EXHIBIT 4.12
EXECUTION COPY
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NTL INCORPORATED
300,000,000 POUNDS STERLING
10-3/4% SENIOR DEFERRED COUPON NOTES DUE 2008
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INDENTURE
Dated as of March 13, 1998
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The Chase Manhattan Bank
Trustee
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TABLE OF CONTENTS
ARTICLE I......................................................................1
Section 1.01. Definitions...................................................1
Section 1.02. Other Definitions............................................14
Section 1.03. Incorporation by Reference of Trust Indenture Act............15
Section 1.04. Rules of Construction........................................15
ARTICLE II. THE NOTES.........................................................16
Section 2.01. Form and Dating..............................................16
Section 2.02. Execution and Authentication.................................18
Section 2.03. Registrar and Paying Agent...................................19
Section 2.04. Paying Agent to Hold Money in Trust..........................19
Section 2.05. Holder Lists.................................................19
Section 2.06. Transfer and Exchange........................................19
Section 2.07. Replacement Notes............................................24
Section 2.08. Outstanding Notes............................................24
Section 2.09. Treasury Notes...............................................24
Section 2.10. Temporary Notes; Global Notes................................25
Section 2.11. Cancellation.................................................25
Section 2.12. Defaulted Interest...........................................26
ARTICLE III. REDEMPTION.......................................................26
Section 3.01. Notices to Trustee...........................................26
Section 3.02. Selection of Notes to Be Redeemed............................26
Section 3.03. Notice of Redemption.........................................26
Section 3.04. Effect of Notice of Redemption...............................27
Section 3.05. Deposit of Redemption Price..................................27
Section 3.06. Notes Redeemed in Part.......................................27
Section 3.07. Optional Redemption and Optional Tax Redemption..............27
Section 3.08. Mandatory Redemption.........................................28
Section 3.09. Asset Sale Offer and Purchase Offer..........................28
ARTICLE IV. COVENANTS.........................................................31
Section 4.01. Payment of Notes.............................................31
Section 4.02. Reports......................................................31
Section 4.03. Compliance Certificate.......................................31
Section 4.04. Stay, Extension and Usury Laws...............................32
Section 4.05. Corporate Existence..........................................32
Section 4.06. Taxes........................................................32
Section 4.07. Limitations on Liens.........................................32
Section 4.08. Incurrence Of Indebtedness And Issuance Of Preferred Stock...33
Section 4.09. Restricted Payments..........................................35
Section 4.10. Asset Sales..................................................38
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Section 4.11. Transactions with Affiliates.................................40
Section 4.12. Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.....................................42
Section 4.13. Change of Control............................................43
Section 4.14. Payment of Additional Amounts................................43
ARTICLE V. SUCCESSORS.........................................................44
Section 5.01. Merger, Consolidation or Sale of Assets......................44
Section 5.02. Successor Corporation Substituted............................45
ARTICLE VI. DEFAULTS AND REMEDIES.............................................45
Section 6.01. Events of Default............................................45
Section 6.02. Acceleration.................................................47
Section 6.03. Other Remedies...............................................48
Section 6.04. Waiver of Past Defaults......................................48
Section 6.05. Control by majority..........................................48
Section 6.06. Limitation on Suits..........................................48
Section 6.07. Rights of Holders to Receive Payment.........................49
Section 6.08. Collection Suit by Trustee...................................49
Section 6.09. Trustee May File Proofs of Claim.............................49
Section 6.10. Priorities...................................................49
Section 6.11. Undertaking for Costs........................................50
ARTICLE VII. TRUSTEE..........................................................50
Section 7.01. Duties of Trustee............................................50
Section 7.02. Rights of Trustee............................................51
Section 7.03. Individual Rights of Trustee.................................51
Section 7.04. Trustee's Disclaimer.........................................51
Section 7.05. Notice of Defaults...........................................51
Section 7.06. Reports by Trustee to Holders................................52
Section 7.07. Compensation and Indemnity...................................52
Section 7.08. Replacement of Trustee.......................................52
Section 7.09. Successor Trustee by Merger, Etc.............................53
Section 7.10. Eligibility; Disqualification................................54
Section 7.11. Preferential Collection of Claims Against Company............54
ARTICLE VIII. DISCHARGE OF INDENTURE..........................................54
Section 8.01. Termination of Company's Obligations.........................54
Section 8.02. Option to Effect Defeasance..................................54
Section 8.03. Application of Trust Money...................................56
Section 8.04. Repayment to Company.........................................57
Section 8.05. Reinstatement................................................57
ARTICLE IX. AMENDMENTS, SUPPLEMENTS AND WAIVERS...............................57
Section 9.01. Without Consent of Holders...................................57
Section 9.02. With Consent of Holders......................................58
Section 9.03. Compliance with Trust Indenture Act..........................58
Section 9.04. Revocation and Effect of Consents............................59
Section 9.05. Notation on or Exchange of Notes.............................59
Section 9.06. Trustee Protected............................................59
ARTICLE X. MISCELLANEOUS......................................................60
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Section 10.01. Trust Indenture Act Controls...............................60
Section 10.02. Notices....................................................60
Section 10.03. Communication by Holders with Other Holders................60
Section 10.04. Certificate and Opinion as to Conditions Precedent.........60
Section 10.05. Statements Required in Certificate or Opinion..............61
Section 10.06. Rules by Trustee and Agents................................61
Section 10.07. Conversion of Currency.....................................61
Section 10.08. Legal Holidays.............................................63
Section 10.09. No Recourse Against Others.................................63
Section 10.10. Counterparts and Facsimile Signatures......................63
Section 10.11. Variable Provisions........................................63
Section 10.12. Governing Law..............................................64
Section 10.13. No Adverse Interpretation of Other Agreements..............64
Section 10.14. Successors.................................................64
Section 10.15. Severability...............................................64
Section 10.16. Table of Contents, Headings, Etc...........................64
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CROSS-REFERENCE TABLE*
(a) 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
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317 (a)(1)...............................................................6.08
(a)(2)...................................................................6.09
(b)......................................................................2.04
318 (a)..................................................................N.A.
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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INDENTURE, dated as of March 13, 1998, between NTL Incorporated, 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 10-3/4% Senior Deferred Coupon Notes Due 2008 (the "Initial Notes")
and, if and when issued in exchange for Initial Notes, the Company's 10-3/4%
Series B Senior Deferred Coupon Notes Due 2008 (the "Exchange Notes" and,
together with the Initial Notes, the "Notes"):
ARTICLE I.
SECTION 1.01. DEFINITIONS.
"10% Notes" means the Company's 10% Series B Senior Notes Due 2007.
"11-1/2% Notes" means the Company's 11-1/2% Series B Senior Deferred Coupon
Notes Due 2006.
"12-3/4% Notes" means the Company's 12-3/4% Series A Senior Deferred Coupon
Notes Due 2005.
"Accreted Value" means, as of any date of determination prior to April 1,
2003, with respect to any Note, the sum of (a) the initial offering price (which
is 586.20 pounds sterling per 1000 pounds sterling 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 10.75% per annum of the initial offering price of a Note,
compounded semiannually on each April 1 and October 1 from the date of issuance
of the Notes 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 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.
"Applicable Notes" means the Company's 10 7/8% Senior Deferred Coupon Notes
Due 2003.
"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, 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.
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"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.
"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 one day 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 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 one day 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
3
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 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
4
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 the Company's 7-1/4% Convertible
Subordinated Notes issued pursuant to an indenture dated as of April 20, 1995,
between the Company and The Chase Manhattan Bank (formerly known as Chemical
Bank), as trustee, and 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.
"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) 555 million pounds sterling
and (ii) the amount of the aggregate commitments thereunder as the same may be
increased after the date of the Indenture as contemplated by the Facilities
Agreement as amended or supplemented to the date of the Indenture, but in no
event greater than 875 million pounds sterling, 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 The Depository Trust Company, its nominees and
their respective successors.
5
"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).
"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.
"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
6
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 Donaldson, Lufkin & Jenrette Securities
Corporation, Donaldson, Lufkin & Jenrette International, Morgan Stanley & Co.
