1
EXECUTION COPY
NTL INCORPORATED
$625,000,000 11-1/2% SENIOR NOTES DUE 2008
PURCHASE AGREEMENT
October 26, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CHASE SECURITIES INC.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇▇, SACHS & CO.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
NTL incorporated, a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the parties named in Schedule I hereto
$625,000,000 in aggregate principal amount of its 11-1/2% Senior Notes Due 2008
(the "NOTES"). The parties named in Schedule I hereto are each, individually, an
"INITIAL PURCHASER" and, collectively, the "INITIAL PURCHASERS." The Notes are
to be issued under an indenture (the "INDENTURE"), dated as of November 2, 1998,
between the Company and The Chase Manhattan Bank, as trustee (the "TRUSTEE").
The sale of the Notes to the Initial Purchasers will be made
without registration of the Notes under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), in reliance upon exemptions from the registration
requirements of the Securities Act. The Initial Purchasers have advised the
Company that they will offer and sell the Notes purchased by them hereunder in
accordance with Section 4 hereof as soon as they deem advisable after the
execution and delivery of this Agreement.
In connection with the sale of the Notes, the Company has
prepared an offering memorandum, dated October 26, 1998 (the "OFFERING
MEMORANDUM"). Any reference to the Offering Memorandum shall be deemed to refer
to and include all documents incorporated by reference therein to filings made
with the U.S. Securities and Exchange Commission (the "COMMISSION") pursuant to
Section 13(a), 13(c) or 15(d) of the U.S. Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), and all subsequent documents so filed by the
Company with the Commission on or prior to the date of the Offering Memorandum
and any reference to the Offering Memorandum, as amended or supplemented, as of
any specified date, shall be deemed to include (i) any documents filed with the
Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act after
the date of the Offering Memorandum and prior to such specified date and (ii)
all documents filed under the Exchange Act and so deemed to be included in the
Offering Memorandum or any amendment or supplement thereto are hereinafter
called the "EXCHANGE ACT REPORTS."
2
The Offering Memorandum sets forth certain information
concerning the Company and the Notes. The Company hereby confirms that it has
authorized the use of the Offering Memorandum, and any amendment or supplement
thereto, in connection with the offer and sale of the Notes by the Initial
Purchasers.
The holders of the Notes will be entitled to the benefits of
the Registration Rights Agreement to be entered into among the Company and the
Initial Purchasers (the "REGISTRATION RIGHTS AGREEMENT").
For purposes of this Agreement, if closing of the Amalgamation
Agreement (as defined in the Offering Memorandum) occurs on or before the
Closing Date, references to the Company's "SUBSIDIARIES" and the Company's
"MATERIAL SUBSIDIARIES" in respect of periods on or after the closing of the
Amalgamation Agreement shall, in each case, be deemed to include, but not be
limited to, Comcast UK Cable Partners Limited and such subsidiaries of Comcast
UK Cable Partners Limited as shall be deemed to be either "subsidiaries" or
"Material Subsidiaries" as those terms are defined in this Agreement.
1. Representations and Warranties. The Company represents and
warrants to each Initial Purchaser as set forth below in this Section 1.
(a) The Offering Memorandum, at the date hereof does not, and
at the Closing Date (as defined below) will not (and any amendment or
supplement thereto, at the date thereof and at the Closing Date, will
not), contain any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or warranty
as to the information contained in or omitted from the Offering
Memorandum, or any amendment or supplement thereto, in reliance upon
and in conformity with information relating to any Initial Purchaser
furnished in writing to the Company by or on behalf of the Initial
Purchasers specifically for inclusion therein.
(b) Neither the Company, nor any of its Affiliates (as defined
in Rule 501(b) of Regulation D under the Securities Act ("REGULATION
D")), nor any person acting on its or their behalf has, directly or
indirectly, made offers or sales of any security, or solicited offers
to buy any security, under circumstances that would require the
registration of the Notes under the Securities Act.
(c) No securities of the same class as the Notes have been
issued and sold by the Company within the six-month period immediately
prior to the date hereof.
(d) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation
D) in connection with any offer or sale of the Notes in the United
States.
(e) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf has engaged or will engage in any
directed selling efforts within the meaning of Regulation S under the
Securities Act ("REGULATION S") with respect to the Notes, and each of
them has complied with the offering restriction requirements of
Regulation S in connection with the offering of the Notes outside the
United States.
2
3
(f) The Notes satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(g) At the Closing Date, the Company will have been advised by
the National Association of Securities Dealers, Inc. PORTAL Market
("PORTAL") that the Notes have been or will be designated PORTAL
eligible securities in accordance with the rules and regulations of the
National Association of Securities Dealers, Inc.
(h) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT"), without taking account of any exemption
arising out of the number of holders of the Company's securities.
(i) The Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing (or
the local equivalent thereof, if any) under the laws of its
jurisdiction of incorporation and has the corporate power and authority
to carry on its business as it is currently being conducted and to own,
lease and operate its properties, in each case, as described in the
Offering Memorandum, and each is duly qualified and in good standing as
a foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified or in good standing would not have a material adverse effect
on the business, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(j) Neither the Company nor any of its subsidiaries is in
violation of its respective certificate of incorporation or by-laws or
other governing documents or is in default in the performance of any
obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any indenture,
material agreement or material instrument to which the Company or any
of its Material Subsidiaries (as defined in the Indenture) is a party
or by which it or any of its Material Subsidiaries is bound or to which
any of their respective properties is subject or, except as referred to
in the Offering Memorandum, is in violation of any law, statute, rule,
regulation, judgment or court decree applicable to the Company or any
of its Material Subsidiaries or any of their respective properties
(including any laws, statutes, rules or regulations promulgated by the
Independent Television Commission ("ITC"), the Office of
Telecommunications ("OFTEL") and the Department of Trade and Industry
("DTI")), nor has any event occurred which with notice or lapse of time
or both would constitute such a violation or default, except in each
case, which would not have a material adverse effect on the business,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(k) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement, the Indenture and the Registration Rights Agreement and to
issue, sell and deliver the Notes as provided herein and therein.
(l) The (i) issuance and sale of the Notes by the Company,
(ii) execution, delivery and performance of this Agreement, the
indenture and the Registration Rights Agreement, (iii) compliance by
the Company with the provisions of the Notes, this Agreement, the
Indenture and the Registration Rights Agreement, and (iv) consummation
of the transactions contemplated by any of the Notes, this Agreement,
the Indenture and the Registration Rights Agreement, will not
3
4
require any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental
body, including the Federal Communications Commission, ITC, OFTEL or
DTI (except such as may be required under the securities or Blue Sky
laws of the various states and those consents, authorizations,
approvals, orders, filings, registrations or notices that have been
obtained or made and are in full force and effect) and will not
conflict with or constitute a breach of any of the terms or provisions
of, or a default under, the certificate of incorporation or by-laws (or
other governing documents) of the Company or any of its subsidiaries or
any bond, debenture, note or any other evidence of indebtedness or in
any indenture, material agreement or material instrument to which the
Company or any of its Material Subsidiaries is a party or by which it
or any of its Material Subsidiaries is bound or any of their respective
properties is subject, or violate or conflict with any law, statute,
rule, regulation, judgment or court decree applicable to the Company or
any of its Material Subsidiaries or any of their respective properties
(including any laws, statutes, rules or regulations promulgated by ITC,
OFTEL or DTI).
(m) Except as otherwise set forth in the Offering Memorandum,
there are no material investigations, proceedings or actions, whether
judicial or administrative and whether brought by any regulatory body,
administrative agency or other governmental body or by any other
person, pending, or, to the knowledge of the Company, threatened, to
which the Company or any of its Material Subsidiaries is a party or of
which any of their respective properties is the subject.
