamorgan,
Wales(5)
99.26 Local Delivery Service License, dated March 15, 1991, issued
to Maxwell Cable TV Limited for Brecon, Gwent, Wales(5)
99.27 Local Delivery Service License, dated March 15, 1991, issued
to Maxwell Cable TV Limited for Haverfordwest, Preseli,
Wales(5)
99.28 Local Delivery Service License, dated March 15, 1991, issued
to Maxwell Cable TV Limited for Neyland, Preseli, Wales (now
held by Metro South Wales Limited)(5)
99.29 License, dated January 11, 1991, issued to Cablevision
Communications Company of Hertfordshire Ltd (renamed
CableTel Hertfordshire Limited) for the Hertford, Cheshunt
and Ware (Lea Valley) cable franchise, England(5)
99.30 License, dated December 8, 1990, issued to Cablevision
Communications Company Limited for Central Hertfordshire
(renamed CableTel Central Hertfordshire Limited), England(5)
99.31 License, dated August 23, 1989, issued to Cablevision
Bedfordshire Limited for Bedford and surrounding areas,
England(5)
99.32 License, dated January 9, 1991, issued to Cablevision North
Bedfordshire Ltd for North Bedfordshire, England(5)
99.33 License, dated January 29, 1991, issued to Clyde Cablevision
(renamed CableTel Glasgow) for the Inverclyde Cable
Franchise, Scotland(5)
99.34 License, dated January 29, 1991, issued to Clyde Cablevision
(renamed CableTel Glasgow) for the Bearsden and Milngavie
Cable Franchise, Scotland(5)
</TABLE>
II-6
<PAGE> 83
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
99.35 License, dated January 29, 1991, issued to Clyde Cablevision
(renamed CableTel Glasgow) for the Paisley and Renfrew Cable
Franchise, Scotland(5)
99.36 License, dated June 7, 1985, issued to Clyde Cablevision Ltd
(renamed CableTel Glasgow) for North West Glasgow and
Clydebank, Scotland(5)
99.37 License, dated January 29, 1991, issued to Clyde Cablevision
(renamed CableTel Glasgow) for the Greater Glasgow cable
franchise, Scotland(5)
99.38 License, dated October 13, 1993, issued to Insight
Communications Cardiff Limited (renamed CableTel Cardiff
Limited) for Cardiff, Wales(5)
99.39 License, dated January 22, 1991, issued to Newport
Cablevision Limited (renamed CableTel Newport), for Newport
Cable franchise Wales(5)
99.40 License, dated May 18, 1990, issued to Cable and Satellite
Television Holdings Limited (renamed CableTel West
Glamorgan) for West Glamorgan, Wales(5)
99.41 License, dated December 20, 1990, issued to Kirklees Cable
(renamed CableTel Kirklees) for the Huddersfield and
Dewsbury cable franchise, England(5)
99.42 License, dated October 13, 1993, issued to Insight
Communications Guildford Limited (renamed CableTel Surrey
and Hampshire Limited) for the West Surrey/East Hampshire
(Guildford) Cable Franchise, England(5)
99.43 License, dated January 20, 1995, issued to CableTel
Bedfordshire Ltd. for the area of South Bedfordshire,
England(5)
99.44 License, dated January 20, 1995, issued to CableTel North
Bedfordshire Ltd. for the area of Bedford, England(5)
99.45 License, dated January 20, 1992, issued to Cable and
Satellite Television Holdings Limited (renamed CableTel West
Glamorgan Limited) for the area of Swansea, Neath and Port
Talbot, Wales(5)
99.46 License, dated January 20, 1995, issued to Cabletel
Hertfordshire Ltd. for the area of Hertford, Cheshunt and
Ware (Lea Valley), England(5)
99.47 License, dated January 20, 1995, issued to Cabletel Central
Hertfordshire Ltd. for the area of Central Hertfordshire,
England(5)
99.48 License, dated July 21, 1995, issued to CableTel Kirklees(5)
99.49 License, dated June 8, 1995, issued to CableTel Bedfordshire
Ltd.(5)
99.50 License, dated October 27, 1995, issued to Metro South Wales
Limited for the area of Neyland, Wales(5)
99.51 License, dated October 27, 1995, issued to Metro South Wales
Limited for the area of Cwmgors, Wales(5)
99.52 License, dated October 27, 1995, issued to Metro South Wales
Limited for the area of Ammanford, Wales(5)
99.53 License, dated October 27, 1995, issued to Metro South Wales
Limited for the area of Carmarthen, Wales(5)
99.54 License, dated October 27, 1995, issued to Metro South Wales
Limited for the area of Haverfordwest, Wales(5)
</TABLE>
II-7
<PAGE> 84
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
99.55 License, dated October 27, 1995, issued to Metro South Wales
Limited for the area of Pembroke Dock, Wales(5)
99.56 License, dated October 27, 1995, issued to Metro South Wales
Limited for the area of Milford Haven, Wales(5)
99.57 License, dated October 27, 1995, issued to CableTel South
Wales Limited for the area of Glamorgan and Gwent, Wales(5)
99.58 License, dated January 26, 1996, issued to Cabletel South
Wales Limited, for part of the Glamorgan area(5)
99.59 License, dated November 3, 1997, issued to NTL (UK) Group,
Inc. for the Provision of Radio Fixed Access Operator
Services(10)
99.60 Agreement and Plan of Amalgamation; Undertaking of Comcast
Corporation; Undertaking of Warburg, Pincus Investors,
L.P.(11)
</TABLE>
- ---------------
* Filed herewith.
(1) Incorporated by reference from the Company's Registration Statement on Form
S-1, File No. 33-63570.
(2) Incorporated by reference from the Company's Registration Statement on Form
S-4, File No. 33-92794.
(3) Incorporated by reference from the Company's Registration Statement on Form
S-3, File No. 33-92792.
(4) Incorporated by reference from the Company's Registration Statement on Form
S-1, File No. 33-63572.
(5) Incorporated by reference from the Company's Form 8-K, filed with the
Commission on March 20, 1996.
(6) Incorporated by reference from the Company's Form 8-K, filed with the
Commission on March 26, 1997.
(7) Incorporated by reference to the Company's Registration Statement on Form
S-4, File No. 333-1010.
(8) Incorporated by reference to the Company's Registration Statement on Form
S-3, File No. 333-07879.
(9) Incorporated by reference to the Company's Registration Statement on Form
S-3, File No. 333-16751.
(10) Incorporated by reference to the Company's Annual Report on Form 10-K,
filed on March 28, 1997.
(11) Incorporated by reference to the Company's Annual Report on Form 10-K,
filed with the Commission on March 30, 1998.
(12) Incorporated by reference to the Registration Statement on Form S-3, File
No. 33-96932, of Comcast U.K. Cable Partners Limited.
(13) Incorporated by reference to the Company's Annual Report on Form 10-K,
filed with the Commission on March 31, 1999.
II-8
<PAGE> 85
ITEM 22. UNDERTAKINGS
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d) of the Securities
Exchange Act) that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
II-9
<PAGE> 86
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of New York,
State of New York, on the 13th day of May, 1999.
NTL Communications Corp.
By /s/ RICHARD J. LUBASCH
------------------------------------
Richard J. Lubasch
Senior Vice President --
General Counsel and Secretary
POWER OF ATTORNEY
KNOWN BY ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below, constitutes and appoints Richard J. Lubasch and Lauren Hochman
Blair, or either of them, acting alone, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for such person and
in his name, place and stead, in any and all capacities, in connection with the
registrant's Registration Statement in the name and on behalf of the registrant
or on behalf of the undersigned as a director or officer of the registrant, on
Form S-4 under the Securities Act of 1933, as amended, including, without
limiting the generality of the foregoing, to sign the Registration Statement and
any and all amendments (including post-effective amendments) to the Registration
Statement, and any subsequent registration statement filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent or either of them, acting alone, full power and authority to do and
perform each and every act and thing requisite and necessary to be done and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, thereby ratifying and confirming all that said attorney-in-fact
and agent or his or her substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
II-10
<PAGE> 87
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ GEORGE S. BLUMENTHAL Chairman of the Board, Treasurer May 13, 1999
- ----------------------------------- and Director
George S. Blumenthal
/s/ J. BARCLAY KNAPP President, Chief Executive and May 13, 1999
- ----------------------------------- Financial Officer and Director
J. Barclay Knapp
/s/ GREGG GORELICK Vice President -- Controller May 13, 1999
- -----------------------------------
Gregg Gorelick
Director
- -----------------------------------
Sidney R. Knafel
/s/ TED H. MCCOURTNEY Director May 13, 1999
- -----------------------------------
Ted H. McCourtney
/s/ DEL MINTZ Director May 13, 1999
- -----------------------------------
Del Mintz
Director
- -----------------------------------
Alan J. Patricof
Director
- -----------------------------------
Warren Potash
Director
- -----------------------------------
Michael S. Willner
/s/ ROBERT T. GOAD Director May 13, 1999
- -----------------------------------
Robert T. Goad
</TABLE>
II-11
<PAGE> 88
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
3.1 Restated Certificate of Incorporation of the Company(13)
3.1(a) Certificate of Ownership and Merger, dated as of March 26,
1997(6)
3.2 Restated By-laws of the Company(1)
4.1 Indenture, dated as of April 14, 1998, by and between the
Company and The Chase Manhattan Bank, as Trustee, with
respect to the new notes*
4.2 Indenture, dated as of November 2, 1998, by and between the
Company and The Chase Manhattan Bank, as Trustee, with
respect to the 11 1/2% Notes(13)
4.3 Indenture, dated as of November 6, 1998, by and between the
Company and The Chase Manhattan Bank, as Trustee, with
respect to the 12 3/8% Notes(13)
4.4 Registration Rights Agreement, dated as of April 14, 1998,
by and among the Company and Goldman Sachs International,
Morgan Stanley & Co. International Limited, Bankers Trust
International PLC, Chase Manhattan International, Donaldson,
Lufkin & Jenrette International, Salomon Brothers
International Limited and of UBS AG, acting through its
division Warburg Dillon Read, with respect to the notes*
4.5 Registration Rights Agreement, dated as of November 2, 1998,
by and among the Company and Morgan Stanley & Co.
Incorporated, Chase Securities Inc., Donaldson, Lufkin &
Jenrette Securities Corporation and Goldman, Sachs & Co.
with respect to the 11 1/2% Notes(13)
4.6 Registration Rights Agreement, dated as of November 6, 1998,
by and among the Company and Morgan Stanley & Co.
Incorporated, Chase Securities Inc., Donaldson, Lufkin &
Jenrette Securities Corporation and Goldman, Sachs & Co.
with respect to the 12 3/8% Notes(13)
4.7 Indenture, dated as of February 12, 1997, by and between the
Company and The Chase Manhattan Bank, as Trustee, with
respect to the 10% Notes(10)
4.8 Certificate of Designation, dated February 12, 1997, with
respect to the Redeemable Preferred Stock(10)
4.9 Registration Rights Agreement, dated February 12, 1997, by
and among the Company and Donaldson, Lufkin & Jenrette
Securities Corporation, Chase Securities Inc. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated with respect to
the 10% Notes(10)
4.10 Registration Rights Agreement, dated February 12, 1997, by
and among the Company and Donaldson, Lufkin & Jenrette
Securities Corporation, Chase Securities Inc. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated with respect to
the Redeemable Preferred Stock(10)
4.11 Form of new notes (included in Exhibit 4.1)
4.12 Indenture, dated as of June 12, 1996, by and between the
Company and Chemical Bank, as Trustee, with respect to the
7% Convertible Notes(8)
4.13 Registration Rights Agreement, dated June 12, 1996, by and
among the Company and Donaldson, Lufkin & Jenrette
Securities Corporation and Salomon Brothers Inc, with
respect to the 7% Convertible Notes(8)
</TABLE>
<PAGE> 89
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
4.14 Indenture, dated as of January 30, 1996, by and among the
Company and Chemical Bank, as Trustee, with respect to the
11 1/2% Notes(7)
4.15 Registration Rights Agreement, dated January 30, 1996, by
and among the Company and Donaldson, Lufkin & Jenrette
Securities Corporation, Salomon Brothers Inc and Chase
Securities, Inc., with respect to the 11 1/2% Notes(7)
4.16 Indenture, dated as of April 20, 1995, by and among the
Company and Chemical Bank, as Trustee, with respect to the
12 3/4% Notes(2)
4.17 First Supplemental Indenture, dated as of January 22, 1996,
by and among the Company and Chemical Bank, as Trustee with
respect to the Indenture included as Exhibit 4.19(7)
4.18 Registration Agreement, dated April 13, 1995 by and among
the Company and Salomon Brothers Inc, Donaldson, Lufkin &
Jenrette Securities Corporation and Goldman, Sachs & Co.,
with respect to the 12 3/4% Notes(2)
4.19 Indenture, dated as of April 20, 1995, by and among the
Company and Chemical Bank, as Trustee, with respect to the
7 1/4% Convertible Notes(3)
4.20 Registration Agreement, dated April 12, 1995, by and among
the Company and Salomon Brothers Inc, Donaldson, Lufkin &
Jenrette Securities Corporation and Goldman Sachs & Co.,
with respect to the 7 1/4% Convertible Notes(3)
4.21 Indenture, dated as of October 1, 1993, by and among the
Company and Chemical Bank, as Trustee with respect to the
10 7/8% Senior Notes(4)
4.22 First Supplemental Indenture, dated January 23, 1996, by and
among the Company and Chemical Bank, as Trustee, with
respect to the Indenture included as Exhibit 4.24(7)
4.23 Rights Agreement, dated as of October 1, 1993, between the
Company and Continental Transfer & Trust Company, as Rights
Agent(1)
4.24 Indenture, dated as of November 15, 1995, between Comcast
U.K. Cable Partners Limited and Bank of Montreal Trust
Company, as Trustee, with respect to the 11.20% Senior
Discount Debentures Due 2007 of Comcast U.K. Cable Partners
Limited.(12)
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to
the legality of the notes being registered hereby**
10.1 Compensation Plan Agreements, as amended and restated
effective June 3, 1997(11)
10.2 Form of Director and Officer Indemnity Agreement (together
with a schedule of executed Indemnity Agreements)(2)
11.1 Statement of computation of per share earnings(11)
12.1 Computation of Ratio of Earnings to Fixed Charges and
Combined Fixed Charges and Preferred Stock Dividends**
21.1 Subsidiaries of the Company(11)
23.1 Consent of Ernst & Young, LLP*
23.2 Consent of Deloitte & Touche LLP*
23.3 Consent of Deloitte & Touche -- Birmingham*
</TABLE>
<PAGE> 90
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
23.4 Consent of Deloitte & Touche -- London*
23.5 Consent of Deloitte & Touche -- Comtel*
23.6 Consent of Coopers & Lybrand -- ComTel*
23.7 Consent of KPMG -- Diamond*
23.8 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1)**
24.1 Powers of Attorney (included in the signature page to this
Registration Statement)
25.1 Form T-1 Statement of Eligibility of Trustee with respect to
Indenture included as Exhibit 4.1*
99.1 Form of Letter of Transmittal in respect of the Notes**
99.2 Form of Notice of Guaranteed Delivery**
99.3 Form of Letter to Client**
99.4 Form of Letter to Brokers, Dealers, Trust Companies and
others Nominees**
99.5 Prescribed Diffusion Service License, dated July 21, 1987,
issued to British Cable Services Limited (now held by
CableTel Surrey and Hampshire Limited) for the area of West
Surrey and East Hampshire, England(5)
99.6 Prescribed Diffusion Service License, dated December 3,
1990, issued to Clyde Cablevision (renamed CableTel Glasgow)
for the area of Inverclyde, Scotland(5)
99.7 Prescribed Diffusion Service License, dated December 3,
1990, issued to Clyde Cablevision (renamed CableTel Glasgow)
for the area of Bearsden and Milngavie, Scotland(5)
99.8 Prescribed Diffusion Service License, dated December 3,
1990, issued to Newport Cablevision Limited (renamed
CableTel Newport) for the area of Newport, Wales(5)
99.9 Prescribed Diffusion Service License, dated July 10, 1984,
issued to Clyde Cablevision (renamed CableTel Glasgow) for
the area of North Glasgow and Clydebank, Strathclyde,
Scotland(5)
99.10 Prescribed Diffusion Service License, dated December 3,
1990, issued to Clyde Cablevision (renamed CableTel Glasgow)
for the area of Greater Glasgow, Scotland(5)
99.11 Prescribed Diffusion Service License, dated December 3,
1990, issued to Clyde Cablevision (renamed CableTel Glasgow)
for the area of Paisley and Renfrew, Scotland(5)
99.12 Prescribed Diffusion Service License, dated December 3,
1990, issued to Cable and Satellite Television Holdings Ltd
(renamed CableTel West Glamorgan Limited) for the area of
West Glamorgan, Wales(5)
99.13 Prescribed Diffusion Service License, dated December 3,
1990, issued to British Cable Services Limited for the area
of Cardiff and Penarth, Wales (now held by CableTel Cardiff
Limited)(5)
</TABLE>
<PAGE> 91
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
99.14 Prescribed Diffusion Service License, dated December 3,
1990, issued to Kirklees Cable (renamed CableTel Kirklees)
for the area of Huddersfield and Dewsbury, West Yorkshire,
England(5)
99.15 Prescribed Diffusion Service License, dated December 3,
1990, issued to CableVision Communications Company of
Hertfordshire Ltd (renamed CableTel Hertfordshire Limited)
for the area of Broxbourne and East Hertfordshire,
England(5)
99.16 Prescribed Diffusion Service License, dated December 3,
1990, issued to CableVision Communications Company Ltd
(renamed CableTel Central Hertfordshire Limited) for the
area of Central Hertfordshire, England(5)
99.17 Prescribed Diffusion Service License, dated March 26, 1990,
issued to CableVision Bedfordshire Limited (renamed CableTel
Bedfordshire Ltd.) for the area of Luton and South
Bedfordshire(5)
99.18 Prescribed Diffusion Service License, dated December 3,
1990, issued to CableVision North Bedfordshire Ltd (renamed
CableTel North Bedfordshire Ltd.) for the area of North
Bedfordshire, England(5)
99.19 Local Delivery Service License, dated October 2, 1995,
issued to CableTel Northern Ireland Limited for Northern
Ireland(5)
99.20 Local Delivery Service License, dated December 6, 1995,
issued to CableTel South Wales Limited for Glamorgan and
Gwent, Wales(5)
99.21 Local Delivery Service License, dated March 13, 1991, issued
to Maxwell Cable TV Limited for Pembroke Dock, Dyfed, Wales
(now held by Metro South Wales Limited)(5)
99.22 Local Delivery Service License, dated March 15, 1991, issued
to Maxwell Cable TV Limited for Camarthen, Wales (now held
by Metro South Wales Limited)(5)
99.23 Local Delivery Service License, dated March 15, 1991, issued
to Maxwell Cable TV Limited for Milford Haven, Wales (now
held by Metro South Wales Limited)(5)
99.24 Local Delivery Service License, dated March 15, 1991, issued
to Maxwell Cable TV Limited for Cwmgors (Amman Valley), West
Glamorgan, Wales(5)
99.25 Local Delivery Service License, dated March 15, 1991, issued
to Maxwell Cable TV Limited for Ammanford, West Glamorgan,
Wales(5)
99.26 Local Delivery Service License, dated March 15, 1991, issued
to Maxwell Cable TV Limited for Brecon, Gwent, Wales(5)
99.27 Local Delivery Service License, dated March 15, 1991, issued
to Maxwell Cable TV Limited for Haverfordwest, Preseli,
Wales(5)
99.28 Local Delivery Service License, dated March 15, 1991, issued
to Maxwell Cable TV Limited for Neyland, Preseli, Wales (now
held by Metro South Wales Limited)(5)
99.29 License, dated January 11, 1991, issued to Cablevision
Communications Company of Hertfordshire Ltd (renamed
CableTel Hertfordshire Limited) for the Hertford, Cheshunt
and Ware (Lea Valley) cable franchise, England(5)
</TABLE>
<PAGE> 92
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
99.30 License, dated December 8, 1990, issued to Cablevision
Communications Company Limited for Central Hertfordshire
(renamed CableTel Central Hertfordshire Limited), England(5)
99.31 License, dated August 23, 1989, issued to Cablevision
Bedfordshire Limited for Bedford and surrounding areas,
England(5)
99.32 License, dated January 9, 1991, issued to Cablevision North
Bedfordshire Ltd for North Bedfordshire, England(5)
99.33 License, dated January 29, 1991, issued to Clyde Cablevision
(renamed CableTel Glasgow) for the Inverclyde Cable
Franchise, Scotland(5)
99.34 License, dated January 29, 1991, issued to Clyde Cablevision
(renamed CableTel Glasgow) for the Bearsden and Milngavie
Cable Franchise, Scotland(5)
99.35 License, dated January 29, 1991, issued to Clyde Cablevision
(renamed CableTel Glasgow) for the Paisley and Renfrew Cable
Franchise, Scotland(5)
99.36 License, dated June 7, 1985, issued to Clyde Cablevision Ltd
(renamed CableTel Glasgow) for North West Glasgow and
Clydebank, Scotland(5)
99.37 License, dated January 29, 1991, issued to Clyde Cablevision
(renamed CableTel Glasgow) for the Greater Glasgow cable
franchise, Scotland(5)
99.38 License, dated October 13, 1993, issued to Insight
Communications Cardiff Limited (renamed CableTel Cardiff
Limited) for Cardiff, Wales(5)
99.39 License, dated January 22, 1991, issued to Newport
Cablevision Limited (renamed CableTel Newport), for Newport
Cable franchise Wales(5)
99.40 License, dated May 18, 1990, issued to Cable and Satellite
Television Holdings Limited (renamed CableTel West
Glamorgan) for West Glamorgan, Wales(5)
99.41 License, dated December 20, 1990, issued to Kirklees Cable
(renamed CableTel Kirklees) for the Huddersfield and
Dewsbury cable franchise, England(5)
99.42 License, dated October 13, 1993, issued to Insight
Communications Guildford Limited (renamed CableTel Surrey
and Hampshire Limited) for the West Surrey/East Hampshire
(Guildford) Cable Franchise, England(5)
99.43 License, dated January 20, 1995, issued to CableTel
Bedfordshire Ltd. for the area of South Bedfordshire,
England(5)
99.44 License, dated January 20, 1995, issued to CableTel North
Bedfordshire Ltd. for the area of Bedford, England(5)
99.45 License, dated January 20, 1992, issued to Cable and
Satellite Television Holdings Limited (renamed CableTel West
Glamorgan Limited) for the area of Swansea, Neath and Port
Talbot, Wales(5)
99.46 License, dated January 20, 1995, issued to Cabletel
Hertfordshire Ltd. for the area of Hertford, Cheshunt and
Ware (Lea Valley), England(5)
99.47 License, dated January 20, 1995, issued to Cabletel Central
Hertfordshire Ltd. for the area of Central Hertfordshire,
England(5)
99.48 License, dated July 21, 1995, issued to CableTel Kirklees(5)
</TABLE>
<PAGE> 93
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
99.49 License, dated June 8, 1995, issued to CableTel Bedfordshire
Ltd.(5)
99.50 License, dated October 27, 1995, issued to Metro South Wales
Limited for the area of Neyland, Wales(5)
99.51 License, dated October 27, 1995, issued to Metro South Wales
Limited for the area of Cwmgors, Wales(5)
99.52 License, dated October 27, 1995, issued to Metro South Wales
Limited for the area of Ammanford, Wales(5)
99.53 License, dated October 27, 1995, issued to Metro South Wales
Limited for the area of Carmarthen, Wales(5)
99.54 License, dated October 27, 1995, issued to Metro South Wales
Limited for the area of Haverfordwest, Wales(5)
99.55 License, dated October 27, 1995, issued to Metro South Wales
Limited for the area of Pembroke Dock, Wales(5)
99.56 License, dated October 27, 1995, issued to Metro South Wales
Limited for the area of Milford Haven, Wales(5)
99.57 License, dated October 27, 1995, issued to CableTel South
Wales Limited for the area of Glamorgan and Gwent, Wales(5)
99.58 License, dated January 26, 1996, issued to Cabletel South
Wales Limited, for part of the Glamorgan area(5)
99.59 License, dated November 3, 1997, issued to NTL (UK) Group,
Inc. for the Provision of Radio Fixed Access Operator
Services(10)
99.60 Agreement and Plan of Amalgamation; Undertaking of Comcast
Corporation; Undertaking of Warburg, Pincus Investors,
L.P.(11)
</TABLE>
- ---------------
* Filed herewith.
** To be filed by amendment.
(1) Incorporated by reference from the Company's Registration Statement on Form
S-1, File No. 33-63570.
(2) Incorporated by reference from the Company's Registration Statement on Form
S-4, File No. 33-92794.
(3) Incorporated by reference from the Company's Registration Statement on Form
S-3, File No. 33-92792.
(4) Incorporated by reference from the Company's Registration Statement on Form
S-1, File No. 33-63572.
(5) Incorporated by reference from the Company's Form 8-K, filed with the
Commission on March 20, 1996.
(6) Incorporated by reference from the Company's Form 8-K, filed with the
Commission on March 26, 1997.
(7) Incorporated by reference to the Company's Registration Statement on Form
S-4, File No. 333-1010.
<PAGE> 94
(8) Incorporated by reference to the Company's Registration Statement on Form
S-3, File No. 333-07879.
(9) Incorporated by reference to the Company's Registration Statement on Form
S-3, File No. 333-16751.
(10) Incorporated by reference to the Company's Annual Report on Form 10-K,
filed on March 28, 1997.
(11) Incorporated by reference to the Company's Annual Report on Form 10-K,
filed with the Commission on March 30, 1998.
(12) Incorporated by reference to the Registration Statement on Form S-3, File
No. 33-96932, of Comcast U.K. Cable Partners Limited.
(13) Incorporated by reference to the Company's Annual Report on Form 10-K,
filed with the Commission on March 31, 1999.
<PAGE> 1
EXHIBIT 4.1
NTL COMMUNICATIONS CORP.
(pounds)330,000,000
9 3/4% SENIOR DEFERRED COUPON NOTES DUE 2009
INDENTURE
Dated as of April 14, 1999
------------------------
The Chase Manhattan Bank
Trustee
------------------------
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I. 1
Section 1.01. Definitions 1
Section 1.02. Other Definitions 13
Section 1.03. Incorporation by Reference of Trust Indenture Act 14
Section 1.04. Rules of Construction 14
ARTICLE II. THE NOTES 15
Section 2.01. Form and Dating 15
Section 2.02. Execution and Authentication 17
Section 2.03. Registrar and Paying Agent 17
Section 2.04. Paying Agent to Hold Money in Trust 18
Section 2.05. Holder Lists 18
Section 2.06. Transfer and Exchange 18
Section 2.07. Replacement Notes 21
Section 2.08. Outstanding Notes 21
Section 2.09. Treasury Notes 21
Section 2.10. Temporary Notes; Global Notes 21
Section 2.11. Cancellation 22
Section 2.12. Defaulted Interest 22
ARTICLE III. REDEMPTION 23
Section 3.01. Notices to Trustee 23
Section 3.02. Selection of Notes to Be Redeemed 23
Section 3.03. Notice of Redemption 23
Section 3.04. Effect of Notice of Redemption 24
Section 3.05. Deposit of Redemption Price 24
Section 3.06. Notes Redeemed in Part 24
Section 3.07. Optional Redemption and Optional Tax Redemption 24
Section 3.08. Mandatory Redemption 24
Section 3.09. Asset Sale Offer and Purchase Offer 24
ARTICLE IV. COVENANTS 27
Section 4.01. Payment of Notes 27
Section 4.02. Reports 28
Section 4.03. Compliance Certificate 28
Section 4.04. Stay, Extension and Usury Laws 28
Section 4.05. Corporate Existence 29
Section 4.06. Taxes 29
Section 4.07. Limitations on Liens 29
Section 4.08. Incurrence Of Indebtedness And Issuance Of Preferred Stock 29
Section 4.09. Restricted Payments 32
Section 4.10. Asset Sales 34
Section 4.11. Transactions with Affiliates 36
Section 4.12. Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries 38
Section 4.13. Change of Control 39
Section 4.14. Payment of Additional Amounts 39
ARTICLE V. SUCCESSORS 40
Section 5.01. Merger, Consolidation or Sale of Assets 40
<PAGE> 3
Section 5.02. Successor Corporation Substituted 40
ARTICLE VI. DEFAULTS AND REMEDIES 41
Section 6.01. Events of Default 41
Section 6.02. Acceleration 42
Section 6.03. Other Remedies 43
Section 6.04. Waiver of Past Defaults 43
Section 6.05. Control by majority 44
Section 6.06. Limitation on Suits 44
Section 6.07. Rights of Holders to Receive Payment 44
Section 6.08. Collection Suit by Trustee 44
Section 6.09. Trustee May File Proofs of Claim 45
Section 6.10. Priorities 45
Section 6.11. Undertaking for Costs 45
ARTICLE VII. TRUSTEE 45
Section 7.01. Duties of Trustee 45
Section 7.02. Rights of Trustee 46
Section 7.03. Individual Rights of Trustee 47
Section 7.04. Trustee's Disclaimer 47
Section 7.05. Notice of Defaults 47
Section 7.06. Reports by Trustee to Holders 47
Section 7.07. Compensation and Indemnity 47
Section 7.08. Replacement of Trustee 48
Section 7.09. Successor Trustee by Merger, Etc 49
Section 7.10. Eligibility; Disqualification 49
Section 7.11. Preferential Collection of Claims Against Company 49
ARTICLE VIII. DISCHARGE OF INDENTURE 49
Section 8.01. Termination of Company's Obligations 49
Section 8.02. Option to Effect Defeasance 50
Section 8.03. Application of Trust Money 52
Section 8.04. Repayment to Company 52
Section 8.05. Reinstatement 52
ARTICLE IX. AMENDMENTS, SUPPLEMENTS AND WAIVERS 52
Section 9.01. Without Consent of Holders 52
Section 9.02. With Consent of Holders 53
Section 9.03. Compliance with Trust Indenture Act 54
Section 9.04. Revocation and Effect of Consents 54
Section 9.05. Notation on or Exchange of Notes 54
Section 9.06. Trustee Protected 54
ARTICLE X. MISCELLANEOUS 55
Section 10.01. Trust Indenture Act Controls 55
Section 10.02. Notices 55
Section 10.03. Communication by Holders with Other Holders 55
Section 10.04. Certificate and Opinion as to Conditions Precedent 55
Section 10.05. Statements Required in Certificate or Opinion 56
Section 10.06. Rules by Trustee and Agents 56
Section 10.07. Legal Holidays 56
Section 10.08. No Recourse Against Others 56
Section 10.09. Counterparts and Facsimile Signatures 56
-3-
<PAGE> 4
Section 10.10. Variable Provisions 57
Section 10.11. Governing Law 57
Section 10.12. No Adverse Interpretation of Other Agreements 57
Section 10.13. Successors 58
Section 10.14. Severability 58
Section 10.15. Table of Contents, Headings, Etc 58
-4-
<PAGE> 5
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.08,
7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312 (a) 2.05
(b) 10.03
(c) 10.03
313(a) 7.06
(b)(1) N.A.
