Exhibit 4.3
INDENTURE (this "Indenture") dated as of January 9, 2003, by
and among NTL COMMUNICATIONS CORP. (to be renamed NTL
INCORPORATED on the Effective Date), a Delaware corporation
(the "Company"), the Guarantors listed on the signature pages
of this Indenture (the "Guarantors") and U.S. Bank National
Association, a national banking association, as trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of (a) the
Company's Senior Secured Notes due 2010 issued on the date of this
Indenture (such notes, the "Initial Notes") and (b) if and when issued as
provided in the Exchange and Registration Rights Agreement (as defined in
Appendix A to this Indenture) or in this Indenture, the Company's Senior
Secured Notes due 2010 issued in the Registered Exchange Offer in exchange
for any Initial Notes or otherwise as provided in this Indenture (the
"Exchange Notes" and, together with the Initial Notes, and any PIK Notes,
the "Notes," such term to include any such notes issued in exchange or
replacement for such Notes). Except as otherwise provided in this
Indenture, the Notes shall be limited to $558,249,000 in aggregate face
principal amount outstanding at any time, plus any PIK Notes issued
hereunder. This Indenture shall not become effective until the consummation
of the Reorganization Plan and the transactions contemplated in connection
therewith on the Effective Date. UBS Warburg acted as placement agent for
the Notes.
ARTICLE 1.
DEFINITIONS AND ACCOUNTING TERMS
--------------------------------
Section 1.01. Definitions. As used in this Indenture, the
following terms shall have the meanings specified in this Indenture unless
the context otherwise requires:
"Accreted Value" as of any date (the "Specified Date") means
with respect to each $1,000 face principal amount of Notes:
(a) if the Specified Date is one of the following dates (each a
"Semi-Annual Accretion Date"), the amount set forth opposite such date
below:
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Semi-Annual Accretion Date Accreted Value of Notes1
------------------------------------- -----------------------------------
Closing Date $895.66
------------------------------------- -----------------------------------
July 1, 2003 $898.76
------------------------------------- -----------------------------------
January 1, 2004 $902.62
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July 1, 2004 $906.91
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January 1, 2005 $911.66
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__________________
(1) Note that each $1,000 of face principal amount of PIK Notes will
accrete pursuant to this same schedule. For example, a PIK Note
issued on January 1, 2004 will have an original issue price of
$902.62, which will then accrete at the same rate as all other Notes.
------------------------------------- -----------------------------------
July 1, 2005 $916.95
------------------------------------- -----------------------------------
January 1, 2006 $922.81
------------------------------------- -----------------------------------
July 1, 2006 $929.32
------------------------------------- -----------------------------------
January 1, 2007 $936.54
------------------------------------- -----------------------------------
July 1, 2007 $944.56
------------------------------------- -----------------------------------
January 1, 2008 $953.46
------------------------------------- -----------------------------------
July 1, 2008 $963.35
------------------------------------- -----------------------------------
January 1, 2009 $974.31
------------------------------------- -----------------------------------
July 1, 2009 $986.49
------------------------------------- -----------------------------------
January 1, 2010 $1,000.00
------------------------------------- -----------------------------------
(b) if the Specified Date occurs between two Semi-Annual
Accretion Dates, the sum of (i) the Accreted Value for the Semi-Annual
Accretion Date immediately preceding the Specified Date and (ii) an amount
equal to the product of (A) the Accreted Value for the immediately
following Semi-Annual Accretion Date less the Accreted Value for the
immediately preceding Semi-Annual Accretion Date and (B) a fraction, the
numerator of which is the number of days elapsed from and including the
preceding Semi-Annual Accretion Date to but excluding the Specified Date,
using a 360 day year of twelve 30-day months, the denominator of which is 180.
"Acquired Indebtedness" means, with respect to any specified
Person, (i) Indebtedness of any other Person and its Wholly Owned
Subsidiaries existing at the time such other Person is merged with or into
or became a Subsidiary of such specified Person, including, without
limitation, Indebtedness Incurred in connection with, or in contemplation
of, such other Person merging with or into or becoming a Subsidiary of such
specified Person, and (ii) Indebtedness secured by a Lien encumbering any
asset acquired by such specified Person at the time such asset is acquired
by such specified Person.
"Additional Amounts" is defined in Exhibit A.
"Adjusted Annualized EBITDA" means as of any date, (x) (i)
Consolidated EBITDA for the most recent completed Fiscal Quarter of the
Company and its Subsidiaries preceding such date minus (ii) Capital
Expenditures of the Company and its Subsidiaries for such Fiscal Quarter, on a
consolidated basis, exclusive of Capital Expenditures constituting Permitted
Acquisitions, Permitted Investments or funded with Net Proceeds from Asset
Dispositions which are reinvested in accordance with Section 5.05, multiplied
by (y) four.
"Affiliate" means, with respect to any specified Person, any
other Person directly or 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 specified
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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 in the case of the Company or any of its
Subsidiaries beneficial ownership of 10% or more of the voting securities
in the Company or such Subsidiary, as the case may be, shall be deemed to
be control. Notwithstanding the foregoing, in no event will the Purchasers
or any Holder or any lender under the Senior Facilities or any holder of
Notes or any of their respective Affiliates be deemed to be an Affiliate of
the Company or any of its Subsidiaries solely by virtue of purchasing or
holding any Notes or being such a lender or being an Affiliate of any such
Purchaser, Holder or lender.
"Affiliate Transaction" is defined in Section 5.06.
"Applicable Law" means all laws, statutes, treaties, rules, codes
(including building codes), ordinances, regulations, certificates, orders and
licenses of, and legally binding interpretations by, any Governmental
Authority and judgments, decrees, injunctions, writs, permits, orders or like
governmental action of any Governmental Authority (including environmental
laws and those pertaining to health or safety) applicable to the Company or
any of its Subsidiaries or any of their properties, assets or operations.
"Asset Disposition" means the disposition whether by sale,
issuance, lease (as lessor (other than under operating leases)), transfer,
loss, damage, destruction, condemnation or other transaction (including any
merger or consolidation) or series of related transactions of any of the
following: (a) any of the Capital Stock of any of the Company's
Subsidiaries or (b) any or all of the assets of the Company or any of its
Subsidiaries, in each case other than sales of assets in the Ordinary
Course of Business. Notwithstanding the foregoing, Asset Dispositions shall
not be deemed to include: (i) a transfer of assets (A) by the Company to a
Senior Guarantor, (B) by a Senior Guarantor to the Company or to another
Senior Guarantor, (C) by a BG Subsidiary to the Company or any Wholly Owned
Subsidiary of the Company, (D) by a DT Subsidiary to the Company, another
Wholly Owned DT Subsidiary or a Senior Guarantor, or (E) by the
Subordinated Guarantor to the Company, any Senior Guarantor or any Wholly
Owned Subsidiary of the Company; (ii) an issuance of Equity Interests (A)
by the Company, (B) by a Subsidiary of the Company to a Senior Guarantor or
the Company, (C) by a BG Subsidiary to the Company, the Subordinated
Guarantor or a Senior Guarantor, or another BG Subsidiary, (D) by a DT
Subsidiary to another DT Subsidiary, the Company or a Senior Guarantor, (E)
by Triangle to its direct Parent, if and only if, Triangle requires funding
for the operation of its business and as a result of the operation of the
negative covenants in the indenture evidencing the Triangle Notes or any
Permitted Refinancing Indebtedness incurred in relation thereto, Triangle
is not permitted to Incur any further Indebtedness to meet such funding
requirement, or (F) by any Wholly Owned Subsidiary to its Parent; (iii) a
Restricted Payment that is permitted by the provisions of Section 5.02;
(iv) a Permitted Investment; (v) any conversion of Cash Equivalents into
cash or any other form of Cash Equivalents; (vi) any foreclosure on assets;
(vii) sales or disposition of inventory or past due accounts receivable in
the Ordinary Course of Business; (viii) transactions permitted under
Article 6 of this Indenture; (ix) grants of credits and allowances in the
Ordinary Course of Business; (x) the sublease, lease or license of real or
personal property on commercially reasonable terms; (xi) trade-ins or
exchanges of equipment or other fixed assets; (xii) the sale and leaseback
of any assets within 180 days of the acquisition of such assets; (xiii)
grants in the Ordinary Course of Business of rights of way and/or easements
and/or other similar rights over or in respect of any of the Company's or
any of the Subsidiaries' real property; provided that such grant does not
impair the usefulness of such property in the conduct of the Company's
business to any material extent; (xiv) sales, leases or other dispositions
of damaged, worn-out, surplus or obsolete equipment or assets that, in the
Company's reasonable judgment, are no longer either used or useful in the
business of the Company or its Subsidiaries; (xv) a transfer of assets or
issuance of Equity Interests to the extent required under the terms of
joint venture or other agreements governing Existing Investments as in
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effect on the date hereof, described in Schedule 1.01-A, or Euroco Assets,
or if such agreements do not require such Investment, but provide an
election to make the Investment on favorable terms to the Company or the
Subsidiary proposing to make such Investment, as approved by the Board of
Directors of the Company pursuant to elections made under such agreements;
(xvi) any transfer which is a grant of a security interest constituting a
Permitted Lien; (xvii) licensing by a BG Subsidiary or DT Subsidiary on a
non-exclusive basis of assets directly related to Internal Services to a
Person providing such Internal Services on an outsourcing basis to the BG
Subsidiary or DT Subsidiary in order to facilitate the provision of such
Internal Services; (xviii) a Permitted Disposal; (xix) disposition of
intra-group indebtedness by capital contribution (other than the
disposition of intra-group indebtedness of any BG Subsidiary or the
Subordinated Guarantor to any DT Subsidiary, a Senior Guarantor or the
Company); (xx) the disposition (as a capital contribution or in exchange
for convertible loan stock issued by the recipient of the assets) by (A)
the Company of all or any portion of the Intercompany Receivable Note to
the Subordinated Guarantor or any BG Subsidiary, (B) the Subordinated
Guarantor of all or any portion of an intercompany receivable to any BG
Subsidiary, (C) any BG Subsidiary of all or any portion of an intercompany
receivable to another BG Subsidiary, (D) NTL Funding (NJ) Inc. of all or
any portion of the Intercompany Receivable to NTL Communications (Ireland)
Ltd or by the Company of all or any portion of the Intercompany Receivable
to Cablelink and (E) NTL Group Limited of all or any portion of the
Intercompany Receivable referred to in paragraph (C) of the definition of
Intercompany Receivable to Triangle; or (xxi) the disposition of the
Diamond Cable Notes to Diamond Cable.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, at the time of determination, the present value (discounted at the rate
of interest implicit in such transaction, determined in accordance with GAAP)
of the obligation of the lessee for net rental payments during the remaining
term of the lease included in such Sale and Leaseback Transaction (including
any period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Bankruptcy Law" means Title 11 of the United States Code or any
similar federal, state or foreign bankruptcy, insolvency, reorganization or
other law for the relief of debtors.
"BG Subsidiary" means a direct or indirect Subsidiary of the
Subordinated Guarantor other than the Triangle Entities.
"Board" and "Board of Directors" means, as to any Person, the
board of directors, the board of advisors (or similar governing body) of such
Person.
"Business Day" means any day other than a Legal Holiday.
"Cable & Wireless" means Cable and Wireless plc, a company
incorporated in England and Wales (company number 238525).
"Cablelink" means ntl Communications (Ireland) Ltd.
"Capital Expenditures" means, for any period and with respect to
any Person, the aggregate of all expenditures by such Person and its
Subsidiaries for the acquisition or leasing of fixed or capital assets or
additions to fixed or capital assets (including replacements, capitalized
repairs and improvements during such period) which should be capitalized under
GAAP on a consolidated balance sheet of such Person and its Subsidiaries.
"Capitalized Lease Obligation" means, at the time any
determination of a capitalized lease obligation is to be made, the amount of
the liability in respect of a capital lease that would at such time be
required to be capitalized on a balance sheet in accordance with GAAP.
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"Capital Stock" of any Person means any and all shares, interests,
warrants, options, rights, participations or other equivalents of or interests
in (however designated) equity of such Person, including any Preferred Stock,
but excluding any debt securities convertible into such equity.
"Captive Insurance Company" means the captive insurance company
for the Company and its Subsidiaries from time to time.
"Cash Equivalents" means (i) Permitted Currency, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government, a European Union Member government or any agency or
instrumentality thereof having maturities of not more than six months and two
days from the date of acquisition, (iii) certificates of deposit and
Eurodollar time deposits with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding six months
and overnight or at call 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 $500.0 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 Investor Service, Inc. or A-1 or the
equivalent thereof by Standard & Poor's Corporation and in each case maturing
within six months and two days after the date of acquisition and (vi) money
market funds at least 95% of the assets of which constitute Cash Equivalents
of the kinds described in clauses (i) to (v) of this definition.
"Change of Control" means the occurrence after the Closing Date of
any of the following: (i) the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or more
related transactions, of all or substantially all of the properties and assets
of the Company and its Subsidiaries taken as a whole to any Person or "person"
(as such term is used in section 13(d)(3) of the Exchange Act); (ii) the
adoption of a plan relating to the liquidation or dissolution of the Company;
(iii) the consummation of any transaction (including, without limitation, any
merger or consolidation), as a result of which any Person or "group" (within
the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), shall have
acquired, directly or indirectly, beneficial ownership of 30% or more on a
fully diluted basis of the aggregate voting interest attributable to all
outstanding Capital Stock of the Company; (iv) the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors or (v) the occurrence of a change of "control" of the
Company as defined in section 13.7 of the Senior Credit Facility and section
9.7 of the Working Capital Facility, as such facilities are amended and
restated on or about the Closing Date or as may be amended or Refinanced from
time to time. Notwithstanding the foregoing, a Change of Control shall not be
deemed to have occurred (x) as a result of any transaction required to be
implemented on or after the Closing Date pursuant to the Reorganization Plan
or (y) in the event the Company effects a public rights offering prior to
January 10, 2004 and uses the proceeds thereof to prepay the Notes (such
rights offering must be offered to all of the Company's stockholders (other
than stockholders outside of the United States where the Company determines
that it would be impracticable to make such an offering due to the burden of
compliance with Applicable Law)).
"Change of Control Offer" is defined in Section 4.09(a).
"Change of Control Payment" is defined in Section 4.09(a).
"Change of Control Payment Date" is defined in Section
4.09(b)(ii).
"Chapter 11 Case(s)" means individually, the Chapter 11 Case of
any of NTL Inc., NTL Delaware, the Company, the Subordinated Guarantor,
Diamond Cable, and Diamond Holdings, and,
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collectively, the jointly administered Chapter 11 Cases of NTL Inc., NTL
Delaware, the Company, the Subordinated Guarantor, Diamond Cable, and
Diamond Holdings.
"Closing" is defined in the Purchase Agreement.
"Closing Date" means January 10, 2003 or such other date as agreed
upon in accordance with the terms of the Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, and the rules and regulations promulgated under the Internal
Revenue Code of 1986 from time to time.
"Collateral" means "Collateral" as defined in the Triangle Pledge
Agreement and "Collateral" as defined in the Pledge and Security Agreement.
"Collateral Agent" means the Trustee.
"Collateral Documents" is the collective reference to the Triangle
Pledge Agreement, the Pledge and Security Agreement and all other security
documents delivered on or after the date of this Indenture to the Collateral
Agent granting a Lien on any property, whether real or personal, of the
Company and the Senior Guarantors, now owned or acquired after the date of
this Indenture by the Senior Guarantors, to the extent permitted by law, to
secure the obligations and liabilities of the Company and the Senior
Guarantors under this Indenture and the Notes.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Exchange Act, the body
performing such duties at such time.
"Committed Acquisitions" means those acquisitions described in
Schedule 1.01-B.
"Common Stock" of any Person means any and all shares, units,
interests or other participations in, and other equivalents (however
designated and whether voting or non-voting) of such Person's common stock
whether outstanding on the Closing Date or issued after the Closing Date, and
includes, without limitation, all series and classes of such common stock.
"Company" is defined in the preamble.
"Consolidated" or "consolidated" or on a "consolidated basis,"
when used with reference to any financial term in this Indenture (but not when
used with respect to any Tax Return or tax liability), means the aggregate for
two or more Persons of the amounts signified by such term for all such
Persons, with inter-company items eliminated in accordance with GAAP.
"Consolidated Annualized EBITDA" means with respect to any Person,
such Person's Consolidated EBITDA for the most recent completed Fiscal Quarter
multiplied by four.
"Consolidated Debt" means the sum, without duplication, of (x)
Indebtedness of the Company and its Subsidiaries, on a consolidated basis,
(y) the liquidation value of outstanding preferred stock of Subsidiaries
unless held by the Company or any of its Subsidiaries and (z) the aggregate
amount payable by the Company and its Subsidiaries, on a consolidated
basis, upon redemption of Disqualified Capital Stock to the extent such
amount is not included in the preceding clause (y), excluding Disqualified
Capital Stock held intra-group.
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"Consolidated EBITDA" means, for the applicable period of
measurement, the Consolidated Net Income plus, without duplication, the
following to the extent deducted in calculating such Consolidated Net
Income: (i) Consolidated Interest Expense for such period, plus (ii) taxes
paid on income for such period, plus (iii) total depreciation expense for
such period on a consolidated basis, plus (iv) total amortization expenses
for such period on a consolidated basis, plus (v) other non-cash items
reducing Consolidated Net Income (excluding any such non-cash item to the
extent that it represents an accrual or reserve for potential cash items in
any future period or amortization of a prepaid cash item but,
notwithstanding anything to the contrary in this Indenture, including
without limitation, reserves for lease expenses and charges), less other
non-cash items increasing Consolidated Net Income (excluding any such
non-cash item to the extent it represents the reversal of an accrual or
reserve for potential cash item in any prior period).
"Consolidated Interest Expense" means for the applicable period
of measurement the aggregate interest expense (whether or not paid in cash)
of the Company and its Subsidiaries on a consolidated basis for such period
and the amount of Redeemable Dividends and Subsidiary Preferred Stock
Dividends (including all commissions, discounts, fees and other charges in
connection with standby letters of credit and similar instruments, but
excluding all amortization of financing fees and other charges incurred by
the Company and its Subsidiaries in connection with the issuance of the
Notes, the Diamond Notes, the Triangle Notes and the borrowings under the
Senior Facilities or any Permitted Refinancing Indebtedness incurred in
relation to the Diamond Notes or Triangle Notes) for the Company and its
Subsidiaries on a consolidated basis, minus interest income of the Company
and its Subsidiaries for such period, on a consolidated basis.
"Consolidated Net Income" means for any period the net income
(or loss) of the Company and its Subsidiaries on a consolidated basis for
such period determined in conformity with GAAP, but excluding the following
clauses (a) through (g) to the extent included in the computation of said
net income (or loss): (a) that percentage of net income (or loss) of each
Subsidiary of the Company attributable to minority interests in such
Subsidiary; (b) the income (or loss) of any Person accrued prior to the
date it becomes a Subsidiary of the Company or is merged into or
consolidated with the Company or that Person's assets are acquired by the
Company or any of its Subsidiaries; (c) the income (or loss) of any Person
(other than a Subsidiary) in which the Company or any of its Subsidiaries
has an interest except to the extent of the amount of dividends or other
distributions actually paid to the Company or any of its Subsidiaries; (d)
the income of any Subsidiary of the Company to the extent that the
declaration or payment of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary
(except to the extent that dividends are actually lawfully paid); provided
that so long as no Event of Default has occurred and is continuing, Trapped
Income shall not be excluded under this clause (d); (e) any after-tax gains
or losses attributable to Asset Dispositions or returned surplus assets of
any pension plan; (f) all fees and expenses incurred in connection with the
Reorganization Plan, including payment of transaction costs related to the
Reorganization Plan and repayment in full of the DIP Facility Claim; and
(g) (to the extent not included in clauses (a) through (f) above) (i) any
net extraordinary gains or net extraordinary losses or (ii) net
non-recurring gains or non-recurring losses to the extent attributable to
Asset Dispositions, the exercise of options to acquire Capital Stock and
the extinguishment of Indebtedness.
"Consolidated Net Worth" means, with respect to any Person as
of any date, the sum of (i) the equity of the common equity holders of such
Person and its Subsidiaries on a consolidated basis as of such date plus
(ii) the respective amounts reported on such Person's consolidated balance
sheet as of such date with respect to any series of preferred stock (other
than Disqualified Capital Stock) that by its terms is not entitled to the
payment of dividends unless such dividends may be declared and paid only
out of net earnings in respect of the year of such declaration and payment,
but only to the extent of any cash
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received by such Person and its Subsidiaries upon issuance of
such preferred stock, less (x) all write-ups (other than write-ups
resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within 12 months after the
acquisition of such business) subsequent to the date of this Indenture in
the book value of any asset owned by such Person or a Subsidiary of such
Person and (y) all unamortized debt discount and expense and unamortized
deferred charges as of such date, all of the foregoing determined in
accordance with GAAP.
"Consolidated Tangible Assets" as of any date of determination
means the total amount of assets (less accumulated depreciation and
amortization, allowances for doubtful receivables, other applicable
reserves and other properly deductible items) which would appear on a
consolidated balance sheet of the Company and its Subsidiaries, determined
on a Consolidated basis in accordance with GAAP, and after deducting from
the total amount of such assets, to the extent otherwise included, the
amounts of: (a) minority interests in Subsidiaries held by Persons other
than the Company or a Subsidiary; (b) excess of cost over fair value of
assets of businesses acquired, as determined in good faith by the Board of
Directors of the Company; (c) any revaluation or other write-up in book
value of assets subsequent to the Closing Date as a result of a change in
the method of valuation in accordance with GAAP consistently applied; (d)
unamortized debt discount and expenses and other unamortized deferred
charges, goodwill, patents, trademarks, service marks, trade names,
copyrights, licenses, organization or developmental expenses and other
intangible items; (e) treasury stock; and (f) cash set apart and held in a
sinking or other analogous fund established for the purpose of redemption
or other retirement of Capital Stock.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors immediately after consummation of the Reorganization Plan
or (ii) was nominated for election or elected to such Board of Directors with
the approval, recommendation or endorsement of a majority of the Continuing
Directors who were members of such Board at the time of such nomination or
election.
"covenant defeasance option" is defined in Section 9.01(b).
"Cumulative EBITDA" means the cumulative Consolidated EBITDA of
the Company from and after the Closing Date to the end of the Fiscal Quarter
immediately preceding the date of a proposed Restricted Payment, or, if such
cumulative Consolidated EBITDA for such period is negative, minus the amount
by which such cumulative Consolidated EBITDA is less than zero.
"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 Closing Date to the end of the Fiscal Quarter
immediately preceding a proposed Restricted Payment, determined on a
consolidated basis in accordance with GAAP but excluding any payment of
Consolidated Interest Expense to the extent it was accrued before the Closing
Date.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement, foreign currency futures or options, exchange rate dollars,
exchange rate insurance or other similar agreement or arrangement or
combination thereof designed to protect the Company or any Subsidiary of the
Company against fluctuations in currency values.
"CUSIP numbers" is defined in Section 2.12.
"Custodian" is defined in Section 7.01.
"Default" means any event, act or condition that is, or with the
giving of notice, lapse of time or both would constitute, an Event of Default.
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"Definitive Note" is defined in Appendix A.
"Delaware/NTL (UK) Group Note" means the (pound)90.0 million
aggregate principal amount 11% senior note due 2006, dated as of April 5,
2002, from NTL (UK) Group, Inc. to NTL Delaware, as amended, and as amended
and restated as of the Closing Date, as may be amended and/or restated and/or
novated, transferred or assigned from time to time.
"Designated Company" means the Company, the Subordinated
Guarantor, Diamond Cable and its direct Subsidiary and Triangle and its direct
Subsidiary.
"Diamond Cable" means Diamond Cable Communications Limited, a
company registered in England and Wales with company number 02965241.
"Diamond Cable Notes" means, collectively, the (a) 13 1/4% Senior
Discount Notes due 2004, issued by Diamond Cable under an indenture dated
September 28, 1994, as amended by a First Supplemental Indenture dated May 31,
1996, (b) 11 3/4% Senior Discount Notes due 2005, issued by Diamond Cable
under an indenture dated December 15, 1995, and (c) 10 3/4% Senior Discount
Notes due 2007, issued by Diamond Cable under an indenture dated February 27,
1997.
"Diamond Entity" means Diamond Cable and any Diamond Subsidiary.
"Diamond Holdings" means Diamond Holdings Limited, a company
registered in England and Wales with company number 03483724.
"Diamond Notes" means, collectively, the (a) 10% Senior Notes due
2008 issued by Diamond Holdings (and guaranteed by Diamond Cable) under an
indenture dated February 6, 1998 and (b) 9 1/8% Senior Notes due 2008 issued by
Diamond Holdings (and guaranteed by Diamond Cable) under the Diamond Notes
Indenture.
"Diamond Notes Indenture" means the indenture in respect of the
Diamond Notes, dated as of February 6, 1998.
"Diamond Subsidiary" means a direct or indirect Subsidiary of
Diamond Cable.
"DIP Facility" means the debtor-in-possession credit facility
provided to the Subordinated Guarantor during the Chapter 11 Cases in the
principal amount of $630,000,000 pursuant to the DIP Facility Agreement.
"DIP Facility Agreement" means the Debtor-in-Possession Credit and
Guarantee Agreement, dated as of July 15, 2002, by, among others, the
Subordinated Guarantor, as borrower, and various lenders, including NTL
Delaware, signatory to such agreement.
"DIP Facility Claim" means a claim arising under or as a result of
the DIP Facility.
"Disclosure Statement" means the Amended Disclosure Statement with
regard to the Second Amended Joint Reorganization Plan of NTL Inc. and certain
Subsidiaries dated as of July 15, 2002.
"Disqualified Capital 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 at the option of the holder of such Capital Stock),
or upon the happening of any event, matures (excluding any maturity as the
9
result of an optional redemption by the issuer of such Capital Stock) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the sole option of the holder of such Capital Stock (except, in
each case, upon the occurrence of a Change of Control), on or prior to the
date that is 91 days after the Stated Maturity of the Notes.
"DT Assets" is defined in Section 5.05(b).
"DT Subsidiaries" means, collectively, all Subsidiaries of the
Company other than Guarantors of the Notes and BG Subsidiaries.
"Effective Date" has the meaning given to that term in the
Reorganization Plan.
"Equity Registration Rights Agreement" is defined in Appendix A.
"Equity Interests" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"Euroco" means NTL Incorporated (to be renamed NTL Europe, Inc.),
a Delaware corporation.
"Euroco Assets" means those assets of Euroco set forth on Schedule
1.01-C.
"European Union Member" means any country that is or becomes a
member of European Union or any successor organization thereto.
"Event of Default" is defined in Section 7.01.
"Excess Capacity Network Services" means the provision of network
services, or agreement to provide network services, by a Subsidiary in favor
of one or more of their Affiliates where such network services are only
provided in respect of the capacity available to such Subsidiary in excess of
that network capacity it requires to continue to provide current services to
its existing and projected future customers and to allow it to provide further
services to both its existing and projected future customers in accordance
with the Updated Business Plan.
"Excess Proceeds" is defined in Section 5.05(c).
"Excess Proceeds Offer" is defined in Section 4.10(a).
"Excess Refinancing Proceeds" means those cash proceeds actually
received by the Company or any of its Subsidiaries from any Permitted
Refinancing Indebtedness or any Refinancing of the Senior Facilities and which
are not (i) used to Refinance, in whole or in part, the Diamond Notes, the
Triangle Notes or the Senior Facilities, as the case may be, (ii) used to pay
the fees, costs and expenses in connection therewith, or (iii) applied in any
other manner in which such cash proceeds are required to be applied under the
terms of the Senior Facilities; provided that the proceeds of Indebtedness
Incurred under Sections 5.04(b)(viii)(III), (IV) and (VI) (and Refinancings
thereof) shall not constitute Excess Refinancing Proceeds.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange and Registration Rights Agreement" is defined in
Appendix A.
10
"Exchange Guarantees" means the guarantees issued in the
Registered Exchange Offer.
"Exchange Notes" is defined in the recitals.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries that is in existence at Closing and that will remain outstanding
immediately after the Closing, as described in Schedule 1.01-D.
"Existing Investments" means those Investments described in
Schedule 1.01-E (Part A).
"Existing Liens" means those Liens described in Schedule 1.01-F.
"fair market value" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length transaction between a
willing seller and a willing and able buyer.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of the Company and its
Subsidiaries ending on December 31 of each calendar year.
"GAAP" means United States 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 have been approved by a
significant segment of the accounting profession as in effect at the time of
the calculation being made in accordance with GAAP.
"Global Exchange Notes" is defined in Appendix A.
"Governmental Authority" means (a) the government of the United
States of America or any State or other political subdivision of the United
States of America or any State, (b) any government or political subdivision of
any other jurisdiction in which the Company or any of its Subsidiaries
conducts all or any part of its business, or which properly asserts
jurisdiction over any properties of the Company or any of its Subsidiaries or
(c) any entity properly exercising executive, legislative, judicial,
regulatory or administrative functions of any such government.
"Group" means the Company and its Subsidiaries.
"Group Member" means the Company and any Subsidiary which is a
part of the Group.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the Ordinary Course of Business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect of such guarantee), of all or
any part of any Indebtedness.
"Guarantor(s)" is defined in the preamble and includes any Persons
who become Guarantors in accordance with this Indenture.
"Guarantor Senior Indebtedness" means, with respect to the
Subordinated Guarantor, all obligations for the principal, premium, if any,
interest (including any interest accruing on or after the filing of any
petition in bankruptcy or for reorganization at the rate provided for in the
documentation with respect to such bankruptcy or reorganization, whether or
not such claim for post-petition interest is
11
allowed in such proceeding), penalties, fees, indemnification, reimbursements,
damages and other liabilities payable under the documentation governing any
Indebtedness of such Subordinated Guarantor, whether outstanding on the
Closing Date or thereafter Incurred including without limitation in respect
of: (i) all monetary obligations of every nature of the Subordinated
Guarantor, if any, under, or with respect to, the Senior Facilities,
including, without limitation, obligations to pay principal, premium, if any,
and interest (including any interest accruing on or after the filing of any
petition in bankruptcy or for reorganization at the rate provided for in the
documentation with respect to such bankruptcy or reorganization, whether or
not such claim for post-petition interest is allowed in such proceeding) on,
reimbursement obligations under letters of credit, fees, expenses and
indemnities (including Guarantees of any such reimbursement obligations) and
all Obligations in respect of any such reimbursement obligations; (ii) any
Obligations of such Guarantor evidenced by bonds, debentures, notes or other
similar instruments; (iii) any Capitalized Lease Obligations of such
Guarantor; (iv) any Obligation of such Guarantor arising from any Guarantee by
such Guarantor of Senior Indebtedness; (v) all Interest Swap Obligations (and
Guarantees pertaining to such Interest Swap Obligations); and (vi) all
Obligations (and Guarantees of said Obligations) under Currency Agreements, in
each case whether outstanding on the Closing Date or thereafter Incurred.
Notwithstanding the foregoing, "Guarantor Senior Indebtedness" shall not
include: (i) any Indebtedness of such Subordinated Guarantor to a Subsidiary
of such Subordinated Guarantor other than where such Indebtedness secures any
obligations of such Subsidiary under the Senior Facilities; (ii) Indebtedness
(other than with respect to any Guarantee Obligations with respect to Senior
Indebtedness or with respect to other Guarantor Senior Indebtedness) to, or
guaranteed on behalf of, any shareholder, unitholder, director, officer or
employee of such Subordinated Guarantor or any Subsidiary of such Subordinated
Guarantor (including without limitation amounts owed for compensation) other
than a shareholder or unitholder who is also a lender (or an Affiliate of a
lender) under the Senior Facilities; (iii) Indebtedness to trade creditors and
other amounts Incurred in connection with obtaining goods, materials or
services; (iv) Indebtedness represented by Disqualified Capital Stock; (v)
that portion of any Indebtedness Incurred in violation of Section 5.04 (but,
as to any such Obligation, no such violation shall be deemed to exist for
purposes of this clause (v) if the holder(s) of such Obligation or their
representative shall have received an Officer's Certificate of the Company to
the effect that the Incurrence of such Indebtedness does not (or, in the case
of revolving credit Indebtedness, that the Incurrence of the entire committed
amount of such Indebtedness at the date on which the initial borrowing under
the revolving credit is made would not) violate such provisions of this
Indenture); (vi) Indebtedness which, when Incurred and without respect to any
election under section 1111(b) of Title 11, United States Code, is without
recourse to such Guarantor; and (vii) any Indebtedness which is, by its
express terms, subordinated in right of payment to any other Indebtedness of
such Subordinated Guarantor other than the Indebtedness under this Indenture.
"Guarantor Subordinated Obligations" means, with respect to a
Guarantor, any Indebtedness of such Guarantor (whether outstanding on the
Closing Date or incurred after the Closing Date) which is expressly subordinate
in right of payment to the obligations of such Guarantor under such Guarantor's
Guarantee of the Notes pursuant to a written agreement.
"Holder" means a Person in whose name a Note is registered on the
Registrar.
"incorporated provision" is defined in Section 13.01.
"Incur" is defined in Section 5.04(a).
"Indebtedness" means, with respect to any Person, without
duplication: (i) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money; (ii) the principal of and
premium (if any) in respect of obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments; (iii) all Capitalized Lease
Obligations of such Person; (iv) all obligations of
12
such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all obligations under any title retention
agreement, in each case to the extent the purchase price is due more than six
(6) months from the date the obligation is Incurred (but excluding trade
accounts payable and title retention arrangements in connection with the
purchase of tangible assets in the United Kingdom or the Republic of Ireland
(or any other jurisdictions where such arrangements are customary) which is
not vendor financing and other accrued liabilities arising in the Ordinary
Course of Business); (v) all obligations for the reimbursement of any obligor
on any letter of credit, banker's acceptance or similar credit transaction;
(vi) Guarantees in respect of Indebtedness referred to in clauses (i) through
(v) above and clause (viii) below; (vii) all obligations of any other Person
of the type referred to in clauses (i) through (v) which are secured by any
Lien on any property or asset of such Person, the amount of such Obligation
being deemed to be the lesser of the fair market value of such property or
asset or the amount of the obligation; (viii) all obligations under Currency
Agreements and all Interest Swap Obligations of such Person, to the extent any
of the foregoing Indebtedness would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP; and (ix) any amendment,
supplement, modification, deferral, renewal, extension, refunding or
refinancing of any liability of the types referred to in clauses (i) to (viii)
above.
"Indebtedness Ratio" means, as of any date of determination, the
ratio of (a) Consolidated Debt on the date the applicable period ends to (b)
Consolidated Annualized EBITDA for such applicable period.
"Indebtedness Ratio Test" is defined in Section 5.04(a).
"Indenture" is defined in the preamble.
"Independent Qualified Party" means, in respect of any Affiliate
Transaction, an investment banking firm, accounting firm, appraisal firm or
other expert in relation to the subject of such Affiliate Transaction, in each
case, of national standing in the United States or the United Kingdom;
provided, however, that such firm is not an Affiliate of the Company or any
Subsidiary.
"Initial Notes" is defined in the recitals.
"Interco Note" means a promissory note in favor of the Company or
a Senior Guarantor, as the case may be, in the form of Exhibit E, such note to
be pledged under the Collateral Documents.
"Intercompany Receivable" means (A) the receivable owed to the
Subordinated Guarantor by NTL (UK) Group, Inc. (as transferred by the Company
to the Subordinated Guarantor pursuant to a Receivables Purchase Agreement,
dated August 6, 2002, between the Company and the Subordinated Guarantor), in
the amount of (pound)3,771,642,379, described in the 2001 Debt/Equity
Memorandum, dated May 3, 2002 plus accrued interest; (B) the receivable owed
to NTL Funding (NJ) Inc. by NTL Communications (Ireland) Ltd in an amount
equal to approximately EUR 115,438,595 at December 31, 2002 plus accrued
interest; (C) the receivable owed to NTL Group Limited by Triangle in the
amount of (pound)114,411,030 as of September 30, 2002 plus accrued interest;
and (D) the receivable owed to the Company by Cablelink in the amount of
approximately (pound)1,343,000 as of September 30, 2002 plus accrued interest.
"Intercompany Receivable Note" means the intercompany Obligation
of the Subordinated Guarantor in favor of the Company as purchase price for
the acquisition of the Intercompany Receivable pursuant to the Receivables
Purchase Agreement described in the definition of Intercompany Receivable.
13
"Internal Services" means those administrative services of a
Person required for the day to day operation of the core and ancillary
businesses of that Person including, without limitation, information
technology services, content development services, property management,
payroll services and human resource management but excluding the core or
ancillary businesses of such Person.
"Interest Payment Date" is defined in Exhibit A and Exhibit B.
"Interest Swap Obligations" means the obligations of any Person
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest
on a stated notional amount in exchange for periodic payments made by such
other Person calculated by applying a fixed or a floating rate of interest on
the same notional amount and shall include, without limitation, interest rate
swaps, caps, floors, collars and similar agreements.
