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EXHIBIT 4.29
DEPOSIT AGREEMENT
THIS DEPOSIT AGREEMENT is made and entered into as of June 22,
2001, by and between NTL Incorporated, a Delaware corporation, ("NTL
Incorporated"), NTL (Delaware), Inc., a Delaware corporation ("NTL Delaware"
and, together with NTL Incorporated, the "Issuers") and United States Trust
Company of New York (the "Depositary"), for the benefit of the holders from time
to time of the Company's 5.75% Convertible Subordinated Notes due 2011 (the
"Convertible Notes") (each, a "Holder" and, collectively, the "Holders").
WITNESSETH:
WHEREAS, the Convertible Notes are to be issued under an
indenture (the "Indenture"), dated as of June 22, 2001, by and among the Issuers
and The Chase Manhattan Bank, as Trustee (the "Trustee").
WHEREAS, the Issuers and SFG VI Inc. (the "Purchaser") have
entered into that certain Purchase Agreement, dated June 22, 2001 (the "Purchase
Agreement"), pursuant to which the Holders will purchase from the Issuers an
aggregate of $100,000,000 of Convertible Notes.
WHEREAS, the Convertible Notes and the Indenture allow the
Issuers to make interest and other payments on the Convertible Notes in cash,
including by delivering shares of Common Stock, par value $.01 per share, of NTL
Incorporated (the "Common Stock"), to the Depositary for the sale thereof and
distribution of the Cash Proceeds (as defined below) to the Paying Agent
designated under the Indenture (the "Paying Agent"), which shall initially be
the Trustee.
WHEREAS, NTL Incorporated shall from time to time deliver to
the Depositary (i) duly authorized, validly issued, fully paid and
non-assessable shares of Common Stock, that are free of preemptive or similar
rights, duly registered and freely tradable (by use of a prospectus under an
effective shelf registration statement or otherwise) (the "Qualified Common
Stock") under the Securities Act of 1933, as amended (the "Securities Act"); and
(ii) an opinion of counsel addressed to the Depositary (the "Opinion of
Counsel"), to the effect that the shares of Qualified Common Stock delivered to
the Depositary have been duly authorized, fully paid and validly issued and
delivered, and are non-assessable, free of preemptive rights, duly registered
and freely tradable (by use of a prospectus under an effective shelf
registration statement or otherwise) under the Securities Act; and (iii) a set
of written instructions signed by an officer of each of the Issuers, instructing
the Depositary as to the disposition of the Qualified Common Stock (the
"Instructions").
WHEREAS, the Depositary shall follow the Instructions and
shall distribute the cash proceeds from any sale of the Qualified Common Stock
(the "Cash Proceeds") to the Paying Agent.
NOW, THEREFORE, in consideration of the premises and of the
mutual promises and agreements herein contained, and the agreements and
covenants contained in the Purchase Agreement and the Indenture, the parties
hereby agree as follows:
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Section 1. Payment of Interest on the Convertible Notes
(a) General. The Holders of the Convertible Notes shall be entitled
to receive payment of interest and the Facility Fee (as defined in the
Indenture) on the dates and in the manner specified in the Convertible Notes and
the Indenture.
(b) Convertible Notes. For so long as the Convertible Notes are
outstanding, NTL Incorporated shall from time to time (should the Issuers elect
to make an interest payment on the Convertible Notes or a Facility Fee payment
in Common Stock), deliver to the Depositary no later than 10 business days
before the applicable interest payment date (i) Qualified Common Stock, in the
amount described below; (ii) an Opinion of Counsel as to such Qualified Common
Stock; and (iii) the Instructions.
(i) NTL Incorporated will deliver a sufficient number of shares of
Qualified Common Stock that will, upon sale by the Depositary in accordance
with the Instructions result in sufficient net cash proceeds (together with
any other cash received) to enable the Paying Agent to distribute cash to
the Holders on the applicable interest payment date in an aggregate amount
equal to the interest payment and the Facility Fee payment then due,
including, Liquidated Damages (the "Amount Due").
(ii) The Depositary shall (i) sell the Qualified Common Stock in
accordance with the Instructions, as promptly as practicable; and (ii)
distribute the amount of Cash Proceeds from such resale specified in the
Instructions to the Paying Agent in accordance with the Instructions as
promptly as practicable, but in any event no later than one business day
prior to the applicable interest payment date.
