EXHIBIT 1.1
NTL INCORPORATED
(Pounds)125,000,000 9.50% SENIOR NOTES DUE 2008
(Pounds)300,000,000 10.75% SENIOR DEFERRED COUPON NOTES DUE 2008
$1,300,000,000 9.75% SENIOR DEFERRED COUPON NOTES DUE 2008
PURCHASE AGREEMENT
March 6, 1998
Xxxxxxxxx, Xxxxxx & Xxxxxxxx International
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxx Xxxxxxx & Co. Incorporated
BT Xxxx. Xxxxx International, Division of Bankers Trust International PLC
BT Xxxx. Xxxxx Incorporated
Chase Securities Inc.
Salomon Brothers International Limited
Salomon Bothers Inc
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx International
00 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
NTL Incorporated, a Delaware corporation (the "Company"), proposes to
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issue and sell (i) to the parties named in Schedule I hereto (Pounds)125,000,000
aggregate principal amount of its 9.50% Senior Notes Due 2008 (the "Sterling
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Senior Notes") and (Pounds)300,000,000 aggregate principal amount at maturity of
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its 10.75% Senior Deferred Coupon Notes Due 2008 (the "Sterling Deferred Coupon
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Notes") and (ii) to the parties named in Schedule II hereto $1,300,000,000
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aggregate principal amount at maturity of its 9.75% Senior Deferred Coupon Notes
Due 2008 (the "USD Deferred Coupon Notes" and, together with the Sterling Senior
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Notes and the Sterling Deferred Coupon Notes, the "Securities"). The parties
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named in Schedule I and Schedule II hereto are each, individually, an "Initial
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Purchaser" and, collectively, the "Initial Purchasers." The Sterling Senior
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Notes are to be issued under an indenture (the "Sterling Senior Notes
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Indenture"), dated as of March 13, 1998, between the Company and The Chase
Manhattan Bank, as trustee (the "Sterling Senior Notes Trustee"), the Sterling
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Deferred Coupon Notes are to be issued under an indenture (the "Sterling
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Deferred Coupon Notes Indenture"), dated as of March 13, 1998, between the
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Company
and The Chase Manhattan Bank, as trustee (the "Sterling Deferred Coupon Notes
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Trustee"), and the USD Deferred Coupon Notes are to be issued under an indenture
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(the "USD Deferred Coupon Notes Indenture" and, together with the Sterling
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Senior Notes Indenture and the Sterling Deferred Coupon Notes Indenture, the
"Indentures"), dated as of March 13, 1998, between the Company and The Chase
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Manhattan Bank, as trustee (the "USD Deferred Coupon Notes Trustee" and,
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together with the Sterling Senior Notes Trustee and the Sterling Deferred Coupon
Notes Trustee, the "Trustees").
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The sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Securities Act of 1933, as
amended (the "Securities Act"), in reliance upon exemptions from the
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registration requirements of the Securities Act. You have advised the Company
that you will offer and sell the Securities purchased by you hereunder in
accordance with Section 4 hereof as soon as you deem advisable after the
execution and delivery of this Agreement.
In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum, dated February 11, 1998 (the
"Preliminary Offering Memorandum"), and a final offering memorandum, dated March
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6, 1998 (the "Final Offering Memorandum"). Each of the Preliminary Offering
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Memorandum and the Final Offering Memorandum sets forth certain information
concerning the Company and the Securities. The Company hereby confirms that it
has authorized the use of the Preliminary Offering Memorandum and the Final
Offering Memorandum, and any amendment or supplement thereto, in connection with
the offer and sale of the Securities by the Initial Purchasers. Unless stated to
the contrary, all references herein to the Final Offering Memorandum are to the
Final Offering Memorandum at the Execution Time (as defined below) and are not
meant to include any amendment or supplement, or any information incorporated by
reference therein, subsequent to the Execution Time.
The holders of the Securities will be entitled to the benefits of the
Registration Rights Agreements to be entered into between the Company and the
Initial Purchasers (the "Registration Rights Agreements").
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1. Representations and Warranties. The Company represents and
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warrants to each Initial Purchaser as set forth below in this Section 1.