Incorporated, Morgan Stanley & Co. International Limited, BT Alex. Brown
Incorporated, BT Alex. Brown International, Division of Bankers Trust
International PLC, Chase Securities Inc., Salomon Brothers Inc and Salomon
Brothers International Limited.
"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.
7
"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 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).
"Long Distance/Microwave Assets" means any assets, tangible or intangible,
choate or inchoate, primarily used in the business conducted by OCOM Corporation
in the United States as of the Issuance Date.
"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(v) 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).
8
"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)
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.
"Officers' Certificate" means a certificate signed by two Officers, one of
whom 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 Applicable Notes, the 12-3/4% Notes, the 11-1/2%
Notes and the 10% Notes.
9
"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% Notes and the 10% 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 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.
10
"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 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.
11
"Purchase Agreement" means the Purchase Agreement, dated as of March 6,
1998, 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 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).
12
"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 March 13, 1998, between the Company and the Initial
Purchasers party thereto.
"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.
"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 (Sections)
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.
13
"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
"Cedel" 2.01
"Change of Control Payment" 4.13
"Commencement Date" 3.09
"Custodian" 6.01
"Defeasance" 8.02
"Euroclear" 2.01
"Event of Default" 6.01
"Excess Proceeds" 4.10
"Global Note" 2.01
"incur" 4.08
"Judgment Currency" 10.07
"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
"Rate of Exchange" 10.07
"Refinancing Indebtedness" 4.08
"Regulation S" 2.01
"Regulation S Global Note" 2.01
14
"Registrar" 2.03
"Restricted Notes" 2.01
"Restricted Payments" 4.09
"Rule 144A" 2.01
"Rule 144A Global Note" 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.
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;
15
(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 "Pounds Sterling" 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 1,000 pounds sterling 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. 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"), as provided in the Purchase Agreement, shall be
issued initially in the form of one or more permanent Global Notes in
definitive, fully registered form without interest coupons with the Global Notes
Legend and Restricted Notes Legend set forth in Exhibit A hereto (the
"Regulation S Global Note"), which shall be deposited on behalf of the
purchasers of the Initial Notes represented thereby with the Trustee, at its New
York office, as custodian, for the Depositary, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated
agents holding on behalf of the Euroclear System ("Euroclear") or Cedel Bank,
societe anonyme ("Cedel"), duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the
Regulation S Global Note 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.
Initial Notes offered and sold to Qualified Institutional Buyers ("QIBs")
in reliance on Rule 144A under the Securities Act ("Rule 144A"), as provided in
the Purchase Agreement, shall be issued initially in the form of one or more
permanent Global Notes in definitive, fully registered form
16
without interest coupons with the Global Notes Legend and Restricted Notes
Legend set forth in Exhibit A hereto ("Rule 144A Global Note"), which shall be
deposited on behalf of the purchasers of the Initial Notes represented thereby
with the Trustee, at its New York office, as custodian for the Depositary, and
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 of the Rule 144A Global Note 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.
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 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) Book-Entry Provisions. This Section 2.01(c) shall apply only to the
Regulation S Global Note, the Rule 144A Global Note and the Exchange Notes
issued in the form of one or more permanent Global Notes (collectively, the
"Global Notes") deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with this
Section 2.01(c), authenticate and deliver initially one or more Global Notes
that (a) shall be registered in the name of the Depositary for such Global Note
or Global Notes or the nominee of such Depositary and (b) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instructions or
held by the Trustee 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 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.
Without limitation of the preceding paragraph, all payments to Agent
Members in respect of any Global Note held by the Depositary (except for the
account of Euroclear of Cedel) shall, unless notice requesting payment in the
currency in which the Notes are denominated is given by such Agent Members in
accordance with applicable procedures of the Depositary, be made in U.S. Dollars
in accordance with applicable procedures of the Depositary, if and to the extent
such payment is required by such procedures and provided that arrangements for
the conversion of payments by the Company in respect of such Global Note into
U.S. Dollars are in form and substance acceptable to the Paying Agent or other
party to such conversion (which may but need not be an affiliate of the Paying
Agent), including receipt of documentation satisfactory to the Paying Agent or
such other party and payment of any currency
17
conversion fee assessed by the Paying Agent or such other party at the expense
of such Agent Members. Nothing in such procedures or arrangements shall affect
the Company's obligation to pay, and any Holder's right to receive, payment in
the currency in which the Notes are denominated, or the right of a Holder of a
beneficial interest in a Global Note to receive a Note in certificated form as
contemplated by Section 2.01(d).
(d) 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.
Two Officers 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 two
Officers, authenticate (1) Initial Notes for original issue up to an aggregate
principal amount 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. The aggregate principal amount 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.
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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, 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 exchange ("Registrar") and (ii)
offices or agencies where the Notes may be presented for payment ("Paying
Agent"). The Company initially designates the Trustee at its corporate trust
offices in the Borough of Manhattan, City of New York, State of New York to act
as principal Registrar and Paying Agent and Banque Internationale a Luxembourg
S.A. to act as a Registrar and Paying Agent. Until otherwise designated by the
Company, the Company shall also provide a Registrar and Paying Agent in London,
England at the offices of the Trustee maintained for that purpose. The Paying
Agent located at the offices of the Trustee in London, England shall be the
principal 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.
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 of
Notes of other denominations, the Registrar shall
19
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).
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 "Notice to
Investors" in the Company's Offering Memorandum dated March 6, 1998.
(i) Except for transfers or exchanges made in accordance with clauses
(ii) through (iv) 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) Rule 144A Global Note to Regulation S Global Note. If an owner of
a beneficial interest in the Rule 144A Global Note deposited with the
Depositary or the Trustee as custodian for the Depositary wishes at any
time to transfer its interest in such Rule 144A Global Note to a Person who
is required to take delivery thereof in the form of an interest in the
Regulation S Global Note, such owner may, subject to the rules and
procedures of the Depositary, exchange or cause the exchange of such
interest for an equivalent beneficial interest in the Regulation S Global
Notes. Upon receipt by the principal Registrar of (1) instructions given in
accordance with the Depositary's procedures from an Agent Member directing
the principal Registrar to credit or cause to be credited a beneficial
interest in the Regulation S Global Note in an amount equal to the
beneficial interest in the Rule 144A Global Note to be exchanged, (2) a
written order given in accordance with the Depositary's procedures
containing information regarding the participant account of the Depositary
and the Euroclear or Cedel account to be credited with such increase and
(3) a certificate in the form of Exhibit C attached hereto given by the
Holder of such beneficial interest, then the principal Registrar shall
instruct the Depositary to reduce or cause to be reduced the principal
amount of the Rule 144A Global Note and to increase or cause to be
increased the principal amount of the Regulation S Global Note by the
aggregate principal amount of the beneficial interest in
20
the Rule 144A Global Note equal to the beneficial interest in the
Regulation S Global Note to be exchanged or transferred, to credit or cause
to be credited to the account of the Person specified in such instructions
a beneficial Interest in the Regulation S Global Note equal to the
reduction in the principal amount of the Rule 144A Global Note and to debit
or cause to be debited from the account of the Person making such exchange
or transfer the beneficial interest in the Rule 144A Global Note that is
being exchanged or transferred.
(iii) Regulation S Global Note to Rule 144A Global Note. If an owner
of a beneficial interest in the Regulation S 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 Regulation S Global Note to a
Person who is required to take delivery thereof in the form of an interest
in the Rule 144A Global Note, such Holder may, subject to the rules and
procedures of Euroclear or Cedel, as the case may be, and the Depositary,
exchange or cause the exchange of such interest for an equivalent
beneficial interest in the Rule 144A Global Note. Upon receipt by the
principal Registrar of (1) instructions from Euroclear or Cedel, if
applicable, and the Depositary, directing the principal Registrar to credit
or cause to be credited a beneficial interest in the Rule 144A Global Note
equal to the beneficial interest in the Regulation S Global Note to be
exchanged or transferred, such instructions to contain information
regarding the participant account with the Depositary to be credited with
such increase, (2) a written order given in accordance with the
Depositary's procedures containing information regarding the participant
account of the Depositary and (3) a certificate in the form of Exhibit D
attached hereto given by the owner of such beneficial interest, then
Euroclear or Cedel or the principal Registrar, as the case may be, will
instruct the Depositary to reduce or cause to be reduced the Regulation S
Global Note and to increase or cause to be increased the principal amount
of the Rule 144A Global Note by the aggregate principal amount of the
beneficial interest in the Regulation S Global Note to be exchanged or
transferred, and the principal Registrar shall instruct the Depositary,
concurrently with such reduction, to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest
in the Rule 144A Global Note equal to the reduction in the principal amount
of the Regulation S Global Note and to debit or cause to be debited from
the account of the Person making such exchange or transfer the beneficial
interest in the Regulation S Global Note that is being exchanged or
transferred.