"Intra-Group Services" means (a) the provisions of services by a
Subsidiary to a member of the Group, where such member of the Group requires
those services to enable it to carry on its business and provided that the
consideration for the provision thereof is in the reasonable opinion of the
Company no less than the cost (except in any immaterial respect) incurred by
such Subsidiary in providing such services; (b) the provisions of services
constituted by NTL Group Limited employing personnel, acting as agent to buy
equipment or other assets or services or trade with residential customers on
behalf of other members of the Group, where the costs of such employment or
purchasing and the costs and revenues generated by such trading are in the
reasonable opinion of the Company reimbursed by or distributed (except in any
immaterial respect) to the relevant Group Member; and (c) the provision of
services constituted by NTL Business Limited acting as agent to trade with
business customers on behalf of other members of the Group, where the costs
and revenues of such trading are in the reasonable opinion of the Company
reimbursed by or distributed (except in an immaterial respect) to the relevant
Group Member.
"Investment" means (i) any direct or indirect purchase or other
acquisition by the Company or any of its Subsidiaries of any beneficial
interest in, including stock, partnership interest or other Equity Interests
of, or ownership interest in, any other Person (other than the Company or any
other Person who was a Subsidiary of the Company at the time of such
Investment); and (ii) any direct or indirect loan, advance or capital
contribution by the Company or any of its Subsidiaries to any other Person,
including all indebtedness and accounts receivable from that other Person that
did not arise from sales to or services provided to that other Person in the
Ordinary Course of Business. The amount of any Investment shall be the
original cost of such Investment plus the cost, without duplication, of all
additions to said Investment, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to
such Investment but less all cash distributions constituting a return of
capital.
"legal defeasance option" is defined in Section 9.01(b).
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in New York or London or at a place of payment are
authorized by law, regulation or executive order to remain closed. If any
payment date in respect of the Notes 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.
"Lien" means any lien, mortgage, pledge, security interest,
charge, encumbrance or governmental levy or assessment of any kind, whether
voluntary or involuntary (including any conditional sale or other title
retention agreement (but excluding trade accounts payable and title retention
arrangements in connection with the purchase of tangible assets in the United
Kingdom or the Republic of Ireland (or any other jurisdiction where such
arrangements are customary) which is not vendor financing
14
and other accrued liabilities arising in the Ordinary Course of Business) and
any lease in the nature of a lien, mortgage, pledge, security interest,
charge, encumbrance or governmental levy or assessment of any kind).
"Material Adverse Effect" means (a) a material adverse change in,
or a material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) or prospects of the Company and its
Subsidiaries taken as a whole or (b) the material impairment of the ability of
the Company or any Guarantors to perform its material obligations under any
Transaction Document to which it is a party or of any Holder to enforce any
Transaction Document in any material respect or collect any of the Obligations
under any such Transaction Document in any material respect.
"Maturity," when used with respect to any Note, means the date on
which the principal of such Note becomes due and payable as provided in this
Indenture or such Note, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise (including in connection with
any offer to purchase that this Indenture requires the Company to make).
"Modified Indebtedness Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Debt as of the date on which the
applicable period ends to (b) Adjusted Annualized EBITDA for such applicable
period.
"Net Proceeds" means aggregate cash proceeds actually received by
the Company or any of its Subsidiaries from any Asset Disposition (including
insurance proceeds, awards of condemnation, and payments under notes or other
debt securities received in connection with any Asset Disposition), net of (a)
the direct costs of such sale, issuance, lease, transfer or other disposition
(including Taxes attributable to such sale, lease or transfer), (b) amounts
applied to payment or repayment under the Senior Facilities of any
Indebtedness or Guarantor Senior Indebtedness or amounts secured by a Lien on
the asset or property disposed of, (c) if such Asset Disposition involves the
sale of a discrete business or product line, any accrued liabilities of such
business or product line required to be paid or retained by the Company or any
of its Subsidiaries as part of such disposition, (d) appropriate amounts to be
provided by the Company or a Subsidiary, as the case may be, as a reserve, in
accordance with GAAP (or generally accepted accounting principles in the
relevant jurisdiction), against any liabilities associated with an Asset
Disposition and retained by the Company or such Subsidiary, as the case may
be, after such Asset Disposition, including, without limitation, pension and
benefit liabilities, liabilities related to environmental matters or
liabilities under any indemnification obligations associated with such Asset
Disposition and (e) amounts applied to mandatory repayments of Diamond Notes
or Triangle Notes, including any Permitted Refinancing Indebtedness incurred
in relation to the Diamond Notes or Triangle Notes.
"Notation of Guarantee" is defined in Section 11.07.
"Note Registration" means the first to occur of (i) the
consummation of a Registered Exchange Offer and (ii) the effectiveness of a
Shelf Registration Statement filed with the Commission.
"Notes" is defined in the recitals and in Appendix A.
"Notes Custodian" is defined in Appendix A.
"Notice of Default" is defined in Section 8.05.
"NTL Delaware" means NTL (Delaware), Inc., a Delaware corporation.
15
"NTL Inc." means NTL Incorporated (to be known as NTL Europe,
Inc.), a Delaware corporation.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnification, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Offer Amount" is defined in Section 4.10(a).
"Offer Period" is defined in Section 4.10(a).
"Officer's Certificate" of the Company, means a certificate signed
on behalf of the Company by any of the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, any Vice
President, the Chief Financial Officer, the Chief Accounting Officer,
Treasurer, the Assistant Treasurer, Controller, the Secretary or an Assistant
Secretary (or any such other officer that performs similar duties) of the
Company. One of the officers signing an Officer's Certificate given pursuant
to Section 4.06 shall be the principal executive, financial or accounting
officer or treasurer of the Company.
"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, a Guarantor or the Trustee.
"Ordinary Course of Business" means, in respect of any transaction
involving the Company or any Subsidiary of the Company, the ordinary course of
such Person's business, as conducted by any such Person in accordance or
consistent with past or industry practice and undertaken by such Person in
good faith.
"Overdraft Facility" means any facility provided by a United
Kingdom, Republic of Ireland or Singapore clearing bank to the Company or a
Subsidiary of the Company up to an amount not exceeding (pound)20.0 million at
any time and from time to time for so long as the relevant Subsidiary, if a BG
Subsidiary, is permitted to hold such facility by the terms of the Senior
Facilities.
"Parent" means, with respect to any Person, any corporation,
association or other business entity which holds 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, or at a shareholders' general meeting, of such Person.
"Paying Agent" is defined in Section 2.03(a), Exhibit A and
Exhibit B.
"Permits" means all licenses, permits, certificates of need,
approvals and authorizations from all Governmental Authorities required to
lawfully conduct a business.
"Permitted Acquisition" means:
(a) the purchase by the Company or a Subsidiary of the Company of
Equity Interests or all or substantially all of the assets of a Person (or a
business of a Person) whose primary business is the same, related, ancillary
or complementary to the business in which the Company or any of its
Subsidiaries were engaged on the date of this Indenture, or any Investment by
the Company or any Subsidiary of the Company in a Person, if as a result of
such Investment:
16
(i) (A) in the case of a purchase of Equity Interests of a
Person, such Person and each Wholly Owned Subsidiary of such Person
becomes a (x) Wholly Owned Subsidiary of the Company and (y) a Senior
Guarantor, if prior to such Investment in such Person, such Person
was incorporated in or otherwise organized under the laws of the
United States, or, (B) in the case of a purchase of all or
substantially all of the assets of a Person, such assets are
purchased by the Company or a Senior Guarantor; 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, a Subsidiary of the Company that is a Senior
Guarantor and whose primary business is the same, related, ancillary
or complementary to the business in which the Company and its
Subsidiaries were engaged on the date of this Indenture;
provided in the case of clause (i) and clause (ii), that at the
time of such Investment or purchase, no Default or Event of Default
exists or would be caused upon the consummation of such Investment or
purchase; and provided further that in the case of clause (i) and clause
(ii), if the Investment or purchase was made by a Diamond Entity, a
Triangle Entity, or a BG Subsidiary using Trapped Income or if the
Investment or purchase was made by the Subordinated Guarantor then such
Person or assets need not be acquired by the Company or a Senior
Guarantor (or be merged into the Company or a Senior Guarantor) but may
become (or be merged into) or may be acquired by a Diamond Entity,
Triangle Entity, BG Subsidiary or the Subordinated Guarantor (as the case
may be), and
(b) the purchase by the Company or a Subsidiary of the Company of
a Euroco Asset provided that (i) such purchase is on arm's length terms, and
(ii) the aggregate amount of all purchases of Euroco Assets since the date of
this Indenture does not exceed $25.0 million.
"Permitted Currency" means the lawful currency of the United
States or a European Union Member.
"Permitted Disposal" means: (x) with respect to the BG
Subsidiaries, any Asset Disposition which is permitted to be effected under
the terms of the Senior Facilities Documents as in effect on the Closing Date
(other than pursuant to clauses (g)(A) or (m) of the definition of "Permitted
Disposal" in the Senior Credit Facility or clause (g)(A) of such definition in
the Working Capital Facility); and (y) with respect to the DT Subsidiaries,
any Asset Disposition which is permitted to be effected under the Diamond
Notes Indenture or the Triangle Notes Indenture (as in effect on the Closing
Date) without the requirement that the proceeds thereof be applied to either
the repayment of Indebtedness under the Diamond Notes or Triangle Notes or
reinvestment in similar assets.
"Permitted Investments" means:
(i) any Investment:
(A) by the Company in a Senior Guarantor;
(B) by a Senior Guarantor in the Company or any other Senior
Guarantor;
(C) by the Company or any Senior Guarantor in the
Subordinated Guarantor, provided that (other than
equity that is permitted to be reinvested under the
Senior Facilities pursuant to paragraph (d) or (f) of
the definition of "Permitted Payment" in the Senior
Credit Facility or paragraph (d) of
17
the definition of "Permitted Payments" in the Working
Capital Facility) the Investment is made pursuant to an
Interco Note in accordance with Section 5.04(e);
(D) by the Subordinated Guarantor in any BG Subsidiary;
(E) by the Company or any Senior Guarantor in any DT
Subsidiary; provided that (other than if Triangle or its
Subsidiaries requires funding for the operation of its
business and as a result of the operation of the negative
covenants in the indenture evidencing the Triangle Notes
or any Permitted Refinancing Indebtedness incurred in
relation thereto, Triangle or its Subsidiaries is not
permitted to Incur any further Indebtedness to meet such
funding requirement, then such Investment may be made by
capital contribution); such Investment is made pursuant to
an Interco Note in accordance with Section 5.04(e);
(F) by any BG Subsidiary in the Company or any Wholly Owned
Subsidiary of the Company;
(G) by a DT Subsidiary in the Company, any other DT
Subsidiary, a Senior Guarantor or any Wholly Owned
Subsidiary of the Company other than a BG Subsidiary;
(H) by the Subordinated Guarantor in the Company or any
Senior Guarantor; or
(I) which is effected as a Funding Passthrough or Asset
Passthrough (as defined in the Senior Facilities) under
the Senior Facilities.
(ii) any Investment in Cash Equivalents, the Notes or the
Exchange Notes;
(iii) any Investment related to or arising out of a
Permitted Acquisition;
(iv) any Investment which results from the receipt of
non-cash consideration from an asset sale made pursuant to and in
compliance with the provisions of Section 5.05 or from any sale or
other disposition of assets permitted by this Indenture and not
constituting an Asset Disposition hereunder;
(v) loans and advances (a) to employees for emergency,
moving, entertainment, travel and other business expenses in the
Ordinary Course of Business or (b) to the Company or its
Subsidiaries if the proceeds of such loans and advances are used
by the Company or its Subsidiaries to make loans or advances to
employees contemplated by clause (a) provided the total loans and
advances under this clause (v) shall not exceed $1.0 million in
the aggregate at any time outstanding;
(vi) Investments received as part of the settlement of
litigation or in satisfaction of Investments to any Person
otherwise permitted under this Indenture pursuant to the
reorganization, bankruptcy or liquidation of such Person or a good
faith settlement of debts by said Person;
18
(vii) Investments of a Person or any of its Subsidiaries
existing at the time such Person becomes a Subsidiary of the
Company or at the time such Person merges or consolidates with the
Company or any of its Subsidiaries, in either case in compliance
with this Indenture; provided that such Investments were not made
by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Subsidiary of the Company
or such merger or consolidation;
(viii) Investments in securities received in settlement of
trade obligations in the Ordinary Course of Business;
(ix) the purchase by the Subordinated Guarantor from NTL
Delaware of the Delaware/NTL (UK) Group Note and the acquisition
by the Company of the Diamond Cable Notes in accordance with the
Reorganization Plan;
(x) any Existing Investment and further Investments in such
Existing Investments to the extent required by, or if such
agreements do not require such Investment, but provide an election
to make the Investment on favorable terms to the Company or the
Subsidiary proposing to make such Investment as approved by the
Board of Directors of the Company pursuant to elections made
under, agreements governing such Existing Investments as in effect
on the date of this Indenture and set forth on Schedule 1.01-E
(Part B) and further Investments in Euroco Assets to the extent
such further Investment is required by (or if such agreements do
not require such Investment, but provide an election to make the
Investment on favorable terms to the Company or the Subsidiary
proposing to make such Investment as approved by the Board of
Directors of the Company pursuant to elections made under)
agreements governing such Euroco Assets as set forth on Schedule
1.01-C and such further Investment in Euroco Assets do not
exceed(pound)25 million;
(xi) Investments by the Company in Indebtedness of a
counter-party to a Currency Agreement 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);
(xii) receivables owing to the Company or any Subsidiary if
created or acquired in the Ordinary Course of Business;
(xiii) any Investment in duty deferment, development, bid,
performance, completion, surety or appeal bonds or similar
instruments, arising in the Ordinary Course of Business;
(xiv) other Investments in Persons not to exceed $25.0
million in the aggregate at any time outstanding; provided that
such Investment is in a Person whose primary business is the same,
related, ancillary or complementary to the business in which the
Company or its Subsidiaries were engaged in on the date of such
Investment; and the Company provides, and/or causes its relevant
Subsidiary to provide, a security interest in and continuing lien
on, all or a ratable portion of (as applicable) the Company's
and/or the relevant Subsidiary's aggregate right, title and
interest in, to and under such Investment to the Collateral Agent,
on behalf of the Holders, unless the Company and/or the Subsidiary
making the Investment is prohibited under the terms of the Senior
Facilities Documents, the Diamond Notes or the Triangle Notes, or
any Permitted Refinancing Indebtedness incurred in relation to the
Diamond Notes or Triangle Notes from providing such security
interest and continuing lien to the Collateral Agent, on behalf of
the Holders;
19
(xv) Interest Swap Obligations entered into for the purpose
of fixing or hedging interest rate risk with respect to any
Indebtedness that is permitted by the terms of this Indenture to
be outstanding;
(xvi) the redemption of the Workplace Technologies Notes and
payment of interest accrued thereon to the Effective Date;
(xvii) the steps or actions referred to in paragraph 6
("Cancellation of Certain Obligations") of Article IV.C
("Restructuring Transactions") of the Reorganization Plan;
(xviii) trade credit or guarantees or indemnities granted in
the Ordinary Course of Business on usual and customary terms;
(xix) any guarantee or indemnity given by the Company, a BG
Subsidiary, Guarantor or DT Subsidiary, respectively, in respect
of any Indebtedness permitted to be incurred under this Indenture,
or other obligation not restricted by the terms of the Transaction
Documents, of the Company, another BG Subsidiary, Guarantor or DT
Subsidiary, respectively;
(xx) Investments by a Triangle Entity in prepaid expenses,
negotiable instruments held for collection and lease, utility and
workers' compensation performance and other similar deposits;
(xxi) a capital contribution (or an exchange for convertible
loan stock issued by the recipient of the assets) of all or any
portion of (A) the Intercompany Receivable Note by the Company to
the Subordinated Guarantor or any BG Subsidiary, (B) all or any
portion of an intercompany receivable by the Subordinated
Guarantor to any BG Subsidiary, (C) any intercompany receivable by
any BG Subsidiary to another BG Subsidiary, (D) the Intercompany
Receivable by NTL Funding (NJ) Inc. to NTL Communications
(Ireland) Ltd, (E) the Intercompany Receivable by the Company to
Cablelink, (F) all or any portion of the Intercompany Receivable
referred to in paragraph (C) of the definition of Intercompany
Receivable by NTL Group Limited to Triangle or (G) the Diamond
Cable Notes to Diamond Cable;
(xxii) Investments to be made by the Company pursuant to the
Senior Facilities Documents in connection with an Asset Adjustment
Payment (as defined therein);
(xxiii) any Investment related to or arising out of a
Committed Acquisition; and
(xxiv) credit granted by any Subsidiary to a member of the
Group, where the Indebtedness outstanding thereunder relates to
Intra-Group Services provided that where such credit relates to
services falling within clauses (b) or (c) of the definition of
Intra-Group Services:
(A) the settlement of all such credit estimated by NTL
Communications Limited to be owed by members of the
Group which are not Obligors (as defined in the Senior
Credit Facility) shall take place no less frequently
than on a monthly basis; and
(B) if, on the first Business Day falling after the fourteenth
day of each calendar month, the aggregate amount of
all such credit owed by members of the Group which are
not Obligors (as defined in the Senior Credit Facility)
is estimated by NTL Communications Limited to be in
20
excess of (pound)25.0 million (or its equivalent
in other currencies) all such credit shall be promptly
settled at such time provided that any overpayment or
underpayment arising as a result of the settlement of
all such credit may be returned to the overpaying party
or paid by the underpaying party.
"Permitted Liens" means (a) Liens in favor of the Trustee or
Collateral Agent; (b) Liens on property of a Person or any of its
Subsidiaries existing at the time such Person is merged into or
consolidated with or acquired by the Company or any Subsidiary of the
Company or such property is acquired by the Company or any Subsidiary of
the Company; provided, that such Liens were in existence prior to the
contemplation of such merger or consolidation or acquisition and do not
encumber 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 or acquisition; (c) Liens imposed by law, such as
carriers', warehousemen's and mechanics' liens and other similar liens
arising in the Ordinary Course of Business, similar Liens imposed by
suppliers by contracts on materials or supplies purchased from such
supplier in the Ordinary Course of Business, in each case which secure
payment of obligations not more than 60 days past due or are being
contested in good faith and by appropriate proceedings, or any Lien
constituted by a rent deposit deed entered into on arms length terms and in
the Ordinary Course of Business, securing the obligations of the Company
and its Subsidiaries in relation to a lease of office or other business
premises by and for the Company or any Subsidiary of the Company; (d) 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 or generally accepted accounting principles applicable
to the relevant Person shall have been made therefor; (e) Liens existing on
the Closing Date set forth on Schedule 1.01-F, and any renewals or
replacements of such Liens granted to secure a refinancing of the
Indebtedness originally secured by such Liens (so long as the renewal or
replacement Lien does not cover more property from, or secure Indebtedness
of an amount greater than the amount of Indebtedness (plus any fees, costs
and expenses incurred in connection with such Refinancing) secured by, the
Existing Lien); (f) easements, rights of way, restrictions and other
similar easements, licenses, restrictions on the use of properties or minor
imperfections of title that do not in the case of any individual property
materially interfere with the Company's ability to conduct its business
from such property or interfere with the ordinary conduct of the business
of the Company or its Subsidiaries; (g) with respect to the BG Subsidiaries
and the Subordinated Guarantor, Liens which are "Permitted Encumbrances"
under either of the Senior Facilities (as in effect on the Closing Date);
(h) with respect to the DT Subsidiaries, Liens which are permitted or not
prohibited under Section 1011 of the Diamond Notes Indenture or Section
4.10 of the Triangle Notes Indenture, as the case may be (each as in effect
on the date hereof); (i) with respect to the BG Subsidiaries and the
Subordinated Guarantor, Liens securing Indebtedness under the Senior
Facilities, as permitted to be incurred under this Indenture; (j) Liens
securing obligations under the Currency Agreements and /or Interest Swap
Obligations that are permitted under this Indenture; (k) Liens securing
Permitted Refinancing Indebtedness; provided that the Company or Subsidiary
was permitted to Incur Liens with respect to the Indebtedness so
Refinanced; (l) Liens securing Indebtedness permitted by Section
5.04(b)(iv)(x); (m) the cash collateralization of performance bonds in the
Ordinary Course of Business, in an amount not to exceed (pound)20.0
million; and (n) Liens granted by the Company or the Subordinated Guarantor
to secure indebtedness under the Senior Facilities over bank accounts
containing cash sourced from BG Subsidiaries and any interest earned
thereon which is required to be reinvested in a BG Subsidiary under the
terms of the Senior Facilities.
"Permitted Overdraft Borrowings" means Indebtedness in respect
of an Overdraft Facility if such Indebtedness:
21
(i) has been incurred solely for short term cash management
purposes in the Ordinary Course of Business; and
(ii) is fully repaid within three business days of it having
been incurred (from available funds other than Permitted Overdraft
Borrowings).
"Permitted Refinancing Indebtedness" means:
(i) any Indebtedness of the Company or any of its
Subsidiaries issued in exchange for, or the net proceeds of
which are used to Refinance other Indebtedness (other than the
Diamond Notes, the Triangle Notes and the Senior Facilities) of
any such Persons; provided, however, that (A) the principal
amount of such Permitted Refinancing Indebtedness does not
exceed the principal amount outstanding plus accrued interest
and premium, if any (set forth in the original instrument
representing such Indebtedness), of the Indebtedness so
Refinanced (plus the amount of reasonable fees, costs and
expenses incurred in connection with such Refinancing); (B) such
Permitted Refinancing Indebtedness has a final maturity date on
or later than the final maturity date of, and has a Weighted
Average Life to Maturity greater than the Weighted Average Life
to Maturity of, at the time of such Refinancing, the
Indebtedness being Refinanced; (C) if the Indebtedness being
Refinanced is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and is subordinated
in right of payment to, the Notes on terms at least as favorable
to the Holders of Notes as those contained in the documentation
governing the Indebtedness being Refinanced; (D) such
Indebtedness is Incurred either by the Company or by the
Subsidiary which is the obligor on the Indebtedness being
Refinanced; (E) if the Indebtedness being Refinanced is
unsecured, such Permitted Refinancing Indebtedness is unsecured;
and (F) any Excess Refinancing Proceeds are applied in
accordance with Section 5.11; and
(ii) any Indebtedness issued in exchange for, or the
net proceeds of which are used to Refinance the Diamond Notes or
the Triangle Notes; provided, however, that (A) the principal
amount of such Permitted Refinancing Indebtedness does not
exceed the principal amount plus accrued interest and premium,
if any, outstanding at the time of such Refinancing, of the
Diamond Notes or the Triangle Notes (as the case may be) (plus
the amount of reasonable fees, costs and expenses incurred in
connection with such Refinancing); (B) such Permitted
Refinancing Indebtedness has a final maturity date at least six
months later than the final maturity date of the Notes and there
is no principal amortization prior to the maturity date; (C)
such Indebtedness is incurred either by the Company or by the
Subsidiary which is the obligor on the Diamond Notes or the
Triangle Notes, as the case may be, being Refinanced; (D) such
Permitted Refinancing Indebtedness is unsecured; and (E) any
Excess Refinancing Proceeds are applied in accordance with
Section 5.11.
"Permitted Refinancing Indebtedness" shall not include Indebtedness
under the Senior Facilities which may be Refinanced.
"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or agency or political
subdivision of any government or agency (including any subdivision or ongoing
business of any such entity or substantially all of the assets of any such
entity, subdivision or business).
"PIK Notes" is defined in Exhibit A.
22
"Pledge and Security Agreement" means the Pledge and Security
Agreement, dated as of January 9, 2003 made by the Senior Guarantors in
favor of, or for the benefit of, the Collateral Agent for the benefit of
the Secured Parties and the other parties to such agreement, as the same
may be amended, supplemented or otherwise modified from time to time.
"Preferred Stock" of any Person, means any Capital Stock of
such Person that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemptions or upon liquidation.
"protected purchaser" is defined in Section 2.07.
"Purchase Date" is defined in Section 4.10(a).
"Purchase Agreement" means the Purchase Agreement, dated as of
January 9, 2003, by and among the Company, the Guarantors and the
Purchasers.
"Purchasers" is defined in Appendix A.
"Redeemable Dividend" means, for any dividend with regard to
Disqualified Capital 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 Capital Stock.
"Redemption Date," when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture and the Notes.
"Redemption Price," when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture and the Notes.
"Refinance" in respect of any security or Indebtedness, means
to refinance, extend, renew, refund, repay, prepay, redeem, defease or
retire, or to issue a security or Indebtedness in exchange or replacement
for, such security or Indebtedness in whole or in part. "Refinanced" and
"Refinancing" shall have correlative meanings.
"Registered Exchange Offer" is defined in Appendix A.
"Registrar" is defined in Section 2.03(a).
"Regular Record Date" is defined in Exhibit A and Exhibit B.
"Regulation S" is defined in Appendix A.
"Relevant Multiple" means for the year ending December 31:
(a) 2003, 1.5;
(b) 2004, 1.75;
(c) 2005, 2.0;
(d) 2006, 2.25;
(e) 2007, 2.5;
(f) 2008, 2.75;
(g) 2009, 3.
23
"Remaining Subsidiaries" means all Subsidiaries of the Company
other than any Subsidiary which is a Designated Company or a Significant
Subsidiary.
"Reorganization Plan" shall have the meaning ascribed to that
term in the Purchase Agreement.
"Representative" means the indenture trustee or other trustee,
agent or representative in respect of any Senior Indebtedness; provided
that if, and for so long as, any Senior Indebtedness lacks such a
representative, then the Representative for such Senior Indebtedness shall
at all times constitute the holders of a majority in outstanding principal
amount of such Senior Indebtedness in respect of any Senior Indebtedness.
In the case of Indebtedness under the Senior Facilities, the Representative
shall mean J.P. Morgan Europe Limited or any successor to J.P. Morgan
Europe Limited under the Senior Facilities of which the Trustee is notified.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Payments" is defined in Section 5.02(a).
"Rights Agreement" means the rights agreement, dated as of January
10, 2003, between the Company and Continental Stock Transfer & Trust Company,
as such agreement may be amended from time to time.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Subsidiary of any property, whether owned
by the Company or any Subsidiary at the Closing Date or later acquired, which
has been or is to be sold or transferred by the Company or such Subsidiary to
such Person or any other Person from whom funds have been or are to be
advanced by such Person on the security of such property.
"Secured Parties" means, collectively, the Trustee and the
Holders.
"Securities Act" is defined in Appendix A.
"Senior Credit Facility" means the credit agreement, dated May 30,
2000, by and among NTL Communications Limited, as parent, NTL Investment
Holdings Limited, as post-novation borrower, the guarantors named in the
credit agreement, the Company, J.P. Morgan plc (formerly known as Chase
Manhattan plc) and Morgan Stanley Dean Witter Bank Limited, as arrangers and
joint book managers, J.P. Morgan Europe Limited (formerly known as Chase
Manhattan International Limited), as agent and security trustee, and the other
parties to such credit agreement, together with the Senior Facilities
Documents relating thereto, in each case as amended and restated and novated
prior to the date of this Indenture, and as may be further amended and/or
restated or Refinanced from time to time.
"Senior Default" means an event of default under the Senior Credit
Facility or the Working Capital Facility entitling the lenders thereunder to
pursue remedies in respect of such event of default.
"Senior Facilities" means, individually and collectively, the
Senior Credit Facility and the Working Capital Facility.
"Senior Facilities Documents" means the documents representing the
Senior Facilities or Interest Swap Obligations with respect to Indebtedness
under the Senior Facilities, and all certificates,
24
instruments, financial and other statements and other documents and agreements
made or delivered from time to time in connection with the Senior Facilities
or the Interest Swap Obligations and related to them.
"Senior Guarantor" means a Guarantor other than the Subordinated
Guarantor.
"Senior Indebtedness" means (i) the principal of (and premium, if
any) and interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company or its
Subsidiaries whether or not such claim for post-petition interest is allowed
in such proceeding) on, and penalties and any obligation of the Company or its
Subsidiaries for reimbursement (including attorneys' fees incurred in
connection with any such proceeding, whether or not allowed in such
proceeding), indemnities and fees relating to, and all other amounts owing
under, the Senior Facilities, (ii) the principal of (and premium, if any) and
interest on Indebtedness of the Subordinated Guarantor or any BG Subsidiary
for money borrowed, whether incurred on or prior to the date of original
issuance of the Notes or thereafter, and any amendments, renewals, extensions,
modifications, refinancings and refunding of any such Indebtedness, and (iii)
Interest Swap Obligations or Currency Agreements entered into with respect to
Indebtedness described in clause (i) above; provided, however, that the
following shall not constitute Senior Indebtedness: (1) any Indebtedness as to
which the terms of the instrument creating or evidencing the same provide that
such Indebtedness is not superior in right of payment to the Notes, (2) any
Indebtedness as to which the terms of the instrument creating or evidencing
the same provide that such Indebtedness is subordinated in right of payment in
any respect to any other Indebtedness of the Company, (3) Indebtedness
evidenced by the Notes, the Guarantees or the Subordinated Guarantee, (4) any
Indebtedness owed to a Person when such Person is a Subsidiary of the Company,
(5) any obligation of the Company arising from Disqualified Capital Stock of
the Company, (6) any portion of any Indebtedness which is incurred in
violation of this Indenture (but, as to any such Obligation, no such violation
shall be deemed to exist for purposes of this clause (6) if the holder(s) of
such Obligation or their representatives shall have received an Officer's
Certificate of the Company to the effect that the Incurrence of such
Indebtedness does not (or, in the case of revolving credit Indebtedness, that
the Incurrence of the entire committed amount thereof at the date on which the
initial borrowing thereunder is made and would not) violate such provisions of
this Indenture), and (7) Indebtedness which, when incurred and without respect
to any election under section 1111(b) of Title 11, United States Code, is
without recourse to the Company.
"Shelf Registration Statement" is defined in Appendix A.
"Significant Subsidiary" means any direct or indirect Subsidiary
of the Company with consolidated assets (excluding intercompany notes or
receivables) of more than $15 million;
"Six Month Date" is defined in Section 5.04(b)(iii).
"Special Interest" is defined in Exhibit A.
"Stated Maturity," when used with respect to any Note or any
installment of interest thereon, means the date specified in this Indenture or
such Note as the scheduled fixed date on which the principal amount of such
Note or such installment of interest is due and payable and shall not include
any contingent obligation to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for payment of such interest
or principal.
"Subject Transaction" is defined in Section 5.04(a).
"Subordinated Guarantee" means the Guarantee provided by the
Subordinated Guarantor pursuant to Article 11 of this Indenture.
25
"Subordinated Guarantor" means Communications Cable Funding Corp.,
a Delaware Corporation.
"Subordinated Indebtedness" means Indebtedness of the Company or
any of its Subsidiaries which is expressly subordinated to and junior to the
payment and performance of the Notes or any such Subsidiary's Guarantee, as
applicable, of the Notes.
"Subordinated Obligations" means, with respect to the Company, any
Indebtedness of the Company (whether outstanding on the Closing Date or
incurred after the Closing Date) which is expressly subordinate in right of
payment to the obligations of the Company under the Notes pursuant to a
written agreement.
"Subsidiary" means, with respect to any Person, (i) 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 of such corporation, association or other business entity
is at the time owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of that Person (or a combination of
them) and (ii) any partnership (A) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (B)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination of them) provided, however,
that with respect to the Company or any of its Subsidiaries, the term
"Subsidiary" shall not include Moleseye Limited or NTL Radio Services Limited
so long as such persons are not Wholly Owned Subsidiaries of the Company. Any
Person becoming a Subsidiary of the Company after the date of this Indenture
should be deemed to have Incurred all of its outstanding Indebtedness on the
date it becomes a Subsidiary.
"Subsidiary Preferred Stock Dividend" means, for any dividend with
regard to preferred stock of a 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.
"Supplemental Guarantee" is defined in Section 11.02.
"Tax Returns" means all reports and returns (including elections,
declarations, disclosures, schedules, estimates and information returns)
required to be filed with respect to Taxes.
"Taxes" means all federal, state, local or foreign income, gross
receipts, windfall profits, severance, property, production, sales, use,
license, excise, franchise, employment, withholding or other taxes, duties or
assessments of any kind whatsoever imposed on any Person, together with any
interest, additions or penalties with respect to those Taxes and any interest
in respect of such additions or penalties and includes any liability for Taxes
of another Person by contract, as a transferee or successor, under Treasury
regulation section 1.1502-6 or analogous state, local or foreign law provision
or otherwise.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. sections
77aaa-77bbbb), as amended from time to time.
"Transaction Agreement" means the restated agreement dated as of
July 26, 1999 between Bell Atlantic Corporation, Cable & Wireless, Cable &
Wireless Communications Plc (now known as NTL (CWC) Limited) and Euroco (as
amended, novated and restated from time to time).
"Transaction Documents" is defined in the Purchase Agreement.
26
"Trapped Income" means (i) any income of a Diamond Entity which
may not be distributed (directly or indirectly) to the Company as a result of
insufficient or negative distributable reserves or a contractual restriction
in the terms of the agreements governing the Diamond Notes or any Permitted
Refinancing Indebtedness Incurred in relation to the Diamond Notes, provided
that such income shall constitute Trapped Income only so long as there is no
event of default under such agreements, (ii) any income of a Triangle Entity
which may not be distributed directly or indirectly to the Company as a result
of insufficient or negative distributable reserves or a contractual
restriction in the terms of this Indenture or the agreements governing the
Triangle Notes or any Permitted Refinancing Indebtedness Incurred in relation
to the Triangle Notes, provided further that such income shall constitute
Trapped Income only so long as there is no event of default under the Triangle
Notes; and (iii) any income of a BG Subsidiary which may not be distributed
directly or indirectly to the Company as a result of insufficient or negative
distributable reserves or a contractual restriction in the Senior Facilities;
provided that such income shall constitute Trapped Income only so long as
there is no event of default under such agreements.
"Triangle" means NTL (Triangle) LLC, a Delaware limited liability
company.
"Triangle Asset Disposition" means any Asset Disposition of any
assets of any Triangle Entity or any Asset Disposition of the Capital Stock of
Triangle.
"Triangle Entities" means Triangle and any direct or indirect
Subsidiaries of Triangle.
"Triangle Notes" means the 11.2% Senior Discount Debentures issued
by Triangle under an indenture deed dated November 15, 1995 as amended by a
First Supplemental Indenture dated November 28, 1998.
"Triangle Notes Indenture" means the indenture in respect of the
Triangle Notes, dated as of November 15, 1995 as amended by a First
Supplemental Indenture dated November 28, 1998.
"Triangle Pledge Agreement" means the Stock Pledge Agreement,
dated as of January 9, 2003 made by the holders of membership interests in
Triangle in favor of, or for the benefit of, the Collateral Agent for the
benefit of the Secured Parties and the other parties to such agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"Trustee" is defined in the preamble.
"Trust Officer," when used with respect to the Trustee, means the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, or any other
officer of the Trustee in its Corporate Trust Administration Department
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular
subject.
"United States" shall have the meaning assigned to such term in
Regulation S.
"Updated Business Plan" means the business plan for the Group in
the form agreed under the Senior Facilities and delivered as a condition
precedent to the Second Restatement Amendment Effective Time (as defined in
the Senior Credit Facility) under the Senior Facilities.
27
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality of the
United States of America) for the payment of which the full faith and credit
of the United States of America is pledged and that are not callable or
redeemable at the issuer's option.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (A) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of such
Indebtedness, by (B) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such
payment, by (ii) the then outstanding principal amount of such Indebtedness.
"Wholly Owned BG Subsidiary" means a BG Subsidiary, all of the
outstanding Capital Stock or other ownership interests (including pledged
interests) of which (other than directors' qualifying shares) shall at the
time be owned by or on behalf of one or more other Wholly Owned Subsidiaries
of the Company.
"Wholly Owned DT Subsidiary" means a DT Subsidiary, all of the
outstanding Capital Stock or other ownership interests of which (other than
directors' qualifying shares) shall at the time be owned by or on behalf of
one or more other Wholly Owned Subsidiaries of the Company.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person, all of the outstanding Capital Stock or other ownership interests
(including pledged interests) of which (other than directors' qualifying
shares) shall at the time be owned by such Person or by one or more Wholly
Owned Subsidiaries of such Person or nominee on their behalf.
"Working Capital Banks" means the lending banks under the Working
Capital Facility.
"Working Capital Facility" means the credit agreement, dated May
30, 2000, by and among the Company, as parent, NTL (UK) Group, Inc., as
intermediate parent, NTL Communications Limited, as borrower, and J.P. Morgan
plc (formerly known as Chase Manhattan plc) and Morgan Stanley Dean Witter
Bank Limited, as arrangers and joint book managers, J.P. Morgan Europe Limited
(formerly known as Chase Manhattan International Limited), as agent and
security trustee, and the other parties to such credit agreement, together
with the Senior Facilities Documents relating thereto, in each case as amended
and restated and novated prior to the date of this Indenture, and as may be
further amended and/or restated or Refinanced from time to time.
