Exhibit 4.2
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
by and among
NTL INCORPORATED
(formerly NTL Communications Corp.)
and
THE PURCHASERS LISTED ON THE SIGNATURE PAGES HERETO
dated as of
January 10, 2003
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of January
10, 2003, by and among NTL Incorporated, a Delaware corporation (the
"Company"), the purchasers listed on the signatures pages hereto (the
"Purchasers") and the Guarantors (as defined below). Capitalized terms used
but not defined herein shall have the meanings given to such terms in the
Purchase Agreement (as defined below). Certain terms used herein are defined
in Section 9 below.
WHEREAS, the Company proposes to issue and sell to the Purchasers
upon the terms and subject to the conditions set forth in a Purchase
Agreement, dated as of January 9, 2003 (as amended, supplemented or modified
from time to time, the "Purchase Agreement"), its 19% Senior Secured Notes due
2010 (the "Notes") in an aggregate principal amount of $558,249,000, to be
jointly and severally guaranteed on a senior basis by, and secured by the
assets of, certain of the Company's subsidiaries signatory hereto (the "Senior
Guarantors") and guaranteed on a subordinated basis by Communications Cable
Funding Corp. (together with the Senior Guarantors, the "Guarantors") (such
notes and any notes issued in exchange, substitution or replacement therefore,
the "Securities"), issued pursuant to the Indenture (as defined in the
Purchase Agreement) and the Company's Second Amended Joint Plan of
Reorganization under Chapter 11 of the Bankruptcy Code, confirmed by order of
the United States Bankruptcy Court for the Southern District of New York,
entered on September 5th, 2002; and
WHEREAS, as an inducement to the Purchasers to enter into the
Purchase Agreement, the Company and the Guarantors agree with the Purchasers,
for the benefit of the holders (including the Purchasers) of the Securities
and the Exchange Securities (as defined in Section 1.1(a)), as follows:
1. Exchange Offer Registration.
1.1 Registration. Except as provided in Section 2 and Section 3,
the Company and the Guarantors shall:
(a) prepare, and, on or prior to 95 days after the date hereof,
file with the Commission a registration statement (the "Exchange Offer
Registration Statement") on an appropriate form under the Securities Act with
respect to a proposed offer to the Holders of the Securities (the "Registered
Exchange Offer") to issue and deliver to such Holders, in exchange for any and
all of the Securities, a like aggregate principal amount at maturity of debt
securities of the Company (the "Exchange Securities") that are identical in
all material respects to the Securities guaranteed on a senior basis by the
Guarantors pursuant to guaranties that are substantially identical to the
Guaranties (such new guaranties hereinafter called "Exchange Guaranties") and
secured to the extent set forth in the Collateral Documents (as defined in the
Indenture) and Article 12 of the Indenture, except that they will have been
registered pursuant to an effective registration statement under the
Securities Act and will not contain provisions restricting transfer;
(b) use their reasonable best efforts to cause the Exchange Offer
Registration Statement to cover the Exchange Securities and to become
effective under the Securities Act no later than 180 days after the Closing
Date and the Registered Exchange Offer to be consummated
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no later than 210 days after the Closing Date; and
(c) keep the Exchange Offer Registration Statement effective for
not less than 30 days (or longer, if required by applicable law, not to exceed
a 210 day period referred to in the foregoing clause (b)) after the date on
which notice of the Registered Exchange Offer is mailed to the Holders.
1.2 Indenture. The Exchange Securities and Exchange Guaranties
will be issued pursuant to the Indenture or an indenture (each an "Exchange
Securities Indenture") between the Company, the Guarantors and the Trustee or
such other bank or trust company that is reasonably satisfactory to a majority
in interest of the Purchasers, as trustee (the "Exchange Securities Trustee"),
such indenture to be identical in all material respects to the Indenture,
except for the transfer restrictions relating to the Securities (as described
above).
1.3 Objective. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to:
(a) enable each Holder electing to exchange Securities for
Exchange Securities (assuming that such Holder (a) is not (i) an affiliate of
the Company or (ii) an Exchanging Dealer (as defined below) not complying with
the requirements of Section 4, (b) acquires the Exchange Securities in the
ordinary course of such Holder's business and (c) has no arrangements or
understandings with any person to participate in the distribution of the
Exchange Securities); and
(b) enable each Holder to trade such Exchange Securities from and
after their receipt without any limitations or restrictions under the
Securities Act and without material restrictions under the blue sky or
securities laws of any State in the United States.
1.4 Exchanging Dealer. The Company, the Guarantors and the
Purchasers and each Exchanging Dealer acknowledge that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities Act,
each Holder that is a broker-dealer electing to exchange Securities, acquired
for its own account as a result of market-making activities or other trading
activities, for Exchange Securities and Exchange Guaranties (an "Exchanging
Dealer"), is required to deliver a prospectus containing substantially the
information set forth in Annex A on the cover, in Annex B in the "Exchange
Offer Procedures" section and the "Purpose of the Exchange Offer" section and
in Annex C in the "Plan of Distribution" section of such prospectus in
connection with a sale of any such Exchange Securities and Exchange Guaranties
received by such Exchanging Dealer pursuant to the Registered Exchange Offer.
1.5 Related Obligations.
(a) In connection with the Registered Exchange Offer, the Company
shall:
(i) mail to each Holder a copy of the prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of
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transmittal and related documents;
(ii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York;
(iii) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York City time, on the last
business day on which the Registered Exchange Offer shall remain
open; and
(iv) otherwise comply in all material respects with all laws
that are applicable to the Registered Exchange Offer.
(b) As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Securities
so accepted for exchange; and
(iii) cause the Trustee or the Exchange Securities Trustee,
as the case may be, promptly to authenticate and deliver to each
Holder Exchange Securities equal in principal amount at maturity to
the Securities of such Holder so accepted for exchange.