(iv) 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 Euroclear or Cedel, if applicable, and 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. Upon receipt by the principal Registrar of (1)
instructions from Euroclear or Cedel, if applicable, and the Depositary
directing the principal Registrar to authenticate and deliver one or more
Restricted Notes of the same aggregate principal amount as the
21
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 E attached hereto given by the owner of such beneficial
interest to the effect set forth therein, (3) a certificate in the form of
Exhibit F 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
Euroclear or Cedel, if applicable, or the principal Registrar, as the case
may be, will instruct the Depositary to reduce or cause to be reduced such
Global Note by the aggregate principal amount 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 in accordance with the instructions referred to above.
(v) 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. 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 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 E attached hereto, (4) a certificate in the form of Exhibit
F 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, in accordance with the instructions referred to above.
(vi) 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
22
may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of clauses (ii) through (v)
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.
(vii) Restricted Period. Prior to the termination of the "restricted
period" (as defined in Regulation S) with respect to the issuance of the
Notes, transfers of interests in the Regulation S Global Note to "U.S.
Persons" (as defined in Regulation S) shall be limited to transfers to QIBs
made pursuant to the provisions of Sections 2.06(a)(iii). The Company shall
advise the Trustee as to the termination of the restricted period and the
Trustee may rely conclusively thereon.
(viii) Regulation S Global Note to Certificated Note. Upon proper
presentment to the Trustee of a certificate substantially in the form of
Exhibit G hereto and subject to the rules and procedures of the Depositary
or its direct or indirect participants, including Euroclear and Cedel, an
interest in a Regulation S Global Note may be exchanged for a certificated
Restricted Note. At any time following consummation of the Exchange Offer
pursuant to the Registration Rights Agreement (provided that such
consummation is after the expiration of the 40-day restricted period
provided for in Rule 903 of Regulation S), such exchange may be made
without presentment of the certificate in substantially the form of Exhibit
G by any Holder who certifies to the Trustee that such Holder would have
been able to participate in such Exchange Offer and resell Exchange Notes
without delivery of a prospectus under applicable rules and interpretations
of the Commission, and such certified Note shall be free from any
restriction on transfer (other than such as are solely attributable to such
holder's status).
(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 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.
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(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 of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
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 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, only
Notes that the Trustee knows are so owned shall be so disregarded.
24
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 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 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 1,000 pounds sterling 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 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
Officers' 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 1,000 pounds sterling or less 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 1,000 pounds
sterling or integral multiples of 1,000 pounds sterling. 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;
26
(c) if any Note is to be redeemed in part only, the portion of the
principal amount thereof redeemed, and that, after the redemption date, upon
surrender of such Note, a new Note in principal amount 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;
(f) that interest on Notes called for redemption ceases to accrue on and
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
Officers' 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 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 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
27
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
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, pursuant to Sections 4.10 or 4.13 hereof, the
Company shall commence an offer to all Holders of the Notes to purchase Notes
(the "Asset Sale Offer" or "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 or principal amount 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 on or after an interest payment record date and
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) 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;
28
(iii) that any Note or portion thereof not tendered or accepted for
payment will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the purchase
price, 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;
(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 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, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount (as defined in Section 4.10 hereof), 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 pounds sterling, 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 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.
29
(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. 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 Officers' 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 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 Accreted Value or principal amount of the Notes and 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 Notes
or Other Qualified Notes are denominated in (the "Base Currency");
(i) in the case of determining the maximum Accreted Value or
principal amount of Notes and Other Qualified Notes that may be
purchased out of the Excess Proceeds, if any, remaining after the
consummation of an Asset Sale Offer to holders of Applicable
Notes, 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.
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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 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 1, 2003, or the overdue
principal and premium, if any, if on or after April 1, 2003, 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 Officers' 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.
31
One of the Officers signing such Officers' 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
Officers' 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 contained in
an Officers' Certificate) and prior to receipt of such Officers' 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:
32
(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 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
33
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 in exchange for, or the proceeds of which are used to extend,
refinance, renew, replace, or refund the Notes, the Company's 9-1/2% Senior
Notes Due 2008, the Company's 9-3/4% Senior Deferred Coupon Notes Due 2008,
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;
34
(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 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 or (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:
35
(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 (ix) 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 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
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 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 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 (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
36
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 the Applicable 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 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) 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;
(viii) 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
(ix) 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.
37
(c) Any Investment in a Subsidiary (other than the issuance, transfer or
other conveyance of Equity Interests (other than Disqualified Stock) 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 (vii) of Section 4.09(b)),
the Company 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 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 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 Officers' 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
38
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 Applicable Notes or 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); provided, however, that the Asset
Sale Offer must be made first to the holders of the Applicable Notes) that may
be purchased out of the Excess Proceeds, if any, remaining after the
consummation of the aforementioned Asset Sale Offer to the holders of the
Applicable Notes (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 Accreted Value on the date fixed for closing of such offer
(if such date is prior to April 1, 2003), or 100% of the outstanding principal
amount thereof plus accrued and unpaid interest, if any, to the date fixed for
the closing of such offer (if such date is on or after April 1, 2003), 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 Proceeds, if any, remaining after the consummation of the
aforementioned Asset Sale Offer to the holders of the Applicable Notes, 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, if any, remaining after the consummation of the aforementioned Asset
Sale Offer to the holders of the Applicable Notes, 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 Applicable Notes and the Notes and the Other Qualified Notes, the
amount of Excess Proceeds will be reset at zero. No such Asset Sale Offer to
purchase the Notes and Other Qualified Notes shall be required to be made by the
Company pursuant to the foregoing provisions if there are no Excess Proceeds
remaining after the consummation of the Asset Sale Offer made to holders of the
Applicable Notes.
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(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;
(iii) sell, transfer or otherwise dispose of Long Distance/Microwave
Assets; or
(iv) 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, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from,
40
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 Officers' 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 Officers' 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;
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(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 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
42
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;
(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 1,000 pounds sterling 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 Accreted Value
thereof on any purchase date prior to April 1, 2003, or 101% of the principal
amount thereof plus accrued and unpaid interest thereon, if any, to the date of
purchase on any purchase date on or after April 1, 2003, if any (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 Officers' Certificate described in this Section 4.14,
the Company shall furnish the Trustee and the Paying Agent, if other than the
Trustee, with an Officers' 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 Officers'
43
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 Officers' 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 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
44
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.
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 of the then outstanding Notes to the Company and the Trustee stating that
such notice is a "Notice of Default";
45
(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 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
46
(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 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 Accreted Value of
(if prior to April 1, 2003) or the principal of, premium, if any, and interest
on (if on or after April 1, 2003), 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 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 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 1, 2003, 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 1, 2003, 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 1 of the years (March 13 in the case of 1998) 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
1998............................ 110.750%
1999............................ 109.675%
2000............................ 108.600%
2001............................ 107.525%
2002............................ 106.450%
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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 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 of or interest 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 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 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
of the then outstanding Notes do not give the Trustee a direction inconsistent
with the request.
48
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.
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.
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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 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 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.
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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
Officers' 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 Officers' 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.
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.
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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 (Section) 313(a) if and to the extent required by such
(Section) 313(a). The Trustee also shall comply with TIA (Section) 313(b)(2).
The Trustee shall also transmit by mail all reports as required by TIA (Section)
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 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.
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The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount 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 (Section) 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 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 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 (Section) 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 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.