(b)(2) 7.06
(c) 7.06
(d) 7.06
314(a) 4.02
4.03,
(b) N.A.
(c)(1) 10.04
(c)(2) 10.04
(c)(3) N.A.
(d) N.A.
(e) N.A.
(f) N.A.
315(a) 7.01(b)
(b) 7.05
(c) 7.01(a)
(d) 7.01(c)
(e) 6.11
316 (a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 9.04
317 (a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318 (a) N.A.
N.A. means not applicable.
-5-
<PAGE> 6
*This Cross-Reference Table is not part of the Indenture.
-6-
<PAGE> 7
INDENTURE, dated as of April 14, 1999, between NTL Communications Corp., a
Delaware corporation (the "Company"), and The Chase Manhattan Bank, a New York
corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders (as defined in Section 1.01) of the
Company's 9 3/4% Senior Deferred Coupon Notes due 2009 (the "Initial Notes")
and, if and when issued in exchange for Initial Notes, the Company's 9 3/4%
Series B Senior Deferred Coupon Notes due 2009 (the "Exchange Notes" and,
together with the Initial Notes, the "Notes"):
ARTICLE I.
Section 1.01. Definitions.
"9 1/2% Notes" means the Company's 9 1/2% Senior Notes due 2008 and the
Company's 9 1/2% Series B Senior Notes due 2008.
"9 3/4% Notes" means the Company's 9 3/4% Senior Deferred Coupon Notes due
2008 and the Company's 9 3/4% Series B Senior Deferred Coupon Notes due 2008.
"10% Notes" means the Company's 10% Series B Senior Notes due 2007.
"10 3/4% Notes" means the Company's 10 3/4% Senior Deferred Coupon Notes
due 2008 and the Company's 10 3/4% Series B Senior Deferred Coupon Notes due
2008.
"11 1/2% Deferred Coupon Notes" means the Company's 11 1/2% Series B
Senior Deferred Coupon Notes due 2006.
"11 1/2% Notes" means the Company's 11 1/2% Senior Notes due 2008 and the
Company's 11 1/2% Series B Senior Notes due 2008.
"12 3/4% Notes" means the Company's 12 3/4% Series A Senior Deferred
Coupon Notes due 2005.
"12 3/8 % Deferred Coupon Notes" means the Company's 12 3/8% Deferred
Coupon Notes due 2008.
"Accreted Value" means, as of any date of determination prior to April 15,
2004, with respect to any Note, the sum of (a) the initial offering price (which
is (pounds)621.10 per (pounds)1000.00 principal amount at maturity of the Notes)
of such Note, and (b) the portion of the excess of the principal amount of such
Note over such initial offering price which shall have been accreted thereon
through such date, such amount to be so accreted on a daily basis at a rate of 9
3/4% per annum of the initial offering price of such Note compounded
semiannually on each April 15 and October 15 from the date of issuance of the
Note through the date of determination, computed on the basis of a 360-day year
of twelve 30-day months.
"Acquired Debt" means, with respect to any specified Person, Indebtedness
of any other Person (the "Acquired Person") existing at the time such Acquired
Person merged with or into or became a Subsidiary of such specified Person,
including Indebtedness incurred in connection with, or in contemplation of, such
Acquired Person merging with or into or becoming a Subsidiary of such specified
-7-
<PAGE> 8
Person.
"Acquired Person" has the meaning specified in the definition of Acquired
Debt.
"Adjusted Total Assets" means the total amount of assets of the Company
and its Restricted Subsidiaries (including the amount of any Investment in any
Non-Restricted Subsidiary), except to the extent resulting from write-ups of
assets (other than write-ups in connection with accounting for acquisitions in
conformity with GAAP), after deducting therefrom (i) all current liabilities of
the Company and its Restricted Subsidiaries, and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as calculated in conformity with GAAP. For purposes of this
Adjusted Total Assets definition, (a) assets shall be calculated less applicable
accumulated depreciation, accumulated amortization and other valuation reserves,
and (b) all calculations shall exclude all intercompany items.
"Adjusted Total Controlled Assets" means the total amount of assets of the
Company and its Cable Controlled Subsidiaries, except to the extent resulting
from write-ups of assets (other than write-ups in connection with accounting for
acquisitions in conformity with GAAP), after deducting therefrom (i) all current
liabilities of the Company and such Cable Controlled Subsidiaries; and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles of the Company and such Restricted
Subsidiaries, all as calculated in conformity with GAAP; provided that Adjusted
Total Controlled Assets shall be reduced (to the extent not otherwise reduced in
accordance with GAAP) by an amount equal to the aggregate amount of all
Investments of the Company or any such Cable Controlled Subsidiaries in any
Person other than a Cable Controlled Subsidiary, except Cash Equivalents. For
purposes of this Adjusted Total Controlled Assets definition, (a) assets shall
be calculated less applicable accumulated depreciation, accumulated amortization
and other valuation reserves, and (b) all calculations shall exclude all
intercompany items.
"Affiliate" of any specified Person means any other Person directly
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided, however,
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control.
"Agent" means any Registrar or Paying Agent.
"Annualized Pro Forma EBITDA" means, with respect to any Person, such
Person's Pro Forma EBITDA for the latest fiscal quarter multiplied by four.
"Asset Sale" means (i) any sale, lease, transfer, conveyance or other
disposition of any assets (including by way of a sale-and-leaseback) other than
the sale or transfer of inventory or goods held for sale in the ordinary course
of business (provided that the sale, lease, transfer, conveyance or other
disposition of all or substantially all of the assets of the Company shall be
governed by Section 4.13 or 5.01 hereof) or (ii) any issuance, sale, lease,
transfer, conveyance or other disposition of any Equity Interests of any of the
Company's Restricted Subsidiaries to any Person; in either case other than (A)
to (w) the Company, (x) any Wholly Owned Subsidiary, or (y) any Subsidiary which
is a Subsidiary of the Company on the Issuance Date provided that at the time of
and after giving effect to such issuance, sale,
-8-
<PAGE> 9
lease, transfer, conveyance or other disposition to such Subsidiary, the
Company's ownership percentage in such Subsidiary is equal to or greater than
such percentage on the Issuance Date or (B) the issuance, sale, transfer,
conveyance or other disposition of Equity Interests of a Subsidiary in exchange
for capital contributions made on a pro rata basis by the holders of the Equity
Interests of such Subsidiary.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee of the Board.
"Business Day" means any day that is not a Legal Holiday.
"Cable Assets" means tangible or intangible assets, licenses (including,
without limitation, Licenses) and computer software used in connection with a
Cable Business.
"Cable Business" means (i) any Person directly or indirectly operating, or
owning a license to operate, a cable and/or television and/or telephone and/or
telecommunications system or service principally within the United Kingdom
and/or the Republic of Ireland and (ii) any Cable Related Business.
"Cedel" means Cedel Bank, societe anonyme.
"Cable Controlled Property" means a Cable Controlled Subsidiary or a Cable
Asset held by a Cable Controlled Subsidiary.
"Cable Controlled Subsidiary" means any Restricted Subsidiary that is
primarily engaged, directly or indirectly, in one or more Cable Businesses.
"Cable Related Business" means a Person which directly or indirectly owns
or provides a service or product used in a Cable Business, including, without
limitation, any television programming, production and/or licensing business or
any programming guide or telephone directory business or content or software
related thereto.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, including,
without limitation, partnership interests.
"Capital Stock Sale Proceeds" means the aggregate net sale proceeds
(including from the sale of any property received for the Capital Stock or the
fair market value of such property, as determined by an independent appraisal
firm) received by the Company or any Subsidiary of the Company from the issue or
sale (other than to a Subsidiary) by the Company of any class of its Capital
Stock after October 14, 1993 (including Capital Stock of the Company issued
after October 14, 1993 upon conversion of or in exchange for other securities of
the Company).
"Cash Equivalents" means (i) Permitted Currency, (ii) securities issued or
directly and fully guaranteed or insured by the United States government, a
European Union member government or any agency or instrumentality thereof having
maturities of not more than six months and two days from the date of
acquisition, (iii) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case with any commercial bank(s) domiciled in the United
States, the United Kingdom, the Republic of Ireland or any other European Union
member having capital and surplus in excess of $500 million, (iv) repurchase
obligations with a term of not more than seven days for
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<PAGE> 10
underlying securities of the types described in clauses (ii) and (iii) entered
into with any financial institution meeting the qualifications specified in
clause (iii) above, (v) commercial paper rated P-1 or the equivalent thereof by
Moody's or A-1 or the equivalent thereof by S & P and in each case maturing
within six months and two days after the date of acquisition and (vi) money
market funds at least 95% of the assets of which constitute Cash Equivalents of
the kinds described in clauses (i)-(v) of this definition.
"Change of Control" means (i) the sale, lease or transfer of all or
substantially all of the assets of the Company to any "Person" or "group"
(within the meaning of Sections 13(d)(3) and 14(d)(2) of the Exchange Act or any
successor provision to either of the foregoing, including any group acting for
the purpose of acquiring, holding or disposing of securities within the meaning
of Rule 13d-5(b)(1) under the Exchange Act) (other than any Permitted Holder),
(ii) the approval by the requisite stockholders of the Company of a plan of
liquidation or dissolution of the Company, (iii) any "Person" or "group" (within
the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act or any successor
provision to either of the foregoing, including any group acting for the purpose
of acquiring, holding or disposing of securities within the meaning of Rule 13d-
5(b)(1) under the Exchange Act), other than any Permitted Holder, becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of more
than 50% of the total voting power of all classes of the voting stock of the
Company and/or warrants or options to acquire such voting stock, calculated on a
fully diluted basis, unless, as a result of such transaction, the ultimate
direct or indirect ownership of the Company is substantially the same
immediately after such transaction as it was immediately prior to such
transaction, or (iv) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Company's Board of Directors
(together with any new directors whose election or appointment by such board or
whose nomination for election by the shareholders of the Company was approved by
a vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Company's Board of Directors then in office.
"Change of Control Triggering Event" means the occurrence of both a Change
of Control and a Ratings Decline.
"Company" means the party named as such above until a successor replaces
it in accordance with Article V and thereafter means the successor.
"Consolidated Interest Expense" means, for any Person, for any period, the
amount of interest in respect of Indebtedness (including amortization of
original issue discount, amortization of debt issuance costs, and non-cash
interest payments on any Indebtedness and the interest portion of any deferred
payment obligation and after taking into account the effect of elections made
under any Interest Rate Agreement, however denominated, with respect to such
Indebtedness), the amount of Redeemable Dividends, Restricted Subsidiary
Preferred Stock Dividends and the interest component of rentals in respect of
any capital lease obligation paid, in each case whether accrued or scheduled to
be paid or accrued by such Person and its Subsidiaries (other than
Non-Restricted Subsidiaries) during such period to the extent such amounts were
deducted in computing Consolidated Net Income, determined on a consolidated
basis in accordance with GAAP. For purposes of this definition, interest on a
capital lease obligation shall be deemed to accrue at an interest rate
reasonably determined by such Person to be the rate of interest implicit in such
capital lease obligation in accordance with GAAP consistently applied.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate of the Net Income of such Person and its Subsidiaries
(other than Non-Restricted Subsidiaries) for such
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<PAGE> 11
period, on a consolidated basis, determined in accordance with GAAP; provided
that (i) the Net Income of any Person that is not a Subsidiary or that is
accounted for by the equity method of accounting shall be included only to the
extent of the amount of dividends or distributions paid to the referent Person
or a Wholly Owned Subsidiary, (ii) the Net Income of any Person that is a
Subsidiary (other than a Subsidiary of which at least 80% of the Capital Stock
having ordinary voting power for the election of directors or other governing
body of such Subsidiary is owned by the referent Person directly or indirectly
through one or more Subsidiaries) shall be included only to the extent of the
amount of dividends or distributions paid to the referent Person or a Wholly
Owned Subsidiary, (iii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition shall
be excluded and (iv) the cumulative effect of a change in accounting principles
shall be excluded.
"Convertible Subordinated Notes" means (i) the Company's 7% Convertible
Subordinated Notes issued pursuant to an indenture dated as of June 12, 1996,
between the Company and The Chase Manhattan Bank (formerly known as Chemical
Bank), as trustee and (ii) the Company's 7% Convertible Subordinated Notes due
2008 issued pursuant to an indenture dated as of December 16, 1998 between the
Company and The Chase Manhattan Bank, as trustee.
"Credit Facility" means the Facilities Agreement, dated October 17, 1997,
between NTL (UK) Group Inc., as principal guarantor, Chase Manhattan plc, as
arranger, Chase Manhattan International Limited, as agent and security trustee
and The Chase Manhattan Bank as issuer, as such Facilities Agreement may be
supplemented, amended, restated, modified, renewed, refunded, replaced or
refinanced, in whole or in part, from time to time in an aggregate outstanding
principal amount not to exceed the greater of (i) (pound)555 million and (ii)
the amount of the aggregate commitments thereunder as the same may be increased
after March 13, 1998 as contemplated by the Facilities Agreement as amended or
supplemented to March 13, 1998, but in no event greater than (pound)875 million,
less in each case, the aggregate amount of all Net Proceeds of Asset Sales that
have been applied to permanently reduce Indebtedness under the Credit Facility
pursuant Section 4.10 hereof. Indebtedness that may otherwise be incurred under
this Indenture may, but need not, be incurred under the Credit Facility without
regard to the limit set forth in the preceding sentence. Indebtedness
outstanding under the Credit Facility on the date hereof shall be deemed to have
been incurred on such date in reliance on the exception provided by Section
4.08(b)(i).
"Cumulative EBITDA" means the cumulative EBITDA of the Company from and
after the Issuance Date to the end of the fiscal quarter immediately preceding
the date of a proposed Restricted Payment, or, if such cumulative EBITDA for
such period is negative, minus the amount by which such cumulative EBITDA is
less than zero; provided, however, that EBITDA of Non-Restricted Subsidiaries
shall not be included.
"Cumulative Interest Expense" means the aggregate amount of Consolidated
Interest Expense paid, accrued or scheduled to be paid or accrued by the Company
from the Issuance Date to the end of the fiscal quarter immediately preceding a
proposed Restricted Payment, determined on a consolidated basis in accordance
with GAAP.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Depositary" shall mean Euroclear or Cedel.
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<PAGE> 12
"Diamond Notes" shall mean the 10% Diamond Senior Notes due 2008, the
9 1/8% Diamond Senior Notes due 2008, the 10 3/4% Diamond Senior Discount Notes
due 2007, the 11 3/4% Diamond Senior Discount Notes due 2005 and the 13 1/4%
Diamond Senior Discount Notes due 2004.
"Disqualified Stock" means any Capital Stock which, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
on which the Notes mature.
"EBITDA" means, for any Person, for any period, an amount equal to (A) the
sum of (i) Consolidated Net Income for such period (exclusive of any gain or
loss realized in such period upon an Asset Sale), plus (ii) the provision for
taxes for such period based on income or profits to the extent such income or
profits were included in computing Consolidated Net Income and any provision for
taxes utilized in computing net loss under clause (i) hereof, plus (iii)
Consolidated Interest Expense for such period, plus (iv) depreciation for such
period on a consolidated basis, plus (v) amortization of intangibles for such
period on a consolidated basis, plus (vi) any other non-cash item reducing
Consolidated Net Income for such period (excluding any such non-cash item to the
extent that it represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense that was paid in a prior
period), minus (B) all non-cash items increasing Consolidated Net Income for
such period, all for such Person and its Subsidiaries determined in accordance
with GAAP consistently applied.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any Indebtedness that is
convertible into, or exchangeable for Capital Stock).
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office as operator of the Euroclear system.
"European Union member" means any country that is or becomes a member of
the European Union or any successor organization thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Rate Contract" means, with respect to any Person, any currency
swap agreements, forward exchange rate agreements, foreign currency futures or
options, exchange rate collar agreements, exchange rate insurance and other
agreements or arrangements, or combination thereof, the principal purpose of
which is to provide protection against fluctuations in currency exchange rates.
An Exchange Rate Contract may also include an Interest Rate Agreement.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries in existence on the Issuance Date, until such amounts are repaid,
including, without limitation, the Existing Notes.
"Existing Notes" means the Old Notes and the Convertible Subordinated
Notes.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession,
which are in effect on the Issuance Date and are applied on a consistent basis.
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<PAGE> 13
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Holder" means a Person in whose name a Note is registered in the register
referred to in Section 2.03.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or representing the balance
deferred and unpaid of the purchase price of any property (including pursuant to
capital leases and sale-and-leaseback transactions) or representing any hedging
obligations under an Exchange Rate Contract or an Interest Rate Agreement,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than obligations
under an Exchange Rate Contract or an Interest Rate Agreement) would appear as a
liability upon a balance sheet of such Person prepared in accordance with GAAP,
and also includes, to the extent not otherwise included, the Guarantee of items
which would be included within this definition. The amount of any Indebtedness
outstanding as of any date shall be the accreted value thereof, in the case of
any Indebtedness issued with original issue discount
"Indenture" means this Indenture, as amended from time to time.
"Initial Purchasers" means Goldman Sachs International, Morgan Stanley &
Co. International Limited, Chase Manhattan International, Donaldson, Lufkin &
Jenrette International, UBS AG acting through its division Warburg Dillon Read
and Bankers Trust International PLC.
"Interest Rate Agreement" means, for any Person, any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, or other
similar agreement, the principal purpose of which is to protect the party
indicated therein against fluctuations in interest rates.
"Investment Grade" means BBB- or higher by S&P or Baa3 or higher by
Moody's or the equivalent of such ratings by S&P or Moody's. In the event that
the Company shall be permitted to select any other Rating Agency, the equivalent
of such ratings by such Rating Agency shall be used.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of loans (including
Guarantees), advances or capital contributions (excluding commission, travel and
similar advances and loans, joint property ownership and other arrangements, in
each case, made to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities and all other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
"Issuance Date" means the date on which the Notes are first authenticated
and issued.
"License" means any license issued or awarded pursuant to the Broadcasting
Act 1990, the Cable and Broadcasting Act 1984, the Telecommunications Act 1984
or the Wireless Telegraphy Act 1948 (in each case, as such Acts may, from time
to time, be amended, modified or re-enacted) (or equivalent
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<PAGE> 14
statutes of any jurisdiction) to operate or own a Cable Business.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent or successor statutes) of any
jurisdiction).
"Material License" means a License held by the Company or any of its
Subsidiaries which License at the time of determination covers a number of Net
Households which equals or exceeds 5% of the aggregate number of Net Households
covered by all of the Licenses held by the Company and its Subsidiaries at such
time.
"Material Subsidiary" means (i) NTL UK Group, Inc. (formerly known as OCOM
Sub II, Inc.), NTL Investment Holdings Limited, NTL Group Limited, CableTel
Surrey Limited, CableTel Cardiff Limited, CableTel Glasgow, CableTel Newport and
CableTel Kirklees and (ii) any other Subsidiary of the Company which is a
"significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under the
Securities Act and the Exchange Act (as such Regulation is in effect on the date
hereof).
"Monetize" means a strategy with respect to Equity Interests that
generates an amount of cash equal to the fair value of such Equity Interests.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Households" means the product of (i) the number of households covered
by a License in the United Kingdom and (ii) the percentage of the entity holding
such License which is owned directly or indirectly by the Company.
"Net Income" means, with respect to any Person for a specific period, the
net income (loss) of such Person during such period, determined in accordance
with GAAP, excluding, however, any gain (but not loss) during such period,
together with any related provision for taxes on such gain (but not loss),
realized during such period in connection with any Asset Sale (including,
without limitation, dispositions pursuant to sale-and-leaseback transactions),
and excluding any extraordinary gain (but not loss) during such period, together
with any related provision for taxes on such extraordinary gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the Company
or any of its Subsidiaries in respect of any Asset Sale, net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of Indebtedness
secured by a Lien on the asset or assets the subject of such Asset Sale and any
reserve for adjustment in respect of the sale price of such asset or assets.
"Non-Controlled Subsidiary" means an entity which is not a Cable
Controlled Subsidiary.
"Non-Recourse Debt" means Indebtedness or that portion of Indebtedness as
to which none of the Company, nor any Restricted Subsidiary: (i) provides credit
support (including any undertaking, agreement or instrument which would
constitute Indebtedness); (ii) is directly or indirectly liable; or (iii)
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<PAGE> 15
constitutes the lender.
"Non-Restricted Subsidiary" means (A) a Subsidiary that (a) at the time of
its designation by the Board of Directors as a Non-Restricted Subsidiary has not
acquired any assets (other than as specifically permitted by clause (e) of
"Permitted Investments" or Section 4.09 hereof), at any previous time, directly
or indirectly from the Company or any of its Restricted Subsidiaries, (b) has no
Indebtedness other than Non-Recourse Debt and (c) that at the time of such
designation, after giving pro forma effect to such designation, the ratio of
Indebtedness to Annualized Pro Forma EBITDA of the Company is equal to or less
than the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company
immediately preceding such designation, provided, however, that if the ratio of
Indebtedness to Annualized Pro Forma EBITDA of the Company immediately preceding
such designation is 6:1 or less, then the ratio of Indebtedness to Annualized
Pro Forma EBITDA of the Company may be 0.5 greater than such ratio immediately
preceding such designation; (B) any Subsidiary which (a) has been acquired or
capitalized out of or by Equity Interests (other than Disqualified Stock) of the
Company or Capital Stock Sale Proceeds therefrom, (b) has no Indebtedness other
than Non-Recourse Debt and (c) is designated as a Non-Restricted Subsidiary by
the Board of Directors or is merged, amalgamated or consolidated with or into,
or its assets or capital stock is to be transferred to, a Non-Restricted
Subsidiary; or (C) any Subsidiary of a Non-Restricted Subsidiary.
"Notes" has the meaning set forth in the preamble hereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer's Certificate" means a certificate signed by an Officer, who must
be the Chairman of the Board, the President, the Treasurer or a Vice President
of the Company. See Sections 10.04 and 10.05 hereof.
"Old Notes" means the 12 3/4% Notes, the 11 1/2% Deferred Coupon Notes,
the 10 3/4% Notes, the 10% Notes, the 9 3/4% Notes, the 9 1/2% Notes, the 11
1/2% Notes and the 12 3/8% Deferred Coupon Notes.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee. See Sections 10.04 and 10.05 hereof.
"Other Qualified Notes" means any outstanding senior indebtedness of the
Company issued pursuant to an indenture having a provision substantially similar
to Section 4.10 hereof (including, without limitation, the 12 3/4% Notes, the 11
1/2% Deferred Coupon Notes, the 10 3/4% Notes, the 10% Notes, the 9 3/4% Notes,
the 9 1/2% Notes, the 11 1/2% Notes, the 123/8% Deferred Coupon Notes and the
Diamond Notes).
"Permitted Acquired Debt" means, with respect to any Acquired Person
(including, for this purpose, any Non-Restricted Subsidiary at the time such
Non-Restricted Subsidiary becomes a Restricted Subsidiary), Acquired Debt of
such Acquired Person and its Subsidiaries in an amount (determined on a
consolidated basis) not exceeding the sum of (x) amount of the gross book value
of property, plant and equipment of the Acquired Person and its Subsidiaries as
set forth on the most recent consolidated balance sheet of the Acquired Person
(which may be unaudited) prior to the date it becomes an Acquired Person and (y)
the aggregate amount of any Cash Equivalents held by such Acquired Person at the
time it
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<PAGE> 16
becomes an Acquired Person.
"Permitted Currency" means the lawful currency of the United States or a
European Union member.
"Permitted Designee" means (i) a spouse or a child of a Permitted Holder,
(ii) trusts for the benefit of a Permitted Holder or a spouse or child of a
Permitted Holder, (iii) in the event of the death or incompetence of a Permitted
Holder, his estate, heirs, executor, administrator, committee or other personal
representative or (iv) any Person so long as a Permitted Holder owns at least
50% of the voting power of all classes of the voting stock of such Person.
"Permitted Holders" means George S. Blumenthal, J. Barclay Knapp and their
Permitted Designees.
"Permitted Investments" means (a) any Investments in the Company or in a
Cable Controlled Property or in a Qualified Subsidiary (including, without
limitation, (i) Guarantees of Indebtedness of the Company, a Cable Controlled
Subsidiary or a Qualified Subsidiary, (ii) Liens securing such Indebtedness or
Guarantees or (iii) the payment of any balance deferred and unpaid of the
purchase price of any Qualified Subsidiary); (b) any Investments in Cash
Equivalents; (c) Investments by the Company in Indebtedness of a counter-party
to an Exchange Rate Contract for hedging a Permitted Currency exchange risk that
are made, for purposes other than speculation, in connection with such contract
to hedge not more than the aggregate principal amount of the Indebtedness being
hedged (or, in the case of Indebtedness issued with original issue discount,
based on the amounts payable after the amortization of such discount); (d)
Investments by the Company or any Subsidiary of the Company in a Person, if as a
result of such Investment (i) such Person becomes a Cable Controlled Subsidiary
or (ii) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into,
the Company or a Wholly Owned Subsidiary of the Company; and (e) any issuance,
transfer or other conveyance of Equity Interests (other than Disqualified Stock)
in the Company (or any Capital Stock Sale Proceeds therefrom) to a Subsidiary of
the Company.
"Permitted Liens" means (a) Liens in favor of the Company; (b) Liens on
property of a Person existing at the time such Person is merged into or
consolidated with the Company or any Subsidiary of the Company; provided, that
such Liens were in existence prior to the contemplation of such merger or
consolidation and do not secure any property or assets of the Company or any of
its Subsidiaries other than the property or assets subject to the Liens prior to
such merger or consolidation; (c) liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of obligations not more than 60
days past due or are being contested in good faith and by appropriate
proceedings; (d) Liens existing on the Issuance Date; (e) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; provided, that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor and (f) easements, rights of way, restrictions and other
similar easements, licenses, restrictions on the use of properties or minor
imperfections of title that, in the aggregate, are not material in amount, and
do not in any case materially detract from the properties subject thereto or
interfere with the ordinary conduct of the business of the Company or its
Restricted Subsidiaries.
"Permitted Non-Controlled Assets" means Equity Interests in any Person
primarily engaged, directly or indirectly, in one or more Cable Businesses if
such Equity Interests (x) were acquired by the
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<PAGE> 17
Company or any of its Restricted Subsidiaries in connection with any Asset Sale
or any Investment otherwise permitted under the terms of the Indenture and (y)
to the extent that, after giving pro forma effect to the acquisition thereof by
the Company or any of its Restricted Subsidiaries, Adjusted Total Controlled
Assets is greater than 80% of Adjusted Total Assets based on the most recent
consolidated balance sheet of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Stock" means the 13% Senior Redeemable Exchangeable Preferred
Stock of the Company with an original aggregate liquidation preference of
$100,000,000.
"Pro Forma EBITDA" means for any Person, for any period, the EBITDA of
such Person as determined on a consolidated basis for such Person and its
Subsidiaries in accordance with GAAP after giving effect to the following: (i)
if, during or after such period, such Person or any of its Subsidiaries shall
have made any Asset Sale, Pro Forma EBITDA of such Person and its Subsidiaries
for such period shall be reduced by an amount equal to the Pro Forma EBITDA (if
positive) directly attributable to the assets which are the subject of such
Asset Sale for the period or increased by an amount equal to the Pro Forma
EBITDA (if negative) directly attributable thereto for such period and (ii) if,
during or after such period, such Person or any of its Subsidiaries completes an
acquisition of any Person or business which immediately after such acquisition
is a Subsidiary of such Person or whose assets are held directly by such Person
or a Subsidiary of such Person, Pro Forma EBITDA shall be computed so as to give
pro forma effect to the acquisition of such Person or business (without giving
effect to clause (iii) of the definition of Consolidated Net Income); and
provided further that, with respect to the Company, all of the foregoing
references to "Subsidiary" or "Subsidiaries" shall be deemed to refer only to a
"Restricted Subsidiary" or "Restricted Subsidiaries" of the Company.
"Purchase Agreement" means the Purchase Agreement, dated as of April 7,
1999, between the Company and the Initial Purchasers.
"Qualified Subsidiary" means a Wholly Owned Subsidiary, or an entity that
will become a Wholly Owned Subsidiary after giving effect to the transaction
being considered, that at the time of and after giving effect to the
consummation of the transaction under consideration, (i) is a Cable Business or
holds only Cable Assets, (ii) has no Indebtedness (other than Indebtedness being
incurred to consummate such transaction) and (iii) has no encumbrances or
restrictions (other than such encumbrances or restrictions imposed or permitted
by this Indenture, the indentures governing the Old Notes or any other
instrument governing unsecured indebtedness of the Company which is pari passu
with the Notes) on its ability to pay dividends or make any other distributions
to the Company or any of its Subsidiaries.
"Rating Agencies" means (i) S&P, (ii) Moody's and (iii) if S&P or Moody's
or both shall not make a rating of the Notes publicly available, a nationally
recognized securities rating agency or agencies, as the case may be, selected by
the Company, which shall be substituted for S&P or Moody's or both, as the case
may be.