"Workplace Technologies Notes" means the Floating Rate Loan Notes
due 2005 issued pursuant to a loan note instrument dated October 1, 1999 in
connection with the acquisition of NTL Business Limited (previously named
Workplace Technologies plc), which have a principal outstanding amount equal
to less than (pound)150,000 in the aggregate.
Section 1.02. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"indenture securities" means the Notes, the Exchange Notes, the
Guarantees and the Exchange Guarantees.
"indenture trustee" means the Trustee.
28
"obligor" on the indenture securities means the Company, the
Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
have the meanings assigned to them by such definitions.
Section 1.03. Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) capitalized terms used but not defined herein shall have the
meanings given to such terms in the Purchase Agreement;
(c) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(d) "including" means including without limitation;
(e) "to" and "until" each mean "to but excluding";
(f) any definition of or reference to any agreement, instrument or
other document in this Indenture shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth in this Indenture);
(g) any reference in this Indenture to any Person shall be
construed to include such Person's successors and assigns;
(h) words in the singular include the plural and words in the
plural include the singular;
(i) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount of such security
that would be shown on a balance sheet of the issuer dated such date prepared
in accordance with GAAP;
(j) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater;
(k) all amounts in dollars or pounds sterling shall include its
foreign currency equivalent; and
(l) any reference to a section, clause, definition or paragraph of
any of the Senior Facilities Documents in this Indenture shall be construed as
referring to such section, clause, definition or paragraph as from time to
time amended or modified or re-numbered (subject to any restrictions on such
amendments and modifications) set forth in this Indenture or the equivalent or
substantially equivalent provision contained in any document related to a
Refinancing of the Senior Facilities.
29
ARTICLE 2.
THE NOTES
---------
Section 2.01. Form and Dating. Provisions relating to the Initial
Notes, the PIK Notes and the Exchange Notes to be issued in exchange for the
Initial Notes (and any PIK Notes) or otherwise as provided in this Indenture
are set forth in Appendix A, which is incorporated in and expressly made a
part of this Indenture. The Initial Notes (together with any PIK Notes issued
in respect thereof) and the Trustee's certificate of authentication relating
to the Initial Notes shall each be substantially in the form of Exhibit A to
this Indenture, which is incorporated in and expressly made a part of this
Indenture. The Exchange Notes (together with any PIK Notes issued in respect
thereof) and the Trustee's certificate of authentication relating to the
Exchange Notes shall be substantially in the form of Exhibit B to this
Indenture, which is incorporated in 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 or any Guarantor is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). Each Note shall be dated
the date of its authentication. The Notes shall bear interest as set forth in
the first paragraph of the reverse side of the Notes. The Notes shall be
issuable only in registered form without interest coupons and only in
denominations of $1,000 (in principal amount at maturity) and multiples of
$1,000.
Section 2.02. Execution and Authentication. One officer shall sign
the Notes for the Company by manual or facsimile signature.
If an officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall, upon written direction of the Company,
authenticate and make available for delivery Notes as set forth in Appendix A.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Notes. Any such appointment
shall be evidenced by an instrument signed by a Trust Officer, a copy of which
shall be furnished to the Company. Unless limited by the terms of such
appointment, 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 any Registrar, Paying Agent or agent for service of notices and
demands.
Section 2.03. Registrar and Paying Agent. (a) The Company shall
maintain an office or agency, which shall be located in the Borough of
Manhattan, The City of New York, where Notes may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Notes may be presented for payment (the "Paying Agent"). The Registrar shall
keep a register of the Notes and of their transfer and exchange. The Company
may have one or more co-registrars and one or more additional paying agents.
The term "Paying Agent" includes any additional paying agent, and the term
"Registrar" includes any co-registrars. The Company initially appoints the
Trustee as (i) Registrar and Paying Agent in connection with the Notes and
(ii) the Notes Custodian with respect to the Global Exchange Notes (as defined
in Appendix A).
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(b) The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture, which shall
incorporate the terms of the TIA. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Company shall notify the
Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall
be entitled to appropriate compensation for acting as such Registrar or Paying
Agent pursuant to Section 8.07. The Company or any of its Wholly Owned
Subsidiaries incorporated in the United States may act as Paying Agent or
Registrar.
(c) The Company may remove any Registrar or Paying Agent upon
written notice to such Registrar or Paying Agent and to the Trustee; provided,
however, that no such removal shall become effective until (i) acceptance of
an appointment by a successor as evidenced by an appropriate agreement entered
into by the Company and such successor Registrar or Paying Agent, as the case
may be, and delivered to the Trustee or (ii) notification to the Trustee that
the Trustee shall serve as Registrar or Paying Agent until the appointment of
a successor in accordance with clause (i) above. The Registrar or Paying Agent
may resign at any time upon written notice to the Company and the Trustee;
provided, however, that the Trustee may resign as Paying Agent or Registrar
only if the Trustee also resigns as Trustee in accordance with Section 8.08.
Section 2.04. Paying Agent to Hold Money in Trust. Prior to each
due date of the principal of and interest on any Note, the Company shall
deposit with the Paying Agent (or if the Company or a Subsidiary is acting as
Paying Agent, segregate and hold in trust for the benefit of the Persons
entitled to such principal and interest) a sum sufficient to pay such
principal amount and interest when so becoming due. The Company shall require
each Paying Agent (other than the Trustee) to agree in writing that the Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the payment of principal of or interest on the
Notes and shall notify the Trustee of any default by the Company in making any
such payment. If the Company or a Subsidiary of the Company acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold it as
a separate trust fund. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee and to account for any funds disbursed
by the Paying Agent. Upon complying with this Section 2.04, the Paying Agent
shall have no further liability for the money delivered to the Trustee.
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, or cause the Registrar to furnish, to the Trustee,
in writing at least five Business Days 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. The Notes shall be issued in
registered form and shall be transferable only upon the surrender of a Note
for registration of transfer and in compliance with Appendix A. When a Note is
presented to the Registrar with a request to register a transfer, the
Registrar shall register the transfer as requested if the requirements for
transfer set forth on the Note are met. When Notes are presented to the
Registrar with a request to exchange them for an equal principal amount of
Notes of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. To permit registration of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Notes at the Registrar's request. The Company may require payment
of a sum sufficient to pay all taxes, assessments or other governmental
charges in connection with any transfer or exchange pursuant to this Section
2.06. The Company shall not be required to make and the Registrar need not
register transfers or exchanges of Notes selected for redemption (except, in
the case of Notes to be redeemed in part, the portion of such Notes not to be
redeemed) or any Notes for a period of 15 days before a selection of Notes to
be redeemed.
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Prior to the due presentation for registration of transfer of any
Note, the Company, the Guarantors, the Trustee, the Paying Agent and the
Registrar shall treat the Person in whose name a Note is registered as the
absolute owner of such Note for the purpose of receiving payment of principal
of and interest, if any, on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and none of the Company, any Guarantor,
the Paying Agent, the Trustee or the Registrar shall be affected by notice to
the contrary.
Any Holder of a Global Exchange Note shall, by acceptance of such
Global Exchange Note, agree that transfers of beneficial interest in such
Global Exchange Note may be effected only through a book-entry system
maintained by the Trustee acting as the Company's agent and that ownership of
a beneficial interest in such Global Exchange Note shall be required to be
reflected in a book entry.
All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same debt and shall be entitled to
the same benefits under this Indenture as the Notes surrendered upon such
transfer or exchange.
Section 2.07. Replacement Notes. If a mutilated Note is
surrendered to the Registrar or if the Holder of a Note claims that the Note
has been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Note if the requirements of section
8-405 of the New York Uniform Commercial Code are met, such that the Holder
(a) satisfies the Company or the Trustee within a reasonable time after such
Holder has notice of such loss, destruction or wrongful taking and the
Registrar does not register a transfer prior to receiving such notification,
(b) makes such request to the Company or the Trustee prior to the Note being
acquired by a protected purchaser as defined in section 8-303 of the New York
Uniform Commercial Code (a "protected purchaser") and (c) satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or the
Company, such Holder shall furnish an indemnity bond sufficient in the
reasonable judgment of both the Company and the Trustee to protect the
Company, the Trustee, the Paying Agent and the Registrar from any loss that
any of them may suffer if a Note is replaced, unless the Holder is an
institution with a Consolidated Net Worth in excess of $100.0 million and
contractually commits to protect the Company, the Trustee, the Paying Agent
and the Registrar from any loss that any of them may suffer if a Note is
replaced, in which case no such indemnity bond may be required. The Company
and the Trustee may charge the Holder for their expenses in replacing a Note.
In the event any such mutilated, lost, destroyed or wrongfully taken Note has
become or is about to become due and payable, the Company in its discretion
may pay such Note instead of issuing a new Note in replacement of such Note.
Every replacement Note is an additional obligation of the Company.
The provisions of this Section 2.07 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, lost, destroyed or wrongfully taken
Notes.
Section 2.08. Outstanding Notes. Notes outstanding at any time are
all Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this Section 2.08 as
not outstanding. Subject to Section 13.06, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Note is held by a protected purchaser.
32
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a Redemption Date or maturity date money sufficient to
pay all the principal amount and interest and Special Interest, if any,
payable on that date with respect to the Notes (or portions of such Notes) to
be redeemed or maturing, as the case may be, and the Paying Agent is not
prohibited from paying such money to the Holders on that date pursuant to the
terms of this Indenture, then on and after that date such Notes (or portions
of such Notes) cease to be outstanding and interest on them ceases to accrue.
Section 2.09. Temporary Notes. Until Definitive Notes are ready
for delivery, the Company may prepare and the Trustee shall authenticate
temporary Notes, which 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 and deliver them in exchange for temporary
Notes upon surrender of such temporary Notes at the office or agency of the
Company, without charge to the Holder.
Section 2.10. Cancellation. The Company at any time may deliver
Notes to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment or
cancellation and deliver canceled Notes to the Company pursuant to written
direction by an officer. The Company may not issue new Notes to replace Notes
it has redeemed, paid or delivered to the Trustee for cancellation. The
Trustee shall not authenticate Notes in place of canceled Notes other than
pursuant to the terms of this Indenture.
Section 2.11. Defaulted Interest. If the Company defaults in a
payment of interest or Special Interest, if any, on the Notes, the Company
shall pay the defaulted interest (plus interest on such defaulted interest to
the extent lawful) in any lawful manner. The Company may pay the defaulted
interest to the Persons who are Holders on a subsequent special record date.
The Company shall fix or cause to be fixed any such special record date and
payment date to the reasonable satisfaction of the Trustee and shall promptly
mail or cause to be mailed to each Holder a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
Section 2.12. CUSIP Numbers. The Company in issuing the Notes may
use Committee on Uniform Securities Identification Procedures numbers (the
"CUSIP numbers") (if then generally in use) and, if so, the Trustee shall use
CUSIP numbers in notices of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Notes or as contained
in any notice of a redemption and that reliance may be placed only on the
other identification numbers printed on the Notes, and any such redemption
shall not be affected by any defect in or omission of such numbers.
ARTICLE 3.
REDEMPTION
----------
Section 3.01. Notices to Trustee. If the Company offers to
purchase Notes pursuant to Section 4.09, Section 4.10 or elects or is required
to redeem Notes pursuant to paragraphs 5 and 23 of the Notes, it shall notify
the Trustee in writing of the Redemption Date and the principal amount at
maturity of Notes to be redeemed. The redemption provisions of paragraphs 5
and 23 of the Notes are fully incorporated in this Indenture.
The Company shall give each notice to the Trustee provided for in
this Section 3.01 at least 30 days before the Redemption Date unless the
Trustee consents to a shorter period. Such notice
33
shall be accompanied by an Officer's Certificate and an Opinion of Counsel
from the Company to the effect that such redemption will comply with the
conditions in this Indenture. If fewer than all the Notes are to be redeemed,
the record date relating to such redemption shall be selected by the Company
and given to the Trustee, which record date shall be not fewer than 15 days
after the date of notice to the Trustee. Any such notice may be canceled at
any time prior to notice of such redemption being mailed to any Holder and
shall be void and of no effect.
Section 3.02. Selection of Notes To Be Redeemed. If fewer than all
the Notes are to be redeemed, the Trustee shall select the Notes to be
redeemed pro rata from all of the Holders. The Trustee shall make the
selection from outstanding Notes not previously called for redemption. The
Trustee may select for redemption portions of the principal amount at maturity
of Notes that have denominations larger than $1,000. Notes and portions of
them the Trustee selects shall be in principal amounts at maturity of $1,000
or a multiple of $1,000. Provisions of this Indenture that apply to Notes
called for redemption also apply to portions of Notes called for redemption.
The Trustee shall notify the Company promptly of the Notes or portions of
Notes to be redeemed.
Section 3.03. Notice of Redemption. (a) At least 10 days but not more
than 60 days before a date for redemption of Notes, the Company shall mail a
notice of redemption by first-class mail or by telefacsimile, with written
confirmation of receipt, to each Holder of Notes to be redeemed at such
Holder's registered address.
The notice shall identify the Notes to be redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of accrued interest
to the Redemption Date;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price;
(v) if fewer than all the outstanding Notes are to be
redeemed, the certificate numbers and principal amount at maturity
of the particular Notes to be redeemed;
(vi) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making
such payment pursuant to the terms of this Indenture, interest and
any Special Interest on Notes (or portion of such Notes) called
for redemption ceases to accrue on and after the Redemption Date;
(vii) the CUSIP number, if any, printed on the Notes being
redeemed; and
(viii) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
(b) At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section 3.03.
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Section 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Notes called for redemption become due and payable on
the Redemption Date and at the Redemption Price stated in the notice. Upon
surrender to the Paying Agent, such Notes shall be paid at the Redemption
Price stated in the notice, plus accrued interest and Special Interest, if
any, to the Redemption Date; provided, however, that if the Redemption Date is
after a Regular Record Date and on or prior to the Interest Payment Date, the
accrued interest and Special Interest, if any, shall be payable to the Holder
of the redeemed Notes registered on the relevant Regular Record Date. Failure
to give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
Section 3.05. Deposit of Redemption Price. Prior to 10:00 a.m.
(New York City time) on the Redemption Date, the Company shall deposit with
the Paying Agent (or, if the Company or a Subsidiary is the Paying Agent,
shall segregate and hold in trust) money sufficient to pay the Redemption
Price of, and accrued interest and Special Interest, if any, on, all Notes to
be redeemed on that date other than Notes or portions of Notes called for
redemption that have been delivered by the Company to the Trustee for
cancellation. On and after the Redemption Date, the interest shall cease to
accrue on Notes or portions of such Notes called for redemption so long as the
Company has deposited with the Paying Agent funds sufficient to pay the
principal amount of, plus accrued and unpaid interest and Special Interest, if
any, on, the Notes to be redeemed, unless the Paying Agent is prohibited from
making such payment pursuant to the terms of this Indenture.
Section 3.06. Notes Redeemed in Part. Upon surrender of a Note
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate for the Holder (at the Company's expense) a new Note equal in
principal amount at maturity to the unredeemed portion of the Note
surrendered.
ARTICLE 4.
AFFIRMATIVE COVENANTS
---------------------
Section 4.01. Payment of Notes. (a) The Company shall promptly pay
the principal of, interest and Special Interest, if any, on the Notes on the
dates and in the manner provided in the Notes and in this Indenture. Principal
amount of and interest on the Notes shall be considered paid on the date due
if on such date the Trustee or the Paying Agent holds in accordance with this
Indenture money sufficient to pay all principal of and interest on the Notes
then due and the Trustee or the Paying Agent, as the case may be, is not
prohibited from paying such money to the Holders on that date pursuant to the
terms of this Indenture.
(b) The Company shall pay interest on overdue principal of the
Notes at the rate specified for overdue principal in the Notes and shall pay
interest on overdue installments of interest at the same rate to the extent
lawful.
(c) PIK Notes. The Company may pay interest on the Notes through
the issuance of PIK Notes to the extent provided by the terms of the Notes.
Section 4.02. Commission Reports. Notwithstanding that the Company
may not be subject to the reporting requirements of section 13 or 15(d) of the
Exchange Act, the Company shall from and after a Note Registration, file with
the Commission, and provide the Trustee and Holders (upon request) within 15
days after it files them with the Commission, copies of its annual report and
the information, documents and other reports that are specified in section 13
and 15(d) of the Exchange Act. In the event that the rules and regulations
promulgated under the Exchange Act or the interpretations of the Commission of
such rules and regulations would permit the Company, if it were subject to the
35
reporting requirements of section 13 or 15(d) of the Exchange Act, to cease to
file separate reports pursuant to those sections, the Company may file with
the Commission copies of its annual report and the information, documents and
other reports that are specified in section 13 and 15(d) of the Exchange Act
(including such information as would be required to so permit the Company to
cease to file separate reports) and provide them to the Trustee and Holders
(upon request) within 15 days after it files them with the Commission, in
which case the Company shall be relieved of its obligations under the previous
sentence. In addition, the Company shall furnish to the Trustee and the
Holders, promptly upon their becoming available, copies of the annual report
to shareholders and any other information provided by the Company to its
public shareholders generally. The Company also shall comply with the other
provisions of TIA section 314(a).
Section 4.03. Preservation of Corporate Existence. The Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect (a) its corporate existence, and the corporate, limited liability
company, partnership or other existence of each of its Subsidiaries, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such Subsidiary and (b) the
rights (charter and statutory) and licenses of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right or license, or the corporate, limited liability
company, partnership or other existence of any of its Subsidiaries if the loss
of such right, license or existence does not and would not reasonably be
expected to result in a Material Adverse Effect.
Section 4.04. Maintenance of Properties. The Company will cause all
properties used or useful in the conduct of its business or the business of
any of its Subsidiaries to be maintained and kept in good condition, repair
and working order and will cause to be made all necessary repairs, renewals
and replacements of such properties, all as in the judgment of the Company may
be necessary so that the business carried on in connection with such
properties may be properly conducted; provided, however, that the foregoing
shall not prevent the Company from discontinuing the operation or maintenance
of any of such properties if such discontinuance does not and would not
reasonably be expected to result in a Material Adverse Effect.
Section 4.05. Taxes.
(a) Payment of Taxes and Other Claims. The Company shall pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all Taxes of the Company or any of its Subsidiaries and (ii)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a Lien upon the property of the Company or any of its Subsidiaries;
provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such Tax or claim (1) whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings, provided that appropriate reserves for such Tax or claim are
established in the Company's consolidated financial statements in accordance
with GAAP, if applicable, or (2) if the failure to pay such Tax or claim would
not reasonably be expected to have a Material Adverse Effect.
(b) Tax Returns. Except as would not reasonably be expected to be
material to the Company and its Subsidiaries, taken as a whole, the Company
and its Subsidiaries shall timely file or cause to be filed when due all
material Tax Returns that are required to be filed by or with respect to the
Company or any of its Subsidiaries for taxable years ending after the Closing
Date and shall pay any Taxes due in respect of such Tax Returns except as
permitted under Section 4.05(a).
(c) Contest Provisions. Prior to Note Registration, the Company
shall promptly notify the Trustee in writing upon receipt by the Company or any
36
of its Subsidiaries of notice of any pending or threatened federal, state,
local or foreign income or franchise Tax audits or assessments which may
materially affect the Tax liabilities of the Company or have a Material
Adverse Effect.
(d) Transfer Taxes. All transfer, transfer gains, documentary,
sales, use, stamp, registration and other similar Taxes and fees (including
costs and expenses relating to such Taxes) incurred in connection with the
consummation of the transactions contemplated by this Indenture, shall be
borne by the Company. The Holders shall reasonably cooperate with the Company
in the preparation and filing of any such Tax Returns and other documentation.
Section 4.06. Compliance Certificate. The Company shall deliver to
the Trustee within 120 days after the end of each Fiscal Year of the Company
an Officer's Certificate made on behalf of the Company stating whether or not
the signers know of any Default that occurred during such period. If they do,
the certificate shall describe the Default, its status and what action the
Company is taking or proposes to take with respect to such Default. The
Company also shall comply with section 314(a)(4) of the TIA.
Section 4.07. Compliance with Law. The Company will, and will cause
each of its Subsidiaries to, comply with all Applicable Laws and will obtain
and maintain, and will cause each of its Subsidiaries to obtain and maintain,
all Permits necessary to the ownership of their respective properties or to
the conduct of their respective businesses, in each case to the extent
necessary to ensure that any such non-compliance with Applicable Law or any
failure to obtain or maintain such Permits, individually or in the aggregate
would not reasonably be expected to have a Material Adverse Effect.
Section 4.08. Insurance. The Company shall cause its Subsidiaries to
maintain, with financially sound and reputable insurers or (except with
respect to the Captive Insurance Company's own insurance) the Captive
Insurance Company, insurance with respect to their respective properties and
business against such casualties and contingencies, of such types, on such
terms and in such amounts (including deductibles, co-insurance and
self-insurance, if adequate reserves are maintained with respect to such
deductibles, co-insurance and self-insurance) as is customary in the case of
entities engaged in a similar businesses. In the case of the Captive Insurance
Company, the Company shall from time to time determine whether it is
reasonably prudent in the judgment of the Board of Directors of the Company
for the Captive Insurance Company to effect and maintain insurance with a
financially sound and reputable underwriter or insurance or reinsurance
company. It is understood that, consistent with that custom, the Company and
its Subsidiaries do not insure the underground portion of its cable network.
Section 4.09. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Company shall
make an offer (a "Change of Control Offer") to each Holder to repurchase all
or any part (equal to $1,000 or a multiple of $1,000) of each Holder's Notes
at an offer price in cash equal to 101% of the outstanding face principal
amount of such Holder's Notes, plus accrued and unpaid interest on such Notes
(the "Change of Control Payment") and Special Interest, if any, until the
Change of Control Payment Date (as defined in Section 4.09(b)(ii) below) in
accordance with the terms set forth below. The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations under the Exchange Act to the extent such laws and
regulations are applicable in connection with the repurchase of the Notes as a
result of a Change of Control, and the Company shall not be in violation of
this Indenture by reason of any act required by such rule or other Applicable
Law.
(b) Within 30 days following any Change of Control, the Company
shall mail a notice to each Holder stating:
37
(i) that the Change of Control Offer is being made pursuant to
this Section 4.09 and that all Notes tendered will be accepted for
payment;
(ii) the purchase price and the purchase date, which shall be
at least 10 Business Days but no more than sixty (60) days from the date
on which the Company mails notice of the Change of Control (the "Change
of Control Payment Date");
(iii) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer shall be required to surrender the
Notes, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes completed, to the Paying Agent for such purpose, at
the address specified in the notice prior to the close of business on the
fifth Business Day preceding the Change of Control Payment Date;
(iv) that Holders will be entitled to withdraw their election
if the Company or its designated agent for such purpose, receives, not
later than the close of business on the third Business Day preceding the
Change of Control Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of
Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have the Notes purchased; and
(v) other information required to be included pursuant to
Section 3.03.
(c) On the Change of Control Payment Date, the Company shall, to
the extent lawful, (i) accept for payment all Notes or portions of Notes
properly tendered pursuant to the Change of Control Offer and (ii) pay to
the Hold0 ers of Notes or portions of the Notes so tendered an amount
equal to the Change of Control Payment in respect of all Notes or
portions of the Notes so tendered. The Company shall promptly mail or
deliver by wire transfer to each Holder of Notes so tendered the Change
of Control Payment for such Notes, and the Company shall promptly execute
and mail (or cause to be transferred by book-entry) to each Holder a new
Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided, however, that each such new Note shall be
in a face principal amount of $1,000 or a multiple of $1,000. The Company
shall publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Payment Date.
(d) The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of
Control Offer in a manner, at the times and otherwise in compliance with
the requirements set forth in this Section 4.09 and such third party
purchases all Notes validly tendered and not withdrawn under such Change
of Control Offer.
Section 4.10. Offer to Purchase by Application of Excess Proceeds.
(a) In the event that, pursuant to Section 5.05 or Section
5.11, the Company shall be required to commence an offer to all
Holders to purchase Notes (an "Excess Proceeds Offer"), it shall
follow the procedures specified in this Section 4.10. Each Excess
Proceeds Offer shall remain open for not less than thirty (30) nor
more than sixty (60) days immediately following its commencement,
except to the extent that a longer period is required by Applicable
Law (the "Offer Period"). On the Business Day immediately after the
termination of the Offer Period (the "Purchase Date"), the Company
shall purchase the Notes required to be purchased pursuant to Section
5.05 or Section 5.11 at the Redemption Price applicable on the
Purchase Date, as set forth in paragraph 5 of the Notes, plus accrued
and unpaid interest, if any, on such Notes to the Purchase Date (the
"Offer Amount") or, if less than the Offer Amount has been tendered,
the Company shall purchase all Notes tendered in response to the Excess
38
Proceeds Offer. Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.
(b) Upon the commencement of an Excess Proceeds Offer, the Company
shall send, by first class mail, a notice to each of the Holders which
shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Excess Proceeds Offer. The Excess
Proceeds Offer shall be made to all Holders. The notice, which shall
govern the terms of the Excess Proceeds Offer, shall state:
(i) that the Excess Proceeds Offer is being made pursuant
to this Section 4.10 and Section 5.05 (or Section 5.11, as the
case may be) and the length of time the Excess Proceeds Offer
shall remain open;
(ii) the Offer Amount, the purchase price and the
Purchase Date;
(iii) that Holders electing to have a Note purchased
pursuant to any Excess Proceeds Offer shall 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 at the address specified in the notice at least three
Business Days before the Purchase Date;
(iv) that Holders shall be entitled to withdraw their
election if the Company receives, not later than the expiration
of the Offer Period, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have
such Note purchased; and
(v) other information required to be included pursuant to
Section 3.03.
(c) On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Notes or portions of the Offer Amount of
Notes tendered pursuant to the Excess Proceeds Offer, or if less than the
Offer Amount has been tendered, all Notes tendered, and shall deliver to
the Holders and the Trustee an Officer's Certificate stating that such
Notes or portions of such Notes were accepted for payment by the Company in
accordance with the terms of this Section 4.10. The Company shall promptly
(but in any case not later than five (5) Business Days after the Purchase
Date) mail or deliver by wire transfer 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 Company shall promptly issue
a new Note and deliver it to such Holder, in a principal amount at maturity
equal to any unpurchased portion of the Note surrendered, if any; provided,
however, that each such new Note shall be in a face principal amount of
$1,000 or a multiple of $1,000. Any Note not so accepted shall be promptly
mailed or delivered by the Company to the Holder of such Note.
Section 4.11. Further Assurances. The Company shall, upon the
request of Holders, execute and deliver, or cause to be executed and
delivered, such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the provisions
of this Indenture or to perfect or renew the rights of the Collateral Agent
and the Holders with respect to the Collateral (or with respect to any
additions, replacements or proceeds of such Collateral or with respect to
any other property or assets acquired after the date of this Indenture by
the Company or any Guarantors which may be deemed to be part of the
Collateral) pursuant to this Indenture, the other Transaction Documents or
the Collateral Documents. Upon exercise by the Collateral Agent or any
Holder of any power, right, privilege or remedy pursuant to this Indenture,
the other Transaction Documents or the
39
Collateral Documents which requires any consent, approval, recording,
qualification or authorization of any Governmental Authority, the Company
will execute and deliver, or will cause the execution and delivery of, all
applications, certifications, instruments and other documents that the
Collateral Agent or such Holder may be required to obtain from the Company
or any of its Guarantors for such governmental consent, approval,
recording, qualification or authorization.
Section 4.12. Books and Records. The Company will, and will
cause each of its Subsidiaries to, maintain proper books of record and
account which fairly present its financial position and enable it to
prepare financial statements in conformity with GAAP or with generally
accepted accounting principles in its jurisdiction of incorporation or as
otherwise required by Applicable Law and consistently applied.
Section 4.13. Payment of Additional Amounts. At least 10 days
prior to the first date on which payment of principal and any premium or
interest on the Notes is to be made, and at least 10 days prior to any
subsequent such date if there has been any change with respect to the
matters set forth in the Officer's Certificate described in this Section
4.13, the Company shall furnish the Trustee and the Paying Agent, if other
than the Trustee, with an Officer's Certificate instructing the Trustee and
the Paying Agent whether the Company is obligated to pay Additional Amounts
(as defined in paragraph 22 of the Notes) with respect to such payment of
principal, or of any premium or interest on the Notes. If the Company will
be obligated to pay Additional Amounts with respect to such payment, then
such Officer's Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders and the Company
will pay to the Trustee or the Paying Agent such Additional Amounts. The
Company shall indemnify the Trustee and the Paying Agent for, and hold them
harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by any of them in reliance on any
Officer's Certificate furnished to them pursuant to this Section 4.13.
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 4.13 and paragraph 22 of the Notes (Exhibit A
hereto) 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 4.13 and paragraph 22 of the Notes (Exhibit A hereto) and express
mention of the payment of Additional Amount (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amount in
those provisions hereof where such express mention is not made (if
applicable).
ARTICLE 5.
NEGATIVE COVENANTS OF THE COMPANY
---------------------------------
Section 5.01. Stay, Extension and Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it shall 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, that may affect the covenants or the
performance of its obligations under the Notes or this Indenture, and the
Company (to the extent that it may lawfully do so) expressly waives all
benefit or advantage of any such law, and covenants (to the extent that it
may lawfully do so) that it shall not, by resort to any such law, hinder,
delay or impede the execution of any power in this Indenture granted to the
Holders, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
40
Section 5.02. Restricted Payments.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, (i) declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities
on account of any shares of any class of Capital Stock or other Equity
Interests of, including any payment in connection with a merger or
consolidation involving, the Company or any of its Subsidiaries (except the
Company may issue stock dividends in order to effect a stock split and may
effect a rights offering by dividend or distribution of rights to purchase
for cash Common Stock of the Company to holders of Common Stock entitling
them to purchase such Common Stock and issue rights to purchase Series A
Junior Participating Stock of the Company (or any other series of preferred
stock of the Company containing substantially similar terms to the Series A
Junior Participating Stock) pursuant to the Rights Agreement), (ii)
purchase, redeem or otherwise acquire for value any shares of Capital Stock
or other Equity Interests of the Company or any of its Subsidiaries now
outstanding or which become outstanding after the date of this Indenture
(other than the acquisition or issuance of Equity Interests of any
Subsidiary of the Company to the extent permitted as a Permitted Investment
or which does not constitute an Asset Disposition pursuant to clauses (i),
(ii), (xv), (xvi) and (xx) of the definition of Asset Disposition), (iii)
make any payment or prepayment of principal of, premium, if any, interest,
redemption, exchange, purchase, retirement, defeasance, sinking fund or
other payment with respect to, any Subordinated Indebtedness or (iv) make
any Restricted Investments (the items described in clauses (i), (ii), (iii)
and (iv) are referred to as "Restricted Payments"); unless at the time of
and after giving effect to such Restricted Payment:
(A) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence of such Restricted
Payment; and
(B) the Company would, at the time such Restricted Payment was
made and after giving pro forma effect to such Restricted Payment as
if such Restricted Payment had been made at the beginning of the
applicable four Fiscal Quarter period, have been permitted to incur
at least $1.00 of additional Indebtedness pursuant to the
Indebtedness Ratio Test set forth in Section 5.04(a), except that the
Modified Indebtedness Ratio will apply to that test instead of the
Indebtedness Ratio; and
(C) such Restricted Payment, together with the aggregate of all
other Restricted Payments made by the Company and its Subsidiaries
after the date of this Indenture (excluding Restricted Payments
permitted by Section 5.02(c)), is less than the difference between
(x) Cumulative EBITDA and (y) the Relevant Multiple times Cumulative
Interest Expense.
This paragraph (a) shall not prohibit (I) the payment or
distribution by any Subsidiary (other than Triangle) of any dividend on or
other distribution of its Capital Stock or other Equity Interests (in cash
or by way of an issue of Common Stock of the payer of such dividend) or
assets to the extent the proceeds of such payment or distribution are paid
or made pro rata to the holders of such Capital Stock or other Equity
Interests; (II) the making of any loan or advance, directly or indirectly,
by a Subsidiary of the Company to another Subsidiary of the Company or to
the Company to enable (A) the Company to pay its overhead expenses
(including without limitation, all expenses under the Exchange and
Registration Rights Agreement and under the Equity Registration Rights
Agreement pertaining to the registration under the Securities Act of the
Notes and the Capital Stock of the Company), (B) the Company or any of its
Subsidiaries to pay all Taxes due and owing by the Company and its
Subsidiaries, (C) the Company and its Subsidiaries to pay (x) regularly
scheduled installments of accrued and unpaid interest on the Notes that are
required to be paid only in cash, and (y) regularly scheduled installments
of principal and interest and any other fees and expenses that are required
under any Existing Indebtedness as to which the
41
Company and any Subsidiary is an obligor to be paid in cash, and (D) the
Company and its Subsidiaries to make any other Restricted Payment or
Permitted Investment, or to consummate any Affiliate Transaction, but in
each case only to the extent permitted under this Indenture and provided
that any of the payments referred to in clauses (A) to (D) of this
paragraph are made by the Company or the relevant Subsidiary within 30 days
after the date of the making of the loan or advance referred to in this
clause (II); and (III) any of the following if no Default or Event of
Default shall have occurred and be continuing immediately after any such
transaction:
(i) the payment of any dividend (in cash or by way of an issue
of Common Stock of the payer of such dividend) within 60 days after
the date of declaration of such dividend, if at said date of
declaration such payment would have complied with the other
provisions of this Indenture;
(ii) subject to Section 5.11, the defeasance, redemption or
repurchase of Subordinated Indebtedness with the net cash proceeds
from an incurrence of Permitted Refinancing Indebtedness or the
substantially concurrent sale (other than to a Subsidiary of the
Company) of Capital Stock or other Equity Interests of the Company
(other than Disqualified Capital Stock);
(iii) the redemption, repurchase or acquisition by any
Subsidiary of its Capital Stock or other Equity Interests to the
extent the proceeds of such payment, redemption, repurchase or
acquisition or any property transferred are paid pro rata to the
holders of such Capital Stock or other Equity Interests;
(iv) the making of Restricted Payments by the Company or any of
its Subsidiaries necessary to consummate the Reorganization Plan or
required by the Reorganization Plan or prepay or make scheduled
payments on Existing Indebtedness or make scheduled payments on
Indebtedness incurred by the Company or its Subsidiaries pursuant to
Section 5.04; and
(v) the redemption, repurchase, repayment, defeasance or other
acquisition or retirement for value of Indebtedness that is
subordinated in right of payment to the Notes upon the occurrence of
a change of control to the extent required by the terms of such
Indebtedness; provided that no such redemption, repurchase,
repayment, defeasance or other acquisition or retirement for value
shall be made prior to the Company's repurchase of all Notes required
to be repurchased pursuant to Section 4.09.
(b) Notwithstanding paragraph (a), after the Closing Date,
under no circumstances may the Company (i) declare or make any dividend
payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of any class of Capital
Stock or other Equity Interests of, including any payment in connection
with a merger or consolidation involving, the Company (except the Company
may issue stock dividends in order to effect a stock split and may effect a
rights offering by a dividend or distribution of rights to purchase for
cash Common Stock of the Company to holders of Common Stock entitling them
to purchase such Common Stock and issue rights to purchase Series A Junior
Participating Stock of the Company (or any other series of preferred stock
of the Company containing substantially similar terms to the Series A
Junior Participating Stock) pursuant to the Rights Agreement) or (ii)
purchase, redeem or otherwise acquire for value any shares of Capital Stock
or other Equity Interests of the Company now outstanding or which become
outstanding after the date of this Indenture.
42
(c) The Company and its Subsidiaries may make Restricted
Payments in order to facilitate regularly scheduled payments in respect of
any Subordinated Indebtedness permitted in accordance with the terms of,
and only to the extent required by, and subject to the subordination
provisions contained in or relating to, any agreement pursuant to which
such Subordinated Indebtedness was issued, so long as no Event of Default
described in Section 7.01 has occurred and is continuing or will result
from such payment, provided that in the event that any regularly scheduled
payments in respect of any Subordinated Indebtedness are not permitted to
be made because of such Event of Default, such regularly scheduled payments
in respect of any Subordinated Indebtedness shall accrue and may be paid
upon the waiver, cure or rescission of the applicable Event of Default so
long as no other Event of Default described in Section 7.01 has occurred
and is continuing or will result from such payment.
(d) The amount of all Restricted Payments (other than cash)
shall be the fair market value (evidenced by a resolution of the Board of
Directors set forth in an Officer's Certificate delivered to the Trustee)
on the date of the Restricted Payment of the asset(s) proposed to be
transferred by the Company or such Subsidiary, as the case may be, pursuant
to the Restricted Payment.
(e) Nothing in this Indenture shall prohibit the making of any
dividend, payment, distribution or repayment of intragroup indebtedness
(including interest) to (i) the Subordinated Guarantor by a direct or
indirect Subsidiary of the Subordinated Guarantor (other than a Triangle
Entity) or (ii) by a BG Subsidiary to another BG Subsidiary.