(n) The Company and each of its Material Subsidiaries have all
such permits, licenses, franchises and authorizations of governmental
or regulatory authorities or other rights currently necessary to be
procured by them in order to engage in the respective businesses
currently conducted by each of them as set forth in the Offering
Memorandum (collectively, "PERMITS"), including, without limitation,
under any laws regulating or relating to the conduct of cable/telephony
operations, as are necessary to own, lease and operate its respective
properties and to conduct its business, except where the failure to
have any such Permit would not have a material adverse effect on the
business, financial condition or results of operations of the Company
and its subsidiaries taken as a whole; the Company and each of its
Material Subsidiaries have fulfilled and performed all of their
respective obligations with respect to such Permits, and no event has
occurred that allows, or after notice or lapse of time would allow,
revocation or termination of any such Permit or result in any other
impairment of the rights of the holder of any such Permit, except in
each case, as would not have a material adverse effect on the business,
financial condition or results of operations of the Company and its
subsidiaries taken as a whole, and subject in each case to such
qualification as may be set forth in the Offering Memorandum; and,
except as described in the Offering Memorandum, no such Permit contains
any restriction that would have a material adverse effect on the
business, financial condition or results of operations of the Company
and its subsidiaries taken as a whole. Neither the Company nor any of
its Material Subsidiaries has any reason to believe that any
governmental body or regulatory agency is considering limiting,
suspending or revoking any Permits, except as would not have a material
adverse effect on the business, financial condition or results of
operations of the Company and its subsidiaries taken as a whole.
(o) This Agreement has been duly and validly authorized,
executed and delivered by the Company.
4
5
(p) The indenture has been duly and validly authorized by the
Company and, when duly executed and delivered by the Company and duly
authorized, executed and delivered by the Trustee, will be the valid
and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent that (i)
enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and (2)
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and (ii) the waiver
contained in Section 4.04 of the indenture may be deemed unenforceable.
(q) The Notes have been duly and validly authorized by the
Company and, when (i) the Notes have been duly executed and
authenticated in accordance with the terms of the Indenture, (ii) the
Notes have been delivered to and paid for by the Initial Purchasers as
contemplated by this Agreement and (iii) the indenture has been duly
executed and delivered by the Company (assuming the due authorization,
execution and delivery thereof by the Trustee), the Notes will be valid
and legally binding obligations of the Company, entitled to the
benefits of the indenture and enforceable against the Company in
accordance with their terms, except to the extent that (1) enforcement
thereof may be limited by (x) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally and (y) general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law) and (2) the waiver contained in Section 4.04 of
the indenture may be deemed unenforceable.
(r) The Registration Rights Agreement has been duly and
validly authorized by the Company and, when duly executed and delivered
by the Company (assuming the due authorization, execution and delivery
thereof by the Initial Purchasers), will be the valid and legally
binding obligation of the Company, enforceable against the Company in
accordance with its terms except as the enforceability thereof may be
limited by the effect of (x) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally and (y) general principles of
equity (whether enforcement is considered in a proceeding in equity or
at law).
(s) The consolidated financial statements of the Company and
its subsidiaries present fairly in all material respects the financial
position and results of operations of the Company and its subsidiaries
at the respective dates and for the respective periods indicated. Such
financial statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout
the periods presented except as described in the Offering Memorandum
and except that the unaudited interim financial statements are subject
to normal year end adjustments. The selected financial data included in
the Offering Memorandum present fairly the information shown therein
and have been prepared on a basis consistent with that of the financial
statements included in the Offering Memorandum.
(t) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange
Act.
(u) The Company has not paid or agreed to pay to any person
any compensation for soliciting another to purchase any securities of
the Company (except as contemplated by this Agreement).
5
6
(v) The information provided by the Company pursuant to
Section 5(g) hereof will not, at the date thereof contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading
(w) It is not necessary in connection with the offer, sale and
delivery of the Notes in the manner contemplated by this Agreement and
the Offering Memorandum to register the Notes under the Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as amended
(the "TRUST INDENTURE ACT").
(x) There is no employee pension or benefit plan with respect
to which the Company or any corporation considered an affiliate of the
Company within the meaning of Section 407(d)(7) of ERISA is a party in
interest or disqualified person. The execution and delivery of this
Agreement, the Indenture and the Registration Rights Agreement, and the
resale by the Initial Purchasers of the Notes to certain purchasers as
set forth in Section 4 hereof will not involve any prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975
of the Code. The representation made by the Company in the preceding
sentence is made in reliance upon and subject to the accuracy of, and
compliance with, the representations and covenants made or deemed made
by the purchasers of the Notes as set forth in the Offering Memorandum
under the Section entitled "Transfer Restrictions."
(y) The Exchange Act Reports, when they were or are filed with
the Commission, conformed or will conform in all material respects to
the applicable requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Initial Purchaser, and each Initial Purchaser
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 97.125% of the aggregate principal amount thereof the aggregate
principal amount of Notes set forth opposite such Initial Purchaser's name on
Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Notes
shall be made at 9:00 A.M., New York time, on November 2, 1998, or such later
date as the Initial Purchasers and the Company may agree or as provided in
Section 9 hereof (such date and time of delivery and payment for the Notes being
herein called the "CLOSING DATE"). Delivery of the Notes shall be made to the
Initial Purchasers for their respective account against payment by the Initial
Purchasers of the purchase price thereof to or upon the order of the Company by
wire transfer in same-day funds to a U.S. dollar account designated by the
Company or such other manner of payment as may be designated by the Company and
agreed to by the Initial Purchasers not less than two business days prior to the
Closing Date. Delivery of the Notes shall be made at such location as the
Initial Purchasers shall reasonably designate at least one business day in
advance of the Closing Date and payment for the Notes shall be made at the
office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ("COUNSEL FOR THE INITIAL PURCHASER"), ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Global note certificates representing the Notes
shall be registered in such names and in such denominations as the Initial
Purchasers may request not less than two full U.S. business days in advance of
the Closing Date.
6
7
The Company agrees to have the Notes available for inspection
and checking by the Initial Purchasers in New York, New York not later than 9:00
A.M., New York time, on the business day prior to the Closing Date.
4. Offering of Notes. Each Initial Purchaser (i) acknowledges
that the Notes have not been registered under the Securities Act and may not be
offered or sold except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act or pursuant to
an effective registration statement under the Securities Act and (ii) severally,
not jointly, represents and warrants to, and agrees with, the Company that:
(a) It has not offered or sold, and will not offer or sell,
any Notes except (i) to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Securities Act)
and that, in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of such securities is
aware that such sale is being made in reliance on Rule 144A or (ii) to
non-U.S. persons in accordance with Regulation S and in compliance with
the representations, warranties and agreements in this Section 4 (all
such persons referred to in clauses (i) and (ii) are hereinafter
collectively referred to as "ELIGIBLE PURCHASERS").
(b) Neither it nor any of its Affiliates or any person acting
on its or their behalf has made or will make offers or sales of the
Notes in the United States by means of any form of general solicitation
or general advertising (within the meaning of Regulation D) in the
United States, except pursuant to a registered public offering as
provided in the Registration Rights Agreement.
(c) Neither it nor any of its Affiliates, nor any person
acting on its or their behalf will, directly or indirectly, make offers
or sales of any security, or solicit offers to buy any security, under
circumstances that would require the registration of the Notes under
the Securities Act.
(d) Neither it nor any of its Affiliates, nor any person
acting on its or their behalf will engage in any directed selling
efforts with respect to the Notes, except pursuant to a registered
public offering as provided in the Registration Rights Agreement.
