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NTL COMMUNICATIONS CORP.,
NTL INCORPORATED,
and
THE CHASE MANHATTAN BANK,
as Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of March 16, 2000
Supplementing the Indenture dated as of December 16, 1998
between NTL Communications Corp. (formerly known as NTL
Incorporated) and The Chase Manhattan Bank, as Trustee, as
amended by the First Supplemental Indenture dated as of
March 31, 1999 among NTL Communications Corp. (formerly
known as NTL Incorporated), NTL Incorporated (formerly known
as NTL Communications Corp.) and The Chase Manahattan Bank
7% CONVERTIBLE SUBORDINATED NOTES
DUE 2008
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SECOND SUPPLEMENTAL INDENTURE dated as of March 16, 2000 among NTL
Communications Corp., a Delaware corporation (the "COMPANY"), NTL Incorporated,
a Delaware corporation ("HOLDCO"), and The Chase Manhattan Bank, a New York
corporation, as trustee (the "TRUSTEE").
WITNESSETH:
WHEREAS, the Company and the Trustee previously executed and delivered
the Indenture dated as of December 16, 1998 (the "ORIGINAL INDENTURE"),
providing for the creation, execution, authentication and delivery of the
Company's 7% Convertible Subordinated Notes due 2008 (each a "SECURITY" and
collectively the "SECURITIES"), which Securities were convertible into shares of
common stock, par value $.01 per share (the "OLD NTL COMMON STOCK"), of the
Company in accordance with the terms and conditions of the Original Indenture;
WHEREAS, on March 26, 1999, the Company, Holdco and NTL Mergerco,
Inc., a Delaware corporation that was a direct wholly-owned subsidiary of Holdco
and an indirect wholly-owned subsidiary of the Company ("MERGER SUB"), entered
into an Agreement and Plan of Merger (the "MERGER AGREEMENT"), pursuant to
which, among other things, effective April 1, 1999, Merger Sub was merged with
and into the Company in accordance with Section 251(g) of the General
Corporation Law of the State of Delaware (the "MERGER"), with the Company
continuing as the surviving corporation (the "SURVIVING CORPORATION") under the
name "NTL Communications Corp." and as a wholly-owned subsidiary of Holdco;
WHEREAS, pursuant to the Merger, each outstanding share of Old NTL
Common Stock was converted into the right to receive one validly issued, fully
paid and nonassessable share of common stock, par value $.01 per share, of
Holdco (the "NEW NTL COMMON STOCK");
WHEREAS, immediately prior to the Merger, the Company entered
into the First Supplemental Indenture, dated as of March 31, 1999, among Holdco,
the Company and the Trustee (the "First Supplemental Indenture" and, together
with the Original Indenture, the "Indenture"), pursuant to which effective with
the consummation of the Merger, Holdco assumed the obligation to issue shares of
New NTL Common Stock upon conversion of the Securities;
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WHEREAS, upon consummation of the Merger, the Company, as the
Surviving Corporation, continued to be liable for all of the payment obligations
of the Company under the Securities and the Indenture;
WHEREAS, Holdco desires to assume joint and several liability for the
obligations of the Company to pay the principal of, premium, if any, Liquidated
Damages, if any, and interest on, the Securities on the dates and in the manner
provided in the Securities;
WHEREAS, Section 11.01 of the Original Indenture provides that the
Company and the Trustee may from time to time amend or supplement the Indenture
without the consent of any Holders of the Securities, in order to, among other
things, make any change that does not adversely affect the interests of any
Holders under the Indenture;
WHEREAS, all actions necessary to make this Second Supplemental
Indenture and the Securities valid, binding and enforceable obligations of the
Company and, to the extent applicable, Holdco, have been performed and
fulfilled; and
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants herein contained each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the
Securities:
1 ARTICLE
DEFINITIONS
1.1 SECTION GENERAL. For all purposes of the Indenture and this Second
Supplemental Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to the Indenture and this Second Supplemental
Indenture as a whole and not to any particular Article, Section or
subdivision; and
(b) capitalized terms used but not defined herein shall have the
meanings assigned to them in the Indenture.
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2 ARTICLE
ASSUMPTION OF JOINT AND SEVERAL LIABILITY, ETC.