Section 5.03. Dividend and Other Payment Restrictions Affecting
Subsidiaries. The Company shall not, and shall not permit any of its
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 Subsidiary of the Company to (a)(i) pay dividends pro rata
or make any other distributions pro rata with respect to any Capital Stock
of such Subsidiary or any other interest or participation in, or measured
by, such Subsidiary's profits, or (ii) pay any indebtedness owed by such
Subsidiary to the Company or any of the Company's other Subsidiaries, (b)
make loans or advances to the Company or any of the Company's Subsidiaries
or (c) transfer any of its properties or assets pro rata to the Company or
any of the Company's Subsidiaries, to the extent the actions contemplated
by clauses (a) to (c) are permitted under this Indenture, except for such
encumbrances or restrictions existing under or by reason of:
(i) Existing Indebtedness and Capital Stock as in effect on the
date of this Indenture;
(ii) the Senior Facilities Documents; provided, however, that
any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or Refinancings are not
materially more restrictive with respect to such provisions, taken as
a whole, than those contained in the corresponding Senior Facilities
Documents as in force on the Closing Date; it is agreed that subject
to the definition of "Senior Credit Facility" and "Working Capital
Facility" an amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or Refinancing will not, for the
purposes of this clause (ii), be considered materially more
restrictive solely because it has a final maturity that is later than
the maturity date under the Senior Facilities as amended and in force
on the Closing Date;
(iii) this Indenture and the Notes as in effect on the date of
this Indenture, and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or
Refinancings of this Indenture and the Notes;
43
(iv) the Collateral Documents as in effect as of the date of
this Indenture, and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or
Refinancings of the Collateral;
(v) Applicable Law;
(vi) customary non-assignment provisions in subleases, leases,
licenses and other agreements entered into in the Ordinary Course of
Business and consistent with past practices and customary
non-assignment provisions contained in documents with respect to the
rights conferred by those documents to the extent that any such
non-assignment provision does not constitute a restriction on the
ability of any member of the Group to pay dividends, make loans or
repay or prepay loans made by any member of the Group;
(vii) capital leases or purchase money obligations for property
acquired in the Ordinary Course of Business that impose restrictions
of the nature described in clause (vi) above on the property so
acquired;
(viii) a Permitted Refinancing Indebtedness; provided, however,
that such restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are not materially more
restrictive than those contained in the agreements governing the
Indebtedness being Refinanced; it is agreed that subject to the
definition of "Permitted Refinancing Indebtedness," an amendment,
modification, restatement, renewal, increase, supplement, refunding,
replacement or Refinancing will not, for the purposes of this clause
(viii), be considered materially more restrictive solely because it
has a final maturity that is later than the maturity date of the
Indebtedness being amended, modified, restated, renewed, increased,
supplemented, refunded, replaced or Refinanced in force on the
Closing Date;
(ix) any instrument governing Indebtedness, Capital Stock or
assets of a Person or any of its Subsidiaries acquired by the Company
or any of its Subsidiaries as in effect at the time of such
acquisition (except to the extent such instrument was created or such
Indebtedness was Incurred in connection with or in contemplation of
such acquisition), which encumbrance or restriction is not applicable
to any Person, or the properties or assets of any Person, other than
the Person and its Subsidiaries, or the property or assets of the
Person and its Subsidiaries, so acquired, provided that, in the case
of Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be Incurred;
(x) secured Indebtedness otherwise permitted to be Incurred
pursuant to this Indenture that limits the right of any obligor under
such Indebtedness to dispose of the assets securing such
Indebtedness;
(xi) contracts for the sale of assets permitted under this
Indenture, including without limitation customary restrictions with
respect to a Subsidiary pursuant to an agreement that has been
entered into for the sale or disposition of all or substantially all
of the Capital Stock or assets of such Subsidiary;
(xii) restrictions on deposits or minimum net worth
requirements imposed by customers under contracts entered into in the
Ordinary Course of Business;
44
(xiii) customary provisions in joint venture or partnership
agreements or arrangements or constitutional documents regulating
joint ventures, partnerships, licenses and leases and other similar
agreements entered into in the Ordinary Course of Business;
(xiv) Permitted Liens; and
(xv) any agreement covering or relating to Indebtedness
permitted to be Incurred under Section 5.04 (b)(iii), (iv), (vii),
(ix), (xi), (xii), (xvi) or (xvii) hereof (but only in the case of
Section 5.04 (b)(vii) or (ix), to the extent permitted by the then
existing Senior Facilities) or relating to the terms of convertible
loan stock, 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 Subsidiary.
Section 5.04. Incurrence of Indebtedness and Issuance of
Disqualified Capital Stock or Preferred Stock.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
Guarantee or otherwise become directly or indirectly liable, contingently
or otherwise (including any operation of law) (collectively, "Incur"), with
respect to any Indebtedness (including Acquired Indebtedness), and the
Company shall not issue any Disqualified Capital Stock and shall not permit
any of its Subsidiaries to issue any Preferred Stock; provided, however,
that the Company may Incur Indebtedness (including Acquired Indebtedness or
issue shares of Disqualified Capital Stock), if (i) immediately after the
Incurrence of such Indebtedness, the Indebtedness Ratio does not exceed (x)
from the Closing Date until December 31, 2005, 5.50 to 1.00 and (y) from
January 1, 2006 until the final date of maturity of the Notes, 5.00 to 1.00
(the test set forth in this clause (i) is referred to in this Indenture as
"Indebtedness Ratio Test"), (ii) such Indebtedness is unsecured, and (iii)
such Indebtedness has a final maturity date on or later than the final
maturity date of the Notes.
For the purpose of the Indebtedness Ratio Test, with respect to
any period during which a Permitted Acquisition or an Asset Disposition has
occurred (each a "Subject Transaction"), Consolidated Annualized EBITDA
shall be calculated with respect to such period on a pro forma basis
(including pro forma adjustments arising out of events which are directly
attributable to a specific transaction, are factually supportable and are
expected to have a continuing impact, in each case determined on a basis
which is consistent with Article 11 of Regulation S-X promulgated under the
Securities Act and as interpreted by the staff of the Commission, which
would include cost savings resulting from head count reduction, closure of
facilities and similar restructuring charges which pro forma adjustments
shall be certified on behalf of the Company by the chief financial officer
of the Company) using the historical financial statements of any business
so acquired or to be acquired or sold or to be sold and the consolidated
financial statements of the Company and its Subsidiaries which shall be
reformulated as if such Subject Transaction, and any Indebtedness incurred
or repaid in connection with the Subject Transaction, had been consummated
or incurred or repaid at the beginning of such period (and assuming that
such Indebtedness bears interest during any portion of the applicable
measurement period prior to the
45
relevant acquisition at the weighted average of the interest rates
applicable to outstanding revolving loans under the Senior Facilities
Incurred during such period).
(b) The foregoing provisions shall not apply to:
(i) the Incurrence by the Company and its Subsidiaries of
the Existing Indebtedness;
(ii) the Incurrence by the Company and its Subsidiaries
of the Indebtedness represented by the Notes (including without
limitation any issuance of PIK Notes in accordance with the
terms of this Indenture and the Notes) and the Guarantees of
the Notes or the Exchange Notes and the Exchange Guarantees of
the Exchange Notes, or under the Collateral Documents, as the
case may be;
(iii) the Incurrence by the Company of Subordinated
Indebtedness not to exceed $250,000,000 in principal amount or
liquidation amount since the date of this Indenture provided
that (x) the rate of interest or dividends per annum on such
Subordinated Indebtedness is less than or equal to 19%
compounded semi-annually, (y) has a final maturity or
redemption date at least six months later than the final
maturity date of the Notes (such six month date, the "Six Month
Date"), and (z) there is no principal amortization or sinking
fund prior to such Six Month Date;
(iv) the Incurrence by the Company or any of its
Subsidiaries of (x) Indebtedness represented by Capitalized
Lease Obligations, Sale and Leaseback Transactions permitted
under the terms of this Indenture, mortgage financings or
purchase money Indebtedness, in each case, Incurred for the
purpose of financing all or any part of the purchase price or
cost of construction or improvement of property, plant or
equipment used in the business of the Company or such
Subsidiary in an aggregate principal amount not to exceed
(without duplication) $60.0 million or (y) Acquired
Indebtedness Incurred in connection with a Permitted
Acquisition (other than Committed Acquisitions) provided such
Indebtedness was not Incurred in connection with or in
contemplation of such Permitted Acquisition, in an aggregate
principal amount not to exceed (without duplication) $40.0
million at any one time outstanding;
(v) the Incurrence by the Company or any of its
Subsidiaries of Permitted Refinancing Indebtedness in exchange
for, or the net proceeds of which are used to extend,
Refinance, renew, replace, defease or refund, Indebtedness that
was permitted by this Indenture to be Incurred;
(vi) subject to Section 5.04(e), the Incurrence of
intercompany or intra-group Indebtedness by:
(A) the Company in favor of any Guarantor or a DT
Subsidiary or by any Senior Guarantor in favor of the
Company or another Guarantor; provided, however, that (x)
if the Company becomes the obligor on such Indebtedness
after the date of this Indenture (other than Indebtedness
owing to the Subordinated Guarantor), such Indebtedness
is expressly subordinate to the payment in full of all
Obligations with respect to the Notes, (y) (1) any
subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person
other than the Company or the Subsidiaries making such
loans, as the case may be, and (2) any sale or other
transfer of any such Indebtedness to a
46
Person other than the Company or the Subsidiaries making such
loans, as the case may be, shall be deemed, in each case,
to constitute an Incurrence of new Indebtedness by the Company
or such Senior Guarantor, as the case may be;
(B) any BG Subsidiary in favor of the Company, the
Subordinated Guarantor or any other Wholly Owned
Subsidiary of the Company; provided, however, that (x)
any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a
Person other than the Company or the Subsidiaries making
such loans, and (y) any sale or other transfer of any
such Indebtedness to a Person other than the Company or a
BG Subsidiary or the Subordinated Guarantor, as the case
may be, shall be deemed, in each case, to constitute an
Incurrence of such Indebtedness by such BG Subsidiary;
(C) any DT Subsidiary in favor of the Company, any
other DT Subsidiary or a Senior Guarantor or any Wholly
Owned Subsidiaries of the Company, other than the BG
Subsidiaries; provided, however, that (x) any subsequent
issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than
the Company, any other DT Subsidiary, a Senior Guarantor
or any Wholly Owned Subsidiary of the Company, other than
a BG Subsidiary, as the case may be, and (y) any sale or
other transfer of any such Indebtedness to a Person other
than the Company, any other DT Subsidiary, a Senior
Guarantor or the Wholly Owned Subsidiary making such
loans, as the case may be, shall be deemed, in each case,
to constitute an Incurrence of such Indebtedness by the
DT Subsidiary;
(D) the Subordinated Guarantor in favor of any BG
Subsidiary, the Company or a Senior Guarantor provided,
however that (x) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness
being held by a Person other than the relevant BG
Subsidiary, the Company of the Senior Guarantor, and (y)
any sale or other transfer of any such Indebtedness to a
Person other than such relevant BG Subsidiary, the
Company or the Senior Guarantor shall be deemed to
constitute an Incurrence of Indebtedness by the
Subordinated Guarantor;
(E) Indebtedness represented by convertible loan
stock but only to the extent contemplated by clause (xx)
of the definition of Asset Dispositions or the conversion
of such convertible loan stock into Indebtedness; or
(F) the Company or a Subsidiary of the Company
which is effected as a Funding Passthrough or an Asset
Passthrough (as defined in the Senior Facilities) under
either of the Senior Facilities.
(vii) the Incurrence by the Company or any of its
Subsidiaries of Interest Swap Obligations that are Incurred for
the purpose of fixing or hedging interest rate risk with
respect to any floating rate Indebtedness that is permitted by
the terms of this Indenture to be outstanding;
(viii) the Incurrence:
(A) by the Subordinated Guarantor or BG
Subsidiaries (or by the Company and the Subordinated
Guarantor under the arrangements described in
47
paragraph (n) of the definition of Permitted Liens) of the
Indebtedness evidenced by the Senior Facilities
Documents; or
(B) by the Subordinated Guarantor and the Company
of the Guarantees of the Working Capital Facility,
provided that the principal amount of Indebtedness
Incurred under this clause (viii) may not exceed the
aggregate of:
(I) the maximum amount outstanding and amounts
available under the Senior Credit Facility and the
Working Capital Facility as of the Closing Date less
the amount of all term loan repayments and permanent
reductions actually made under Senior Credit Facility
or the Working Capital Facility;
(II) the principal amount arising under the
Working Capital Facility after the Closing Date as a
result of the interest payments being added to the
principal amount payable under this facility pursuant
to the provisions of the Working Capital Facility as
in effect at the Closing Date;
(III) in connection with a Refinancing of the
Working Capital Facility, an amount not to exceed 25%
of the amount being Refinanced; provided that the
Subordinated Guarantor and the BG Subsidiaries comply
with all applicable mandatory contribution obligations
under the Senior Facilities and the Company complies
with Section 5.11;
(IV) all fees, costs and expenses incurred in
connection with any Refinancings of either or both of
the Senior Facilities;
(V) additional Indebtedness in a principal
amount not to exceed(pound)320 million in the
aggregate so long as such additional Indebtedness is
Incurred under amendments to the Senior Credit
Facility and/or the Working Capital Facility, but not
as part of a Refinancing, provided however, once such
additional Indebtedness is initially increased, then
any subsequent Refinancing of either or both of the
Senior Facilities may include a Refinancing of such
additional Indebtedness (unless such Refinancing was
entered into in connection with the initial amendment
to the Senior Facilities effecting the increase); and
(VI) an amount equal to the amount of
Indebtedness permitted to be Incurred pursuant to
clause (iv)(x) above but only to the extent such
Indebtedness is Incurred for
48
the purpose of financing the purchase price of assets in
lieu of the exceptions under that clause;
notwithstanding any other provision of this Indenture, in
the event of any Refinancing of the Working Capital
Facility, the Indebtedness guaranteed by the Company under
the Working Capital Facility as of the Closing Date shall
not be increased except under clauses I, II, III, IV, V or
VI above and the Company shall not agree to any Obligations
in connection with any such Refinancing other than the
provision of representations, warranties and covenants
substantially similar to (or no more onerous than) those
provided in connection with the Working Capital Facility as
of the Closing Date, following consummation of the
Reorganization Plan;
(ix) the Incurrence by the Company or any of its
Subsidiaries of Indebtedness under Currency Agreements in respect
of the Company or such Subsidiary;
(x) the Incurrence by the Company or any of its Subsidiaries
of Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn
against insufficient funds in the Ordinary Course of Business;
(xi) the Incurrence by the Company or any of its
Subsidiaries of Indebtedness of the Company or any of its
Subsidiaries represented by letters of credit for the account of
the Company or such Subsidiary, as the case may be, in order to
provide security for workers' compensation claims, payment
obligations in connection with self-insurance or similar
requirements in the Ordinary Course of Business;
(xii) the Incurrence by the Company or any of its
Subsidiaries of Indebtedness in respect of performance bonds,
letters of credit, bankers' acceptances, workers' compensation
claims, surety or appeal bonds, payment obligations in connection
with self-insurance or similar obligations Incurred in the
Ordinary Course of Business;
(xiii) Indebtedness arising from agreements of the Company
or a Subsidiary of the Company (including the Exchange and
Registration Rights Agreement and similar contractual
undertakings) providing for indemnification and payment of
expenses relating to the registration under the Securities Act of
the sale of the notes and shares;
(xiv) the Incurrence by the Company or any Subsidiary of the
Company of Indebtedness constituting Restricted Payments to or
Permitted Investments in such Person permitted to be made
hereunder by the Company and its Subsidiaries;
(xv) the Incurrence of Indebtedness by the Company or any
Subsidiary of the Company as a result of its indemnification
permitted pursuant to Section 5.06(d) and Section 5.06(e);
(xvi) the incurrence of Indebtedness by the Company or any
Subsidiary of the Company which constitutes Permitted Overdraft
Borrowings; or
(xvii) Indebtedness incurred in connection with Committed
Acquisitions.
49
(c) Notwithstanding the foregoing, neither the Company nor any
Subsidiary shall incur any Indebtedness under Section 5.04(b) if the proceeds
thereof are used, directly or indirectly, to refinance any Subordinated
Obligations or Guarantor Subordinated Obligations unless such Indebtedness
shall be subordinated to the Notes to at least the same extent as such
Subordinated Obligations or Guarantor Subordinated Obligations (other than
intercompany Indebtedness Incurred pursuant to conversion of convertible loan
stock).
(d) For purposes of determining compliance with this Section 5.04,
in the event that an item of Indebtedness meets the criteria of more than one
of the categories of Indebtedness described in clauses (i) through (xvii) of
Section 5.04(b) or is entitled to be Incurred pursuant to the Indebtedness
Ratio Test set forth above, the Company shall, in its sole discretion,
classify (or later reclassify) or divide such item of Indebtedness in any
manner that complies with this Section 5.04 and will only be required to
include the amount and type of such Indebtedness in one of such clauses of
Section 5.04(b) or pursuant to Section 5.04(a). Accrual of interest, accretion
of accreted value, amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with the
same terms as the Indebtedness on which such interest is being paid and any
other issuance of securities paid-in-kind shall not be deemed to be an
Incurrence of Indebtedness for purposes of this Section 5.04. In addition, the
Company may, at any time, change the classification or division of an item of
Indebtedness (or any portion of such item of Indebtedness) to any other clause
of Section 5.04(b) or to Indebtedness properly incurred under Section 5.04(a)
provided that the Company would be permitted to Incur such item of
Indebtedness (or portion of such item of Indebtedness) pursuant to such other
clause of Section 5.04(b) or Section 5.04(a), as the case may be, at such time
of reclassification.
(e) In the event that the Subordinated Guarantor, any DT
Subsidiary or any BG Subsidiary Incurs Indebtedness directly from the Company
or any Senior Guarantor, then such Indebtedness shall be evidenced by an
Interco Note (other than in the case of the arrangements described in clause
(ii)(E) of the definition of "Asset Disposition" or clause (i)(C) of the
definition of "Permitted Investments"), which shall be pledged pursuant to the
Collateral Documents. In the event that any borrower (who is not a BG
Subsidiary or the Subordinated Guarantor) under an Interco Note transfers the
proceeds thereof to a BG Subsidiary or a DT Subsidiary, in each case, only to
the extent permitted under this Indenture, then except in the case of the
arrangements described in clause (ii)(E) of the definition of "Asset
Disposition" or clause (i)(C) of the definition of "Permitted Investments"
such transfer (and any subsequent transfer to any other BG Subsidiaries or DT
Subsidiaries) shall be in the form of debt.
Section 5.05. Asset Dispositions.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, consummate any Asset Disposition (provided that the sale,
lease, conveyance or other disposition of all or substantially all of the
assets of the Company and its Subsidiaries taken as a whole shall be governed
by the provisions of Section 4.03 and/or Article 6 and not by the provisions
of this Section 5.05, and provided further that an Asset Disposition resulting
from an involuntary loss, damage, destruction or condemnation of assets shall
not be subject to the provisions of this Section 5.05(a)) unless all of the
following conditions are met:
(i) at any time prior to a Note Registration, the aggregate
fair market value of Asset Dispositions (exclusive of any assets
subject to a Sale and Leaseback Transaction permitted under this
Indenture) in any Fiscal Year of the Company does not exceed 20%
of the Consolidated Tangible Assets at the beginning of such
Fiscal Year, provided that notwithstanding the foregoing, all or
substantially all of the assets of the Company's United Kingdom
broadcast business may be sold in any Fiscal Year if, in the
Fiscal Year in which such broadcast assets are sold, the aggregate
fair market value of all
50
other Asset Dispositions (exclusive of any assets subject to a
Sale and Leaseback Transaction permitted under this Indenture) in
that Fiscal Year (prior to the broadcast asset sale) do not exceed
5% of the Consolidated Tangible Assets at the beginning of such
Fiscal Year;
(ii) the consideration received is at least equal to the
fair market value of such assets determined at the time the
Company or such Subsidiary enters into a definitive agreement
governing such Asset Disposition (except as the result of any
foreclosure or sale by the lenders under the Senior Facilities);
(iii) at least 80% of the consideration received is cash or
Cash Equivalents (except that if the Asset Disposition is a
transfer of assets to a person providing Internal Services on an
outsourcing basis to a Subsidiary in order to facilitate the
provision of such Internal Services, then up to (pound)10.0
million of the consideration therefor may be offset against future
cash payments for such services); and
(iv) no Default or Event of Default then exists or shall
result from such Asset Disposition;
provided, however, that the amount of (x) any liabilities (as shown on the
Company's or such Subsidiary's most recent balance sheet) of the Company or
any Subsidiary (other than contingent liabilities and liabilities that are
by their terms subordinated to the Notes) that are assumed by the
transferee of any such assets pursuant to any arrangement releasing the
Company or such Subsidiary from further liability and (y) any securities,
notes or other obligations received by the Company or any such Subsidiary
from such transferee that are converted by the Company or such Subsidiary
into cash or Cash Equivalents within 90 days after the Asset Disposition
(to the extent of the cash or Cash Equivalents received), shall be deemed
to be cash for purposes of this provision.
(b) On or prior to (A) the dates which are the first interest
payment dates that are at least 365 days after the date on which Net Proceeds
from an Asset Disposition relating to assets of the Subordinated Guarantor or
any BG Subsidiary are received (which assets are not Collateral) upon which
Indebtedness under the Senior Facilities in an amount equal to such Net
Proceeds can be permanently reduced in accordance with the Senior Facilities
and (B) the date that is 365 days after the date on which Net Proceeds from
any other Asset Disposition are received (such assets, "DT Assets"), as the
case may be, the Company or the Subsidiary making such Asset Disposition or
the relevant obligor, as the case may be, may apply such Net Proceeds:
(i) to permanently reduce or service Indebtedness under the
Senior Facilities, other Senior Indebtedness or Guarantor Senior
Indebtedness or offer to purchase Notes (with the consent of the
Holders of such Notes to the extent required) or Indebtedness
ranking pari passu with the Notes in accordance with paragraph (c)
below,
(ii) subject to the exclusion in Section 5.05(d), to the
making of capital expenditures not to exceed $10.0 million in any
Fiscal Year, the unused portion of which shall not carry forward
to any succeeding Fiscal Year, or
(iii) to the extent such Net Proceeds represent proceeds
received from an insurance claim in amelioration of an involuntary
loss, damage, destruction or condemnation of assets, toward the
replacement, reinstatement and/or repair of such assets and/or the
satisfaction of business interruption losses in respect of which
the relevant insurance claim was made (or to refinance any
expenditure incurred in the
51
replacement, reinstatement and/or repair of such assets
and/or the satisfaction of business interruption losses);
provided, however, that in the event of a Triangle Asset Disposition or
other Asset Disposition of any Collateral or DT Assets, the Company or the
Subsidiary making such Asset Disposition of any Collateral or DT Assets
must make an offer to the Holders of Notes to purchase Notes and, if such
offer is accepted by a Holder, the Net Proceeds must be applied to purchase
the Notes of such Holder pursuant to clause (c) below; provided, however,
that in the event that the terms of the Diamond Notes or the Triangle Notes
or any Permitted Refinancing Indebtedness incurred in relation thereto
prohibit a distribution to the Company to make a repayment of Notes with
Net Proceeds, then the Diamond Entities or the Triangle Entities (as the
case may be) may use such proceeds to redeem or repurchase the Diamond
Notes or the Triangle Notes (as the case may be), to make capital
expenditures in such Diamond Entities or Triangle Entities, as the case may
be, in accordance with clause (b)(ii) above or to invest in Cash
Equivalents. Pending the final application of any such Net Proceeds, the
Company may temporarily reduce revolving credit Indebtedness under the
Senior Facilities or otherwise invest such Net Proceeds in any manner that
is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Dispositions that are not applied
or invested as provided in paragraph (b) or excluded by paragraph (d) shall be
deemed to constitute "Excess Proceeds." When the aggregate amount of Excess
Proceeds exceeds in any Fiscal Year (pound)10 million, the Company shall make
an Excess Proceeds Offer pursuant to Section 4.10 to purchase the maximum face
principal amount of Notes that may be purchased out of the Excess Proceeds, at
an offer price in cash in an amount equal to the Redemption Price applicable
on the date of purchase, as set forth in paragraph 5 of the Notes, plus
accrued and unpaid interest, on such Notes to the date of purchase, in
accordance with the procedures set forth in Section 4.10. To the extent that
the aggregate Redemption Price of Notes tendered pursuant to an Excess
Proceeds Offer is less than the Excess Proceeds, the Company may use any
remaining Excess Proceeds for general corporate purposes. If the aggregate
Redemption Price of Notes surrendered by Holders of such Notes exceeds the
amount of Excess Proceeds, the Company shall select the Notes to be purchased
on a pro rata basis. Upon completion of such offer to purchase, the amount of
Excess Proceeds shall be reset at zero. To the extent that (x) the provisions
of any Applicable Laws conflict with the provision of this Indenture relating
to such Excess Proceeds Offer, the Company shall comply with the Applicable
Laws and shall not be deemed to have breached its obligations described in
this Indenture by virtue of such compliance, and (y) the foregoing paragraphs
conflict with the provisions of the Collateral Documents, any sales and other
dispositions of Collateral by, on behalf of or at the direction of the
Collateral Agent, which sales or dispositions constitute an Asset Disposition,
shall be governed by the provisions of the Collateral Documents.
(d) Notwithstanding anything contained herein, an Asset
Disposition may be effected by or in relation to a BG Subsidiary where the
aggregate proceeds of which, when combined with all such excluded Asset
Dispositions by BG Subsidiaries in any twelve month period, do not exceed
(pound)10.0 million (excluding any proceeds received from an insurance claim
pursuant to paragraph (b)(iii)), and such proceeds will not be subject to the
provision of Section 5.05(b) or (c).
Section 5.06. Transactions with Affiliates. The Company will not
and will not permit any of its Subsidiaries directly or indirectly to enter
into or permit to exist any transaction (including the purchase, sale, lease
or exchange of any property) with any Affiliate or with any director, officer
or employee of the Company or any Guarantor (each of the foregoing, an
"Affiliate Transaction"), except:
(a) the performance of any of the Transaction Documents as in
effect as of the date of this Indenture and the consummation of the
transactions contemplated by the Transaction Documents
52
(including pursuant to any amendment of the Transaction Documents so long as
any such amendment is not disadvantageous to the Holders of the Notes in any
material respect);
(b) transactions (i) upon reasonable terms which are not
materially less favorable to the Company or such Subsidiary than would be
obtained in a comparable arm's length transaction with a Person that is not an
Affiliate and (ii) for which the Company delivers to the Trustee (A) with
respect to any Affiliate Transaction involving aggregate consideration in
excess of $10.0 million, a resolution of the Board of Directors of the Company
set forth in an Officer's Certificate certifying that such Affiliate
Transaction complies with clause (i) above and that such Affiliate Transaction
has been approved by a majority of the disinterested members of the Board of
Directors of the Company, and (B) with respect to any Affiliate Transaction or
series of Affiliate Transactions involving aggregate consideration in excess
of $40.0 million, an opinion as to the fairness of such Affiliate Transaction
to the Company from a financial point of view issued by an Independent
Qualified Party;
(c) as required by the Senior Facilities Documents for the
performance of the Senior Facilities Documents or as permitted by the Senior
Facilities Documents;
(d) payment of customary compensation to officers and employees
for services actually rendered to the Company or its Subsidiaries, including
expenses incurred in the Ordinary Course of Business and indemnity;
(e) payment of director's fees plus expenses and customary
indemnification of directors;
(f) the payment of the fees, expenses and other amounts payable by
the Company and its Subsidiaries in connection with the transactions
contemplated by the Transaction Documents (including payment of transaction
costs related to the Reorganization Plan and repayment in full of the DIP
Facility Claim) that were disclosed to the Purchasers on or prior to the
Closing Date;
(g) Restricted Payments permitted by Section 5.02 and Permitted
Investments (including transactions that become Affiliate Transactions as a
consequence of such Permitted Investment);
(h) Affiliate Transactions between or among: (i) the Company or a
Senior Guarantor and any Guarantor; (ii) the Subordinated Guarantor and any BG
Subsidiary; (iii) the Company, a Senior Guarantor or a DT Subsidiary and any
DT Subsidiary; (iv) a BG Subsidiary and any Wholly Owned BG Subsidiary or NTL
(South Hertfordshire) Ltd.; or (v) NTL Healthcare Trustees Ltd and any
Subsidiary to the extent that such Affiliate Transaction directly related to
the provision of medical and similar insurance for the benefit of any employee
of such Subsidiary;
(i) Affiliate Transactions not covered by clause (h) above between
or among the Company and its Subsidiaries upon reasonable terms which are not
materially less favorable to the Company or such Subsidiary than would be
obtained in a comparable arm's length transaction with a Person that is not an
Affiliate;
(j) transactions that become Affiliate Transactions as a
consequence of any Permitted Acquisition of Euroco Assets or Permitted
Investment in Euroco Assets;
(k) the issuance of payments, awards or grants, in cash or
otherwise, pursuant to, or the funding of, employment arrangements approved by
the Board of Directors of the Company in good
53
faith and customary loans and advances to employees of the Company or any
Subsidiary of the Company to the extent otherwise permitted in this Indenture;
(l) the steps or actions referred to in subparagraph (e)
("Cancellation of Certain Obligations") of Article VII(C)(1) ("Summary of
Other Provisions of the Plan") in the Disclosure Statement;
(m) transactions set forth on Schedule 5.06;
(n) transactions by the BG Subsidiaries with an Affiliate
disclosed in writing to, and approved by, the agent under the Senior
Facilities prior to the Closing Date;
(o) transactions by the BG Subsidiaries with an Affiliate in
respect of either Subordinated Funding (as that term is defined in the Senior
Facilities, except that paragraph (a) of that definition shall not apply) or
Parent Funding (as that term is defined in the Senior Facilities, except that
paragraph (a) of that definition shall not apply);
(p) insurance arrangements entered into by a Subsidiary or the
Company with the Captive Insurance Company;
(q) tax sharing arrangements and agreements to surrender tax
losses entered into by a Subsidiary with an Affiliate and asset dispositions
relating to the capitalization of intercompany receivables permitted by the
terms of this Indenture provided that any such arrangement or agreement
entered into after the Closing Date by any BG Subsidiary is disclosed to the
agent under the Senior Facilities on or prior to being entered into;
(r) transactions entered into by a Subsidiary with an Affiliate
relating to the provision of Intra-Group Services;
(s) transactions with Cable & Wireless in regard to the
Transaction Agreement; and
(t) transactions relating to Excess Capacity Network Services
provided that the price payable by an Affiliates in relation to such Excess
Capacity Network Services is no less than the cost incurred by the relevant
Subsidiary in providing Excess Capacity Network Services.
Section 5.07. Limitation on Liens. (a) The Company may not, and
may not permit any Subsidiary of the Company to, incur or suffer to exist any
Lien (other than Permitted Liens) on or with respect to any property or assets
now owned or hereafter acquired to secure any Indebtedness (i) without making,
or causing such Subsidiary to make, effective provision for securing the Notes
prior to such Indebtedness as to such property or assets for so long as such
Indebtedness will be so secured, and (ii) unless the Company shall have
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel,
each stating that the incurrence of such Lien complies with this Indenture.
(b) It is understood that the rights of the Collateral Agent under
the Collateral Documents, to the extent such rights are in respect of
Subsidiaries that are Senior Guarantors, are senior to the rights of the
lenders under the Senior Facilities in respect of such Subsidiaries.
(c) Notwithstanding any other provision of this Indenture, the
Company may not, and may not permit (i) any Triangle Entity to incur or suffer
to exist any Lien (other than Permitted Liens) on or with respect to any
property or assets now owned or hereafter acquired to secure any Indebtedness
54
of any Triangle Entity or (ii) any Subsidiary to incur or suffer to exist any
Lien on or with respect to any shares of capital stock of any Triangle Entity
(other than Permitted Liens).
Section 5.08. Limitation on Issuances and Sales of Capital Stock
of Subsidiaries. The Company shall not, and shall not permit any Subsidiary of
the Company to, transfer, convey, sell, issue, lease or otherwise dispose of
any Capital Stock of any Subsidiary of the Company to any Person (other than
an issuance, transfer, conveyance, sale or lease of Capital Stock by (i) a
Subsidiary of the Company to a Senior Guarantor or the Company, (ii) a BG
Subsidiary to the Company, the Subordinated Guarantor or a Senior Guarantor,
or by a BG Subsidiary to another BG Subsidiary, (iii) a DT Subsidiary to
another DT Subsidiary, the Company or a Senior Guarantor, (iv) a Wholly Owned
Subsidiary to its Parent, or (v) to satisfy any Applicable Law relating to
national shareholders qualifications), unless (a) such transfer, conveyance,
sale, lease or other disposition is of all the Capital Stock of such
Subsidiary and its Subsidiaries, and (b) the Net Proceeds from such transfer,
conveyance, sale, lease or other disposition are applied in accordance with
the provisions of Section 5.05; provided, however, that this Section 5.08
shall not restrict any pledge (or any foreclosure thereon) of Capital Stock of
the Company and its Subsidiaries which is a Permitted Lien. The Company and
its Subsidiaries shall not be required to comply with this Section 5.08 to the
extent such transfer, conveyance, sale, issue, lease or other disposal is
required under the terms of a joint venture, partnership agreement or other
similar arrangements governing the Existing Investments as such agreements are
in force on the Closing Date.
Section 5.09. Sale and Leaseback Transactions. The Company shall
not, and shall not permit any of its Subsidiaries to, enter into any Sale and
Leaseback Transaction; provided, however, that the Company and its
Subsidiaries may (a) enter into a Sale and Leaseback Transaction if (i) the
Company or such Subsidiary could have Incurred Indebtedness in an amount equal
to the Attributable Debt relating to such Sale and Leaseback Transaction
pursuant to the Indebtedness Ratio Test set forth in Section 5.04(a), (ii) the
gross cash proceeds of such Sale and Leaseback Transaction are at least equal
to the fair market value (as determined in good faith by the Board of
Directors) of the property that is the subject of such Sale and Leaseback
Transaction and (iii) the Company or such Subsidiary applies the proceeds of
such transaction in compliance with, the provisions of Section 5.05 (unless
the Sale and Leaseback Transaction in question is excluded from the definition
of Asset Disposition by clauses (xi) or (xii) of such definition) or (b) enter
into Sale and Leaseback Transactions which are in the ordinary course of the
Company's or such Subsidiary's business consistent with past or industry
practice and at market rates with respect to equipment acquired by the Company
and its Subsidiaries after the Closing Date if the proceeds of any such Sale
and Leaseback Transaction shall be entirely in cash and shall not be less than
100% of the fair market value of the equipment being sold (determined in good
faith by the Company); provided that at the time of and immediately after
giving effect to any such Sale and Leaseback Transaction, the aggregate fair
market value of all equipment so sold or disposed of in connection with such
Sale and Leaseback Transactions covered by this clause (b) shall not exceed an
amount equal to (pound)60.0 million.
Section 5.10. Prohibition on Incurrence of Senior Subordinated Debt.
Other than the Guarantor Senior Indebtedness, the Subordinated Guarantor shall
not, and Company shall not permit the Subordinated Guarantor to, Incur or
suffer to exist Indebtedness that is contractually or expressly senior in
right of payment to the Subordinated Guarantor's Guarantee of the Notes and
subordinated in right of payment to any other Indebtedness of the Subordinated
Guarantor.
Section 5.11. Excess Refinancing Proceeds. In the event that the
Company or any Subsidiary incurs Permitted Refinancing Indebtedness or the
Working Capital Facility is Refinanced and there are any Excess Refinancing
Proceeds, the Company shall make an Excess Proceeds Offer pursuant to Section
4.10 to purchase the maximum face principal amount of Notes that may be
purchased out of the Excess Refinancing Proceeds, at an offer price in cash in
an amount equal to the Redemption Price
55
applicable on the date of purchase (as set forth in paragraph 5 of the Notes
(Exhibit A hereto)), plus accrued and unpaid interest on such Notes to the
date of purchase, in accordance with the procedures set forth in Section 4.10
unless such Excess Proceeds Offer is required to be applied in another manner
under the terms of the Senior Facilities. To the extent that the aggregate
Redemption Price of Notes tendered pursuant to an Excess Proceeds Offer is
less than the Excess Refinancing Proceeds, the Company may use the excess for
general corporate purposes.
Section 5.12. Conduct of Business. The Company shall not and shall
not permit any of its Subsidiaries directly or indirectly to engage in any
business other than business of the type in which the Company and its
Subsidiaries were engaged on the date of this Indenture or any business
reasonably related, complementing or ancillary to said business or a
reasonable expansion of said business.
Section 5.13. Investment Company Act. The Company shall not and shall
not permit any of its Subsidiaries to become an investment company subject to
registration under the Investment Company Act of 1940, as amended.
ARTICLE 6.
MERGER, CONSOLIDATION, SALE OF ASSETS, ETC.