(c) The Company and the Guarantors shall use their reasonable best
efforts to keep the Exchange Offer Registration Statement effective and to
amend and supplement the prospectus contained in the Exchange Offer
Registration Statement in order to permit such prospectus to be used by all
persons subject to the prospectus delivery requirements of the Securities Act
for the period of time such persons must comply with to meet the requirements
in order to resell the Exchange Securities and Exchange Guaranties; provided
that (i) in the case where the prospectus and any amendment or supplements
must be delivered by an Exchanging Dealer, the period shall be the period
beginning on the date on which the Exchange Offer Registration Statement is
declared effective and ending on the earlier to occur of (x) the date that is
180 days after the date on which the Exchange Offer Registration Statement is
declared effective and (y) the date on which all Exchanging Dealers have sold
all Exchange Securities and Exchange Guaranties held by them and (ii) the
Company shall make such prospectus and any amendment or supplement available
to any broker-dealer for use in connection with any resale of any Exchange
Securities for a period of not less than 180 days after the consummation of
the Registered Exchange Offer.
(d) Notwithstanding any other provisions contained in this
agreement, the Company and the Guarantors will ensure that:
(i) any Exchange Offer Registration Statement and any
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amendment and any prospectus forming a part of the registration
statement and any supplement complies in all material respects with
the Securities Act and the rules and regulations of the Commission
under the Securities Act;
(ii) any Exchange Offer Registration Statement and any
amendment does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated or necessary to make the statements not
misleading (other than with respect to information included in
reliance upon or in conformity with written information furnished to
the Company by or on behalf of any Holder specifically for use in the
Exchange Offer Registration Statement, including any such information
provided by the Holders pursuant to Annexes A, B, C and D (the
"Holders' Information")); and
(iii) any prospectus forming part of any Exchange Offer
Registration Statement, and any supplement to such prospectus, does
not, as of the consummation of the Registered Exchange Offer, include
an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading (other than
with respect to information included in reliance upon or in
conformity with written information furnished to the Company by or on
behalf of any Holder specifically for use in the Exchange Offer
Registration Statement, including any Holders' Information).
1.6 One Class. The Indenture or the Exchange Securities Indenture,
as the case may be, shall provide that the Securities and the Exchange
Securities shall vote and consent together on all matters as one class and
that neither the Securities nor the Exchange Securities will have the right to
vote or consent as a separate class on any matter.
1.7 Interest. Interest on each Exchange Security issued pursuant
to the Registered Exchange Offer will accrue from the last interest payment
date on which interest was paid on the Securities surrendered in exchange for
each Exchange Security.
1.8 Representations of Holders. Each Holder participating in the
Registered Exchange Offer shall be required to represent to the Company that
at the time of the consummation of the Registered Exchange Offer (i) any
Exchange Securities received by such Holder will be acquired in the ordinary
course of business, (ii) such Holder will have no arrangements or
understanding with any person to participate in the distribution of the
Securities or the Exchange Securities within the meaning of the Securities Act
and (iii) such Holder is not an affiliate of the Company or, if it is such an
affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable.
2. Shelf Registration.
2.1 General. If (i) because of any change in law or the applicable
interpretations by the Commission's staff the Company is not permitted to
effect the Registered Exchange Offer as contemplated by Section 1, or (ii) any
Securities validly tendered pursuant to
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the Registered Exchange Offer are not exchanged for Exchange Securities on or
prior to 210 days after the Closing Date, or (iii) any Purchaser so requests
on or prior to the 20th business day following the date on which the
Registered Exchange Offer is consummated with respect to Securities not
eligible to be exchanged for Exchange Securities in the Registered Exchange
Offer and held by it following the consummation of the Registered Exchange
Offer, or (iv) any change in law or the applicable interpretations by the
Commission's staff do not permit any Holder to participate in the Registered
Exchange Offer, or (v) any Holder that participates in the Registered Exchange
Offer and does not receive freely transferable Exchange Securities in exchange
for tendered Securities (including restrictions due to the status of such
Holder as an Affiliate of the Company or the Guarantors within the meaning of
the Securities Act) so requests with respect to such Securities on or prior to
the 20th business day following the date on which the Registered Exchange
Offer is consummated; provided that such Holder (1) beneficially (within the
meaning of Rule 13-d under the Exchange Act) owns 10% or more of the Common
Stock of the Company or (2) provides to the Company a written statement
indicating that such Holder is deemed or might reasonably be considered to be
an "underwriter" under Section 2(11) of the Securities Act, or (vi) the
Company so elects, then the following provisions shall apply:
(a) The Company and the Guarantors shall use their reasonable best
efforts to file within 45 days after so required or requested pursuant to this
Section 2 with the Commission, and thereafter shall use their reasonable best
efforts to cause to be declared effective, a shelf registration statement on
an appropriate form under the Securities Act relating to the offer and sale of
the Registrable Securities by the Holders from time to time in accordance with
the methods of distribution set forth in such registration statement
(hereafter, a "Shelf Registration Statement" and, together with any Exchange
Offer Registration Statement, a "Registration Statement"); provided that no
Holder (other than each Purchaser) shall be entitled to have any Securities
held by such Holder covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by the provisions of this Agreement
applicable to such Holder; provided that the Company and the Guarantors may
discontinue any registration of Securities which are not Registrable
Securities at any time prior to the effective date of the Shelf Registration
Statement.
(b) The Company and the Guarantors shall use their reasonable best
efforts to keep the Shelf Registration Statement continuously effective and
not to suspend use of the prospectus included therein in order to permit the
prospectus included therein to be usable by the Holders of Registrable
Securities until the earlier of: (i) the date all Holders could sell such
securities free of any volume limitations imposed by Rule 144 of the
Securities Act; (ii) the date all Holders have disposed of all Registrable
Securities; (iii) the maturity date of the Notes (such period the "Shelf
Registration Period"); or (iv) the date all of the Notes have been redeemed.