(a) The Preliminary Offering Memorandum, at the date thereof, did not
contain any untrue statement of a material fact or omit to state any
material fact (other than pricing terms and other financial terms
intentionally left blank) necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
Final 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
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makes no representation or warranty as to the information contained in or
omitted from the Preliminary Offering Memorandum or the Final Offering
Memorandum, or any amendment
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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
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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 Securities
under the Securities Act.
(c) No securities of the same class as the Securities 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 Securities 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 Securities, and each of them has
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complied with the offering restriction requirements of Regulation S in
connection with the offering of the Securities outside the United States.
(f) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(g) The Company has been advised by the National Association of
Securities Dealers, Inc. PORTAL Market ("PORTAL") that the Securities have
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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
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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 Preliminary Offering
Memorandum and the Final Offering Memorandum, and each is duly qualified
and in good standing as a foreign
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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 Indentures) 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
Preliminary Offering Memorandum and the Final 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"),
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the Office of Telecommunications ("OFTEL") and the Department of Trade and
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Industry ("DTI")), nor has any event occurred which with notice or lapse of
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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
Indentures and the Registration Rights Agreements and to issue, sell and
deliver the Securities as provided herein and therein.
(l) The (i) issuance and sale of the Securities by the Company, (ii)
execution, delivery and performance of this Agreement, the Indentures and
the Registration Rights Agreements, (iii) compliance by the Company with
the provisions of the Securities, this Agreement, the Indentures and the
Registration Rights Agreements, and (iv) consummation of the transactions
contemplated by any of the Securities, this Agreement, the Indentures and
the Registration Rights Agreements, will not 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
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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 Preliminary Offering
Memorandum and the Final 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 Preliminary Offering Memorandum and the
Final Offering Memorandum (collectively, "Permits"), including, without
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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
Preliminary Offering Memorandum and the Final Offering Memorandum; and,
except as described in the Preliminary Offering Memorandum and the Final
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.
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(p) The Sterling Senior Notes 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 Sterling Senior
Notes 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 Sterling Senior Notes Indenture may
be deemed unenforceable.
(q) The Sterling Deferred Coupon Notes 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 Sterling
Deferred Coupon Notes 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 Sterling Deferred Coupon
Notes Indenture may be deemed unenforceable.
(r) The USD Deferred Coupon Notes 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 USD Deferred
Coupon Notes 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 USD Deferred Coupon Notes Indenture
may be deemed unenforceable.
(s) The Sterling Senior Notes have been duly and validly authorized
by the Company and, when (i) the Sterling Senior Notes have been duly
executed and authenticated in accordance with the terms of the Sterling
Senior Notes Indenture, (ii) the Sterling Senior Notes have been delivered
to and paid for by the Initial Purchasers as contemplated by this Agreement
and (iii) the Sterling Senior Notes Indenture has been duly executed and
delivered by the Company (assuming the due authorization, execution and
delivery thereof by the Sterling Senior Notes Trustee), the Sterling Senior
Notes will be valid and legally binding obligations of the Company,
entitled to the benefits of the Sterling Senior Notes 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,
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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 Sterling Senior Notes Indenture may be deemed unenforceable.
(t) The Sterling Deferred Coupon Notes have been duly and validly
authorized by the Company and, when (i) the Sterling Deferred Coupon Notes
have been duly executed and authenticated in accordance with the terms of
the Sterling Deferred Coupon Notes Indenture, (ii) the Sterling Deferred
Coupon Notes have been delivered to and paid for by the Initial Purchasers
as contemplated by this Agreement and (iii) the Sterling Deferred Coupon
Notes Indenture has been duly executed and delivered by the Company
(assuming the due authorization, execution and delivery thereof by the
Sterling Deferred Coupon Notes Trustee), the Sterling Deferred Coupon Notes
will be valid and legally binding obligations of the Company, entitled to
the benefits of the Sterling Deferred Coupon Notes 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 Sterling Deferred Coupon Notes Indenture
may be deemed unenforceable.
(u) The USD Deferred Coupon Notes have been duly and validly
authorized by the Company and, when (i) the USD Deferred Coupon Notes have
been duly executed and authenticated in accordance with the terms of the
USD Deferred Coupon Notes Indenture, (ii) the USD Deferred Coupon Notes
have been delivered to and paid for by the Initial Purchasers as
contemplated by this Agreement and (iii) the USD Deferred Coupon Notes
Indenture has been duly executed and delivered by the Company (assuming the
due authorization, execution and delivery thereof by the USD Deferred
Coupon Notes Trustee), the USD Deferred Coupon Notes will be valid and
legally binding obligations of the Company, entitled to the benefits of the
USD Deferred Coupon Notes 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 USD Deferred
Coupon Notes Indenture may be deemed unenforceable.