(e) (i) it has not offered or sold, and, prior to the expiry
of the period of six months from the Closing Date, it will not offer or
sell, any Notes in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or as agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within
the meaning of the Public Offers of Securities Regulations 1995, (ii)
it has complied and will comply with all applicable provisions of the
Financial Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in
relation to the Notes in, from or otherwise involving the United
Kingdom, and (iii) it has only issued or passed on and will only issue
or pass on in the United Kingdom any document received by it in
connection with the issue of the Notes to a person who is of a kind
described in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇
(Investment Advertisements) (Exemptions) Order 1996, as amended, or is
a person to whom the document may otherwise lawfully be issued or
passed on.
7
8
(f) No action has been or will be taken by the Company or any
other person that would permit the offer or sale of the Notes or the
possession or the distribution of the Offering Memorandum or any other
offering or publicity material relating to the Notes in any
jurisdiction where action for that purpose is required. The Company
shall have no responsibility with respect to the rights of any person
to offer or sell Notes or to distribute the Offering Memorandum or any
other offering material relating to the Notes in any jurisdiction.
Accordingly, no Initial Purchaser shall offer, sell or deliver any
Notes, or distribute the Offering Memorandum or any other offering or
publicity material relating to the Notes, in any jurisdiction except in
compliance with applicable laws and regulations of that jurisdiction.
Each Initial Purchaser shall obtain any consent, approval or
authorization required for it to offer or sell Notes, or to distribute
the Offering Memorandum or any other offering or publicity material
relating to the Notes under the laws or regulations of any jurisdiction
where it proposes to make offers or sales of Notes, or to distribute
the Offering Memorandum or any other offering material relating to the
Notes, in each case at its own expense, except for the reasonable fees
and disbursements of Counsel for the Initial Purchasers relating to the
registration or qualification of the Notes for offer and sale under the
securities or Blue Sky laws of the several states of the United States.
(g) The Notes have not been and will not be registered under
the Securities Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act. It represents that it
has not offered, sold or delivered the Notes, and will not offer, sell
or deliver the Notes (i) as part of its distribution at any time or
(ii) otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, within the United States or to, or for
the account or benefit of, U.S. persons, except in accordance with Rule
903 of Regulation S or Rule 144A under the Securities Act. Accordingly,
it agrees that neither it, its Affiliates nor any persons acting on its
or their behalf has engaged or will engage in any directed selling
efforts within the meaning of Rule 901(b) of Regulation S with respect
to the Notes, and it, its Affiliates and all persons acting on its or
their behalf have complied and will comply with the offering
restrictions requirements of Regulation S.
(h) It represents and agrees that the Notes offered and sold
in reliance on Regulation S have been and will be offered and sold only
in offshore transactions and that such securities have been and will be
represented upon issuance by a global security that may not be
exchanged for definitive securities until the expiration of the
Distribution Compliance Period (as defined in Rule 902(f) of Regulation
S) and only upon certification of beneficial ownership of the
securities by a non-U.S. person or a U.S. person who purchased such
securities in a transaction that was exempt from the registration
requirements of the Securities Act.
(i) It agrees that, at or prior to confirmation of a sale of
Notes (other than a sale in accordance with Section 4(a) hereof), it
will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Notes from
it during the Distribution Compliance Period a confirmation or notice
to substantially the following effect:
"The Notes covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "SECURITIES
ACT"), and may not be offered and sold within the United
States or to, or for the account or benefit of, U.S. persons
(i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later
8
9
of the commencement of the offering and the date of closing of
the offering, except in either case in accordance with
Regulation S (or Rule 144A or another exemption from the
registration requirements of the Securities Act if available)
under the Securities Act. Terms used above have the meaning
given to them by Regulation S."
It further agrees that it has not entered and will not enter
into any contractual arrangement with respect to the distribution or
delivery of the Notes, except with its Affiliates or with the prior
written consent of the Company.
(j) It agrees not to cause any advertisement of the Notes to
be published in any newspaper or periodical or posted in any public
place and not to issue any circular relating to the Notes, except such
advertisements that include the statements required by Regulation S.
Terms used in this Section 4 that have meanings assigned to
them in Regulation S are used in this Section 4 as so defined.
5. Agreements. The Company agrees with each Initial Purchaser
that:
(a) The Company will furnish to each Initial Purchaser and to
Counsel for the Initial Purchasers, without charge, during the period
referred to in paragraph (b) below, as many copies of the Offering
Memorandum and any amendments and supplements thereto as it may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(b) At any time prior to the completion of the sale of the
Notes by the Initial Purchasers, the Company will not amend or
supplement the Offering Memorandum if the Initial Purchasers reasonably
object to such amendment or supplement within two business days after
receiving a copy thereof and if at any time prior to the completion of
the sale of the Notes by the Initial Purchasers, any event occurs as a
result of which the Offering Memorandum, as then amended or
supplemented, would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it should be necessary to amend or supplement the
Offering Memorandum to comply with applicable law, the Company will
promptly notify the Initial Purchasers of the same, will prepare and
provide to the Initial Purchasers the proposed amendment or supplement
which will correct such statement or omission or effect such compliance
and will not publish such amendment or supplement if the Initial
Purchasers reasonably object to the publication of such amendment or
supplement within two business days after receiving a copy thereof.
(c) The Company will arrange for the qualification of the
Notes for sale by the Initial Purchasers under the laws of such
jurisdictions, if any, as the Initial Purchasers may reasonably
designate in writing prior to the date of this Agreement and will
maintain such qualifications in effect so long as reasonably required
for the distribution of the Notes; provided, however, that the Company
shall not be required in connection therewith to qualify to do business
in any jurisdiction where it is not now so qualified or to take any
action which would subject it to general or unlimited service of
process or taxation in any jurisdiction where it is not now so subject.
The Company will promptly advise the Initial Purchasers of the receipt
by the
9
10
Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(d) The Company will not, and will not permit any of its
Affiliates to, resell any Notes that have been acquired by any of them.
(e) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf will, directly or indirectly, make
offers or sales of any security, or solicit offers to buy any security,
under circumstances that would require the registration of the Notes
under the Securities Act.
(f) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation
D) in connection with any offer or sale of the Notes in the United
States, except pursuant to a registered public offering as provided in
the Registration Rights Agreement.
(g) So long as any of the Notes are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, the
Company will, during any period in which it is not subject to and in
compliance with Section 13 or 15(d) of the Exchange Act, provide to
each holder of such restricted securities and to each prospective
purchaser (as designated by such holder) of such restricted securities,
upon the request of such holder or prospective purchaser, any
information required to be provided by Rule 144A(d)(4) under the
Securities Act. This covenant is intended to be for the benefit of the
holders, and the prospective purchasers designated by such holders,
from time to time of such restricted securities.
(h) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf will engage in any directed
selling efforts with respect to the Notes, except pursuant to a
registered public offering as provided in the Registration Rights
Agreement, and each of them will comply with the offering restrictions
requirement of Regulation S. Terms used in this paragraph have the
meanings given to them by Regulation S.
(i) The Company will cooperate with the initial Purchasers and
use its best efforts to permit the Notes to be eligible for clearance
and settlement through DTC and, with respect to any Notes sold in
accordance with Regulation S. the Cedel Bank, societe anonyme ("CEDEL
BANK"), and the Euroclear System ("EUROCLEAR").
