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Exhibit 99.5
July 22, 1999
Exchange Agent Agreement
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention:
Ladies and Gentlemen:
NTL Communications Corp. (the "Company") proposes to make an offer
(the "Exchange Offer") to exchange an aggregate principal amount of up to Pound
Sterling 330,000,000 of its 9 3/4% Series B Senior Deferred Coupon Notes Due
2009 (the "New Notes"), which have been registered under the Securities Act of
1933, as amended, for a like principal amount of the Company's outstanding 9
3/4% Senior Deferred Coupon Notes Due 2009 (the "Old Notes"). The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus dated July 22, 1999 (the "Prospectus"), proposed to be distributed to
all record holders of the Old Notes as of July 26, 1999. The Old Notes and the
New Notes are collectively referred to herein as the "Notes".
The Company hereby appoints The Chase Manhattan Bank to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the Company on or
about July 23, 1999. The Letter of Transmittal accompanying the Prospectus is
to be used by the holders of the Old Notes to accept the Exchange Offer, and
contains instructions with respect to the delivery of certificates for Old
Notes tendered.
The Exchange Offer shall expire at 5:00 P.M., London time, on August
20, 1999, or on such later date or time to which the Company may extend the
Exchange Offer (the "Expiration Date"). Subject to the terms and conditions set
forth in the Prospectus, the Company expressly reserves the right to extend the
Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (promptly confirmed in
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writing) or written notice to you before 9:00 A.M., London time, on the business
day following the previously scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate the Exchange
Offer, and not to accept for exchange any Old Notes not theretofore accepted for
exchange, upon the occurrence of any of the events specified in the Prospectus
under the caption "The Exchange Offer -- Conditions to the Exchange Offer" The
Company will give oral (promptly confirmed in writing) or written notice of any
amendment, termination or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in accordance
with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus entitled "The Exchange Offer" and as
specifically set forth herein and such duties which are necessarily incidental
thereto.
2. You will establish an account with respect to the Old Notes at either
Euroclear or Cedel Bank (each a "Book-Entry Transfer Facility") for purposes of
the Exchange Offer within two business days after the date of the Prospectus,
or, if you already have established an account with the Book-Entry Transfer
Facility suitable for the Exchange Offer, you will identify such pre-existing
account to be used in the Exchange Offer, and any financial institution that is
a participant in the Book-Entry Transfer Facility's systems may make book-entry
delivery of the Old Notes by causing the Book-Entry Transfer Facility to
transfer such Old Notes into your account in accordance with the Book-Entry
Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and certificates
for Old Notes (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility) and any other documents delivered or mailed to you
by or for holders of the Old Notes to ascertain whether: (I) the Letters of
Transmittal and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein and (ii) the Old
Notes have otherwise been properly tendered. In each case where the Letter of
Transmittal or any other document has been improperly completed or executed or
any of the certificates for Old Notes are not in proper form for transfer or
some other irregularity in connection with the acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need (I) for
fulfillment of all requirements and (ii) to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
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4. With the approval of the Chairman of the Board, President or any Vice
President of the Company (such approval, if given orally, to be promptly
confirmed in writing) or any other party designated by such an officer in
writing, you are authorized to waive any defects, irregularities or conditions
of tender in connection with any tender of Old Notes pursuant to the Exchange
Offer.
5. Tenders of Old Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "Procedures for
Tendering Old Notes," and Old Notes shall be considered properly tendered to you
only when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5 Old Notes which the
Chairman of the Board, President or any Vice President of the Company or any
other party designated by such officer in writing shall approve as having been
properly tendered shall by considered to be properly tendered (such approval, if
given orally, shall be promptly confirmed in writing).
6. You shall advise the Company with respect to any Old Notes delivered
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Old Notes.
7. You shall accept Tenders:
(a) in case where the Old Notes are registered in two or more names only if
signed by all named holders,
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only
when proper evidence of his or her authority so to act is submitted;
and
(c) from persons other than the registered holder of Old Notes provided
that customary transfer requirements, including any applicable transfer
taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old Notes to
the transfer agent for split-up and return any untendered Old Notes to the
holder (or such other person as may be designated in the Letter of Transmittal)
as promptly as practicable after expiration or termination of the Exchange
Offer.