(v) Each of the Registration Rights Agreements have 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
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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).
(w) 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 Preliminary Offering Memorandum and
the Final Offering Memorandum and except that the unaudited interim
financial statements are subject to normal year end adjustments. The
selected financial data included in the Preliminary Offering Memorandum and
the Final 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 Preliminary Offering Memorandum and the Final
Offering Memorandum.
(x) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act.
(y) 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).
(z) 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.
(ab) It is not necessary in connection with the offer, sale and
delivery of the Securities in the manner contemplated by this Agreement and
the Final Offering Memorandum to register the Securities under the Act or
to qualify the Indentures under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act").
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(ac) 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
Indentures and the Registration Rights Agreements, and the resale by the
Initial Purchasers of the Securities 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
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Securities as set forth in the Final Offering Memorandum under the Section
entitled "Notice to Investors."
2. Purchase and Sale. (a) Subject to the terms and conditions and in
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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
(i)(A) in the case of the Sterling Senior Notes, 96.929% of the aggregate
principal amount thereof, the principal amount of Notes set forth opposite such
Initial Purchaser's name in Schedule I hereto and (B) in the case of the
Sterling Deferred Coupon Notes, 56.861% of the aggregate principal amount at
maturity thereof, the principal amount at maturity of Notes set forth opposite
such Initial Purchaser's name in Schedule I hereto, and (ii) in the case of the
USD Deferred Coupon Notes, 59.872% of the aggregate principal amount at maturity
thereof, the principal amount at maturity of Notes set forth opposite such
Initial Purchaser's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
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shall be made at 1:00 PM, London time, on March 13, 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 Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
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the Initial Purchasers for their respective accounts 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 Sterling or U.S. dollar account,
as the case may be, 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
Securities 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 (i) Sterling Senior Notes and Sterling Deferred Coupon Notes
shall be made at the office of Xxxxxx & Xxxxxxx ("Counsel for the Initial
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Purchasers"), One Angel Court, London, England and (ii) USD Deferred Coupon
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Notes shall be made at the office of the Counsel for the Initial Purchasers, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. Global note certificates representing the
Securities 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.
The Company agrees to have the Securities available for inspection and
checking by the Initial Purchasers in London, England, in the case of the
Sterling Senior Notes and the Sterling Deferred Coupon Notes, or New York, New
York, in the case of the USD Deferred Coupon Notes, not later than 1:00 PM local
time on the business day prior to the Closing Date.
4. Offering of Securities. Each Initial Purchaser (i) acknowledges
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that the Securities 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, and not jointly, represents and warrants to, and agrees with, the
Company that:
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(a) It has not offered or sold, and will not offer or sell, any
Securities 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 who provide to
it and to the Company a letter in the form of Exhibit A hereto (all such
persons referred to in clauses (i) and (ii) are hereinafter collectively
referred to as "Eligible Purchasers").
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(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 Securities 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 Agreements.
(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 Securities 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 Securities, except pursuant to a registered public offering
as provided in the Registration Rights Agreements.
(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
Securities 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 Act 1986
with respect to anything done by it in relation to the Securities 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 Securities to a person
who is of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements) (Exemptions) Order 1996, as amended, or is
a person to whom the document may otherwise lawfully be issued or passed
on.
(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 Securities or the
possession or the distribution of the Preliminary Offering Memorandum or
the Final Offering Memorandum or any other offering
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or publicity material relating to the Securities 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
Securities or to distribute the Preliminary Offering Memorandum or the
Final Offering Memorandum or any other offering material relating to the
Securities in any jurisdiction. Accordingly, no Initial Purchaser shall
offer, sell or deliver any Securities, or distribute the Preliminary
Offering Memorandum or the Final Offering Memorandum or any other offering
or publicity material relating to the Securities, 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 Securities, or to distribute
the Preliminary Offering Memorandum or the Final Offering Memorandum or any
other offering or publicity material relating to the Securities under the
laws or regulations of any jurisdiction where it proposes to make offers or
sales of Securities, or to distribute the Preliminary Offering Memorandum
or the Final Offering Memorandum or any other offering material relating to
the Securities, 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 Securities for offer and sale
under the securities or Blue Sky laws of the several states of the United
States.