"Rating Category" means (i) with respect to S&P, any of the following
categories: BB, B, CCC, CC, C and D (or equivalent successor categories), (ii)
with respect to Moody's, any of the following categories: Ba, B, Caa, Ca, C and
D (or equivalent successor categories) and (iii) the equivalent of any
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such category of S&P or Moody's used by another Rating Agency. In determining
whether the rating of the Notes has decreased by one or more gradations,
gradations within Rating Categories (+ and - for S&P; 1, 2 and 3 for Moody's; or
the equivalent gradations for another Rating Agency) shall be taken into account
(e.g., with respect to S&P, a decline in a rating from BB to BB-, as well as
from BB-to B+, will constitute a decrease of one gradation).
"Rating Date" means that date which is 90 days prior to the earlier of (x)
a Change of Control and (y) public notice of the occurrence of a Change of
Control or of the intention by the Company or any Permitted Holder to effect a
Change of Control.
"Ratings Decline" means the occurrence of any of the following events on,
or within six months after, the date of public notice of the occurrence of a
Change of Control or of the intention of the Company or any Person to effect a
Change of Control (which period shall be extended so long as the rating of any
of the Company's debt securities is under publicly announced consideration for
possible downgrade by any of the Rating Agencies): (a) in the event that any of
the Company's debt securities are rated by both of the Rating Agencies on the
Rating Date as Investment Grade, the rating of such securities by either of the
Rating Agencies shall be below Investment Grade, (b) in the event that any of
the Company's debt securities are rated by either, but not both, of the Rating
Agencies on the Rating Date as Investment Grade, the rating of such securities
by both of the Rating Agencies shall be below Investment Grade, or (c) in the
event any of the Company's debt securities are rated below Investment Grade by
both of the Rating Agencies on the Rating Date, the rating of such securities by
either Rating Agency shall be decreased by one or more gradations (including
gradations within Rating Categories as well as between Rating Categories).
"Redeemable Dividend" means, for any dividend with regard to Disqualified
Stock, the quotient of the dividend divided by the difference between one and
the maximum statutory federal income tax rate (expressed as a decimal number
between 1 and 0) then applicable to the issuer of such Disqualified Stock.
"Registered Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Registration Rights Agreement" means the Registration Rights Agreement
relating to the Notes, dated April 14, 1999, between the Company and the Initial
Purchasers.
"Replacement Assets" means (w) Cable Assets, (x) Equity Interests of any
Person engaged, directly or indirectly, primarily in a Cable Business, which
Person is or will become on the date of acquisition thereof a Restricted
Subsidiary as a result of the Company's acquiring such Equity Interests, (y)
Permitted Non-Controlled Assets or (z) any combination of the foregoing.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" means any Subsidiary of the Company which is not a
Non-Restricted Subsidiary.
"Restricted Subsidiary Preferred Stock Dividend" means, for any dividend
with regard to preferred stock of a Restricted Subsidiary, the quotient of the
dividend divided by the difference between one and the maximum statutory federal
income tax rate (expressed as a decimal number between 1 and 0) then applicable
to the issuer of such preferred stock.
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"S&P" means Standard & Poor's Ratings Group and its successors.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Subordinated Debentures" means the debentures exchangeable by the Company
for the Preferred Stock in accordance with the Certificate of Designations
therefor.
"Subsidiary" means any corporation, association or other business entity
of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more of the other
Subsidiaries of that Person or a combination thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (ss.)(ss.)
77aaa-77bbbb) as in effect on the date of execution of this Indenture.
"Trustee" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means the successor.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (x) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (y) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (b) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Subsidiary" means, at any time, a Restricted Subsidiary all
of the Capital Stock of which (except directors' qualifying shares) is at the
time owned directly or indirectly by the Company.
Section 1.02. Other Definitions.
Defined
Term in Section
---- ----------
"Additional Amounts" 4.14
"Affiliate Transaction" 4.11
"Agent Member" 2.01
"Asset Sale Offer" 4.10
"Bankruptcy Law" 6.01
"Change of Control Payment" 4.13
"Commencement Date" 3.09
"Common Depositary" 2.03
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"Custodian" 6.01
"Defeasance" 8.02
"Event of Default" 6.01
"Excess Proceeds" 4.10
"Global Note" 2.01
"incur" 4.08
"Legal Holiday" 10.08
"Offer Amount" 3.09
"Officer" 10.11
"Paying Agent" 2.03
"Payment Default" 6.01
"Purchase Date" 3.09
"Purchase Offer" 4.13
"QIBs" 2.01
"Refinancing Indebtedness" 4.08
"Regulation S" 2.01
"Registrar" 2.03
"Restricted Notes" 2.01
"Restricted Payments" 4.09
"Rule 144A" 2.01
"Tender Period" 3.09
"U.K. Government Obligations" 8.02
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Company or any other obligor on the
Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
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Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP consistently applied;
(c) references to "GAAP" shall mean GAAP in effect as of the time
when and for the period as to which such accounting principles are to be
applied;
(d) "or" is not exclusive;
(e) words in the singular include the plural, and in the plural
include the singular;
(f) provisions apply to successive events and transactions;
(g) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement or successor sections
or rules adopted by the SEC from time to time; and
(h) a reference to "$" or U.S. Dollars is to United States dollars
and a reference to "(pound)" or pounds sterling is to British pounds
sterling.
ARTICLE II.
THE NOTES
Section 2.01. Form and Dating.
(a) General.
The Initial Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto, which is hereby
incorporated by reference and expressly made a part of this Indenture. The
Exchange Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit B hereto, which is hereby incorporated by
reference and expressly made a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Company).
The Company shall furnish any such legend not contained in Exhibit A or Exhibit
B to the Trustee in writing. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of (pound)1,000 and integral
multiples thereof. The terms and provisions of the Notes set forth in Exhibit A
and Exhibit B are part of this Indenture and to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) Global Notes.
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The Initial Notes are being offered and sold by the Company pursuant
to the Purchase Agreement.
Initial Notes offered and sold in reliance on Regulation S under the
Securities Act ("Regulation S") or Rule 144A under the Securities Act ("Rule
144A"), as provided in the Purchase Agreement, shall be issued initially in the
form of one permanent Global Note in definitive, fully registered form without
interest coupons with the Global Note Legend and Restricted Note Legend set
forth in Exhibit A hereto (the "Global Note"), which shall be deposited on
behalf of the Initial Purchasers of the Notes represented thereby with the
Common Depositary, at its London office, as custodian, for the Depositary, and
registered in the name of the Common Depositary or the nominee of the Common
Depositary for the accounts of designated agents holding on behalf of the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount at maturity of the Global
Note may from time to time be increased or decreased by adjustments made on the
records of the Common Depositary and the Depositary or its nominee as
hereinafter provided.
Upon consummation of the Registered Exchange Offer, the Exchange
Notes may be issued in the form of one or more permanent Global Notes in
definitive, fully registered form without interest coupons with the Global Notes
Legend but not the Restricted Notes Legend set forth in Exhibit A hereto,
registered in the name of the Depositary or a nominee of the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount at maturity of such Global Notes may
from time to time be increased or decreased by adjustments made on the records
of the Trustee and the Depositary or its nominee as hereinafter provided.
(c) Euroclear and Cedel Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Global Note that are held
by the Holders through Euroclear or Cedel.
(d) Book-Entry Provisions.
This Section 2.01(d) shall apply only to the Global Note and the
Exchange Notes issued in the form of one or more permanent Global Notes
deposited with the Common Depositary, on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(d), authenticate and deliver initially one Global Note that
(a) shall be registered in the name of the Depositary for such Global Note or
the nominee of such Depositary and (b) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions to the Common
Depositary as custodian for the Depositary.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depositary or by the Trustee as the custodian of the
Depositary or under such Global Note, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written
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<PAGE> 23
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the rights of
an owner of a beneficial interest in any Global Note.
(e) Certificated Notes.
In addition to the provisions of Section 2.10, owners of beneficial
interests in Global Notes may, upon request to the Trustee, receive a
certificated Initial Note, which certificated Initial Note shall bear the
Restricted Notes Legend set forth in Exhibit A hereto ("Restricted Notes").
After a transfer of any Initial Notes during the period of the
effectiveness of a Shelf Registration Statement with respect to the Initial
Notes and pursuant thereto, all requirements for Restricted Notes Legends on
such Initial Note will cease to apply, and a certificated Initial Note without a
Restricted Notes Legend will be available to the Holder of such Initial Notes.
Upon the consummation of a Registered Exchange Offer with respect to the Initial
Notes pursuant to which Holders of Initial Notes are offered Exchange Notes in
exchange for their Initial Notes, certificated Initial Notes with the Restricted
Notes Legend set forth in Exhibit A hereto will be available to Holders of such
Initial Notes that do not exchange their Initial Notes, and Exchange Notes in
certificated form without the Restricted Notes Legend set forth in Exhibit A
hereto will be available to Holders that exchange such Initial Notes in such
Registered Exchange Offer.
Section 2.02. Execution and Authentication.
An Officer shall sign the Notes for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that office at
the time the Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of
an authorized officer of the Trustee. The signature shall be conclusive evidence
that the Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by an
Officer, authenticate (1) Initial Notes for original issue up to an aggregate
principal amount at maturity stated in paragraph 6 of the Initial Notes and (2)
Exchange Notes for issue only in a Registered Exchange Offer, pursuant to the
Registration Rights Agreement, in exchange for Initial Notes for a like
principal amount at maturity. The aggregate principal amount at maturity of
Notes outstanding at any time shall not exceed the amount set forth herein,
except as provided in Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. An authenticating agent may authenticate Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with Holders, the Company or an Affiliate.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain in the Borough of Manhattan, City of New York,
State of New York and London, England and, if and as long as the Notes are
listed on the Luxembourg Stock Exchange, in Luxembourg, (i) offices or agencies
where the Notes may be presented for registration of transfer or for
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exchange ("Registrar") and (ii) offices or agencies where the Notes may be
presented for payment ("Paying Agent"). The Company initially designates The
Chase Manhattan Bank (London) at its offices in London to act as principal
Registrar and Paying Agent and the Trustee at its corporate trust offices in New
York, New York and Chase Manhattan Bank Luxembourg S.A. to act as a Registrar
and Paying Agent. The principal Registrar shall keep a register of the Notes and
of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents in such other locations
as it shall determine. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent. The Company may change
any Paying Agent or Registrar without prior notice to any Holder. The Company
shall notify the Trustee of the name and address of any Agent not a party to
this Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Affiliates may act as Paying Agent or Registrar.
Initially, The Chase Manhattan Bank (London) will act as common depositary
(the "Common Depositary") with respect to the Global Note.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal or interest on the Notes, and will notify the Trustee of any default
by the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee
and to account for any money disbursed by it. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or an Affiliate
of the Company) shall have no further liability for the money. If the Company or
an Affiliate of the Company acts as Paying Agent, it shall segregate and hold in
a separate trust fund for the benefit of the Holders all money held by it as
Paying Agent.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee on or before each interest payment date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders.
Section 2.06. Transfer and Exchange.
Where Notes are presented to the Registrar or a co-registrar with a
request to register a transfer or to exchange them for an equal principal amount
at maturity of Notes of other denominations, the Registrar shall register the
transfer or make the exchange if its requirements for such transactions are met.
To permit registrations of transfers and exchanges, the Company shall issue and
the Trustee shall authenticate Notes at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.10, 3.06 or
9.05 hereof).
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The Company shall not be required (i) to issue, register the transfer of
or exchange any Note for a period beginning at the opening of business 15 days
before the day of any selection of Notes to be redeemed under Section 3.02
hereof and ending at the close of business on the day of selection, or (ii) to
register the transfer, or exchange, of any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part.
(a) Notwithstanding any provision to the contrary herein, so long as
a Global Note remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Note, in whole or in part, or of any
beneficial interest therein, shall only be made in accordance with Section
2.01(b) and this Section 2.06(a); provided, however, that beneficial
interests in a Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Global Note in
accordance with the transfer restrictions set forth in the Restricted
Notes Legend and under the heading "Transfer Restrictions" in the
Company's Offering Circular dated April 7, 1999.
(i) Except for transfers or exchanges made in accordance with clause
(ii) of this Section 2.06(a), transfers of a Global Note shall be limited
to transfers of such Global Note in whole, but not in part, to nominees of
the Depositary or to a successor of the Depositary or such successor's
nominee.
(ii) Global Note to Restricted Note. If an owner of a beneficial
interest in a Global Note deposited with the Depositary or with the
Trustee as custodian for the Depositary wishes at any time to transfer its
interest in such Global Note to a Person who is required to take delivery
thereof in the form of a Restricted Note, such owner may, subject to the
rules and procedures of the Depositary, cause the exchange of such
interest for one or more Restricted Notes of any authorized denomination
or denominations and of the same aggregate principal amount at maturity.
Upon receipt by the principal Registrar of (1) instructions from the
Depositary directing the principal Registrar to authenticate and deliver
one or more Restricted Notes of the same aggregate principal amount at
maturity as the beneficial interest in the Global Note to be exchanged,
such instructions to contain the name or names of the designated
transferee or transferees, the authorized denomination or denominations of
the Restricted Notes to be so issued and appropriate delivery
instructions, (2) a certificate in the form of Exhibit C attached hereto
given by the owner of such beneficial interest to the effect set forth
therein, (3) a certificate in the form of Exhibit D attached hereto given
by the Person acquiring the Restricted Notes for which such interest is
being exchanged, to the effect set forth therein, and (4) such other
certifications, legal opinions or other information as the Company may
reasonably require to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act, then the principal Registrar, will
instruct the Depositary to reduce or cause to be reduced such Global Note
by the aggregate principal amount at maturity of the beneficial interest
therein to be exchanged and to debit or cause to be debited from the
account of the Person making such transfer the beneficial interest in the
Global Note that is being transferred, and concurrently with such
reduction and debit the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Restricted Notes of the same
aggregate principal amount at maturity in accordance with the instructions
referred to above.
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(iii) Restricted Note to Restricted Note. If a Holder of a
Restricted Note wishes at any time to transfer such Restricted Note to a
Person who is required to take delivery thereof in the form of a
Restricted Note, such Holder may, subject to the restrictions on transfer
set forth herein and in such Restricted Note, cause the exchange of such
Restricted Note for one or more Restricted Notes of any authorized
denomination or denominations and of the same aggregate principal amount
at maturity. Upon receipt by the principal Registrar of (1) such
Restricted Note, duly endorsed as provided herein, (2) instructions from
such Holder directing the principal Registrar to authenticate and deliver
one or more Restricted Notes of the same aggregate principal amount at
maturity as the Restricted Note to be exchanged, such instructions to
contain the name or authorized denomination or denominations of the
Restricted Notes to be so issued and appropriate delivery instructions,
(3) a certificate from the Holder of the Restricted Note to be exchanged
in the form of Exhibit C attached hereto, (4) a certificate in the form of
Exhibit D attached hereto given by the Person acquiring the Restricted
Notes for which such interest is being exchanged, to the effect set forth
therein, and (5) such other certifications, legal opinions or other
information as the Company may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act, then
the Registrar shall cancel or cause to be canceled such Restricted Note
and concurrently therewith, the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Restricted Notes of the same
aggregate principal amount at maturity, in accordance with the
instructions referred to above.
(iv) Other Exchanges. In the event that a beneficial interest in a
Global Note is exchanged for Notes in definitive registered form pursuant
to Section 2.10, prior to the effectiveness of a Shelf Registration
Statement with respect to such Notes, such Notes may be exchanged only in
accordance with such procedures as are substantially consistent with the
provisions of clauses (ii) and (iii) above (including the certification
requirements intended to ensure that such transfers comply with Rule 144A,
Rule 144, Regulation S or any other available exemption from registration,
as the case may be) and such other procedures as may from time to time be
adopted by the Company.
(v) Distribution Compliance Period. Prior to the termination of the
"distribution compliance period" (as defined in Regulation S) with respect
to the issuance of the Notes, transfers of interests in the Global Note to
"U.S. Persons" (as defined in Regulation S) shall be limited to transfers
to QIBs. The Company shall advise the Trustee as to the termination of the
distribution compliance period and the Trustee may rely conclusively
thereon.
(b) Except in connection with a Registered Exchange Offer or a Shelf
Registration Statement contemplated by and in accordance with the terms of
the Registration Rights Agreement, if Initial Notes are issued upon the
transfer, exchange or replacement of Initial Notes bearing the Restricted
Securities Legend set forth in Exhibit A hereto, or if a request is made
to remove such Restricted Notes Legend on Initial Notes, the Initial Notes
so issued shall bear the Restricted Notes Legend, or the Restricted Notes
Legend shall not be removed, as the case may be, unless there is delivered
to the Company such satisfactory evidence, which may include an opinion of
counsel licensed to practice law in the State of New York, as may be
reasonably required by the Company, that neither the legend nor the
restrictions on transfer set forth therein
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are required to ensure that transfers thereof comply with the provisions
of Rule 144A, Rule 144, Regulation S or any other available exemption from
registration under the Securities Act or, with respect to Restricted
Notes, that such Notes are not "restricted" within the meaning of Rule 144
under the Securities Act. Upon provision of such satisfactory evidence,
the Trustee, at the direction of the Company, shall authenticate and
deliver Initial Notes that do not bear the legend.
(c) Neither the Company nor the Trustee shall have any
responsibility for any actions taken or not taken by the Depositary and
the Company shall have no responsibility for any actions taken or not
taken by the Trustee as agent or custodian of the Depositary.
Section 2.07. Replacement Notes.
If the Holder of a Note claims that the Note has been lost, destroyed or
wrongfully taken or if such Note is mutilated and is surrendered to the Trustee,
the Company shall issue and the Trustee shall authenticate a replacement Note if
the Trustee's and the Company's requirements are met. If required by the Trustee
or the Company, an indemnity bond must be sufficient in the judgment of both to
protect the Company, the Trustee, any Agent or any authenticating agent from any
loss which any of them may suffer if a Note is replaced. The Company may charge
for its expenses in replacing a Note.
In case any such mutilated, destroyed, lost or stolen Note has become or
is about to become due and payable, or is about to be purchased by the Company
pursuant to Article III hereof, the Company in its discretion may, instead of
issuing a new Note, pay or purchase such Note, as the case may be.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
and those described in this Section as not outstanding.
If a Note is replaced, paid or purchased pursuant to Section 2.07 hereof,
it ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced, paid or purchased Note is held by a bona fide purchaser.
If the principal amount or Accreted Value, as applicable, of any Note is
considered paid under Section 4.01 hereof, such Note ceases to be outstanding
and interest on it ceases to accrue (or, if before October 1, 2003, the Accreted
Value of such Note ceases to increase).
Except as set forth in Section 2.09 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount at
maturity of Notes have concurred in any direction, waiver or consent, Notes
owned by the Company or an Affiliate of the Company shall be considered as
though they are not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent,
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only Notes that the Trustee knows are so owned shall be so disregarded.
Section 2.10. Temporary Notes; Global Notes.
(a) Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary
Notes shall be substantially in the form of definitive Notes but may have
variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
(b) A Global Note deposited with the Depositary or with the Trustee
as custodian for the Depositary pursuant to Section 2.01 shall be
transferred to the beneficial owners thereof in the form of certificated
Notes only in accordance with Section 2.01(d) or if such transfer complies
with Section 2.06 and (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Note or if
at any time such Depositary ceases to be a "clearing agency" registered
under the Exchange Act and a successor depositary is not appointed by the
Company within 90 days of such notice, or (ii) an Event of Default has
occurred and is continuing.
(c) Any Global Note that is transferable to the beneficial owners
thereof in the form of certificated Notes pursuant to Section 2.01(d) or
to this Section 2.10 shall be surrendered by the Depositary to the Trustee
to be so transferred, in whole or from time to time in part, without
charge, and the Trustee shall authenticate and deliver, upon such transfer
of each portion of such Global Note, an equal aggregate principal amount
at maturity of Initial Notes of authorized denominations in the form of
certificated Notes. Any portion of a Global Note transferred pursuant to
this Section shall be executed, authenticated and delivered only in
denominations of (pound)1,000 and any integral multiple thereof and
registered in such names as the Depositary shall direct. Any Initial Note
in the form of certificated Notes delivered in exchange for an interest in
the Global Notes shall, except as otherwise provided by Section 2.06(b)
bear the Restricted Notes Legend set forth in Exhibit A hereto.
(d) The registered Holder of a Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that
may hold interests through Agent Members, to take any action which a
Holder is entitled to take under this Indenture or the Notes.
(e) In the event of the occurrence of either of the events specified
in Section 2.10(b), the Company will promptly make available to the
Trustee a reasonable supply of certificated Notes in definitive, fully
registered form without interest coupons.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee shall promptly cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall dispose of
canceled Notes as the Company directs. The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.
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Section 2.12. Defaulted Interest.
If the Company fails to make a payment of interest on the Notes, it shall
pay such defaulted interest plus any interest payable on the defaulted interest,
in any lawful manner. It may pay such defaulted interest, plus any such interest
payable on it, to the Persons who are Holders on a subsequent special record
date. The Company shall fix any such record date and payment date, provided that
no such record date shall be less than 10 days prior to the related payment date
for such defaulted interest. At least 15 days before any such record date, the
Company shall mail to Holders a notice that states the special record date, the
related payment date and amount of such interest to be paid.
ARTICLE III.
REDEMPTION
Section 3.01. Notices To Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of the Notes and Section 3.07 hereof or pursuant to the Optional Tax
Redemption provision of the Notes (Section 8 of the Initial Notes and Section 7
of the Exchange Notes), it shall notify the Trustee of the redemption date and
the principal amount at maturity of Notes to be redeemed, and in connection with
an Optional Tax Redemption as provided in the Notes, such notice shall be
accompanied by an Officer's Certificate to the effect that the conditions to
such redemption contained herein have been complied with. The Company shall give
each notice provided for in this Section 3.01 at least 50 days before the
redemption date (unless a shorter notice period shall be satisfactory to the
Trustee).
Section 3.02. Selection of Notes to be Redeemed.
If less than all of the Notes are to be redeemed at any time, selection of
Notes shall be made by the Trustee on a pro rata basis or by lot or by method
that complies with the requirements of any exchange on which the Notes are
listed and that the Trustee considers fair and appropriate, provided that no
Notes of (pounds)1,000 or less at maturity shall be redeemed in part. The
Trustee shall make the selection not more than 60 days and not less than 30 days
before the redemption date from Notes outstanding not previously called for
redemption. Notes and portions of Notes selected shall be in amounts of
(pounds)1,000 or integral multiples of (pounds)1,000. Provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption. The Trustee shall notify the Company promptly of
the Notes or portions of Notes to be called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail, by first class mail, a notice of redemption to each Holder
whose Notes are to be redeemed at its registered address. The notice shall
identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is to be redeemed in part only, the portion of the
principal amount at maturity thereof redeemed, and that, after the
redemption date, upon surrender of such Note, a
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new Note in principal amount at maturity equal to the unredeemed portion
thereof shall be issued in the name of the Holder thereof upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price plus accrued interest, if
any;
(f) that interest on Notes called for redemption ceases to accrue on
and after the redemption date (or, in the case of redemption prior to
April 15, 2004, the Accreted Value will cease to increase after the
redemption date); and
(g) the paragraph of the Notes pursuant to which the Notes called
for redemption are being redeemed.
At the Company's request, the Trustee shall give notice of redemption in
the Company's name and at its expense; provided that the Company shall have
delivered to the Trustee, at least 45 days prior to the redemption date, an
Officer's Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice, as provided in the preceding
paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become due and payable on the redemption
date at the price set forth in the Note. A notice of redemption may not be
conditional.
Section 3.05. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price of
and accrued interest, if any, on all Notes to be redeemed on that date. The
Trustee or the Paying Agent shall return to the Company any money not required
for that purpose.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall issue
and the Trustee shall authenticate for the Holder at the expense of the Company
a new Note equal in principal amount at maturity to the unredeemed portion of
the Note surrendered.
Section 3.07. Optional Redemption and Optional Tax Redemption.
The Company may redeem all or any portion of the Notes, upon the terms and
at the redemption prices set forth in each of the Notes. The Company may also
redeem all of the Notes in accordance with the Optional Tax Redemption provision
of the Notes (Section 8 of the Initial Notes and Section 7 of the Exchange
Notes). Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption
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The Company shall not be required to make mandatory redemption payments
with respect to the Notes.
Section 3.09. Asset Sale Offer and Purchase Offer.
(a) In the event that the Company shall commence an offer to all
Holders of the Notes to purchase Notes pursuant to Section 4.10 hereof
(the "Asset Sale Offer") or pursuant to Section 4.13 hereof (the "Purchase
Offer"), the Company shall follow the procedures in this Section 3.09.
(b) The Asset Sale Offer or the Purchase Offer, as the case may be,
shall remain open for a period specified by the Company which shall be no
less than 30 calendar days and no more than 40 calendar days following its
commencement (the "Commencement Date") (as determined in accordance with
Section 4.10 or 4.13 hereof, as the case may be), except to the extent
that a longer period is required by applicable law (the "Tender Period").
Upon the expiration of the Tender Period (the "Purchase Date"), the
Company shall purchase the Accreted Value (if prior to April 15, 2004) or
principal amount (if on or after April 15, 2004) of Notes required to be
purchased pursuant to Section 4.10 or 4.13 hereof (the "Offer Amount") or,
if less than the Offer Amount has been tendered, all Notes tendered in
response to the Asset Sale Offer or the Purchase Offer, as the case may
be.
(c) If the Purchase Date is (i) on or after April 15, 2004, (ii) on
or after an interest payment record date and (iii) on or before the
related interest payment date, any accrued interest shall be paid to the
Person in whose name a Note is registered at the close of business on such
record date, and no additional interest will be payable to Holders who
tender Notes pursuant to the Asset Sale Offer or the Purchase Offer, as
the case may be.
(d) The Company shall provide the Trustee with notice of the Asset
Sale Offer or the Purchase Offer, as the case may be, at least 10 days
before the Commencement Date.
(e) On or before the Commencement Date, the Company or the Trustee
(at the expense of the Company) shall send, by first class mail, a notice
to each of the Holders, which shall govern the terms of the Asset Sale
Offer or the Purchase Offer and shall state:
(i) that the Asset Sale Offer or the Purchase Offer is being made
pursuant to this Section 3.09 and, as applicable, Section 4.10 or 4.13
hereof and the length of time the Asset Sale Offer or the Purchase Offer
will remain open;
(ii) the Offer Amount, the purchase price (as determined in
accordance with Section 4.10 or 4.13 hereof) and the Purchase Date, and in
the case of a Purchase Offer made pursuant to Section 4.13 hereof, that
all Notes tendered will be accepted for payment;
(iii) that any Note or portion thereof not tendered or accepted for
payment will continue to accrue interest (or, if applicable, that the
Accreted Value of any Note or portion thereof not tendered or accepted for
payment will continue to increase as provided in such Notes);
(iv) that, unless the Company defaults in the payment of the
purchase price,
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any Note or portion thereof accepted for payment pursuant to the Asset
Sale Offer or the Purchase Offer will cease to accrue interest after the
Purchase Date (or, if applicable, the Accreted Value of any Note or
portion thereof accepted for payment pursuant to the Asset Sale Offer or
Purchase Offer will cease to increase after the Purchase Date as provided
in such Notes);
(v) that Holders electing to have a Note or portion thereof
purchased pursuant to any Asset Sale Offer or Purchase Offer will be
required to surrender the Note, with the form entitled "Option of Holder
to Elect Purchase" on the reverse of the Note completed, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice prior to the close of business on the third
Business Day preceding the Purchase Date;
(vi) that Holders will be entitled to withdraw their election if the
Company, depositary or Paying Agent, as the case may be, receives, not
later than the close of business on the second Business Day preceding the
Purchase Date, or such longer period as may be required by law, a letter
or a telegram, telex or facsimile transmission (receipt of which is
confirmed and promptly followed by a letter) setting forth the name of the
Holder, the principal amount at maturity of the Note or portion thereof
the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have the Note or portion thereof purchased;
(vii) that, in the event of an Asset Sale Offer, if the aggregate
principal amount at maturity of Notes surrendered by Holders exceeds the
Offer Amount, the Trustee will select the Notes to be purchased pro rata
or by a method that complies with the requirements of any exchange on
which the Notes are listed and that the Trustee considers fair and
appropriate with such adjustments as may be deemed appropriate by the
Company so that only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased; and
(viii) that Holders whose Notes were purchased only in part will be
issued new Notes equal in principal amount at maturity to the unpurchased
portion of the Notes surrendered.
In addition, the notice shall, to the extent permitted by applicable law,
be accompanied by a copy of the information regarding the Company and its
Subsidiaries which is required to be contained in the most recent Quarterly
Report on Form 10-Q or Annual Report on Form 10-K (including any financial
statements or other information required to be included or incorporated by
reference therein) and any Reports on Form 8-K filed since the date of such
Quarterly Report or Annual Report (or would have been required to file if the
Company remained a company incorporated in the United States), as the case may
be, which the Company has filed (or would have been required to file if it
remained a company incorporated in the United States) with the SEC on or prior
to the date of the notice. The notice shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the Asset
Sale Offer or the Purchase Offer, as the case may be.
(f) At least one Business Day prior to the Purchase Date, the
Company shall irrevocably deposit with the Trustee or a Paying Agent in
immediately available funds an amount equal to the Offer Amount to be held
for payment in accordance with the terms of this Section.
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On the Purchase Date, the Company shall, to the extent lawful, (i) accept
for payment the Notes or portions thereof tendered pursuant to the Asset
Sale Offer or the Purchase Offer, (ii) deliver or cause the depositary or
Paying Agent to deliver to the Trustee Notes so accepted and (iii) deliver
to the Trustee an Officer's Certificate stating such Notes or portions
thereof have been accepted for payment by the Company in accordance with
the terms of this Section 3.09. The depositary, the Paying Agent or the
Company, as the case may be, shall promptly (but in any case not later
than ten (10) calendar days after the Purchase Date) mail or deliver to
each tendering Holder an amount equal to the purchase price of the Notes
tendered by such Holder and accepted by the Company for purchase, and the
Trustee shall promptly authenticate and mail or deliver to such Holders a
new Note equal in principal amount at maturity at maturity to any
unpurchased portion of the Note surrendered. Any Notes not so accepted
shall be promptly mailed or delivered by or on behalf of the Company to
the Holder thereof. The Company will publicly announce in a newspaper of
general circulation the results of the Asset Sale Offer or the Purchase
Offer on the Purchase Date.