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8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice, if given orally, to be promptly
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Old Notes properly tendered and you, on behalf of the Company, will exchange
such Old Notes for New Notes and cause such Old Notes to be canceled. Delivery
of New Notes will be made on behalf of the Company by you at the rate of pound
sterling 1,000 principal amount of New Notes for each pound sterling 1,000
principal amount of Old Notes tendered promptly after notice (such notice, if
given orally, to be promptly confirmed in writing) of acceptance of such Old
Notes by the Company; provided, however, that in all cases, Old Notes tendered
pursuant to the Exchange Offer will be exchanged only after timely receipt by
you of certificates for such Old Notes (on confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility), a properly completed and
duly executed Letter of Transmittal (or facsimile thereof or an Agent's Message
(as defined in the Prospectus) in lieu thereof) with any required signature
guarantees and any other required document. You shall issue New Notes only in
denominations of pound sterling 1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer may be
withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old Notes tendered if
any of the conditions set forth in the Exchange Offer are not met. Notice of any
decision by the Company not to exchange any Old Notes tendered shall be given
(such notice, if given orally, shall be promptly confirmed in writing) by the
Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Notes tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus under the caption
"The Exchange Offer -- Conditions to the Exchange" or otherwise, you shall as
soon as practicable after the expiration or termination of the Exchange Offer
return those certificates for unaccepted Old Notes (or effect appropriate
book-entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in your possession, to the
persons who deposited them.
12. All certificates for reissued Old Notes, unaccepted Old Notes or for
New Notes shall be forwarded by (a) first-class mail, postage prepaid under a
blanket
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surety bond protecting you and the Company from loss or liability arising out
of the nonreceipt or nondelivery of such certificates or (b) by registered mail
insured separately for the replacement value of each of such certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons
or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any
of the certificates or the Old Notes represented thereby deposited with you
pursuant to the Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange Offer;
(b) shall not be obligated to take any action hereunder which might in
your reasonable judgment involve any expense or liability, unless you shall
have been furnished with reasonable indemnity;
(c) shall not be liable to the Company for any action taken or omitted by
you, or any action suffered by you to be taken or omitted, without negligence,
wilful misconduct or bad faith on your part, by reason of or as a result of the
administration of your duties hereunder in accordance with the terms and
conditions of this Agreement or by reason of your compliance with the
instructions set forth herein or with any written or oral instructions
delivered to you pursuant hereto, and may rely on and shall be protected in
acting in good faith in reliance upon any certificate, instrument, opinion,
notice, letter, facsimile or other document or security delivered to you and
reasonably believed by you to be genuine and to have been signed by the proper
party or parties;
(d) may act upon any tender, statement, request, comment, agreement or
other instrument whatsoever not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth and accuracy of any
information contained therein, which you in good faith reasonably believe to be
genuine or to have been signed or represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon written or oral
instructions from any officer of the Company with respect to the Exchange Offer.
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(f) shall not advise any person tendering Old Notes pursuant to the
Exchange Offer as to the wisdom of making such tender or as to the market value
or decline or appreciation in market value of any Old Notes; and
(g) may consult with your counsel and the written opinion of such counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by you hereunder in good faith and in accordance with
such written opinion of such counsel.
15. You shall take such action as may from time to time be requested
by the Company or its counsel (and such other action as you may reasonably deem
necessary) to furnish copies of the Prospectus, the Letter of Transmittal and
the Notice of Guaranteed Delivery, as defined in the Prospectus, or such other
forms as may be approved from time to time by the Company, to all persons
requesting such documents and to accept and comply with telephone requests for
information relating to the Exchange Offer, provided that such information shall
relate only to the procedures for accepting (or withdrawing from) the Exchange
Offer. The Company will furnish you with copies of such documents as you may
request. All other requests for information relating to the Exchange Offer shall
be directed to the Company, Attention: Xxxxxxx X. Xxxxxxx.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxxxx X. Xxxxxxx, General Counsel of
the Company, Xxxxxx Xxxxx, Esq. of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
counsel for the Company, and such other person or persons as the Company may
request, daily on each business day, and more frequently if reasonably
requested, up to and including the Expiration Date, as to the number of Old
Notes which have been tendered pursuant to the Exchange Offer and the items
received by you pursuant to this Agreement, separately reporting and giving
cumulative totals as to items properly received and items improperly received;
provided, however, that if, on a particular business day, no additional Old
Notes have been tendered, no additional items have been received by you and such
totals have not changed since you last provided such information as required
above, you need not provide the information referred to above in this paragraph
16 on such day. In addition, you will also confirm, and cooperate in making
available to, the Company or any such other person or persons as the Company
requests from time to time prior to the Expiration Date of such other
information as it or he or she reasonably requests. Such cooperation shall
include, without limitation, the granting by you to the Company and such person
as the Company may request of access to those persons on your staff who are
responsible for receiving lenders, in order to ensure that immediately
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prior to the Expiration Date the Company shall have received information in
sufficient detail to enable it to decide whether to extend the Exchange Offer.