(iii) If the amount of Cash Proceeds from the sale of Qualified
Common Stock shall be less than the Amount Due (such difference, the
"Shortfall Amount"), the Depositary shall: (i) distribute all Cash Proceeds
to the Paying Agent; and (ii) promptly give notice to the Issuers of the
Shortfall Amount. Upon receipt of the notice of a Shortfall Amount, the
Issuers shall as promptly as practicable deliver to the Depositary (A)
cash, and/or (B) the Instructions and additional shares of Qualified Common
Stock, to be sold and distributed in accordance with the Instructions
delivered therewith and this Agreement. The Depositary shall as promptly as
practicable (x) sell the additional shares of Qualified Common Stock (if
any) delivered by NTL Incorporated pursuant to this subsection (iii) in
accordance with the Instructions and this Agreement; and (y) distribute the
cash delivered by the Company pursuant to this subsection (iii) and/or the
Cash Proceeds (the sum of such cash and such Cash Proceeds so delivered
shall be equal to the Shortfall Amount) to the Paying Agent no later than
one business day prior to the applicable interest payment date.
(iv) If the Cash Proceeds from any such sale of the Qualified
Common Stock shall exceed the amount of the Cash Proceeds to be delivered
to the Paying
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Agent pursuant to the Instructions (such difference, the "Excess
Proceeds"), the Depositary shall (i) give notice to the Issuers of the
amount of the Excess Proceeds; (ii) retain the Excess Proceeds and apply
such Excess Proceeds to the next succeeding distribution by the Depositary
of the Amount Due, in accordance with the Instructions.
(c) Investment of Excess Proceeds. The Depositary may from time to
time invest and reinvest the Excess Proceeds at the instruction of the Issuers
in (i) direct obligations of, or repurchase agreements collateralized by direct
obligations of, the United States Government (or agencies or instrumentalities
thereof) or any state of the United States (or agencies or instrumentalities of
any thereof), (ii) certificates of deposit, time deposits, money market accounts
or other interest-bearing deposits of commercial banks having total capital and
surplus of at least $2,000,000,000 or (iii) commercial paper having at the time
of investment a rating from a Nationally Recognized Statistical Rating
Organization of the highest rating category granted thereby, provided that such
commercial paper is held to maturity, such maturity date to be earlier than the
following applicable interest payment date on the Convertible Notes, or (iv) in
a U.S. Government Money Market Fund (the "Fund") so long as the Fund is rated as
a AAA money market fund, as the Company may from time to time direct in
writing. For the purposes of this Agreement, "Nationally Recognized Statistical
Rating Organization" shall have the meaning given to that term under Rule
436(g)(2) under the Securities Act. Any interest earned on the Excess Proceeds
shall immediately be considered "Excess Proceeds" for the purposes of this
Agreement. The Depositary shall have no responsibility for determining such
obligations and shall have no liability whatsoever for any investment losses
resulting from the investment or reinvestment of the Excess Proceeds.
(d) Obligation to Pay Interest in Cash. Notwithstanding any other
provision of this Agreement, the Issuers shall be obligated to pay the Amount
Due in cash if the Qualified Common Stock paid as interest would not, at the
time of the applicable interest payment date, be freely transferable (including
pursuant to an effective shelf registration statement or otherwise).
Section 2. Instructions; Market Agent.
(a) For so long as Convertible Notes are outstanding, the
Instructions delivered by the Issuers to the Depositary pursuant to Section 1(b)
hereof in connection with a payment of interest on the Convertible Notes shall
specify: (i) the method by which the Depositary shall resell the Qualified
Common Stock (which may be effected by the Issuers repurchasing any such
Qualified Common Stock); (ii) the Interest Amount; (iii) the amount of Excess
Proceeds, if any, to be delivered to the Paying Agent; and (iv) the method of
delivery of the Cash Proceeds and/or the Excess Proceeds to the Paying Agent,
including wire instructions and/or address if necessary.
(b) NTL Incorporated may appoint any nationally recognized,
registered broker dealer to act as a market agent (a "Market Agent") for the
purposes of selling any shares of Qualified Common Stock pursuant to the terms
of this Agreement.
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If NTL Incorporated so elects to appoint a Market Agent, it shall instruct the
Depositary to, and the Depositary shall, deliver such Qualified Common Stock to
such Market Agent in order to enable the Market Agent to effect such a sale.