2.2 Suspension Period.
(a) The Company and the Guarantors shall be deemed not to have
used their reasonable best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any action that
would result in Holders of the Registrable Securities covered thereby not
being able to offer and sell such Registrable Securities during the Shelf
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Registration Period, unless such action is required by applicable law or
applicable interpretation by the Commission's staff, and provided, further,
that the foregoing shall not apply to actions if the Company determines, in
its reasonable judgment, as authorized by a resolution of its Board of
Directors, that the filing of such Shelf Registration Statement or the
maintenance of effectiveness of such Shelf Registration Statement or
prospectus included therein would materially interfere with any material
financing, corporate reorganization or other material transaction involving
the Company or any subsidiary, or would require premature disclosure thereof,
and the Company promptly gives the Participating Holders written notice of
such determination, containing a general statement of the reasons for such
postponement or suspension and an approximation of the anticipated delay;
provided, however, that the failure to keep the Shelf Registration Statement
effective and usable for offers and sales of Registrable Securities for such
reasons shall last no longer than 120 days in the aggregate in any 12-month
period. Any such period during which the Company and the Guarantors fail to
keep the Shelf Registration Statement effective and usable for offers and
sales of Registrable Securities is referred to as a "Suspension Period".
(b) A Suspension Period shall commence on and include the date the
Company and the Guarantors give notice that the Shelf Registration Statement
is no longer effective or the included prospectus is no longer usable for
offers and sales of Registrable Securities and shall end on the date when each
Participating Holder either receives copies of the supplemented or amended
prospectus or other document contemplated by Section 4.1(c) or is advised in
writing by the Company and the Guarantors that use of the prospectus may be
resumed. If more than two Suspension Periods occur which exceed 120 days in
the aggregate during any period of 365 consecutive days, then the Company and
the Guarantors will be obligated to pay Special Interest (as defined in
Section 3.1), in accordance with the provisions of Section 3, to each
Participating Holder during each such Suspension Period on the principal
amount of Registrable Securities held by such Holder as of the most recent
interest payment date.
2.3 Related Obligations. Notwithstanding any other provisions of
this Agreement, the Company and the Guarantors will ensure that (i) any Shelf
Registration Statement and any amendment and any prospectus forming part of
such registration statement and any supplement complies in all material
respects with the Securities Act and the rules and regulations of the
Commission under the Securities Act, (ii) any Shelf Registration Statement and
any amendment (in either case, other than with respect to information included
in reliance upon or in conformity with written information furnished to the
Company by or on behalf of any Holder specifically for use in the Shelf
Registration Statement, including any Holders' Information) does not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated or necessary to make the statements not misleading and
(iii) any prospectus forming part of any Shelf Registration Statement, and any
supplement to such prospectus (in either case, other than with respect to
Holders' Information), does not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements, in
the light of the circumstances under which they were made, not misleading.
3. Special Interest; Registration Default.
3.1 Special Interest. The Company and the Guarantors will be
jointly and severally obligated to pay Special Interest to each holder of
Registrable Securities, during the
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period of one or more of Registration Defaults (as defined below), at the rate
equal to 0.5% per annum, which amount shall increase to 1.0% per annum after
the first 120-day period following the occurrence of the first Registration
Default if such default is then still continuing, for the period from and
including the date of occurrence of the first Registration Default until such
time as no Registration Default is in effect (after which such Special
Interest shall cease to be payable).
3.2 Registration Defaults.
(a) the Exchange Offer Registration Statement is not filed with
the Commission within 95 days following the Closing Date,
(b) the Shelf Registration Statement is not filed within 45 days
after it is so required or requested pursuant to Section 2,
(c) the Exchange Offer Registration Statement is not declared
effective on or prior to 180 days after the Closing Date,
(d) the Registered Exchange Offer is not consummated on or prior
to 210 days after the Closing Date, or
(e) the Shelf Registration Statement is filed and declared
effective but shall thereafter cease to be effective prior to the end of the
period specified in Section 2.1(b), except as permitted under this Agreement,
(at any time that the Company and the Guarantors are obligated to maintain its
effectiveness, it being understood that the Company shall not be obligated to
maintain such effectiveness if the failure to maintain such effectiveness was
caused by a failure of Holders to perform their obligations with respect to
the provision of the Holders' Information) without being succeeded by an
additional Registration Statement filed within 95 days and declared effective
within 210 days.
3.3 Notice; Payment. The Company shall notify the Trustee and the
Paying Agent (as defined in the Indenture) under the Indenture immediately
upon the happening of each and every Registration Default. The Company and the
Guarantors shall pay the Special Interest due on the Registrable Securities by
depositing with the Paying Agent (which may not be the Company for these
purposes), in trust, for the benefit of the Holders, prior to 10:00 a.m., New
York City time, on the next interest payment date specified by the Indenture
and the Securities, sums sufficient to pay the Special Interest then due. The
Special Interest due shall be payable on each interest payment date specified
by the Indenture and the Securities to the record holder entitled to receive
the interest payment to be made on such date. Each obligation to pay Special
Interest shall be deemed to accrue from and including the date of the
applicable Registration Default.
3.4 Reasonable Estimate. The parties hereto agree that the Special
Interest provided for in this Section 3 constitutes a reasonable estimate of
and is intended to constitute the sole damages that will be suffered by
Holders of Registrable Securities by reason of the failure of (i) the Shelf
Registration Statement or the Exchange Offer Registration Statement to be
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filed, (ii) the Shelf Registration Statement to remain effective, (iii) the
Exchange Offer Registration Statement to be declared effective, or (iv) the
Registered Exchange Offer to be consummated, in each case to the extent
required by this Agreement.
4. Registration Procedures.
4.1 General. In connection with any Registration Statement, the
Company shall:
(a) (i) furnish to each Purchaser, prior to filing with the
Commission, a copy of the Registration Statement and each amendment and each
supplement, if any, to the prospectus included in the registration statement,
which documents will be subject to the review and comments of each Purchaser,
each underwriter and their respective counsel; (ii) include the information
set forth in Annex A on the cover, in Annex B in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section and in
Annex C in the "Plan of Distribution" section of the prospectus forming a part
of the Exchange Offer Registration Statement, and include the information set
forth in Annex D in the Letter of Transmittal (as defined in the Exchange
Offer Registration Statement) delivered pursuant to the Registered Exchange
Offer; and (iii) if requested by any Purchaser, or if required by Applicable
Law include the information required by Items 507 or 508 of Regulation S-K and
defined in the Securities Act, as applicable, in the prospectus forming a part
of the Exchange Offer Registration Statement.