(g) For the purposes of calculating the allocation of available
Excess Proceeds to the Notes and each issue of Other Qualified Notes on a
pro rata basis according to accreted value or principal amount, as the
case may be, the relevant principal amount or the accreted value, as the
case may be, of any Other Qualified Notes denominated in a currency other
than United States dollars will be notionally converted into United States
dollars from the currency such Other Qualified Notes are denominated in
(the "Base Currency");
(i) in the case of determining the maximum principal amount or
accreted value of Notes and Other Qualified Notes that may be
purchased out of the Excess Proceeds, at the noon buying rate
in the City of New York as certified for customs purposes by
the Federal Reserve Bank of New York for cable transfers in
the Base Currency (the "Noon Buying Rate") on the Business Day
which is 10 Business Days prior to the Commencement Date; and
(ii) in the case of determining the allocation of the remaining
Excess Proceeds if the aggregate principal amount or accreted
value, as the case may be, of Notes and Other Qualified Notes
surrendered by holders in the Asset Sale Offer exceeds the
remaining amount of Excess Proceeds, at the Noon Buying Rate
on the second Business Day preceding the Purchase Date.
(h) The Asset Sale Offer or the Purchase Offer shall be made by the
Company in compliance with all applicable provisions of the Exchange Act,
and all applicable tender offer rules promulgated thereunder, and shall
include all instructions and materials necessary to enable such Holders to
tender their Notes.
ARTICLE IV.
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay the principal of, premium, if any, and interest on,
the Notes on the dates
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and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent (other
than the Company or an Affiliate of the Company) holds on that date money
designated for and sufficient to pay all principal and interest then due. To the
extent lawful, the Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on (i) the overdue Accreted Value of
the Notes, if prior to April 15, 2004, or the overdue principal and premium, if
any, if on or after April 15, 2004, at the rate borne by the Notes, compounded
semiannually; and (ii) overdue installments of interest (without regard to any
applicable grace period) at the same rate, compounded semiannually.
Section 4.02. Reports.
Whether or not required by the rules and regulations of the SEC, so long
as any Notes are outstanding, the Company shall file with the SEC and furnish to
the Trustee and to the Holders of Notes, all quarterly and annual financial
information required to be contained in a filing with the SEC on Forms 10-Q and
10-K (or the equivalent thereof under the Exchange Act for foreign private
issuers in the event the Company becomes a corporation organized under the laws
of the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the
Cayman Islands), including a "Management's Discussion and Analysis of Results of
Operations and Financial Condition" and, with respect to the annual information
only, a report thereon by the Company's certified independent accountants, in
each case, in the form required by the rules and regulations of the SEC as in
effect on the Issuance Date. This Section 4.02 will apply notwithstanding that
the Company becomes a corporation organized under the laws of the United
Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman
Islands.
Section 4.03. Compliance Certificate.
The Company shall deliver to the Trustee, within 90 days after the end of
each fiscal year of the Company, an Officer's Certificate stating that a review
of the activities of the Company and its subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under, and complied with the covenants and conditions
contained in, this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his knowledge the Company has
kept, observed, performed and fulfilled each and every covenant, and complied
with the covenants and conditions contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he may have
knowledge) and that to the best of his knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal or
of interest, if any, on the Notes are prohibited.
One of the Officers signing such Officer's Certificate shall be either the
Company's principal executive officer, principal financial officer or principal
accounting officer.
The Company will so long as any of the Notes are outstanding, deliver to
the Trustee, forthwith upon becoming aware of any Default or Event of Default an
Officer's Certificate specifying such Default or Event of Default.
Immediately upon the occurrence of any event giving rise to the accrual of
Special Interest (as such term is defined in Exhibit A hereto) or the cessation
of such accrual, the Company shall give the Trustee notice thereof and of the
event giving rise to such accrual or cessation (such notice to be
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contained in an Officer's Certificate) and prior to receipt of such Officer's
Certificate the Trustee shall be entitled to assume that no such accrual has
commenced or ceased, as the case may be.
Section 4.04. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
Section 4.05. Corporate Existence.
Subject to Article V hereof, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each subsidiary
of the Company in accordance with the respective organizational documents of
each subsidiary and the rights (charter and statutory), licenses and franchises
of the Company and its subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any subsidiary, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its subsidiaries taken as a
whole and that the loss thereof is not adverse in any material respect to the
Holders. The Company shall notify the Trustee in writing of any subsidiary which
qualifies as a Material Subsidiary and is not specified in clause (i) of the
definition thereof.
Section 4.06. Taxes.
The Company shall, and shall cause each of its subsidiaries to, pay prior
to delinquency all taxes, assessments and governmental levies, except as
contested in good faith and by appropriate proceedings.
Section 4.07. Limitations on Liens.
Neither the Company nor any of its Restricted Subsidiaries may, directly
or indirectly create, incur, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired, or any income or profits therefrom or assign or
convey any right to receive income therefrom, except:
(a) Permitted Liens;
(b) Liens securing Indebtedness and related obligations to the
extent such Indebtedness and related obligations are permitted under
Sections 4.08(b)(i), (iii), (iv), (v), (viii), (ix) and (xi) hereof;
(c) Liens on the assets acquired or leased with the proceeds of
Indebtedness permitted to be incurred under Section 4.08 hereof; and
(d) Liens securing Refinancing Indebtedness permitted to be incurred
under Section 4.08 hereof; provided that the Refinancing Indebtedness so
issued and secured by such Lien shall not be secured by any property or
assets of the Company or any of its Restricted Subsidiaries
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other than the property or assets subject to the Liens securing such
Indebtedness being refinanced.
Section 4.08. Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guaranty or otherwise become directly or indirectly liable with
respect to (collectively, "incur") any Indebtedness (including Acquired
Debt) and the Company shall not issue any Disqualified Stock and shall not
permit any of its Restricted Subsidiaries to issue any shares of preferred
stock that is Disqualified Stock; provided, however, that the Company may
incur Indebtedness or issue shares of Disqualified Stock and any of its
Restricted Subsidiaries may issue shares of preferred stock that is
Disqualified Stock if after giving effect to such issuance or incurrence
on a pro forma basis, the sum of (x) Indebtedness of the Company and its
Restricted Subsidiaries, on a consolidated basis, (y) the liquidation
value of outstanding preferred stock of Restricted Subsidiaries and (z)
the aggregate amount payable by the Company and its Restricted
Subsidiaries, on a consolidated basis, upon redemption of Disqualified
Stock to the extent such amount is not included in the preceding clause
(y) shall be less than the product of Annualized Pro Forma EBITDA for the
latest fiscal quarter for which internal financial statements are
available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock or preferred stock is
issued multiplied by 7.0, determined on a pro forma basis (including a pro
forma application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred, or the Disqualified Stock or preferred
stock had been issued, as the case may be, at the beginning of such
quarter.
(b) The foregoing limitations in Section 4.08(a) shall not apply to:
(i) the incurrence by the Company or any Restricted Subsidiary of
Indebtedness pursuant to the Credit Facility;
(ii) the issuance by any Restricted Subsidiary of preferred stock
(other than Disqualified Stock) to the Company, any Restricted Subsidiary
of the Company or the holders of Equity Interests in any Restricted
Subsidiary on a pro rata basis to such holders;
(iii) the incurrence of Indebtedness or the issuance of preferred
stock by the Company or any of its Restricted Subsidiaries the proceeds of
which are (or the credit support provided by any such Indebtedness is), in
each case, used to finance the construction, capital expenditure and
working capital needs of a Cable Business (including, without limitation,
payments made pursuant to any License), the acquisition of Cable Assets or
the Capital Stock of a Qualified Subsidiary;
(iv) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount
not to exceed $50 million;
(v) the incurrence by the Company or any Restricted Subsidiary of
any Permitted Acquired Debt;
(vi) the incurrence by the Company or any Subsidiary of Indebtedness
issued
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in exchange for, or the proceeds of which are used to extend, refinance,
renew, replace, or refund the Notes, Existing Indebtedness or Indebtedness
referred to in clauses (i), (ii), (iii), (iv) or (v) above or Indebtedness
incurred pursuant to Section 4.08(a) hereof (the "Refinancing
Indebtedness"); provided, however, that (1) the principal amount of, and
any premium payable in respect of, such Refinancing Indebtedness shall not
exceed the principal amount of Indebtedness so extended, refinanced,
renewed, replaced or refunded (plus the amount of reasonable expenses
incurred in connection therewith); (2) the Refinancing Indebtedness shall
have (A) a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, and (B) a stated maturity no earlier
than the stated maturity of, the Indebtedness being extended, refinanced,
renewed, replaced or refunded; and (3) the Refinancing Indebtedness shall
be subordinated in right of payment to the Notes as and to the extent of
the Indebtedness being extended, refinanced, renewed, replaced or
refunded;
(vii) the issuance of the Preferred Stock in lieu of payment of cash
interest on the Subordinated Debentures or the incurrence by the Company
of Indebtedness represented by the Subordinated Debentures upon the
exchange of the Preferred Stock in accordance with the Certificate of
Designations therefor;
(viii) Indebtedness under Exchange Rate Contracts, provided that
such Exchange Rate Contracts are related to payment obligations under
Existing Indebtedness or Indebtedness incurred under Section 4.08(a) or
(b) hereof that are being hedged thereby, and not for speculation and that
the aggregate notional amount under each such Exchange Rate Contract does
not exceed the aggregate payment obligations under such Indebtedness;
(ix) Indebtedness under Interest Rate Agreements, provided that the
obligations under such agreements are related to payment obligations on
Existing Indebtedness or Indebtedness otherwise incurred pursuant to
Section 4.08(a) or (b) hereof, and not for speculation;
(x) the incurrence of Indebtedness between the Company and any
Restricted Subsidiary, between or among Restricted Subsidiaries and
between any Restricted Subsidiary and other holders of Equity Interests of
such Restricted Subsidiary (or other Persons providing funding on their
behalf) on a pro rata basis and on substantially identical principal
financial terms; provided, however, that if any such Restricted Subsidiary
that is the payee of any such Indebtedness ceases to be a Restricted
Subsidiary or transfers such Indebtedness (other than to the Company or a
Restricted Subsidiary of the Company), such events shall be deemed, in
each case, to constitute the incurrence of such Indebtedness by the
Company or by a Restricted Subsidiary, as the case may be, at the time of
such event; and
(xi) Indebtedness of the Company and/or any Restricted Subsidiary in
respect of performance bonds of the Company or any Subsidiary or surety
bonds provided by the Company or any Restricted Subsidiary received in the
ordinary course of business in connection with the construction or
operation of a Cable Business.
(c) Any redesignation of a Non-Restricted Subsidiary as a Restricted
Subsidiary shall
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be deemed for purposes of this Section 4.08 to be an incurrence of
Indebtedness by the Company and its Restricted Subsidiaries of the
Indebtedness of such Non-Restricted Subsidiary as of the time of such
redesignation to the extent such Indebtedness does not already constitute
Indebtedness of the Company or one of its Restricted Subsidiaries.
Section 4.09. Restricted Payments.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any distribution on account
of the Company's or any of its Restricted Subsidiaries' Equity Interests
(other than (x) dividends or distributions payable in Equity Interests
(other than Disqualified Stock) of the Company or such Restricted
Subsidiary, (y) dividends or distributions payable to the Company or any
Wholly Owned Subsidiary of the Company, or (z) pro rata dividends or pro
rata distributions payable by a Restricted Subsidiary);
(ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company (other than any such Equity Interests
owned by the Company or any Wholly Owned Subsidiary of the Company);
(iii) voluntarily purchase, redeem or otherwise acquire or retire
for value any Indebtedness that is subordinated to the Notes; or
(iv) make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iv) above being collectively
referred to as "Restricted Payments"), unless, at the time of such
Restricted Payment:
(1) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(2) such Restricted Payment, together with the aggregate of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the Issuance Date (including Restricted Payments
permitted by clauses (ii) through (x) of Section 4.09(b)), is less than
the sum of (x) the difference between Cumulative EBITDA and 1.5 times
Cumulative Interest Expense plus (y) Capital Stock Sale Proceeds plus (z)
cash received by the Company or a Restricted Subsidiary from a
Non-Restricted Subsidiary (other than cash which is or is required to be
repaid or returned to such Non-Restricted Subsidiary); provided, however,
that to the extent that any Restricted Investment that was made after the
date of this Indenture is sold for cash or otherwise liquidated or repaid
for cash, the amount credited pursuant to this clause (z) shall be the
lesser of (A) the cash received with respect to such sale, liquidation or
repayment of such Restricted Investment (less the cost of such sale,
liquidation or repayment, if any) and (B) the initial amount of such
Restricted Investment, in each case as determined in good faith by the
Company's Board of Directors.
(b) The foregoing provisions in Section 4.09(a) shall not prohibit:
(i) the payment of any dividend within 60 days after the date of
declaration
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thereof, if at said date of declaration such payment would have complied
with the provisions of this Indenture;
(ii) (x) the redemption, repurchase, retirement or other acquisition
of any Equity Interests of the Company or any Restricted Subsidiary or (y)
an Investment in any Person, in each case, in exchange for, or out of the
proceeds of, the substantially concurrent sale (other than to a Restricted
Subsidiary of the Company) of other Equity Interests (other than any
Disqualified Stock) of the Company, provided that the Company delivers to
the Trustee:
(1) with respect to any transaction involving in excess of $1
million, a resolution of the Board of Directors set forth in an Officer's
Certificate certifying that such transaction is approved by a majority of
the directors on the Board of Directors; and
(2) with respect to any transaction involving in excess of $25
million, an opinion as to the fairness to the Company or such Restricted
Subsidiary from a financial point of view issued by an investment banking
firm of national standing with high yield experience, together with an
Officer's Certificate to the effect that such opinion complies with this
clause (2), provided that the amount of such proceeds from the sale of
such Equity Interests shall be excluded in each case from Capital Stock
Sale Proceeds for purposes of clause (a)(iv)(2)(y), above;
(iii) Investments by the Company or any Restricted Subsidiary in a
Non-Controlled Subsidiary which (A) has no Indebtedness on a consolidated
basis other than Indebtedness incurred to finance the purchase of
equipment used in a Cable Business, (B) has no restrictions (other than
restrictions imposed or permitted by this Indenture or the indentures
governing the Other Qualified Notes or any other instrument governing
unsecured indebtedness of the Company which is pari passu with the Notes)
on its ability to pay dividends or make any other distributions to the
Company or any of its Restricted Subsidiaries, (C) is or will be a Cable
Business and (D) uses the proceeds of such Investment for constructing a
Cable Business or the working capital needs of a Cable Business;
(iv) the redemption, purchase, defeasance, acquisition or retirement
of Indebtedness that is subordinated to the Notes (including premium, if
any, and accrued and unpaid interest) made by exchange for, or out of the
proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary of the Company) of (A) Equity Interests of the Company,
provided that the amount of such proceeds from the sale of such Equity
Interests shall be excluded in each case from Capital Stock Sale Proceeds
for purposes of clause (a)(iv)(2)(y) above or (B) Refinancing Indebtedness
permitted to be incurred under Section 4.08 hereof;
(v) Investments by the Company or any Restricted Subsidiary in a
Non-Controlled Subsidiary which is or will be a Cable Business in an
amount not to exceed $80 million in the aggregate plus the sum of (x) cash
received by the Company or a Restricted Subsidiary from a Non-Restricted
Subsidiary (other than cash which s or is required to be repaid or
returned to such Non-Restricted Subsidiary) and (y) Capital Stock Sale
Proceeds (excluding the aggregate net sale proceeds to be received upon
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conversion of the Convertible Subordinated Notes), provided that the
amount of such proceeds from the sale of such Equity Interests shall be
excluded in each case from the Capital Stock Sale Proceeds for purposes of
clause (a)(iv)(2)(y) above;
(vi) Investments by the Company or any Restricted Subsidiary in
Permitted Non-Controlled Assets;
(vii) Investments by the Company or any Restricted Subsidiary in SDN
Limited, a joint venture organized to operate a digital terrestial
television multiplex, in an amount not exceeding (pounds)11.4 million.
(viii) the extension by the Company or any Restricted Subsidiary of
trade credit to a Non-Restricted Subsidiary extended on usual and
customary terms in the ordinary course of business, provided that the
aggregate amount of such trade credit shall not exceed $25 million at any
one time;
(ix) the payment of cash dividends on the Preferred Stock accruing
on or after February 15, 2004 or any mandatory redemption or repurchase of
the Preferred Stock, in each case, in accordance with the Certificate of
Designations therefor; and
(x) the exchange of all of the outstanding shares of Preferred Stock
for Subordinated Debentures in accordance with the Certificate of
Designations for the Preferred Stock.
(c) Any Investment in a Subsidiary (other than the issuance,
transfer or other conveyance of Equity Interests of the Company (or any
Capital Stock Sale Proceeds therefrom)) that is designated by the Board of
Directors as a Non-Restricted Subsidiary shall become a Restricted Payment
made on the date of such designation in the amount of the greater of (x)
the book value of such Subsidiary on the date such Subsidiary becomes a
Non-Restricted Subsidiary and (y) the fair market value of such Subsidiary
on such date as determined (A) in good faith by the Board of Directors of
such Subsidiary if such fair market value is determined to be less than
$25 million and (B) by an investment banking firm of national standing
with high yield underwriting expertise if such fair market value is
determined to be in excess of $25 million.
(d) Not later than the fifth Business Day after making any
Restricted Payment (other than those referred to in sub-clause (viii) of
Section 4.09(b)), the Company shall deliver to the Trustee an Officer's
Certificate stating that such Restricted Payment is permitted and setting
forth the basis upon which the calculations required by this Section 4.09
were computed, which calculations may be based upon the Company's latest
available financial statements.
Section 4.10. Asset Sales.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to cause, make or suffer to exist any Asset Sale, unless:
(i) no Default exists or is continuing immediately prior to and
after giving effect to such Asset Sale;
(ii) the Company (or the Restricted Subsidiary, as the case may be)
receives
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consideration at the time of such Asset Sale at least equal to the fair
market value (evidenced for purposes of this Section 4.10 by a resolution
of the Board of Directors set forth in an Officer's Certificate delivered
to the Trustee) of the assets sold or otherwise disposed of; and
(iii) at least 80% of the consideration therefor received by the
Company or such Restricted Subsidiary is in the form of (w) Cash
Equivalents, (x) Replacement Assets, (y) publicly traded Equity Interests
of a Person who is, directly or indirectly, engaged primarily in one or
more Cable Businesses; provided, however, that the Company or such
Restricted Subsidiary shall Monetize such Equity Interests by sale to one
or more Persons (other than to the Company or a Subsidiary thereof) at a
price not less than the fair market value thereof within 180 days of the
consummation of such Asset Sale, or (z) any combination of the foregoing
clauses (w) through (y); provided, however, that the amount of (x) any
liabilities (as shown on the Company's or such Restricted Subsidiary's
most recent balance sheet or in the notes thereto) of the Company or any
Restricted Subsidiary (other than liabilities that are by their terms
subordinated to the Notes) that are assumed by the transferee of any such
assets and (y) any notes or other obligations received by the Company or
any such Restricted Subsidiary from such transferee that are within five
Business Days converted by the Company or such Restricted Subsidiary into
cash, shall be deemed to be Cash Equivalents (to the extent of the Cash
Equivalents received in such conversion) for purposes of this clause
(iii).
(b) Within 360 days after any Asset Sale, the Company (or the
Restricted Subsidiary, as the case may be) shall cause the Net Proceeds
from such Asset Sale:
(i) to be used to permanently reduce Indebtedness of a Restricted
Subsidiary; or
(ii) to be invested or reinvested in Replacement Assets.
Pending final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture or the
indentures for the Other Qualified Notes.
Any Net Proceeds from any Asset Sale that are not used or reinvested
as provided in the preceding sentence constitute "Excess Proceeds." When the
aggregate amount of Excess Proceeds exceeds $15 million, the Company shall make
an offer (an "Asset Sale Offer") to all holders of Notes and Other Qualified
Notes to purchase the maximum principal amount of Notes and Other Qualified
Notes (determined on a pro rata basis according to the accreted value or
principal amount, as the case may be, of the Notes and the Other Qualified Notes
and in accordance with Section 3.09(g)(i)) that may be purchased out of the
Excess Proceeds (x) with respect to the Other Qualified Notes, based on the
terms set forth in the indenture related to each issue of the Other Qualified
Notes and (y) with respect to the Notes, at an offer price in cash in an amount
equal to 100% of the outstanding principal amount thereof plus accrued and
unpaid interest, if any, to the date fixed for the closing of such offer (or, in
the case of repurchases of Notes prior to April 15, 2004, at a purchase price
equal to 100% of the Accreted Value thereof as of the date fixed for the closing
of such offer), in accordance with the procedures set forth in Section 3.09
hereof. To the extent that the aggregate principal amount or accreted value, as
the case may be, of Notes and Other Qualified Notes tendered pursuant to an
Asset Sale Offer is less than the Excess
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Proceeds, the Company may use such deficiency for general corporate purposes. If
the aggregate principal amount or accreted value, as the case may be, of Notes
and Other Qualified Notes surrendered by holders thereof exceeds the amount of
Excess Proceeds, then such remaining Excess Proceeds shall be allocated pro rata
according to accreted value or principal amount, as the case may be, to the
Notes and each issue of the Other Qualified Notes and in accordance with Section
3.09(g)(ii), and the Trustee shall select the Notes to be purchased from the
amount allocated to the Notes on the basis set forth in Section 3.09(e) hereof.
Upon completion of such offers to purchase each of the Notes and the Other
Qualified Notes, the amount of Excess Proceeds will be reset at zero.
(c) Notwithstanding the provisions of Sections 4.10(a) and (b): the
Company and its Subsidiaries may:
(i) sell, lease, transfer, convey or otherwise dispose of assets or
property acquired after October 14, 1993, by the Company or any Subsidiary
in a sale-and-leaseback transaction so long as the proceeds of such sale
are applied within five Business Days to permanently reduce Indebtedness
of a Restricted Subsidiary or if there is no such Indebtedness or such
proceeds exceed the amount of such Indebtedness then such proceeds or
excess proceeds are reinvested in a Replacement Assets within 360 days
after such sale, lease, transfer, conveyance or disposition;
(ii) (x) swap or exchange assets or property with a Cable Controlled
Subsidiary or (y) issue, sell, lease, transfer, convey or otherwise
dispose of equity securities of any of the Company's Subsidiaries to a
Cable Controlled Subsidiary, in each of cases (x) and (y) so long as (A)
the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company
after such transaction is equal to or less than the ratio of Indebtedness
to Annualized Pro Forma EBITDA of the Company immediately preceding such
transaction; provided, however, that if the ratio of Indebtedness to
Annualized Pro Forma EBITDA of the Company immediately preceding such
transaction is 6:1 or less, then the ratio of Indebtedness to Annualized
Pro Forma EBITDA of the Company may be 0.5 greater than such ratio
immediately preceding such transaction and (B) either (I) the assets so
contributed consist solely of a license to operate a Cable Business and
the Net Households covered by all of the licenses to operate cable and
telephone systems held by the Company and its Restricted Subsidiaries
immediately after and giving effect to such transaction equals or exceeds
the number of Net Households covered by all of the licenses to operate
cable and telephone systems held by the Company and its Restricted
Subsidiaries immediately prior to such transaction or (II) the assets so
contributed consist solely of Cable Assets and the value of the Capital
Stock received, immediately after and giving effect to such transaction,
as determined by an investment banking firm of recognized standing with
knowledge of the Cable Business, equals or exceeds the value of Cable
Assets exchanged for such Capital Stock; or
(iii) issue, sell, lease, transfer, convey or otherwise dispose of
Equity Interests (other than Disqualified Stock) of the Company (or any
Capital Stock Sale Proceeds therefrom) to any Person (including
Non-Restricted Subsidiaries).
Section 4.11. Transactions With Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, sell, lease,
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transfer or otherwise dispose of any of its properties or assets to, or purchase
any property or assets from, or enter into or amend any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (each of the foregoing, an "Affiliate Transaction"), unless:
(a) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Subsidiary than those that could
have been obtained in a comparable transaction by the Company or such
Subsidiary with an unrelated Person and
(b) the Company delivers to the Trustee:
(i) with respect to any Affiliate Transaction involving aggregate
payments in excess of $1 million or any series of Affiliate Transactions
with an Affiliate involving aggregate payments in excess of $1 million, a
resolution of the Board of Directors set forth in an Officer's Certificate
certifying that such Affiliate Transaction complies with Section 4.11 (a)
and such Affiliate Transaction is approved by a majority of the
disinterested directors on the Board of Directors; and
(ii) with respect to any Affiliate Transaction involving aggregate
payments in excess of $25 million or any series of Affiliate Transactions
with an Affiliate involving aggregate payments in excess of $25 million,
an opinion as to the fairness to the Company or such Subsidiary from a
financial point of view issued by an investment banking firm of national
standing with high yield experience together with an Officer's Certificate
to the effect that such opinion complies with this clause (ii); provided,
however, that notwithstanding the foregoing provisions, the following
shall not be deemed to be Affiliate Transactions:
(1) any employment agreement entered into by the Company or
any of its Subsidiaries in the ordinary course of business and consistent
with the past practice of the Company or its predecessor or such
Subsidiary;
(2) transactions between or among the Company and/or its
Restricted Subsidiaries;
(3) transactions permitted by the provisions of Section 4.09
hereof;
(4) Liens permitted under Section 4.07 hereof which are
granted by the Company or any of its Subsidiaries to an unrelated Person
for the benefit of the Company or any other Subsidiary of the Company;
(5) any transaction pursuant to an agreement in effect on the
Issuance Date;
(6) the incurrence of Indebtedness by a Restricted Subsidiary
where such Indebtedness is owed to the holders of the Equity Interests of
such Restricted Subsidiary on a pro rata basis and on substantially
identical principal financial terms;
(7) management, operating, service or interconnect agreements
entered into in the ordinary course of business with any Cable Business in
which the Company or any Restricted Subsidiary has an Investment and which
is not a Cable Controlled
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Subsidiary (and of which no Affiliate of the Company is an Affiliate other
than as a result of such Investment); and
(8) any tax sharing agreement.
Section 4.12. Dividends and Other Payment Restrictions Affecting Restricted
Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company
or any of its Subsidiaries (A) on its Capital Stock or (B) with respect to
any other interest or participation in, or measured by, its profits, or
(ii) pay any indebtedness owed to the Company or any of its Subsidiaries,
or
(b) make loans or advances to the Company or any of its
Subsidiaries, or
(c) transfer any of its properties or assets to the Company or any
of its Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of:
(i) Existing Indebtedness as in effect on the Issuance Date;
(ii) this Indenture and the Notes;
(iii) any agreement covering or relating to Indebtedness permitted
to be incurred under Section 4.08(b)(i), (ii), (iii), (iv), (v), (viii) or
(ix) hereof (but only, in the case of Section 4.08(b)(viii) or (ix), to
the extent contemplated by the then-existing Credit Facility), provided
that the provisions of such agreement permit any action referred to in
clause (a) above in aggregate amounts sufficient to enable the payment of
interest and principal and mandatory repurchases pursuant to the terms of
this Indenture and the Notes, but provided further that: (x) any such
agreement may nevertheless encumber, prohibit or restrict any action
referred to in clause (a) above if an event of default under such
agreement has occurred and is continuing or would occur as a result of any
such action; and (y) any such agreement may nevertheless contain (I)
restrictions limiting the payment of dividends or the making of any other
distributions to all or a portion of excess cash-flow (or any similar
formulation thereof) and (II) subordination provisions governing
Indebtedness owed to the Company or any Restricted Subsidiary;
(iv) applicable law;
(v) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Subsidiaries as in effect at
the time of such acquisition (except to the extent such Indebtedness was
incurred in connection with such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or assets
of any Person, other than the Person, or the property or assets of the
Person, so acquired; provided that the EBITDA of such Person is not taken
into account in determining whether such acquisition was permitted by the
terms of this Indenture;
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(vi) customary nonassignment provisions in leases entered into in
the ordinary course of business and consistent with past practices;
(vii) provisions of joint venture or stockholder agreements, so long
as such provisions are determined by a resolution of the Board of
Directors to be, at the time of such determination, customary for such
agreements;
(viii) with respect to clause (c) above, purchase money obligations
for property acquired in the ordinary course of business or the provisions
of any agreement with respect to any Asset Sale (or transaction which, but
for its size, would be an Asset Sale), solely with respect to the assets
being sold; or
(ix) permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Refinancing
Indebtedness are determined by a resolution of the Board of Directors to
be no more restrictive than those contained in the agreements governing
the Indebtedness being refinanced.
Section 4.13. Change of Control.
(a) Upon the occurrence of a Change of Control Triggering Event,
each Holder of Notes shall have the right to require the Company to
repurchase all or any part (equal to (pounds)1,000 or an integral multiple
thereof) of such Holder's Notes pursuant to the offer described in Section
3.09 hereof (the "Purchase Offer") at a purchase price equal to 101% of
the principal amount thereof plus accrued and unpaid interest thereon, if
any, to the date of purchase (or, in the case of repurchases of Notes
prior to April 15, 2004, at a purchase price equal to 101% of the Accreted
Value thereof as of the date fixed for purchase) (the "Change of Control
Payment").
(b) Within 40 days following any Change of Control Triggering Event,
the Company shall mail to each Holder the notice provided by Section
3.09(e).
Section 4.14. Payment of Additional Amounts.