(j) The Company will not, until 90 days following the Closing
Date, without the prior written consent of the initial Purchasers,
offer, issue, sell or contract to sell, or otherwise dispose of
directly or indirectly, or announce the offering of any senior debt
securities issued or guaranteed by the Company (other than (i) pursuant
to a registered public offering as provided in the Registration Rights
Agreement relating to the Notes, (ii) the solicitation of consents,
waivers or any other action by or from the holders of the Company's
debt securities outstanding immediately prior to the Closing Date,
(iii) the negotiation, syndication, arrangement or completion of or
borrowings under, the Credit Facility (as defined in the indenture) or
(iv) the issuance of registered (a) Series B 9-1/2% Senior Notes due
2008, (b) Series B 10-3/4% Senior Deferred Coupon Notes due 2008 and
(c) Series B 9-314% Senior Deferred Coupon Notes due 2008, in each case
in exchange for privately placed (a) 9-1/2% Senior Notes due 2008, (b)
10-
10
11
3/4% Senior Deferred Coupon Notes due 2008 and (c) 9-3/4% Senior
Deferred Coupon Notes due 2008, respectively).
(k) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement becomes effective or is
terminated, to pay all costs, expenses, fees and taxes incident to and
in connection with: (i) the preparation, printing, filing and
distribution of the Offering Memorandum (including, without limitation,
financial statements and supplements thereto), (ii) the preparation,
printing (including, without limitation, word processing and
duplication costs) and delivery of this Agreement, the Registration
Rights Agreement and the indenture, all Blue Sky Memoranda and all
other agreements, memoranda, correspondence and other documents printed
and delivered in connection herewith and with the sale of the Notes by
the initial Purchasers to certain purchasers as set forth in Section 4
above, (iii) the issuance and delivery of the Notes, (iv) the
registration or qualification of the Notes for offer and sale under the
securities or Blue Sky laws of the several states (including, without
limitation, the reasonable fees and disbursements of the initial
Purchasers' counsel relating to such registration or qualification),
(v) the preparation of certificates for the Notes (including, without
limitation, printing and engraving thereof), (vi) the fees,
disbursements and expenses of the Company's counsel and accountants,
(vii) all expenses and listing fees in connection with the application
for quotation of the Notes on PORTAL, (viii) all fees and expenses
(including fees and expenses of counsel) of the Company in connection
with approval of the Notes by DTC for "book-entry" transfer and
eligibility of settlement of transactions in the Notes sold in
accordance with Regulation S through Euroclear and Cedel Bank, (ix) the
fees and disbursements of the Trustee and the registrars of the Notes
(including fees and disbursement of their counsel) and (x) the
performance by the Company of its other obligations under this
Agreement.
6. Conditions to the Obligations of the initial Purchasers.
The obligations of the Initial Purchasers to purchase the Notes shall be subject
to the accuracy of the representations and warranties on the part of the Company
contained herein at the date and time that this Agreement is executed and
delivered by the parties hereto (the "EXECUTION TIME") and the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Company shall have furnished to the initial Purchasers
the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President, General
Counsel and Secretary of the Company, dated the Closing Date, to the
effect that:
(i) each of the Company and CableTel UK Group, Inc.
and any other subsidiary of the Company which is a
"significant subsidiary" as defined in Rule 1-02(w) of
Regulation S-X under the Securities Act and is incorporated
under the laws of the State of Delaware (for purposes of this
Section 6(a) only, individually, a "SUBSIDIARY" and
collectively, the "SUBSIDIARIES") has been duly incorporated
and is validly existing as a corporation and is in good
standing under the laws of the State of Delaware with full
corporate power and authority to own its properties and
conduct its business as described in the Offering Memorandum,
and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction
which requires such qualification where failure so to qualify
would have a material adverse effect on the Company and its
subsidiaries taken as a whole;
11
12
(ii) all the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Offering Memorandum, all of the
outstanding shares of capital stock of the Subsidiaries are
owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization
is as set forth in the Offering Memorandum;
(iv) the indenture has been duly authorized, executed
and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its
terms, except to the extent that (i) enforcement thereof may
be limited by (1) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to or affecting creditor's rights generally and (2)
general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law)
and (ii) the waiver contained in Section 4.04 of the indenture
may be deemed unenforceable;
(v) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and,
assuming the due authorization, execution and delivery thereof
by the initial Purchasers, constitutes a valid and legally
binding obligation of the Company enforceable against the
Company in accordance with its terms, except to the extent
that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors'
rights generally, (ii) general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law) and (iii) the enforceability
of indemnification and contribution provisions may be limited
by Federal and state securities laws or the public policy
underlying such laws;
(vi) the Notes have been duly and validly authorized
and executed by the Company and, when duly authenticated in
accordance with the terms of the indenture and delivered to
and paid for by the initial Purchasers as contemplated by this
Agreement (assuming the due authorization, execution and
delivery of the indenture by the Trustee), will constitute
valid and legally binding obligations of the Company, entitled
to the benefits of the indenture and enforceable against the
Company in accordance with their terms, except to the extent
that (1) enforcement thereof may be limited by (x) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors'
rights generally and (y) general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law) and (2) the waiver contained
in Section 4.04 of the Indenture may be deemed unenforceable;
(vii) the statements set forth under the heading
"Description of Notes" and "Description of Certain
Indebtedness" in the Offering Memorandum, insofar as they
purport to constitute a summary of documents referred to
therein (and assuming that the
12
13
documents referred to therein are governed by the law of New
York or Delaware) fairly present such documents in all
material respects;
(viii) this Agreement has been duly authorized,
executed and delivered by the Company;
(ix) no consent, approval, authorization or order of
any Delaware, New York or U.S. federal court or governmental
agency or body is required for the consummation of the
transactions contemplated herein, except such as may be
required under the blue sky or securities laws of any
jurisdiction in connection with the purchase and sale of the
Notes by the initial Purchasers (as to which counsel need
express no opinion) and such other approvals (specified in
such opinion) as have been obtained;
(x) the issuance and sale of the Notes by the
Company, the execution and delivery of the indenture, the
Registration Rights Agreement and this Agreement by the
Company, compliance by the Company with the terms thereof and
the consummation of the transactions contemplated thereby will
not (a) conflict with the charter or by-laws of the Company,
(b) result in any violation of the General Corporation Law of
the State of Delaware, the laws of the State of New York or
the federal laws of the United States of America (the
"REQUIREMENTS OF LAW") or (c) constitute a breach of or an
event of default under the terms of any indenture or other
agreement to which the Company or any of its subsidiaries is a
party or bound which is listed on Schedule 11 hereto (except
that such counsel need not express an opinion as to any
covenant, restriction or provision of any such agreement with
respect to financial covenants, ratios or tests or any aspect
of the financial condition or results of operations of the
Company or any of its subsidiaries and such counsel may assume
that all such agreements or instruments are governed by the
law of New York or Delaware) or any judgment, order or decree
known to such counsel to be applicable to the Company or any
of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator
(collectively, the "ORDERS") of the United States or the
States of New York or Delaware having jurisdiction over the
Company or any of its subsidiaries which conflict, breach or
default will have a material adverse effect on the condition
(financial or otherwise), earnings, business or properties of
the Company and its subsidiaries taken as a whole or the
transactions contemplated by this Agreement; provided,
however, that such counsel's opinion expressed in this
paragraph may be based on such counsel's review of those
Requirements of Law which, in such counsel's experience, are
normally applicable to transactions of the type contemplated
by in this Agreement, but without having made any special
investigation concerning any other Requirements of Law, and
those Orders specifically identified to such counsel by the
Company as being Orders to which it is subject; provided,
however, that such counsel need express no opinion with
respect to the U.S. federal or state securities laws or blue
sky laws, antifraud laws and the rules and regulations of the
National Association of Securities Dealers, Inc.;
(xi) after due inquiry, such counsel does not know of
any legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is or could be a
party or to which any of their respective property is or could
be subject, which might result in a material adverse effect on
the business, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole;
13
14
(xii) the Indenture is in such form that would not
preclude qualification under the Trust Indenture Act, in
accordance with the Registration Rights Agreement;
(xiii) assuming (1) the accuracy of the
representations and warranties of the Company set forth in
Section I of this Agreement and of the initial Purchasers'
representations and warranties set forth in Section 4 of this
Agreement, (2) the due performance by the Company of the
agreements set forth in Section 5 of this Agreement and the
due performance by the initial Purchasers of the agreements
set forth in Section 4 of this Agreement, (3) compliance by
the initial Purchasers with the offering and transfer
procedures and restrictions described elsewhere in this
Agreement and in the Offering Memorandum, (4) the accuracy of
the representations and agreements made in accordance with
this Agreement and the Offering Memorandum by the purchasers
to whom the initial Purchasers initially resell the Notes and
(5) that purchasers to whom the Initial Purchasers initially
resell the Notes receive a copy of the Offering Memorandum
prior to such sale, the offer, sale and initial resale of the
Notes in the manner contemplated by this Agreement and the
Offering Memorandum, do not require registration under the
Securities Act and the indenture does not require
qualification under the Trust indenture Act, it being
understood that such counsel does not express any opinion as
to any subsequent resale of any Note; and
(xiv) the Company is not required to be registered as
an "investment company" within the meaning of the Investment
Company Act, without taking account of any exemption arising
out of the number of holders of the Company's securities.