(g) The Securities 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 Securities, and will not offer, sell or deliver the
Securities (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 Securities, 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 Securities 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 Restricted Period (as
defined in Rule 902(m) 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
Securities (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 Securities
11
from it during the Restricted Period a confirmation or notice to
substantially the following effect:
"The Securities 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 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
Securities, except with its Affiliates or with the prior written consent of
the Company.
(j) It agrees not to cause any advertisement of the Securities to be
published in any newspaper or periodical or posted in any public place and
not to issue any circular relating to the Securities, 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 Final 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 Securities
by the Initial Purchasers, the Company will not amend or supplement the
Final 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
Securities by the Initial Purchasers, any event occurs as a result of which
the Final 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 Final Offering
12
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 Securities
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 Securities;
provided, however, that the Company shall not be required in connection
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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 Company of any notification with respect to the
suspension of the qualification of the Securities 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 Securities 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 Securities 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 Securities in the United States,
except pursuant to a registered public offering as provided in the
Registration Rights Agreements.
(g) So long as any of the Securities 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.
13
(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 Securities, except pursuant to a registered public
offering as provided in the Registration Rights Agreements, 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 Securities to be eligible for clearance and
settlement through DTC and, with respect to any Securities 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 Agreements relating to the
Securities, (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 or (iii) the negotiation,
syndication, arrangement or completion of, or borrowings under, the Credit
Facility (as defined in the Indentures).
(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 Preliminary
Offering Memorandum and the Final 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
Agreements and the Indentures, 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 Securities by the
Initial Purchasers to certain purchasers as set forth in Section 4 above,
(iii) the issuance and delivery of the Securities, (iv) the registration or
qualification of the Securities 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 Securities (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 Securities on PORTAL,
(viii) all fees and expenses (including fees and expenses of counsel) of
the Company in connection with approval of the Securities by DTC for "book-
entry" transfer and eligibility of settlement of transactions in the
Securities sold in accordance with Regulation S through Euroclear and Cedel
Bank, (ix) the fees and disbursements of the Trustees and the
14
registrars of the Securities (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 Securities 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 Xxxxxxx X. Xxxxxxx, 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
Final 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;
(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 Final 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 Final Offering Memorandum;
(iv) the Sterling Senior Notes Indenture has been duly
authorized, executed and delivered by the Company and, assuming the
due authorization, execution and delivery thereof by the Sterling
Senior Notes Trustee, constitutes a valid and legally binding
obligation of the Company enforceable against the
15
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 Sterling Senior Notes Indenture may
be deemed unenforceable;
(v) the Sterling Deferred Coupon Notes Indenture has been
duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery thereof by the Sterling
Deferred Coupon Notes 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 Sterling Deferred Coupon Notes Indenture may be
deemed unenforceable;
(vi) the USD Deferred Coupon Notes Indenture has been duly
authorized, executed and delivered by the Company and, assuming the
due authorization, execution and delivery thereof by the USD Deferred
Coupon Notes 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 USD Deferred Coupon Notes Indenture may be deemed
unenforceable;
(vii) each of the Registration Rights Agreements 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;
16
(viii) the Sterling Senior Notes have been duly and validly
authorized and executed by the Company and, when duly authenticated in
accordance with the terms of the Sterling Senior Notes 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 Sterling Senior Notes Indenture by the Sterling Senior Notes
Trustee), will constitute valid and legally binding obligations of the
Company, entitled to the benefits of the Sterling Senior Notes
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
Sterling Senior Notes Indenture may be deemed unenforceable;
(ix) the Sterling Deferred Coupon Notes have been duly and
validly authorized and executed by the Company and, when duly
authenticated in accordance with the terms of the Sterling Deferred
Coupon Notes 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 Sterling Deferred Coupon
Notes Indenture by the Sterling Deferred Coupon Notes Trustee), will
constitute valid and legally binding obligations of the Company,
entitled to the benefits of the Sterling Deferred Coupon Notes
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