2.1 SECTION ASSUMPTION OF JOINT AND SEVERAL LIABILITY FOR
PAYMENT OBLIGATIONS OF THE COMPANY. Effective as of the date hereof,
Holdco hereby assumes joint and several liability for the obligations
of the Company to pay the principal of, premium, if any, Liquidated
Damages, if any, Offer Amount, if any, and interest on, the Securities
on the dates and in the manner provided in the Indenture and the
Securities. The obligations of Holdco to make payments with respect to
the Securities shall be subordinated to the same extent as the
obligations of the Company with respect to the Securities.
Accordingly, Article VI of the Indenture is hereby applicable to
Holdco as well as the Company, such that references therein to the
Company also shall apply to Holdco; in addition, for purposes of the
defined term "Senior Debt" as it is used in the Indenture, all
references therein to the Company also shall apply to Holdco.
2.2 SECTION RIGHTS, POWERS AND OBLIGATIONS OF THE COMPANY
CONTINUE. Except as expressly set forth in Section 2.01 of the First
Supplemental Indenture, the Company shall continue to exercise all of
the rights and powers of the Company under the Indenture and the
Securities and shall remain liable for all of the obligations of the
Company thereunder, including the performance and observance of every
covenant of the Indenture to be performed or observed on the part of
the Company.
SECTION 2.03 AGENCIES. Holdco shall be bound by and shall
have the benefit of the provisions of Section 2.03 of the Indenture to
the extent relating to Paying Agents as if references therein to the
Company were also to Holdco and shall be deemed to have appointed the
Trustee as its Paying Agent for the Securities.
SECTION 2.04 COMPLIANCE CERTIFICATES. To the extent
applicable to Holdco, Holdco shall be bound by the first two
paragraphs of Section 4.03 of the Indenture as if references therein
(i) to the Company were also to Holdco, (ii) to Officers were also to
the corresponding officers of Holdco and (iii) to Officers'
Certificates were also to certificates signed by two of such
corresponding officers of Holdco.
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SECTION 2.05 STAY, EXTENSION AND USURY LAWS. Holdco shall be
bound by the provisions of Section 4.04 of the Indenture as if
references therein to the Company were also to Holdco.
SECTION 2.06 EVENTS OF DEFAULT. Clauses (a), (b), (c) and
(d) of Section 8.01 of the Indenture hereby are amended and restated
in their entirety to read as follows:
(a) there is a default in the payment of interest or Liquidated
Damages, if any, (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) there is a default in the payment of the principal of any
Note when the same becomes due and payable at maturity, upon
redemption or otherwise;
(c) there is a failure to observe or perform any covenant or
agreement contained in Section 4.07 hereof;
(d) the Company or Holdco fails to observe or perform any other
covenant or agreement contained in this Indenture, required by it 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 of the then outstanding Notes to the
Company and the Trustee stating that such notice is a "Notice of
Default";
SECTION 2.07 ACCELERATION. The fifth sentence of Section 8.02 of the
Indenture hereby is amended to provide that the words "or Holdco" be added after
the first two references to "Company" contained therein.
SECTION 2.08 COLLECTION SUIT BY TRUSTEE. Section 8.08 of the Indenture
hereby is amended by adding the words "or any other obligor upon the Notes"
after the word "Company" in the second line thereof.
SECTION 2.09 PROOFS OF CLAIM. Section 8.09 of the Indenture hereby is
amended by adding the following words at the end of the first sentence thereof,
"or any other obligor upon the Notes, its creditors or its property".
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SECTION 2.10 NOTICES. Section 12.02 of the Indenture hereby is amended
by adding the word ", Holdco" after the word "Company" in the first and second
sentences thereof and by adding the words "or Holdco" after the word "Company"
in the fourth paragraph thereof. The fifth paragraph of Section 12.10 of the
Indenture is hereby amended to read as follows:
The Company's and Holdco's address is:
NTL Communications Corp. or NTL Incorporated, as applicable
110 East 59th Street
New York, New York, 10022
Attention: Secretary
Facsimile: (212) 906-8474
SECTION 2.11 NO RECOURSE AGAINST OTHERS. The directors, officers,
employees and stockholders of Holdco shall have the benefit of the provisions of
Section 12.08 of the Indenture as if references therein to the Company were also
to Holdco.
3 ARTICLE
MISCELLANEOUS
3.1 SECTION EFFECT OF SECOND SUPPLEMENTAL INDENTURE. Upon the
execution and delivery of this Second Supplemental Indenture by
Holdco, the Company and the Trustee, the Indenture shall be
supplemented in accordance herewith, and this Second Supplemental
Indenture shall form a part of the Indenture for all purposes, and
every Holder of Securities heretofore or hereafter authenticated and
delivered under the Indenture shall be bound thereby.