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SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA (Section) 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 (Section) 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 (Section) 310(b): (a) indenture, dated as of October
14, 1993, between the Company and The Chase Manhattan Bank (formerly known as
Chemical Bank), as trustee, relating to the Applicable Notes, as amended, (b)
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, (c)
indenture, dated as of January 30, 1996, between the Company and The Chase
Manhattan Bank, as trustee, relating to the 11-1/2% Notes, (d) indenture, dated
as February 12, 1997, between the Company and The Chase Manhattan Bank, as
trustee, relating to the 10% Notes, (e) 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% Senior Notes Due 2008 and (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% Senior Deferred Coupon Notes Due 2008.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA (Section) 311(a), excluding any creditor
relationship listed in TIA (Section) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (Section) 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.
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 Officers' 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
54
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, payments in respect of Accreted
Value), premium, if any, 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 pounds
sterling 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 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, premium, if any, and interest 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 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;
55
(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 Officers'
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 Officers'
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 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
on the Notes.
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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 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
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 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
57
(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 of the then outstanding Notes.
Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in principal
amount 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, alter
the manner of calculating Accreted Value 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) 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 interest on, any
Note (except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount 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 Officers' Certificate
certifying that the Holders of the requisite principal amount 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 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.
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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 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 10.11 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 (Section) 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
(Section) 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:
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(a) an Officers' 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:
(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. CONVERSION OF CURRENCY.
The Company covenants and agrees that the following provisions shall apply
to conversion of currency in the case of the Notes and this Indenture:
(a) (i) If for the purposes of obtaining judgment in, or enforcing the
judgment of, any court in any country, it becomes necessary to convert into any
other currency (the "Judgment Currency") an amount due in British pounds
sterling, then the conversion shall be made at the Rate of Exchange prevailing
on the Business Day before the day on which the judgment is given or the order
of enforcement is made, as the case may be (unless a court shall otherwise
determine).
(ii) If there is a change in the Rate of Exchange prevailing between
the Business Day before the day on which the judgment is given or an order
of enforcement is made, as the case may be (or such other date as a court
shall determine), and the date of receipt of the amount due, the Company
shall pay such additional (or, as the case may be, such lesser) amount, if
any, as may be necessary so that the
61
amount paid in the Judgment Currency when converted at the Rate of Exchange
prevailing on the date of receipt will produce the amount in British pounds
sterling originally due.
(b) In the event of the winding-up of the Company at any time while any
amount or damages owing under the Notes and this Indenture, or any judgment or
order rendered in respect thereof, remains outstanding, the Company shall
indemnify and hold the Holders of Notes and the Trustee harmless against any
deficiency arising or resulting from any variation in rates of exchange between
(1) the date as of which the equivalent of the amount in British pounds sterling
due or contingently due under the Notes and this Indenture (other than under
this paragraph (b)) is calculated for the purposes of such winding-up and (2)
the final date for the filing of proofs of claim in the winding-up of the
Company, which is the date fixed by the liquidator or otherwise in accordance
with the relevant provisions of applicable law as being the latest practicable
date as at which liabilities of the Company may be ascertained for such
winding-up prior to payment by the liquidator or otherwise in respect thereto.
(c) The obligations contained in paragraphs (a)(ii) and (b) of this Section
10.07 shall:
(i) constitute separate and independent obligations of the Company
from its other obligations under the Notes and this Indenture;
(ii) give rise to separate and independent causes of action against
the Company;
(iii) apply irrespective of any waiver or extension granted by any
Holder or the Trustee from time to time; and
(iv) continue in full force and effect notwithstanding any judgment or
order or the filing of any proof of claim in the winding-up of the Company
for a liquidated sum in respect of amounts due hereunder (other than under
paragraph (b) above) or under any such judgment or order.
Any such deficiency as aforesaid shall be deemed to constitute a loss
suffered by the Holders or the Trustee, as the case may be, and no proof or
evidence of any actual loss shall be required by the Company or its liquidators.
In the case of paragraph (b) above, the amount of such deficiency shall not be
deemed to be reduced by any variation in rates of exchange occurring between the
said final date and the date of any liquidating distribution.
(d) "Rate of Exchange" means the noon buying rate in the City of New
York as certified for customs purposes by the Federal Reserve Bank of New
York on the relevant date for cable transfers in the Judgment Currency other
than British pounds sterling referred to in paragraphs (a) and (b) above and
shall include any premiums and costs of exchange payable.
(e) If the United Kingdom adopts the Euro, the regulations of the European
Commission relating to the Euro shall apply to the Notes and this Indenture. The
circumstances and consequences described in this paragraph entitle neither the
Company nor any Holder to early redemption, rescission,
62
notice, repudiation, adjustment or renegotiation of the terms and conditions of
the Notes or this Indenture or to raise other defenses or to request any
compensation claim, nor will they affect any of the other obligations of the
Company under the Notes and this Indenture.
SECTION 10.08. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in the State of New York 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 10.09. 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 10.10. COUNTERPARTS AND FACSIMILE SIGNATURES.
This Indenture may be executed by manual or facsimile signatures 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 10.11. 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, 1998.
The reporting date for Section 7.06 hereof is March 15, of each year. The
first reporting date is March 15, 1998.
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.
63
The Company's address is:
NTL Incorporated
110 East 59th Street, 26th Floor
New York, New York 10022
Attention: Richard J. Lubasch, Esq.
General Counsel
The Trustee's address is:
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee
Administration Department
SECTION 10.12. 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 10.13. 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 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.
64
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
NTL INCORPORATED, as Company
By: /s/ Richard J. Lubasch
---------------------------------------
Name: Richard J. Lubasch
Title: Senior Vice President
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ Andrew M. Deck
---------------------------------------
Name: Andrew M. Deck
Title: Vice President
65
EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC 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 SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS NOTE,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS NOTE MAY NOT BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE
HEREOF (OR ANY PREDECESSOR NOTE HERETO) OR (Y) BY ANY HOLDER THAT WAS AN
AFFILIATE OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE
OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE COMPANY, (2) SO LONG AS
THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE
OF TRANSFER ON THE REVERSE OF THIS NOTE), (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE
OF THIS NOTE), AND, IF SUCH TRANSFER IS BEING EFFECTED BY CERTAIN TRANSFERORS
PRIOR TO THE EXPIRATION OF THE "40 DAY RESTRICTED PERIOD" (WITHIN THE MEANING OF
RULE 903(c)(2) OF REGULATION S UNDER THE SECURITIES ACT), A CERTIFICATE THAT MAY
BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS DELIVERED BY THE TRANSFEREE TO
THE COMPANY AND THE TRUSTEE, (4) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (4) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM.
[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 SENIOR
NOTE. THE ISSUE DATE OF THIS SENIOR NOTE IS MARCH 13, 1998. THE ISSUE PRICE OF
THIS SENIOR NOTE IS 586.20 POUNDS STERLING PER 1,000 POUNDS STERLING OF INITIAL
PRINCIPAL AMOUNT AT MATURITY. THIS SENIOR NOTE IS ISSUED WITH 413.80 POUNDS
STERLING OF ORIGINAL ISSUE DISCOUNT PER 1,000 POUNDS STERLING OF INITIAL
PRINCIPAL AMOUNT AT MATURITY. THE YIELD TO MATURITY OF THIS SENIOR NOTE IS
10.8%.
2
No. ________
_______________Pounds Sterling
CUSIP No. [ ]/CINS No. [ ]
10-3/4% SENIOR DEFERRED COUPON NOTE DUE 2008
NTL Incorporated, a Delaware corporation (the "Company"), promises to pay
to __________________________ or registered assigns, the principal sum of
____________________ [____________] Pounds Sterling [,or such other amount as is
indicated on Schedule A hereof* /,] on April 1, 2008, subject to the further
provisions of this Senior 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 1 and October 1, commencing October 1, 2003
Record Dates: March 15 and September 15
IN WITNESS WHEREOF, NTL Incorporated has caused this Senior Note to be
signed manually or by facsimile by its duly authorized officers.