At least 10 days prior to the first date on which payment of principal and
any premium or interest on the Notes is to be made, and at least 10 days prior
to any subsequent such date if there has been any change with respect to the
matters set forth in the Officer's Certificate described in this Section 4.14,
the Company shall furnish the Trustee and the Paying Agent, if other than the
Trustee, with an Officer's Certificate instructing the Trustee and the Paying
Agent whether the Company is obligated to pay Additional Amounts (as defined in
Section 3 of the Initial Notes or Section 2 of the Exchange Notes) with respect
to such payment of principal, or of any premium or interest on the Notes. If the
Company will be obligated to pay Additional Amounts with respect to such
payment, then such Officer's Certificate shall specify by country the amount, if
any, required to be withheld on such payments to such Holders and the Company
will pay to the Trustee or the Paying Agent such Additional Amounts. The Company
shall indemnify the Trustee and the Paying Agent for, and hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officer's Certificate furnished to
them pursuant to this Section 4.14.
Whenever in this Indenture there is mentioned, in any context, the payment
of principal (and
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premium, if any), Offer Amount, interest or any other amount payable under or
with respect to any Note such mention shall be deemed to include mention of the
payment of Additional Amounts provided for in this Section 4.14 and Section 3 of
the Initial Notes (or Section 2 of the Exchange Notes) to the extent that, in
such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section 4.14 and Section 3 of the
Initial Notes (or Section 2 of the Exchange Notes) and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made (if applicable).
ARTICLE V.
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.
The Company may not consolidate or merge with or into (whether or not the
Company is the surviving corporation), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions to, another corporation, Person or entity
unless:
(a) the Company is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United Kingdom, the
Netherlands, the Netherlands Antilles, Bermuda or the Cayman Islands or of
the United States, any state thereof or the District of Columbia;
(b) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or
Person to which such sale, assignment, transfer, lease, conveyance or
other disposition will have been made assumes all the Obligations
(including the due and punctual payment of Additional Amounts if the
surviving corporation is a corporation organized or existing under the
laws of the United Kingdom, the Netherlands, the Netherlands Antilles,
Bermuda or the Cayman Islands) of the Company, pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee, under the
Notes and this Indenture;
(c) immediately after such transaction no Default or Event of
Default exists;
(d) the Company or any entity or Person formed by or surviving any
such consolidation or merger, or to which such sale, assignment, transfer,
lease, conveyance or other disposition will have been made will have a
ratio of Indebtedness to Annualized Pro Forma EBITDA equal to or less than
the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company
immediately preceding the transaction; provided, however, that if the
ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company
immediately preceding such transaction is 6:1 or less, then the ratio of
Indebtedness to Annualized Pro Forma EBITDA of the Company may be 0.5
greater than such ratio immediately preceding such transaction; and
(e) such transaction would not result in the loss of any material
authorization or Material License of the Company or its Subsidiaries.
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Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person has been named as the Company herein; provided, however, that
the predecessor Company in the case of a sale, assignment, transfer, lease,
conveyance or other disposition shall not be released from the obligation to pay
the principal of and interest on the Notes.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment of interest (and Additional
Amounts, if applicable) on any Note when the same becomes due and payable
and the Default continues for a period of 30 days after the date due and
payable;
(b) the Company defaults in the payment of the principal of any Note
when the same becomes due and payable at maturity, upon redemption or
otherwise;
(c) the Company fails to observe or perform any covenant or
agreement contained in Section 4.08, 4.09, or 4.13 hereof;
(d) the Company fails to observe or perform any other covenant or
agreement contained in this Indenture or the Notes, required by any of
them to be performed and the Default continues for a period of 60 days
after notice from the Trustee to the Company or from the Holders of 25% in
aggregate principal amount at maturity of the then outstanding Notes to
the Company and the Trustee stating that such notice is a "Notice of
Default";
(e) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any Restricted
Subsidiary (or the payment of which is guaranteed by the Company or any
Restricted Subsidiary), whether such Indebtedness or guarantee now exists
or is created after the Issuance Date, which default:
(i) is caused by a failure to pay when due principal of or interest
on such Indebtedness within the grace period provided for in such
Indebtedness (which failure continues beyond any applicable grace period)
(a "Payment Default"); or
(ii) results in the acceleration of such Indebtedness prior to its
express maturity
and, in each case, the principal amount of any such Indebtedness, together with
the principal amount of
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any other such Indebtedness under which there is a Payment Default or the
maturity of which has been so accelerated, aggregates $10 million or more;
(f) a final judgment or final judgments (other than any judgment as
to which a reputable insurance company has accepted full liability) for
the payment of money are entered by a court or courts of competent
jurisdiction against the Company or any Restricted Subsidiary of the
Company which remains undischarged for a period (during which execution
shall not be effectively stayed) of 60 days, provided that the aggregate
of all such judgments exceeds $5 million;
(g) the Company or any Material Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an
involuntary case in which it is the debtor;
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) generally is unable to pay its debts as the same become due;
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any Material Subsidiary in
an involuntary case;
(ii) appoints a Custodian of the Company or any Material Subsidiary
or for all or substantially all of its property; or
(iii) orders the liquidation of the Company or any Material
Subsidiary, and the order or decree remains unstayed and in effect for 60
days; and
(i) the revocation of a Material License.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors or the protection of creditors.
The term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
clauses (g) and (h) of Section 6.01 hereof) occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25% in principal
amount at maturity of the then outstanding Notes by notice to the Company and
the Trustee, may declare all the Notes to be due and payable. Upon such
declaration, the principal (or the
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Accreted Value, if prior to April 15, 2004) of, premium, if any, and interest
(if on or after April 15, 2004) on, the Notes shall be due and payable
immediately. If an Event of Default specified in clause (g) or (h) of Section
6.01 hereof occurs, such an amount shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder. The Holders of a majority in principal amount at maturity of the
then outstanding Notes by notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration. In the case of any Event of Default pursuant to the provisions of
Section 6.01 occurring by reason of any willful action (or inaction) taken (or
not taken) by or on behalf of the Company with the intention of avoiding payment
of the premium that the Company would have had to pay if the Company then had
elected to redeem the Notes pursuant to Section 7 of the Initial Notes (Section
6 in the case of the Exchange Notes), an equivalent premium shall, upon demand
of the Holders of at least 25% in principal amount at maturity of the then
outstanding Notes delivered to the Company and the Trustee, also become and be
immediately due and payable to the extent permitted by law, anything in this
Indenture or in the Notes contained to the contrary notwithstanding. If an Event
of Default occurs prior to April 15, 2004, by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the intention
of avoiding the prohibition on redemption of the Notes prior to April 15, 2004,
pursuant to Section 7 of the Initial Notes (Section 6 in the case of the
Exchange Notes), then the premium payable for purposes of this paragraph for
each of the years beginning on April 15 of the years (April 14 in the case of
1999) set forth below shall, subject to the foregoing demand, be as set forth in
the following table expressed as a percentage of the amount that would otherwise
be due pursuant to this Section 6.02 hereof but for the provisions of this
sentence.
Year Percentage
---- ----------
1999 109.750%
2000 108.775%
2001 107.800%
2002 106.825%
2003 105.850%
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal or interest on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. All remedies are cumulative to the
extent permitted by law.
Section 6.04. Waiver of Past Defaults.
The Holders of a majority in principal amount at maturity of the then
outstanding Notes by notice to the Trustee may waive an existing Default or
Event of Default and its consequences except a continuing Default or Event of
Default in the payment of the principal or Accreted Value of, or interest
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on any Note. When a Default or Event of Default is waived, it is cured and
ceases; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 6.05. Control By Majority.
The Holders of a majority in principal amount at maturity of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, is unduly prejudicial to the rights
of other Holders, or would involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder may pursue a remedy with respect to this Indenture or the Notes
only if:
(a) the Holder gives to the Trustee notice of a continuing Event of
Default;
(b) the Holders of at least 25% in principal amount at maturity of
the then outstanding Notes make a request to the Trustee to pursue the
remedy;
(c) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount at maturity of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal and interest on the Note, on or
after the respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder made pursuant to this
Section.
Section 6.08. Collection Suit By Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of principal and
interest remaining unpaid on the Notes and interest on overdue principal and
interest and such further amount as shall be sufficient to cover the costs and,
to the extent lawful, expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
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Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
Holders allowed in any judicial proceedings relative to the Company, its
creditors or its property. Nothing contained herein shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee for amounts due under Section 7.07 hereof;
Second: to Holders for amounts due and unpaid on the Notes for principal
and interest (and Additional Amounts, if applicable), ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Notes for principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders made pursuant to this Section.
Section 6.11. Undertaking For Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount at maturity of the then outstanding Notes.
ARTICLE VII.
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of an Event of Default: (i) the
Trustee need perform only those duties that are specifically set forth in
this Indenture and no others and (ii) in the
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absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture and to confirm the
correctness of all mathematical computations.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that: (i) this paragraph does not limit the effect of
paragraph (b) of this Section 7.01; (ii) the Trustee shall not be liable
for any error of judgment made in good faith by a Trust Officer, unless it
is proved that the Trustee was negligent in ascertaining the pertinent
facts and (iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel, or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith
in reliance on such Officer's Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Trustee shall not be charged with knowledge of any Event of
Default under subsection (c), (d), (e), (f) or (i) (and subsection (a) or
(b) if the Trustee does not act as Paying Agent) of Section 6.01 or of the
identity of any Material Subsidiary referred to in clause (ii) of the
definition thereof unless either (1) a Trust Officer of the Trustee
assigned to its Corporate Trustee Administration Department shall have
actual knowledge thereof, or (2) the Trustee shall have received notice
thereof in accordance with Section 10.02 hereof from the Company or any
Holder.
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Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company or an Affiliate with
the same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. However, the Trustee is subject to Sections 7.10 and 7.11
hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Notes, it shall not be accountable for the Company's use of the
proceeds from the Notes, and it shall not be responsible for any statement of
the Company in the Indenture or any statement in the Notes other than its
authentication or for compliance by the Company with the Registration Rights
Agreement.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment on any Note, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of Holders.
Section 7.06. Reports By Trustee To Holders.
Within 60 days after the reporting date stated in Section 10.11, the
Trustee shall mail to Holders a brief report dated as of such reporting date
that complies with TIA (ss.) 313(a) if and to the extent required by such (ss.)
313(a). The Trustee also shall comply with TIA (ss.) 313(b)(2). The Trustee
shall also transmit by mail all reports as required by TIA (ss.) 313(c).
A copy of each report at the time of its mailing to Holders shall be filed
with the SEC and each stock exchange on which the Notes are listed. The Company
shall notify the Trustee when the Notes are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable disbursements,
expenses and advances incurred or made by it. Such disbursements and expenses
may include the reasonable disbursements, compensation and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee against any loss or liability
incurred by it except as set forth in the next paragraph. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity. The
Company shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel and the Company shall pay the reasonable
fees, disbursements and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably
withheld.
The Company need not reimburse any expense or indemnify against any loss
or liability incurred
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by the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Notes on all money or property held or collected
by the Trustee, except money or property held in trust to pay principal and
interest on particular Notes.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(g) or (h) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
All amounts owing to the Trustee under this Section shall be payable by
the Company in United States dollars.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount at maturity of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof, unless the
Trustee's duty to resign is stayed as provided in TIA (ss.) 310(b);
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount at maturity of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount at maturity of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, unless the
Trustee's duty to resign is stayed as provided in TIA (ss.) 310(b), any Holder
who has been a bona fide Holder of a Note for at least six months may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee
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and to the Company. Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. The successor Trustee
shall mail a notice of its succession to Holders. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.07 hereof. Notwithstanding
replacement of the Trustee pursuant to this Section 7.08 hereof, the Company's
obligations under Section 7.07 hereof shall continue for the benefit of the
retiring trustee with respect to expenses and liabilities incurred by it prior
to such replacement.
Section 7.09. Successor Trustee By Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA (ss.) 310(a)(1) and (5). The Trustee shall always have a combined capital
and surplus as stated in Section 10.11 hereof. The Trustee is subject to TIA
(ss.) 310(b). The following indentures shall be deemed to be specifically
described herein for the purposes of clause (i) of the first proviso contained
in TIA (ss.) 310(b): (a) indenture, dated as of April 20, 1995, between the
Company and The Chase Manhattan Bank, as trustee, relating to the 12 3/4% Notes,
as amended, (b) indenture, dated as of January 30, 1996, between the Company and
The Chase Manhattan Bank, as trustee, relating to the 11 1/2% Deferred Coupon
Notes, as amended, (c) indenture, dated as February 12, 1997, between the
Company and The Chase Manhattan Bank, as trustee, relating to the 10% Notes, as
amended, (d) indenture dated as of March 13, 1998, between the Company and The
Chase Manhattan Bank, as trustee, relating to the Company's 9 1/2% Notes, (e)
indenture, dated as of March 13, 1998, between the Company and The Chase
Manhattan Bank, as trustee, relating to the Company's 10 3/4% Notes, (f)
indenture, dated as of March 13, 1998, between the Company and The Chase
Manhattan Bank, as trustee, relating to Company's the 9 3/4% Notes, (g)
indenture, dated as of November 2, 1998, between the Company and The Chase
Manhattan Bank, as trustee, relating to the Company's 11 1/2% Notes and (h)
indenture dated as of November 6, 1998 between the Company and the Chase
Manhattan Bank, as Trustee, relating to the 12 3/8% Deferred Coupon Notes.
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA (ss.) 311(a), excluding any creditor
relationship listed in TIA (ss.) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (ss.) 311(a) to the extent indicated therein.
ARTICLE VIII.
DISCHARGE OF INDENTURE
Section 8.01. Termination of Company's Obligations.
This Indenture shall cease to be of further effect (except that the
Company's obligations under Sections 7.07 and 8.03 hereof shall survive) when
all outstanding Notes theretofore authenticated and issued have been delivered
to the Trustee for cancellation and the Company has paid all sums payable
hereunder.
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Section 8.02. Option To Effect Defeasance.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officer's Certificate, at any time, elect to have
this Section 8.02 be applied to all outstanding Notes upon compliance with the
conditions set forth below in this Section. Upon the Company's election to have
this Section 8.02 apply to all the outstanding Notes, the Company shall, subject
to the satisfaction of the conditions set forth in the next paragraph, be deemed
to have been discharged from its obligations with respect to all outstanding
Notes on the date such conditions are satisfied (hereinafter, "Defeasance"). For
this purpose, Defeasance means that the Company shall be deemed to have paid and
discharged the entire Obligations represented by the outstanding Notes, which
shall thereafter be deemed to be "outstanding" only for the purposes of Section
8.03 hereof and the other Sections of this Indenture referred to in clauses (a)
and (b) below, and to have satisfied all its other obligations under such Notes
and this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in the following paragraph, payments in
respect of the principal of (or, if applicable, all amounts payable in respect
of Accreted Value) and interest on such Notes when such payments are due; (ii)
the Company's obligations with respect to such Notes under Article II hereof;
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and the Company's obligations in connection therewith; and (iv) this Article
VIII.
In order to exercise Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, pursuant to an irrevocable trust and
security agreement in form satisfactory to the Trustee, money in U.S.
dollars sufficient or U.K. Government Obligations the principal of and
interest on which will be sufficient or a combination thereof sufficient
in the opinion of a nationally recognized firm of independent public
accountants, expressed in a written certification thereof (in form
satisfactory to the Trustee) to pay the principal of (or, if applicable,
payments in respect of Accreted Value), premium, if any, and interest, if
any, on the outstanding Notes on the stated date for payment thereof or on
the applicable redemption date, as the case may be, of such principal or
installment of principal of (or, if applicable, payments in respect of
Accreted Value), premium, if any, and interest, if any, on the outstanding
Notes;
(b) the Company shall have delivered to the Trustee, an Opinion of
Counsel (which counsel may be an employee of the Company) reasonably
acceptable to the Trustee confirming that: (A) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the Issuance Date, there has been a change in the
applicable federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders of
the outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Defeasance had not occurred;
(c) no Event of Default shall have occurred and be continuing on the
date of such Defeasance (other than an Event of Default resulting from or
related to the incurrence of Indebtedness, the proceeds of which are to be
applied to such deposit) or, insofar as Sections 6.01(g) and (h) hereof
are concerned, at any time in the period ending on the 91st day after the
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date of deposit (or greater period of time in which any such deposit of
trust funds may remain subject to the effect of any Bankruptcy Law insofar
as those apply to the deposit by the Company);
(d) such Defeasance shall not result in a breach or violation of, or
constitute a default under, any material agreement or instrument (other
than this Indenture) to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;
(e) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day following the deposit (or
such greater period referred to in (c) above), the trust funds will not be
subject to the effect of any applicable Bankruptcy Law;
(f) the Company shall have delivered to the Trustee an Officer's
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of Notes over any other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others;
(g) the deposit shall not result in the Company, the Trustee or the
trust fund established pursuant to (a) above being subject to regulation
under the Investment Company Act of 1940, as amended;
(h) Holders of the Notes will have a valid, perfected and
unavoidable (under applicable Bankruptcy Law), subject to the passage of
time referred to clause (e) above, first priority security interest in the
trust funds; and
(i) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel (subject to customary exceptions),
each stating that all conditions precedent provided for or relating to the
Defeasance have been complied with.
"U.K. Government Obligations" means (i) direct obligations of the United
Kingdom that are issued by the Lords Commissioners of Her Majesty's Treasury or
(ii) obligations of a Person controlled or supervised by and acting as an agency
or instrumentality of the United Kingdom the payment of which is unconditionally
guaranteed by the Lords Commissioners of Her Majesty's Treasury, and also
includes a depository receipt issued by a bank or trust company as custodian
with respect to any such U.K. Government Obligation or a specific payment of
interest on or principal of any such U.K. Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.K. Government
Obligation or the specific payment of interest on or principal of the U.K.
Government Obligation evidenced by such depository receipt. In order to have
money available on a payment date to pay principal or interest (including
Additional Amounts, if applicable) on the Notes, the U.K. Government Obligations
shall be payable as to principal or interest on or before such payment date in
such amounts as will provide the necessary money. U.K. Government Obligations
shall not be callable at the issuer's option.
Section 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.K. Government Obligations
deposited with it pursuant
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to Section 8.02 hereof. It shall apply the deposited money and the money from
U.K. Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal and interest, if any, on the Notes.
Section 8.04. Repayment To Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon
request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal (or, if applicable, payments in
respect of Accreted Value) or interest that remains unclaimed for two years
after the date upon which such payment shall have become due; provided, however,
that the Company shall have first caused notice of such payment to the Company
to be mailed to each Holder entitled thereto no less than 30 days prior to such
payment. After payment to the Company, the Trustee and the Paying Agent shall
have no further liability with respect to such money and Holders entitled to the
money must look to the Company for payment as general creditors unless any
applicable abandoned property law designates another Person.
Section 8.05. Reinstatement.
If (i) the Trustee or Paying Agent is unable to apply any money in
accordance with Section 8.03 hereof by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application and (ii) the Holders of at least a majority in principal amount
at maturity of the then outstanding Notes so request by written notice to the
Trustee, the Company's obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section
8.02 hereof until such time as the Trustee or Paying Agent is permitted to apply
all such money in accordance with Section 8.03 hereof or such request is revoked
by such Holders; provided, however, that if the Company makes any payment of
interest on or principal (or, if applicable, payments in respect of Accreted
Value) of any Note following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Notes to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE IX.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or the
Notes without the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Section 5.01 hereof;
(c) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(d) to make any change that does not adversely affect the interests
hereunder of any Holder; or
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(e) to qualify the Indenture under the TIA or to comply with the
requirements of the SEC in order to maintain the qualification of the
Indenture under the TIA.
Section 9.02. With Consent of Holders.
Subject to Section 6.07 hereof, the Company and the Trustee may amend or
supplement this Indenture or the Notes with the written consent of the Holders
of at least a majority in principal amount at maturity of the then outstanding
Notes. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in
principal amount at maturity of the Notes then outstanding may also waive
compliance in a particular instance by the Company with any provision of this
Indenture or the Notes. However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section may not:
(a) reduce the amount of Notes whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note
or alter the provisions of Sections 7 and 8 of the Initial Note and
Sections 6 and 7 of the Exchange Note (other than provisions relating to
the covenants described under Sections 4.10 and 4.13);
(c) alter the manner of calculating the Accreted Value of any Note
or reduce the rate of or change the time for payment of interest on any
Note;
(d) waive a default in the payment of the principal of (or, if
applicable, payments in respect of Accreted Value), or interest, if any,
on, any Note (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount at maturity
of the Notes and a waiver of the payment default that resulted from such
acceleration);
(e) except as contemplated by Section 10.07(e), make any Note
payable in money other than that stated in the Note;
(f) make any change in Section 6.04 or 6.07 hereof;
(g) waive a redemption payment with respect to any Note; or
(h) make any change in the foregoing amendment and waiver provisions
of this Article 9.
To secure a consent of the Holders under this Section 9.02, it shall not
be necessary for the Holders to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to Holders a notice briefly describing the
amendment or waiver.
Section 9.03. Compliance With Trust Indenture Act.
Every amendment to this Indenture or the Notes shall be set forth in a
supplemental indenture that complies with the TIA as then in effect.
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Section 9.04. Revocation And Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Note is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
his Note or portion of a Note if the Trustee receives the notice of revocation
before the date on which the Trustee receives an Officer's Certificate
certifying that the Holders of the requisite principal amount at maturity of
Notes have consented to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such Persons continue to
be Holders after such record date. No consent shall be valid or effective for
more than 90 days after such record date unless consents from Holders of the
principal amount at maturity of Notes required hereunder for such amendment or
waiver to be effective shall have also been given and not revoked within such
90-day period.
After an amendment, supplement or waiver becomes effective it shall bind
every Holder, unless it is of the type described in any of clauses (a) through
(h) of Section 9.02 hereof. In such case, the amendment or waiver shall bind
each Holder who has consented to it and every subsequent Holder that evidences
the same debt as the consenting Holder's Note.
Section 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment or waiver
on any Note thereafter authenticated. The Company in exchange for all Notes may
issue and the Trustee shall authenticate new Notes that reflect the amendment or
waiver.
Failure to make such notation on a Note or to issue a new Note as
aforesaid shall not affect the validity and effect of such amendment or waiver.
Section 9.06. Trustee Protected.
The Trustee shall sign all supplemental indentures, except that the
Trustee may, but need not, sign any supplemental indenture that adversely
affects its rights.
ARTICLE X.
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that are required
to be incorporated into this Indenture (or, prior to the registration of the
Notes pursuant to the Registration Rights Agreement, would be required to be
incorporated into this Indenture if it were qualified under the TIA), and shall,
to the extent applicable, be governed by such provisions. If any provision of
this Indenture limits, qualifies, or
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conflicts with another provision which is required (or would be so required) to
be incorporated in this Indenture by the TIA, the incorporated provision shall
control.
Section 10.02. Notices.
Any notice or communication by the Company or the Trustee to the other is
duly given if in writing and delivered in Person or mailed by first class mail
to the other's address stated in Section 10.10 hereof. The Company or the
Trustee by notice to the other may designate additional or different addresses
for subsequent notices or communications.
Any notice or communication to a Holder shall be mailed by first class
mail to his address shown on the register kept by the Registrar. Failure to mail
a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
All other notices or communications shall be in writing.
In case by reason of the suspension of regular mail service, or by reason
of any other cause, it shall be impossible to mail any notice as required by the
Indenture, then such method of notification as shall be made with the approval
of the Trustee shall constitute a sufficient mailing of such notice.
Section 10.03. Communication by Holders With Other Holders.
Holders may communicate pursuant to TIA (ss.) 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA (ss.)
312(c).
Section 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officer's Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Section 4.03)
shall include:
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(a) a statement that the Person signing such certificate or
rendering such opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, such Person has
made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
Section 10.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by, or a meeting of,
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 10.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in the State of New York, USA or London, United Kingdom are not
required to be open. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If any other
operative date for purposes of this Indenture shall occur on a Legal Holiday
then for all purposes the next succeeding day that is not a Legal Holiday shall
be such operative date.
Section 10.08. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the Notes
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
Section 10.09. Counterparts and Facsimile Signatures.
This Indenture may be executed by manual or facsimile signature in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
Section 10.10. Variable Provisions.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
The first certificate pursuant to Section 4.03 hereof shall be for the
fiscal year ended on December 31, 1999.
The reporting date for Section 7.06 hereof is March 15, of each year. The
first reporting date is
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March 15, 2000.
The Trustee shall always have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition.
The Company's address is:
NTL Communications Corp.
110 East 59th Street, 26th Floor
New York, New York 10022
Attention: Richard J. Lubasch, Esq.
Senior Vice President, General Counsel and Secretary
The Trustee's address is:
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee
Administration Department
Section 10.11. Governing Law.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE AND
THE NOTES, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 10.12. Rights of The Registrar and Paying Agent.
In acting as Registrar or Paying Agent hereunder, The Chase Manhattan Bank
(London) and Chase Manhattan Bank Luxembourg S.A. shall have the benefits and
protections afforded to the Trustee hereunder, including those afforded under
Article VII and Sections 10.04 and 10.05 (except to the extent that such
benefits and protections are made expressly inapplicable to the Registrar or the
Paying Agent).
Section 10.13. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or an Affiliate. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.14. Successors.
All agreements of the Company in this Indenture and the Notes shall bind
its successor. All agreements of the Trustee in this Indenture shall bind its
successor.
Section 10.15. Severability
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or
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impaired thereby.
Section 10.16. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
NTL COMMUNICATIONS CORP., as Company
By:
Name:
Title:
Indenture signature page
<PAGE> 66
THE CHASE MANHATTAN BANK, as Trustee
By:
Name:
Title:
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EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
EUROCLEAR SYSTEM ("EUROCLEAR") OR CEDEL BANK SOCIETE ANONYME ("CEDELBANK"), TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CHASE NOMINEES LIMITED OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR
CEDELBANK (AND ANY PAYMENT IS MADE TO CHASE NOMINEES LIMITED, OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR
CEDELBANK) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CHASE
NOMINEES LIMITED, HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF EUROCLEAR OR CEDELBANK OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Notes Legend]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE, IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
[Original Issue Discount Legend]
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES OF APPLYING THE
UNITED STATES FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT RULES TO THIS NOTE. THE
ISSUE DATE OF THIS NOTE IS APRIL 14, 1999. THE ISSUE PRICE OF THIS NOTE IS
(pounds)621.10 PER (pounds)1000.00 OF INITIAL PRINCIPAL AMOUNT AT MATURITY. THIS
NOTE IS ISSUED WITH (pounds)378.90 OF ORIGINAL ISSUE DISCOUNT PER
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(pounds)1000.00 OF INITIAL PRINCIPAL AMOUNT AT MATURITY. THE YIELD TO MATURITY
OF THIS NOTE IS 9.75%.
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No. ________ $___________
CINS No. 9660534/ISIN No. XS0096605349
9 3/4% SENIOR DEFERRED COUPON NOTE DUE 2009
NTL Communications Corp., a Delaware corporation (the "Company"), promises
to pay to __________________________ or registered assigns, the principal sum of
____________________ $[____________] [,or such other amount as is indicated on
Schedule A hereof*,] on April 15, 2009, subject to the further provisions of
this Note set forth on the reverse hereof which further provisions shall for all
purposes have the same effect as if set forth at this place.
Interest Payment Dates: April 15 and October 15, commencing October 15, 2004
Record Dates: April 1 and October 1
IN WITNESS WHEREOF, NTL Communications Corp. has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
Dated:
NTL COMMUNICATIONS CORP.
by:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 9 3/4% Senior
Deferred Coupon Notes due 2009 described in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By:______________________________________
Authorized Officer
- ----------
* Applicable to Global Notes Only
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<PAGE> 70
[FORM OF REVERSE OF INITIAL NOTE]
NTL COMMUNICATIONS CORP.
9 3/4% Senior Deferred Coupon Note due 2009
1. Interest. NTL Communciations Corp., a Delaware corporation (the
"Company"), is the issuer of 9 3/4% Senior Deferred Coupon Notes due 2009 (the
"Notes"). The Notes are being issued at a discount from their principal amount
and will accrete (in accordance with the definition of Accreted Value contained
in the Indenture) at a rate of 9 3/4%, compounded semiannually, to an aggregate
principal amount of (pounds)330,000,000 by April 15, 2004. The Company promises
to pay interest on the Notes in cash semiannually on each April 15 and October
15, commencing on October 15, 2004, to Holders of record on the immediately
preceding April 1 and October 1, respectively, at the rate of 9 3/4% per annum.
Interest on the Notes will accrue from the most recent date to which interest
has been paid on the Notes, or if no interest has been paid, from April 15,
2004. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company will pay interest on overdue principal and premium, if any,
or overdue Accreted Value at the interest or accretion rate borne by the Notes,
compounded semiannually, and it shall pay interest on overdue installments of
interest (without regard to any applicable grace period) at the same interest
rate compounded semiannually. Any interest paid on this Note shall be increased
to the extent necessary to pay Additional Amounts as set forth in this Note.
2. Special Interest. The Holder of this Note is entitled to the benefits
of the Registration Rights Agreement relating to the Notes, dated as of April
14, 1999, between the Company and the Initial Purchasers party thereto (the
"Registration Rights Agreement").
In the event that either (a) we fail to file the Exchange Registration
Statement or the Shelf Registration Statement (as such terms are defined in the
Registration Rights Agreement) on or before the date specified for such filing
in the Registration Rights Agreement, (b) the Exchange Registration Statement is
not declared effective within 180 days after the closing of the sale of the
Notes or the Shelf Registration Statement is not declared effective within 120
days from the date such Shelf Registration Statement is filed, (c) we fail to
complete the Exchange Offer within the specified time frame, or (d) the Exchange
Registration Statement or the Shelf Registration Statement is filed and declared
effective but is thereafter either withdrawn or becomes subject to an effective
stop order suspending the effectiveness (except as specifically permitted in the
Registration Rights Agreement) without being succeeded immediately by an
additional registration statement which becomes effective, then we will pay
special interest pursuant to provisions of the Registration Rights Agreement and
the Notes to each holder of the Notes. Special interest will accrue from (i) the
date specified for such filing, in the case of clause (a) above, (ii) the date
specified for effectiveness in the case of clause (b) above, (iii) the date
specified for completion of the Exchange Offer, in the case of clause (c) above,
or (iv) the date such Exchange Offer Registration Statement or Shelf
Registration Statement ceases to be effective, in the case of clause (d) above
(each such period referred to in clauses (i) through (iv) above an "Accrual
Period"), at a rate per annum equal to 0.25% for the first 90 days of the
Accrual Period; 0.50% for the second 90 days of the Accrual Period; 0.75% for
the third 90 days of the Accrual Period and 1.0% for the remaining portion of
the Accrual Period of the Accreted Value of the Notes, determined daily. In each
case such additional interest will be payable in cash semiannually in arrears on
each April 15 and October 15, commencing October 15, 1999, to Holders of record
on the immediately preceding April 1 and October 1, respectively.