-------------------------------------------
Section 6.01. Conditions of Company Merging, Consolidating, Selling
Assets, etc. If the Company consolidates or merges with or into (whether or
not the Company is the surviving corporation), or directly and/or indirectly
through its Subsidiaries sells, assigns, transfers, leases, conveys or
otherwise disposes of all or substantially all of the properties and assets of
the Company and its Subsidiaries taken as a whole in one or more related
transactions, to any other Person, the Company must include, and must cause
its Subsidiaries to include, as applicable, a condition to the closing of such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition, the Refinancing of the Indebtedness represented by all Notes
outstanding on the date of such closing, except that in the case where (x) the
transaction described above constitutes a Change of Control and the Company
has complied with Section 4.09 or (y) the transaction described above is a
merger or consolidation of the Company effected solely in order to change the
jurisdiction of incorporation of the Company from the State of Delaware to a
company incorporated in England and Wales, then no Refinancing shall be
required under this Article 6.
ARTICLE 7.
EVENTS OF DEFAULT; REMEDIES
---------------------------
Section 7.01. Events of Default. An Event of Default shall exist upon
the occurrence of any of the following specified events (each an "Event of
Default"):
(a) the Company defaults in the payment when due of interest (and
Additional Amounts, if applicable), if any, on the Notes and such default
continues for either (i) a period of ten (10) days prior to a Note
Registration or (ii) thirty (30) days after a Note Registration;
(b) the Company defaults in the payment when due of the principal
amount of or premium, if any, on the Notes when the same becomes due and
payable at its Maturity, upon redemption or otherwise;
(c) the Company or any of its Subsidiaries fails to observe or
perform any other covenant or other agreement in this Indenture, the Purchase
Agreement, the Notes or the Collateral
56
Documents and such failure continues for a period of thirty (30) days after
any senior officer of the Company has obtained knowledge of the same;
(d) any representation, warranty, certification or statement made
by the Company or any Subsidiary of the Company in respect of the Purchase
Agreement or in any statement or certificate at any time given by or on behalf
of the Company or any of its Subsidiaries in writing pursuant to the Purchase
Agreement shall be false in any material respect on the date as of which made
or deemed to have been made; and, if the circumstances giving rise to such are
capable of being cured or remedied, the Company or Subsidiary of the Company
has not cured or remedied such representation, warranty, certification or
statement, within thirty (30) days of the Company obtaining knowledge of such
representation, warranty, certification or statement becoming false in any
material respect;
(e) (i) an event of default occurs with respect to the Diamond
Notes or the Triangle Notes (or any Refinancing thereof), (ii) a Senior
Default occurs which results in the acceleration of Indebtedness under the
Senior Credit Facility or the Working Capital Facility, or (iii) a default
occurs under any mortgage, indenture or agreement or instrument (other than
defaults described in clause (i) or (ii) above) 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 of its Subsidiaries (or payment of which
is Guaranteed by the Company or any of its Subsidiaries), whether such
Indebtedness or Guarantee now exists, or is created after the date of this
Indenture and such default becomes an event of default under such mortgage,
indenture, agreement or other instrument entitling the lender thereunder to
pursue remedies in respect of such event of default and the principal amount
of all such Indebtedness under this clause (iii) as to which a default
described in this clause (iii) has occurred aggregates (A) in the case of
Indebtedness of any BG Subsidiary, (pound)20.0 million outstanding or (B) in
the case of Indebtedness of the Company, any Diamond Entity, any Triangle
Entity or any other Subsidiary of the Company (other than a BG Subsidiary),
(pound)5.0 million outstanding;
(f) a final judgment or final judgments for the payment of money
are entered by a court or courts of competent jurisdiction against the Company
or any of its Subsidiaries and such judgment or judgments remain unpaid and
undischarged for a period (during which execution shall not be effectively
stayed) of 60 days, and is not adequately covered by insurance or indemnities
which have been cash collateralized; provided that the aggregate of all such
undischarged or uninsured judgments exceeds $25.0 million;
(g) the Company or any of its Subsidiaries pursuant to or within
the meaning of any Bankruptcy Law (other than pursuant to or in connection
with the Reorganization Plan):
(i) commences a voluntary case or proceeding,
(ii) consents to the entry of a decree or order for relief against
it in an involuntary case or proceeding or to the commencement of any
case or proceeding against it,
(iii) consents to the filing of a petition or to the appointment
of or taking possession by a Custodian (as defined below) of it or for
all or any substantial part of its property,
(iv) makes or consents to the making of a general assignment for
the benefit of its creditors generally,
57
(v) generally is not paying, or admits in writing that it is not
able to pay its debts as they become due, or
(vi) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law which has not been withdrawn, dismissed or
reversed that:
(A) is for relief against the Company or any of its
Subsidiaries in an involuntary case or proceeding;
(B) appoints a Custodian of the Company or any of its
Subsidiaries or for all or any substantial part of the property of
the Company or any of its Subsidiaries or approves as properly
filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of any of the foregoing; or
(C) orders the winding up or liquidation of the Company or
any of its Subsidiaries or adjudges any of them as bankrupt or
insolvent;
and any such order or decree remains unstayed and in effect for sixty (60)
consecutive days; provided, that to the extent any of the events described
in paragraphs (i) to and including (vi) above arise in connection with (a)
a Subsidiary with consolidated assets (excluding intra-group notes or
receivables) of less than (pound)20.0 million or (b) a solvent liquidation
or reorganization of a Wholly Owned Subsidiary, none of such events shall
constitute an Event of Default under this clause (g);
(h) any Guarantee of any Guarantor ceases to be in full force and
effect (other than in accordance with its terms or pursuant to an express
release thereof) or any Guarantee of any Guarantor is declared to be null and
void and unenforceable (other than in accordance with its terms or as a result
of payment in full of the Obligations secured by such Guarantee or Guarantor
or pursuant to an express release thereof) or any Guarantee of any Guarantor
is found to be invalid or any Guarantor denies its liability under its
Guarantee (other than by reason of release of a Guarantor in accordance with
the terms of this Indenture or the Collateral Documents or as a result of
payment in full of the Obligations secured by such Guarantee or Guarantor); or
(i) any Collateral Document shall cease, for any reason (other
than by reason of express release thereof pursuant to Section 12.03 or an
automatic release thereof pursuant to the terms of the Indenture and the
Collateral Documents), to be in full force and effect, or the Company or any
Guarantor shall so assert in writing, or any Lien created by any of the
Collateral Documents in favor of the Holders shall cease to be enforceable and
of the same effect and priority purported to be created thereby other than by
reason of express release thereof.
The term "Custodian" means any custodian, receiver, trustee,
assignee, liquidator, sequestrator or similar official under any Bankruptcy
Law.
Section 7.02. Acceleration. Subject to Section 7.03, if an Event
of Default (other than an Event of Default specified in Section 7.01(g) with
respect to the Company) occurs and is continuing, the Trustee by notice to the
Company or the Holders of 33 1/3% or more in principal amount of the then
outstanding Notes may declare the principal of and accrued but unpaid interest
and any Special Interest on all the Notes to be due and payable immediately.
If an Event of Default specified in Section 7.01(g) with respect to the
Company occurs, the principal of and interest on all the Notes shall ipso
facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. The Holders of a majority
in face principal amount at maturity of the outstanding Notes by
58
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 of
or interest on Notes that has become due solely because of acceleration. No
such rescission shall affect any subsequent Default or impair any right
consequent to such rescission.
Section 7.03. Defaults.
(a) If an Event of Default under Section 7.01(e) shall have
occurred, but the default shall have been cured or waived, or any acceleration
shall have been rescinded, then such cure, waiver or rescission shall
similarly and automatically apply to the Event of Default under Section
7.01(e).
(b) If an Event of Default has occurred and is continuing, the
Notes will accrue interest at 2% per annum plus the stated interest rate on
the Notes, until such time as no Event of Default shall be continuing (to the
extent that the payment of such interest shall be legally enforceable).
(c) The Company shall give prompt notice to the Trustee and the
Holders of the occurrence of any Event of Default and the rescission, cure or
waiver of any Event of Default under Section 7.01(e).
Section 7.04. Other Remedies. Notwithstanding any other provision
of this Indenture, if an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of
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 in its own name and as
trustee of an express trust 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. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
Section 7.05. Waiver of Past Defaults. Subject to clause (a) of
Section 7.03, the Holders of a majority in face principal amount at maturity
of the Notes by notice to the Trustee may waive an existing Default and its
consequences, except (a) a Default in the payment of principal of or interest
on a Note, (b) a Default arising from the failure to redeem or purchase any
Note when required pursuant to the terms of this Indenture, (c) a Default in
respect of a covenant, agreement, representation or warranty that under
Section 10.02 cannot be amended without the consent of each Holder affected
(which may be waived by the consent of each Holder), (d) a Default in respect
of a covenant, agreement, representation or warranty that under Section 10.02
cannot be amended without the consent of the Holders of 67% or more in face
principal amount of the then outstanding Notes (which may be waived by the
Holders of such 67% amount), or (e) a Default in respect of a covenant,
agreement, representation or warranty that under Section 10.02 cannot be
amended without the consent of the Holders of 80% or more in face principal
amount of the then outstanding Notes (which may be waived by the Holders of
such 80% amount). When a Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or impair any
consequent right.
Section 7.06. Control by Majority. The Holders of a majority in
face principal amount of the outstanding Notes may direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with
law or this Indenture or, subject to Section 8.01, that the Trustee
determines is unduly prejudicial to the rights of other Holders or would
involve the Trustee in personal liability; provided, however, that the
Trustee may take any other action
59
deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all
losses and expenses caused by taking or not taking such action.
Section 7.07. Limitation on Suits. (a) Except to enforce the right
to receive payment of principal of or interest on the Notes when due, no
Holder may pursue any remedy with respect to this Indenture or the Notes
unless the Holder has previously given to the Trustee written notice
stating that an Event of Default has occurred and is continuing;
(i) the Holders of at least 50% in face principal amount
at maturity of the outstanding Notes make a written request to
the Trustee to pursue the remedy;
(ii) such Holder or Holders offer to the Trustee
reasonable security or indemnity against any loss, liability or
expense;
(iii) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of security
or indemnity; and
(iv) the Holders of a majority in face principal amount
at maturity of the outstanding Notes do not give the Trustee a
direction inconsistent with the request during such 60-day
period.
(b) 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 7.08. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and any Special Interest and
interest on the Notes held by such Holder, on or after the respective due
dates expressed or provided for in the Notes, 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 such Holder.
Section 7.09. Collection Suit by Trustee. If an Event of
Default specified in Section 7.01(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 or any other obligor on the Notes for the whole
amount then due and owing (together with interest on overdue portion of the
principal amount and (to the extent lawful) on any unpaid interest at the
rate provided for in the Notes) and the amounts provided for in Section 8.07.
Section 7.10. 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 or any
Subsidiary or Guarantor, their creditors or their property and, unless
prohibited by law or applicable regulations, may vote on behalf of the
Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial
proceeding is authorized by each Holder to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and its counsel, and any other amounts due the
Trustee under Section 8.07.
Section 7.11. Priorities. If the Trustee collects any money or
property pursuant to this Article 7, it shall pay out the money or property
in the following order:
60
FIRST: to the Trustee for amounts due under Section 8.07;
SECOND: to Holders for amounts due and unpaid on the
Notes for principal and interest, ratably, and any Special
Interest without preference or priority of any kind, according
to the amounts due and payable on the Notes for principal, any
Special Interest and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 7.11. At least 15 days before
such record date, the Trustee shall mail to each Holder and the Company a
notice that states the record date, the payment date and amount to be paid.
Section 7.12. 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 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 7.12 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 7.07 or a suit by Holders of more than 50% in
principal amount at maturity of the Notes.
ARTICLE 8.
TRUSTEE
-------
Section 8.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise 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 person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
61
(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 in 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.
(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 Section
8.01(b);
(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 7.06; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to Sections 8.01(a), 8.01(b) and 8.01(c).
(e) 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.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall
extend to the Registrar, Notes Custodian, Paying Agent and an
authenticating agent and be subject to the provisions of this Section 8.01
and to the provisions of the TIA.
Section 8.02. Rights of Trustee. (a) The Trustee may rely on
any document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact
or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good faith
in reliance on the Officer's Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers; provided, however, that the Trustee's conduct does
not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, debenture, note or other paper or document or as to whether or not an
Event of Default shall have occurred unless requested in writing to do so
by the Holders of not less than a majority in principal amount at maturity
of the Notes at the time outstanding, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney.
62
(g) The permissive rights of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty unless so specified in this
Indenture.
Section 8.03. 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 its Affiliates with the same
rights it would have if it were not Trustee. Any Paying Agent, Registrar or
co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 8.10 and 8.11.
Section 8.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity, priority or
adequacy of this Indenture, any Guarantee 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 or any Guarantor
in this Indenture or in any document issued in connection with the sale of
the Notes or in the Notes other than the Trustee's certificate of
authentication. The Trustee shall not be responsible for any conduct or
omission by the Company or any Guarantor or the occurrence of any Event of
Default.
Section 8.05. Notice of Defaults. If a Default occurs and is
continuing and if it is actually known to the Trustee, the Trustee shall
mail to each Holder notice of the Default ("Notice of Default") within 30
days after it is known to a Trust Officer or written notice of it is
received by the Trustee. Except in the case of a Default in payment of
principal of or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note, if any), 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. If a Notice of Default has been given to the Company by the
Holders, a copy of such Notice of Default shall be delivered by the Company
to the Trustee. Except as expressly provided in this Indenture, the Trustee
shall not be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements in this
Indenture, in any other Transaction Document or in any of the documents
executed in connection with the Notes, or as to the existence of a Default
or Event of Default under this Indenture or under any other Transaction
Document or in any of the documents executed in connection with the Notes,
and may assume that no such Default or Event of Default has occurred unless
it has actual knowledge or received written notice of such Default or Event
of Default.
Section 8.06. Reports by Trustee to Holders. As promptly as
practicable after each year following the date of this Indenture, and in
any event prior to July 15 in each year, the Trustee shall mail (if
required by section 313(a) of the TIA) to each Holder a brief report dated
as of the preceding year that complies with section 313(a) of the TIA. The
Trustee shall also comply with section 313(b) of the TIA.
Following a Note Registration, a copy of each report at the
time of its mailing to Holders shall be filed with the Commission and each
stock exchange (if any) on which the Notes are listed. The Company agrees
to notify promptly the Trustee whenever the Notes become listed on any
stock exchange and of any delisting of the Notes.
Section 8.07. Compensation and Indemnity. The Company shall pay
to the Trustee from time to time reasonable and documented compensation for
its services. 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 and documented out-of-pocket
expenses incurred or made by it, including costs of collection, in addition
to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Company and each
Guarantor, jointly and severally, shall
63
indemnify the Trustee against any and all loss, liability or expense
(including reasonable and documented attorneys' fees) incurred by or in
connection with the administration of this trust and the performance of its
duties hereunder. The Trustee shall notify the Company of any claim for
which it may seek indemnity promptly upon obtaining actual knowledge of
such claim; provided, however, that any failure to so notify the Company
shall not relieve the Company of its indemnity obligations hereunder. The
Company shall defend the claim and the indemnified party shall provide
reasonable cooperation at the Company's expense in the defense. Such
indemnified parties may have separate counsel and the Company and the
Guarantors as applicable shall pay the fees and expenses of such counsel;
provided, however, that the Company shall not be required to pay such fees
and expenses if it assumes such indemnified parties' defense and, in such
indemnified parties' reasonable judgment, there is no conflict of interest
between the Company and the Guarantors, as applicable, and such parties in
connection with such defense. The Company need not pay for any settlement
made without its consent and the Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by an indemnified
party through such party's own misconduct or negligence.
To secure the Company's payment obligations in this Section
8.07, the Trustee shall have a lien prior to the Notes on all money or
property held or collected by the Trustee other than money or property held
in trust to pay principal of and interest and Special Interest, if any, on
particular Notes.
The Company's obligations pursuant to this Section 8.07 shall
survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any Bankruptcy Law or the resignation
or removal of the Trustee. Without prejudice to any other rights available
to the Trustee under Applicable Law, when the Trustee incurs expenses after
the occurrence of a Default specified in Section 7.01(g) with respect to
the Company, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
All indemnifications and releases from liability granted
hereunder to the Trustee shall extend to its officers, directors,
employees, agents, successors and assigns.
Section 8.08. Replacement of Trustee. (a) The Trustee may
resign at any time by so notifying the Company in writing in accordance
with the provisions of Section 12.07. Any resignation of the Trustee shall
be effective immediately upon receipt by the Company of such notice (unless
such notice shall specify a later time as the effective time of such
resignation, in which case such later time shall be the effective time),
and the resignation of the Trustee shall not prejudice any rights of the
Trustee to receive any compensation, any reimbursement of any expenses or
any indemnity or right to being defended and held harmless under this
Indenture. The Holders of a majority in principal amount at maturity of the
Notes may remove the Trustee by so notifying the Trustee and may appoint a
successor Trustee. The Company shall remove the Trustee if:
(i) the Trustee fails to comply with Section 8.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of
the Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount at maturity of the Notes and such
Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in
64
such event being referred to in this Indenture as the retiring Trustee), the
Company shall promptly appoint a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company and shall sign a
subordination agreement with the Working Capital Banks (or their security
trustee) or equivalent document with regard to a permitted Refinancing of
the Working Capital Facility in substantially the same form as the
subordination agreement signed by the retiring Trustee. 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 8.07.
(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or
the Holders of 50% in principal amount at maturity of the Notes may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(e) If the Trustee fails to comply with Section 8.10, 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.
(f) Notwithstanding the replacement of the Trustee pursuant to
this Section 8.08, the Company's obligations under Section 8.07 shall
continue for the benefit of the retiring Trustee.
Section 8.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers or sells all or
substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion, sale or consolidation to the Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee, and
deliver such Notes so authenticated; and in case at that time any of the
Notes shall not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of any predecessor hereunder or
in the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have.
Section 8.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA section 310(a). The Trustee shall
have, or in the case of a corporation included in a bank holding company
system, the related bank holding company shall have, a combined capital and
surplus of at least $50.0 million as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA section 310(b),
subject to its right to apply for a stay of its duty to resign under the
penultimate paragraph of TIA section 310(b); provided, however, that there
shall be excluded from the operation of TIA section 310(b)(1) any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA section 310(b)(1) are met.
65
Section 8.11. Preferential Collection of Claims Against the
Company. The Trustee shall comply with 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.
ARTICLE 9.
DISCHARGE OF INDENTURE; DEFEASANCE
----------------------------------
Section 9.01. Discharge of Liability on Notes; Defeasance. (a)
When (i) all outstanding Notes (other than Notes replaced or paid pursuant
to Section 2.07) have been canceled or delivered to the Trustee for
cancellation or (ii) all outstanding Notes have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article 3 of this Indenture, and the Company irrevocably
deposits with the Trustee funds in an amount sufficient, or U.S. Government
Obligations, the principal of and interest on which will be sufficient, or
a combination of said funds and U.S. Government Obligations sufficient, in
the written opinion of a nationally recognized firm of independent public
accountants delivered to the Trustee (which delivery shall only be required
if U.S. Government Obligations have been so deposited), to pay the
principal of and interest on the outstanding Notes when due at maturity or
upon redemption of all outstanding Notes, including interest on such Notes
to maturity or such Redemption Date (other than Notes replaced or paid
pursuant to Section 2.07), and Special Interest, if any, and if in either
case the Company pays all other sums payable hereunder by the Company, then
this Indenture shall, subject to Section 9.01(c), cease to be of further
effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officer's Certificate
and an Opinion of Counsel and at the cost and expense of the Company.
(b) Subject to Sections 9.01(c) and 9.02, the Company at any
time may terminate (i) all of its obligations under the Notes and this
Indenture ("legal defeasance option") or (ii) its obligations under
Sections 4.02, 4.03, 4.04, 4.06, 4.08, 4.09, 4.10, 4.13, 5.02, 5.03, 5.04,
5.05, 5.06, 5.07, 5.08, 5.09, 5.10, 5.11, 5.12 and 5.13 and the operation
of 7.01(c), 7.01(d), 7.01(e), 7.01(f) and 7.01(g) ("covenant defeasance
option"). The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of
the Notes may not be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Notes may not be
accelerated because of an Event of Default specified in Section 7.01(c),
7.01(d), 7.01(e), 7.01(f) or 7.01(g).
Upon satisfaction of the conditions set forth in this Indenture
and upon request of the Company, the Trustee shall acknowledge in writing
the discharge of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 8.07, 8.08 and
in this Article 9 shall survive until the Notes have been paid in full.
Thereafter, the Company's obligations in Sections 8.07, 9.04 and 9.05 shall
survive.
Section 9.02. Conditions to Defeasance.
(a) The Company may exercise its legal defeasance option or its
covenant defeasance option only if:
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(i) the Company irrevocably deposits in trust with the
Trustee money in an amount sufficient, or U.S. Government
Obligations the principal of and interest on which will be
sufficient, or a combination of such money and U.S. Government
Obligations sufficient, to pay the principal of and interest on
the Notes when due at maturity or redemption, as the case may
be, including interest on such Notes to maturity or such
Redemption Date and Special Interest, if any;
(ii) the Company delivers to the Trustee a certificate
from a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal and
interest when due and without reinvestment on the deposited
U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts
as will be sufficient to pay principal and interest when due on
all the Notes to maturity or redemption, as the case may be;
(iii) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that on the 91st day following
the deposit, the trust funds will not be subject to the effect
of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally;
(iv) the deposit does not constitute a default under any
other agreement binding on the Company;
(v) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the deposit
does not constitute, or is qualified as, a regulated investment
company under the Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (1) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (2) since the date of this Indenture there has been
a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders 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;
(vii) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders will not recognize
income, gain or loss for federal income tax purposes as a
result of such covenant 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 covenant
defeasance had not occurred; and
(viii) the Company delivers to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the
Notes as contemplated by this Article 9 have been complied
with.
(b) Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Notes at a
future date in accordance with Article 3.
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Section 9.03. Application of Trust Money. The Trustee shall hold
in trust money or U.S. Government Obligations deposited with it pursuant to
this Article 9. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Notes. Money
and securities so held in trust are not subject to Section 11.05.
Section 9.04. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any money or
U.S. Government Obligations held by it as provided in this Article 9 which,
in the written opinion of a nationally recognized firm of independent
public accountants delivered to the Trustee (which delivery shall only be
required if U.S. Government Obligations have been so deposited), are in
excess of the amount provided in this Article 9 which would then be
required to be deposited to effect an equivalent discharge or defeasance in
accordance with this Article 9.
If money for the payment of principal of or interest on the Notes
has been deposited with the Trustee or Paying Agent and remains unclaimed
for two years after such amount is due and payable, the Trustee or Paying
Agent shall pay the money back to the Company at its written request unless
an abandoned property law designates another Person. After any such
payment, the Trustee and the Paying Agent shall have no further liability
for such funds and Holders entitled to the money must look only to the
recipient and not to the Trustee for payment.
Section 9.05. Indemnity for Government Obligations. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations
or the principal and interest received on such U.S. Government Obligations.
Section 9.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
this Article 9 by reason of any legal proceeding or by reason of any order
or judgment of any court or Governmental Authority enjoining, restraining
or otherwise prohibiting such application, the Company's obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 9 until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with this Article 9; provided,
however, that, if the Company has made any payment of interest on principal
of any Notes because of 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 or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE 10.
AMENDMENTS
----------
Section 10.01. Without Consent of Holders.
(a) The Company, the Guarantors and the Trustee may amend this
Indenture, the Notes or the Collateral Documents without notice to or
consent of any Holder:
(i) to cure any ambiguity, omission, defect or
inconsistency;
(ii) to provide for uncertificated Notes in addition to
or in place of certificated Notes; provided, however, that the
uncertificated Notes are issued in registered form for purposes
of section 163(f) of the Code;
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(iii) to make any change in Section 11.05 that would
limit or terminate the benefits available to any holder of
Senior Indebtedness (or any Representative of such Senior
Indebtedness) under Section 11.05;
(iv) to add additional Guarantees with respect to the
Notes;
(v) to further secure the Notes;
(vi) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power in
this Indenture conferred upon the Company;
(vii) to comply with any requirement of the Commission in
connection with qualifying, or maintaining the qualification
of, this Indenture under the TIA;
(viii) to make any change that does not adversely affect
the rights of any Holder;
(ix) to provide for the issuance of the Exchange Notes,
which shall have terms substantially identical in all material
respects to the Initial Notes (except that the transfer
restrictions and provisions relating to the payment of Special
Interest contained in the Initial Notes shall be modified or
eliminated, as appropriate), and which shall be treated,
together with any outstanding Initial Notes, as a single issue
of securities; or
(x) to change the name or title of the Notes and any
conforming changes related to the Notes.
(b) No amendment under this Section 10.01 may make any change
that adversely affects the rights under Section 11.05 of any holder of
Senior Indebtedness then outstanding unless the Representative under the
Senior Facilities or, in the absence of said Representatives, the holders
holding a majority in principal amount of such Senior Indebtedness consent
to such change.
After an amendment under this Section 10.01 becomes effective,
the Company shall mail to Holders a notice briefly describing such
amendment. The failure to give such notice to all Holders, or any defect in
such notice, shall not impair or affect the validity of an amendment under
this Section 10.01.
Section 10.02. With Consent of Holders. (a) The Company, the
Guarantors and the Trustee may amend this Indenture, the Notes or the
Collateral Documents and the Trustee may grant any consent in relation to any
provision of the Transaction Documents without prior notice to any Holder but
with the written consent of the Holders of at least a majority in face
principal amount at maturity of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange for the Notes).
However:
(i) without the consent of the Holders of 67% or more in
face principal amount of the then outstanding Notes, an
amendment may not be made and a consent may not be given with
respect to:
(A) Section 4.02 and related definitions of this
Indenture;
(B) Section 4.03 and related definitions of this
Indenture to the extent the amendment or consent relates
to a Remaining Subsidiary;
69
(C) Section 4.04 and related definitions of this
Indenture;
(D) Section 4.05 and related definitions of this
Indenture;
(E) Section 4.06 and related definitions of this
Indenture;
(F) Section 4.07 and related definitions of this
Indenture;
(G) Section 4.08 and related definitions of this
Indenture;
(H) Section 4.11 and related definitions of this
Indenture;
(I) Section 4.12 and related definitions of this
Indenture;
(J) Section 7.01(e)(i) and related definitions of
this Indenture;
(K) Section 7.01(f) and related definitions of this
Indenture to the extent the amendment or consent relates
to a Remaining Subsidiary;
(L) Section 7.01(g) and related definitions of this
Indenture to the extent the amendment or consent relates
to a Remaining Subsidiary; and
(M) Section 7.01(i) and related definitions of this
Indenture to the extent the amendment or consent relates
to a Remaining Subsidiary;
(ii) without the consent of the Holders of 80% or more in
face principal amount of the then outstanding Notes, an
amendment may not be made and a consent may not be given with
respect to:
(A) Section 4.03 and related definitions of this
Indenture to the extent the amendment or consent relates
to a Significant Subsidiary;
(B) Article 5 and related definitions of this
Indenture;
(C) Sections 7.01(d), Sections 7.01(e)(ii) and
(iii) and related definitions of this Indenture;
(D) Section 7.01(f) and related definitions of this
Indenture to the extent the amendment or consent relates
to a Significant Subsidiary;
(E) Section 7.01(g) and related definitions of this
Indenture to the extent the amendment or consent relates
to a Significant Subsidiary;
(F) Section 7.01(h) and related definitions of this
Indenture; and
(G) Section 7.01(i) and related definitions of this
Indenture to the extent the amendment or consent relates
to a Significant Subsidiary; and
(iii) without the consent of each Holder affected, an
amendment or covenant may not:
70
(A) reduce the face principal amount of Notes whose
Holders must consent to an amendment;
(B) reduce the rate of or extend the time for
payment of interest or any Special Interest on any Note
or alter the provisions of paragraphs 5 and 22 of the
Note;
(C) reduce the face principal amount of or extend
the Stated Maturity of any Note;
(D) reduce the premium payable upon the redemption
of any Note or change the time at which any Note may be
redeemed in accordance with Article 3;
(E) make any Note payable in money other than that
stated in the Note;
(F) make any change in Section 11.05 that adversely
affects the rights of any Holder under Section 11.05;
(G) impair the right of any Holder to receive
payment of principal of and interest or any Special
Interest on such Holder's Notes on or after the due dates
for payment of such principal, interest or Special
Interest or to institute suit for the enforcement of any
payment on or with respect to such Holder's Notes;
(H) make any change to this Section 10.02;
(I) modify the Guarantees in any manner adverse to
the Holders; and
(J) without limiting the foregoing, be made or
given with respect to:
(I) Section 4.01 and related definitions of
this Indenture;
(II) Section 4.03 and related definitions of
this Indenture to the extent the amendment or
consent relates to a Designated Company;
(III) Section 4.09 and related definitions of
this Indenture;
(IV) Section 4.10 and related definitions of
this Indenture;
(V) Section 4.13 and related definitions of
this Indenture;
(VI) Section 7.01(f) and related definitions
of this Indenture to the extent the amendment or
consent relates to a Designated Company;
(VII) Section 7.01(g) and related definitions
of this Indenture to the extent the amendment or
consent relates to a Designated Company; and
71
(VIII) Section 7.01(i) and related
definitions of this Indenture to the extent the
amendment or consent relates to a Designated
Company.
It shall not be necessary for the consent of the Holders under
this Section 10.02 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent approves the
substance of any proposed amendment.
(b) No amendment under this Section 10.02 may make any change
that adversely affects the rights under Section 11.05 of any holder of
Senior Indebtedness then outstanding unless the Representative under the
Working Capital Facility consents to such change.
After an amendment under this Section 10.02 becomes effective,
the Company shall mail to Holders a notice briefly describing such
amendment. The failure to give such notice to all Holders, or any defect in
such notice, shall not impair or affect the validity of an amendment under
this Section 10.02.
Section 10.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Notes shall comply with the TIA as then
in effect.
Section 10.04. Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment or a waiver by a Holder of a Note shall bind
the Holder and every subsequent Holder of that Note or portion of the Note
that evidences the same debt as the consenting Holder's Note, even if
notation of the consent or waiver is not made on the Note. However, any
such Holder or subsequent Holder may revoke the consent or waiver as to
such Holder's Note or portion of the Note if the Trustee receives the
notice of revocation before the date on which the Trustee receives an
Officer's Certificate from the Company certifying that the requisite number
of consents have been received. After an amendment or waiver becomes
effective, it shall bind every Holder. An amendment or waiver becomes
effective upon the (i) receipt by the Company or the Trustee of the
requisite number of consents, (ii) satisfaction of conditions to
effectiveness as set forth in this Indenture and any indenture supplemental
to this Indenture containing such amendment or waiver and (iii) execution
of such amendment or waiver (or supplemental indenture) by the Company and
the Trustee.
(b) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to give
their consent or take any other action described above or required or
permitted to be taken pursuant to this Indenture. If a record date is
fixed, then notwithstanding 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 give such consent or
to revoke any consent previously given or to take any such action, whether
or not such Persons continue to be Holders after such record date. No such
consent shall be valid or effective for more than 120 days after such
record date.
Section 10.05. Notation on or Exchange of Notes. If an
amendment changes the terms of a Note, the Trustee may require the Holder
of the Note to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Note regarding the changed terms and return it
to the Holder. Alternatively, if the Company or the Trustee so determines,
the Company in exchange for the Note shall issue and the Trustee shall
authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation or to issue a new Note shall not affect the
validity of such amendment.
Section 10.06. Trustee to Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article 10 within a
reasonable time after its receipt of, or notification of the Company's
receipt of, the requisite number of consents if the amendment does not
adversely affect the
72
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may but need not sign it. In signing such amendment the Trustee
shall be entitled to receive indemnity reasonably satisfactory to it and to
receive, and (subject to Section 8.01) shall be fully protected in relying
upon, an Officer's Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture and that such
amendment is the legal, valid and binding obligation of the Company and the
Guarantors enforceable against them in accordance with its terms, subject
to customary exceptions, and complies with the provisions of this Indenture
(including Section 10.03).
ARTICLE 11.
GUARANTEES
----------
Section 11.01. Guarantees. Each of the Guarantors, jointly and
severally, unconditionally guarantees to each Holder of a Note executed and
delivered by the Company, irrespective of the validity and enforceability
of this Indenture, the Notes or the obligations of the Company under this
Indenture or the Notes, that: (a) the principal of and premium and
interest, including any Special Interest, on the Notes shall be promptly
paid in full when due, whether at Stated Maturity, by acceleration,
redemption or otherwise, and interest and Special Interest on the overdue
principal of (and any premium) and interest on the Notes, and all other
obligations of the Company to the Holders under this Indenture or the Notes
shall be promptly paid in full or performed, all in accordance with the
terms of this Indenture and the Notes; and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations,
that the same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason,
the Guarantors shall be jointly and severally obligated to pay the same
immediately.
The Guarantors agree that their obligations under this
Indenture shall be unconditional, irrespective of the validity, regularity
or enforceability of the Notes or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder with respect to
any provisions of this Indenture or the Notes, the recovery of any judgment
against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each Guarantor waives diligence,
presentment, demand of payment, filing of claims with a court in the event
of insolvency or bankruptcy of the Company, any right to require a prior
proceeding against the Company, protest, notice and all demands whatsoever
and covenant that this Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and this Indenture.
If any Holder is required by any court or otherwise to return
to the Company or Guarantors, or any Custodian, trustee, liquidator or
other similar official acting in relation to either the Company or
Guarantors, any amount paid by such Holder, this Guarantee, to the extent
discharged as a result of such court ruling, shall be reinstated in full
force and effect.
Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders of Notes in respect of any
obligations guaranteed until payment in full of all obligations guaranteed.
Each Guarantor further agrees that, as between the Guarantors, on the one
hand, and the Holders, on the other hand, (a) the Maturity of the
obligations guaranteed in this Indenture may be accelerated as provided in
this Article 11 for the purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed in this Indenture and (b) in the
event of any declaration of acceleration of such obligations as provided in
this Article 11, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this
Guarantee. The Guarantors shall have the right to seek contribution
73
from any non-paying Guarantor so long as the exercise of such right does not
impair the rights of the Holders under this Guarantee.
Section 11.02. Execution and Delivery of this Indenture and
Supplemental Guarantees. To evidence its Guarantee set forth in Section
11.01, each Guarantor agrees that this Indenture shall be executed on
behalf of such Guarantor by its President or one of its officers and, to
the extent not a party to this Indenture on the date of this Indenture,
each Guarantor shall execute and deliver to the Holders a Supplemental
Guarantee ("Supplemental Guarantee") substantially in the form of Exhibit
C, pursuant to which such Guarantor, shall become a Guarantor under this
Article 11 and shall guarantee the Obligations of the Company under this
Indenture and the Notes and shall become a party to the Exchange and
Registration Rights Agreement. Concurrently with the execution and delivery
of such Supplemental Guarantee, such Guarantor shall deliver to the Trustee
an Opinion of Counsel that the foregoing have been duly authorized,
executed and delivered by such Guarantor and that such Guarantor's
Guarantee is a valid and legally binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms.
If an officer whose signature is on this Indenture or on a
Supplemental Guarantee no longer holds that office at the time the Company
executes and delivers the Note on which a Guarantee is endorsed, the
Guarantee shall be valid nevertheless. The execution and delivery of any
Note by the Company shall constitute due delivery of the Guarantee set
forth in this Indenture on behalf of the Guarantors.
Section 11.03. Guarantors May Consolidate, Etc. On Certain
Terms. No Guarantor may consolidate with or merge with or into (whether or
not such Guarantor is the surviving Person), another corporation, Person or
entity (other than the Company or another Guarantor) unless:
(a) subject to the provisions of Section 11.04, the Person
formed by or surviving any such consolidation or merger (if other than such
Guarantor) unconditionally assumes all the obligations of such Guarantor
under the Notes and this Indenture pursuant to a Supplemental Guarantee, in
form and substance reasonably satisfactory to the Holders;
(b) immediately after giving effect to such transaction, no
Default or Event of Default exists;
(c) such Guarantor, or any Person formed by or surviving any
such consolidation or merger, would have Consolidated Net Worth
(immediately after giving effect to transaction), equal to or greater than
the Consolidated Net Worth of such Guarantor immediately preceding the
transaction; and
(d) the Company would be permitted immediately after giving
effect to such transaction, to Incur at least $1.00 of additional
Indebtedness pursuant to the Indebtedness Ratio Test set forth in Section
5.04(a).
Notwithstanding the foregoing, no Guarantor shall be permitted
to consolidate with or merge with or into (whether or not such Guarantor is
the surviving Person), another corporation, Person or entity pursuant to
the preceding sentence if such consolidation or merger would not be
permitted by Article 6.
In case of any such consolidation or merger and upon the
assumption by the person surviving such consolidation or merger, by
supplemental agreement, executed and delivered to the Holders and
satisfactory in form to the Holders, of the Guarantee endorsed upon the
Notes and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the
74
Guarantor, such successor corporation shall succeed to and be substituted for
the Guarantor with the same effect as if it had been named in this Indenture as
A Guarantor. Such successor corporation succeeding the Guarantor may cause to
be signed any or all of the Guarantees to be endorsed upon all of the Notes
issuable hereunder which prior to such succession shall not have been
signed by the Company. All the Guarantees so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Guarantees
prior and subsequent to such succession issued in accordance with the terms
of this Indenture as though all of such Guarantees had been issued at the
date of the execution of this Indenture.