(b) notify the Participating Holders of the Commission's requests
for amending or supplementing the registration statement and the prospectus,
and prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the disposition of
all Registrable Securities covered by such registration statement for such
period as shall be required for the disposition of all of such Registrable
Securities in accordance with the intended method of distribution thereof;
provided, that except with respect to any such registration statement filed
pursuant to Rule 415 under the Securities Act, such period need not exceed 90
days;
(c) furnish, without charge, to each Participating Holder and each
underwriter such number of conformed copies of such registration statement and
of each such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the Securities
Act, in conformity with the requirements of the Securities Act, and such other
documents, as the Participating Holders and such underwriters may reasonably
request;
(d) use its best efforts (i) to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such securities or blue sky laws of such States of the United
States of America where an exemption is not available and as the Participating
Holders or any managing underwriter shall reasonably request, (ii) to keep
such
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registration or qualification in effect for so long as such registration
statement remains in effect, and (iii) to take any other action which may be
reasonably necessary or advisable to enable the Participating Holders to
consummate the disposition in such jurisdictions of the Registrable Securities
to be sold by the Participating Holders, except that the Company shall not for
any such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the requirements
of this subsection (d), (i) be obligated to be so qualified or to consent to
general service of process in any such jurisdiction or (ii) be subject to
additional taxes (other than de minimus amounts);
(e) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by
such other federal or state governmental agencies or authorities as may be
necessary in the opinion of counsel to the Company and counsel to each of the
Participating Holders to consummate the disposition of such Registrable
Securities;
(f) if requested by the lead underwriter, furnish to each
Participating Holder and each underwriter, if any, participating in the
offering of the securities covered by such registration statement, a signed
counterpart of (i) an opinion of counsel for the Company, and (ii) a "comfort"
letter signed by the independent public accountants who have certified the
Company's financial statements included or incorporated by reference in such
registration statement, covering substantially the same matters with respect
to such registration statement (and the prospectus included therein) and, in
the case of the accountants' comfort letter, with respect to events subsequent
to the date of such financial statements, as are customarily covered in
opinions of issuer's counsel and in accountants' comfort letters delivered to
the underwriters in underwritten public offerings of securities (and dated the
dates such opinions and comfort letters are customarily dated) and, in the
case of the legal opinion, such other legal matters, and, in the case of the
accountants' comfort letter, such other financial matters as the underwriters
may reasonably request;
(g) promptly notify each Participating Holder and each managing
underwriter, if any, participating in the offering of the securities covered
by such registration statement (i) when such registration statement, any
pre-effective amendment, the prospectus or any prospectus supplement related
thereto or post-effective amendment to such registration statement has been
filed, and, with respect to such registration statement or any post-effective
amendment, when the same has become effective; (ii) of any request by the
Commission for amendments or supplements to such registration statement or the
prospectus related thereto or for additional information; (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of
such registration statement or the initiation of any proceedings for that
purpose; (iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of any of the Registrable Securities
for sale under the securities or blue sky laws of any jurisdiction or the
initiation of any proceeding for such purpose; (v) at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, upon discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, in the light of the circumstances under
which they were made, and in the case of
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this clause (v), subject to Section 2.2 hereof, at the request of a
Participating Holder, promptly prepare and furnish to each Participating
Holder and each managing underwriter, if any, participating in the offering of
the Registrable Securities, a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made;
and (vi) at any time when the representations and warranties of the Company
contemplated by Section 7.3 hereof cease to be true and correct;
(h) otherwise comply with all applicable rules and regulations of
the Commission, and make generally available to its security holders, as soon
as reasonably practicable, an earnings statement covering the period of at
least twelve consecutive months beginning with the Company's first day of the
first calendar quarter after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 promulgated thereunder;
(i) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Company) for all Registrable
Securities covered by such registration statement from and after a date not
later than the effective date of such registration statement;
(j) use its best efforts to cause all Registrable Securities
covered by such registration statement to be listed on the principal
securities exchange on which similar securities issued by the Company are then
listed (if any), if the listing of such Registrable Securities is then
permitted under the rules of such exchange;
(k) deliver promptly to counsel to the Participating Holders and
each underwriter, if any, participating in the offering of the Registrable
Securities, copies of all correspondence between the Commission and the
Company with respect to such registration statement;
(l) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement;
(m) provide a CUSIP number for all Registrable Securities, no
later than the effective date of the registration statement; and
(n) make available its employees and personnel and otherwise
provide reasonable assistance to the underwriters (taking into account the
needs of the Company's business) in their marketing of Registrable Securities.
The Company may require the Participating Holders to furnish the
Company such information regarding such Participating Holders and the
distribution of the Registrable Securities as the Company may from time to
time reasonably request in writing and the Company shall not be obligated to
effect the registration of any Registrable Securities of a particular
Participating Holder unless such information regarding such Participating
Holder is provided to the Company.
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Each Participating Holder agrees that upon receipt of any notice
from the Company of the happening of any event of the kind described in
paragraph (g)(iii) or (v) of this Section 4.1, each Participating Holder will
discontinue its disposition of Registrable Securities pursuant to the
registration statement relating to such Registrable Securities until, in the
case of paragraph (g)(v) of this Section 4.1, its receipt of the copies of the
supplemented or amended prospectus contemplated by paragraph (g)(v) of this
Section 4.1 and, if so directed by the Company, will deliver to the Company
(at the Company's expense) all copies, other than permanent file copies, then
in its possession, of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice. If the disposition by a
Participating Holder of its securities is discontinued pursuant to the
foregoing sentence, the Company shall extend the period of effectiveness of
the registration statement by the number of days during the period from and
including the date of the giving of notice to and including the date when the
Participating Holder shall have received copies of the supplemented or amended
prospectus contemplated by paragraph (g)(v) of this Section 4.1, but only to
the extent a Participating Holder still holds Registrable Securities.
4.2 Registration Expenses. The Company shall pay, and shall be
responsible for, all Registration Expenses in connection with any registration
pursuant to this Agreement. Notwithstanding the foregoing, the provisions of
this Section 4.2 shall be deemed amended to the extent necessary to cause
these expense provisions to comply with "blue sky" laws of each state or the
securities laws of any other jurisdiction in the United States and its
territories in which the offering is made.