3. Additional Amounts. This Section 3 shall apply only in the event that
the Company becomes, or a successor to the Company is, a corporation organized
or existing under the laws of the United
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Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman
Islands. All payments made by the Company on this Note shall be made without
deduction for or on account of, any and all present or future taxes, duties,
assessments, or governmental charges of whatever nature unless the deduction or
withholding of such taxes, duties, assessments or governmental charges is then
required by law. If any deduction or withholding for or on account of any
present or future taxes, assessments or other governmental charges of the United
Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman
Islands (or any political subdivision or taxing authority thereof or therein)
shall at any time be required in respect of any amounts to be paid by the
Company under this Note, the Company shall pay or cause to be paid such
additional amounts ("Additional Amounts") as may be necessary in order that the
net amounts received by a Holder of this Note after such deduction or
withholding shall be not less than the amounts specified in this Note to which
the Holder of this Note is entitled; provided, however, that the Company shall
not be required to make any payment of Additional Amounts for or on account of:
(a) any tax, assessment or other governmental charge to the extent
such tax, assessment or other governmental charge would not have been
imposed but for (i) the existence of any present or former connection
between such Holder (or between a fiduciary, settlor, beneficiary, member
or shareholder of, or possessor of a power over, such Holder, if such
Holder is an estate, nominee, trust, partnership or corporation), other
than the holding of this Note or the receipt of amounts payable in respect
of this Note, and the United Kingdom, the Netherlands, the Netherlands
Antilles, Bermuda or the Cayman Islands (or any political subdivision or
taxing authority thereof or therein) including, without limitation, such
Holder (or such fiduciary, settlor, beneficiary, member, shareholder or
possessor) being or having been a citizen or resident thereof or being or
having been present or engaged in trade or business therein or having or
having had a permanent establishment therein or (ii) the presentation of
this Note (where presentation is required) for payment on a date more than
30 days after the date on which such payment became due and payable or the
date on which payment thereof is duly provided for, whichever occurs
later, except to the extent that the Holder would have been entitled to
Additional Amounts had this Note been presented on the last day of such
period of 30 days;
(b) any tax, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the Holder of this Note
or, if different, the beneficial owner of the interest payable on this
Note, with a timely request of the Company addressed to such Holder or
beneficial owner to provide information, documents or other evidence
concerning the nationality, residence, identity or connection with the
taxing jurisdiction of such Holder or beneficial owner which is required
or imposed by a statute, regulation or administrative practice of the
taxing jurisdiction as a precondition to exemption from all or part of
such tax, assessment or governmental charge;
(c) any estate, inheritance, gift, sales, transfer, personal
property or similar tax, assessment or other governmental charge;
(d) any tax, assessment or other governmental charge which is
collectible otherwise than by withholding from payments of principal
amount, redemption amount, Change of Control Payment or interest with
respect to a Note or withholding from the proceeds of a sale or exchange
of a Note;
(e) any tax, assessment or other governmental charge required to be
withheld by
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any Paying Agent from any payment of principal amount, redemption amount,
Change of Control Payment or interest with respect to a Note, if such
payment can be made, and is in fact made, without such withholding by any
other Paying Agent located inside the United States;
(f) any tax, assessment or other governmental charge imposed on a
Holder that is not the beneficial owner of a Note to the extent that the
beneficial owner would not have been entitled to the payment of any such
Additional Amounts had the beneficial owner directly held the Note;
(g) any combination of items (a), (b), (c), (d), (e) and (f) above;
nor shall Additional Amounts be paid with respect to any payment of the
principal of, or any interest on, this Note to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent that a beneficiary or settlor would not have been entitled to any
Additional Amounts had such beneficiary or settlor been the Holder of this Note.
All references to principal amount or interest on the Notes in the Indenture or
the Notes shall include any Additional Amounts payable to the Company pursuant
to this Section 3.
4. Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the record date for the next interest payment date even
though Notes are canceled after the record date and on or before the interest
payment date. Holders must surrender Notes to a Paying Agent to collect
principal and premium payments (or, if applicable, payments with respect to
Accreted Value). The Company will pay principal (or, if applicable, payments
with respect to Accreted Value), premium, if any, and interest in money of the
United Kingdom that at the time of payment is legal tender for payment of public
and private debts. However, the Company may pay principal, premium, (or, if
applicable, payments with respect to Accreted Value) if any, and interest by
check payable in such money. It may mail an interest check to a holder's
registered address. If a Holder so requests, principal (or, if applicable,
payments with respect to Accreted Value), premium, if any, and interest may be
paid by wire transfer of immediately available funds to an account previously
specified in writing by such Holder to the Company and the Trustee.
5. Paying Agent and Registrar. The Chase Manhattan Bank (London) will act
as Paying Agent and Registrar in London. The Trustee will act as Paying Agent
and Registrar in the City of New York, New York. Chase Manhattan Bank Luxembourg
S.A. will act as Paying Agent and Registrar in Luxembourg if and as long as the
Notes are listed on the Luxembourg Stock Exchange. The Company may change any
Paying Agent or Registrar without prior notice. The Company or any of its
Affiliates may act in any such capacity.
6. Indenture. The Company issued the Notes under an Indenture, dated as of
April 14, 1999 (the "Indenture"), between the Company and The Chase Manhattan
Bank, as Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by the Trust Indenture Act of 1939 (15 U.S.
Code (ss.)(ss.) 77aaa-77bbbb) as in effect on the date of the Indenture. The
Notes are subject to, and qualified by, all such terms, certain of which are
summarized hereon, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes are unsecured general obligations of the
Company limited to (pounds)330,000,000 in aggregate principal amount at
maturity.
7. Optional Redemption. Except as provided in Section 8 hereof, the Notes
are not redeemable at the Company's option prior to April 15, 2004. Thereafter,
the Notes will be subject to redemption at
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the option of the Company, in whole or in part, upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount at maturity) set forth below plus accrued and unpaid interest
thereon to the applicable redemption date, if redeemed during the twelve-month
period beginning on April 15 of the years indicated below:
Year Percentage
---- ----------
2004 104.875%
2005 103.250%
2006 101.625%
2007 and thereafter 100.000%
8. Optional Tax Redemption. (a) The Notes may be redeemed at the option of
the Company, in whole but not in part, upon not less than 30 nor more than 60
days notice, at any time at a redemption price equal to the principal amount
thereof plus accrued and unpaid interest to the date fixed for redemption (or,
in the case of redemption of the Notes prior to April 15, 2004, at a redemption
price equal to 100% of the Accreted Value thereof as of the date of redemption)
if after the date on which Section 3 of this Note becomes applicable (the
"Relevant Date") there has occurred any change in or amendment to the laws (or
any regulations or official rulings promulgated thereunder) of the United
Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman
Islands (or any political subdivision or taxing authority thereof or therein),
or any change in or amendment to the official application or interpretation of
such laws, regulation or rulings (a "Change in Tax Law") which becomes effective
after the Relevant Date, as a result of which the Company is or would be so
required on the next succeeding Interest Payment Date to pay Additional Amounts
with respect to the Notes as described under Section 3 hereof with respect to
withholding taxes imposed by the United Kingdom, the Netherlands, the
Netherlands Antilles, Bermuda or the Cayman Islands (or any political
subdivision or taxing authority thereof or therein) (a "Withholding Tax") and
such Withholding Tax is imposed at a rate that exceeds the rate (if any) at
which Withholding Tax was imposed on the Relevant Date, provided, however, that
(i) this paragraph shall not apply to the extent that, at the Relevant Date it
was known or would have been known had professional advice of a nationally
recognized accounting firm in the United Kingdom, the Netherlands, the
Netherlands Antilles, Bermuda or the Cayman Islands, as the case may be, been
sought, that a Change in Tax Law in the United Kingdom, the Netherlands, the
Netherlands Antilles, Bermuda or the Cayman Islands was to occur after the
Relevant Date, (ii) no such notice of redemption may be given earlier than 90
days prior to the earliest date on which the Company would be obliged to pay
such Additional Amounts were a payment in respect of the Notes then due, (iii)
at the time such notice of redemption is given, such obligation to pay such
Additional Amount remains in effect and (iv) the payment of such Additional
Amounts cannot be avoided by the use of any reasonable measures available to the
Company.
The Notes may also be redeemed, in whole but not in part, at any time at a
redemption price equal to the principal amount thereof plus accrued and unpaid
interest to the date fixed for redemption (or, in the case of redemption of the
Notes prior to April 15, 2004, at a redemption price equal to 100% of the
Accreted Value thereof as of the date fixed for redemption) if the Person formed
after the Relevant Date by a consolidation, amalgamation, reorganization or
reconstruction (or other similar arrangement) of the Company or the Person into
which the Company is merged after the Relevant Date or to which the Company
conveys, transfers or leases its properties and assets after the Relevant Date
substantially as an entirety (collectively, a "Subsequent Consolidation") is
required, as a consequence of such Subsequent
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Consolidation and as a consequence of a Change in Tax Law in the United Kingdom,
the Netherlands, the Netherlands Antilles, Bermuda or the Cayman Islands
occurring after the date of such Subsequent Consolidation to pay Additional
Amounts with respect to Notes with respect to Withholding Tax as described under
Section 3 hereof and such Withholding Tax is imposed at a rate that exceeds the
rate (if any) at which Withholding Tax was or would have been imposed on the
date of such Subsequent Consolidation, provided, however, that this paragraph
shall not apply to the extent that, at the date of such Subsequent Consolidation
it was known or would have been known had professional advice of a nationally
recognized accounting firm in the United Kingdom, the Netherlands, the
Netherlands Antilles, Bermuda or the Cayman Islands, as the case may be, been
sought, that a Change in Tax Law in the United Kingdom, the Netherlands, the
Netherlands Antilles, Bermuda or the Cayman Islands was to occur after such
date.
The Company will also pay, or make available for payment, to Holders on
the Redemption Date any Additional Amounts (as described, but subject to the
exceptions referred to, in Section 3 hereof) resulting from the payment of such
Redemption Price.
9. Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder of the
Notes to be redeemed at his address of record. The Notes in denominations larger
than (pounds)1,000 may be redeemed in part but only in integral multiples of
(pounds)1,000. In the event of a redemption of less than all of the Notes, the
Notes will be chosen for redemption by the Trustee in accordance with the
Indenture. On and after the redemption date, interest ceases to accrue on the
Notes or portions of them called for redemption (and, if applicable, the
Accreted Value of the Notes called for redemption will cease to increase)
If this Note is redeemed subsequent to a record date with respect to any
interest payment date specified above and on or prior to such interest payment
date, then any accrued interest will be paid to the Person in whose name this
Note is registered at the close of business on such record date.
10. Mandatory Redemption. The Company will not be required to make
mandatory redemption or repurchase payments with respect to the Notes. There are
no sinking fund payments with respect to the Notes.
11. Repurchase at Option of Holder. (a) If there is a Change of Control
Triggering Event, the Company shall be required to offer to purchase on the
Purchase Date all outstanding Notes at a purchase price equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest to the
Purchase Date (or, in the case of repurchases of Notes prior to April 15, 2004,
at a purchase price equal to 101% of the Accreted Value thereof as of the
Purchase Date), Holders of Notes that are subject to an offer to purchase will
receive a Change of Control offer from the Company prior to any related Purchase
Date and may elect to have such Notes or portions thereof in authorized
denominations purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
(b) If the Company or a Restricted Subsidiary consummates any Asset Sales,
and when the aggregate amount of Excess Proceeds from such Asset Sales exceeds
$15 million, the Company shall be required to make an offer (an "Asset Sale
Offer") to all holders of the Notes and Other Qualified Notes to purchase the
maximum principal amount of Notes and Other Qualified Notes (determined on a pro
rata basis according to the principal amount or accreted value, as the case may
be, of the Notes and the Other Qualified Notes) that may be purchased out of the
Excess Proceeds, with respect to the Notes, at an offer price in cash in an
amount equal to 100% of the outstanding principal amount thereof plus accrued
and
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unpaid interest, if any, to the date fixed for the closing of such offer (or, in
the case of repurchases of Notes prior to April 15, 2004, at a purchase price
equal to 100% of the Accreted Value thereof as of the date fixed for the closing
of such offer). To the extent that the aggregate principal amount or accreted
value, as the case may be, of Notes and Other Qualified Notes tendered pursuant
to an Asset Sale Offer is less than the Excess Proceeds, the Company may use
such deficiency for general corporate purposes. If the aggregate principal
amount or accreted value, as the case may be, of Notes and Other Qualified Notes
surrendered by holders thereof exceeds the amount of Excess Proceeds, then such
remaining Excess Proceeds will be allocated pro rata according to principal
amount or accreted value, as the case may be, to the Notes and each issue of the
Other Qualified Notes and, the Trustee will select the Notes to be purchased in
accordance with Section 3.09(e) of the Indenture. Upon completion of such offer
to purchase, the amount of Excess Proceeds will be reset at zero.
12. Denominations, Transfer, Exchange. The Notes are in registered form,
without coupons, in denominations of (pounds)1,000 and integral multiples of
(pounds)1,000. The transfer of Notes may be registered, and Notes may be
exchanged, as provided in the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not exchange or register the transfer of any Note or portion of a
Note selected for redemption (except the unredeemed portion of any Note being
redeemed in part). Also, it need not exchange or register the transfer of any
Note for a period of 15 days before a selection of Notes to be redeemed.
13. Persons Deemed Owners. Except as provided in paragraph 4 of this Note,
the registered Holder of a Note may be treated as its owner for all purposes.
14. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent shall pay the
money back to the Company at its written request. After that, Holders of Notes
entitled to the money must look to the Company for payment unless an abandoned
property law designates another Person and all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
15. Defaults and Remedies. The Notes shall have the Events of Default set
forth in Section 6.01 of the Indenture. Subject to certain limitations in the
Indenture, if an Event of Default occurs and is continuing, the Trustee by
notice to the Company or the Holders of at least 25% in aggregate principal
amount at maturity of the then outstanding Notes by notice to the Company and
the Trustee may declare all the Notes to be due and payable immediately, except
that in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all unpaid principal and interest accrued on the Notes
(or, if applicable, the Accreted Value thereof) shall become due and payable
immediately without further action or notice. The Holders of a majority in
principal amount at maturity of the Notes then outstanding by written notice to
the Trustee may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived except nonpayment of principal or interest
(or, if applicable, the Accreted Value) that has become due solely because of
the acceleration. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount at maturity of the then outstanding Notes issued under the
Indenture may direct the Trustee in its exercise of any trust or power. The
Company must furnish annually compliance certificates to the Trustee. The above
description of Events of Default and remedies is qualified by reference, and
subject in its entirety, to the more complete description thereof contained in
the Indenture.
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16. Amendments, Supplements and Waivers. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount at maturity of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for Notes), and any existing default may be waived with the
consent of the Holders of a majority in principal amount at maturity of the then
outstanding Notes. Without the consent of any Holder, the Indenture or the Notes
may be amended among other things, to cure any ambiguity, defect or
inconsistency, to provide for assumption of the Company's obligations to
Holders, to make any change that does not adversely affect the rights of any
Holder or to qualify the Indenture under the TIA or to comply with the
requirements of the SEC in order to maintain the qualification of the Indenture
under the TIA.
17. Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Company and its Subsidiaries to, among other things, engage
in certain transactions with Affiliates, incur additional indebtedness and make
payments in respect of Capital Stock. The limitations are subject to a number of
important qualifications and exceptions.
18. Trustee Dealings with the Company. The Trustee, in its individual or
any other capacity may become the owner or pledgee of the Notes and may
otherwise deal with the Company or an Affiliate with the same rights it would
have, as if it were not Trustee, subject to certain limitations provided for in
the Indenture and in the TIA. Any Agent may do the same with like rights.
19. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Notes.
20. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN
THE INDENTURE AND THE NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
21. Authentication. The Notes shall not be valid until authenticated by
the manual signature of an authorized officer of the Trustee or an
authenticating agent.
22. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (- Custodian), and UGMA (= Uniform Gifts to
Minors Act).
The Company will furnish to any Holder of the Notes upon written request
and without charge a copy of the Indenture. Request may be made to:
NTL Communications Corp.
110 East 59th Street, 26th Floor
New York, New York 10022
Attention of: Richard J. Lubasch, Esq.
Senior Vice President, General Counsel and Secretary
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
---------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
---------------------------------------------------
---------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _________________________________ agent to transfer this
Note on the books of the Company. The agent may substitute another to act for
him.
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Date: __________________
Signature Guarantee: * ____________________________________________
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the date that is two years after the later
of the date of original issuance of such Notes and the last date, if any,
on which such Notes were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Notes are being transferred:
CHECK ONE BOX BELOW
(1) to the Company or a subsidiary thereof,
(2) to a qualified institutional buyer in compliance with Rule 144A,
(3) outside the United States in compliance with Rule 903 or Rule 904
under the Securities Act,
(4) pursuant to the exemption from registration provided by Rule 144 under
the Securities Act (if available) or
(5) inside the United States to an Institutional Accredited Investor that,
prior to such transfer, furnishes to the Trustee a signed letter
containing certain representations and agreements relating to the
restrictions on transfer of the Notes (the form of which letter can be
obtained from the Trustee) and, if such transfer is in respect of an
aggregate principal amount at maturity of Notes of less than
(pound)100,000, an opinion of counsel acceptable to the Company that such
transfer is in compliance with the Securities Act,
- ----------
* Signature must be guaranteed by a commercial bank, trust copany or member
firm of the New York Stock Exchange
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(6) pursuant to an effective registration statement under the Securities
Act.
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--------------------------
Signature
Signature Guarantee*
- --------------------------
Signature must be guaranteed
- ------------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Date: _____________________
- ---------------------------
- ----------
* Signature must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
NOTICE: To be executed by an executive officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note or a portion thereof repurchased by
the Company pursuant to Section 3.09, 4.10 or 4.13 of the Indenture, check the
box: [ ]
If the purchase is in part, indicate the portion (in denominations of
(pounds)1,000 or any integral multiple thereof) to be purchased:
______________________
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Date: ________________________
Signature Guarantee:**/
- ----------
**/ Signature must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Global Note shall be
(pounds)__________________. The following increases or decreases in the
principal amount at maturity of this Global Note have been made:
================================================================================
Amount of
Amount of increase in
decrease in principal Principal Signature of Date of
principal amount at amount at authorized exchange
amount at maturity of maturity of officer of following such
maturity of this Global this Global Trustee or decrease or
this Global Note Note Note Notes Custodian increase
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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================================================================================
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EXHIBIT B
[FORM OF FACE OF EXCHANGE NOTE]
[Global Notes Legend, if applicable]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
EUROCLEAR SYSTEM ("EUROCLEAR") OR CEDELBANK, SOCIETE ANONYME ("CEDELBANK"), TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CHASE NOMINEES LIMITED. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR
CEDELBANK (AND ANY PAYMENT IS MADE TO CHASE NOMINEES LIMITED, OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR
CEDELBANK) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CHASE
NOMINEES LIMITED, HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF EUROCLEAR OR CEDELBANK OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Original Issue Discount Legend]
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES OF APPLYING THE
UNITED STATES FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT RULES TO THIS NOTE. THE
ISSUE DATE OF THIS NOTE IS APRIL 14, 1999. THE ISSUE PRICE OF THIS NOTE IS
(pounds)621.10 PER (pounds)1000.00 OF INITIAL PRINCIPAL AMOUNT AT MATURITY. THIS
NOTE IS ISSUED WITH (pounds)378.90 OF ORIGINAL ISSUE DISCOUNT PER
(pounds)1000.00 OF INITIAL PRINCIPAL AMOUNT AT MATURITY. THE YIELD TO MATURITY
OF THIS NOTE IS 9.75%.
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No. ___________ $__________
CINS No. [ ]/ISIN No. [ ]
9 3/4% SERIES B SENIOR DEFERRED COUPON NOTE DUE 2009
NTL Communications Corp., a Delaware corporation (the "Company") promises
to pay to _________________________ or registered assigns, the principal sum of
[ ] $[ ] [or such other amount as is indicated on Schedule A hereof]**** on
April 15, 2009, subject to the further provisions of this Note set forth on the
reverse hereof which further provisions shall for all purposes have the same
effect as if set forth at this place.
Interest Payment Dates: April 15 and October 15, commencing October 15, 2004
Record Dates: April 1 and October 15
IN WITNESS WHEREOF, NTL Communications Corp. has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
Dated: ________________
NTL COMMUNICATIONS CORP.
by:____________________________________
by:____________________________________
- ----------
**** Applicable to Global Notes only.
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<PAGE> 85
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 9 3/4% Series B Senior Deferred Coupon Notes due 2009
described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By: _____________________________________
Authorized Officer
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(FORM OF REVERSE OF EXCHANGE NOTE)
NTL COMMUNICATIONS CORP.
9 3/4% Series B Senior Deferred Coupon Note due 2009
1. Interest. NTL Communications Corp., a Delaware corporation (the
"Company"), is the issuer of 9 3/4% Series B Senior Deferred Coupon Notes due
2009 (the "Notes"). The Notes are being issued at a discount from their
principal amount and will accrete (in accordance with the definition of Accreted
Value contained in the Indenture) at a rate of 9 3/4%, compounded semiannually,
to an aggregate principal amount of (pounds)330,000,000 by April 15, 2004. The
Company promises to pay interest on the Notes in cash semiannually on each April
15 and October 15, commencing on October 15, 2004, to Holders of record on the
immediately preceding April 1 and October 1, respectively, at the rate of 9 3/4%
per annum. Interest on the Notes will accrue from the most recent date to which
interest has been paid on the Notes, or if no interest has been paid, from April
15, 2004. Interest will be computed on the basis of a 360-day year of twelve
30-day months. The Company will pay interest on overdue principal and premium,
if any, or overdue Accreted Value at the interest or accretion rate borne by the
Notes, compounded semiannually, and it shall pay interest on overdue
installments of interest (without regard to any applicable grace period) at the
same interest rate compounded semiannually. Any interest paid on this Note shall
be increased to the extent necessary to pay Additional Amounts as set forth in
this Note.
2. Additional Amounts. This Section 2 shall apply only in the event that
the Company becomes, or a successor to the Company is, a corporation organized
or existing under the laws of the United Kingdom, the Netherlands, the
Netherlands Antilles, Bermuda or the Cayman Islands. All payments made by the
Company on this Note shall be made without deduction for or on account of, any
and all present or future taxes, duties, assessments, or governmental charges of
whatever nature unless the deduction of such taxes, duties, assessments or
governmental charges is then required by law. If any deduction or withholding
for or on account of any present or future taxes, assessments or other
governmental charges of the United Kingdom, the Netherlands, the Netherlands
Antilles, Bermuda or the Cayman Islands (or any political subdivision or taxing
authority thereof or taxing authority thereof or therein) shall at any time be
required in respect of any amounts to be paid by the Company under this Note,
the Company shall pay or cause to be paid such additional amounts ("Additional
Amounts") as may be necessary in order that the net amounts received by a Holder
of this Note after such deduction or withholding shall be not less than the
amounts specified in this Note to which the Holder of this Note is entitled;
provided, however, that the Company shall not be required to make any payment of
Additional Amounts for or on account of:
(a) any tax, assessment or other governmental charge to the extent
such tax, assessment or other governmental charge would not have been
imposed but for (i) the existence of any present or former connection
between such Holder (or between a fiduciary, settlor, beneficiary, member
or shareholder of, or possessor of a power over, such Holder, if such
Holder is an estate, nominee, trust, partnership or corporation), other
than the holding of this Note or the receipt of amounts payable in respect
of this Note, the United Kingdom, the Netherlands, the Netherlands
Antilles, Bermuda or the Cayman Islands or any political subdivision or
taxing authority thereof or therein, including, without limitation, such
Holder (or such fiduciary, settlor, beneficiary, member, shareholder or
possessor) being or having been a citizen or resident thereof or being or
having been present or engaged in trade or business therein or having or
having had a permanent establishment therein or (ii) the presentation of
this Note (where presentation is
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<PAGE> 87
required) for payment on a date more than 30 days after the date on which
such payment became due and payable or the date on which payment thereof
is duly provided for, whichever occurs later, except to the extent that
the Holder would have been entitled to Additional Amounts had this Note
been presented on the last day of such period of 30 days;
(b) any tax, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the Holder of this Note
or, if different, the beneficial owner of the interest payable on this
Note, with a timely request of the Company addressed to such Holder or
beneficial owner to provide information, documents or other evidence
concerning the nationality, residence, identity or connection with the
taxing jurisdiction of such Holder or beneficial owner which is required
or imposed by a statute, regulation or administrative practice of the
taxing jurisdiction as a precondition to exemption from all or part of
such tax, assessment or governmental charge;
(c) any estate, inheritance, gift, sales, transfer, personal
property or similar tax, assessment or other governmental charge;
(d) any tax, assessment or other governmental charge which is
collectible otherwise than by withholding from payments of principal
amount, redemption amount, Change of Control Payment or interest with
respect to a Note or withholding from the proceeds of a sale or exchange
of a Note;
(e) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from any payment of principal amount,
redemption amount, Change of Control Payment or interest with respect to a
Note, if such payment can be made, and is in fact made, without such
withholding by any other Paying Agent located inside the United States;
(f) any tax, assessment or other governmental charge imposed on a
Holder that is not the beneficial owner of a Note to the extent that the
beneficial owner would not have been entitled to the payment of any such
Additional Amounts had the beneficial owner directly held the Note;
(g) any combination of items (a), (b), (c), (d), (e) and (f) above;
nor shall Additional Amounts be paid with respect to any payment of the
principal of, or any interest on, this Note to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent that a beneficiary or settlor would not have been entitled to any
Additional Amounts had such beneficiary or settlor been the Holder of this Note.
All references to principal amount or interest on the Notes in the Indenture or
the Notes shall include any Additional Amounts payable to the Company pursuant
to this Section 2.
3. Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the record date for the next interest payment date even
though Notes are canceled after the record date and on or before the interest
payment date. Holders must surrender Notes to a Paying Agent to collect
principal and premium payments (or, if applicable, payments with respect to
Accreted Value). The Company will pay principal (or, if applicable, payments
with respect to Accreted Value), premium, if any, and interest in money of the
United Kingdom that at the time of payment is legal tender for payment of public
and private debts.
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However, the Company may pay principal (or, if applicable, payments with respect
to Accreted Value), premium, if any, and interest by check payable in such
money. It may mail an interest check to a holder's registered address. If a
Holder so requests, principal (or, if applicable, payments with respect to
Accreted Value), premium, if any, and interest may be paid by wire transfer of
immediately available funds to an account previously specified in writing by
such Holder to the Company and the Trustee.
4. Paying Agent and Registrar. The Chase Manhattan Bank (London) will act
as Paying Agent and Registrar in London. The Trustee will act as Paying Agent
and Registrar in the City of New York. Chase Manhattan Bank Luxembourg S.A. will
act as Paying Agent and Registrar in Luxembourg if and as long as the Notes are
listed on the Luxembourg Stock Exchange. The Company may change any Paying Agent
or Registrar without prior notice. The Company or any of its Affiliates may act
in any such capacity.
5. Indenture. The Company issued the Notes under an indenture, dated as of
April 14, 1999 (the "Indenture"), between the Company and The Chase Manhattan
Bank, as Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by the Trust Indenture Act of 1939 (15 U.S.
Code (ss.)(ss.) 77aaa-77bbbb) as in effect on the date of the Indenture. The
Notes are subject to, and qualified by, all such terms, certain of which are
summarized hereon, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes are unsecured general obligations of the
Company limited to (pounds)330,000,000 in aggregate principal amount at
maturity.
6. Optional Redemption. Except as provided in Section 7 herein, the Notes
are not redeemable at the Company's option prior to April 15, 2004. Thereafter,
the Notes will be subject to redemption at the option of the Company, in whole
or in part, upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount at maturity) set
forth below plus accrued and unpaid interest thereon to the applicable
redemption date, if redeemed during the twelve-month period beginning on April
15 of the years indicated below:
Year Percentage
---- ----------
2004 104.875%
2005 103.250%
2006 101.625 %
2007 and thereafter 100.000%
7. Optional Tax Redemption. (a) The Notes may be redeemed at the option of
the Company, in whole but not in part, upon not less than 30 nor more than 60
days notice, at any time at a redemption price equal to the principal amount
thereof plus accrued and unpaid interest to the date fixed for redemption (or,
in the case of redemption of the Notes prior to April 15, 2004, at a redemption
price equal to 100% of the Accreted Value thereof as of the date of redemption)
if after the date on which Section 2 of this Note becomes applicable (the
"Relevant Date") there has occurred any change in or amendment to the laws (or
any regulations or official rulings promulgated thereunder) of the United
Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman
Islands (or any political subdivision or taxing authority thereof or therein),
or any change in or amendment to the official application or interpretation of
such laws, regulations or rulings (a "Change in Tax Law") which becomes
effective after the Relevant Date, as a result of which the Company is or would
be so required on the next succeeding Interest Payment Date to pay Additional
Amounts with respect to the Notes as described under Section 2 hereof with
respect to withholding taxes imposed by the United Kingdom, the
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<PAGE> 89
Netherlands, the Netherlands Antilles, Bermuda or the Cayman Islands (or any
political subdivision or taxing authority thereof or therein) (a "Withholding
Tax') and such Withholding Tax is imposed at a rate that exceeds the rate (if
any) at which Withholding Tax was imposed on the Relevant Date, provided,
however, that (i) this paragraph shall not apply to the extent that, at the
Relevant Date it was known or would have been known had professional advice of a
nationally recognized accounting firm in the United Kingdom, the Netherlands,
the Netherlands Antilles, Bermuda or the Cayman Islands, as the case may be,
been sought, that a change in Tax Law in the United Kingdom, the Netherlands,
the Netherlands Antilles, Bermuda or the Cayman Islands was to occur after the
Relevant Date, (ii) no such notice of redemption may be given earlier than 90
days prior to the earliest date on which the Company would be obliged to pay
such Additional Amounts were a payment in respect of the Notes then due, (iii)
at the time such notice of redemption is given, such obligation to pay such
Additional Amount remains in effect and (iv) the payment of such Additional
Amounts cannot be avoided by the use of any reasonable measures available to the
Company.