Upon completion of such a sale, the Market Agent will then deliver the net
proceeds of such sale to the Depositary, which will then distribute such
proceeds to the Paying Agent in accordance with the terms of the Convertible
Notes and this Agreement.
Section 3. Term.
The Deposit Agreement shall terminate on the first day on which no
Convertible Notes are outstanding, and the Depositary shall upon its receipt of
written instructions from the Issuers distribute any remaining Excess Proceeds
to the Issuers; provided that the Issuers have paid all Interest Amounts due
under the Convertible Notes.
Section 4. Depositary.
(a) Duties. The Depositary's obligations and duties in connection
herewith are those specifically enumerated in this Agreement. The Depositary
also will deliver copies of reports, invoices, and other documents related to
the Qualified Common Stock and the Cash Proceeds that it has received, as well
as an accounting of the Qualified Common Stock and the Cash Proceeds, to each of
the parties on written request. The Depositary's duties will be determined only
with reference to this Depositary Agreement and applicable laws, and the
Depositary is not charged with any duties or responsibilities in connection with
any other document or agreement. The parties acknowledge that the Depositary
shall not be responsible for any diminution in the value of the Qualified Common
Stock held by the Depositary or in the value of the Excess Proceeds due to
losses resulting from authorized investments. The Depositary may use its own
bond department in executing purchases and sales of authorized investments.
(b) Liabilities. The Depositary will not be in any manner liable or
responsible for the sufficiency, correctness, genuineness, or validity of any
instruments deposited with it or with reference to the form of execution
thereof, or the identity, authority, or rights of any person executing or
depositing same, and the Depositary will not be liable for any loss that may
occur by reason of forgery, false representation, or the exercise of its
discretion in any particular manner or for any other reason, except for its own
gross negligence or willful misconduct. Except in instances of the Depositary's
own gross negligence or willful misconduct, the Issuers will jointly and
severally indemnify, defend, and hold the Depositary harmless from any demands,
suits, or causes of action arising out of this Agreement (including reasonable
attorneys' fees). The Depositary shall be fully protected in acting in
accordance with any written instructions given to it hereunder and believed by
it to have been executed by the proper party or parties. The Depositary may
consult with counsel regarding any of its duties or obligations hereunder, and
shall be fully protected in any action taken in good faith in accordance with
such advice. The costs and expenses of enforcing this right of indemnification
also shall be jointly and severally paid by the Issuers. The right of
indemnification shall survive the
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termination of this Deposit Agreement and or the resignation or removal of the
Depositary. Neither the Depositary nor any of its officers, directors, employees
or agents shall be liable to any person or party for any action taken or omitted
to be taken by it or any of its officers, directors, employees or agents under
this Agreement, except in the case of Depositary's gross negligence, bad faith
or willful misconduct.
(c) Receipt. Upon receipt from NTL Incorporated of the Qualified
Common Stock and of the Cash Proceeds upon resale of the Qualified Common Stock,
the Depositary will deliver a written notice to such effect to the Issuers and
the Trustee.
(d) Fees. The Depositary's fees hereunder will be as set forth in
Schedule 1 and will, together with all its reasonable costs and expenses,
including its legal fees, be paid by the Issuers. The fees are intended as full
compensation for the Depositary's services as contemplated by this Deposit
Agreement (not including its reasonable costs and expenses).
(e) Successor Depositary. The Depositary will have the right to
resign as Depositary hereunder by delivering 60 days prior notice in writing to
the Issuers and the Trustee. The Issuers together with the Purchaser (so long as
the Purchaser is a Holder) will have the right to remove the Depositary at any
time by joint written notice delivered to the Depositary. If the Depositary
resigns or is removed, a successor Depositary will be appointed by mutual
agreement of the Issuers and the Purchaser (so long as the Purchaser is a
Holder) and such resignation or removal will take effect upon such appointment.
Any successor Depositary at any time serving hereunder will be entitled to all
rights, powers, and indemnities granted to the Depositary hereunder as if
originally named herein. If a successor Depositary is not named within 30 days
after the notice of resignation, the Depositary may apply to a court of
competent jurisdiction for the appointment of a successor Depositary.
(f) Disputes. In the event that any dispute arises with respect to
this Agreement or in the event that any claim is made with respect to the
deposits hereunder, then the Depositary, upon receipt of written notice of such
dispute, is authorized and directed to retain in its possession without
liability to any person or party, all of the deposits hereunder until such
dispute shall have been settled either by the mutual agreement of the parties
involved or by a final, unappealable order, decree or judgment of a court of
competent jurisdiction.