Sterling Deferred Coupon Notes Indenture may be deemed unenforceable;
(x) the USD Deferred Coupon Notes have been duly and validly
authorized and executed by the Company and, when duly authenticated in
accordance with the terms of the USD Deferred Coupon Notes 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 USD Deferred Coupon Notes Indenture by
the USD Deferred Coupon Notes Trustee), will constitute valid and
legally binding obligations of the Company, entitled to the benefits
of the USD Deferred Coupon Notes 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
17
a proceeding in equity or at law) and (2) the waiver contained in
Section 4.04 of the USD Deferred Coupon Notes Indenture may be deemed
unenforceable;
(xi) the statements set forth under the heading "Description
of Notes," "Description of Certain Indebtedness" and "Registration
Rights" in the Final Offering Memorandum, insofar as they purport to
constitute a summary of documents referred to therein (and assuming
that the documents referred to therein are governed by the law of New
York or Delaware) fairly present such documents in all material
respects;
(xii) this Agreement has been duly authorized, executed and
delivered by the Company;
(xiii) no consent, approval, authorization or order of any
Delaware, New York or United States 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 Securities by the Initial Purchasers (as to which
counsel need express no opinion) and such other approvals (specified
in such opinion) as have been obtained;
(xiv) the issuance and sale of the Securities by the Company,
the execution and delivery of the Indentures, the Registration Rights
Agreements 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 III 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
18
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 United States federal or state
securities laws or blue sky laws, antifraud laws and the rules and
regulations of the National Association of Securities Dealers, Inc.;
(xv) 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;
(xvi) each Indenture is in such form that would not preclude
qualification under the Trust Indenture Act, in accordance with the
applicable Registration Rights Agreement;
(xvii) assuming (1) the accuracy of the representations and
warranties of the Company set forth in Section 1 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 Final Offering Memorandum, (4)
the accuracy of the representations and agreements made in accordance
with this Agreement and the Final Offering Memorandum by the
purchasers to whom the Initial Purchasers initially resell the
Securities and (5) that purchasers to whom the Initial Purchasers
initially resell the Securities receive a copy of the Final Offering
Memorandum prior to such sale, the offer, sale and initial resale of
the Securities in the manner contemplated by this Agreement and the
Final Offering Memorandum, do not require registration under the
Securities Act and the Indentures do 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 Security;
and
(xviii) 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.
19
Such counsel shall also state that, in the course of preparation by
the Company of the Final 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 Final 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 Final Offering
Memorandum and has made no independent check or verification thereof (except as
stated in paragraph (xi) 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 Final 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, statistical and
accounting data included in or excluded from the Final 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.
All references in this Section 6(a) to the Final Offering Memorandum
shall be deemed to include any amendment or supplement thereto at the Closing
Date.
(b) The Company shall have furnished to the Initial Purchasers the
opinion of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx 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(b) 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 Sterling Senior Notes Indenture has been duly
authorized, executed and delivered by the Company and, assuming the
due authorization, execution and delivery thereof by the Sterling
Senior Notes 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
20
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 Sterling Senior Notes Indenture may be deemed
unenforceable;
(iii) the Sterling Deferred Coupon Notes Indenture has been
duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery thereof by the Sterling
Deferred Coupon Notes 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 Sterling Deferred Coupon Notes Indenture may be
deemed unenforceable;
(iv) the USD Deferred Coupon Notes Indenture has been duly
authorized, executed and delivered by the Company and, assuming the
due authorization, execution and delivery thereof by the USD Deferred
Coupon Notes 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 USD Deferred Coupon Notes Indenture may be deemed
unenforceable;
(v) each of the Registration Rights Agreements 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;
21
(vi) the Sterling Senior Notes have been duly and validly
authorized and executed by the Company and, when duly authenticated in
accordance with the terms of the Sterling Senior Notes 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 Sterling Senior Notes Indenture by the Sterling Senior Notes
Trustee), will constitute valid and legally binding obligations of the
Company, entitled to the benefits of the Sterling Senior Notes
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
Sterling Senior Notes Indenture may be deemed unenforceable;
(vii) the Sterling Deferred Coupon Notes have been duly and
validly authorized and executed by the Company and, when duly
authenticated in accordance with the terms of the Sterling Deferred
Coupon Notes 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 Sterling Deferred Coupon
Notes Indenture by the Sterling Deferred Coupon Notes Trustee), will
constitute valid and legally binding obligations of the Company,
entitled to the benefits of the Sterling Deferred Coupon Notes
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
Sterling Deferred Coupon Notes Indenture may be deemed unenforceable;
(viii) the USD Deferred Coupon Notes have been duly and
validly authorized and executed by the Company and, when duly
authenticated in accordance with the terms of the USD Deferred Coupon