You shall prepare a final list of all persons whose tenders were accepted, the
aggregate principal amount of Old Notes tendered, the aggregate principal amount
of Old Notes accepted and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt and shall, except as
provided in paragraph 11, be preserved by you for a period of time at least
equal to the period of time you preserve other records pertaining to the
transfer of securities (or, if earlier, until such time as such documents are
delivered to the Company upon termination of this Agreement, pursuant to
paragraph 29).
18. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to funds deposited with you for the
payment of transfer taxes by reason of amounts, if any, borrowed by the Company,
or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to compensation of $ and you shall be entitled to reimbursement of
your reasonable out-of-pocket expenses (including reasonable attorneys' fees and
expenses of your counsel, which fees are expected under normal circumstances to
be not in excess of $5,000) incurred in connection with your services hereunder.
20. You hereby acknowledge receipt of the Prospectus, the Letter of
Transmittal and the other documents associated with the Exchange Offer attached
hereto and further acknowledge that you have examined each of them to the extent
necessary to perform your duties hereunder. Any inconsistency between this
Agreement, on the one hand, and the Prospectus and the Letter of Transmittal (as
they may be amended from time to time), on the other hand, shall be resolved in
favor of the latter two documents, except with respect to the duties,
liabilities and indemnification of you as Exchange Agent which shall be
controlled by this Agreement.
21. The Company agrees to indemnify and hold harmless you, in your
capacity as Exchange Agent hereunder, and your officers, employees and agents,
against any liability, cost or expense, including reasonable attorneys' fees,
arising out of or in connection with any act, omission, delay or refusal made by
you in reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or
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other instrument or document believed by you in good faith to be valid and
genuine and in accepting any tender or effecting any transfer of Old Notes
believed by you in good faith to be authorized, and in delaying or refusing in
good faith to accept any tenders or effect any transfer of Old Notes or
otherwise arising out of or in connection with your acting as Exchange Agent
hereunder, provided, however, that the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your negligence, wilful misconduct or bad faith. In no
case shall the Company be liable under this indemnity with respect to any claim
against you unless the Company shall be notified by you, by letter or cable or
by facsimile confirmed by letter, of the written assertion of a claim against
you or of any other action commenced against you, promptly after you shall have
received any such written assertion or written notice of the commencement of
any such action. The Company shall be entitled to participate at its own
expense in the defense of any such claim or other action, and, if the Company
so elects, the Company shall assume the defense of any suit brought to enforce
any such claim. In the event that the Company shall assume the defense of any
such suit, the Company shall not be liable for the fees and expenses of any
additional counsel thereafter retained by you so long as the Company shall
retain counsel reasonably satisfactory to you to defend such suit.
22. You shall arrange to comply with all requirements under the tax laws
of the United States, including those relating to missing Tax Identification
Numbers, and shall file any appropriate reports with the Internal Revenue
Service.
23. You shall deliver or cause to be delivered, in a timely manner to
each governmental authority to which any transfer taxes are payable in respect
of the exchange of Old Notes, your check in the amount of all transfer taxes so
payable, and the Company shall reimburse you for the amount of any and all
transfer taxes payable in respect of the exchange of Old Notes; provided,
however, that, subject to such reimbursement by the Company, you shall
reimburse the Company for amounts refunded to you in respect of your payment
of any such transfer taxes, at such time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
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25. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be effected or impaired thereby.
27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in part, except by
a written instrument signed by a duly authorized representative of the party to
be charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests and
other communications to any party hereunder shall be in writing (including
facsimile) and shall be given to such party, addressed to it, at its address or
telecopy number set forth below:
If to the Company:
NTL Communications Corp.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxxx
If to the Exchange Agent:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx (00xx Xxxxx)
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
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29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Paragraphs 14(c), 18, 19, 21 and 23 shall survive the termination
of this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Notes, funds or property (including,
without limitation, Letters of Transmittal and any other documents relating to
the Exchange Offer) then held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
NTL COMMUNICATIONS CORP.
By:
---------------------------
Name:
Title:
Accepted as of the date
first above written.
THE CHASE MANHATTAN BANK
By:
------------------------
Name:
Title:
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