Such counsel shall also state that, in the course of
preparation by the Company of the Offering Memorandum, such counsel has
participated in conferences with directors, officers and other representatives
of the Company, representatives of the independent public accountants for the
Company, representatives of the Initial Purchasers and representatives of
Counsel for the Initial Purchasers, at which conferences the contents of the
Offering Memorandum and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the Offering
Memorandum and has made no independent check or verification thereof (except as
stated in paragraph (vii) hereof), on the basis of the foregoing (relying as to
materiality to a large extent upon the statements of directors, officers and
other representatives of the Company), no facts have come to such counsel's
attention which have caused such counsel to believe that the Offering
Memorandum, as of its date or as of the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need not express any opinion or belief with respect to the
financial statements and schedules and other financial and accounting data
included in or omitted from the Offering Memorandum).
Such opinion may be limited to the General Corporation Law of
the State of Delaware and the laws of the State of New York and the federal laws
of the United States and may be subject to customary assumptions, qualifications
and exceptions. In rendering such opinion, such counsel may rely as to matters
involving the application of laws of any jurisdiction other than the State of
New York, the State of Delaware or the United States, to the extent such counsel
deems proper and specified in such opinion, upon the opinion of other counsel
who are satisfactory to Counsel for the Initial Purchasers.
14
15
All references in this Section 6(a) to the Offering Memorandum
shall be deemed to include any amendment or supplement thereto at the Closing
Date.
(b) If the transactions contemplated by the Amalgamation
Agreement shall have closed by the Closing Date, the Company shall have
furnished to the initial Purchasers an opinion of counsel reasonably
satisfactory to the Initial Purchasers, dated the C losing Date, to the
effect that:
(i) Comcast UK Cable Partners Limited has been duly
organized and is validly existing and in good standing under
the laws of its jurisdiction of organization with full power
and authority to own its properties and conduct its business
as described in the Offering Memorandum;
(ii) all the outstanding shares of capital stock of
Comcast UK Cable Partners Limited have been duly and validly
authorized and issued and are fully paid and nonassessable,
and, except as otherwise set forth in the Offering Memorandum,
all of the outstanding shares of capital stock of such entity
are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due
inquiry, any other security interests, claims, liens or
encumbrances;
(c) The Company shall have furnished to the Initial Purchasers
the opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for
the Company, dated the Closing Date, to the effect that:
(i) each of the Company and CableTel UK Group, Inc.
(for purposes of this Section 6(c) only, individually, a
"SUBSIDIARY" and collectively, the "SUBSIDIARIES") has been
duly incorporated and is validly existing as a corporation and
is in good standing under the laws of the State of Delaware;
(ii) the Indenture has been duly authorized, executed
and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its
terms, except to the extent that (i) enforcement thereof may
be limited by (1) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to or affecting creditor's rights generally and (2)
general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law)
and (ii) the waiver contained in Section 4.04 of the Indenture
may be deemed unenforceable;
(iii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and,
assuming the due authorization, execution and delivery thereof
by the initial Purchasers, constitutes a valid and legally
binding obligation of the Company enforceable against the
Company in accordance with its terms, except to the extent
that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors'
rights generally, (ii) general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law) and
15
16
(iii) the enforceability of indemnification and contribution
provisions may be limited by Federal and state securities laws
or the public policy underlying such laws;
(iv) the Notes have been duly and validly authorized
and executed by the Company and, when duly authenticated in
accordance with the terms of the indenture and delivered to
and paid for by the initial Purchasers as contemplated by this
Agreement (assuming the due authorization, execution and
delivery of the indenture by the Trustee), will constitute
valid and legally binding obligations of the Company, entitled
to the benefits of the indenture and enforceable against the
Company in accordance with their terms, except to the extent
that (1) enforcement thereof may be limited by (x) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors'
rights generally and (v) general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law) and (2) the waiver contained
in Section 4.04 of the Indenture may be deemed unenforceable;
(v) the statements made under the heading
"Description of Notes" and "Description of Certain
Indebtedness" in the Offering Memorandum, insofar as they
constitute summaries of the provisions of the indenture and
the Notes, fairly present such provisions in all material
respects;
(vi) this Agreement has been duly authorized,
executed and delivered by
(vii) although the discussion in the Offering
Memorandum under the caption "Certain Federal Income Tax
Considerations" does not purport to discuss all possible U.S.
federal income tax consequences of the purchase, ownership and
disposition of the Notes, such discussion constitutes, in all
material respects, a fair summary of the U.S. federal income
tax consequences of the purchase, ownership and disposition of
the Notes under current law;
(viii) the issuance and sale of the Notes by the
Company, the execution and delivery of the indenture, the
Registration Rights Agreement and this Agreement by the
Company, compliance by the Company with the terms thereof and
the consummation of the transactions contemplated thereby will
not (a) conflict with the charter or by-laws of the Company,
(b) result in any violation of the General Corporation Law of
the State of Delaware, the laws of the State of New York or
the federal laws of the United States of America (the
"REQUIREMENTS OF LAW") or (c) constitute a breach of or event
of default under the terms of any indenture or other agreement
to which the Company or any of its Subsidiaries is a party or
bound which is listed on Schedule 11 hereto (except that such
counsel need not express an opinion as to any covenant,
restriction or provision of any such agreement with respect to
financial covenants, ratios or tests or any aspect of the
financial condition or results of operations of the Company or
any of its subsidiaries and such counsel may assume that all
such agreements or instruments are governed by the law of New
York or Delaware) or any judgment, order or decree known to
such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator (collectively, the
"ORDERS") of the United States or the States of Delaware or
New York having jurisdiction over the
16
17
Company or any of its subsidiaries; provided, however, that
such counsel's opinion expressed in this paragraph may be
based on such counsel's review of those Requirements of Law
which, in such counsel's experience, are normally applicable
to transactions of the type contemplated by in this Agreement,
but without having made any special investigation concerning
any other Requirements of Law, and those Orders specifically
identified to such counsel by the Company as being Orders to
which it is subject; provided, however, that such counsel need
express no opinion in this paragraph with respect to the U.S.