Notes 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 USD Deferred Coupon Notes
Indenture by the USD Deferred Coupon Notes Trustee), will constitute
valid and legally binding obligations of the Company, entitled to the
benefits of the USD Deferred Coupon Notes 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
22
a proceeding in equity or at law) and (2) the waiver contained in
Section 4.04 of the USD Deferred Coupon Notes Indenture may be deemed
unenforceable;
(ix) the statements made under the heading "Description of
Notes," "Description of Certain Indebtedness" and "Registration
Rights" in the Final Offering Memorandum, insofar as they constitute
summaries of the provisions of the Indentures and the Securities,
fairly present such provisions in all material respects;
(x) this Agreement has been duly authorized, executed and
delivered by the Company;
(xi) although the discussion in the Final Offering Memorandum
under the caption "Certain Federal Income Tax Considerations" does not
purport to discuss all possible United States federal income tax
consequences of the purchase, ownership and disposition of the
Securities, such discussion constitutes, in all material respects, a
fair summary of the United States federal income tax consequences of
the purchase, ownership and disposition of the Securities under
current law;
(xii) the issuance and sale of the Securities by the Company,
the execution and delivery of the Indentures, the Registration Rights
Agreements 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 III 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 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
23
this paragraph with respect to the United States federal or state
securities laws or blue sky laws, antifraud laws and the rules and
regulations of the National Association of Securities Dealers, Inc.;
(xiii) each Indenture is in such form that would not preclude
qualification under the Trust Indenture Act, in accordance with the
applicable Registration Rights Agreement; and
(xiv) assuming (1) the accuracy of the representations and
warranties of the Company set forth in Section 1 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 Final Offering Memorandum, (4)
the accuracy of the representations and agreements made in accordance
with this Agreement and the Final Offering Memorandum by the
purchasers to whom the Initial Purchasers initially resell the
Securities and (5) that purchasers to whom the Initial Purchasers
initially resell the Securities receive a copy of the Final Offering
Memorandum prior to such sale, the offer, sale and initial resale of
the Securities in the manner contemplated by this Agreement and the
Final Offering Memorandum, do not require registration under the
Securities Act and the Indentures 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 Security.
Such counsel shall also state that, in the course of preparation by
the Company of the Final 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 Final 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 Final Offering
Memorandum and has made no independent check or verification thereof (except to
the extent stated in paragraphs (ix) and (xi) 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 Final 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, statistical and accounting data included in the Final Offering
Memorandum).
24
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(b) to the Final Offering Memorandum
shall be deemed to include any amendment or supplement thereto at the Closing
Date.
(c) The Company shall have furnished to the Initial Purchasers the
opinion of Xxxxxx Xxxxxxxxx, Director of Legal Affairs of the Company,
dated the Closing Date, in the form previously approved by counsel to the
Initial Purchasers.
(d) The Initial Purchasers shall have received from Xxxxxx & Xxxxxxx,
Counsel for the Initial Purchasers, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Final 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.
(e) 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 officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Final Offering Memorandum, any amendment or
supplement to the Final 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 Final 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 Final Offering Memorandum
(exclusive of any amendment or supplement thereto); and
25
(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 September 30,
1997 are available.
(f) At the Execution Time and at the Closing Date, Xxxxx & Young LLP
shall have furnished to the Initial Purchasers a letter or letters, dated
respectively as of the Execution Time and 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 within the meaning of
Rule 101 of AICPA's Code of Professional Conduct and its interpretation and
rulings and stating in effect that:
(i) they have audited the consolidated balance sheets of the
Company and its subsidiaries as of December 31, 1995 and 1996, and the
consolidated statements of operations, shareholders' equity and cash
flows for each of the three years in the period ended December 31,
1996, all included in the Final Offering Memorandum;
(ii) 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;
(iii) with respect to the nine-month periods ended September
30, 1996 and 1997, (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 Final 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 Final 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;
(iv) with respect to the period subsequent to September 30,
1997, 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 September 30, 1997,
26
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; and
(v) 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 Final Offering Memorandum, including certain information
set forth under the captions "Offering Memorandum Summary"; "Summary
Historical Consolidated Financial Information"; "Risk Factors";
"Capitalization"; "Selected Consolidated Financial Information of the
Company"; "Management's Discussion and Analysis of Results of
Operations and Financial Condition"; "The Company"; "Security
Ownership of Certain Beneficial Owners"; and "Description of Certain
Indebtedness" in the Final Offering Memorandum, agrees with the
accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Final 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 Securities as contemplated by the Final Offering
Memorandum.