Dated:______________________________
NTL INCORPORATED
by:_________________________________
by:_________________________________
_________________________________
* Applicable to Global Notes Only
3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 10-3/4% Senior Deferred
Coupon Notes Due 2008 described in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By:______________________________________
Authorized Officer
4
[FORM OF REVERSE OF INITIAL NOTE]
NTL INCORPORATED
10-3/4% Senior Deferred Coupon Note Due 2008
1. Interest. NTL INCORPORATED, a Delaware corporation (the "Company"), is
the issuer of 10-3/4% Senior Deferred Coupon Notes Due 2008 (the "Senior
Notes"). The Senior 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 10-3/4%, compounded semiannually, to an
aggregate principal amount of 300,000,000 Pounds Sterling by April 1, 2003. The
Company promises to pay interest on the Senior Notes in cash semiannually on
each April 1 and October 1, commencing on October 1, 2003, to Holders of record
on the immediately preceding March 15 and September 15, respectively at the rate
of 103/4% per annum. Interest on the Senior Notes will accrue from the most
recent date to which interest has been paid, or if no interest has been paid,
from April 1, 2003. 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 or
overdue Accreted Value at the interest or accretion rate borne by the Senior
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 Senior
Note shall be increased to the extent necessary to pay Additional Amounts as set
forth in this Senior Note.
2. Special Interest. The Holder of this Senior Note is entitled to the
benefits of the Registration Rights Agreement relating to the Senior Notes,
dated as of March 13, 1998, between the Company and the Initial Purchasers party
thereto (the "Registration Rights Agreement").
In the event that either (a) the Exchange Offer Registration Statement (as
such term is defined in the Registration Rights Agreement) is not filed with the
SEC on or prior to the 90th day following the date of original issuance of the
Senior Notes, (b) the Exchange Offer Registration Statement is not declared
effective prior to the 270th day following the date of original issuance of the
Senior Notes (as such period may be extended in accordance with the SEC review
delay provisions of the Registration Rights Agreement) or (c) the Registered
Exchange Offer (as such term is defined in the Registration Rights Agreement) is
not consummated or a Shelf Registration Statement (as such term is defined in
the Registration Rights Agreement) is not declared effective on or prior to the
310th day following the date of original issuance of the Senior Notes (as such
period may be extended in accordance with the SEC review delay provisions of the
Registration Rights Agreement) (each such event referred to in clauses (a)
through (c) above, a "Registration Default"), interest will accrue (in addition
to the stated interest on the Senior Notes) from and including the next day
following each of (i) such 90-day period in the case of clause (a) above and
(ii) such 270-day period in the case of clause (b) above and (iii) such 310-day
period in the case of clause (c) above (in each of cases (b) and (c) as such
period is extended, if applicable, in the manner aforesaid) (each such period
referred to in clauses (i)-(iii) above an "Accrual
5
Period"), at a rate per annum equal to 0.50% of the Accreted Value of the Senior
Notes (determined daily). The amount of such additional interest (the "Special
Interest") will increase by an additional 0.50% of the Accreted Value with
respect to each subsequent applicable Accrual Period until all Registration
Defaults have been cured, up to a maximum amount of Special Interest of 1.50%
per annum of the Accreted Value (determined daily). In each case such additional
interest will be payable in cash semiannually in arrears on each April 1 and
October 1, commencing October 1, 1998, to Holders of record on the immediately
preceding March 15 and September 15, respectively. In the event that a Shelf
Registration Statement is declared effective pursuant to the terms of the
Registration Rights Agreement, if the Company fails to keep such Registration
Statement continuously effective for the period required by the Registration
Rights Agreement, then from such time as the Shelf Registration Statement is no
longer effective until the earlier of (i) the date that the Shelf Registration
Statement is again deemed effective, (ii) the date that is the second
anniversary of the original issuance of the Senior Notes or (iii) the date as of
which all of the Senior Notes are sold pursuant to the Shelf Registration
Statement, Special Interest shall accrue at a rate per annum equal to 0.50% of
the Accreted Value of the Senior Notes (1.00% thereof if the Shelf Registration
Statement is no longer effective for 30 days or more) and shall be payable in
cash semiannually in arrears on each April 1 and October 1, commencing October
1, 1998, to the Holders of record on the immediately preceding March 15 and
September 15, 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 Kingdom, the Netherlands, the
Netherlands Antilles, Bermuda or the Cayman Islands. All payments made by the
Company on this Senior 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
Senior 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 Senior Note after such deduction or withholding
shall be not less than the amounts specified in this Senior Note to which the
Holder of this Senior 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 Senior Note or the receipt of amounts payable in
respect of this Senior 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 Senior
6
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 Senior 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 Senior
Note or, if different, the beneficial owner of the interest payable on this
Senior 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 Senior Note or withholding from the proceeds of a sale or
exchange of a Senior 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
Senior 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 Senior 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 Senior
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 Senior 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
Senior Note. All references to principal amount or interest on the Senior Notes
in the Indenture or the Senior 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 Senior Notes
(except defaulted interest) to the Persons who are registered Holders of Senior
Notes at the close of business on the record date for the next interest payment
date even though Senior Notes are canceled after the record date and
7
on or before the interest payment date. Holders must surrender Senior Notes to a
Paying Agent to collect principal and premium payments. The Company will pay
principal, 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, 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, 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 Trustee will act as Paying Agent and
Registrar in the City of New York, New York and in London, England. Banque
Internationale a Luxembourg S.A. will act as Paying Agent and Registrar in
Luxembourg as long as the Senior 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 Senior Notes under an Indenture, dated
as of March 13, 1998 (the "Indenture"), between the Company and The Chase
Manhattan Bank, as Trustee. The terms of the Senior 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 (Sections) 77aaa-77bbbb) as in effect on the date of the
Indenture. The Senior 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 Senior Notes are
unsecured general obligations of the Company limited to 300,000,000 pounds
sterling in aggregate principal amount.
7. Optional Redemption. Except as provided in Section 8 hereof, the Senior
Notes are not redeemable at the Company's option prior to April 1, 2003.
Thereafter, the Senior 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 )
set forth below plus accrued and unpaid interest thereon to the applicable
redemption date, if redeemed during the twelve-month period beginning on April 1
of the years indicated below:
Year Percentage
2003........................ 105.375%
2004........................ 103.583%
2005........................ 101.792%
2006 and thereafter......... 100.000%
8. Optional Tax Redemption. (a) The Senior 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 the Accreted Value thereof at the date of redemption if prior to April 1,
2003) if after the date on which Section 3 of this Senior 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
8
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
Senior 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 Senior 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 Senior 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 the Accreted Value
thereof at the date fixed for redemption if prior to April 1, 2003) 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 Senior 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
Senior Notes to be redeemed at his address of record. The Senior Notes in
denominations larger than 1,000 pounds sterling may be redeemed in part but only
in integral multiples of 1,000 pounds sterling. In the event of a redemption of
less than all of the Senior Notes, the Senior Notes
9
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 Senior Notes
or portions of them called for redemption.
If this Senior 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 Senior 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 Senior Notes.
There are no sinking fund payments with respect to the Senior 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 Senior Notes at a purchase price equal to 101% of
the Accreted Value thereof on the date of purchase (if such date is prior to
April 1, 2003), or 101% of the aggregate principal amount thereof, plus accrued
and unpaid interest to the Purchase Date (if on or after April 1, 2003). Holders
of Senior 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 Senior 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 Senior Notes and Other Qualified Notes to purchase
the maximum principal amount of Senior 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 Senior Notes and the Other Qualified Notes;
provided, however, that the asset sale offer must be made first to the holders
of the Applicable Notes) that may be purchased out of the Excess Proceeds, if
any, remaining after the consummation of an asset sale offer made to the holders
of the Applicable Notes, with respect to the Senior Notes, at an offer price in
cash in an amount equal to 100% of the Accreted Value on the date fixed for the
closing of such offer (if such date is prior to April 1, 2003) or 100% of the
outstanding principal amount thereof plus accrued and unpaid interest, if any,
to the date fixed for the closing of such offer (if such date is on or after
April 1, 2003). To the extent that the aggregate principal amount or accreted
value, as the case may be, of Senior Notes, Applicable 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 Senior
Notes and Other Qualified Notes surrendered by holders thereof exceeds the
amount of Excess Proceeds, if any, remaining after the consummation of an asset
sale offer made to holders of the Applicable Notes, then such remaining Excess
Proceeds will be allocated pro rata according to principal amount or accreted
value, as the case may be, to the Senior Notes and each issue of the Other
Qualified Notes and, the Trustee will select the Senior 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 Senior Notes are in registered
form, without coupons, in denominations of 1,000 pounds sterling and integral
multiples of 1,000 pounds sterling. The transfer of Senior Notes may
10
be registered, and Senior 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 Senior Note or portion of a Senior Note selected for
redemption (except the unredeemed portion of any Senior Note being redeemed in
part). Also, it need not exchange or register the transfer of any Senior Note
for a period of 15 days before a selection of Senior Notes to be redeemed.