federal or state securities laws or blue sky laws, antifraud
laws and the rules and regulations of the National Association
of Securities Dealers, inc.;
(ix) the indenture is in such form that would not
preclude qualification under the Trust indenture Act, in
accordance with the Registration Rights Agreement; and
(x) assuming (1) the accuracy of the representations
and warranties of the Company set forth in Section I of this
Agreement and of the initial Purchasers' representations and
warranties set forth in Section 4 of this Agreement, (2) the
due performance by the Company of the agreements set forth in
Section 5 of this Agreement and the due performance by the
initial Purchasers of the agreements set forth in Section 4 of
this Agreement, (3) compliance by the initial Purchasers with
the offering and transfer procedures and restrictions
described elsewhere in this Agreement and in the Offering
Memorandum, (4) the accuracy of the representations and
agreements made in accordance with this Agreement and the
Offering Memorandum by the purchasers to whom the initial
Purchasers initially resell the Notes and (5) that purchasers
to whom the Initial Purchasers initially resell the Notes
receive a copy of the Offering Memorandum prior to such sale,
the offer, sale and initial resale of the Notes in the manner
contemplated by this Agreement and the Offering Memorandum, do
not require registration under the Securities Act and the
indenture do not require qualification under the Trust
indenture, it being understood that such counsel does not
express any opinion as to any subsequent resale of any Note.
Such counsel shall also state that, in the course of
preparation by the Company of the Offering Memorandum, such counsel has
participated in conferences with directors, officers and other representatives
of the Company, representatives of the independent public accountants for the
Company, representatives of the initial Purchasers and representatives of
Counsel for the initial Purchasers, at which conferences the contents of the
Offering Memorandum and related matters were discussed and, although such
counsel is not passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the Offering
Memorandum and has made no independent check or verification thereof (except to
the extent stated in paragraphs (v) and (vii) hereof), on the basis of the
foregoing, no facts have come to such counsel's attention which have caused such
counsel to believe that the Offering Memorandum, as of its date and as of the
Closing Date, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need not express any
opinion or belief with respect to the financial statements and schedules and
other financial and accounting data included in or omitted from the Offering
Memorandum).
17
18
Such opinion may be limited to the General Corporation Law of
the State of Delaware and the laws of the State of New York and the federal laws
of the United States and may be subject to customary assumptions, qualifications
and exceptions. In rendering such opinion, such counsel may rely as to matters
involving the application of laws of any jurisdiction other than the State of
New York, the State of Delaware or the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel who are
satisfactory to Counsel for the initial Purchasers
All references in this Section 6(c) to the Offering Memorandum
shall be deemed to include any amendment or supplement thereto at the Closing
Date.
(d) The Company shall have furnished to the initial Purchasers
the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Director of Legal Affairs of the
Company, dated the Closing Date, in the form previously approved by
counsel to the initial Purchasers.
(e) The initial Purchasers shall have received from ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, Counsel for the initial Purchasers, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Notes, the Offering Memorandum (as amended or supplemented at the
Closing Date) and other related matters as the initial Purchasers may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(f) The Company shall have furnished to the initial Purchasers
a certificate of the Company, signed by the Chairman of the Board or
the President and the principal financial or accounting of fleer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Offering Memorandum, any
amendment or supplement to the Offering Memorandum and this Agreement
and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date, and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied hereunder at or prior to the
Closing Date;
(ii) since the date of the most recent financial
statements included in the Offering Memorandum, there has been
no adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries, which is material to the Company and its
subsidiaries taken as a whole whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated by the Offering Memorandum (exclusive
of any amendment or supplement thereto); and
(iii) no consolidated financial statements of the
Company prepared in accordance with U.S. generally accepted
accounting principles as of any date or any period subsequent
to June 30, 1998 are available.
(g) At the Closing Date, Ernst & Young LLP shall have
furnished to the initial Purchasers a letter or letters, dated as of
the Closing Date, in form and substance satisfactory to the initial
Purchasers, confirming that they are independent auditors with respect
to the Company
18
19
within the meaning of Rule 101 of AICPA's Code of Professional Conduct and its
interpretation and rulings and stating in effect that:
(i) the consolidated financial statements and financial
statement schedules audited by them and included in the Offering
Memorandum comply as to form in all material respects with the
applicable requirements of the Exchange Act and the related published
rules and regulations
(ii) they have audited the consolidated balance sheets of the
Company and its subsidiaries as of December 31, 1996 and 1997, and the
consolidated statements of operations, shareholders' equity and cash
flows for each of the three years in the period ended December 31,
1997, all included in the Offering Memorandum;
(iii) they have read the 1997 and 1998 minutes of meetings of
the shareholders and the Board of Directors and other committees of the
Company and its subsidiaries as set forth in the minute books through a
specified date not more than five business days prior to the date of
the letter, and have inquired of certain officials of the Company who
have responsibility for financial and accounting matters;
(iv) with respect to the six-month periods ended June 30, 1997
and 1998, (X) they have (1) performed the procedures specified by the
American Institute of Certified Public Accountants for review of
interim financial information as described in SAS No. 71, "Interim
Financial Information", on the unaudited condensed consolidated
financial statements of the Company and its subsidiaries (the
"UNAUDITED FINANCIALS") included in the Offering Memorandum and (2)
inquired of certain officials of the Company who have responsibility
for financial and accounting matters whether the Unaudited Financials
are stated on a basis substantially consistent with that of the audited
consolidated financial statements of the Company and its subsidiaries
included in the Offering Memorandum and (Y) as a result of the
procedures performed in (X) above, nothing came to their attention that
caused them to believe that any material modifications should be made
to such Unaudited Financials for them to be in conformity with
generally accepted accounting principles;
(v) with respect to the period subsequent to June 30, 1998,
management of the Company has informed them that there were not any
changes at a specified date not more than five business days prior to
the date of the letter, in the long-term debt of the Company and its
subsidiaries or decreases in the capital stock of the Company as
compared with the amounts shown on the June 30, 1998, condensed
consolidated balance sheet referred to above, except in all instances
for changes, decreases or increases set forth in such letter, in which
case the letter shall be accompanied by an explanation by the Company
as to the significance thereof unless said explanation is not deemed
necessary by the Initial Purchasers;
(vi) nothing came to their attention that caused them to
believe that any unaudited pro forma financial statements included in
the Offering Memorandum do not comply as to form in all material
respects with Regulation S-X of the Securities Act or the pro forma
adjustments have not been properly applied to the historical amounts in
the compilation of those statements; and
19
20
(vii) they have performed certain other specified
procedures as a result of which they determined that certain
information of accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Offering
Memorandum agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
In rendering such letter or letters, Ernst & Young LLP may
rely upon the letters of Deloitte & Touche LLP and PriceWaterhouseCoopers LLP
with respect to certain historical financial information included in the
unaudited pro forma financial statements.
