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NTL COMMUNICATIONS CORP.,
NTL INCORPORATED,
NTL HOLDINGS INCORPORATED
and
THE CHASE MANHATTAN BANK,
as Trustee
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THIRD SUPPLEMENTAL INDENTURE
Dated as of May 17, 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 Incorporated (formerly known as NTL
Communications Corp.), NTL Communications Corp. (formerly
known as NTL Incorporated) and The Chase Manhattan Bank, as
Trustee, and by the Second Supplemental Indenture, dated as of
March 16, 2000, among NTL Incorporated, NTL Communications
Corp., and The Chase Manhattan Bank, as Trustee
7% CONVERTIBLE SUBORDINATED NOTES DUE 2008
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THIRD SUPPLEMENTAL INDENTURE, dated as of May 17, 2000, among NTL
Communications Corp., a Delaware corporation (the "COMPANY"), NTL Incorporated,
a Delaware corporation ("NTL"), NTL Holdings Incorporated, a Delaware
corporation and a direct wholly-owned subsidiary of NTL ("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 initially convertible
into shares of common stock, par value $0.01 per share, of the Company in
accordance with the terms and conditions of the Original Indenture;
WHEREAS, on March 26, 1999, the Company, NTL (formerly known a NTL
Communications Corp.) and NTL Mergerco, Inc., a Delaware corporation that was a
direct wholly-owned subsidiary of NTL and an indirect wholly-owned subsidiary of
the Company ("FIRST MERGER SUB"), entered into an Agreement and Plan of Merger
(the "FIRST MERGER AGREEMENT"), pursuant to which, among other things, effective
April 1, 1999, First 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 "FIRST MERGER"), with the Company continuing as the surviving
corporation under the name "NTL Communications Corp." and as a direct
wholly-owned subsidiary of NTL;
WHEREAS, pursuant to the First Merger, each outstanding share of
Company Common Stock was converted into the right to receive one validly issued,
fully paid and nonassessable share of common stock, par value $0.01 per share,
of NTL (the "NTL COMMON STOCK");
WHEREAS, immediately prior to the First Merger, the Company, NTL and
the Trustee entered into the First Supplemental Indenture, dated as of March 31,
1999 (the "FIRST SUPPLEMENTAL INDENTURE"), pursuant to which, effective with the
consummation of the First Merger, NTL assumed the obligation to issue shares of
NTL Common Stock upon conversion of the Securities;
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WHEREAS, subsequent to the First Merger, the Company, NTL and the
Trustee entered into the Second Supplemental Indenture, dated as of March 16,
2000 (the "SECOND SUPPLEMENTAL INDENTURE" and together with the Original
Indenture and the First Supplemental Indenture, the "INDENTURE"), pursuant to
which NTL assumed joint and several liability for all 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 Securities;
WHEREAS, Section 11.01 of the 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,
comply with Section 5.12 of the Indenture regarding the effect of
reclassifications, consolidations, mergers or sales on conversion privileges and
to make any change that does not adversely affect the interests of any Holders
under the Indenture;
WHEREAS, on February 9, 2000, NTL, Holdco and Holdings Merger Sub Inc.,
a Delaware corporation and a direct wholly-owned subsidiary of Holdco and an
indirect wholly-owned subsidiary of NTL ("SECOND MERGER SUB"), entered into an
Agreement and Plan of Merger (the "SECOND MERGER AGREEMENT"), pursuant to which,
among other things, Second Merger Sub shall be merged with and into NTL in
accordance with Section 251(g) of the General Corporation Law of the State of
Delaware (the "SECOND MERGER"), with NTL continuing as the surviving corporation
(the "SURVIVING CORPORATION") under the name "NTL (Delaware), Inc." and as a
direct wholly-owned subsidiary of Holdco;
WHEREAS, pursuant to the Second Merger, each outstanding share of NTL
Common Stock shall be converted into the right to receive one validly issued,
fully paid and nonassessable share of common stock, par value $0.01 per share,
of Holdco (the "HOLDCO COMMON STOCK");
WHEREAS, upon consummation of the Second Merger and except as expressly
set forth in Section 2.01 of this Third Supplemental Indenture, NTL as the
Surviving Corporation and the Company shall continue to be liable for the
obligations of NTL and the Company under the Securities and the Indenture;
WHEREAS, Holdco desires to assume joint and several liability for the
obligations of NTL and 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 Securities; and
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WHEREAS, all actions necessary to make this Third Supplemental
Indenture and the Securities valid, binding and enforceable obligations of the
Company and, to the extent applicable, NTL and Holdco, have been performed and
fulfilled;
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, 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 Third 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.