(h) 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).
(i) 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.
(j) On or prior to the Closing Date, each of the Indentures and the
Registration Rights Agreements shall have been executed substantially in
the form hereto delivered to you and shall have been delivered to you and
the applicable 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,
27
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 Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers,
at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities 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 Securities on the Closing Date, the
Company will reimburse the Initial Purchasers severally 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 Securities against appropriate receipts there
for.
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 Preliminary Offering Memorandum, the Final 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 Preliminary Offering Memorandum, the Final Offering Memorandum or any
information provided by the Company to any holder or prospective purchaser of
Securities 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; provided, further,
that the foregoing indemnity agreement with respect to any Preliminary Offering
Memorandum shall not inure to the benefit of any Initial Purchaser who failed to
deliver a Final Offering Memorandum (as so amended or supplemented, provided by
the
28
Company to the several Initial Purchasers in the requisite quantity and on a
timely basis to permit proper delivery on or prior to the written confirmation
of the sale of Securities by such Initial Purchaser to the relevant person) to
the person asserting any losses, claims, damages and liabilities and judgements
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Offering Memorandum, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, if such material
misstatement or omission or alleged material misstatement or omission was cured
in the Final Offering Memorandum. 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 Preliminary Offering Memorandum or the Final 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 first sentence, the
second sentence and the fourth sentence of the third paragraph, the fifth
paragraph, the second sentence of the eighth paragraph and the ninth paragraph
under the heading "Plan of Distribution" in the Preliminary Offering Memorandum
and the last paragraph of the cover page and in the first sentence, the second
sentence and the fourth sentence of the fourth paragraph, the eighth paragraph,
the second sentence of the eleventh paragraph and the twelfth paragraph under
the heading "Plan of Distribution" in the Final Offering Memorandum constitute
the only information furnished in writing by or on behalf of the Initial
Purchasers for inclusion in the Preliminary Offering Memorandum or the Final
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 indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
-------- -------
reasonably satisfactory to the indemnified party. Notwithstanding the
29
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.
30
(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 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 Securities; 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
Securities) be responsible for any amount in excess of the purchase discount or
commission applicable to the Securities 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 Securities 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 respective principal amount of Securities 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 Securities 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
Senior Notes, the Sterling Deferred Coupon Notes or the USD Deferred Coupon
Notes, as applicable, set forth opposite their names in Schedule I or Schedule
II, as the case may be, bears to the aggregate principal amount of such
Securities set forth opposite the names of all the remaining Initial
31
Purchasers in Schedule I or Schedule II, as the case may be) the Securities
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 Securities which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of such Securities set forth in Schedule I or Schedule II, as
the case may be, the remaining Initial Purchasers that agreed to purchase such
Securities shall have the right to purchase all, but shall not be under any
obligation to purchase any, of such Securities, and if such non-defaulting
Initial Purchasers do not purchase all such Securities, 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 Final 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.
10. Termination. This Agreement shall be subject to termination in
-----------
the absolute discretion of the Initial Purchasers, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to such
time (i) trading in any of the Company's securities shall have been suspended by
the Commission or by the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") or trading in securities generally on the New York
------
Stock Exchange, the Luxembourg Stock Exchange or NASDAQ shall have been
materially suspended or materially limited (except such limitations on such
trading in effect as of the Execution Time) or minimum prices shall have been
established on either such exchange or NASDAQ, (ii) a banking moratorium shall
have been declared either by Federal or New York State authorities or (iii)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other calamity or crisis
the effect of which on financial markets are such as to make it, in the judgment
of the Initial Purchasers, impracticable or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final 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 Securities. 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 (212-892-7272) and confirmed to them,
care of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000; or, if sent to the Company, will be mailed, delivered
or
32
sent by facsimile (212-906-8497) and confirmed to it at 000 Xxxx 00xx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, xxxxxxxxx: 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. Agreement Among Initial Purchasers. Each of the Initial
----------------------------------
Purchasers listed on Schedule I hereto agrees, by execution of this Agreement,
that the IPMA Agreement Among Managers Version I (New York Law Version) (the
"IPMA Agreement") shall be applicable to the relationship among such Initial
Purchasers in connection with this Agreement and, except as expressly specified
in this Agreement, the IPMA Recommendations shall not apply. In the event that
the terms of the IPMA Agreement are inconsistent with the terms of this
Agreement, the provisions of this Agreement shall apply. Xxxxxxxxx, Xxxxxx &
Xxxxxxxx International and Xxxxxx Xxxxxxx & Co. International Limited are,
together, the "Lead Manager" for purposes of the IPMA Agreement; provided,
however, that for the purposes of Section 5 (Stabilisation) of the IPMA
Agreement, Xxxxxx Xxxxxxx & Co. International Limited is the "Lead Manager."