(h) At the Closing Date, Deloitte & Touche LLP shall have
furnished to the Initial Purchasers a letter or letters, dated as of
the Closing Date, in form and substance satisfactory to the Initial
Purchasers, confirming that they are independent auditors with respect
to Comcast UK Cable Partners Limited, ComTel UK Finance, B.V. and
Telecential and their respective subsidiaries within the meaning of
Rule 101 of AICPA's Code of Professional Conduct and its interpretation
and rulings and stating in effect that:
(i) the consolidated financial statements and
financial statement schedules audited by them and included in
the Offering Memorandum comply as to form in all material
respects with the applicable requirements of the Exchange Act
and the related published rules and regulations
(ii) they have audited the consolidated balance
sheets of Comcast UK Cable Partners Limited, ComTel UK
Finance, B.V. and Telecential and their respective
subsidiaries as of December 31, 1996 and 1997, and the
consolidated statements of operations, shareholders' equity
and cash flows for each of the three years in the period ended
December 31, 1997, all included in the Offering Memorandum;
(iii) they have read the 1997 and 1998 minutes of
meetings of the shareholders and the Board of Directors and
other committees of Comcast UK Cable Partners Limited, ComTel
UK Finance, B.V. and Telecential and their respective
subsidiaries as set forth in the minute books through a
specified date not more than five business days prior to the
date of the letter, and have inquired of certain officials of
Comcast UK Cable Partners Limited, ComTel UK Finance, B.V. and
Telecential and their respective subsidiaries who have
responsibility for financial and accounting matters;
(iv) with respect to the six-month periods ended June
30, 1997 and 1998, (X) they have (1) performed the procedures
specified by the American Institute of Certified Public
Accountants for review of interim financial information as
described in SAS No. 71, "Interim Financial Information", on
the unaudited condensed consolidated financial statements of
Comcast UK Cable Partners Limited, ComTel UK Finance, B.V. and
Telecential and their respective subsidiaries (the "D&T
UNAUDITED FINANCIALS") included in the Offering Memorandum and
(2) inquired of certain officials of Comcast UK Cable Partners
Limited, ComTel UK Finance, B.V. and Telecential and their
respective subsidiaries who have responsibility for financial
and accounting matters whether the D&T Unaudited Financials
are stated on a basis substantially consistent with
20
21
that of the audited consolidated financial statements of
Comcast UK Cable Partners Limited, ComTel UK Finance, B.V. and
Telecential and their respective subsidiaries included in the
Offering Memorandum and (Y) as a result of the procedures
performed in (X) above, nothing came to their attention that
caused them to believe that any material modifications should
be made to such D&T Unaudited Financials for them to be in
conformity with generally accepted accounting principles;
(v) with respect to the period subsequent to June 30,
1998, management of Comcast UK Cable Partners Limited, ComTel
UK Finance, B.V. and Telecential and their respective
subsidiaries has informed them that there were not any changes
at a specified date not more than five business days prior to
the date of the letter, in the long-term debt of Comcast UK
Cable Partners Limited, ComTel UK Finance, B.V. and
Telecential and their respective subsidiaries or decreases in
the capital stock of Comcast UK Cable Partners Limited, ComTel
UK Finance, B.V. and Telecential and their respective
subsidiaries as compared with the amounts shown on the June
30, 1998, condensed consolidated balance sheet referred to
above, except in all instances for changes, decreases or
increases set forth in such letter, in which case the letter
shall be accompanied by an explanation by Comcast UK Cable
Partners Limited, ComTel UK Finance, B.V. and Telecential
and their respective subsidiaries as to the significance
thereof unless said explanation is not deemed necessary by the
initial Purchasers; and
(vi) they have performed certain other specified
procedures as a result of which they determined that certain
information of accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of
Comcast UK Cable Partners Limited, ComTel UK Finance, B.V. and
Telecential and their respective subsidiaries) set forth in
the Offering Memorandum agrees with the accounting records of
Comcast UK Cable Partners Limited, ComTel UK Finance, B.V. and
Telecential and their respective subsidiaries, excluding any
questions of legal interpretation.
(i) At the Closing Date, PriceWaterhouseCoopers LLP shall have
furnished to the Initial Purchasers a letter or letters, dated as of
the Closing Date, in form and substance satisfactory to the Initial
Purchasers, confirming that they are independent auditors with respect
to Comcast UK Finance B.V. within the meaning of Rule 101 of AICPA's
Code of Professional Conduct and its interpretation and rulings and
stating in effect that:
(i) the consolidated financial statements and financial
statement schedules audited by them and included in the Offering
Memorandum comply as to form in all material respects with the
applicable requirements of the Exchange Act and the related published
rules and regulations
(ii) they have audited the consolidated balance sheets Comcast
UK Finance B.V. as of December 31, 1996 and the consolidated statements
of operations, shareholders' equity and cash flows for each of the two
years in the period ended December 31, 1996, all included in the
Offering Memorandum;
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of
accounting, financial or statistical
21
22
nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of Comcast UK
Finance B.V.) set forth in the Offering Memorandum agrees with the
accounting records of Comcast UK Finance B.V., excluding any questions
of legal interpretation.
(j) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Offering Memorandum, there
shall not have been (i) any change or decrease specified in the letter
or letters referred to in paragraph (f) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or
affecting the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries the effect
of which is, in the judgment of the Initial Purchasers, so material and
adverse as to make it impractical or inadvisable to market the Notes as
contemplated by the Offering Memorandum.
(k) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act).
(l) Prior to the Closing Date, the Company shall have
furnished to the Initial Purchasers such further information,
certificates and documents as the Initial Purchasers may reasonably
request.
(m) On or prior to the Closing Date, the Indenture and the
Registration Rights Agreement shall have been executed substantially in
the form hereto delivered to you and shall have been delivered to you
and the Trustee.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Initial Purchasers and Counsel for the
Initial Purchasers, this Agreement and all obligations of the Initial Purchasers
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Initial Purchasers. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will
be delivered at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Counsel for the Initial
Purchasers, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the Closing Date.
7. Reimbursement of Expenses. If the sale of the Notes
provided for herein is not consummated because any condition to the obligations
of the Initial Purchasers set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Initial Purchasers in payment for the Notes on the Closing
Date, the Company will reimburse the Initial Purchasers upon demand for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Notes against appropriate receipts there for.
22
23
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Initial Purchaser, each person who controls any
Initial Purchaser within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act and the respective officers, directors,
partners, employees, representatives and agents of such Initial Purchaser or
controlling person thereof against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Offering Memorandum, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made in the Offering Memorandum or any
information provided by the Company to any holder or prospective purchaser of
Notes pursuant to paragraph 5(g) hereof or in any amendment thereof or
supplement thereto, in reliance upon and in conformity with written information
relating to any Initial Purchaser furnished to the Company by or on behalf of
any Initial Purchaser specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Initial Purchaser, severally and not jointly, agrees
to indemnify and hold harmless the Company, its directors, its officers, and
each person who controls the Company within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Initial Purchaser, but only with
reference to written information relating to such Initial Purchaser furnished to
the Company by or on behalf of such Initial Purchaser specifically for inclusion
in the Offering Memorandum (or in any amendment or supplement thereto). This
indemnity agreement will be in addition to any liability which any Initial
Purchaser may otherwise have. The Company acknowledges that the statements
relating to the Initial Purchasers set forth in the last paragraph of the cover
page and in the second and third sentences of the second paragraph, the fifth
paragraph and the eleventh paragraph under the heading "Plan of Distribution" in
the Offering Memorandum constitute the only information furnished in writing by
or on behalf of the Initial Purchasers for inclusion in the Offering Memorandum
(or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action (including any
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the
23
24
indemnified party or parties except as set forth below); provided, however, that
such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the indemnifying party shall authorize the indemnified
party in writing to employ separate counsel at the expense of the indemnifying
party, (ii) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (iii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the named parties of
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded based upon the advice of such counsel (with a copy to the indemnifying
party) that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party (in any of which cases the indemnifying party shall not have
the right to assume the defense of such action on behalf of such indemnified
party, it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all such
indemnified parties, which firm shall be designated in writing by the
indemnified party, and that all such reasonable fees and expenses shall be
reimbursed as they are incurred upon written request and presentation of
satisfactory invoices). The indemnifying party shall indemnify and hold harmless
the indemnified party from and against all losses, claims, damages and
liabilities by reason of any settlement of any action (i) effected with its
written consent or (ii) effected without its written consent if the settlement
is entered into more than twenty business days after the indemnifying party
shall have received a request from the indemnified party for reimbursement for
the fees and expenses of counsel (in any case where such fees and expenses are
at the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such
reimbursement request. Notwithstanding the immediately preceding sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, an
indemnifying party shall not be liable for any settlement of the nature
contemplated by the immediately preceding sentence effected without its consent
if such indemnifying party (i) reimburses such indemnified party in accordance
with such request to the extent that it considers such request to be reasonable
and (ii) provides written notice to the indemnified party substantiating the
unpaid balance as unreasonable, in each case, prior to the date of settlement.