5. Indemnification.
5.1 Indemnification by the Company. The Company agrees that in the
event of any registration of any securities of the Company under the
Securities Act, the Company shall, and hereby does, indemnify and hold
harmless each of the Participating Holders, and their respective directors,
officers, partners, agents and affiliates and each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such Participating Holder or any such
underwriter within the meaning of the Securities Act, against any losses,
claims, damages, costs and reasonable expenses (including, without limitation,
reasonable attorneys' fees) or liabilities, joint or several (or actions or
proceedings, whether commenced or threatened, in respect thereof) ("Losses"),
to which such Indemnitee may become subject under the Securities Act or
otherwise, insofar as such Losses arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such securities were registered under
the Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto or (ii)
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the Company shall
reimburse such Indemnitee for any reasonable legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such Loss; provided that the Company shall not be liable in any such case to
an Indemnitee to the extent that any such Loss arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission
-11-
<page>
made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company through an
instrument duly executed by or on behalf of such Indemnitee; and provided,
further, that the Company shall not be liable to any Person who participates
as an underwriter in the offering or sale of Registrable Securities or any
other Person, if any, who controls such underwriter within the meaning of the
Securities Act, in any such case to the extent that any such Loss (i) arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by or on behalf
of such Person or (ii) arises out of such Person's failure to send or give a
copy of the final prospectus, as the same may be then supplemented or amended,
to the Person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the
sale of Registrable Securities to such Person if such statement or omission
was corrected in such final prospectus. Such indemnity shall remain in full
force regardless of any investigation made by or on behalf of any Indemnitee
and shall survive the transfer of such securities by such seller.
5.2 Indemnification by Participating Holders. As a condition to
including any Registrable Securities in any registration statement, the
Company shall have received an undertaking reasonably satisfactory to it from
each Participating Holder so including any Registrable Securities to,
severally and not jointly, indemnify and hold harmless (in the same manner and
to the same extent as set forth in Section 5.1 hereof the Company, and each
director of the Company, each officer of the Company and each other Person, if
any, who controls the Company within the meaning of the Securities Act, with
respect to any statement or alleged statement in or omission or alleged
omission from such registration statement, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, but only to the extent such statement or alleged statement
or omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company through an instrument duly
executed by such Participating Holder specifically stating that it is for use
in the preparation of such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement; provided,
however, that the liability of such indemnifying party under this Section 5.2
shall be limited to the amount of proceeds (net of expenses and underwriting
discounts and commissions) received by such indemnifying party in the offering
giving rise to such liability. Such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf of the Company or
any such director, officer or controlling Person and shall survive the
transfer of such securities by such Participating Holder.
5.3 Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in Sections 5.1 or 5.2, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action or
proceeding; provided, however, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under Sections 5.1 or 5.2, except to the extent that the
indemnifying party is actually prejudiced by such failure to
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<page>
give notice, and shall not relieve the indemnifying party from any liability
which it may have to the indemnified party otherwise than under this Section
5. In case any such action or proceeding is brought against an indemnified
party, the indemnifying party shall be entitled to participate therein and,
unless in the opinion of outside counsel to the indemnified party a conflict
of interest between such indemnified and indemnifying parties may exist in
respect of such claim, to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party; provided, however,
that if the defendants in any such action or proceeding include both the
indemnified party and the indemnifying party and if in the opinion of outside
counsel to the indemnified party there may be legal defenses available to such
indemnified party and/or other indemnified parties which are different from or
in addition to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to defend
such action or proceeding on behalf of such indemnified party or parties;
provided, however, that the indemnifying party shall be obligated to pay for
only one counsel for all indemnified parties. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by the indemnified party of such counsel, the
indemnifying party shall not be liable to such indemnified party for any legal
expenses subsequently incurred by the latter in connection with the defense
thereof other than reasonable costs of investigation (unless the first proviso
in the preceding sentence shall be applicable). No indemnifying party shall be
liable for any settlement of any action or proceeding effected without its
written consent. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
5.4 Contribution. If the indemnification provided for in this
Section 5 shall for any reason be held by a court to be unavailable to an
indemnified party under Section 5.1 or 5.2 hereof in respect of any Loss,
then, in lieu of the amount paid or payable under Section 5.1 or 5.2 hereof,
the indemnified party and the indemnifying party under Section 5.1 or 5.2
hereof shall contribute to the aggregate Losses (i) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand, and the indemnified party on the other, which resulted in such Loss,
with respect to the statements or omissions which resulted in such Loss, as
well as any other relevant equitable considerations, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law or if the
allocation provided in this clause (ii) provides a greater amount to the
indemnified party than clause (i) above, in such proportion as shall be
appropriate to reflect not only the relative fault but also the relative
benefits received by the indemnifying party and the indemnified party from the
offering of the securities covered by such registration statement as well as
any other relevant equitable considerations. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this Section 5.4
were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to in the preceding sentence of this Section 5.4. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The Participating Holders'
obligations to contribute as provided in this Section 5.4 are several and not
joint and shall be in proportion to the relative value of their
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<page>
respective Registrable Securities covered by such registration statement. In
addition, no Person shall be obligated to contribute hereunder any amounts in
payment for any settlement of any action or claim effected without such
Person's consent, which consent shall not be unreasonably withheld.
Notwithstanding anything in this Section 5.4 to the contrary, no indemnifying
party (other than the Company) shall be required to contribute any amount in
excess of the proceeds (net of expenses and underwriting discounts and
commissions) received by such party from the sale of the Registrable
Securities in the offering to which the Losses of the indemnified parties
relate.
5.5 Other Indemnification. Indemnification and contribution
similar to that specified in the preceding sections of this Section 5 (with
appropriate modifications) shall be given by the Company and the Participating
Holders with respect to any required registration or other qualification of
securities under any federal, state or blue sky law or regulation of any
governmental authority other than the Securities Act. The indemnification
agreements contained in this Section 5 shall be in addition to any other
rights to indemnification or contribution which any indemnified party may have
pursuant to law or contract and shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any indemnified
party and shall survive the transfer of any of the Registrable Securities by
any such party.