13. Persons Deemed Owners. Except as provided in paragraph 4 of this Senior
Note, the registered Holder of a Senior 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 Senior
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 Senior 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 of the then outstanding Senior Notes by notice to the Company
and the Trustee may declare all the Senior 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 Senior Notes or Accreted Value shall become due and payable immediately
without further action or notice. The Holders of a majority in principal amount
of the Senior 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 Accreted
Value that has become due solely because of the acceleration. Holders may not
enforce the Indenture or the Senior Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding Senior 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.
16. Amendments, Supplements and Waivers. Subject to certain exceptions, the
Indenture or the Senior Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Senior Notes (including consents obtained in connection with a tender offer or
exchange offer for Senior Notes), and any existing default may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Senior Notes. Without the consent of any Holder, the Indenture or
the Senior 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.
11
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 Senior 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 or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Senior 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 Senior Notes by accepting a Senior Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Senior Notes.
20. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN
THE INDENTURE AND THE SENIOR NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
21. Authentication. The Senior 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 Senior Notes upon written
request and without charge a copy of the Indenture. Request may be made to:
NTL Incorporated
110 East 59th Street, 26th Floor
New York, New York 10022
Attention of: Richard J. Lubasch, Esq.
General Counsel
12
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below:
(I) or (we) assign and transfer this Senior 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
Senior 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 Senior Note)
Date: __________________
Signature Guarantee: * ____________________________________________
In connection with any transfer of any of the Senior 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 Senior Notes and the last
date, if any, on which such Senior Notes were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Senior Notes
are being transferred:
CHECK ONE BOX BELOW
(1) |_| to the Company; or
(2) |_| pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(3) |_| pursuant to and in compliance with Regulation S under the
Securities Act of 1933; or
(4) |_| pursuant to another available exemption from the
registration requirements of the Securities Act of 1933. Unless one
of the boxes is checked, the Trustee will refuse to register
__________________________
* Signature must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange
13
any of the Senior Notes evidenced by this certificate in the name of any
Person other than the registered Holder thereof; provided, however, that if
box (2), (3) or (4) is checked, the Trustee may require, prior to
registering any such transfer of the Senior Notes such legal opinions,
certifications and other information as the Company has reasonably
requested 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 of 1933, such as the exemption provided
by Rule 144 under such Act.
__________________________
Signature
Signature Guarantee*
__________________________
Signature must be guaranteed __________________________
Signature
__________________________________________________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Senior
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.
14
NOTICE: To be executed by an executive officer
15
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior 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 1,000
pounds sterling or any integral multiple thereof) to be
purchased:______________________
Your Signature: ______________________________________________________
(Sign exactly as your name appears on the other side of
this Senior Note)
Date: ________________________
Signature Guarantee:**/
____________________________
**/ Signature must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
16
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Global Note shall be
__________________ Pounds Sterling. The following increases or decreases in the
principal amount of this Global Note have been made:
================================================================================
Amount of Amount of Principal Signature of Date of
decrease in increase in amount of authorized exchange
principal principal this Global officer of following such
amount of this amount of this Note Trustee or decrease or
Global Note Global Note Notes Custodian increase
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
17
EXHIBIT B
[FORM OF FACE OF EXCHANGE NOTE]
[Global Notes Legend, if applicable]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC 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 SENIOR
NOTE. THE ISSUE DATE OF THIS SENIOR NOTE IS MARCH 13, 1998. THE ISSUE PRICE OF
THIS SENIOR NOTE IS 586.20 POUNDS STERLING PER 1,000 POUNDS STERLING OF INITIAL
PRINCIPAL AMOUNT AT MATURITY. THIS SENIOR NOTE IS ISSUED WITH 413.80 POUNDS
STERLING OF ORIGINAL ISSUE DISCOUNT PER 1,000 POUNDS STERLING OF INITIAL
PRINCIPAL AMOUNT AT MATURITY. THE YIELD TO MATURITY OF THIS SENIOR NOTE IS
10.8%.
No.___________ __________Pounds Sterling
CUSIP No. [ ]CINS No. [ ]
10-3/4% SERIES B SENIOR DEFERRED COUPON NOTE DUE 2008
NTL Incorporated, a Delaware corporation (the "Company") promises to pay to
_________________________ or registered assigns, the principal sum of [ ] [ ]
Pounds Sterling [or such other amount as is indicated on Schedule A hereof]****
on April 1, 2008, subject to the further provisions of this Senior 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 1 and October 1, commencing October 1, 2003
Record Dates: March 15 and September 15
IN WITNESS WHEREOF, NTL Incorporated has caused this Senior Note to be
signed manually or by facsimile by its duly authorized officers.
Dated: ________________
NTL INCORPORATED,
by:____________________________________
by:____________________________________
______________________________
**** Applicable to Global Notes only.
2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 10-3/4% Series B Senior Deferred Coupon Notes Due 2008
described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By: _____________________________________
Authorized Officer
3
(FORM OF REVERSE OF EXCHANGE NOTE)
NTL INCORPORATED
10-3/4% Series B Senior Deferred Coupon Note Due 2008
1. Interest. NTL INCORPORATED, a Delaware corporation (the "Company"), is
the issuer of 10-3/4% Series B Senior Deferred Coupon Notes Due 2008 (the
"Senior Notes"). The Senior 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 10-3/4%, compounded semiannually,
to an aggregate principal amount of 300,000,000 pounds sterling by April 1,
2003. The Company promises to pay interest on the Senior Notes in cash
semiannually on each April 1 and October 1, commencing on October 1, 2003, to
Holders of record on the immediately preceding March 15 and September 15,
respectively, at the rate of 10-3/4% per annum. Interest on the Senior Notes
will accrue from the most recent date to which interest has been paid on the
Company's 10-3/4% Senior Notes Due 2008, or if no interest has been paid, from
April 1, 2003. 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 Senior 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
Senior Note shall be increased to the extent necessary to pay Additional Amounts
as set forth in this Senior 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 Senior 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 Senior 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 Senior Note after such deduction or
withholding shall be not less than the amounts specified in this Senior Note to
which the Holder of this Senior 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,
4
nominee, trust, partnership or corporation), other than the holding of this
Senior Note or the receipt of amounts payable in respect of this Senior
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 Senior
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 Senior 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 Senior
Note or, if different, the beneficial owner of the interest payable on this
Senior 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 Senior Note or withholding from the proceeds of a sale or
exchange of a Senior 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
Senior 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 Senior 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 Senior
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 Senior 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
Senior Note. All references to principal
5
amount or interest on the Senior Notes in the Indenture or the Senior 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 Senior Notes
(except defaulted interest) to the Persons who are registered Holders of Senior
Notes at the close of business on the record date for the next interest payment
date even though Senior Notes are canceled after the record date and on or
before the interest payment date. Holders must surrender Senior Notes to a
Paying Agent to collect principal and premium payments. The Company will pay
principal, 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, 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, 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 Trustee will act as Paying Agent and
Registrar in the City of New York and in London, England. Banque Internationale
a Luxembourg S.A. will act as Paying Agent and Registrar in Luxembourg as long
as the Senior 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 Senior Notes under an indenture, dated
as of March 13, 1998 (the "Indenture"), between the Company and The Chase
Manhattan Bank, as Trustee. The terms of the Senior 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 (Sections) 77aaa-77bbbb) as in effect on the date of the
Indenture. The Senior 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 Senior Notes are
unsecured general obligations of the Company limited to 300,000,000 pounds
sterling in aggregate principal amount.
6. Optional Redemption. Except as provided in Section 7 herein, the Senior
Notes are not redeemable at the Company's option prior to April 1, 2003.