3.2 SECTION NOTATION REFLECTING SECOND SUPPLEMENTAL INDENTURE.
The Trustee may place an appropriate notation about the Second
Supplemental Indenture on any Security authenticated after the
execution and delivery of this Second Supplemental Indenture. The
Company in exchange for all Securities may issue and the Trustee shall
authenticate new Securities that reflect the Second Supplemental
Indenture.
3.3 SECTION INDENTURE REMAINS IN FULL FORCE AND EFFECT. Except
as supplemented hereby, all provisions in the Indenture shall remain
in full force and effect.
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3.4 SECTION INDENTURE AND SECOND SUPPLEMENTAL INDENTURE
CONSTRUED Together. This Second Supplemental Indenture is an indenture
supplemental to and in implementation of the Indenture and the
Indenture and this Second Supplemental Indenture shall henceforth be
read and construed together.
3.5 SECTION CONFIRMATION AND PRESERVATION OF INDENTURE. The
Indenture as supplemented by this Second Supplemental Indenture is in
all respects confirmed and preserved.
3.6 SECTION CONFLICT WITH TRUST INDENTURE ACT. If any provision
of this Second Supplemental Indenture limits, qualifies or conflicts
with any provision of the Trust Indenture Act that is required under
the Trust Indenture Act to be part of and govern any provision of this
Second Supplemental Indenture, the provision of the Trust Indenture
Act shall control. If any provision of this Second Supplemental
Indenture modifies or excludes any provision of the Trust Indenture
Act that may be so modified or excluded, the provision of the Trust
Indenture Act shall be deemed to apply to the Indenture as so modified
or to be excluded by this Second Supplemental Indenture, as the case
may be.
3.7 SECTION SEVERABILITY. In case any provision in this Second
Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
3.8 SECTION HEADINGS. The Article and Section headings of this
Second Supplemental Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Second
Supplemental Indenture and shall in no way modify or restrict any of
the terms or provisions hereof.
3.9 SECTION BENEFITS OF SECOND SUPPLEMENTAL INDENTURE, ETC.
Nothing in this Second Supplemental Indenture or the Securities,
express or implied, shall give to any Person, other than the parties
hereto and thereto and their successors hereunder and thereunder and
the Holders of the Securities, any benefit or any legal or equitable
right, remedy or claim under the Indenture, this Second Supplemental
Indenture or the Securities.
3.10 SECTION SUCCESSORS. All agreements of the Company and Holdco
in this Second Supplemental Indenture shall bind their
respective successors.
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All agreements of the Trustee in this Second Supplemental Indenture
shall bind its successors.
3.11 SECTION TRUSTEE NOT RESPONSIBLE FOR RECITALS. The Trustee
accepts the amendments to the Indenture effected by the Second
Supplemental Indenture and agrees to perform the same upon the terms
of the Indenture as supplemented by this Second Supplemental
Indenture. Without limiting the generality of the foregoing, the
Trustee shall not be liable or responsible for the validity as to the
Company and Holdco or sufficiency of this Second Supplemental
Indenture or as to the due execution hereof by the Company and Holdco
or as to recitals of fact contained herein, all of which are made by
the Company and Holdco solely.
3.12 SECTION CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
In entering into this Second Supplemental Indenture, the Trustee shall
be entitled to the benefit of every provision of the Indenture
relating to the conduct or affecting the liability of or affording
protection to the Trustee, whether or not elsewhere herein so
provided.
3.13 SECTION GOVERNING LAW. The internal law of the State of New
York shall govern and be used to construe this Second Supplemental
Indenture.
3.14 SECTION COUNTERPART ORIGINALS. The parties may sign any
number of copies of this Second Supplemental Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, all as of the date first above
written.
NTL COMMUNICATIONS CORP.
By: /s/ Richard J. Lubasch
Name: Richard J. Lubasch
Title:
Executive Vice President, General Counsel and
Secretary
NTL INCORPORATED
By: /s/ Richard J. Lubasch
Name: Richard J. Lubasch
Title:
Executive Vice President, General Counsel and
Secretary
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ Robert S. Peschler
Name: Robert S. Peschler
Title: Assistant Vice President
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