5.6 Indemnification Payments. The indemnification and contribution
required by this Section 5 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills
with reasonably sufficient detail thereof are received or a Loss is incurred.
6. Rules 144 and 144A. The Company shall use its reasonable best
efforts to file the reports required to be filed by it under the Securities
Act and the Exchange Act and the rules and regulations adopted by the
Commission in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the written request of any Holder of
Registrable Securities, make publicly available other information so long as
necessary to permit sales of such Holder's securities pursuant to Rules 144
and 144A or any successor rule or regulation adopted by the Commission. The
Company and the Guarantors covenant that they will take such further action as
any Holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rules 144 and 144A (including the requirements
of Rule 144A(d)(4)). Upon the written request of any Holder of Registrable
Securities, the Company and the Guarantors shall deliver to such Holder a
written statement as to whether they have complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 6 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
7. Underwritten Registrations.
7.1 Selection. If any of the Registrable Securities covered by any
Shelf Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount at maturity of the Registrable Securities
-14-
<page>
(the "Majority Holders") included in such underwritten offering, subject to
the consent of the Company (which shall not be unreasonably withheld or
delayed and taking into account any contractual obligations of the Company
with respect to the engagement of underwriters by the Company for such
transactions), and those Holders shall be responsible for all associated
underwriting commissions and discounts.
7.2 Participation. Subject to Section 7.3, no Person may
participate in any underwritten registration unless such Person (i) agrees to
sell such Person's Registrable Securities on the basis reasonably provided in
any underwriting arrangements approved by the persons entitled to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
7.3 Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by the Holders pursuant to a Shelf
Registration Statement, the Company shall enter into a customary underwriting
agreement with a managing underwriter or underwriters selected by the Majority
Holders. Such underwriting agreement shall be satisfactory in form and
substance to the Majority Holders and shall contain such representations and
warranties by, and such other agreements on the part of, the Company and such
other terms as are generally prevailing in agreements of that type, including,
without limitation, customary provisions relating to indemnification and
contribution. Each Holder shall be a party to such underwriting agreement and
may, at their option, require that any or all of the conditions precedent to
the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of each Holder. No Holder shall be
required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or
agreements regarding such Holder, its ownership of and title to the
Registrable Securities, and its intended method of distribution; and any
liability of any Holder to any underwriter or other person under such
underwriting agreement shall be limited to liability arising from breach of
its representations and warranties and shall be limited to an amount equal to
the proceeds (net of expenses and underwriting discounts and commissions) that
it derives from such registration.
7.4 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the Holders, their
underwriters, if any, and their respective counsel, accountants and other
representatives and agents the opportunity to participate in the preparation
of such registration statement, each prospectus included therein or filed with
the Commission, and each amendment thereof or supplement thereto, and give
each of them such access to its books and records and such opportunities to
discuss the business of the Company with its officers and employees and the
independent public accountants who have certified its financial statements,
and supply all other information reasonably requested by each of them, as
shall be necessary or appropriate, in the opinion of the Holders and such
underwriters' respective counsel, to conduct a reasonable investigation within
the meaning of the Securities Act provided that the foregoing investigation
shall be coordinated by one counsel to the Holders.
8. Amendments and Waivers. This Agreement may be amended, waived,
modified
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<page>
or supplemented only by written agreement of the Company and the holders of a
majority in face principal amount at maturity of the Registrable Securities
then outstanding; provided, however, that any amendment, waiver, modification
or supplement of Section 5 hereto shall require the written agreement of the
Company and all Holders. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions of this Agreement with respect to a matter that
relates exclusively to the rights of Holders whose Registrable Securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of a
majority in aggregate principal amount at maturity of the Registrable
Securities being sold by such Holders pursuant to such Registration Statement.
9. Certain Definitions.
"Holder" means a registered holder of Registrable Securities.
"Participating Holder" means any Holder participating in any
offering of Registrable Securities pursuant to Section 1 or Section 2
hereto.
"Registrable Securities" shall mean (i) each Security until the
date on which the Security has been exchanged for a freely transferable
Exchange Security in the Registered Exchange Offer, (ii) each Security
until the date on which it has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (iii) each Security until the date on which it is
distributed to the public pursuant to Rule 144 under the Securities Act
or is saleable pursuant to Rule 144(k) under the Securities Act without
restriction by the Holder thereof.
"Registration Expenses" means all expenses incident to the
registration and disposition of the Registrable Securities pursuant to
Section 2 and Section 3 hereof, including, without limitation, all
registration, filing and applicable national securities exchange fees,
all fees and expenses of complying with state securities or blue sky
laws (including reasonable fees and disbursements of counsel to the
underwriters and the Holders in connection with "blue sky" qualification
of the Registrable Securities and determination of their eligibility for
investment under the laws of the various jurisdictions), all word
processing, duplicating and printing expenses, all messenger and
delivery expenses, the fees and disbursements of counsel for the Company
and of its independent public accountants, including the expenses of
"cold comfort" letters or any special audits required by, or incident
to, such registration, all transfer taxes, and the reasonable fees and
expenses of one counsel to the Holders; provided, however, that
Registration Expenses shall exclude, and the Holders shall pay,
underwriting discounts and commissions in respect of the Registrable
Securities being registered for such Person.
10. Miscellaneous.
10.1 Notices.
(a) All notices and other communications provided for or
permitted under this Agreement shall be made in writing by hand-delivery,
first-class mail, telecopier or air courier
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<page>
guaranteeing next-day delivery as follows:
(i) if to a Holder, at the most current address given by the
Holder to the Company in accordance with the provisions of this
Section 10.1, which address initially is, with respect to each
Holder, the address of such Holder maintained by the Registrar under
the Indenture;
(ii) if to a Purchaser, initially at its address set forth in
the Purchase Agreement with a copy to Fried, Frank, Harris, Shriver &
Jacobson, One New York Plaza, New York, New York, 10004, Attention:
Lawrence A. First/Bryan H. Hall, or at such other address as the
Purchaser or its nominee shall have specified to the Company in
writing; and
(iii) if to the Company or any Guarantor, initially at the
address of the Company set forth in the Purchase Agreement, or at
such other address as the Company shall have specified to each Holder
in writing, with a copy to Skadden, Arps, Slate, Meagher & Flom LLP,
Four Times Square, New York, NY 10036, Attention: Thomas H. Kennedy.