Thereafter, the Senior 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)
set forth below plus accrued and unpaid interest thereon to the applicable
redemption date, if redeemed during the twelve-month period beginning on April 1
of the years indicated below:
Year Percentage
2003 ........................... 105.375%
2004............................ 103.583%
2005............................ 101.792%
2006 and thereafter............. 100.000%
6
7. Optional Tax Redemption. (a) The Senior 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 the Accreted Value thereof at the date of redemption if prior to April 1,
2003) if after the date on which Section 2 of this Senior 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 Senior Notes as described under
Section 2 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 Senior
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 Senior 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 to the date fixed for redemption interest (or the Accreted Value
thereof at the date fixed for redemption if prior to April 1, 2003) 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 Senior 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.
7
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
Senior Notes to be redeemed at his address of record. The Senior Notes in
denominations larger than 1,000 pounds sterling may be redeemed in part but only
in integral multiples of 1,000 pounds sterling. In the event of a redemption of
less than all of the Senior Notes, the Senior 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 Senior Notes or portions of
them called for redemption. If this Senior 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 Senior Note is registered at the close of business
on such record date.
9. Mandatory Redemption. The Company will not be required to make mandatory
redemption or repurchase payments with respect to the Senior Notes. There are no
sinking fund payments with respect to the Senior 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 Senior Notes at a purchase price equal to 101% of
the Accreted Value thereof on the date of purchase (if such date is prior to
April 1, 2003), or 101% of the aggregate principal amount thereof, plus accrued
and unpaid interest to the Purchase Date (if on or after April 1, 2003). Holders
of Senior 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 Senior 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 Senior Notes and Other Qualified Notes to purchase
the maximum principal amount of Senior 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 Senior Notes and the Other Qualified Notes;
provided, however, that the asset sale offer must be made first to the holders
of the Applicable Notes) that may be purchased out of the Excess Proceeds, if
any, remaining after the consummation of an asset sale offer made to the holders
of the Applicable Notes, with respect to the Senior Notes, at an offer price in
cash in an amount equal to 100% of the Accreted Value on the date fixed for the
closing of such offer (if such date is prior to April 1, 2003) or 100% of the
outstanding principal amount thereof plus accrued and unpaid interest, if any,
to the date fixed for the closing of such offer (if such date is on or after
April 1, 2003). To the extent that the aggregate principal amount or accreted
value, as the case may be, of Senior Notes, Applicable 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 Senior
Notes and Other Qualified Notes surrendered by holders thereof exceeds the
amount of Excess Proceeds, if any, remaining after the consummation of an asset
sale offer made to the holders of the Applicable Notes, then any remaining
Excess Proceeds will be
8
allocated pro rata according to principal amount or accreted value, as the case
may be, to the Senior Notes and each issue of the Other Qualified Notes and, the
Trustee will select the Senior 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 Senior Notes are in registered
form, without coupons, in denominations of 1,000 pounds sterling and integral
multiples of 1,000 pounds sterling. The transfer of Senior Notes may be
registered, and Senior 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 Senior Note or portion of a Senior Note selected for
redemption (except the unredeemed portion of any Senior Note being redeemed in
part). Also, it need not exchange or register the transfer of any Senior Note
for a period of 15 days before a selection of Senior Notes to be redeemed.
12. Persons Deemed Owners. Except as provided in paragraph 3 of this Senior
Note, the registered Holder of a Senior 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 Senior
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.
14. Defaults and Remedies. The Senior 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 of the then outstanding Senior Notes by notice to the Company
and the Trustee may declare all the Senior Notes or Accreted Value 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 Senior Notes shall become due and payable immediately without
further action or notice. The Holders of a majority in principal amount of the
Senior 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 Accreted Value that has
become due solely because of the acceleration. Holders may not enforce the
Indenture or the Senior Notes as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Senior 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 Senior Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Senior Notes (including consents obtained in connection with a tender offer or
exchange offer for Senior Notes), and any existing default may be waived with
the
9
consent of the Holders of a majority in principal amount of the then outstanding
Senior Notes. Without the consent of any Holder, the Indenture or the Senior
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 Senior 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 or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Senior 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 Senior Notes by accepting a Senior Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Senior Notes.
19. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN
THE INDENTURE AND THE SENIOR NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
20. Authentication. The Senior 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 Senior Notes upon written
request and without charge a copy of the Indenture. Request may be made to:
NTL Incorporated
110 East 59th Street, 26th Floor
New York, New York 10022
Attention of: Richard J. Lubasch, Esq.
General Counsel
10
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below:
(I) or (we) assign and transfer this Senior 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 Senior 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 Senior Note)
Date: __________________
Signature Guarantee: **/ ______________________________
_____________________________
**/ Signature must be guaranteed by a commercial Bank, trust company or member
of the New York Stock Exchange.
11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior 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 1,000
pounds sterling or any integral multiple thereof) to be purchased:
_____________________
Your Signature: _____________________________________________
(Sign exactly as your name appears on the
other side of this Senior Note)
Date: ________________________
Signature Guarantee:***
_____________________
*** Signature must be guaranteed by a commercial bank, trust company or
member firm of the New York Stock Exchange.
12
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Global Note shall be
__________________ pounds sterling. The following increases or decreases in the
principal amount of this Global Note have been made:
================================================================================
Amount of Amount of Principal Signature of Date of
decrease in increase in amount of authorized exchange
principal principal this Global officer of following such
amount of this amount of this Note Trustee or decrease or
Global Note Global Note Notes Custodian increase
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
13
EXHIBIT C
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM RULE 144A GLOBAL NOTE
TO REGULATION S GLOBAL NOTE
(Transfers pursuant to (Section) 2.06(a)(ii)
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 Incorporated 10-3/4% Senior Deferred Coupon
Notes Due 2008 (the "Senior Notes")
Reference is hereby made to the Indenture, dated as of March 13, 1998 (the
"Indenture"), between NTL Incorporated, as Issuer, and The Chase Manhattan Bank,
as Trustee.
This letter relates to [ ] pounds sterling aggregate principal amount of
Senior Notes which are held in the form of the [Rule 144A Global Note (CUSIP No.
)] with the Depositary in the name of [name of transferor] (the "Transferor") to
effect the transfer of the Senior Notes in exchange for an equivalent beneficial
interest in the Regulation S Global Notes.
In connection with such request, the Transferor does hereby certify that
such transfer has been effected in accordance with the transfer restrictions set
forth in the Senior Notes and (i) with respect to transfers made in reliance on
Regulation S, does hereby certify that:
(1) the offer of the Senior Notes was not made to a Person in the
United States;
(2) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither the Transferor nor any
Person acting on its behalf knows that the transaction was pre-arranged
with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the United States Securities Act of 1933, as
amended (the "Securities Act");
and (ii) with respect to transfers made in reliance on Rule 144 does hereby
certify that the Senior Notes are being transferred in a transaction permitted
by Rule 144 under the Securities Act; and (iii) with respect to transfers made
in reliance on Rule 144A, does hereby certify that such Senior Notes are being
transferred in accordance with Rule 144A under the Securities Act to a
transferee that the Transferor reasonably believes is purchasing the Senior
Notes for its own account or an account with respect to
which the transferee exercises sole investment discretion and the transferee and
any such account is a "qualified institutional buyer" within the meaning of Rule
144A, in a transaction meeting the requirements of Rule 144A and in accordance
with applicable securities laws of any state of the United States or any other
jurisdiction.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(2) or (3) or Rule 904(c)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(c)(2) or (3) or Rule 904(c)(1), as the
case may be.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Capitalized terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S.
[Name of Transferor]
By:___________________________
Name:
Title:
Dated:
cc: NTL Incorporated
110 East 59th Street
New York, New York 10022
Attn: Richard J. Lubasch, Esq.
General Counsel
2
EXHIBIT D
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM REGULATION S GLOBAL NOTE
TO RULE 144A GLOBAL NOTE
(Transfers pursuant to (Section) 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 Incorporated 10-3/4% Senior Deferred Coupon
Notes Due 2008 (the "Senior Notes")
Reference is hereby made to the Indenture, dated as of March 13, 1998 (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 [ ] pounds sterling aggregate principal amount of
Senior Notes which are held in the form of the Regulation S Global Note (CINS
No. [ ]) with the Depositary in the name of [name of transferor] (the
"Transferor") to effect the transfer of the Senior Notes in exchange for an
equivalent beneficial interest in the Rule 144A Global Note.