2 ARTICLE
EFFECT OF SECOND MERGER ON CONVERSION PRIVILEGE;
ADJUSTMENT OF CONVERSION PRICE
2.1 SECTION CONVERSION OF SECURITIES FOR HOLDCO COMMON STOCK. In
accordance with Section 5.12 of the Original Indenture and Section 2.01
of the First Supplemental Indenture, upon and as of the consummation of
the Second Merger, the holder of each Security then outstanding shall
have the right to convert such Security into the amount of shares of
Holdco Common Stock receivable upon effectiveness of the Second Merger
by a holder of the number of shares of NTL Common Stock deliverable
upon conversion of such Security immediately prior to the Second
Merger. All of the covenants and provisions by or for the benefit of
the Company and NTL that are contained in Article V of the Original
Indenture and Section 2.01 of the First Supplemental Indenture relating
to the conversion of the Securities shall, upon consummation of the
Second Merger, bind and inure to the benefit of Holdco, including
without limitation the covenant set forth in Section 5.05 of the
Original Indenture, which shall require that Holdco at all times
reserve and
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keep available, free from preemptive rights, out of authorized but
unissued Holdco Common Stock and solely for the purpose of issuance
upon conversion of Securities, a sufficient number of shares of Holdco
Common Stock to permit conversion of all outstanding Securities for
shares of Holdco Common Stock;.
2.2 SECTION ADJUSTMENTS. Upon consummation of the Second Merger,
any adjustments of the Conversion Price shall continue to be made in
accordance with Article V of the Original Indenture and Section 2.02 of
the First Supplemental Indenture, except that adjustments previously
applicable with respect the NTL Common Stock, shall then be applicable
in the same manner with respect to the Holdco Common Stock.
2.3 SECTION RIGHTS UPON CONVERSION. Nothing in this Third
Supplemental Indenture shall be construed to affect in any way the
right that a holder of a Security may otherwise have, pursuant to
clause (ii) of the last sentence of subsection (c) of Section 5.06 of
the Original Indenture and Section 2.03 of the First Supplemental
Indenture, to receive Rights upon conversion of a Security.
2.4 SECTION HOLDCO AS SIGNATORY. In accordance with Section 5.12
of the Indenture, Holdco, as the issuer of the consideration receivable
by holders of NTL Common Stock upon consummation of the Second Merger,
has also executed this Third Supplemental Indenture.
3 ARTICLE
ASSUMPTION OF JOINT AND SEVERAL LIABILITY, ETC.
3.1 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 Original 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.
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3.2 SECTION 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.
3.3 SECTION 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.
3.4 SECTION 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.
3.5 SECTION EVENTS OF DEFAULT. Clause (d) of Section 8.01 of the
Indenture hereby is amended and restated in its entirety to read as
follows:
(d) the Company, NTL 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";
3.6 SECTION ACCELERATION. The fifth sentence of Section 8.02 of
the Indenture hereby is amended to delete the words "or Holdco" after
the first two references to "Company" contained therein and replace
them in each case with the words ", NTL or Holdco".