Except as set forth in Article 5 or Article 6, nothing
contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Company or another
Guarantor, or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
Section 11.04. Releases of Guarantees. In the event of (i) a
sale or other disposition of all of the assets of any Guarantor, by way of
merger, consolidation or otherwise in a transaction that complies with the
provisions of Section 11.03 or, (ii) a sale or other disposition of all of
the capital stock of any Guarantor, such Guarantor (in the event of a sale
or other disposition, by way of such a merger, consolidation, distribution
or otherwise, of all of the capital stock of such Guarantor) or the
corporation acquiring the property (in the event of a sale or other
disposition of all of the assets of such Guarantor) will be released and
relieved of any obligations under its Guarantee; provided that the Net
Proceeds of such sale or other disposition shall be applied in accordance
with the provisions of Section 5.05. Any Guarantor not released from its
obligations under its Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other obligations of any
Guarantor under this Indenture.
Section 11.05. Subordination of Subordinated Guarantee. The
Obligations of the Subordinated Guarantor under the Guarantee of the Notes
provided by it pursuant to this Article 11 shall be junior and subordinated
in right of payment to the prior payment in full in cash of the Guarantor
Senior Indebtedness of such Subordinated Guarantor.
Section 11.06. Limitation on Guarantor Liability. Each
Guarantor, and by its acceptance of the Notes, each Holder, confirms that
it is the intention of all such parties that the Guarantee of such
Guarantor not constitute a fraudulent transfer or conveyance for purposes
of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Guarantee. To effectuate the foregoing intention, the
Holders and the Guarantors irrevocably agree that the obligations of such
Guarantor under its Guarantee and this Article 11 shall be limited to the
maximum amount as will, after giving effect to such maximum amount and all
other contingent and fixed liabilities of such Guarantor that are relevant
under such laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under this
Section 11.06, result in the obligations of such Guarantor under its
Guarantee not constituting a fraudulent transfer or conveyance.
Section 11.07. Endorsement of Guarantees. To evidence its
Guarantee set forth in Section 11.01, each Guarantor agrees that a notation
of such Guarantee ("Notation of Guarantee") substantially in the form of
Exhibit D to this Indenture shall be endorsed by an officer of such
Guarantor on each Note authenticated and delivered by the Company.
Each Guarantor agrees that its Guarantee set forth in Section
11.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a Notation of Guarantee.
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ARTICLE 12.
COLLATERAL AND SECURITY
Section 12.01. Collateral Documents.
The due and punctual payment of the principal of, and interest
on the Notes when and as the same shall be due and payable, whether on an
Interest Payment Date, at maturity, by acceleration, repurchase, redemption
or otherwise, interest on the overdue principal of and interest (to the
extent permitted by law), if any, on the Notes and performance of all other
obligations under this Indenture including, without limitation, the
obligations set forth in Section 8.07, and the Notes, shall be secured as
provided in the Collateral Documents. The Trustee, the Company and each
Senior Guarantor agree that the Collateral Agent shall hold the Collateral
in trust for the benefit of all of the Secured Parties, in each case
pursuant to the terms of the Collateral Documents.
Each Holder of the Notes, by its acceptance of the Notes,
consents and agrees to the terms of the Collateral Documents (including,
without limitation, the provisions providing for foreclosure and release of
Collateral) as the same may be in effect or may be amended from time to
time in accordance with their terms and authorizes and directs (i) the
Collateral Agent, with respect to each of the Collateral Documents to which
it is a party, and (ii) the Trustee to perform their respective obligations
and exercise their respective rights under, and in accordance with, such
Collateral Documents.
The Trustee and each Holder, by accepting the Notes,
acknowledges that, as more fully set forth in the Collateral Documents, the
Collateral as now or hereafter constituted shall be held for the benefit of
all the Secured Parties, and that the Lien of this Indenture and the
Collateral Documents in respect of the Collateral Agent and the Holders is
subject to and qualified and limited in all respects by the Collateral
Documents and actions that may be taken under the Collateral Documents.
As among the Holders of the Collateral as now or hereafter
constituted, to the extent of the interest of the Holders in the
Collateral, the Collateral shall be held for the equal and ratable benefit
of the Holders without preference, priority or distinction of any of the
Holders over any other by reason of difference in time of issuance, sale or
otherwise, as security for the Notes.
Section 12.02. Opinions.
Promptly after the effectiveness of this Indenture, to the
extent required by the TIA, the Company shall deliver the opinion(s)
required by section 314(b)(1) of the TIA. Subsequent to the execution and
delivery of this Indenture, to the extent required by the TIA, the Company
shall furnish to the Trustee, an Opinion of Counsel, stating either that
(i) in the opinion of such counsel, all action has been taken with respect
to any filing, re-filing, recording or re-recording with respect to the
Collateral as is necessary to maintain the Lien on the Collateral in favor
of the Holders or (ii) in the opinion of such counsel, that no such action
is necessary to maintain such Lien.
Section 12.03. Release and Substitution of Collateral;
Amendment of Collateral Documents.
(a) The parties to this Indenture agree and acknowledge that
the Collateral may be released by the Collateral Agent at any time in
accordance with the provisions of the Collateral Documents and this
Indenture or upon the termination of this Indenture and, in any such case,
the Collateral so released shall automatically be released as Collateral
for the Notes without any action on the part of the Trustee or the Holders.
For purposes of the TIA, the release of any Collateral from the terms
76
of the Collateral Documents will not be deemed to impair the security under
this Indenture in contravention of the provisions of this Indenture or
affect the Lien of this Indenture or the Collateral Documents if and to the
extent the Collateral is released pursuant to the Collateral Documents or
upon the termination of this Indenture. To the extent applicable, the
Company shall cause TIA section 314(d) relating to the release of property
or securities from the lien of the Collateral Documents and relating to the
substitution for the Collateral of any property or securities to be
subjected to the lien of the Collateral Documents to be complied with.
(b) Notwithstanding the foregoing, the Company and each
Guarantor, as the case may be, pursuant to the terms of this Indenture may
effect the following transactions, the assets related to which will
automatically be released from that part of the Collateral relating to such
transaction:
(i) a sale or other disposition of service vehicles in
the Ordinary Course of Business;
(ii) the sale or other disposition of cash or Cash
Equivalents;
(iii) the sale or lease of obsolete, surplus or worn out
equipment or other assets that are no longer being used by the
Company or any Guarantor;
(iv) any sale, lease or other disposition of inventory or
accounts receivable in the Ordinary Course of Business;
(v) the sale, lease, transfer or other disposition of,
directly or indirectly, in the Ordinary Course of Business, any
personal property the use of which is no longer necessary or
desirable in the proper conduct of the Company's business and
which is not material to the conduct of the business of the
Company and the Senior Guarantors taken as a whole;
(vi) the sale, transfer or other disposition of any
assets or property in the Ordinary Course of Business upon
replacing the same with, or substituting for the same, new
property or assets constituting Collateral not necessarily of
the same character but being at least of equal value and
utility as the property or assets disposed of so long as such
new property or assets becomes subject to the Lien of this
Indenture and the Collateral Documents;
(vii) grants in the Ordinary Course of Business of rights
of way and/or easements over or in respect of any of the
Company's or any of the Senior Guarantors' real property;
provided that such grant does not impair the usefulness of such
property in the conduct of the Company's business to any
material extent;
(viii) the abandonment, termination, cancellation,
release or alteration to or substitution of any leases or
contracts subject to the Lien of this Indenture and the
Collateral Documents; provided that any altered or substituted
leases or contracts shall become subject to the Lien of this
Indenture and the Collateral Documents, or the surrender or
modification of any franchise, license or permit subject to the
Lien of this Indenture and the Collateral Documents; provided
that any modified franchise, license or permit shall become
subject to the Lien of this Indenture and the Collateral
Documents;
(ix) any sale or other disposition of other Collateral in
isolated transactions which do not exceed $25.0 million in the
aggregate;
77
(x) any other disposition of Collateral; provided that
Section 4.10 and Section 5.05 are complied with (to the extent
applicable) and so long as any property or assets acquired with
any proceeds of such disposition becomes subject to the lien of
this Indenture and the Collateral Documents;
(xi) the disposition of Collateral (as a capital
contribution or in exchange for convertible loan stock issued
by the recipient of the assets) as permitted by clause (xx) of
the definition of Asset Disposition; and
(xii) release any Collateral in accordance with the terms
of this Indenture and the Collateral Documents or in order to
effect transactions otherwise permitted under this Indenture;
in each case, without the delivery of any opinions or certificates upon any
such release; provided that the Company shall deliver to the Trustee,
within 15 days after each of the six-month periods ended July 1 and January
1 in each year, an Officer's Certificate to the effect that all releases of
Collateral by the Company or any Subsidiary, as the case may be, during the
preceding six-month period were in accordance with the provisions of this
Indenture and that all proceeds from the Collateral were used by the
Company or such Subsidiary as permitted in this Indenture.
(c) The fair value of Collateral released from the Liens of the
Collateral Documents pursuant to Section 12.03(b) of this Indenture shall
not be considered in determining whether the aggregate fair value of
Collateral released from the Liens of the Collateral Documents in any
calendar year exceeds the 10% threshold specified in section 314(d)(l) of
the TIA; provided that the Company's right to rely on this sentence at any
time is conditioned upon the Company having furnished to the Trustee the
certificates described in Section 12.03(b) of this Indenture that were
required to be furnished to the Trustee at or prior to such time. It is
expressly understood that Section 12.03(b) and this Section 12.03(c) relate
only to the Company's obligations under the TIA and shall not restrict or
otherwise affect the Company's and its Subsidiaries' rights or abilities to
release Collateral pursuant to the terms of this Indenture and the
Collateral Documents or as otherwise permitted by the Trustee under this
Indenture.
Section 12.04. Certificates of the Company. Subject to Section
12.03(b) the Company shall furnish to the Trustee prior to each proposed
release of Collateral all documents required by TIA section 314(d), if any. The
Trustee may, to the extent permitted by Sections 8.01 and 8.02 of this
Indenture, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such documents. Any
certificate or opinion required by TIA section 314(d), if applicable, may be
made by an officer of the Company except in cases where TIA section 314(d)
requires that such certificate or opinion be made by an independent
engineer, appraiser or other expert within the meaning of TIA section 314(d).
Section 12.05. Authorization of Actions to be Taken by the Trustee
Under the Collateral Documents. The Trustee shall be the Representative (as
such term is defined in the Collateral Documents) on behalf of the Holders
and shall act upon the written direction of the Holders with regard to all
voting, consent and other rights granted to the Holders under the
Collateral Documents. Subject to the provisions of the Collateral
Documents, the Trustee may, in its sole discretion and without the consent
of the Holders, on behalf of the Holders, take all actions it deems
necessary or appropriate in order to (a) enforce any of its rights or any
of the rights of the Holders under the Collateral Documents and (b) receive
any and all amounts payable from the Collateral in respect of the
obligations of the Company and the Senior Guarantors under this Indenture.
Subject to the provisions of the Collateral Documents, the Trustee shall have
the power to institute and to maintain such suits and proceedings as it may deem
78
expedient to prevent any impairment of the Collateral by any acts
that may be unlawful or in violation of the Collateral Documents or
this Indenture, and such suits and proceedings as the Trustee may deem
expedient to preserve or protect its interest and the interests of the
Holders in the Collateral (including power to institute and maintain suits
or proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the security interest
hereunder or be prejudicial to the interests of the Holders or the
Trustee).
Section 12.06. Authorization of Receipt of Funds by the Trustee
Under the Collateral Documents. The Trustee is authorized to receive any
funds for the benefit of the Holders distributed under the Collateral
Documents, and to make further distributions of such funds to the Holders
according to the provisions of this Indenture and the Collateral Documents.
Section 12.07. Release Upon Termination of the Company's
Obligations.
(a) If (i) the Company delivers an Officer's Certificate and an
Opinion of Counsel certifying that all of its obligations under this
Indenture have been satisfied and discharged by complying with the
provisions of Article 8 of this Indenture, (ii) all outstanding Notes
issued under this Indenture shall be surrendered to the Trustee for
cancellation, (iii) the release of the Collateral in accordance with the
terms of the Collateral Documents occurs or (iv) any other release of the
Collateral as security for obligations of the Company or a Subsidiary under
this Indenture occurs, the Trustee shall deliver to the Collateral Agent a
notice stating that the Trustee, for itself and on behalf of the Holders,
disclaims and has given up any and all rights it has in or to the
Collateral, and any rights it has under the Collateral Documents, and, upon
and after the receipt by the Collateral Agent of such notice, the
Collateral Agent shall no longer be deemed to hold the Lien in the
Collateral on behalf of the Trustee for the benefit of the Holders.
(b) Any release of Collateral made in compliance with this
Section 12.07 shall not be deemed to impair the Lien under the Collateral
Documents or the Collateral under the Collateral Documents in contravention
of the provisions of this Indenture or the Collateral Documents.
ARTICLE 13.
MISCELLANEOUS
-------------
Section 13.01. Trust Indenture Act Controls. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by, or with another provision (an "incorporated
provision") included in this Indenture by operation of TIA sections 310 to
318, inclusive, such imposed duties or incorporated provision shall
control.
Section 13.02. Notices. Any notice or communication shall be in
writing and delivered in person, mailed by first-class mail addressed as
follows or transmitted via telecopy (or other facsimile device) with
receipt confirmed as set forth below:
if to the Company:
NTL Incorporated
110 East 59 Street
New York, NY 10022
(Telecopy: (212) 906 8497)
Attention: Richard J. Lubasch,
Executive Vice President and General Counsel
79
with copies to:
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, NY 10036-6522
(Telecopy: (212) 735 2000)
Attention: Thomas H. Kennedy/Adrian J.S. Deitz
if to the Trustee:
U.S. Bank Corporate Trust Services 180
East Fifth Street
St. Paul, MN 55101
(Telecopy: (651) 244 8677)
Attention: Frank Leslie
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 mailed to a Holder shall be mailed,
first class mail, to the Holder at the Holder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if
so mailed within the time prescribed.
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, it is duly given, whether or not the addressee receives it.
Section 13.03. 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 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or
refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(a) an Officer's Certificate in form reasonably satisfactory to
the Trustee 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 in form reasonably satisfactory to
the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Section 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to Section
4.05) shall include:
(a) a statement that the individual making such certificate or
opinion has read such covenant or condition;
80
(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 individual, he has
made such examination or investigation as is necessary to enable him 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
individual, such covenant or condition has been complied with.
Section 13.06. When Notes Disregarded. In determining whether
the Holders of the required principal amount at maturity of Notes have
concurred in any direction, waiver or consent, Notes owned by the Company,
any Guarantor or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company
or any Guarantor shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes
which the Trustee knows are so owned shall be so disregarded. Subject to
the foregoing, only Notes outstanding at the time shall be considered in
any such determination.
Section 13.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Holders. The Registrar and the Paying Agent may make reasonable rules for
their functions.
Section 13.08. Legal Holidays. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period. If
a Regular Record Date is a Legal Holiday, the record date shall not be
affected.
Section 13.09. GOVERNING LAW. THIS INDENTURE AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
Section 13.10. No Recourse Against Others. A director, officer,
employee, stockholder or member, as such, of the Company or any of the
Guarantors shall not have any liability for any obligations of the Company
or any of the Guarantors under the Notes or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation.
By accepting a Note, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for
the issue of the Notes.
Section 13.11. Successors. All agreements of the Company and each
Guarantor in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
Section 13.12. Multiple Originals; Counterparts. The parties may
sign any number of counterparts of this Indenture. Each signed copy shall
be an original, but all of them together represent the same agreement. One
signed copy is enough to prove this Indenture.
Section 13.13. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of
81
reference only, are not intended to be considered a part of this Indenture
and shall not modify or restrict any of the terms or provisions of this
Indenture.
Section 13.14. Incorporation. All Exhibits and Schedules attached
to this Indenture are incorporated as part of this Indenture as if fully
set forth in this Indenture.
Section 13.15. Intent to Limit Interest to Maximum. In no event
shall the interest rate payable on the Notes under this Indenture, plus any
other amounts paid by the Company to the Holders in connection with the
Notes, exceed the highest rate permissible under law that a court of
competent jurisdiction shall, in the final determination, deem applicable.
The Company and the Trustee, in executing and delivering this Indenture,
intend legally to agree upon the rate or rates of interest and the manner
of payment stated within it; provided, however, that, anything contained in
this Indenture to the contrary notwithstanding, if said rate or rates of
interest or manner of payment exceed the maximum allowable under Applicable
Law, then, ipso facto as of the date of this Indenture, the Company is and
shall be liable only for the payment of such maximum as allowed by law, and
payment received from the Company in excess of such legal maximum, whenever
received, shall be applied to reduce the principal balance of any Notes
then outstanding to the extent of such excess, or, if such excess exceeds
the then outstanding principal balance, such excess shall be first set-off
against any other amounts then due and owing by the Company and refunded to
the Company.
82
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
NTL COMMUNICATIONS CORP. (to be renamed
NTL INCORPORATED)
By: __________________________
Name:
Title:
GUARANTORS:
By their signature below, the officers of the corporate
Guarantors and of the corporate general partners of the
limited partnership Guarantors execute this Indenture on
behalf of each of the below-listed entities.
Corporate Guarantors
--------------------
COMMUNICATIONS CABLE FUNDING CORP.
By: __________________________
Name:
Title:
NTL DIGITAL (US), INC.
By: __________________________
Name:
Title:
CABLETEL VENTURES LIMITED
By: __________________________
Name:
Title:
BEARSDEN NOMINEES INC.
By: __________________________
Name:
Title:
[Signature Page to Indenture]
CABLETEL PROGRAMMING, INC.
By: __________________________
Name:
Title:
NTL INTERNATIONAL SERVICES, INC.
By: __________________________
Name:
Title:
NTL FUNDING (NJ), INC.
By: __________________________
Name:
Title:
TRUSTEE:
U.S. BANK NATIONAL ASSOCIATION,
A NATIONAL BANKING ASSOCIATION,
as Trustee
By: _________________________________
Name: Lori-Anne Rosenberg
Title: Assistant Vice President
[Signature Page to Indenture]
APPENDIX A
PROVISIONS RELATING TO INITIAL NOTES, PIK NOTES AND EXCHANGE NOTES
------------------------------------------------------------------
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms shall
have the meanings indicated below:
"Definitive Note" means a certificated Initial Note, PIK Note
or Exchange Note (bearing the Restricted Notes Legend if the transfer of
such Note is restricted by Applicable Law) that does not include the Global
Notes Legend.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Equity Registration Rights Agreement" means the Equity
Registration Rights Agreement, dated as of the Closing Date, by and among
the Company and the Purchasers.
"Exchange and Registration Rights Agreement" means the Exchange
and Registration Rights Agreement, dated as of the Closing Date, by and
among the Company, the Guarantors and the Purchasers.
"Global Notes Legend" means the legend set forth under that
caption in Exhibit B to this Indenture.
"Guaranteed Obligations" means those Obligations guaranteed by
the Guarantors pursuant to the Guarantee provided by each of them under
this Indenture.
"Institutional Accredited Investor" means an institutional
"accredited investor" as described in Rule 501 under the Securities Act.
"Notes" means the Initial Notes and any Exchange Notes issued
in exchange for Initial Notes under the Indenture, together with any PIK
Notes issued in accordance with the terms of the Notes.
"Notes Custodian," who shall initially be the Trustee, means
the custodian with respect to a Global Exchange Note (as appointed by the
Depositary) or any successor person to the Trustee.
"Purchase Agreement" means the Purchase Agreement, dated as of
January 9, 2003, by and among the Company and the Purchasers.
"Purchasers" means the Holders as of the Closing Date.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means the offer by the Company,
pursuant to the Exchange and Registration Rights Agreement, to certain
Holders of Initial Notes, to issue and deliver to such Holders, in exchange
for their Initial Notes, a like aggregate principal amount at maturity of
Exchange Notes registered under the Securities Act.
"Regulation S" means Regulation S under the Securities Act.
APPENDIX A-1
"Restricted Notes Legend" means the legend set forth in
Paragraph 2.3(d)(i) below.
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means a registration statement
filed by the Company in connection with the offer and sale of Initial Notes
pursuant to the Exchange and Registration Rights Agreement.
"Transfer Restricted Notes" means Definitive Notes and any
other Notes that bear or are required to bear the Restricted Notes Legend.
1.2 Other Definitions
Term: Defined in Section:
"Agent Members" 2.1(c)
---------------
"Initial Definitive Notes" 2.1(b)
--------------------------
"Global Exchange Notes" 2.1(b)
-----------------------
2. The Notes
2.1 Form and Dating
(a) The Initial Notes issued on the date of this Indenture will
be sold by the Company pursuant to the Purchase Agreement to the
Purchasers. Such Initial Notes may, after the date of such sale, be
transferred to, among others, QIBs, purchasers in reliance on Regulation S
and, except as set forth below, Institutional Accredited Investors in
accordance with Rule 501.
(b) The Initial Notes and any PIK Notes issued thereon shall be
issued in the form of Definitive Notes, in fully registered form (the
"Initial Definitive Notes") bearing the Restricted Notes Legend and shall
be issued to and registered in the name of the applicable Purchaser and
duly executed by the Company and authenticated by the Trustee as provided
in this Indenture.
Initial Notes and any PIK Notes issued thereon will be
exchanged for Exchange Notes in the Registered Exchange Offer pursuant to
the Exchange and Registration Rights Agreement. Exchange Notes will also be
issued upon the sale of Initial Notes and any PIK Notes (i) under a Shelf
Registration Statement or (ii) at any time that the Initial Notes being
sold are not Transfer Restricted Notes. Exchange Notes and any PIK Notes
issued thereon shall, except as provided in Paragraphs 2.3 and 2.4, be
issued in global form bearing the Global Notes Legend (the "Global Exchange
Notes"). The aggregate principal amount at maturity of the Global Exchange
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 and on the
schedules thereto as hereinafter provided.
(c) Book-Entry Provisions. This Paragraph 2.1(c) shall apply
only to a Global Exchange Note deposited with or on behalf of the
Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Paragraph 2.1(c) and Paragraph 2.2 and pursuant to an order of
the Company signed by one officer, authenticate and deliver one Global
Exchange Note that (i) shall be registered in the name of the Depositary
for such
APPENDIX A-2
Global Exchange Note or the nominee of such Depositary and (ii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions or held by the Trustee as Notes Custodian.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any
Global Exchange Note held on their behalf by the Depositary or by the
Trustee as Notes Custodian or under such Global Exchange 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 Exchange Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing in this
Note 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 a holder of a
beneficial interest in any Global Exchange Note.
(d) Definitive Notes. Except as provided in Paragraph 2.3 or
2.4, owners of beneficial interests in Global Exchange Notes will not be
entitled to receive physical delivery of certificated Notes.
2.2 Authentication. The Trustee shall authenticate and make
available for delivery upon a written order of the Company signed by one
officer (a) Initial Definitive Notes for original issue on the date of this
Note in an aggregate face principal amount of $558,249,000, plus any PIK
Notes issued hereunder, (b) subject to the terms of this Indenture,
Exchange Notes in the form of Global Exchange Notes for issue in a
Registered Exchange Offer pursuant to the Exchange and Registration Rights
Agreement in a like principal amount at maturity of the Initial Notes
(including any PIK Notes issued thereon) exchanged pursuant to the Exchange
and Registration Rights Agreement, (c) subject to the terms of this
Indenture, Exchange Notes in the form of Global Exchange Notes in lieu of
Initial Notes (including any PIK Notes issued thereon) upon the sale of
such Initial Notes (including any PIK Notes issued thereon) (i) under a
Shelf Registration Statement or (ii) at any time that such Initial Notes
(including any PIK Notes issued thereon) being sold are not Transfer
Restricted Notes and (d) subject to the terms of this Indenture, Definitive
Notes upon presentation to the Trustee of Initial Notes (including any PIK
Notes issued thereon) that are not required to bear the Restricted Notes
Legend. Such order shall specify the amount of the Notes to be
authenticated, the date on which the original issue of Notes is to be
authenticated and whether the Notes are to be Initial Notes or Exchange
Notes. The aggregate face principal amount at maturity of Notes outstanding
at any time may not exceed $558,249,000, plus any PIK Notes issued
hereunder, except as provided in Sections 2.07 and 2.08 of this Indenture.
2.3 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes. When Definitive
Notes are presented to the Registrar with a request:
(i) to register the transfer of such Definitive Notes; or
(ii) to exchange such Definitive Notes for an equal
principal amount at maturity of Definitive Notes of other
authorized denominations,
the Registrar shall register the transfer or make the exchange as requested
if its reasonable requirements for such transaction are met; provided,
however, that the Definitive Notes surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the
Company and the Registrar, duly executed by the Holder of such
Definitive Notes or his attorney duly authorized in writing;
and
APPENDIX A-3
(2) in the case of Transfer Restricted Notes are
accompanied by the following additional information and
documents, as applicable:
(A) if such Definitive Notes are being delivered to the
Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to
that effect (in the form set forth on the reverse side of the
Initial Note); or
(B) if such Definitive Notes are being transferred to the
Company, a certification to that effect (in the form set forth
on the reverse side of the Initial Note); or
(C) if such Definitive Notes are being transferred
pursuant to an exemption from registration in accordance with
Rule 144 under the Securities Act or in reliance upon another
exemption from the registration requirements of the Securities
Act, (x) a certification to that effect (in the form set forth
on the reverse side of the Initial Note) and (y) if the
Company, the Registrar or the Trustee so requests, an opinion
of counsel or other evidence reasonably satisfactory to it as
to the compliance with the restrictions set forth in the legend
set forth in Paragraph 2.3(d)(i).
(b) Restrictions on Transfer of a Definitive Note for a
Beneficial Interest in a Global Exchange Note. A Definitive Note may not be
exchanged for a beneficial interest in a Global Exchange Note except (i) as
part of a Registered Exchange Offer, (ii) upon sale of the Definitive Note
under the Shelf Registration Statement, (iii) upon sale of the Definitive
Note at the time such Definitive Note is not a Transfer Restricted Note or
(iv) upon presentation to the Trustee of Definitive Notes that are not
Transfer Restricted Notes. Upon receipt by the Trustee of a Definitive
Note, duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Company and the Registrar, together
with written instructions directing the Trustee to make, or to direct the
Notes Custodian to make, an adjustment on its books and records with
respect to such Global Exchange Note to reflect an increase in the
aggregate principal amount at maturity of the Notes represented by the
Global Exchange Note, such instructions to contain information regarding
the Depositary account to be credited with such increase, then the Trustee
shall cancel such Definitive Note and cause, or direct the Notes Custodian
to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Notes Custodian, the aggregate
principal amount at maturity of Notes represented by the Global Exchange
Note to be increased by the aggregate principal amount at maturity of the
Definitive Note to be exchanged and shall credit or cause to be credited to
the account of the Person specified in such instructions a beneficial
interest in the Global Exchange Note equal to the principal amount at
maturity of the Definitive Note so canceled. If no Global Exchange Notes
are then outstanding and the Global Exchange Note has not been previously
exchanged for certificated Notes pursuant to Paragraph 2.4, the Company
shall issue and the Trustee shall authenticate, upon written order of the
Company in the form of an Officer's Certificate, a new Global Exchange Note
in the appropriate principal amount at maturity.
(c) Transfer and Exchange of Global Exchange Notes. (i) The
transfer of the Global Exchange Note or beneficial interests in the Global
Exchange Note shall be effected through the Depositary, in accordance with
this Indenture and the procedures of the Depositary for the Global Exchange
Notes. A transferor of a beneficial interest in a Global Exchange Note
shall deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in such Global
Exchange Note and such account shall be credited in accordance with such
order with a beneficial interest in the applicable Global Exchange Note and
the account of the Person making the transfer shall be debited by an amount
equal to the beneficial interest in the Global Exchange Note being
transferred.
APPENDIX A-4
(i) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Paragraph 2.4), a
Global Exchange Note may not be transferred as a whole except
by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee
of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(d) Legend.
(i) Except as permitted by the following clauses (ii),
(iii) or (iv), each Definitive Note (and all Notes issued in
exchange for a Definitive Note or in substitution for a
Definitive Note) shall bear a legend in substantially the
following form (each defined term in the legend being defined
as such for purposes of the legend only):
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH NOTE, ONLY (A) TO THE COMPANY, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE NOTE FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT AT MATURITY OF
THE NOTES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO
OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM.
APPENDIX A-5
Each Definitive Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION
AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted Note
that is a Definitive Note, the Registrar shall permit the Holder
of such Transfer Restricted Note to exchange such Transfer
Restricted Note for a Definitive Note that does not bear the
legends set forth above and rescind any restriction on the
transfer of such Transfer Restricted Note if the Holder certifies
in writing to the Registrar that its request for such exchange was
made in reliance on Rule 144 (such certification to be in the form
set forth on the reverse of the Initial Note).
(iii) After a transfer of any Initial Notes during the
period of the effectiveness and pursuant to a Shelf Registration
Statement with respect to such Initial Notes, all requirements
pertaining to the Restricted Notes Legend on such Initial Notes
shall cease to apply and the requirements that any such Initial
Notes be issued in global form shall become applicable.
(iv) Upon the consummation of a Registered Exchange Offer
with respect to the Initial Notes pursuant to which Holders of
such Initial Notes are offered Exchange Notes in exchange for
their Initial Notes, Exchange Notes in global form without the
Restricted Notes Legend shall be available to Holders that
exchange such Initial Notes in such Registered Exchange Offer.
(e) Cancellation or Adjustment of Global Exchange Note. At such
time as all beneficial interests in a Global Exchange Note have either been
exchanged for Definitive Notes, transferred, redeemed, repurchased or
canceled, such Global Exchange Note shall be returned by the Depositary to the
Trustee for cancellation or retained and canceled by the Trustee. At any time
prior to such cancellation, if any beneficial interest in a Global Exchange
Note is exchanged for Definitive Notes, transferred in exchange for an
interest in another Global Exchange Note, redeemed, repurchased or canceled,
the principal amount at maturity of Notes represented by such Global Exchange
Note shall be reduced and an adjustment shall be made on the books and records
of the Trustee (if it is then the Notes Custodian for such Global Exchange
Note) with respect to such Global Exchange Note, by the Trustee or the Notes
Custodian, to reflect such reduction.
(f) Obligations with Respect to Transfers and Exchanges of Notes.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate,
Definitive Notes and Global Exchange Notes at the Registrar's
request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company or the Trustee may require
payment of a sum sufficient to cover any transfer tax,
assessments, or similar governmental charge payable in connection
such transfer or exchange (other than any such transfer taxes,
assessments or similar governmental charge payable upon exchanges
pursuant to Sections 2.06, 3.06, 4.09, 4.10 and 10.05 of this
Indenture).
APPENDIX A-6
(iii) Prior to the due presentation for registration of
transfer of any Note, the Company, the Trustee, the Paying Agent
or the Registrar may deem and treat the person in whose name a
Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on and
Special Interest, if any, with respect to such Note and for all
other purposes whatsoever, whether or not such Note is overdue,
and none of the Company, the Trustee, the Paying Agent or the
Registrar shall be affected by notice to the contrary.
(iv) All Notes issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and
shall be entitled to the same benefits under this Indenture as the
Notes surrendered upon such transfer or exchange.
(g) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation
to any beneficial owner of a Global Exchange Note, a member of, or
a participant in the Depositary or any other Person with respect
to the accuracy of the records of the Depositary or its nominee or
of any participant or member of the Depositary, with respect to
any ownership interest in the Notes or with respect to the
delivery to any participant, member, beneficial owner or other
Person (other than the Depositary) of any notice (including any
notice of redemption or repurchase) or the payment of any amount,
under or with respect to such Notes. All notices and
communications to be given to the holders and all payments to be
made to holders under the Notes shall be given or made only to the
Holders (which shall be the Depositary or its nominee in the case
of a Global Exchange Note). The rights of beneficial owners in any
Global Exchange Note shall be exercised only through the
Depositary subject to the applicable rules and procedures of the
Depositary. The Trustee may rely and shall be fully protected in
relying upon information furnished by the Depositary with respect
to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under
Applicable Law with respect to any transfer of any interest in any
Note (including any transfers between or among Depositary
participants, members or beneficial owners in any Global Exchange
Note) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and
to do so if and when expressly required by, the terms of this
Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements of this Note.
2.4 Definitive Notes
(a) A Global Exchange Note deposited with the Depositary or with
the Trustee as Notes Custodian pursuant to Paragraph 2.1 or issued in
connection with a Registered Exchange Offer shall be transferred to the
beneficial owners of such Global Exchange Note in the form of Definitive Notes
in an aggregate principal amount at maturity equal to the principal amount at
maturity of such Global Exchange Note, in exchange for such Global Exchange
Note, only if such transfer complies with Paragraph 2.3 and (i) the Depositary
notifies the Company that it is unwilling or unable to continue as a
Depositary for such Global Exchange Note or if at any time the 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 after the Company becomes aware of such cessation, (ii) an Event of
Default has occurred and is continuing or (iii) the Company, in its sole
discretion, notifies the Trustee in writing that it elects to cause the
issuance of certificated Notes under this Indenture.
APPENDIX A-7
(b) Any Global Exchange Note that is transferable to the
beneficial owners of such Global Exchange Note pursuant to this Paragraph 2.4
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
Exchange Note, an equal aggregate principal amount at maturity of Definitive
Notes of authorized denominations. Any portion of a Global Exchange Note
transferred pursuant to this paragraph shall be executed, authenticated and
delivered only in denominations of $1,000 (in principal amount at maturity)
and any multiples of $1,000 and registered in such names as the Depositary
shall direct. Any certificated Initial Note in the form of a Definitive Note
delivered in exchange for an interest in the Global Exchange Note shall,
except as otherwise provided by Paragraph 2.3(d), bear the Restricted Notes
Legend.
(c) Subject to the provisions of Paragraph 2.4(b), the Holder of a
Global Exchange 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.
(d) In the event of the occurrence of any of the events specified
in Paragraph 2.4(a)(i), (ii) or (iii), the Company will promptly make
available to the Trustee a reasonable supply of Definitive Notes in fully
registered form without interest coupons.
APPENDIX A-8
EXHIBIT A
FORM OF FACE OF INITIAL NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS
OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL
ACCREDITED INVESTOR ACQUIRING THE NOTE FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN
EACH CASE IN A MINIMUM PRINCIPAL AMOUNT AT MATURITY OF THE NOTES
OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR
FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
EXHIBIT A-1
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
This debt instrument has been issued with original issue discount.
The following information is provided pursuant to Treas. Reg. section 1.1275-3:
Issue Price: $877.01 per $1,000 of face amount
Issue Date: January 10, 2003
Amount of Original Issue Discount: $122.99 per $1,000 of face amount
Yield to Maturity: 22%
EXHIBIT A-2
No. [___________] $__________
19% Senior Secured Note due 2010
NTL Communications Corp. (to be renamed "NTL Incorporated"), a
Delaware corporation, promises to pay to ___________ or registered assigns,
the principal amount at maturity of [ ] Dollars on January 1, 2010 (the
"Stated Maturity Date").
Interest Payment Dates: July 1 and January 1.
Record Dates: June 15 and December 15.
EXHIBIT A-3
Additional provisions of this Note are set forth on the other
side of this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
NTL Communications Corp. (to be
renamed NTL Incorporated)
By: __________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
U.S. Bank National Association, Trustee, certifies that this is one of the
Notes referred to in the Indenture.
By: __________________________
Name:
Title:
EXHIBIT A-4
FORM OF REVERSE SIDE OF INITIAL NOTE
19% Senior Secured Note due 2010
1. Interest
(a) (I) Subject to clause (II) below, NTL Communications Corp. (to be
renamed "NTL Incorporated"), a Delaware corporation (such corporation, and its
successors and assigns under the Indenture referred to, being called the
"Company"), promises to pay cash interest on the Note from the date of this
Note, semi-annually in arrears on July 1 and January 1 of each year commencing
July 1, 2003 and, if different, on the Stated Maturity Date (each, an
"Interest Payment Date") at the rate of 19% of the face principal amount per
annum, until the principal of this Note is paid. Such cash interest on the
Notes shall accrue from the most recent date to which interest has been paid
or duly provided for or, if no such cash interest has been paid or duly
provided for, from January 10, 2003 until the principal of this Note is due.
Any principal of, or premium or installment of interest or Special Interest
(as defined below) on this Note which is overdue shall bear interest at the
rate equal to 2% per annum above the interest rate specified on the face of
this Note from the date such amounts are due until they are paid (to the
extent that the payment of such interest shall be legally enforceable), and
such excess interest shall be payable on demand. Interest shall be computed on
the basis of a 360-day year of twelve 30-day months.