Each of the Initial Purchasers listed on Schedule II hereto agrees, by
execution of this Agreement, that the Master Agreement Among Underwriters, dated
March 1, 1993, with Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation shall be
applicable to the relationship among such Initial Purchasers in connection with
this Agreement.
17. 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.
33
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 Purchasers.
Very truly yours,
NTL INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior V.P. and Gen. Counsel
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
INTERNATIONAL
By: /s/ P.O. Masmejean
-------------------------------------
Name: P.O. Masmejean
Title: Managing Director
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
34
XXXXXX XXXXXXX & CO.
INTERNATIONAL LIMITED
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Director
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
CHASE SECURITIES INC.
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title:
BT ALEX. BROWN INTERNATIONAL,
DIVISION OF BANKERS TRUST
INTERNATIONAL PLC
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
BT ALEX. BROWN INCORPORATED
By: /s/ X. Xxxx
-------------------------------------
Name: X. Xxxx
Title: Managing Director
35
SALOMON BROTHERS INTERNATIONAL LIMITED
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
SALOMON BROTHERS INC
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
36
SCHEDULE I
Principal Amount Principal Amount of
of Xxxxxxxx Xxxxxxxx Deferred
Senior Notes Coupon Notes
Initial Purchasers to be Purchased to be Purchased
------------------ --------------- ---------------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
International................................. (Pounds)43,750,000 (Pounds)111,507,165
Xxxxxx Xxxxxxx & Co. International
Limited....................................... 43,750,000 111,507,165
BT Xxxx. Xxxxx International, Division of
Bankers Trust International PLC................ 12,500,000 25,661,890
Chase Securities Inc............................ 12,500,000 25,661,890
Salomon Brothers International
Limited....................................... 12,500,000 25,661,890
------------------- -------------------
Total.............................. (Pounds)125,000,000 (Pounds)300,000,000
=================== ===================
SCHEDULE II
Principal Amount of USD
Deferred Coupon Notes
Initial Purchasers to be Purchased
------------------ ---------------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation........................ $ 503,896,539
Xxxxxx Xxxxxxx & Co. Incorporated............... 503,896,539
BT Xxxx. Xxxxx Incorporated..................... 97,402,307
Chase Securities Inc............................ 97,402,307
Salomon Brothers Inc............................ 97,402,307
--------------
Total.............................. $1,300,000,000
==============
SCHEDULE III
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 October 1, 1993 between the Company and the Trustee,
governing the Company's 10-7/8% Senior Deferred Coupon Notes Due 2003, as
amended by a First Supplemental Indenture dated as of January 23, 1996.
4. 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.
5. 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.
6. Indenture dated as of April 20, 1995 between the Company and the Trustee
governing the Company's 7.5 % Convertible Subordinated Notes Due 2005.
7. Indenture dated as of June 12, 1996 between the Company and the Trustee
governing the Company's 7% Convertible Subordinated Notes Due 2008.
8. Indenture dated as of February 12, 1997 between the Company and the Trustee
governing the Company's 10% Senior Notes Due 2007.
9. 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.
10. NTL, Inc. 1993 Stock Option Plan.
11. NTL, Inc. 1993 Non-Employee Director Stock Option Plan.
12. OCOM Corporation 1991 Stock Option Plan.
13. Consulting Agreement between the Company and Insight Communications
Company, L.P.
14. 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.
15. 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.
2