3.7 SECTION NOTICES. Section 12.02 of the Indenture is hereby
amended by deleting the word ", Holdco" after the word "Company" in the
first and second sentences thereof and replacing it in each case with
words ", NTL, Holdco". The fourth paragraph of Section 12.02 of the
Indenture is hereby amended by deleting the words "or Holdco" after the
word "Company" and replacing them with the words ", NTL or Holdco." The
fifth paragraph of Section 12.10 of the Indenture is hereby amended to
read as follows:
The Company's, NTL's and Holdco's address is:
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NTL Communications Corp., NTL Incorporated or
NTL Holdings Incorporated, as applicable
110 East 59th Street
New York, New York, 10022
Attention: Secretary
Facsimile: (212) 906-8497
3.8 SECTION 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.
4 ARTICLE
MISCELLANEOUS
4.1 SECTION RIGHTS, POWERS AND OBLIGATIONS OF NTL AND THE COMPANY
Continue. Except as expressly set forth in Section 2.01 of this Third
Supplemental Indenture, NTL and the Company shall continue to exercise
all of the rights and powers of NTL and the Company under the Indenture
and the Securities and shall continue to be liable for all of the
obligations of NTL and the Company thereunder, including the
performance and observance of every covenant of the Indenture to be
performed or observed on the part of NTL and/or the Company.
4.2 SECTION EFFECT OF THIRD SUPPLEMENTAL INDENTURE. Upon the
execution and delivery of this Third Supplemental Indenture by the
Company, NTL, Holdco and the Trustee, the Indenture shall be
supplemented in accordance herewith, and this Third 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.
4.3 SECTION NOTATION REFLECTING THIRD SUPPLEMENTAL INDENTURE. The
Trustee may place an appropriate notation about the Third Supplemental
Indenture on any Security authenticated after the execution and
delivery of this Third Supplemental Indenture. The Company in exchange
for all Securities may issue and the Trustee shall authenticate new
Securities that reflect the Third Supplemental Indenture.
4.4 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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4.5 SECTION INDENTURE AND THIRD SUPPLEMENTAL INDENTURE CONSTRUED
Together. This Third Supplemental Indenture is an indenture
supplemental to and in implementation of the Indenture, and the
Indenture, and this Third Supplemental Indenture shall henceforth be
read and construed together.
4.6 SECTION CONFIRMATION AND PRESERVATION OF INDENTURE. The
Indenture as supplemented by this Third Supplemental Indenture are in
all respects confirmed and preserved.
4.7 SECTION CONFLICT WITH TRUST INDENTURE ACT. If any provision of
this Third 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
Third Supplemental Indenture, the provision of the Trust Indenture Act
shall control. If any provision of this Third 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 Third Supplemental Indenture, as the case may be.
4.8 SECTION SEVERABILITY. In case any provision in this Third
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.
4.9 SECTION HEADINGS. The Article and Section headings of this
Third Supplemental Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Third
Supplemental Indenture and shall in no way modify or restrict any of
the terms or provisions hereof.
4.10 SECTION BENEFITS OF THIRD SUPPLEMENTAL INDENTURE, ETC. Nothing
in this Third 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 Third Supplemental Indenture or the
Securities.
4.11 SECTION SUCCESSORS. All agreements of the Company, NTL and
Holdco in this Third Supplemental Indenture shall bind their respective
successors. All agreements of the Trustee in this Third Supplemental
Indenture shall bind its successors.
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4.12 SECTION TRUSTEE NOT RESPONSIBLE FOR RECITALS. The Trustee
accepts the amendments to the Indenture effected by this Third
Supplemental Indenture and agrees to perform the same upon the terms of
the Indenture as supplemented by this Third Supplemental Indenture.
Without limiting the generality of the foregoing, the Trustee shall not
be liable or responsible for the validity as to the Company, NTL and
Holdco or sufficiency of this Third Supplemental Indenture or as to the
due execution hereof by the Company, NTL and Holdco or as to recitals
of fact contained herein, all of which are made solely by the Company,
NTL and Holdco.
4.13 SECTION CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE. In
entering into this Third 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.
4.14 SECTION GOVERNING LAW. The internal law of the State of New
York shall govern and be used to construe this Third Supplemental
Indenture.
4.15 SECTION COUNTERPART ORIGINALS. The parties may sign any number
of copies of this Third Supplemental Indenture. Each signed copy shall
be an original, but all of them together represent the same agreement.
4.16 SECTION NOTICE OF SECOND MERGER. Holdco will give the Trustee
prompt notice of the consummation of the Second Merger.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
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
NTL HOLDINGS 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