(b) All notices and communications shall be deemed to have been
duly given:
(i) when delivered by hand, if personally delivered;
(ii) one business day after being delivered to a next-day air
courier;
(iii) five business days after being deposited in the mail;
and when receipt is acknowledged by the recipient's telecopier
machine, if sent by telecopier.
10.2 Assignment; Third Party Beneficiaries. This Agreement shall
be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns. This Agreement
may not be assigned by the Company without the prior written consent of the
Majority Holders. Any Holder may, at its election, at any time or from time to
time, assign its rights under this Agreement, in whole or in part, to any
purchaser of Registrable Securities held by it.
10.3 Remedies. The parties hereto agree that money damages or
other remedy at law would not be sufficient or adequate remedy for any breach
or violation of, or a default under, this Agreement by them and that, in
addition to all other remedies available to them, each of them shall be
entitled to an injunction restraining such breach, violation or default or
threatened breach, violation or default and to any other equitable relief,
including without limitation specific performance, without bond or other
security being required. In any action or proceeding brought to enforce any
provision of this Agreement (including the indemnification provisions
thereof), the successful party shall be entitled to recover reasonable
attorneys' fees in addition to its costs and expenses and any other available
remedy.
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<page>
10.4 No Inconsistent Agreements. The Company will not, on or
after the date of this Agreement, enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof, other than
any customary lock-up agreement with the underwriters in connection with any
offering effected hereunder, pursuant to which the Company shall agree not to
register for sale, and the Company shall agree not to sell or otherwise
dispose of, Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, for a specified period (not to exceed 180 days)
following such offering. The Company represents and warrants that the rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with any other agreements to which the Company is a party or by
which it is bound after the Closing Date.
10.5 Descriptive Headings. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for reference
only and shall not control or otherwise affect the meaning hereof.
10.6 Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights and obligations of the parties
hereto shall be governed by, the laws of the State of New York, without giving
effect to the conflicts of law principles thereof. Each of the parties hereto
hereby irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the courts of the State of New York and the United States of
America located in the State of New York for any action or proceeding arising
out of or relating to this Agreement and the transactions contemplated hereby
(and agrees not to commence any action or proceeding relating thereto except
in such courts), and further agrees that service of any process, summons,
notice or document by U.S. registered mail to its respective address set forth
in Section 10.1 hereof shall be effective service of process for any action or
proceeding brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any action or proceeding arising out of this Agreement or the
transactions contemplated hereby in the courts of the State of New York or the
United States of America located in the State of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum.
10.7 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
10.8 Invalidity of Provision. The invalidity or unenforceability
of any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including
that provision, in any other jurisdiction. If any restriction or provision of
this Agreement is held unreasonable, unlawful or unenforceable in any respect,
such restriction or provision shall be interpreted, revised or applied in a
manner that renders it lawful and enforceable to the fullest extent possible
under law.
10.9 Further Assurances. Each party hereto shall do and perform
or cause to be
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<page>
done and performed all further acts and things and shall
execute and deliver all other agreements, certificates, instruments, and
documents as any other party hereto reasonably may request in order to carry
out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
10.10 Entire Agreement; Effectiveness. This Agreement constitutes
the entire agreement, and supersedes all prior agreements and understandings,
oral and written, between the parties hereto with respect to the subject
matter hereof.
10.11 Definition of Terms. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange,
Inc. is open for trading, (b) the term "subsidiary" has the meaning set forth
in Rule 405 under the Securities Act and (c) except where otherwise expressly
provided, the term "affiliate" has the meaning set forth in Rule 405 under the
Securities Act.
10.12 No Piggyback on Registrations. Neither the Company nor any
of its security holders (other than the Holders of Registrable Securities in
such capacity) shall have the right to include any securities of the Company
in any Shelf Registration Statement or Registered Exchange Offer other than
Registrable Securities.
10.13 Severability. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their best efforts to find and
employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction.
It is hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the Purchasers.
[Signature Page of Exchange and Registration Rights Agreement to Follow]
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<page>
Very truly yours,
NTL COMMUNICATIONS CORP. (to be renamed
NTL INCORPORATED)
By: /s/ Richard J. Lubasch
-------------------------------------
Name: Richard J. Lubasch
Title: Executive Vice President,
General Counsel and Secretary
GUARANTORS:
By their signature below, the officers of the corporate
Guarantors and of the corporate general partners of the
limited partnership Guarantors hereby execute this Exchange
and Registration Rights Agreement on behalf of each of the
below-listed entities.
Corporate Guarantors
--------------------
COMMUNICATIONS CABLE FUNDING CORP.
By: /s/ Richard J. Lubasch
---------------------------------
Name: Richard J. Lubasch
Title: Secretary
NTL DIGITAL (US), INC.
By: /s/ Richard J. Lubasch
--------------------------------
Name: Richard J. Lubasch
Title: Senior Vice President, General
Counsel and Secretary
CABLETEL VENTURES LIMITED
By: /s/ Richard J. Lubasch
--------------------------------
Name: Richard J. Lubasch
Title: Executive Vice President, General
Counsel and Secretary
BEARSDEN NOMINEES INC.
By: /s/ Richard J. Lubasch
------------------------------
Name: Richard J. Lubasch
Title: Executive Vice President, General
Counsel and Secretary
[Signature Page to Exchange and Registration Rights Agreement]
<page>
CABLETEL PROGRAMMING, INC.
By: /s/ Richard J. Lubasch
------------------------------
Name: Richard J. Lubasch
Title: Senior Vice President,
General Counsel and Secretary
NTL INTERNATIONAL SERVICES, INC.
By: /s/ Richard J. Lubasch
-----------------------------
Name: Richard J. Lubasch
Title: Senior Vice President,
General Counsel and Secretary
NTL FUNDING (NJ), INC.