(II) Notwithstanding the requirement to pay cash interest as set
forth in clause (I) above and the method of payment set forth in Paragraph 2
of this Note, with respect to the interest payments due on July 1, 2003,
January 1, 2004 and July 1, 2004, the Company may elect to pay any portion of
the interest in cash or by issuance of additional Notes, each dated as of the
date of such Interest Payment Date, in an aggregate face principal amount
equal to the portion of such cash interest payment which is not being paid in
cash multiplied by a fraction, the numerator of which is 1,000 and the
denominator of which is the Accreted Value of outstanding Notes per $1,000
face principal amount of Notes on such Interest Payment Date, as set forth on
the table included in the definition of "Accreted Value" in the Indenture,
provided that:
(1) the Company may not issue less than $5 million in face
principal amount of PIK Notes with respect to any one interest
payment date;
(2) with respect to the interest payment dates of January 1, 2004
and July 1, 2004, the Company will use all Available Cash in
excess of (pound)95 million to pay cash interest on the Notes
except that the Company will not be required to pay cash
interest if the amount of Available Cash above such (pound)95
million threshold is less than $5 million in the aggregate;
and
(3) to the extent that interest is paid in PIK Notes, it shall be
paid pro rata with respect to all Notes.
The term "Available Cash" means
(I) with respect to the January 1, 2004 interest payment date, (x)
the Company's consolidated cash and cash equivalents as of
December 15, 2003, less (y) the amount of interest on the
Senior Facilities payable on the next interest payment dates
on or after January 1, 2004; and
(II) with respect to the July 1, 2004 interest payment date, (x)
the Company's consolidated cash and cash equivalents as of
June 15, 2004, less (y) the amount of interest on the Senior
Facilities payable on the next interest payment dates on or
after July 1, 2004;
EXHIBIT A-5
provided, that "Available Cash" (x) shall not include proceeds of asset
dispositions or other proceeds of events which are required by the terms of
the Senior Facilities, the Triangle Notes or the Diamond Notes (as the case
may be) to be used to prepay Senior Indebtedness or Indebtedness
outstanding under the Triangle Notes or the Diamond Notes (as the case may
be) and (y) in the event that the Company establishes a cash reserve
(approved by the Board of Directors of the Company (or any committee
thereof)) against an extraordinary or unusual cash expenditure or liability
(including without limitation vendor disputes), such reserve shall be
deducted from Available Cash if such reserve is in effect at the time the
Available Cash is determined.
In the event that the Company pays any interest by issuance of PIK Notes on
January 1, 2004 or July 1, 2004, the Company shall deliver an Officer's
Certificate to the Indenture Trustee (i) representing and warranting that
the Company and its Subsidiaries have not, in any material respect, paid
current liabilities in advance of, and have not decelerated collection of
current assets from, the Company's ordinary course schedule therefor
consistent with past practice and (ii) evidencing in reasonable detail the
calculation of the Available Cash and describing any reserve deducted from
Available Cash and the reason therefor.
(b) Special Interest. The Holder of this Note is entitled to the
benefits of the Exchange and Registration Rights Agreement, dated as of
January 9, 2003, by and among the Company, the Guarantors and the Purchasers
named in the Exchange and Registration Rights Agreement. Capitalized terms
used in this paragraph (b) but not defined in this Note have the meanings
assigned to them in the Exchange and Registration Rights Agreement. If (i) the
Shelf Registration Statement or Exchange Offer Registration Statement, as
applicable, under the Exchange and Registration Rights Agreement, is not filed
with the Commission on or prior to 95 days after the Closing Date, (ii) the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
the case may be, is not declared effective on or prior to 180 days after the
Closing Date, (iii) the Registered Exchange Offer is not consummated on or
prior to 210 days after the Closing Date, or (iv) the Shelf Registration
Statement is filed and declared effective on or prior to 210 days after the
Closing Date but shall after such filing cease to be effective (at any time
that the Company and the Guarantors are obligated to maintain the
effectiveness of such Shelf Registration Statement) without being succeeded
within 75 days by an additional Registration Statement filed and declared
effective within 135 days (each such event referred to in clauses (i) through
(iv), a "Registration Default"), the Company and the Guarantors will be
jointly and severally obligated to pay Special Interest to each holder of
Transfer Restricted Notes, during the period of one or more such Registration
Defaults, in an amount 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, 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 (such amount equal to the "Special
Interest") (after which such Special Interest shall cease to be payable). The
Trustee shall have no responsibility with respect to the determination of the
amount of any such Special Interest.
(c) Record Dates, etc. Upon the issuance of an Exchange Note in
exchange for this Note, any accrued and unpaid interest (including Special
Interest) on this Note shall cease to be payable to the Holder of this Note
but such accrued and unpaid interest (including Special Interest) shall be
payable on the next Interest Payment Date for such Exchange Note to the Holder
of the Exchange Note on the related Regular Record Date. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Agreement, be paid to the Person in whose name
this Note is registered at the close of business on the Regular Record Date
(the "Regular Record Date") for such interest which shall be the fifteenth
calendar day (whether or not a Business Day) of the calendar month in which
such Interest Payment Date occurs. Notwithstanding the foregoing, if this Note
is issued after a Regular Record Date and prior to an Interest Payment Date,
the record date for such Interest Payment Date shall be the original issue
date.
EXHIBIT A-6
2. Method of Payment
The Company shall pay interest on the Notes (except defaulted
interest) to the Persons who are registered holders of Notes at the close of
business on the June 15 or December 15 next preceding the Interest Payment
Date even if Notes are canceled after the record date and on or before the
Interest Payment Date. Holders must surrender Notes to a Paying Agent to
collect principal payments. The Company shall pay principal, Special Interest,
if any, and interest in money of the United States of America that at the time
of payment is legal tender for payment of public and private debts. The
Company will make all payments in respect of a certificated Note (including
principal and interest), by mailing a check to the registered address of each
Holder of a Note; provided, however, that payments on the Notes may also be
made, in the case of a Holder of at least $1,000,000 aggregate principal
amount at maturity of Notes, by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 30 days
immediately preceding the relevant due date for payment (or such other date as
the Trustee may accept in its discretion).
3. Paying Agent and Registrar
The Company shall maintain an office or agency, which shall be
located in the Borough of Manhattan, the City of New York, where Notes may be
presented for registration of transfer or for exchange (the "Registrar") and
an office or agency where Notes may be presented for payment (the "Paying
Agent"). Initially, U.S. Bank National Association (the "Trustee"), will act
as Paying Agent and Registrar. The Company may appoint and change any Paying
Agent, Registrar or co-registrar without notice. The Company or any of its
Wholly Owned Subsidiaries incorporated in the United States may act as Paying
Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Notes under an Indenture, dated as of January
9, 2003 (the "Indenture"), by and among the Company, the Guarantors and the
Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. sections 77aaa-77bbbb) as in effect on the date of the Indenture
(the "TIA"). Terms defined in the Indenture and used but not defined in this
Note have the meanings ascribed to those terms in the Indenture. The Notes are
subject to all terms and provisions of the Indenture, and Holders (as defined
in the Indenture) are referred to the Indenture and the TIA for a statement of
such terms and provisions.
The Notes are senior secured obligations of the Company limited to
$558,249,000 aggregate face principal amount at any one time outstanding,
together with any PIK Notes issued hereunder (subject to Section 2.07 of the
Indenture). This Note is one of the Initial Notes referred to in the Indenture
issued in an aggregate face principal amount of $558,249,000, exclusive of any
PIK Notes issued hereunder. The Notes include the Initial Notes and any
Exchange Notes issued in exchange for Initial Notes and in each case any PIK
Notes issued thereon. The Initial Notes, the Exchange Notes and the PIK Notes
are treated as a single class of Notes under the Indenture. The Indenture
imposes certain limitations on the ability of the Company and its Subsidiaries
to, among other things, make certain Investments and other Restricted
Payments, pay dividends and other distributions, incur Indebtedness, enter
into consensual restrictions upon the payment of certain dividends and
distributions by such Subsidiaries, issue or sell shares of Capital Stock of
such Subsidiaries, enter into or permit certain transactions with Affiliates
and make asset sales. The Indenture also imposes limitations on the ability of
the Company to consolidate or merge with or into any other Person or convey,
transfer or lease all or substantially all of the property of the Company.
EXHIBIT A-7
To guarantee the due and punctual payment of the principal of and
interest on the Notes and all other amounts payable by the Company under the
Indenture and the Notes when and as the same shall be due and payable, whether
at maturity, by acceleration or otherwise, according to the terms of the Notes
and the Indenture, the Guarantors (other than the Subordinated Guarantor) have
jointly and severally unconditionally guaranteed the Guaranteed Obligations on
a senior secured basis and, in the case of the Subordinated Guarantor, the
Subordinated Guarantor has guaranteed the Guaranteed Obligations on a
subordinated unsecured basis, pursuant to the terms of the Indenture.
The Notes are secured by (i) the Pledge and Security Agreement, dated
January 9, 2003 made by the Senior Guarantors in favor of the Collateral Agent
for the benefit of the Secured Parties, and (ii) the Pledge Agreement, dated
January 9, 2003 between NTL Group Limited, as grantor, the Company and the
Collateral Agent (the "Triangle Pledge Agreement"). The portion of the Notes
that are secured by the Triangle Pledge Agreement is expressly limited to the
pro rata portion of the Notes that the fair market value of the collateral
pledged under the Triangle Pledge Agreement bears to the aggregate principal
amount of all of the Notes issued under the Indenture.
5. Redemption
From the Closing Date, prepayment of the Notes will be permitted, in
whole or in part, at the election of the Company, upon not less than ten (10)
nor more than sixty (60) days notice by mail at the following Redemption
Prices (expressed as a percentage of the Accreted Value of the Notes as of the
Redemption Date) plus accrued and unpaid interest to the date of prepayment
provided, that, the Company shall prepay on June 1, 2008, Notes with an
aggregate face principal amount equal to the aggregate face principal amount
of all Notes outstanding on such date in excess of $558,249,000 at a
Redemption Price equal to 105.5% of the Accreted Value of the Notes as of the
Redemption Date plus accrued and unpaid interest to the date of prepayment;
provided further that to the extent that the Company elects to prepay Notes
using Rights Offering Proceeds prior to January 10, 2004, then the Redemption
Price shall be equal to 100% of the Accreted Value of the Notes as of the
Redemption Date. The term "Rights Offering Proceeds" means cash proceeds
obtained by the Company from the exercise of rights to acquire equity
securities from the Company, which rights were offered to all of the Company's
stockholders as of a record date in a public rights offering (other than
stockholders outside of the United States where the Company determines that it
would be impracticable to make such an offering due to the burden of
compliance with Applicable Law). Each prepayment must relate to an aggregate
face principal amount of Notes of at least $25 million and integral multiples
of $1,000 in excess thereof.
- ------------------------------------------------------ ---------------
Redemption Date Redemption Price
- ------------------------------------------ ---------------------------
January 10, 2003 - June 30, 2003 111.0%
- ------------------------------------------ ---------------------------
July 1, 2003 - January 10, 2004 111.0%
- ------------------------------------------ ---------------------------
January 10, 2004 - June 30, 2004 122.0%
- ------------------------------------------ ---------------------------
July 1, 2004 - December 31, 2004 122.0%
- ------------------------------------------ ---------------------------
January 1, 2005 - June 30, 2005 122.0%
- ------------------------------------------ ---------------------------
July 1, 2005 - December 31, 2005 122.0%
- ------------------------------------------ ---------------------------
January 1, 2006 - June 30, 2006 122.0%
- ------------------------------------------ ---------------------------
EXHIBIT A-8
- ------------------------------------------ ---------------------------
July 1, 2006 - December 31, 2006 122.0%
- ------------------------------------------ ---------------------------
January 1, 2007 - June 30, 2007 111.0%
- ------------------------------------------ ---------------------------
July 1, 2007 - December 31, 2007 111.0%
- ------------------------------------------ ---------------------------
January 1, 2008 - June 30, 2008 105.5%
- ------------------------------------------ ---------------------------
July 1, 2008 - December 31, 2008 105.5%
- ------------------------------------------ ---------------------------
January 1, 2009 - June 30, 2009 100.0%
- ------------------------------------------ ---------------------------
July 1, 2009 - January 1, 2010 100.0%
- ------------------------------------------ ---------------------------
6. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 10
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at such Holder's registered address. Notes in
denominations larger than $1,000 (in principal amount at maturity) may be
redeemed in part but only in multiples of $1,000 (in principal amount at
maturity). If money sufficient to pay the Redemption Price of and accrued and
unpaid interest and Special Interest, if any, on all Notes (or portions of
such Notes) to be redeemed on the Redemption Date is deposited with the Paying
Agent on or before the Redemption Date and certain other conditions are
satisfied, on and after such date, cash interest and Special Interest, if any,
ceases to accrue on such Notes (or such portions of such Notes) called for
redemption.
7. Sinking Fund
The Notes are not subject to any sinking fund.
8. Repurchase of Notes at the Option of Holders upon Change of Control and
Sale of Assets
Upon the occurrence of a Change of Control, each Holder of Notes
shall have the right, subject to certain conditions specified in the
Indenture, to require the Company to repurchase all or any part of the Notes
of such Holder at a purchase price in cash equal to 101% of the outstanding
face principal amount of the Notes to be repurchased, plus accrued and unpaid
interest on such Notes and Special Interest, if any, in respect of such Notes
to the date of repurchase (subject to the right of Holders of record on the
relevant record date to receive interest due and Special Interest, if any, on
the relevant Interest Payment Date) as provided in, and subject to the terms
of, the Indenture.
In accordance with Section 4.10 of the Indenture, the Company will be
required to offer to purchase Notes upon the occurrence of certain sales of
assets.
9. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations of
$1,000 (in principal amount at maturity) and multiples of $1,000; provided
that PIK Notes may be issued in smaller
EXHIBIT A-9
denominations. A Holder may transfer or exchange Initial Notes in accordance
with the Indenture. Upon any transfer or exchange, the Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Company shall not be required to make and the
Registrar need not register transfers or exchanges of Notes selected for
redemption (except, in the case of a Note to be redeemed in part, the portion
of the Note not to be redeemed) or any Notes for a period of 15 days prior to
a selection of Notes to be redeemed.
10. Persons Deemed Owners
Except as provided in Paragraph 2 of this Note, the registered Holder
of this Note shall be treated as the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal of or interest on the Notes has
been deposited with the Trustee or Paying Agent and remains unclaimed for two
years after such amount is due and payable, the Trustee or Paying Agent shall
pay the money back to the Company at its written request unless an abandoned
property law designates another Person. After any such payment, the Trustee
and the Paying Agent shall have no further liability for such funds and
Holders entitled to the money must look only to the recipient and not to the
Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate
some of or all its obligations under the Notes and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal of and interest on the Notes to redemption or maturity,
as the case may be.
13. Amendment, Waiver
Without the consent of:
(i) the Holders of 67% or more in face principal amount of the
then outstanding Notes, an amendment or consent may not be made and a
consent may not be given with respect to the matters enumerated in
Section 10.02(a)(i) of the Indenture;
(ii) the Holders of 80% or more in face principal amount of the
then outstanding Notes, an amendment or consent may not be made and a
consent may not be given with respect to the matters enumerated in
Section 10.02(a)(ii) of the Indenture;
(iii) each Holder affected, an amendment may be made and a
consent may not be given with respect to the matters enumerated in
Section 10.02(a)(iii) of the Indenture;
Subject to the foregoing exceptions, without the consent of each
Holder, the Indenture or the Notes may be amended without prior notice to any
Holder but with the written consent of the Holders of at least a majority in
face principal amount at maturity of the Notes then outstanding (including
consents obtained in connection with a tender offer or exchange for the
Notes). Subject to certain exceptions set forth in Section 10.02 of the
Indenture, which will require the consent of the Holders of 67% or 80% or more
in face principal amount of the then outstanding Notes or each Holder, or of all
EXHIBIT A-10
Holders, without the consent of any Holder of Notes, the Company, the
Guarantors and the Trustee may amend the Indenture or the Notes (a) to cure
any ambiguity, omission, defect or inconsistency; (b) to provide for
uncertificated Notes in addition to or in place of certificated Notes
(provided, however, that the uncertificated Notes are issued in registered
form for purposes of section 163(f) of the Code); (c) to make any change in
Section 11.05 of the Indenture that would limit or terminate the benefits
available to any holder of Senior Indebtedness (or any Representative of such
Senior Indebtedness) under Section 11.05 of the Indenture; (d) to add
additional Guarantees with respect to the Notes; (e) to further secure the
Notes; (f) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power in the Indenture conferred upon the
Company; (g) to comply with any requirement of the Commission in connection
with qualifying, or maintaining the qualification of, the Indenture under the
TIA; (h) to make any change that does not adversely affect the rights of any
Holder; (i) to provide for the issuance of the Exchange Notes which shall have
terms substantially identical in all material respects to the Initial Notes
(except that the transfer restrictions and provision relating to the payment
of Special Interest) contained in the Initial Notes shall be modified or
eliminated, as appropriate), and which shall be treated, together with any
outstanding Initial Notes and any PIK Notes issued on the Initial Notes or the
Exchange Notes, as a single issue of securities; (j) to change the name or
title of the Notes and any conforming changes related to the Notes; or (k) to
provide for the issuance of PIK Notes and exchange notes for such PIK Notes.
14. Defaults, Remedies and Acceleration
If an Event of Default (other than an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company)
occurs and is continuing, the Trustee or the Holders of 33 1/3% or more in
principal amount of the then outstanding Notes may declare the principal of
and accrued but unpaid interest and Special Interest, if any, on all the Notes
to be due and payable. Upon such a declaration, such principal and interest
shall be due and payable immediately. If an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company
occurs, the principal of and interest on all the Notes shall become and be
immediately due and payable without any declaration or other act on the part
of the Trustee or any Holders. Under certain circumstances, the Holders of a
majority in principal amount at maturity of the Notes may rescind any such
acceleration with respect to the Notes and its consequences.
Subject to the provisions of the Indenture relating to the duties
of the Trustee, in case an Event of Default occurs and is continuing, the
Trustee will be under no obligation to exercise any rights or powers under the
Indenture at the request or direction of any of the Holders, unless such
Holders have offered to the Trustee reasonable indemnity or security against
any loss, liability or expense. Except to enforce the right to receive payment
of principal or interest when due, no Holder may pursue any remedy with
respect to the Indenture or the Notes unless (i) such Holder has previously
given to the Trustee written notice stating that an Event of Default has
occurred and is continuing, (ii) Holders of at least 50% in face principal
amount at maturity of the outstanding Notes have made a written request to the
Trustee to pursue the remedy, (iii) such Holder or Holders have offered to the
Trustee reasonable security or indemnity against any loss, liability or
expense, (iv) the Trustee has not complied with such request within 60 days
after receipt of the request and the offer of security or indemnity and (v)
the Holders of a majority in face principal amount at maturity of the
outstanding Notes have not given the Trustee a direction inconsistent with
such request during such 60-day period. Subject to certain restrictions, the
Holders of a majority in face principal amount at maturity of the outstanding
Notes are given the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or of exercising any
trust or power conferred on the Trustee. The Trustee, however, may refuse to
follow any direction that conflicts with law or the Indenture or, subject to
certain exceptions in the Indenture, that the Trustee determines is unduly
prejudicial to the rights of other Holders or would involve the Trustee in
personal liability. Prior to taking any action under the Indenture, the
Trustee shall be entitled
EXHIBIT A-11
to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee, stockholder or member, as such, of
the Company or any of the Guarantors shall not have any liability for any
obligations of the Company or any of the Guarantors under the Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
17. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
18. 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 rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. Registration Rights
Pursuant to the Exchange and Registration Rights Agreement, the
Company will be obligated upon the occurrence of certain events to consummate
an exchange offer pursuant to which the Holder of this Note shall have the
right to exchange this Note for an Exchange Note which has been registered
under the Securities Act, in like original principal amount and having terms
identical in all material respects to this Note, other than there shall be no
provision for Special Interest.
The Company will furnish to any Holder of Notes upon written
request and without charge to the Holder a copy of the Indenture which has in
it the text of this Note.
EXHIBIT A-12
21. Accretion
The principal amount of the Notes shall accrete in accordance with
the terms of the Indenture.
22. Additional Amounts
This paragraph 22 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. All payments made by the Company on this
Note shall be made without deduction for or on account of, any and all present
or future taxes, duties, assessments, or governmental charges of whatever
nature unless the deduction of such taxes, duties, assessments or governmental
charges is then required by law. If any deduction or withholding for or on
account of any present or future taxes, assessments or other governmental
charges of the United Kingdom (or any political subdivision or taxing
authority thereof or therein) shall at any time be required in respect of any
amounts to be paid by the Company under this Note, the Company shall pay or
cause to be paid such additional amounts ("Additional Amounts") as may be
necessary in order that the net amounts received by a Holder of this Note
after such deduction or withholding shall be not less than the amounts
specified in this Note to which the Holder of this Note is entitled; provided,
however, that the Company shall not be required to make any payment of
Additional Amounts for or on account of:
(a) any tax, assessment or other governmental charge to the extent
such tax, assessment or other governmental charge would not have been imposed
but for the existence of any present or former connection between such Holder
(or between a fiduciary, settlor, beneficiary, member or shareholder of, or
possessor of a power over, such Holder, if such Holder is an estate, nominee,
trust, partnership or corporation), other than the holding of this Note or the
receipt of amounts payable in respect of this Note and the United Kingdom 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;
(b) any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure to comply by the Holder of this
Note or, if different, the beneficial owner of the interest payable on this
Note, with a timely request of the Company addressed to such Holder or
beneficial owner to provide information, documents or other evidence
concerning the nationality, residence, identity or connection with the taxing
jurisdiction of such Holder or beneficial owner which is required or imposed
by a statute, regulation or administrative practice of the taxing jurisdiction
as a precondition to exemption from all or part of such tax, assessment or
governmental charge. Notwithstanding anything to the contrary, this paragraph
22(b) shall not apply in instances where such Holder or beneficial owner is
not legally able to provide such information, documents or other evidence; or
(c) any combination of items (a) and (b) above;
nor shall Additional Amounts be paid with respect to any payment of
principal of or interest on this Note to any Holder that is a fiduciary or
partnership or person other than the sole beneficial owner of such payment
to the extent that such payment would be required by the laws of the United
Kingdom (or any political subdivision or taxing authority thereof or
therein) to be included in the income for tax purposes of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or
beneficial owner who would not have been entitled to the Additional Amounts
had such beneficiary, settlor, member or beneficial owner been the actual
Holder of his Note.
EXHIBIT A-13
23. Optional Tax Redemption
(a) The Notes may be redeemed at the option of the Company, in
whole but not in part, upon not less than 30 nor more than 60 days' notice, at
any time at a redemption price equal to the principal amount thereof plus
accrued and unpaid interest to the date fixed for redemption if after the date
on which paragraph 22 of this Note becomes applicable (the "Relevant Date")
there has occurred any change in or amendment to the laws (or any regulations
or official rulings promulgated thereunder) of the United Kingdom (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 rules (a "Change in Tax Law") which becomes effective after the
Relevant Date, as a result of which the Company is or would be so required on
the next succeeding Interest Payment Date to pay Additional Amounts with
respect to the Notes as described under paragraph 22 with respect to
withholding taxes imposed by the United Kingdom (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 been sought, that a Change in
Tax Law in the United Kingdom was to occur after the Relevant Date, (ii) no
such notice of redemption may be given earlier than 90 days prior to the
earliest date on which the Company would be obliged to pay such Additional
Amounts were a payment in respect of the Notes then due, (iii) at the time
such notice of redemption is given, such obligation to pay such Additional
Amount remains in effect and (iv) the payment of such Additional Amounts
cannot be avoided by the use of any reasonable measures available to the
Company.
(b) The Notes may also be redeemed, in whole but not in part, at
any time at a redemption price equal to the principal amount thereof plus
accrued and unpaid interest to the date fixed for redemption 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 occurring
after the date of such Subsequent Consolidation to pay Additional Amounts with
respect to Notes with respect to Withholding Tax as described under this
paragraph 23 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 been sought,
that a Change in Tax Law in the United Kingdom 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 paragraph 22 hereof) resulting from
the payment of such Redemption Price.
Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to them in the Indenture.
EXHIBIT A-14
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note
on the books of the Company. The agent may substitute another to act for him.
____________________________________________________________
Date: ________________ Your Signature: _____________________
____________________________________________________________
Sign exactly as your name appears on the other side of this Note.
EXHIBIT A-15
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER
RESTRICTED NOTES
This certificate relates to $_________ principal amount at maturity of
Notes held in definitive form by the undersigned.
The undersigned has requested the Trustee by written order to exchange or
register the transfer of a Note or Notes.
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in
Rule 144(k) under the Securities Act, the undersigned confirms that such
Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
[ ] (1) to the Company; or
[ ] (2) to the Registrar for registration in the name of the
Holder, without transfer; or
[ ] (3) pursuant to an effective registration statement under
the Securities Act of 1933; or
[ ] (4) inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act
of 1933) that purchases for its own account or for the
account of a qualified institutional buyer to whom
notice is given that such transfer is being made in
reliance on Rule 144A, in each case pursuant to and in
compliance with Rule 144A under the Securities Act of
1933; or
[ ] (5) outside the United States in an offshore transaction
within the meaning of Regulation S under the Securities
Act in compliance with Rule 904 under the Securities Act
of 1933; or
[ ] (6) to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act
of 1933) that has furnished to the Trustee a signed
letter containing certain representations and
agreements; or
[ ] (7) pursuant to another available exemption from
registration provided by Rule 144 under the Securities
Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Notes evidenced by this certificate in the name of any Person
other than the registered holder of such Notes; provided, however, that
if box (5), (6) or (7) is checked, the Trustee may require, prior to
registering any such transfer of the 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.
________________________
Your Signature
EXHIBIT A-16
Signature Guaranty:
Date: ___________________ __________________________
Signature must be guaranteed Signature of Signature
by a participant in a Guaranty
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
____________________________________________________________
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Dated: ________________ ______________________________
NOTICE: To be executed by
an executive officer
EXHIBIT A-17
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.09 (Change of Control) or Section 4.10 (Application of
Excess Proceeds) of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Note purchased by
the Company pursuant to Section 4.09 or 4.10 of the Indenture, state the
principal amount at maturity ($1,000 or a multiple of $1,000):
$
Date: __________________ Your Signature: __________________
(Sign exactly as your name appears on the other side of the Note)
Signature Guaranty:________________________________________________________
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or other
signature guarantor acceptable to the Trustee
EXHIBIT A-18
EXHIBIT B
FORM OF FACE OF EXCHANGE 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 EXCHANGE NOTE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL EXCHANGE NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF.
This debt instrument has been issued with original issue discount.
The following information is provided pursuant to Treas. Reg. section
1.1275-3:
Issue Price: $877.01
Issue Date: January 10, 2003
Amount of Original Issue Discount: $122.99 per $1,000 of face amount
Yield to Maturity: 22%
EXHIBIT B-1
No. $__________
19% Senior Secured Note due 2010
[CUSIP No. ______]
NTL Communications Corp. (to be renamed "NTL Incorporated"), a
Delaware corporation, promises to pay to ___________________, or registered
assigns, the principal amount at maturity of [ ] Dollars on January 1, 2010
(the "Stated Maturity Date").
Interest Payment Dates: July 1 and January 1.
Record Dates: June 15 and December 15.
EXHIBIT B-2
Additional provisions of this Note are set forth on the other side
of this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be
duly executed.
NTL Communications Corp. (to be renamed NTL
Incorporated)
By: __________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
U.S. Bank National Association, Trustee, certifies that this is one of the
Notes referred to in the Indenture.
By: __________________________
Authorized Signatory
*/ If the Note is to be issued in global form, add the Global
Notes Legend and the attachment from Exhibit A captioned
"TO BE ATTACHED TO GLOBAL EXCHANGE NOTES - SCHEDULE OF
INCREASES OR DECREASES IN GLOBAL EXCHANGE NOTE".
EXHIBIT B-3
FORM OF REVERSE SIDE OF EXCHANGE NOTE
19% Senior Secured Note due 2010
1. Interest
(a) Subject to clause (b) below, NTL Communications Corp. (to be
renamed "NTL Incorporated"), a Delaware corporation (such corporation, and its
successors and assigns under the Indenture referred to in this Note, being
called the "Company"), promises to pay cash interest on the Note from the date
of this Note, semi-annually in arrears on July 1 and January 1 of each year
commencing July 1, 2003 and, if different, on the Stated Maturity Date (each,
an "Interest Payment Date") at the rate of 19% of the face principal amount
per annum, until the principal of this Note is paid. Such cash interest on the
Notes shall accrue from the most recent date to which interest has been paid
or duly provided for or, if no such cash interest has been paid or duly
provided for, from January 10, 2003 until the principal of this Note is due.
Any principal of, or premium or installment of interest on this Note which is
overdue shall bear interest at the rate equal to 2% per annum above the
interest rate specified on the face of this Note from the date such amounts
are due until they are paid (to the extent that the payment of such interest
shall be legally enforceable), and such excess interest shall be payable on
demand. Interest shall be computed on the basis of a 360-day year of twelve
30-day months. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid
to the Person in whose name this Note is registered at the close of business
on the Regular Record Date. "Regular Record Date" for such interest shall be
the fifteenth calendar day (whether or not a Business Day) immediately
preceding such Interest Payment Date. Notwithstanding the foregoing, if this
Note is issued after a Regular Record Date and prior to an Interest Payment
Date, the record date for such Interest Payment Date shall be the original
issue date.
(b) Notwithstanding the requirement to pay cash interest as set
forth in clause (a) above and the method of payment set forth in Paragraph 2
of this Note, with respect to the interest payments due on July 1, 2003,
January 1, 2004 and July 1, 2004, the Company may elect to pay any portion of
the interest in cash or by issuance of additional Notes, each dated as of the
date of such Interest Payment Date, in an aggregate face principal amount
equal to the portion of such cash interest payment which is not being paid in
cash multiplied by a fraction, the numerator of which is 1,000 and the
denominator of which is the Accreted Value of outstanding Notes per $1,000
face principal amount of Notes on such Interest Payment Date, as set forth on
the table included in the definition of "Accreted Value" in the Indenture
(such additional Notes, the "PIK Notes"), provided that
(1) the Company may not issue less than $5 million in face principal
amount of PIK Notes with respect to any one interest payment date;
(2) with respect to the interest payment dates of January 1, 2004 and
July 1, 2004, the Company will use all Available Cash in excess of
(pound)95 million to pay cash interest on the Notes except that
the Company will not be required to pay cash interest if the
amount of Available Cash above such (pound)95 million threshold is
less than $5 million in the aggregate; and
(3) to the extent that interest is paid in PIK Notes, it shall be paid
pro rata with respect to all Notes.
The term "Available Cash" means
(I) with respect to the January 1, 2004 interest payment date, (x) the
Company's consolidated cash and cash equivalents as of December
15, 2003, less (y) the amount of interest on the
EXHIBIT B-4
Senior Facilities Payable on the next interest payment dates on
or after January 1, 2004; and
(II) with respect to the July 1, 2004 interest payment date, (x) the
Company's consolidated cash and cash equivalents as of June 15,
2004, less (y) the amount of interest on the Senior Facilities
payable on the next interest payment dates on or after July 1,
2004;
provided, that "Available Cash" (x) shall not include proceeds of asset
dispositions or other proceeds of events which are required by the terms of
the Senior Facilities, the Triangle Notes or the Diamond Notes (as the case
may be) to be used to prepay Senior Indebtedness or Indebtedness
outstanding under the Triangle Notes or the Diamond Notes (as the case may
be) and (y) in the event that the Company establishes a cash reserve
(approved by the Board of Directors of the Company (or any committee
thereof)) against an extraordinary or unusual cash expenditure or liability
(including without limitation vendor disputes), such reserve shall be
deducted from Available Cash if such reserve is in effect at the time the
Available Cash is determined.
In the event that the Company pays any interest by issuance of PIK
Notes on January 1, 2004 or July 1, 2004, the Company shall deliver an
Officer's Certificate to the Indenture Trustee (i) representing and warranting
that the Company and its Subsidiaries have not, in any material respect, paid
current liabilities in advance of, and have not decelerated collection of
current assets from, the Company's ordinary course schedule therefor
consistent with past practice and (ii) evidencing in reasonable detail the
calculation of the Available Cash and describing any reserve deducted from
Available Cash and the reason therefor.
2. Method of Payment
The Company shall pay interest on the Notes (except defaulted
interest) to the Persons who are registered holders of Notes at the close of
business on the June 15 or December 15 next preceding the Interest Payment
Date even if Notes are canceled after the record date and on or before the
Interest Payment Date. Holders must surrender Notes to a Paying Agent to
collect principal payments. The Company shall pay principal and interest in
money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. The Company will make all
payments in respect of a certificated Note (including principal and interest),
by mailing a check to the registered address of each Holder of a Note;
provided, however, that payments on the Notes may also be made, in the case of
a Holder of at least $1,000,000 aggregate principal amount at maturity of
Notes, by wire transfer to a U.S. dollar account maintained by the payee with
a bank in the United States if such Holder elects payment by wire transfer by
giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the T rustee may accept in
its discretion).
3. Paying Agent and Registrar
The Company shall maintain an office or agency, which shall be
located in the Borough of Manhattan, the City of New York, where Notes may be
presented for registration of transfer or for exchange (the "Registrar") and
an office or agency where Notes may be presented for payment (the "Paying
Agent"). Initially, U.S. Bank National Association (the "Trustee"), will act
as Paying Agent and Registrar. The Company may appoint and change any Paying
Agent, Registrar or co-registrar without notice. The Company or any of its
Wholly Owned Subsidiaries incorporated in the United States may act as Paying
Agent, Registrar or co-registrar.
EXHIBIT B-5
4. Indenture
The Company issued the Notes under an Indenture, dated as of
January 9, 2003 (the "Indenture"), by and among the Company, the Guarantors
and the Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act
of 1939 (15 U.S.C. sections 77aaa-77bbbb) as in effect on the date of the
Indenture (the "TIA"). Terms defined in the Indenture and used but not defined
in this Note have the meanings ascribed to those terms in the Indenture. The
Notes are subject to all terms and provisions of the Indenture, and Holders
(as defined in the Indenture) are referred to the Indenture and the TIA for a
statement of such terms and provisions.
The Notes are senior secured obligations of the Company limited to
$558,249,000 aggregate face principal amount at any one time outstanding,
together with any PIK Notes issued hereunder (subject to Section 2.07 of the
Indenture). This Note is one of the Exchange Notes referred to in the
Indenture issued in an aggregate face principal amount of $558,249,000,
exclusive of any PIK Notes issued hereunder. The Notes include the Initial
Notes and any Exchange Notes issued in exchange for Initial Notes and in each
case any PIK Notes issued thereon. The Initial Notes, the Exchange Notes and
the PIK Notes are treated as a single class of Notes under the Indenture. The
Indenture imposes certain limitations on the ability of the Company and its
Subsidiaries to, among other things, make certain Investments and other
Restricted Payments, pay dividends and other distributions, incur
Indebtedness, enter into consensual restrictions upon the payment of certain
dividends and distributions by such Subsidiaries, issue or sell shares of
Capital Stock of such Subsidiaries, enter into or permit certain transactions
with Affiliates and make asset sales. The Indenture also imposes limitations
on the ability of the Company to consolidate or merge with or into any other
Person or convey, transfer or lease all or substantially all of the property
of the Company.
To guarantee the due and punctual payment of the principal of and
interest on the Notes and all other amounts payable by the Company under the
Indenture and the Notes when and as the same shall be due and payable, whether
at maturity, by acceleration or otherwise, according to the terms of the Notes
and the Indenture, the Guarantors (other than the Subordinated Guarantor) have
jointly and severally unconditionally guaranteed the Guaranteed Obligations on
a senior secured basis and, in the case of the Subordinated Guarantor, the
Subordinated Guarantor has guaranteed the Guaranteed Obligations on a
subordinated unsecured basis, pursuant to the terms of the Indenture.
The Notes are secured by (i) the Pledge and Security Agreement,
dated January 9, 2003 made by the Senior Guarantors in favor of the Collateral
Agent for the benefit of the Secured Parties, nad (ii) the Pledge Agreement,
dated January 9, 2003 between NTL Group Limited, as grantor, the Company and
the Collateral Agent (the "Triangle Pledge Agreement"). The portion of the
Notes that are secured by the Triangle Pledge Agreement is expressly limited
to the pro rata portion of the Notes that the fair market value of the
collateral pledged under the Triangle Pledge Agreement bears to the aggregate
principal amount of all of the Notes issued under the Indenture.
5 Redemption
From the Closing Date, prepayment of the Notes will be permitted,
in whole or in part, at the election of the Company, upon not less than ten
(10) nor more than sixty (60) days notice by mail at the following Redemption
Prices (expressed as a percentage of the Accreted Value of the Notes as of the
Redemption Date) plus accrued and unpaid interest to the date of prepayment
provided, that, the Company shall repay on June 1, 2008, Notes with an
aggregate face principal amount equal to the aggregate face principal amount
of all Notes outstanding on such date in excess of $558,249,000 at a
Redemption Price equal to 105.5% of the Accreted Value of the Notes as of the
Redemption Date plus accrued and unpaid interest to the date of repayment;
provided further that to the extent that the Company elects to prepay Notes
using Rights Offering Proceeds prior to January 10, 2004, then the Redemption
EXHIBIT B-6
Price shall be equal to 100% of the Accreted Value of the Notes as of the
Redemption Date. The term "Rights Offering Proceeds" means cash proceeds
obtained by the Company from the exercise of rights to acquire equity
securities from the Company, which rights were offered to all of the Company's
stockholders as of a record date in a public rights offering (other than
stockholders outside of the United States where the Company determines that it
would be impracticable to make such an offering due to the burden of
compliance with Applicable Law). Each prepayment must relate to an aggregate
face principal amount of Notes of at least $25 million and integral multiples
of $1,000 in excess thereof.