(b) The Notes may also be redeemed, in whole but not in part, at any time
at a redemption price equal to the principal amount thereof plus accrued and
unpaid interest to the date fixed for redemption (or, in the case of redemption
of the Notes prior to April 15, 2004, at a redemption price equal to 100% of the
Accreted Value thereof as of the date fixed for redemption) if the Person formed
after the Relevant Date by a consolidation, amalgamation, reorganization or
reconstruction (or other similar arrangement) of the Company or the Person into
which the Company is merged after the Relevant Date or to which the Company
conveys, transfers or leases its properties and assets after the Relevant Date
substantially as an entirety (collectively, a "Subsequent Consolidation") is
required, as a consequence of such Subsequent Consolidation and as a consequence
of a Change in Tax Law in the United Kingdom, the Netherlands, the Netherlands
Antilles, Bermuda or the Cayman Islands occurring after the date of such
Subsequent Consolidation to pay Additional Amounts with respect to Notes with
respect to Withholding Tax as described under Section 2 hereof and such
Withholding Tax is imposed at a rate that exceeds the rate (if any) at which
Withholding Tax was or would have been imposed on the date of such Subsequent
Consolidation, provided, however, that this paragraph shall not apply to the
extent that, at the date of such Subsequent Consolidation it was known or would
have been known had professional advice of a nationally recognized accounting
firm in the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda
or the Cayman Islands, as the case may be, been sought, that a Change in Tax Law
in the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the
Cayman Islands was to occur after such date.
The Company will also pay, or make available for payment, to Holders on
the Redemption Date any Additional Amounts (as described, but subject to the
exceptions referred to, in Section 2 hereof) resulting from the payment of such
Redemption Price.
8. Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder of the
Notes to be redeemed at his address of record. The Notes in denominations larger
than (pounds)1,000 may be redeemed in part but only in integral multiples of
(pounds)1,000. In the event of a redemption of less than all of the Notes, the
Notes will be chosen for redemption by the Trustee in accordance with the
Indenture. On and after the redemption date, interest ceases to accrue on the
Notes or portions of them called for redemption. If this Note is redeemed
subsequent to a record date with respect to any interest payment date specified
above and on or prior to such interest payment date, then any accrued interest
will be paid to the Person in whose name this Note is registered at the close of
business on such record date (and, if applicable, the Accreted Value of the
Notes called for redemption will cease to increase).
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9. Mandatory Redemption. The Company will not be required to make
mandatory redemption or repurchase payments with respect to the Notes. There are
no sinking fund payments with respect to the Notes.
10. Repurchase at Option of Holder. (a) If there is a Change of Control
Triggering Event, the Company shall be required to offer to purchase on the
Purchase Date all outstanding Notes at a purchase price equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest to the
Purchase Date (or, in the case of repurchases of Notes prior to April 15, 2004,
at a purchase price equal to 100% of the Accreted Value thereof as of the
Purchase Date) . Holders of Notes that are subject to an offer to purchase will
receive a Change of Control offer from the Company prior to any related Purchase
Date and may elect to have such Notes or portions thereof in authorized
denominations purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
(b) If the Company or a Restricted Subsidiary consummates any Asset Sales,
and when the aggregate amount of Excess Proceeds from such Asset Sales exceeds
$15 million, the Company shall be required to make an offer (an "Asset Sale
Offer") to all holders of the Notes and Other Qualified Notes to purchase the
maximum principal amount of Notes and other Qualified Notes (determined on a pro
rata basis according to the principal amount or accreted value, as the case may
be, of the Notes and the Other Qualified Notes) that may be purchased out of the
Excess Proceeds with respect to the Notes, at an offer price in cash in an
amount equal to 100% of the outstanding principal amount thereof plus accrued
and unpaid interest, if any, to the date fixed for the closing of such offer
(or, in the case of repurchases of Notes prior to April 15, 2004, at a purchase
price equal to 101% of the Accreted Value thereof as of the date fixed for the
closing of such offer). To the extent that the aggregate principal amount or
accreted value, as the case may be, of Notes and Other Qualified Notes tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
may use such deficiency for general corporate purposes. If the aggregate
principal amount or accreted value, as the case may be, of Notes and Other
Qualified Notes surrendered by holders thereof exceeds the amount of Excess
Proceeds then any remaining Excess Proceeds will be allocated pro rata according
to principal amount or accreted value, as the case may be, to the Notes and each
issue of the Other Qualified Notes and, the Trustee will select the Notes to be
purchased in accordance with Section 3.09(e) of the Indenture. Upon completion
of such offer to purchase, the amount of Excess Proceeds will be reset at zero.
11. Denominations, Transfer, Exchange. The Notes are in registered form,
without coupons, in denominations of (pounds)1,000 and integral multiples of
(pounds)1,000. The transfer of Notes may be registered, and Notes may be
exchanged, as provided in the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not exchange or register the transfer of any Note or portion of a
Note selected for redemption (except the unredeemed portion of any Note being
redeemed in part). Also, it need not exchange or register the transfer of any
Note for a period of 15 days before a selection of Notes to be redeemed.
12. Persons Deemed Owners. Except as provided in paragraph 3 of this Note,
the registered Holder of a Note may be treated as its owner for all purposes.
13. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent shall pay the
money back to the Company at its written request. After that, Holders of Notes
entitled to the money must look to the Company for payment unless an abandoned
property law designates another Person and all liability of the Trustee and such
Paying
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Agent with respect to such money shall cease.
14. Defaults and Remedies. The Notes shall have the Events of Default as
set forth in Section 6.01 of the Indenture. Subject to certain limitations in
the Indenture, if an Event of Default occurs and is continuing, the Trustee by
notice to the Company or the Holders of at least 25% in aggregate principal
amount at maturity of the then outstanding Notes by notice to the Company and
the Trustee may declare all the Notes to be due and payable immediately, except
that in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all unpaid principal and interest accrued on the Notes
(or, if applicable, the Accreted Value thereof) shall become due and payable
immediately without further action or notice. The Holders of a majority in
principal amount at maturity of the Notes then outstanding by written notice to
the Trustee may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived except nonpayment of principal or interest
(or, if applicable, the Accreted Value) that has become due solely because of
the acceleration. Holders may not enforce the Indenture or the Notes as provided
in the Indenture. Subject to certain limitations, Holders of a majority in
principal amount at maturity of the then outstanding Notes issued under the
Indenture may direct the Trustee in its exercise of any trust or power. The
Company must furnish annually compliance certificates to the Trustee. The above
description of Events of Default and remedies is qualified by reference, and
subject in its entirety, to the more complete description thereof contained in
the Indenture.
15. Amendments, Supplements and Waivers. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount at maturity of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for Notes), and any existing default may be waived with the
consent of the Holders of a majority in principal amount at maturity of the then
outstanding Notes. Without the consent of any Holder, the Indenture or the Notes
may be amended among other things, to cure any ambiguity, defect or
inconsistency, to provide for assumption of the Company's obligations to
Holders, to make any change that does not adversely affect the rights of any
Holder or to qualify the Indenture under the TIA or to comply with the
requirements of the SEC in order to maintain the qualification of the Indenture
under the TIA.
16. Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Company and its Subsidiaries to, among other things, engage
in certain transactions with Affiliates, incur additional Indebtedness and make
payments in respect of Capital Stock. The limitations are subject to a number of
important qualifications and exceptions.
17. Trustee Dealings with the Company. The Trustee, in its individual or
any other capacity may become the owner or pledgee of the Notes and may
otherwise deal with the Company or an Affiliate with the same rights it would
have, as if it were not Trustee, subject to certain limitations provided for in
the Indenture and in the TIA. Any Agent may do the same with like rights.
18. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Notes.
19. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
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GOVERN THE INDENTURE AND THE NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
20. Authentication. The Notes shall not be valid until authenticated by
the manual signature of an authorized officer of the Trustee or an
authenticating agent.
21. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and UGMA (= Uniform Gifts to
Minors Act).
The Company will furnish to any Holder of the Notes upon written request
and without charge a copy of the Indenture. Request may be made to:
NTL Communications Corp.
110 East 59th Street, 26th Floor
New York, New York 10022
Attention of: Richard J. Lubasch, Esq.
Senior Vice President, General Counsel and Secretary
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<PAGE> 93
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
---------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
---------------------------------------------------
---------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _________________________________ agent to transfer this
Note on the books of the Company. The agent may substitute another to act for
him.
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Date: __________________
Signature Guarantee: **/ ____________________________________________
- ----------
**/ Signature must be guaranteed by a commercial bank, trust copany or member
firm of the New York Stock Exchange.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note or a portion thereof repurchased by
the Company pursuant to Section 3.09, 4.10 or 4.13 of the Indenture, check the
box: [ ]
If the purchase is in part, indicate the portion (in denominations of
(pounds)1,000 or any integral multiple thereof) to be purchased:
______________________
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Date: ________________________
Signature Guarantee:***
- ----------
*** Signature must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
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SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Global Note shall be
(pounds)__________________. The following increases or decreases in the
principal amount at maturity of this Global Note have been made:
================================================================================
Amount of
Amount of increase in
decrease in principal Principal Signature of Date of
principal amount at amount at authorized exchange
amount at maturity of maturity of officer of following such
maturity of this Global this Global Trustee or decrease or
this Global Note Note Note Notes Custodian increase
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EXHIBIT C
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM GLOBAL NOTE OR RESTRICTED
NOTE TO RESTRICTED NOTE
(Transfers pursuant to (ss.) 2.06(a)(ii)
or (ss.) 2.06(a)(iii) of the Indenture)
The Chase Manhattan Bank, as Trustee
450 West 33rd Street
New York, New York 10001
Attn: Corporate Trustee Administration Department
Re: NTL Communications Corp. 9 3/4% Senior Deferred
Coupon Notes due 2009 (the "Notes")
Reference is hereby made to the Indenture, dated as of April 14, 1999 (the
"Indenture"), between NTL Incorporated, as Issuer, and The Chase Manhattan Bank,
as Trustee. Capitalized terms used but not defined herein shall have the
respective meanings given them in the Indenture.
This letter relates to $[ ] aggregate principal amount at maturity
of Notes which are held [in the form of the [Global] [Restricted] Note (CINS No.
[ ]/ISIN No. [ ]) with the Depositary in the name of [name of
transferor] (the "Transferor") to effect the transfer of the Notes.
In connection with such request, and in respect of such Notes, the
Transferor does hereby certify that such Notes are being transferred (i) in
accordance with the transfer restrictions set forth in the Notes and (ii) in
accordance with applicable securities laws of any state of the United States or
any other jurisdiction.
*Insert, if appropriate.
[Name of Transferor],
By:___________________________
Name:
Title:
Dated:
cc: NTL Communications Corp.
110 East 59th Street
New York, New York 10022
Attn: Richard J. Lubasch, Esq.
Senior Vice President, General Counsel and Secretary
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<PAGE> 98
EXHIBIT D
FORM OF ACCREDITED INVESTOR TRANSFEREE CERTIFICATE
The Chase Manhattan Bank, as Trustee
450 West 33rd Street
New York, New York 10001
Attn: Corporate Trustee Administration Department
Re: NTL Communications Corp. 9 3/4% Senior Deferred Coupon
Notes due 2009 (the "Notes")
Reference is hereby made to the Indenture, dated as of April 14, 1999 (the
"Indenture), between NTL Communications Corp., as Issuer, and The Chase
Manhattan Bank, as Trustee. Capitalized terms used but not defined herein shall
have the respective meanings given them in the Indenture.
This letter relates to $[ ] aggregate principal amount at maturity
of Notes which are held [in the form of the [Restricted] [Global] Note (CINS No.
[ ] / ISIN No. [ ]) with the Depositary * * in the name of
[name of transferor] (the "Transferor") to effect the transfer of the Notes to
the undersigned.
In connection with such request, and in respect of such Notes we confirm
that:
1. We understand that the Notes were originally offered in a transaction
not involving any public offering in the United States within the meaning of the
United States Securities Act of 1933, as amended (the "Securities Act"), that
the Notes have not been registered under the Securities Act and that (A) the
Notes may be offered, resold, pledged or otherwise transferred only (i) to a
Person who the seller reasonably believes is a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A, in a transaction meeting the requirements of Rule 144
under the Securities Act, to a Person who the seller reasonably believes is an
institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act), outside the United States in a
transaction meeting the requirements of Rule 903 or 904 of Regulation S under
the Securities Act or in accordance with another exemption from the registration
requirements of the Securities Act (and based upon an opinion of counsel if the
Company so requests), (ii) to the Company, (iii) pursuant to any other available
exemption from registration or (iv) pursuant to an effective registration
statement, and, in each case, in accordance with any applicable securities laws
of any state of the United States or any other applicable jurisdiction and (B)
the purchaser will, and each subsequent Holder is required to, notify any
subsequent purchaser from it of the resale restrictions set forth in (A) above.
2. We are a corporation, partnership or other entity having such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of an investment in the Notes, and we are (or any account
for which we are purchasing under paragraph 4 below is) an institutional
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act,
- ----------
* Insert and modify if appropriate
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<PAGE> 99
able to bear the economic risk of our proposed investment in the Notes.
3. We are acquiring the Notes for our own account (or for accounts as to
which we exercise sole investment discretion and have authority to make, and do
make, the statements contained in this letter) and not with a view to any
distribution of the Notes, subject, nevertheless, to the understanding that the
disposition of our property shall at all times be and remain within our control.
4. We are, and each account (if any) for which we are purchasing Notes is,
purchasing Notes having an aggregate principal amount at maturity of not less
than (pound)100,000 and, if such transfer is in respect of an aggregate
principal amount at maturity of Notes of less than (pound)100,000, we are
providing an opinion of counsel acceptable to the Company that such transfer is
in compliance with the Securities Act.
5. We understand that (a) the Notes will be delivered to us in registered
form only and that the certificate delivered to us in respect of the Notes will
bear a legend substantially to the following effect:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN
EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES.
and (b) such certificates will be reissued without the foregoing legend
only in accordance with the terms of the Indenture.
6. We agree that in the event that at some future time we wish to dispose
of any of the Notes, we will not do so unless:
(a) the Notes are sold to the Company or any subsidiary thereof;
(b) the Notes are sold to a qualified institutional buyer in
compliance with Rule 144A under the Securities Act;
(c) the Notes are sold outside the United States in compliance with
Rule 903 or Rule 904 under the Securities Act;
(d) to an Institutional Accredited Investor in a transaction exempt
from the regustration requirements of the Securities Act,
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<PAGE> 100
(d) the Notes are sold pursuant to an effective registration
statement under the Securities Act; or
(e) the Notes are sold pursuant to any other available exemption
from registration, subject to the requirements of the legend set forth
above.
Very truly yours,
[PURCHASER]
By:
Name:
Title:
Dated:
cc: NTL Communications Corp.
110 East 59th Street
New York, New York 10022
Attn: Richard J. Lubasch, Esq.
Senior Vice President, General Counsel and Secretary
D-100
<PAGE> 1
Exhibit 4.4
NTL Communications Corp.
9 3/4% Senior Deferred Coupon Notes due 2009
---------
Exchange and Registration Rights Agreement
------------------------------------------
April 14, 1999
Goldman Sachs International
As representative of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
NTL Communications Corp., a Delaware corporation (the "Company"), proposes
to issue and sell to the Purchasers (as defined herein) upon the terms set forth
in the Purchase Agreement (as defined herein) its 9 3/4% Senior Deferred Coupon
Notes due 2009. As an inducement to the Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Company agrees with the Purchasers for the benefit of
holders (as defined herein) from time to time of the Registrable Securities (as
defined herein) as follows:
1. Certain Definitions. For purposes of this Agreement, the
following terms shall have the following respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue
on the Securities under the terms thereof and the Indenture, without
giving effect to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and Exchange
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<PAGE> 2
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities
that has returned a completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
The term "holder" shall mean each of the Purchasers and other
persons who acquire Registrable Securities from time to time (including
any successors or assigns), in each case for so long as such person owns
any Registrable Securities.
"Indenture" shall mean the Indenture, dated as of April 14, 1999,
between the Company and The Chase Manhattan Bank, as Trustee, as the same
shall be amended from time to time.
"Majority Holders" means the holders of a majority of the aggregate
principal amount at maturity of the Registrable Securities satisfying the
terms and conditions for registration under the Exchange Registration
Statement or the Shelf Registration Statement.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
The term "person" shall mean a corporation (profit or nonprofit),
association,
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<PAGE> 3
limited liability company, partnership, organization, business,
individual, government or political subdivision thereof or governmental
agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
April 7, 1999, between the Purchasers and the Company relating to the
Securities.
"Purchasers" shall mean the Purchasers named in Schedule I to the
Purchase Agreement.
"Registrable Securities" shall mean the Securities; provided,
however, that a Security shall cease to be a Registrable Security when (i)
in the circumstances contemplated by Section 2(a) hereof, the Security has
been exchanged for an Exchange Security in an Exchange Offer as
contemplated in Section 2(a) hereof (provided that any Exchange Security
that, pursuant to the last two sentences of Section 2(a), is included in a
prospectus for use in connection with resales by broker-dealers shall be
deemed to be a Registrable Security with respect to Sections 5, 6 and 9
until resale of such Registrable Security has been effected within the
180-day period referred to in Section 2(a)); (ii) in the circumstances
contemplated by Section 2(b) hereof, a Shelf Registration Statement
registering such Security under the Securities Act has been declared or
becomes effective and such Security has been sold or otherwise transferred
by the holder thereof in accordance with the Shelf Registration Statement;
(iii) such Security is distributed to the public pursuant to Rule 144
under circumstances in which any legend borne by such Security relating to
restrictions on transferability thereof, under the Securities Act, is
removed by the Company or pursuant to the Indenture; (iv) such Security is
eligible to be sold pursuant to Rule 144(k); or (v) such Security shall
cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with
respect to Exchange Securities received by such broker-dealer pursuant to
an Exchange Offer in exchange for Registrable Securities acquired by the
broker-dealer directly from the Company.
"Rule 144," "Rule 158," "Rule 405" and "Rule 415" shall mean, in
each case, such rule promulgated under the Securities Act (or any
successor provision), as the same
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<PAGE> 4
shall be amended from time to time.
"Securities" shall mean, collectively, the 9 3/4% Senior Deferred
Coupon Notes due 2009 of the Company to be issued and sold to the
Purchasers, and securities issued in exchange therefor or in lieu thereof
pursuant to the Indenture.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned
thereto in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
file under the Securities Act within 90 days following the Closing Date, a
registration statement relating to an offer to exchange (such registration
statement, the "Exchange Registration Statement", and such offer, the
"Exchange Offer") any and all of the Securities for a like aggregate
principal amount of debt securities issued by the Company, which debt
securities are substantially identical to the Securities (and are entitled
to the benefits of a trust indenture which is substantially identical to
the Indenture or is the Indenture and which has been qualified under the
Trust Indenture Act), except that they have been registered pursuant to an
effective registration statement under the Securities Act and do not
contain provisions for the additional interest contemplated in Section
2(c) below (such new debt securities hereinafter called "Exchange
Securities"). The Company agrees to use its best efforts to cause the
Exchange Registration Statement to become effective under the Securities
Act within 180 days following the Closing Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form and will
comply with all applicable tender offer rules and regulations under the
Exchange Act. The Company further agrees to use its best efforts to
commence and complete the Exchange Offer promptly, but no later than 45
days after such registration statement has
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<PAGE> 5
become effective, hold the Exchange Offer open for at least 30 days and
exchange Exchange Securities for all Registrable Securities that have been
properly tendered and not withdrawn on or prior to the expiration of the
Exchange Offer. The Exchange Offer will be deemed to have been "completed"
only if the debt securities received by holders other than Restricted
Holders in the Exchange Offer for Registrable Securities are, upon
receipt, transferable by each such holder without restriction under the
Securities Act. The Exchange Offer shall be deemed to have been completed
upon the earlier to occur of (i) the Company having exchanged the Exchange
Securities for all outstanding Registrable Securities pursuant to the
Exchange Offer and (ii) the Company having exchanged, pursuant to the
Exchange Offer, Exchange Securities for all Registrable Securities that
have been properly tendered and not withdrawn before the expiration of the
Exchange Offer, which shall be on a date that is at least 30 days
following the commencement of the Exchange Offer. The Company agrees (x)
to include in the Exchange Registration Statement a prospectus for use in
any resales by any holder of Exchange Securities that is a broker-dealer
and (y) to keep such Exchange Registration Statement effective for a
period (the "Resale Period") beginning when Exchange Securities are first
issued in the Exchange Offer and ending upon the earlier of the expiration
of the 180th day after the Exchange Offer has been completed or such time
as such broker-dealers no longer own any Registrable Securities. With
respect to such Exchange Registration Statement, such holders shall have
the benefit of the rights of indemnification and contribution set forth in
Sections 6(a), (c), (d) and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed
existing Commission interpretations are changed such that the debt
securities received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are not or would not be, upon
receipt, transferable by each such holder without restriction under the
Securities Act, (ii) the Exchange Offer has not been completed within 225
days following the Closing Date or (iii) the Exchange Offer is not
available to any holder of the Securities, the Company shall, in lieu of
(or, in the case of clause (iii), in addition to) conducting the Exchange
Offer contemplated by Section 2(a), use our best efforts to file under the
Securities Act as promptly as practicable after such filing obligation
arises, a "shelf" registration statement providing for the registration
of, and the sale on a continuous or delayed basis by the holders of, all
of the Registrable Securities, pursuant to Rule 415 or any similar rule
that may be adopted by the Commission (such filing, the "Shelf
Registration" and such registration statement, the "Shelf Registration
Statement"). The Company agrees to use its best efforts (x) to cause the
Shelf Registration Statement to become or be declared effective within 120
days following the filing of such Shelf Registration Statement and to keep
such Shelf Registration Statement continuously effective for a period
ending on the earlier of the second anniversary of the Effective Time or
such time as there are no longer any Registrable Securities outstanding,
provided, however, that no holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities
unless such holder is an Electing Holder, and (y) after the Effective Time
of the Shelf Registration Statement, upon the request of any holder of
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<PAGE> 6
Registrable Securities that is not then an Electing Holder, to take any
action reasonably necessary to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities, including,
without limitation, any action necessary to identify such holder as a
selling securityholder in the Shelf Registration Statement, provided,
however, that nothing in this clause (y) shall relieve any such holder of
the obligation to return a completed and signed Notice and Questionnaire
to the Company in accordance with Section 3(d)(iii) hereof. The Company
further agrees to supplement or make amendments to the Shelf Registration
Statement, as and when required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or rules and regulations
thereunder for shelf registration.
(c) In the event that (i) the Company has not filed the Exchange
Registration Statement or Shelf Registration Statement on or before the
date on which such registration statement is required to be filed pursuant
to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration
Statement or Shelf Registration Statement has not become effective or been
declared effective by the Commission on or before the date on which such
registration statement is required to become or be declared effective
pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange
Offer has not been completed within 45 days following the initial
effective date of the Exchange Registration Statement relating to the
Exchange Offer (if the Exchange Offer is then required to be made) or (iv)
any Exchange Registration Statement or Shelf Registration Statement
required by Section 2(a) or 2(b) hereof is filed and declared effective
but shall thereafter either be withdrawn by the Company or shall become
subject to an effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such registration statement
(except as specifically permitted herein) without being succeeded
immediately by an additional registration statement filed and declared
effective (each such event referred to in clauses (i) through (iv), a
"Registration Default" and each period during which a Registration Default
has occurred and is continuing, a "Registration Default Period"), then, as
liquidated damages for such Registration Default, subject to the
provisions of Section 9(b), special interest ("Special Interest"), in
addition to the Base Interest, shall accrue at a per annum rate of 0.25%
for the first 90 days of the Registration Default Period, at a per annum
rate of 0.50% for the second 90 days of the Registration Default Period,
at a per annum rate of 0.75% for the third 90 days of the Registration
Default Period and at a per annum rate of 1.0% thereafter for the
remaining portion of the Registration Default Period.
(d) The Company shall take all actions necessary or advisable to be
taken by it to ensure that the transactions contemplated herein are
effected as so contemplated.