By: /s/ J. Barclay Knapp
----------------------------------
Name: J. Barclay Knapp
Title: President
[Signature Page to Exchange and Registration Rights Agreement]
<page>
Agreed to and accepted by:
SILVER OAK CAPITAL, LLC
Solely for and on behalf of the entities set
forth in Schedule X, as Agent
By: /s/ Jeffrey H. Aronson
----------------------------------------
Name: Jeffrey H. Aronson
Title: Authorized Signatory
AG CAPITAL FUNDING PARTNERS, L.P.,
By: Angelo, Gordon & Co., L.P., as Investment
Advisor
By: /s/ Jeffrey H. Aronson
----------------------------------
Name: Jeffrey H. Aronson
Title: Authorized Signatory
APPALOOSA MANAGEMENT, L.P.,
On behalf of certain funds for which it acts
as investment adviser, as a Purchaser
By: Appaloosa Partners Inc., its general
partner
By: /s/ K. Maiman
----------------------------------
Name: K. Maiman
Title: Principal
CAPITAL RESEARCH & MANAGEMENT CO.,
Solely on behalf of certain fiduciary
accounts, as Purchaser
By: /s/ Michael J. Downer
----------------------------------
Name: Michael J. Downer
Title: Vice President
FIDELITY SUMMER STREET TRUST: FIDELTIY CAPITAL
& INCOME FUND,
as a Purchaser
By: /s/ Frank Knox
--------------------------------
Name: Frank Knox
Title: Assistant Treasurer
[Signature Page to Exchange and Registration Rights Agreement]
<page>
FRANKLIN MUTUAL ADVISERS, LLC,
On behalf of certain funds for which it acts
as investment adviser, as a Purchaser
By: /s/ Bradley Takahasi
---------------------------------
Name: Bradley Takahasi
Title: Vice President
OAKTREE CAPITAL MANAGEMENT,
Solely as general partner and/or investment
manager of certain funds and accounts it
manages, as a Purchaser
By: /s/ Brett Wyard
---------------------------------
Name: Brett Wyard
Title: Managing Director
By: /s/ Lisa Arakai
---------------------------------
Name: Lisa Arakai
Title: Vice President, Legal
SALOMON BROTHERS ASSET MANAGEMENT,
Solely on behalf of certain fiduciary
accounts, as a Purchaser
By: /s/ Maureen O'Callaghan
-------------------------------
Name: Maureen O'Callaghan
Title: Managing Director
[Signature Page to Exchange and Registration Rights Agreement]
<page>
THE HUFF ALTERNATIVE FUND, L.P.
By: WRH Partners II, L.L.C., general partner
By: /s/ Joseph R. Thornton
-----------------------------------------
Name: Joseph R. Thornton
Title: Authorized Officer
THE HUFF ALTERNATIVE PARALLEL FUND, L.P.
By: WRH Partners II, L.L.C., general partner
By: /s/ Joseph R. Thornton
-----------------------------------------
Name: Joseph R. Thornton
Title: Authorized Officer
W.R. HUFF ASSET MANAGEMENT CO., L.L.C., Solely
as investment manager on behalf of
one of its separately managed accounts
By: /s/ Joseph R. Thornton
-----------------------------------------
Name: Joseph R. Thornton
Title: Authorized Officer
[Signature Page to Exchange and Registration Rights Agreement]
SCHEDULE X
Silver Oak Capital, LLC Entities
% of AG % of Note
AG ARB PARTNERS, L.P. 2,500,000 3.06% 0.50%
AG CAPITAL RECOVERY PARTNERS II, L.P. 10,512,000 12.87% 2.10%
AG CAPITAL RECOVERY PARTNERS III, L.P. 9,684,000 11.85% 1.94%
AG CAPITAL RECOVERY PARTNERS, L.P. 10,080,000 12.34% 2.02%
AG CNG FUND, L.P. 400,000 0.49% 0.08%
AG DOMESTIC CONVERTIBLES, L.P. 6,000,000 7.34% 1.20%
AG ELEVEN PARTNERS, L.P. 2,412,000 2.95% 0.48%
AG MM, L.P. 300,000 0.37% 0.06%
AG OFFSHORE CONVERTIBLES, L.P. 19,000,000 23.26% 3.80%
AG PRINCESS, L.P. 300,000 0.37% 0.06%
AG SUPER ADVANTAGE, L.P. 600,000 0.73% 0.12%
AG SUPER FUND INTERNATIONAL PARTNERS, L.P. 3,500,000 4.28% 0.70%
AG SUPER FUND, L.P. 5,700,000 6.98% 1.14%
COMMON FUND-EVENT DRIVEN COMPANY 800,000 0.98% 0.16%
GAM ARBITRAGE INVESTMENTS, INC. 7,000,000 8.57% 1.40%
NUTMEG PARTNERS, L.P. 2,300,000 2.82% 0.46%
PHS BAY COLONY FUND, L.P. 300,000 0.37% 0.06%
PHS PATRIOT FUND, L.P. 300,000 0.37% 0.06%
81,688,000 100.00% 16.34%
<page>
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange
Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act. This Prospectus,
as it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, for a period of 180 days after the
consummation of the Registered Exchange Offer, it will make this Prospectus
available to any broker-dealer for use in connection with any such resale. See
"Plan of Distribution".
<page>
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account
in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
<page>
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange
Securities. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of Exchange
Securities received in exchange for Securities where such Securities were
acquired as a result of market-making activities or other trading activities.
The Company has agreed that, for a period of 180 days after the consummation
of the Registered Exchange Offer, it will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any
such resale. In addition, until ________________, all dealers effecting
transactions in the Exchange Securities may be required to deliver a
prospectus.
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers
for their own account pursuant to the Registered Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market,
in negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to
the Registered Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any such resale of
Exchange Securities and any commission or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that, by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the consummation of the Registered
Exchange Offer the Company will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Registered Exchange
Offer (including the expenses of one counsel for the Holders of the
Securities) other than commissions or concessions of any broker-dealers and
will indemnify the Holders of the Securities (including any broker-dealers)
against certain liabilities, including liabilities under the Securities Act.
<page>
ANNEX D
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it
is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities. If the undersigned is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Securities that were
acquired as a result of market-making activities or other trading activities,
it acknowledges that it will deliver a prospectus in connection with any
resale of such Exchange Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.