- -------------------------------------------- --------------------------------
Redemption Date Redemption Price
- -------------------------------------------- --------------------------------
January 10, 2003 - June 30, 2003 111.0%
- -------------------------------------------- --------------------------------
July 1, 2003 - January 10, 2004 111.0%
- -------------------------------------------- --------------------------------
January 10, 2004 - June 30, 2004 122.0%
- -------------------------------------------- --------------------------------
July 1, 2004 - December 31, 2004 122.0%
- -------------------------------------------- --------------------------------
January 1, 2005 - June 30, 2005 122.0%
- -------------------------------------------- --------------------------------
July 1, 2005 - December 31, 2005 122.0%
- --------------------------------------------- --------------------------------
January 1, 2006 - June 30, 2006 122.0%
- -------------------------------------------- --------------------------------
July 1, 2006 - December 31, 2006 122.0%
- -------------------------------------------- --------------------------------
January 1, 2007 - June 30, 2007 111.0%
- -------------------------------------------- --------------------------------
July 1, 2007 - December 31, 2007 111.0%
- -------------------------------------------- --------------------------------
January 1, 2008 - June 30, 2008 105.5%
- -------------------------------------------- --------------------------------
July 1, 2008 - December 31, 2008 105.5%
- -------------------------------------------- --------------------------------
January 1, 2009 - June 30, 2009 100.0%
- -------------------------------------------- --------------------------------
July 1, 2009 - January 1, 2010 100.0%
- -------------------------------------------- --------------------------------
6. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least
10 days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at such Holder's registered address. Notes in
denominations larger than $1,000 (in principal amount at maturity) may be
redeemed in part but only in multiples of $1,000 (in principal amount at
maturity). If money sufficient to pay the Redemption Price of and accrued and
unpaid interest on all Notes (or portions of such Notes) to be redeemed on the
Redemption Date is deposited with the Paying Agent on or before the Redemption
Date and certain other conditions are satisfied, on and after such date, cash
interest ceases to accrue on such Notes (or such portions of such Notes)
called for redemption.
EXHIBIT B-7
7. Sinking Fund
The Notes are not subject to any sinking fund.
8. Repurchase of Notes at the Option of Holders upon Change of Control and
Sale of Assets
Upon the occurrence of a Change of Control, each Holder of Notes
shall have the right, subject to certain conditions specified in the
Indenture, to require the Company to repurchase all or any part of the Notes
of such Holder at a purchase price in cash equal to 101% of the outstanding
face principal amount of the Notes to be repurchased, plus accrued and unpaid
interest on the Notes, if any, in respect of such Notes to the date of
repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant Interest Payment Date) as
provided in, and subject to the terms of, the Indenture.
In accordance with Section 4.10 of the Indenture, the Company will
be required to offer to purchase Notes upon the occurrence of certain sales of
assets.
9. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations
of $1,000 (in principal amount at maturity) and multiples of $1,000; provided
that PIK Notes may be issued in smaller denominations. A Holder may transfer
or exchange Initial Notes in accordance with the Indenture. Upon any transfer
or exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay
any taxes required by law or permitted by the Indenture. The Company shall not
be required to make and the Registrar need not register transfers or exchanges
of Notes selected for redemption (except, in the case of a Note to be redeemed
in part, the portion of the Note not to be redeemed) or any Notes for a period
of 15 days prior to a selection of Notes to be redeemed.
10. Persons Deemed Owners
Except as provided in paragraph 2 of this Note, the registered
Holder of this Note shall be treated as the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal of or interest on the Notes
has been deposited with the Trustee or Paying Agent and remains unclaimed for
two years after such amount is due and payable, the Trustee or Paying Agent
shall pay the money back to the Company at its written request unless an
abandoned property law designates another Person. After any such payment, the
Trustee and the Paying Agent shall have no further liability for such funds
and Holders entitled to the money must look only to the recipient and not to
the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some of or all its obligations under the Notes and the Indenture if
the Company deposits with the Trustee money or U.S. Government Obligations for
the payment of principal of and interest on the Notes to redemption or
maturity, as the case may be.
EXHIBIT B-8
13. Amendment, Waiver
Without the consent of:
(i) the Holders of 67% or more in face principal amount of
the then outstanding Notes, an amendment or consent may not be
made and a consent may not be given with respect to the matters
enumerated in Section 10.02(a)(i) of the Indenture;
(ii) the Holders of 80% or more in face principal amount of
the then outstanding Notes, an amendment or consent may not be
made and a consent may not be given with respect to the matters
enumerated in Section 10.02(a)(ii) of the Indenture;
(iii) each Holder affected, an amendment may be made and a
consent may not be given with respect to the matters enumerated in
Section 10.02(a)(iii) of the Indenture;
Subject to the foregoing exceptions, without the consent of each
Holder, the Indenture or the Notes may be amended without prior notice to any
Holder but with the written consent of the Holders of at least a majority in
principal amount at maturity of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange for the Notes). Subject
to certain exceptions set forth in Section 10.02 of the Indenture, which will
require the consent of the Holders of 67% or 80% or more in face principal
amount of the then outstanding Notes or each Holder, or of all Holders,
without the consent of any Holder of Notes, the Company, the Guarantors and
the Trustee may amend the Indenture or the Notes (a) to cure any ambiguity,
omission, defect or inconsistency; (b) to provide for uncertificated Notes in
addition to or in place of certificated Notes (provided, however, that the
uncertificated Notes are issued in registered form for purposes of section
163(f) of the Code; (c) to make any change in Section 11.05 of the Indenture
that would limit or terminate the benefits available to any holder of Senior
Indebtedness (or any Representative of the Senior Indebtedness) under Section
11.05 of the Indenture; (d) to add additional Guarantees with respect to the
Notes; (e) to further secure the Notes; (f) to add to the covenants of the
Company for the benefit of the Holders or to surrender any right or power
conferred upon the Company in the Indenture; (g) to comply with any
requirement of the Commission in connection with qualifying, or maintaining
the qualification of, the Indenture under the TIA; (h) to make any change that
does not adversely affect the rights of any Holder; (i) to provide for the
issuance of the Exchange Notes which shall have terms substantially identical
in all material respects to the Initial Notes (except that the transfer
restrictions contained in the Initial Notes shall be modified or eliminated,
as appropriate), and which shall be treated, together with any outstanding
Initial Notes and any PIK Notes issued on the Initial Notes or the Exchange
Notes, as a single issue of securities; (j) to change the name or title of the
Notes and any conforming changes related to the Notes; or (k) to provide for
the issuance of PIK Notes and exchange notes for such PIK Notes.
14 Defaults, Remedies and Acceleration
If an Event of Default (other than an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company)
occurs and is continuing, the Trustee or the Holders of 33 1/3% or more in
principal amount of the then outstanding Notes may declare the principal of
and accrued but unpaid interest on all the Notes to be due and payable. Upon
such a declaration, such principal and interest shall be due and payable
immediately. If an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization of the Company occurs, the principal of and
interest on all the Notes shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holders. Under certain circumstances, the Holders of a majority in principal
EXHIBIT B-9
amount at maturity of the Notes may rescind any such acceleration with respect
to the Notes and its consequences.
Subject to the provisions of the Indenture relating to the duties
of the Trustee, in case an Event of Default occurs and is continuing, the
Trustee will be under no obligation to exercise any rights or powers under the
Indenture at the request or direction of any of the Holders, unless such
Holders have offered to the Trustee reasonable indemnity or security against
any loss, liability or expense. Except to enforce the right to receive payment
of principal or interest when due, no Holder may pursue any remedy with
respect to the Indenture or the Notes unless (i) such Holder has previously
given to the Trustee written notice stating that an Event of Default has
occurred and is continuing, (ii) Holders of at least 50% in principal amount
at maturity of the outstanding Notes have requested the Trustee in writing to
pursue the remedy, (iii) such Holder or Holders have offered to the Trustee
reasonable security or indemnity against any loss, liability or expense, (iv)
the Trustee has not complied with such request within 20 days after receipt of
the request and the offer of security or indemnity and (v) the Holders of a
majority in principal amount at maturity of the outstanding Notes have not
given the Trustee a direction inconsistent with such request during such
20-day period. Subject to certain restrictions, the Holders of a majority in
principal amount at maturity of the outstanding Notes are given the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction that
conflicts with law or the Indenture or, subject to certain exceptions in the
Indenture, that the Trustee determines is unduly prejudicial to the rights of
other Holders or would involve the Trustee in personal liability. Prior to
taking any action under the Indenture, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or any of the Guarantors shall not have any liability for any
obligations of the Company or any of the Guarantors under the Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
17. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
18. 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 rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
EXHIBIT B-10
19. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. CUSIP Numbers
The Company has caused CUSIP numbers to be printed on the Notes
and has directed the Trustee to use CUSIP numbers in notices of redemption as
a convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
The Company will furnish to any Holder of Notes upon written
request and without charge to the Holder a copy of the Indenture which has in
it the text of this Note.
21. Accretion
The principal amount of the Notes shall accrete in accordance with
the terms of the Indenture.
22. Additional Amounts
This paragraph 22 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. All payments made by the Company on this
Note shall be made without deduction for or on account of, any and all present
or future taxes, duties, assessments, or governmental charges of whatever
nature unless the deduction of such taxes, duties, assessments or governmental
charges is then required by law. If any deduction or withholding for or on
account of any present or future taxes, assessments or other governmental
charges of the United Kingdom (or any political subdivision or taxing
authority thereof or taxing authority thereof or therein) shall at any time be
required in respect of any amounts to be paid by the Company under this Note,
the Company shall pay or cause to be paid such additional amounts ("Additional
Amounts") as may be necessary in order that the net amounts received by a
Holder of this Note after such deduction or withholding shall be not less than
the amounts specified in this Note to which the Holder of this Note is
entitled; provided, however, that the Company shall not be required to make
any payment of Additional Amounts for or on account of:
(a) any tax, assessment or other governmental charge to the extent
such tax, assessment or other governmental charge would not have been imposed
but for (i) the existence of any present or former connection between such
Holder (or between a fiduciary, settlor, beneficiary, member or shareholder
of, or possessor of a power over, such Holder, if such Holder is an estate,
nominee, trust, partnership or corporation), other than the holding of this
Note or the receipt of amounts payable in respect of this Note, the United
Kingdom 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;
(b) any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure to comply by the Holder of this
Note or, if different, the beneficial owner of the interest payable on this
Note, with a timely request of the Company addressed to such Holder or
EXHIBIT B-11
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. Notwithstanding anything to the contrary, this paragraph
22(b) shall not apply in instances where such Holder or beneficial owner is
not legally able to provide such information, documents or other evidence;
(c) any combination of items (a) and (b) above;
nor shall Additional Amounts be paid with respect to any payment of the
principal of, or any interest on, this Note to any Holder who is a
fiduciary or partnership or other than the sole beneficial owner of such
payment to the extent that a beneficiary or settlor would not have been
entitled to any Additional Amounts had such beneficiary or settlor been the
Holder of this Note. All references to principal amount or interest on the
Notes in the Indenture or the Notes shall include any Additional Amounts
payable to the Company pursuant to this paragraph 22.
23. Optional Tax Redemption
(a) The Notes may be redeemed at the option of the Company, in
whole but not in part, upon not less than 30 nor more than 60 days' notice, at
any time at a redemption price equal to the principal amount thereof plus
accrued and unpaid interest to the date fixed for redemption if after the date
on which paragraph 22 of this Note becomes applicable (the "Relevant Date")
there has occurred any change in or amendment to the laws (or any regulations
or official rulings promulgated thereunder) of the United Kingdom (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 rules (a "Change in Tax Law") which becomes effective after the
Relevant Date, as a result of which the Company is or would be so required on
the next succeeding Interest Payment Date to pay Additional Amounts with
respect to the Notes as described under paragraph 22 with respect to
withholding taxes imposed by the United Kingdom (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 been sought, that a Change in
Tax Law in the United Kingdom was to occur after the Relevant Date, (ii) no
such notice of redemption may be given earlier than 90 days prior to the
earliest date on which the Company would be obliged to pay such Additional
Amounts were a payment in respect of the Notes then due, (iii) at the time
such notice of redemption is given, such obligation to pay such Additional
Amount remains in effect and (iv) the payment of such Additional Amounts
cannot be avoided by the use of any reasonable measures available to the
Company.
(b) The Notes may also be redeemed, in whole but not in part, at
any time at a redemption price equal to the principal amount thereof plus
accrued and unpaid interest to the date fixed for redemption 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 occurring
after the date of such Subsequent Consolidation to pay Additional Amounts with
respect to Notes with respect to Withholding Tax as described under this
paragraph 23 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,
EXHIBIT B-12
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 been sought, that a Change in Tax Law in the United Kingdom
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 paragraph 22 hereof) resulting from
the payment of such Redemption Price.
Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Indenture.
EXHIBIT B-13
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the
books of the Company. The agent may substitute another to act for him.
____________________________________________________________
Date: ________________ Your Signature: _____________________
____________________________________________________________
Sign exactly as your name appears on the other side of this Note.
EXHIBIT B-14
<pAge>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.09 (Change of Control) or Section 4.10 (Application of
Excess Proceeds) of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Note purchased by
the Company pursuant to Section 4.09 or 4.10 of the Indenture, state the
principal amount at maturity ($1,000 or a multiple of $1,000):
$
Date: __________________ Your Signature: __________________
(Sign exactly as your name appears on the other side of the Note)
Signature Guaranty:________________________________________________________
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or other
signature guarantor acceptable to the Trustee
EXHIBIT B-15
EXHIBIT C
FORM OF SUPPLEMENTAL GUARANTEE
SUPPLEMENTAL GUARANTEE (this "Supplemental Guarantee"), dated as
of _______________, between ____________________ (the "Guarantor"), a direct
or indirect subsidiary of NTL Incorporated (or its successor), a Delaware
corporation (the "Company"), and ______________, as trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company and the Subsidiaries listed on the signature
pages of the Indenture (as defined below) have each heretofore executed and
delivered to the Trustee an Indenture (the "Indenture"), dated as of January
9, 2003, providing for the issuance by the Company of an aggregate face
principal amount of $558,249,000 of 19% Senior Secured Notes Due 2010
(together with any pay-in-kind notes issued thereon, the "Notes"); and
WHEREAS, Section 11.02 of the Indenture provides that under
certain circumstances the Company is required to cause the Guarantor to
execute and deliver to the Trustee for the benefit of the Holders a
supplemental agreement pursuant to which the Guarantor shall unconditionally
guarantee all of the Company's obligations under the Notes pursuant to a
Guarantee on the terms and conditions set forth in this Guarantee;
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is acknowledged, the
Guarantor covenants and agrees for the equal and ratable benefit of the
Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used in this Guarantee
without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE; EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT. The Guarantor agrees, jointly and severally with all other
Guarantors, to unconditionally guarantee the Company's obligations under the
Notes on the terms and subject to the conditions set forth in Article 11 of
the Indenture and to be bound by all other applicable provisions of the
Indenture. The Guarantor further agrees to become a party to the Exchange and
Registration Rights Agreement and to be bound by all provisions of that
agreement.
3. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator, stockholder or member of the Guarantor, as such, shall have any
liability for any obligations of the Company or any Guarantor under the Notes,
any Guarantee, the Indenture or this Supplemental Guarantee or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance
of the Notes. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a
waiver is against public policy.
4. EFFECTIVENESS. This Supplemental Guarantee shall be effective
upon execution by the parties to this Guarantee.
EXHIBIT C-1
5. RECITALS. The recitals contained in this Guarantee shall be
taken as the statements of the Company and the Guarantors assume no
responsibility for their correctness.
6. GOVERNING LAW. THIS INDENTURE AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
7. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Guarantee. Each signed copy shall be an original, but all of them
together represent the same agreement.
8. EFFECT OF HEADINGS. The Section headings in this Guarantee are
for convenience only and shall not affect the construction of this Guarantee.
[Guarantor]
By: _________________________
Name:
Title:
EXHIBIT C-2
EXHIBIT D
FORM OF NOTATION OF GUARANTEE
The undersigned have guaranteed this Note on a [senior /
subordinated] basis as provided in the Indenture.
EXHIBIT D-1
EXHIBIT E
FORM OF INTERCO NOTE
EXHIBIT E-1
Schedule 1.01-A
Asset Disposition - Euroco Assets
---------------------------------
Schedule 1.01-B
Committed Acquisitions
----------------------
Schedule 1.01-C
Euroco Assets
-------------
Schedule 1.01-D
Existing Indebtedness
---------------------
A. Individual Items of Existing Indebtedness of more than [$50
million].
B. Other Existing Indebtedness. The Company and its Subsidiaries
have Existing Indebtedness other than that described in part A.
of this Schedule 1.01-D which individually and in the aggregate
does not exceed $___ million.
Schedule 1.01-E
Existing Investments and Further Investments in Euroco Assets
-------------------------------------------------------------
Schedule 1.01-F
Permitted Liens - Existing Liens
--------------------------------
A. Individual Liens existing on the Closing Date and securing
Indebtedness of the Company and its Subsidiaries of an amount
more than [$50 million].
B. Other Liens existing on the Closing Date. The Company and its
Subsidiaries have other Liens in existence on the Closing Date
securing Indebtedness of the Company and its Subsidiaries which
individually and in the aggregate do not exceed $___ million.
Schedule 5.06
Affiliate Transactions
----------------------
EXECUTION COPY
NTL INCORPORATED
(formerly NTL Communications Corp.)
$558,249,000 Aggregate Principal Amount at Maturity (Exclusive of PIK Notes)
19% Senior Secured Notes due 2010
INDENTURE
Dated as of January 9, 2003
U.S. Bank National Association,
as Trustee
TABLE OF CONTENTS
Page
Article 1. DEFINITIONS AND ACCOUNTING TERMS...................................................................................1
Section 1.01. Definitions.....................................................................................1
Section 1.02. Incorporation by Reference of Trust Indenture Act..............................................28
Section 1.03. Rules of Construction..........................................................................29
Article 2. THE NOTES.........................................................................................................30
Section 2.01. Form and Dating................................................................................30
Section 2.02. Execution and Authentication...................................................................30
Section 2.03. Registrar and Paying Agent.....................................................................30
Section 2.04. Paying Agent to Hold Money in Trust............................................................31
Section 2.05. Holder Lists...................................................................................31
Section 2.06. Transfer and Exchange..........................................................................31
Section 2.07. Replacement Notes..............................................................................32
Section 2.08. Outstanding Notes..............................................................................32
Section 2.09. Temporary Notes................................................................................33
Section 2.10. Cancellation...................................................................................33
Section 2.11. Defaulted Interest.............................................................................33
Section 2.12. CUSIP Numbers..................................................................................33
Article 3. REDEMPTION........................................................................................................33
Section 3.01. Notices to Trustee.............................................................................33
Section 3.02. Selection of Notes To Be Redeemed..............................................................34
Section 3.03. Notice of Redemption...........................................................................34
Section 3.04. Effect of Notice of Redemption.................................................................35
Section 3.05. Deposit of Redemption Price....................................................................35
Section 3.06. Notes Redeemed in Part.........................................................................35
Article 4. AFFIRMATIVE COVENANTS.............................................................................................35
Section 4.01. Payment of Notes...............................................................................35
Section 4.02. Commission Reports.............................................................................35
Section 4.03. Preservation of Corporate Existence............................................................36
Section 4.04. Maintenance of Properties......................................................................36
Section 4.05. Taxes..........................................................................................36
Section 4.06. Compliance Certificate.........................................................................37
Section 4.07. Compliance with Law............................................................................37
Section 4.08. Insurance......................................................................................37
Section 4.09. Offer to Repurchase Upon Change of Control.....................................................37
Section 4.10. Offer to Purchase by Application of Excess Proceeds............................................38
Section 4.11. Further Assurances.............................................................................39
Section 4.12. Books and Records..............................................................................40
Section 4.13. Payment of Additional Amounts..................................................................40
Article 5. NEGATIVE COVENANTS OF THE COMPANY.................................................................................40
Section 5.01. Stay, Extension and Usury Laws.................................................................40
Section 5.02. Restricted Payments............................................................................41
Section 5.03. Dividend and Other Payment Restrictions Affecting Subsidiaries.................................43
Section 5.04. Incurrence of Indebtedness and Issuance of Disqualified Capital Stock or Preferred Stock.......45
- i -
Section 5.05. Asset Dispositions.............................................................................50
Section 5.06. Transactions with Affiliates...................................................................52
Section 5.07. Limitation on Liens............................................................................54
Section 5.08. Limitation on Issuances and Sales of Capital Stock of Subsidiaries.............................55
Section 5.09. Sale and Leaseback Transactions................................................................55
Section 5.10. Prohibition on Incurrence of Senior Subordinated Debt..........................................55
Section 5.11. Excess Refinancing Proceeds....................................................................55
Section 5.12. Conduct of Business............................................................................56
Section 5.13. Investment Company Act.........................................................................56
Article 6. MERGER, CONSOLIDATION, SALE OF ASSETS, ETC........................................................................56
Section 6.01. Conditions of Company Merging, Consolidating, Selling Assets, etc..............................56
Article 7. EVENTS OF DEFAULT; REMEDIES.......................................................................................56
Section 7.01. Events of Default..............................................................................56
Section 7.02. Acceleration...................................................................................58
Section 7.03. Defaults.......................................................................................59
Section 7.04. Other Remedies.................................................................................59
Section 7.05. Waiver of Past Defaults........................................................................59
Section 7.06. Control by Majority............................................................................59
Section 7.07. Limitation on Suits............................................................................60
Section 7.08. Rights of Holders to Receive Payment...........................................................60
Section 7.09. Collection Suit by Trustee.....................................................................60
Section 7.10. Trustee May File Proofs of Claim...............................................................60
Section 7.11. Priorities.....................................................................................60
Section 7.12. Undertaking for Costs..........................................................................61
Article 8. TRUSTEE...........................................................................................................61
Section 8.01. Duties of Trustee..............................................................................61
Section 8.02. Rights of Trustee..............................................................................62
Section 8.03. Individual Rights of Trustee...................................................................63
Section 8.04. Trustee's Disclaimer...........................................................................63
Section 8.05. Notice of Defaults.............................................................................63
Section 8.06. Reports by Trustee to Holders..................................................................63
Section 8.07. Compensation and Indemnity.....................................................................63
Section 8.08. Replacement of Trustee.........................................................................64
Section 8.09. Successor Trustee by Merger....................................................................65
Section 8.10. Eligibility; Disqualification..................................................................65
Section 8.11. Preferential Collection of Claims Against the Company..........................................66
Article 9. DISCHARGE OF INDENTURE; DEFEASANCE................................................................................66
Section 9.01. Discharge of Liability on Notes; Defeasance....................................................66
Section 9.02. Conditions to Defeasance.......................................................................66
Section 9.03. Application of Trust Money.....................................................................68
Section 9.04. Repayment to Company...........................................................................68
Section 9.05. Indemnity for Government Obligations...........................................................68
Section 9.06. Reinstatement..................................................................................68
Article 10. AMENDMENTS.......................................................................................................68
Section 10.01. Without Consent of Holders.....................................................................68
Section 10.02. With Consent of Holders........................................................................69
- ii -
Section 10.03. Compliance with Trust Indenture Act............................................................72
Section 10.04. Revocation and Effect of Consents and Waivers..................................................72
Section 10.05. Notation on or Exchange of Notes...............................................................72
Section 10.06. Trustee to Sign Amendments.....................................................................72
Article 11. GUARANTEES.......................................................................................................73
Section 11.01. Guarantees.....................................................................................73
Section 11.02. Execution and Delivery of this Indenture and Supplemental Guarantees...........................74
Section 11.03. Guarantors May Consolidate, Etc. On Certain Terms..............................................74
Section 11.04. Releases of Guarantees.........................................................................75
Section 11.05. Subordination of Subordinated Guarantee........................................................75
Section 11.06. Limitation on Guarantor Liability..............................................................75
Section 11.07. Endorsement of Guarantees......................................................................75
Article 12. COLLATERAL AND SECURITY..........................................................................................76
Section 12.01. Collateral Documents...........................................................................76
Section 12.02. Opinions.......................................................................................76
Section 12.03. Release and Substitution of Collateral; Amendment of Collateral Documents......................76
Section 12.04. Certificates of the Company....................................................................78
Section 12.05. Authorization of Actions to be Taken by the Trustee Under the Collateral Documents.............78
Section 12.06. Authorization of Receipt of Funds by the Trustee Under the Collateral Documents................79
Section 12.07. Release Upon Termination of the Company's Obligations..........................................79
Article 13. MISCELLANEOUS....................................................................................................79
Section 13.01. Trust Indenture Act Controls...................................................................79
Section 13.02. Notices........................................................................................79
Section 13.03. Communication by Holders with Other Holders....................................................80
Section 13.04. Certificate and Opinion as to Conditions Precedent.............................................80
Section 13.05. Statements Required in Certificate or Opinion..................................................80
Section 13.06. When Notes Disregarded.........................................................................81
Section 13.07. Rules by Trustee, Paying Agent and Registrar...................................................81
Section 13.08. Legal Holidays.................................................................................81
Section 13.09. GOVERNING LAW..................................................................................81
Section 13.10. No Recourse Against Others.....................................................................81
Section 13.11. Successors.....................................................................................81
Section 13.12. Multiple Originals; Counterparts...............................................................81
Section 13.13. Table of Contents; Headings....................................................................81
Section 13.14. Incorporation..................................................................................82
Section 13.15. Intent to Limit Interest to Maximum............................................................82
- iii -
APPENDIX
--------
Appendix A Provisions Relating to Initial Notes, PIK Notes and
Exchange Notes
EXHIBITS
--------
Exhibit A Form of Face of Initial Note
Exhibit B Form of Face of Exchange Note
Exhibit C Form of Supplemental Guarantee
Exhibit D Form of Notation of Guarantee
Exhibit E Form of Interco Note
SCHEDULES
---------
Schedule 1.01-A Asset Disposition
Schedule 1.01-B Committed Acquisitions
Schedule 1.01-C Euroco Assets
Schedule 1.01-D Existing Indebtedness
Schedule 1.01-E (Part A) Existing Investments
Schedule 1.01-E (Part B) Permitted Investments in
Existing Investments and Euroco Assets
Schedule 1.01-F Permitted Liens
Schedule 5.06 Affiliate Transactions
- iv -
Schedule 1.01-A
ASSET DISPOSITIONS
------------------
1. Transfers of all or part of any of the Existing Investments or
Euroco Assets or issues of securities required pursuant to the
terms of the constitutional documents, shareholders agreements
or limited partnership agreements relating thereto. The
constitutional documents and other agreements relating to
Existing Investments or Euroco Assets have compulsory transfer
and drag along provisions which may be triggered by a change of
control, transfer of shares, insolvency events or otherwise in
accordance with relevant agreements.
2. The put option granted to NTL Digital Radio Limited by GWR
Digital Limited over the shares held by NTL Digital Radio
Limited in NTL Radio Services Limited (an Existing Investment),
and the call option granted to GWR Digital Limited by NTL
Digital Radio Limited over the same shares, both pursuant to an
option and shareholders agreement between NTL Digital Radio
Limited and GWR Digital Limited, dated November 15, 1999.
Schedule 1.01-B
COMMITTED ACQUISITIONS
----------------------
1. The Company or one of its Subsidiaries will need to guarantee
loan notes to be issued by National Transcommunications Limited
relating to deferred consideration for the acquisition of
Scanners (Europe) Limited.
Schedule 1.01-C
EUROCO ASSETS
-------------
The business and assets of any of the following entities or the capital stock
and/or other securities (including loan notes) of the following entities owned
by Euroco and its Subsidiaries or any entity whose principal asset is the
business, assets, capital stock and/or securities of any one or more of the
following entities.
1. NTL Insurance Limited
2. NTL Broadcast (Thailand) Limited
3. NTL Broadcast Sdn Bhd
4. NTL Lanbase, SL
5. Premium TV Holdings Corp.
6. Two Way TV Limited
7. ITV News Channel Limited
8. Radioscape Limited
9. The Studio Channel Limited
10. Global Radio Participations SA
11. De Facto 829 Limited
12. NTL Telephone Equipment Limited
13. NTL TWTV Holdings Limited
14. NTL (Delaware One), Inc.
15. NTL (Delaware Two), Inc.
16. NTL (Delaware Three), Inc.
17. NTL Mobile Communications Limited
18. De Facto 877 Limited
19. NTL Mobile Limited
20. Premium TV Limited
21. Premium TV Investments LLC
22. Classic Sport Limited
23. lcfc.com Limited
24. rangers.co.uk Limited
25. De Facto 953 Limited
26. FLPTV Limited
27. mfc.co.uk Limited
28. NTL International Broadcasting, Inc.
29. NTL Golden Gate, Inc.
30. NTL Investments, Inc.
31. Premium TV (Ventures) Limited
32. Middlesborough Football & Athletics Company Holdings Limited
33. Rangers Media Investments Limited
34. Shepherd Offshore PLC Loan Notes owned by Premium TV Limited
35. L.D. Data, Inc.
36. DIVA Systems Corp.
37. Into Networks, Inc.
38. B2 Bredband AB and its holdings companies
39. NTL Australia SPV, Inc.
40. National Transcommunications Spain, SL.
41. NTL France SPV, Inc. and its Subsidiaries
Schedule 1.01-D
EXISTING INDEBTEDNESS
---------------------
A. Individual Items of Existing Indebtedness of more than $50 million
excluding intra-group indebtedness
1. Indebtedness under the Working Capital Facility and related
documents.
2. Indebtedness under the Senior Credit Facility and related
documents.
3. Indebtedness of NTL (Triangle) LLC under its 11.2% Senior
Discount Debentures due November 15, 2007;
4. Indebtedness of Diamond Cable Communications Limited ("Diamond")
and Diamond Holdings Limited under the 10% Senior Sterling Notes
due February 1, 2008, issued by Diamond Holdings Limited, a
wholly-owned subsidiary of Diamond; and
5. Indebtedness of Diamond and Diamond Holdings Limited under the 9
1/8% Senior Notes due February 1, 2008, issued by Diamond
Holdings Limited.
6. Indebtedness of Diamond under its 13 1/4% Senior Discount Notes
due September 30, 2004;
7. Indebtedness of Diamond under its 11 3/4% Senior Discount Notes
due December 15, 2005;
8. Indebtedness of Diamond under its 10 3/4% Senior Discount Notes
due February 15, 2007;
B. Intra group or intercompany indebtedness.
1. All other intra group and intercompany indebtedness.
C. The Company and its Subsidiaries have Existing Indebtedness other
than that described in parts A and B of this Schedule 1.01-D which
individually does not exceed $50 million and in the aggregate, on a
consolidated basis, does not exceed $280 million.
Schedule 1.01-E
EXISTING INVESTMENTS
--------------------
1. Cable Guide Limited
2. Channel 5 Engineering Services Limited
3. SDN Limited
4. Digital One Limited
5. NTL (South Hertfordshire) Limited
6. Unitel Communications Limited
7. Front Row Television Limited
8. Virgin Net Limited
9. Susiephone Limited
10. Moleseye Limited
11. NTL Radio Services Limited
12. South Hertfordshire United Kingdom Fund, Ltd.
13. All other investments which individually do not exceed $100,000
and in the aggregate do not exceed $1 million.
Schedule 1.01-E
(Part B)
PERMITTED INVESTMENTS IN EXISTING
---------------------------------
INVESTMENTS AND EUROCO ASSETS
-----------------------------
See attached schedule
Schedule 1.01-F
PERMITTED LIENS
---------------
A. Individual Liens existing on the Closing Date and securing Indebtedness
-----------------------------------------------------------------------
of the Company and its Subsidiaries of an amount more than $50 million.
-----------------------------------------------------------------------
1. Security Interest of Atlantic Crossing Ltd. (formerly known as
Global Telesystems Ltd.) in the right and title of NTL
International Services, Inc. to the Capacity Purchase Agreement,
(ii) Indefeasible Right of Use Agreement, (iii) all rights of
NTL International Services, Inc. to fiber optic
telecommunications system, (iv) all rights which may be
exercised by NTL International Services, Inc. under any option,
election or any other right granted under such agreements, (v)
any claims, rights or remedies the NTL International Services,
Inc. may have against any party to said agreements and (vi) all
proceeds of the foregoing.
2. All collateral covered by UCC File Number 00PN28366, filed in
New York County in the State of New York.
3. All collateral covered by UCC File Number 00PN28367 filed in New
York County in the State of New York.
4. All collateral covered by UCC File Number 0034188, filed with
the Secretary of State of the State of Delaware.
5. All collateral covered by UCC File Number 0034191, filed with
the Secretary of State of the State of Delaware.
6. All collateral covered by UCC File Number 108438, filed with the
Secretary of State of the State of New York.
7. All collateral covered by UCC File Number 108440, filed with the
Secretary of State of the State of New York.
8. All collateral covered by UCC File Number 1979119 filed with the
New Jersey Secretary of State.
9. All collateral covered by UCC File Number 1979114 filed with the
New Jersey Secretary of State.
B. Other Liens existing on the Closing Date.
----------------------------------------
1. Excluding those listed in Part A, the Company and its
Subsidiaries have other Liens in existence on the Closing Date
(excluding Liens which are otherwise Permitted Liens) securing
Indebtedness of the Company and its Subsidiaries which
individually and in the aggregate do not exceed $85 million.
Schedule 5.06
TRANSACTIONS WITH AFFILIATES
----------------------------
1. Transactions entered into with any person (i) prior to such
person becoming an Affiliate of the Company and NTL Companies.
2. Existing and future agreements, instruments, or evidence
representing inter-company debt.
3. Existing and future guarantees, covenants to pay, security and
similar obligations given by one or more of the Company and any
of its Subsidiaries of the liabilities or obligations of one or
more of the Company or any of its Subsidiaries.
4. Existing and future agreements providing for licences under the
Broadcasting Act 1990, the Telecommunications Act 1984, the
Wireless Telegraphy Act 1948 and any consolidating, amending,
modifying or replacing legislation held by the Company or one of
its Subsidiaries and required to be used by NTL or another
Subsidiary of the Company, as the case may be.
5. Disposals of interests in Existing Investments required to be
made under the terms of the constitutional documents,
shareholders agreements or limited partnership agreements
relating thereto. Certain of the constitutional documents and
other agreements relating to Existing Investments have
compulsory transfer and drag along provisions which may be
triggered by a change of control, transfer of shares, insolvency
events or otherwise in accordance with relevant agreements.
6. Existing and future transactions in respect of the allocation of
expenses among the UK and Irish operating companies on a basis
consistent with that described in NTL's historical financial
statements.
7. All arrangements or transactions with Affiliates of the Company
and the NTL Companies in existence on the Closing Date.
8. Transactions between any members of (i) Diamond Cable
Communications Limited and its Subsidiaries and (ii) the BG
Subsidiaries; provided that such transactions are fair to the
relevant member of (i) from a financial point of view and any
opinion or resolution delivered pursuant to the Diamond Holdings
indentures is also addressed or delivered (as the case may be)
to U.S. Bank National Association.
9. Transactions between any members of (i) NTL (Triangle) LLC and
its Subsidiaries and (ii) the BG Subsidiaries; provided that
such transactions are fair to the relevant member of (i) from a
financial point of view and any opinion or resolution delivered
pursuant to the Triangle indentures also is addressed or
delivered (as the case may be) to U.S. Bank National
Association.
10. Payments made by the Company to any of its Subsidiaries pursuant
to the Transaction Agreement, as amended from time to time in
relation to the separation of the residential cable business of
Cable & Wireless Communications plc from the non-residential
business.
11. Transactions between the Company and its Subsidiaries pursuant
to or contemplated by the Transitional Services Agreement, the
Tax Sharing Agreement and the Demerger Agreement between Euroco
and the Company dated on or about the Effective Date, each as
amended from time to time and which are required to prevent a
breach of the Senior Facilities and related documents or the
Diamond Holdings or Triangle Indentures.
12. The CWC Novation Agreement between Euroco, the Company, Cable &
Wireless plc and certain of the subsidiaries of the Company and
Cable & Wireless plc dated on or about the Effective Date, as
amended, novated or supplemented from time to time and
transactions contemplated under the novation agreements which
are required to prevent a breach of the Senior Facilities and
related documents or the Diamond Holdings or Triangle Indentures
or required to prevent a contravention of the UK Financial
Assistance legislation.
13. The apportionment of professional fees incurred prior to the
Effective Date between the NTL Companies and Euroco, as
contemplated by the Reorganization Plan.