In connection with such request, and in respect of such Senior Notes the
Transferor does hereby certify that such Senior Notes are being transferred in
accordance with (i) the transfer restrictions set forth in the Senior Notes and
(ii) Rule 144A under the United States Securities Act of 1933, as amended, to a
transferee that the Transferor reasonably believes is purchasing the Senior
Notes for its own account or an account with respect to which the transferee
exercises sole investment discretion and the transferee and any such account is
a "qualified institutional buyer" within the meaning of Rule 144A, in a
transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction.
[Name of Transferor],
By:___________________________
Name:
Title:
Dated:
cc: NTL Incorporated
110 East 59th Street
New York, New York 10022
Attn: Richard J. Lubasch, Esq.
General Counsel
EXHIBIT E
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM GLOBAL NOTE OR RESTRICTED
NOTE TO RESTRICTED NOTE
(Transfers pursuant to (Section) 2.06(a)(iv)
or (Section) 2.06(a)(v) 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 Incorporated 10-3/4% Senior Deferred Coupon
Notes Due 2008 (the "Senior Notes")
Reference is hereby made to the Indenture, dated as of March 13, 1998 (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 [ ] pounds sterling aggregate principal amount of
Senior Notes which are held [in the form of the [Rule 144A/Regulation S]
[Global] [Restricted] Note (CUSIP No. [ ] CINS No. [ ]) with the Depositary in
the name of [name of transferor] (the "Transferor") to effect the transfer of
the Senior Notes.
In connection with such request, and in respect of such Senior Notes, the
Transferor does hereby certify that such Senior Notes are being transferred (i)
in accordance with the transfer restrictions set forth in the Senior 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 Incorporated
110 East 59th Street
New York, New York 10022
Attn: Richard J. Lubasch, Esq.
General Counsel
EXHIBIT F
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 Incorporated 10-3/4% Senior Deferred Coupon
Notes Due 2008 (the "Senior Notes")
Reference is hereby made to the Indenture, dated as of March 13,1998 (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 [ ] pounds sterling aggregate principal amount of
Senior Notes which are held [in the form of the [Rule 144/Regulation S]
[Restricted] [Global] Note (CUSIP No. [ ] CINS No. [ ]) with the Depositary * *
in the name of [name of transferor] (the "Transferor") to effect the transfer of
the Senior Notes to the undersigned.
In connection with such request, and in respect of such Senior Notes we
confirm that:
1. We understand that the Senior 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 Senior Notes have not been registered under the Securities Act
and that (A) the Senior 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.
_________________________
* Insert and modify if appropriate
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 Senior 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, able to bear the economic risk of our proposed investment in the
Notes.
3. We are acquiring the Senior 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 Senior 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 Senior
Notes is, purchasing Senior Notes having an aggregate [Accreted Value]
[principal amount at maturity] of not less than 100,000 pounds sterling.
5. We understand that (a) the Senior Notes will be delivered to us in
registered form only and that the certificate delivered to us in respect of the
Senior Notes will bear a legend substantially to the following effect:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS NOTE,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS NOTE MAY NOT BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE
HEREOF (OR ANY PREDECESSOR NOTE HERETO) OR (Y) BY ANY HOLDER THAT WAS AN
AFFILIATE OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE
OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE COMPANY, (2) SO LONG AS
THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE
OF TRANSFER ON THE REVERSE OF THIS NOTE), (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
NOTE), AND, IF SUCH TRANSFER IS BEING EFFECTED BY CERTAIN TRANSFERORS PRIOR TO
THE EXPIRATION OF THE "40 DAY RESTRICTED PERIOD" (WITHIN THE MEANING OF RULE
903(c)(2) OF REGULATION S UNDER THE SECURITIES ACT), A CERTIFICATE THAT MAY BE
OBTAINED FROM THE COMPANY OR THE TRUSTEE IS DELIVERED BY THE TRANSFEREE TO THE
COMPANY AND THE TRUSTEE, (4) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
2
STATES, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (4) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM.
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 Senior Notes, we will not do so unless:
(a) the Senior Notes are sold to the Company;
(b) the Senior Notes are sold to a qualified institutional buyer in
compliance with Rule 144A under the Securities Act;
(c) the Senior Notes are sold outside the United States in compliance
with Rule 903 or Rule 904 under the Securities Act;
(d) the Senior Notes are sold pursuant to an effective registration
statement under the Securities Act; or
(e) the Senior 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 Incorporated
110 East 59th Street
New York, New York 10022
Attn: Richard J. Lubasch, Esq.
General Counsel
3
EXHIBIT G
FORM OF CERTIFICATE FOR TRANSFERS OF
REGULATION S GLOBAL NOTE FOR
RESTRICTED NOTES
(Transfers pursuant to (Section) 2.06(a)(viii))
(Transferor)
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attn: Corporate Trustee
Administration Department
Re: NTL Incorporated 10-3/4% Senior Deferred Coupon
Notes Due 2008 (the "Senior Notes")
Reference is hereby made to the Indenture, dated as of March 13, 1998 (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 certificate relates to [ ] pounds sterling aggregate principal amount
of Senior Notes which are held in the form of the Regulation S Global Note (CINS
No. [ ]) with the Depositary in the name of [name of transferor] (the
"Transferor") to effect the transfer of the beneficial interest in such
Regulation S Global Note for a beneficial interest in an equivalent aggregate
principal amount of Restricted Securities.
In connection with such request, and in respect of such Senior Notes, we
confirm that:
We are either not a U.S. Person (as defined below) or we have purchased our
beneficial interest in the above referenced Regulation S Global Note in a
transaction that is exempt from the registration requirements under the
Securities Act.
We are delivering this certificate in connection with obtaining a
beneficial interest in Restricted Securities in exchange for our beneficial
interest in the Regulation S Global Note.
For purposes of this certificate, "U.S. Person" means (i) any individual
resident in the United States, (ii) any partnership or corporation organized or
incorporated under the laws of the United States, (iii) any estate of which an
executor or administrator is a U.S. Person (other than an estate governed by
foreign law and of which at least one executor or administrator is a non-U.S.
Person who has sole or shared investment discretion with respect to its assets),
(iv) any trust of which any trustee is a U.S. Person (other than a trust of
which at least one trustee is a non-U.S. Person who has sole or shared
investment discretion with respect to its assets and no beneficiary of the trust
(and no settlor if the trust is revocable) is a U.S. Person), (v) any agency or
branch of a foreign entity located in the United States, (vi) any non-
discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary for the benefit or account of a U.S. Person, (vii) any
discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual) resident
in the
United States (other than such an account held for the benefit or account of a
non-U.S. Person), (viii) any partnership or corporation organized or
incorporated under the laws of a foreign jurisdiction and formed by a U.S.
Person principally for the purpose of investing in securities not registered
under the Securities Act (unless it is organized or incorporated, and owned, by
accredited investors within the meaning of Rule 501(a) under the Securities Act
who are not natural Persons, estates or trusts); provided, however, that the
term "U.S. Person" shall not include (A) a branch or agency of a U.S. Person
that is located and operating outside the United States for valid business
purposes as a locally regulated branch or agency engaged in the banking or
insurance business, (B) any employee benefit plan established and administered
in accordance with the law, customary practices and documentation of a foreign
country and (C) the international organizations set forth in Section 902(o)(7)
of Regulation S under the Securities Act and any other similar international
organizations, and their agencies, affiliates and pension plans.
We irrevocably authorize you to produce this certificate or a copy hereof
to any interested party in any administrative or other proceedings with respect
to the matters covered by this certificate.
Very truly yours,
[TRANSFEROR]
By:___________________________
Name:
Title:
Dated: To be completed by the account
Holder as, or as agent for, the
beneficial owner(s) of the Senior
Notes to which this certificate
relates.
cc: NTL Incorporated
110 East 59th Street
New York, New York 10022
Attn: Richard J. Lubasch, Esq.
General Counsel
2