An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act, by or on behalf of the indemnified party.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Initial Purchasers agree
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "LOSSES") to which the Company
and one or more of the Initial Purchasers may be
24
25
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company and by the Initial Purchasers from the offering of the
Notes; provided, however, that in no case shall any Initial Purchaser (except as
may be provided in any agreement among the Initial Purchasers relating to the
offering of the Notes) be responsible for any amount in excess of the purchase
discount or commission applicable to the Notes purchased by such Initial
Purchaser hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Initial Purchasers
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of the Initial
Purchasers in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses), and benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts and
commissions received by the Initial Purchasers from the Company in connection
with the purchase of the Notes hereunder. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the Company or the Initial Purchasers. The Initial
Purchasers' respective obligations to contribute to this Section 8 are several
in proportion to the principal amount of Notes they have purchased hereunder,
and not joint. The Company and the Initial Purchasers agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Initial Purchaser within the meaning of either the Securities Act or the
Exchange Act and each director, officer, employee and agent of an Initial
Purchaser shall have the same rights to contribution as such Initial Purchaser,
and each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act and each officer, director, employee and
agent of the Company shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this paragraph
(d).
9. Default by an Initial Purchaser. If any one or more Initial
Purchasers shall fail to purchase and pay for any of the Notes agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the principal amount of the
Notes set forth opposite their names in Schedule I bears to the aggregate
principal amount of such Notes set forth opposite the names of all the remaining
Initial Purchasers in Schedule I) the Notes which the defaulting Initial
Purchaser or Initial Purchasers agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of such Notes
which the defaulting Initial Purchaser or Initial Purchasers agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of such Notes set
forth in Schedule 1, the remaining Initial Purchasers that agreed to purchase
such Notes shall have the right to purchase all, but shall not be under any
obligation to purchase any, of such Notes, and if such non-defaulting Initial
Purchasers do not purchase all such Notes, this Agreement will terminate without
liability to any non-defaulting Initial Purchaser or the Company. In the event
of a default by any Initial Purchaser as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the non-defaulting Initial Purchasers shall determine in order that the required
changes in the Offering Memorandum or in any other documents or arrangements may
be effected. Nothing contained in this Agreement shall relieve any defaulting
Initial Purchaser of its liability, if any, to the Company or any non-defaulting
Initial Purchaser for damages occasioned by its default hereunder.
25
26
10. Termination. This Agreement shall be subject to
termination by notice given by the Initial Purchasers to the Company, if (a)
after the execution and delivery of this Agreement and prior to the Closing Date
(i) trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Initial
Purchasers, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Initial Purchasers,
impracticable or inadvisable to market the Notes on the terms and in the manner
contemplated in the Offering Memorandum.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Initial Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Initial
Purchasers or the Company or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Notes. The provisions of Sections 7 and 8 hereof shall survive
the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Initial Purchasers, will be
mailed, delivered or sent by facsimile (212-761-0086) and confirmed to them, at
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attention: General Counsel; or, if sent to the Company, will be mailed,
delivered or sent by facsimile (212-906-8497) and confirmed to it at ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: General Counsel.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof
and, except as expressly set forth in Section 5(h) hereof no other person will
have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
15. Business Day. For purposes of this Agreement, "business
day" means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a
day on which banking institutions in The City of New York, New York are
authorized not to open or are not obligated by law, executive order or
regulation to open.
16. Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
[Signature pages follow]
26
27
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof
whereupon this Agreement and your acceptance shall represent a binding agreement
between the Company and the Initial Purchaser.
Very truly yours,
NTL INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
___________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman
28
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
__________________________________
Name:
Title:
CHASE SECURITIES INC.
By: Illegible
__________________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇, SACHS & CO.
By: /s/ Goldman, Sachs, & Co.
__________________________________
Name:
Title:
29
SCHEDULE I
PRINCIPAL AMOUNT OF NOTES
INITIAL PURCHASER TO BE PURCHASED
---------------------------------------------------------------------- -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated .................................... $ 406,250,000
Chase Securities Inc. ................................................ 93,750,000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation................... 62,500,000
▇▇▇▇▇▇▇, Sachs & Co. ................................................. 62,500,000
=============
TOTAL ........................................................... $ 625,000,000
30
SCHEDULE II
1. Amended and Restated Agreement of Reorganization and Plan of Merger,
dated as of May 28, 1993, among the Company, OCOM Corporation and
CableTel Merger, Inc.
2. Rights Agreement, dated as of October 1, 1993, between the Company and
Continental Stock Transfer & Trust Company, as Rights Agent.
3. Indenture, dated as of April 20, 1995, between the Company and the
Trustee, governing the Company's 12-3/4% Senior Deferred Coupon Notes
Due 2005, as amended by a First Supplemental Indenture, dated as of
January 22, 1996, as amended by a Second Supplemental Indenture, dated
as of October 14, 1998.
4. Indenture, dated as of January 30, 1996, between the Company and the
Trustee, governing the Company's 11-1/2% Senior Deferred Coupon Notes
Due 2006, as amended by a First Supplemental Indenture, dated as of
October 14, 1998.
5. Indenture, dated as of June 12, 1996, between the Company and the
Trustee governing the Company's 7% Convertible Subordinated Notes Due
2008.
6. Indenture, dated as of February 12, 1997, between the Company and the
Trustee governing the Company's 10% Senior Notes Due 2007, as amended
by a First Supplemental Indenture, dated as of October 14, 1998.
7. Warrants to Purchase Common Stock issued by the Company to various
persons in the form included as an exhibit to the Company's Annual
Report on Form 10-K for the year ended December 31, 1995.
8. NTL, Inc. 1993 Stock Option Plan.
9. NTL, Inc. 1993 Non-Employee Director Stock Option Plan.
10. OCOM Corporation 1991 Stock Option Plan.
11. Consulting Agreement between the Company and Insight Communications
Company, L.P.
12. Non-Competition Agreements between the Company and various persons in
the form included as an exhibit to the Company's Annual Report on Form
10-K for the year ended December 31, 1995.
13. Credit Facility between the Company and The Chase Manhattan Bank, dated
as of October 17, 1997, as amended by that certain letter agreement,
dated as of March 6, 1998.
14. Indenture, dated as of March 13, 1998, between the Company and The
Chase Manhattan Bank governing the Company's 9-1/2% Sterling Senior
Notes Due 2008.
31
15. Indenture, dated as of February 12, 1997, between the Company and The
Chase Manhattan Bank governing the Company's 10-3/4% Sterling Senior
Deferred Coupon Notes Due 2008.
16. Indenture, dated as of February 12, 1997, between the Company and The
Chase Manhattan Bank governing the Company's 9-3/4% Senior Deferred
Coupon Notes Due 2008.
17. Agreement and Plan of Amalgamation, dated as of February 4, 1998, as
amended, among the Company, NTL (Bermuda) Limited, a Bermuda
corporation and a wholly-owned subsidiary of the Company and Comcast UK
Cable Partners Limited.(1)
18. Share Exchange Agreement, dated as of June 16, 1998, among the Company
and the shareholders of Diamond Cable Communications Plc. set forth
therein.
----------
(1) This agreement may be removed from this Schedule II if the amalgamation
has closed by the Closing Date.