(e) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference
herein to any post-effective amendment to a registration statement as of
any time shall be deemed to include any document
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<PAGE> 7
incorporated, or deemed to be incorporated, therein by reference as of
such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section
2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Registration
Statement or the Shelf Registration Statement, as the case may be, the
Company shall qualify the Indenture under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall:
(i) prepare and file with the Commission, within 90 days
following the Closing Date, an Exchange Registration Statement on
any form which may be utilized by the Company and which shall permit
the Exchange Offer and resales of Exchange Securities by
broker-dealers during the Resale Period to be effected as
contemplated by Section 2(a), and use its best efforts to cause such
Exchange Registration Statement to become effective within 180 days
following the Closing Date;
(ii) promptly file with the Commission such amendments and
supplements to such Exchange Registration Statement and the
prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Exchange Registration Statement
for the periods and purposes contemplated in Section 2(a) hereof and
as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
Exchange Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of copies
of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder, as such
broker-dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of Exchange
Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, (A) when such Exchange Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed,
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<PAGE> 8
and, with respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective, (B) of
any requests by the Commission for amendments or supplements to such
Exchange Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Exchange Registration Statement
or the initiation or threatening of any proceedings for that
purpose, (D) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Exchange
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (E) at any time
during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such Exchange Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects
to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(iv) in the event that the Company would be required, pursuant
to Section 3(e)(iii)(F) above, to notify any broker-dealers holding
Exchange Securities, without delay prepare and furnish to each such
holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such
Exchange Securities during the Resale Period, such prospectus shall
conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and shall not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(v) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such Exchange Registration Statement
or any post-effective amendment thereto at the earliest practicable
date;
(vi) use its best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of
such jurisdictions as are contemplated by Section 2(a) no later than
the commencement of the Exchange Offer, (B) keep such registrations
or qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period and (C) take
any and all other actions as may be reasonably necessary to enable
each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however, that
the Company shall not be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein it
would not
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<PAGE> 9
otherwise be required to qualify but for the requirements of this
Section 3(c)(vi), (2) consent to general or unlimited service of
process or taxation in any such jurisdiction or (3) make any changes
to its certificate of incorporation or by-laws or any agreement
between it and its stockholders;
(vii) use its best efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or
local, which may be required to effect the Exchange Registration,
the Exchange Offer and the offering and sale of Exchange Securities
by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time;
(ix) comply with all applicable rules and regulations of the
Commission and shall make generally available to its securityholders
within eighteen months after the effective date of such Exchange
Registration Statement, an earning statement (which need not be
audited) of the Company and its subsidiaries complying with Section
11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to the
Shelf Registration, if applicable, the Company shall:
(i) prepare and file with the Commission within the time
periods specified in Section 2(b), a Shelf Registration Statement on
any form which may be utilized by the Company and which shall
register all of the Registrable Securities for resale by the holders
thereof in accordance with such method or methods of disposition as
may be specified by such of the holders as, from time to time, may
be Electing Holders and use its best efforts to cause such Shelf
Registration Statement to become effective within the time periods
specified in Section 2(b);
(ii) not less than 25 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Registrable Securities; no holder
shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement as of the Effective Time, and no holder
shall be entitled to use the prospectus forming a part thereof for
resales of Registrable Securities at any time, unless such holder
has returned a fully completed and signed Notice and Questionnaire
satisfactory to the Company by the deadline for response set forth
therein; provided, however, holders of Registrable Securities shall
have at least 20 calendar days from the date on which the Notice and
Questionnaire is first mailed to such holders to return a fully
completed and signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration
Statement, upon
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<PAGE> 10
the request of any holder of Registrable Securities that is not then
an Electing Holder, promptly send a Notice and Questionnaire to such
holder; provided that the Company shall not be required to take any
action to name such holder as a selling securityholder in the Shelf
Registration Statement or to enable such holder to use the
prospectus forming a part thereof for resales of Registrable
Securities until such holder has returned a fully completed and
signed Notice and Questionnaire satisfactory to the Company;
(iv) promptly prepare and file with the Commission such
amendments and supplements to such Shelf Registration Statement and
the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Shelf Registration Statement for
the period specified in Section 2(b) hereof and as may be required
by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Shelf Registration
Statement, and furnish to the Electing Holders copies of any such
supplement or amendment promptly following its filing with the
Commission;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities
covered by such Shelf Registration Statement in accordance with the
intended methods of disposition by the Electing Holders provided for
in such Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Agreement, shall include a person
deemed to be an underwriter within the meaning of Section 2(a)(11)
of the Securities Act), if any, thereof, (C) any sales or placement
agent therefor, (D) counsel for any such underwriter or agent and
(E) not more than one counsel for all the Electing Holders the
reasonable opportunity to participate at their own cost and expense
in the preparation of such Shelf Registration Statement, each
prospectus included therein or filed with the Commission and each
amendment or supplement thereto;
(vii) upon written request for a reasonable period prior to
the filing of such Shelf Registration Statement, and throughout the
period specified in Section 2(b), make available at reasonable times
at the Company's principal place of business or such other
reasonable place for inspection by the persons referred to in
Section 3(d)(vi) who shall certify to the Company that they have a
current intention to sell the Registrable Securities pursuant to the
Shelf Registration such financial and other information and books
and records of the Company, and cause the officers and employees of
the Company to respond to such inquiries as shall be reasonably
necessary, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided, however, that the
foregoing inspection shall be coordinated by one counsel designated
by the Majority Holders shall be required to maintain in confidence
and not to disclose to any other person any information or records
reasonably designated by the Company as
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<PAGE> 11
being confidential, until such time as (A) such information becomes
a matter of public record through a third party without an
accompanying obligation of confidentiality, or (B) such person shall
be required so to disclose such information pursuant to a subpoena
or order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Company
prompt prior written notice of such requirement), or (C) such
information is required to be set forth in such Shelf Registration
Statement or the prospectus included therein or in an amendment to
such Shelf Registration Statement or an amendment or supplement to
such prospectus in order that such Shelf Registration Statement,
prospectus, amendment or supplement, as the case may be, complies
with applicable requirements of the federal securities laws and the
rules and regulations of the Commission and does not contain an
untrue statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(viii) promptly notify each of the Electing Holders, any sales
or placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose), (A) when such
Shelf Registration Statement or the prospectus included therein or
any prospectus amendment or supplement or post-effective amendment
has been filed, and, with respect to such Shelf Registration
Statement or any post-effective amendment, when the same has become
effective, (B) of any request by the Commission for amendments or
supplements to such Shelf Registration Statement or prospectus or
for additional information, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or (E)
if at any time when a prospectus is required to be delivered under
the Securities Act, that such Shelf Registration Statement,
prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(ix) use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or
any post-effective amendment thereto at the earliest practicable
date;
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<PAGE> 12
(x) if requested in writing by any managing underwriter or
underwriters, any placement or sales agent or any Electing Holder,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules
and regulations of the Commission and as such managing underwriter
or underwriters, such agent or such Electing Holder specifies should
be included therein relating to the terms of the sale of such
Registrable Securities, including information with respect to the
principal amount of Registrable Securities being sold by such
Electing Holder or agent or to any underwriters, the name and
description of such Electing Holder, agent or underwriter, the
offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities to be sold by such Electing Holder or agent or to such
underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification
of the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(xi) furnish to each Electing Holder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(d)(vi) such number of
copies of such Shelf Registration Statement (excluding exhibits
thereto and documents incorporated by reference therein unless
specifically so requested by such Electing Holder, agent or
underwriter, as the case may be) and of the prospectus included in
such Shelf Registration Statement (including each preliminary
prospectus and any summary prospectus), in conformity in all
material respects with the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, and such other documents, as such Electing
Holder, agent, if any, and underwriter, if any, may reasonably
request in order to facilitate the offering and disposition of the
Registrable Securities owned by such Electing Holder, offered or
sold by such agent or underwritten by such underwriter and to permit
such Electing Holder, agent and underwriter to satisfy the
prospectus delivery requirements of the Securities Act; and the
Company hereby consents to the use of such prospectus (including
such preliminary and summary prospectus) and any amendment or
supplement thereto by each such Electing Holder and by any such
agent and underwriter, in each case in the form most recently
provided to such person by the Company, in connection with the
offering and sale of the Registrable Securities covered by the
prospectus (including such preliminary and summary prospectus) or
any supplement or amendment thereto;
(xii) use its best efforts to (A) register or qualify the
Registrable Securities to be included in such Shelf Registration
Statement under such securities laws or blue sky laws of such
jurisdictions as any Electing Holder and each placement or sales
agent, if any, therefor and underwriter, if any, thereof
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<PAGE> 13
shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit
the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required
to remain effective under Section 2(b) above and for so long as may
be necessary to enable any such Electing Holder, agent or
underwriter to complete its distribution of Securities pursuant to
such Shelf Registration Statement and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
such Electing Holder, agent, if any, and underwriter, if any, to
consummate the disposition in such jurisdictions of such Registrable
Securities; provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section
3(d)(xii), (2) consent to general or unlimited service of process or
taxation in any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws or any agreement between it
and its stockholders;
(xiii) use its best efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or
local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable the selling
holder or holders to offer, or to consummate the disposition of,
their Registrable Securities;
(xiv) Unless any Registrable Securities shall be in book-entry
only form, cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold, and which certificates shall not bear any restrictive legends;
and, in the case of an underwritten offering, enable such
Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may reasonably request at
least five business days prior to any sale of the Registrable
Securities;
(xv) provide a CUSIP number for all Registrable Securities,
not later than the applicable Effective Time;
(xvi) enter into such agreements, in connection with the
registration or disposition of the Registrable Securities in order
to expedite or facilitate the disposition of such Registrable
Securities, if an underwriting agreement is entered into, cause the
same to contain customary provisions relating to indemnification and
contribution, and take such other actions in connection therewith as
the Majority Holders shall request;
(xvii) whether or not an agreement of the type referred to in
Section 3(d)(xvi) hereof is entered into and whether or not any
portion of the offering contemplated by the Shelf Registration is an
underwritten offering or is made
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<PAGE> 14
through a placement or sales agent or any other entity, (A) make
such representations and warranties to the Electing Holders and the
placement or sales agent, if any, therefor and the underwriters, if
any, thereof in form, substance and scope as are customarily made in
connection with an offering of debt securities pursuant to any
appropriate agreement or to a registration statement filed on the
form applicable to the Shelf Registration; (B) obtain an opinion of
counsel to the Company in customary form and covering such matters,
of the type customarily covered by such an opinion, as the Majority
Holders may reasonably request, addressed to such Electing Holder or
Electing Holders and the placement or sales agent, if any, therefor
and the underwriters, if any, thereof and dated the effective date
of such Shelf Registration Statement (and if such Shelf Registration
Statement contemplates an underwritten offering of a part or all of
the Registrable Securities, dated the date of the closing under the
underwriting agreement relating thereto) it being agreed that the
matters to be covered by such opinion shall include in form,
substance and scope those matters set forth in Section 7(b) and
Section 7(c)(2) of the Purchase Agreement; (C) obtain a "cold
comfort" letter or letters from the independent certified public
accountants of the Company addressed to the selling Electing
Holders, the placement or sales agent, if any, therefor or the
underwriters, if any, thereof, dated (i) the effective date of such
Shelf Registration Statement and (ii) the effective date of any
prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus (and, if such
Shelf Registration Statement contemplates an underwritten offering
pursuant to any prospectus supplement to the prospectus included in
such Shelf Registration Statement or post-effective amendment to
such Shelf Registration Statement which includes unaudited or
audited financial statements as of a date or for a period subsequent
to that of the latest such statements included in such prospectus,
dated the date of the closing under the underwriting agreement
relating thereto), such letter or letters to be in customary form
and covering such matters of the type customarily covered by letters
of such type; (D) deliver such documents and certificates, including
officers' certificates, as may be reasonably requested by the
Majority Holders to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained in
Section 5(a) hereof and the compliance with or satisfaction of any
agreements or conditions contained in the underwriting agreement or
other agreement entered into by the Company; and (E) undertake such
obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable
Securities of any proposal by the Company to amend or waive any
provision of this Agreement pursuant to Section 9(h) hereof and of
any amendment or waiver effected pursuant
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<PAGE> 15
thereto, each of which notices shall contain the text of the
amendment or waiver proposed or effected, as the case may be;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the
Conduct Rules (the "Conduct Rules") of the National Association of
Securities Dealers, Inc. ("NASD") or any successor thereto, as
amended from time to time) thereof, whether as a holder of such
Registrable Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, assist
such broker-dealer in complying with the requirements of such
Conduct Rules, including by (A) if such Conduct Rules shall so
require, engaging a "qualified independent underwriter" (as defined
in such Conduct Rules) to participate in the preparation of the
Shelf Registration Statement relating to such Registrable
Securities, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such
Shelf Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof, and (C) providing such
information to such broker-dealer as may be required in order for
such broker-dealer to comply with the requirements of the Conduct
Rules; and
(xx) comply with all applicable rules and regulations of the
Commission, and shall make generally available to its
securityholders within eighteen months after the effective date of
such Shelf Registration Statement, an earning statement (which need
not be audited) of the Company and its subsidiaries complying with
Section 11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(F) above, to notify the Electing Holders, the placement
or sales agent, if any, therefor and the managing underwriters, if any,
thereof, the Company shall without delay prepare and furnish to each of
the Electing Holders, to each placement or sales agent, if any, and to
each such underwriter, if any, a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to
purchasers of Registrable Securities, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder and shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances then existing. Each Electing Holder agrees that upon receipt
of any notice from the Company pursuant to Section 3(d)(viii)(F) hereof,
such Electing Holder shall forthwith discontinue the disposition of
Registrable Securities pursuant to the Shelf Registration Statement
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<PAGE> 16
applicable to such Registrable Securities until such Electing Holder shall
have received copies of such amended or supplemented prospectus, and if so
directed by the Company, such Electing Holder shall deliver to the Company
(at the Company's expense) all copies, then in such Electing Holder's
possession of the prospectus covering such Registrable Securities at the
time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice
and Questionnaire, the Company may require such Electing Holder to furnish
to the Company such additional information regarding such Electing Holder
and such Electing Holder's intended method of distribution of Registrable
Securities as may be required in order to comply with the Securities Act.
Each such Electing Holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously
furnished by such Electing Holder to the Company or of the occurrence of
any event in either case as a result of which any prospectus relating to
such Shelf Registration contains or would contain an untrue statement of a
material fact regarding such Electing Holder or such Electing Holder's
intended method of disposition of such Registrable Securities or omits to
state any material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Registrable Securities
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing, and promptly
to furnish to the Company any additional information required to correct
and update any previously furnished information or required so that such
prospectus shall not contain, with respect to such Electing Holder or the
disposition of such Registrable Securities, an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing.
(g) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined
in Rule 144) to, resell any of the Securities that have been reacquired by
any of them except pursuant to an effective registration statement under
the Securities Act.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly
all expenses incident to the Company's performance of or compliance with this
Agreement, including (a) all Commission and any NASD registration, filing and
review fees and expenses including fees and disbursements of up to one counsel
for the Majority Holders (which counsel shall be reasonably satisfactory to the
Company) in connection with such registration, filing and review, (b) all fees
and expenses in connection with the qualification of the Securities for offering
and sale under the State securities and blue sky laws referred to in Section
3(d)(xii) hereof and determination of their eligibility for investment under the
laws of such jurisdictions as the Majority Holders may designate, including any
fees and disbursements of the above designated counsel referred to in subclause
(a) above in connection with such qualification and determination, (c) all
expenses
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<PAGE> 17
relating to the preparation, printing, production, distribution and reproduction
of each registration statement required to be filed hereunder, each prospectus
included therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities for
delivery and the expenses of printing or producing any underwriting agreements,
agreements among underwriters, selling agreements and blue sky or legal
investment memoranda and all other documents in connection with the offering,
sale or delivery of Securities to be disposed of (including certificates
representing the Securities), (d) messenger, telephone and delivery expenses
relating to the offering, sale or delivery of Securities and the preparation of
documents referred to in clause (c) above, (e) fees and expenses of the Trustee
under the Indenture, any agent of the Trustee and the counsel for the Trustee
and of any collateral agent or custodian, (f) internal expenses (including all
salaries and expenses of the Company's officers and employees performing legal
or accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the expenses
of any opinions or "cold comfort" letters required by or incident to such
performance and compliance), (h) fees, disbursements and expenses of any
"qualified independent underwriter" engaged pursuant to Section 3(d)(xix)
hereof, (i) any fees charged by securities rating services for rating the
Securities, and (j) fees, expenses and disbursements of any other persons,
including special experts, retained by the Company in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof, the
Company shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after the party requesting
reimbursement has provided appropriate documentation and receipts to the Company
evidencing the disbursement. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each
Purchaser and each of the holders from time to time of Registrable Securities
that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(d) or Section 3(c)
hereof and any further amendments or supplements to any such registration
statement or prospectus, when it becomes effective or is filed with the
Commission, as the case may be, and, in the case of an underwritten
offering of Registrable Securities, at the time of the closing under the
underwriting agreement relating thereto, will conform in all material
respects to the requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
17
<PAGE> 18
statements therein not misleading; and at all times subsequent to the
Effective Time when a prospectus would be required to be delivered under
the Securities Act, other than from (i) such time as a notice has been
given to holders of Registrable Securities pursuant to Section
3(d)(viii)(F) or Section 3(c)(iii)(F) hereof until (ii) such time as the
Company furnishes an amended or supplemented prospectus pursuant to
Section 3(e) or Section 3(c)(iv) hereof, each such registration statement,
and each prospectus (including any summary prospectus) contained therein
or furnished pursuant to Section 3(d) or Section 3(c) hereof, as then
amended or supplemented, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became effective
or are or were filed with the Commission, as the case may be, will conform
or conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents will contain or contained an untrue statement of a material fact
or will omit or omitted to state a material fact required to be stated
therein or necessary to make the statements therein 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 furnished in writing to the Company by a holder of
Registrable Securities expressly for use therein.
laws in connection with the offering and distribution of the
Securities.
(c) This Agreement has been duly authorized, executed and delivered
by the Company.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify and
hold harmless each of the holders of Registrable Securities included in an
Exchange Registration Statement, each of the Electing Holders of
Registrable Securities included in a Shelf Registration Statement and each
person who participates as a placement or sales agent or as an underwriter
in any offering or sale of such Registrable Securities against any losses,
claims, damages or liabilities, joint or several, to which such holder,
agent or underwriter may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Exchange Registration Statement or Shelf Registration Statement, as the
case may
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<PAGE> 19
be, under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein or furnished by the Company to any such holder, Electing Holder,
agent or underwriter, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such holder, such
Electing Holder, such agent and such underwriter for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable to any such person
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission (i) made in such
registration statement, or preliminary, final or summary prospectus, or
amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by such person expressly for
use therein, or (ii) was corrected in such registration statement, or
preliminary, final or summary prospectus, or amendment or supplement
thereto, if the person alleging such loss, claim, damage or liability was
not sent or given, at or prior to the written confirmation of such sale, a
copy of the amended registration statement, or preliminary, final or
summary prospectus or amendment or supplement thereto, if the Company had
previously furnished copies thereof to such party and if delivery of a
prospectus is required by the Securities Act and was not so made.
(b) Indemnification by the Holders and any Agents and Underwriters.
The Electing Holders of such Registrable Securities included in any
registration statement filed pursuant to Section 2(b) and 2(a) hereof and
each person who participates as a placement agent, sales agent or as an
underwriter in any offering of such Registrable Securities, severally and
not jointly, agrees to (i) indemnify and hold harmless the Company and all
other holders of Registrable Securities, against any losses, claims,
damages or liabilities to which the Company or such other holders of
Registrable Securities may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such Electing Holder,
agent or underwriter, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Electing Holder,
placement agent, sales agent or underwriter expressly for use therein, and
(ii) reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however,
that no such Electing Holder, placement agent, sales agent or underwriter
shall be required to
19
<PAGE> 20
undertake liability to any person under this Section 6(b) for any amounts
in excess of the dollar amount of the proceeds to be received by such
Electing Holder from the sale of such Electing Holder's Registrable
Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under Section 6 (a) or (b) hereof of written notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party pursuant to
the indemnification provisions of or contemplated by this Section 6,
notify such indemnifying party in writing of the commencement of such
action; but the failure to so notify the indemnifying party (i) will not
relieve the indemnifying party from liability under Section 6 (a) or (b)
hereof unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in Section (a) or (b) hereof.
In case any such action shall be brought against any indemnified party and
it shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, such indemnifying party
shall not be liable to such indemnified party for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) hereof are unavailable to or
insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall have a joint and
several obligation to contribute to the amount paid or payable to such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in
20
<PAGE> 21
respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or by such
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The parties hereto agree that it would not be just and equitable
if contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in this Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred
by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section
6(d), no holder shall be required to contribute any amount in excess of
the amount by which the dollar amount of the proceeds received by such
holder from the sale of any Registrable Securities (after deducting any
fees, discounts and commissions applicable thereto) exceeds the amount of
any damages which such holder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such underwriter 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 Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each holder, agent and underwriter and each person, if any, who
controls any holder, agent or underwriter within the meaning of the
Securities Act; and the obligations of the holders and any agents or
underwriters contemplated by this Section 6 shall be in addition to any
liability which the respective holder, agent or underwriter may otherwise
have and shall extend, upon the same terms and conditions, to each officer
and director of the Company and to each person, if any, who controls the
Company within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof
shall be designated by the Majority Holders of the
21
<PAGE> 22
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably
acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may
participate in any underwritten offering hereunder unless such holder (i)
agrees to sell such holder's Registrable Securities on the basis provided
in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably requested by the Company and reasonably
required under the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that
to the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144. Upon the request of any holder of Registrable Securities
in connection with that holder's sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this
Agreement.
(b) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to
have been duly given when received as follows: if to (i) the Company, to
it at 110 East 59th Street, New York, New York 10022; (ii) a holder, to it
at the address of such holder set forth in the security register or other
records of the Company; or (iii) to such other address as the Company or
any such holder may have furnished to the other in writing in accordance
herewith; provided, that notices of change of address shall be effective
only upon receipt.
(c) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall
be enforceable by the parties hereto and the holders from time to time of
the Registrable Securities and the respective
22
<PAGE> 23
successors and assigns of the parties hereto and such holders. In the
event that any transferee of any holder of Registrable Securities shall
acquire Registrable Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without
any further writing or action of any kind, be deemed a beneficiary hereof
for all purposes and such Registrable Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such
Registrable Securities such transferee shall be entitled to receive the
benefits of, and be conclusively deemed to have agreed to be bound by all
of the applicable terms and provisions of this Agreement. If the Company
shall so request, any such successor, assign or transferee shall agree in
writing to acquire and hold the Registrable Securities subject to all of
the applicable terms hereof.
(d) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof)
made by or on behalf of any holder of Registrable Securities, any
director, officer or partner of such holder, any agent or underwriter or
any director, officer or partner thereof, or any controlling person of any
of the foregoing, and shall survive delivery of and payment for the
Registrable Securities pursuant to the Purchase Agreement and the transfer
and registration of Registrable Securities by such holder and the
consummation of an Exchange Offer.
(e) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(f) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(g) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Indenture and the form of
Securities) or delivered pursuant hereto which form a part hereof contain
the entire understanding of the parties with respect to its subject
matter. This Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter. This Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company
and the Majority Holders of the Registrable Securities at the time
outstanding. Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any amendment or waiver effected
pursuant to this Section 9(g), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder.
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<PAGE> 24
(h) Inspection. For so long as this Agreement shall be in effect,
this Agreement and a complete list of the names and addresses of all the
holders of Registrable Securities shall be made available for inspection
and copying on any business day by any holder of Registrable Securities
for proper purposes only (which shall include any purpose related to the
rights of the holders of Registrable Securities under the Securities, the
Indenture and this Agreement) at the offices of the Company at the address
thereof set forth in Section 9(b) above and at the office of the Trustee
under the Indenture.
(i) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
24
<PAGE> 25
If the foregoing is in accordance with your understanding,
please sign and return to us ten 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 Company. 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 Company for examination upon
request, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
NTL Communications Corp.
By:
Name:
Title:
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<PAGE> 26
Accepted as of the date hereof:
Goldman Sachs International
Chase Manhattan International
Salomon Brothers International Limited
Donaldson, Lufkin & Jenrette International
UBS AG, acting through its division Warburg Dillon Read Bankers Trust
International PLC
By:
(Goldman Sachs International)
Morgan Stanley & Co. International Limited
By: --------------------------------------
Name:
Title:
26
<PAGE> 27
Exhibit A
NTL Communications Corp.
INSTRUCTION TO EUROCLEAR OR CEDELBANK PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: ________*
Euroclear or Cedelbank, each of which has an account with the Common Depositary
(the `Common Depositary") has identified you as a Participant through which
beneficial interests in the NTL Communications Corp. (the "Company") 9 3/4%
Senior Deferred Coupon Notes due 2009 (the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by _______. Please forward a copy of the enclosed documents to
each beneficial owner that holds interests in the Securities through you. If you
require more copies of the enclosed materials or have any questions pertaining
to this matter, please contact the General Counsel of NTL Communications Corp.,
110 East 59th Street, New York, New York 10022, telephone: (212) 906-8480.
*Not less than 20 days from date of mailing.
A-27
<PAGE> 28
NTL Communications Corp.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Agreement (the "Exchange and Registration Rights
Agreement") between NTL Communications Corp. (the "Company") and the Purchasers
named therein. Pursuant to the Exchange and Registration Rights Agreement, the
Company has filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form __ (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's 9 3/4% Senior
Deferred Coupon Notes due 2009 (the "Securities"). A copy of the Exchange and
Registration Rights Agreement is attached hereto. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to have the
Registrable Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Securities included in the
Shelf Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire ("Notice and Questionnaire") must be completed,
executed and delivered to the Company's counsel at the address set forth herein
for receipt ON OR BEFORE _________. Beneficial owners of Registrable Securities
who do not complete, execute and return this Notice and Questionnaire by such
date (i) will not be named as selling securityholders in the Shelf Registration
Statement and (ii) may not use the Prospectus forming a part thereof for resales
of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
A-28
<PAGE> 29
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is true, accurate and
complete:
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<PAGE> 30
NOTICE AND QUESTIONNAIRE
(1)
(a) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in Item (3) below are held:
(b) Full Legal Name of Selling Securityholder:
(c) Full Legal Name of Participant (if applicable and if not the same as
(b) above) Through Which Registrable Securities Listed in Item (3)
below are Held:
(2) Address for Notices to Selling Securityholder:
__________________
_______
Telephone: ____________
Fax: _______________
Contact Person: _______
(3) Beneficial Ownership of Registrable Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:
CUSIP/ISN No(s). of such Registrable Securities:
(b) Principal amount of Securities of the Company other than Registrable
Securities beneficially owned:
CUSIP/ISN No(s). of such other Securities:
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement: CUSIP/ISN
No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in Item
(3).
State any exceptions here:
A-30
<PAGE> 31
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates) during
the past three years.
State any exceptions here: _______________________________________________
__________________________________________________________________________
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. If the Registrable
Securities are sold through underwriters or broker-dealers, the Selling
Securityholder will be responsible for underwriting discounts or
commissions or agents' commissions. Such Registrable Securities may be
sold in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time of
sale, or at negotiated prices. Such sales may be effected in transactions
(which may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable
Securities or otherwise, the Selling Securityholder may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales
of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities
short and deliver Registrable Securities to close out such short
positions, or loan or pledge Registrable Securities to broker-dealers that
in turn may sell such securities.
State any exceptions here: _______________________________________________
__________________________________________________________________________
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M. The Selling Securityholder agrees that neither it nor any person
acting on its behalf will engage in any transaction in violation of such
provisions.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the
A-31
<PAGE> 32
Company, the Selling Securityholder agrees to notify the transferee(s) at the
time of the transfer of its rights and obligations under this Notice and
Questionnaire and the Exchange and Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Company: NTL Communications Corp.
110 East 59th Street
New York, New York 10022
Attention: General Counsel
(ii) With a copy to: Skadden, Arps, Slate, Meagher &
Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Thomas H. Kennedy
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above). This
Agreement shall be governed in all respects by the laws of the State of New
York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: _____________________
A-32
<PAGE> 33
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By:
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE ______ TO THE COMPANY'S COUNSEL AT:
NTL Communications Corp.
110 East 59th Street
New York, New York 10022
Attention: General Counsel
A-33
<PAGE> 34
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Chase Manhattan Bank
NTL Communications Corp.
c/o The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Trust Officer
Re: NTL Communications Corp. (the "Company")
9 3/4% Senior Deferred Coupon Notes due 2009 (the "Notes")
Dear Sirs:
Please be advised that __________ has transferred (pound)_______ aggregate
principal amount at maturity of the above-referenced Notes pursuant to an
effective Registration Statement on Form ________ (File No. 333- ______ ) filed
by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Securityholder" in the
Prospectus dated ________ or in supplements thereto, and that the aggregate
principal amount at maturity of the Notes transferred are the Notes listed in
such Prospectus opposite such owner's name.
Dated:
Very truly yours,
(Name)
By:
(Authorized Signature)
B-34
<PAGE> 1
HOLDING PAGE ONLY
-----------------
THIS DOCUMENT IS MISSING
COPY TO COME
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4) and related Prospectus of NTL Communications
Corp. for the registration of its 9 3/4% Senior Deferred Coupon Notes due 2009
and to the incorporation by reference therein of our report dated March 26,
1999, with respect to the consolidated financial statements and schedules of NTL
Communications Corp. included in its Annual Report (Form 10-K) for the year
ended December 31, 1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
May 13, 1999
New York, New York
<PAGE> 1
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
NTL Communications Corp. on Form S-4 of our report dated February 27, 1998, on
the consolidated financial statements as of December 31, 1997 and 1996 and for
each of the three years in the period ended December 31, 1997 of Comcast UK
Cable Partners Limited and subsidiaries.
We also consent to the reference to us under the headings "Experts" in the
Prospectus, which is part of such Registration Statement.
/s/ Deloitte & Touche LLP
Philadelphia, Pennsylvania
May 12, 1999
<PAGE> 1
Exhibit 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
NTL Communications Corp. on Form S-4 of our report dated February 27, 1998
(March 16, 1998 as to Note 3), on the consolidated financial statements as of
December 31, 1997 and 1996 and for each of the three years in the period ended
December 31, 1997 of Birmingham Cable Corporation Limited and subsidiaries.
We also consent to the reference to us under the headings "Experts" in such
Prospectus, which is part of such Registration Statement.
/s/ Deloitte & Touche
Birmingham, England
May 12, 1999
<PAGE> 1
Exhibit 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
NTL Communications Corp. on Form S-4 of our report dated February 27, 1998 on
the consolidated financial statements as of December 31, 1997 and 1996 and for
each of the three years in the period ended December 31, 1997 of Cable London
PLC and subsidiaries.
We also consent to the reference to us under the headings "Experts" in the
Prospectus, which is part of such Registration Statement.
/s/ Deloitte & Touche
Deloitte & Touche
London, England
May 12, 1999
<PAGE> 1
Exhibit 23.5
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to the
use of our report dated June 5, 1998 (except Note 10 as to which the date is
July 16, 1998) with respect to the financial statements of ComTel UK Finance
B.V., and of our report dated June 5, 1998 (except Note 9 as to which the date
is July 16, 1998) with respect to the combined financial statements of
Telecential Communications (Canada) Limited and Telecential Communications (UK)
Limited, incorporated by reference in the Registration Statement on Form S-4 to
be filed by NTL Communications Corp. relating to the exchange of new 9 3/4%
Series B Senior Deferred Coupon Notes due 2009 for old 9 3/4% Senior Deferred
Coupon Notes due 2009.
/s/ Deloitte & Touche
Deloitte & Touche
Chartered Accountants
Bracknell, England
May 12, 1999
<PAGE> 1
Exhibit 23.6
[COOPERS & LYBRAND LETTERHEAD]
12 May 1999
We hereby consent to the incorporation by reference in the Registration
Statement of NTL Communications Corp. on Form S-4 of our report, dated 5 June
1998, except for Note 10 as to which the date is 16 July 1998, on our audit of
the Combined Financial Information of ComTel UK Finance B.V. as of and for the
year ended 31 December 1996. We also consent to the references to our firm
under the caption "Experts".
/s/ Coopers & Lybrand
Coopers & Lybrand
Chartered Accountants
London, United Kingdom
<PAGE> 1
Exhibit 23.7
CONSENT OF INDEPENDENT AUDITORS
To the shareholders
Diamond Cable Communications Plc:
We consent to the use of our report dated March 30, 1999 with respect to
Diamond Cable Communications Plc incorporated by reference herein and to the
references to our firm under the heading "Experts" in the Registration
Statement on Form S-4 of NTL Communications Corp.
/s/ KPMG
KPMG
Nottingham, England
May 12, 1999
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
NTL COMMUNICATIONS CORP.
(Exact name of obligor as specified in its charter)
DELAWARE 52-1822078
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
110 EAST 59TH STREET, 26TH FLOOR
NEW YORK, NEW YORK 10022
(Address of principal executive offices) (Zip Code)
9 3/4% SENIOR DEFERRED COUPON NOTES DUE 2009
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 10th day of May 1999.
THE CHASE MANHATTAN BANK
By /s/Andrew M. Deck
Andrew M. Deck
Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998,
in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
<S> <C> <C>
currency and coin .......................... $ 13,915
Interest-bearing balances .................. 7,805
Securities:
Held to maturity securities ..................... 1,429
Available for sale securities ................... 56,327
Federal funds sold and securities purchased under
agreements to resell ....................... 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income ... $131,095
Less: Allowance for loan and lease losses .. 2,711
Less: Allocated transfer risk reserve ...... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ..................... 128,384
Trading Assets .................................. 48,949
Premises and fixed assets (including capitalized
leases) .................................... 3,095
Other real estate owned ......................... 239
Investments in unconsolidated subsidiaries and
associated companies ....................... 199
Customers' liability to this bank on acceptances
outstanding ................................ 1,209
Intangible assets ............................... 2,081
Other assets .................................... 11,352
--------
TOTAL ASSETS .................................... $296,717
========
</TABLE>
- 4 -
<PAGE> 5
LIABILITIES
<TABLE>
Deposits
<S> <C> <C>
In domestic offices ................................................ $105,879
Noninterest-bearing ................................................ $ 39,175
Interest-bearing ................................................... 66,704
In foreign offices, Edge and Agreement,
subsidiaries and IBF's ............................................. 79,294
Noninterest-bearing ..................................................... $ 4,082
Interest-bearing ................................................... 75,212
Federal funds purchased and securities sold under
agreements to repurchase ........................................... 32,546
Demand notes issued to the U.S. Treasury ................................ 629
Trading liabilities ..................................................... 36,807
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ...................... 4,478
With a remaining maturity of more than one year ....................
through three years ......................................... 213
With a remaining maturity of more than three years ............... 115
Bank's liability on acceptances executed and outstanding ................ 1,209
Subordinated notes and debentures ....................................... 5,408
Other liabilities ....................................................... 10,855
TOTAL LIABILITIES ....................................................... 277,433
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ........................... 0
Common stock ............................................................ 1,211
Surplus (exclude all surplus related to preferred stock) ............... 11,016
Undivided profits and capital reserves .................................. 6,762
Net unrealized holding gains (losses)
on available-for-sale securities ........................................ 279
Cumulative foreign currency translation adjustments ..................... 16
TOTAL EQUITY CAPITAL .................................................... 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL .................................... $296,717
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