(g) Federal Income Tax. All interest earned on the Excess Proceeds
shall be considered the currently reportable income, for federal income tax
purposes, of NTL Incorporated. The Depositary shall file annually information
returns with the United States Internal Revenue Service and payee statements
with NTL Incorporated, documenting such interest payments. NTL Incorporated
shall provide the Depositary with all forms and information necessary to
complete such information returns and payee statements. NTL Incorporated agrees
to provide the Depositary with a certified tax identification number by signing
and returning a W-9 (or Form W-8, in the case of non-U.S. persons) to the
Depositary within 30 days from the date hereof. The Depositary
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understands that, in the event such tax identification numbers are not certified
to the Depositary, the Internal Revenue Code, as amended from time to time, may
require withholding of a portion of any interest or other income earned on the
investment of the Excess Proceeds. Should the Depositary become liable for the
payment of taxes, including withholding taxes, relating to income derived from
any funds held by the Excess Proceeds or any payment made hereunder, the
Depositary may pay such taxes from the Excess Proceeds.
(h) Merger, Consolidation, etc. Any corporation or association in
which the Depositary may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its corporate trust business
and assets as a whole or substantially as a whole, or any corporation or
association resulting from any such conversion, sale, merger, consolidation or
transfer to which it is a party, shall be and become successor depositary
hereunder and vested with all of the title to the assets and all the trusts,
powers discretions, immunities, privileges and all other matters as was its
predecessor, without the execution or filing of any instrument or any further
act, deed or conveyance on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 5. Miscellaneous.
(a) Binding Effect. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by any party without the prior written
consent of all other parties to this Agreement. Without limiting the generality
of the foregoing, the Issuers agree to the assignment by a Holder of its rights
pursuant to this Agreement to any Affiliate or subsidiary thereof, any
partnership controlled thereby, any successor in interest thereto or any lender
as collateral security, and agree to execute any appropriate agreement or
instrument that the Holder may reasonably request in order to effect or evidence
such assignment or consent. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, and no other person shall have any right, benefit or
obligation hereunder.
(b) Governing Law. This Agreement shall be construed, interpreted
and the rights of the parties determined in accordance with the internal laws of
the State of New York (without reference to its choice of law provisions).
(c) Titles. The titles, captions or headings of the Sections herein
are inserted for the convenience of reference only and are not intended to be a
part of or to affect the meaning or interpretation of this Agreement.
(d) Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given or made when received if personally
delivered; when transmitted if transmitted by telecopy upon receipt of
telephonic or electronic confirmation; the day after it is sent, if sent for
next day delivery to a domestic address by
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recognized overnight delivery service (e.g., Federal Express); and five business
days after being deposited in the mail, first class or registered, postage
prepaid. In each case notice shall be sent to:
If to the Purchaser:
SFG VI, Inc.
c/o GE Capital Services Structured Finance Group, Inc.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000, XXX
Attention: Manager-Telecom Portfolio
Tel.: 000 000-0000
Fax: 000 000-0000
If to NTL Incorporated:
NTL Incorporated
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx J, Xxxxxxx, Esq.
Executive Vice President, General Counsel and Secretary
Fax No.: 000 000-0000
If to NTL Delaware:
NTL (Delaware), Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx J, Lubasch, Esq.
Executive Vice President, General Counsel and Secretary
Fax No.: 000 000-0000
If to the Depositary:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, XX 00000
XXX
Attention: Corporate Trust Division
Fax No.: 000 000 0000
or to such other place and with such other copies as either party may
designate as to itself by notice given as written notice to the others.
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(e) Multiple Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(f) Consent to Jurisdiction. Each party hereto hereby irrevocably
submits to the non-exclusive jurisdiction of the courts of the United States
District Court for the Southern District of New York (or, if subject matter
jurisdiction in that court is not available, in any state court located within
the city of New York) over any dispute arising out of or relating to this
Agreement or any agreement or instrument contemplated hereby or entered into in
connection herewith or any of the transactions contemplated hereby or thereby.
Each party hereto irrevocably consents to the service of any and all process in
any action or proceeding arising out of or relating to this Agreement by the
mailing of copies of such process to such party at its address specified in
Section 5(d).
(g) Entire Agreement: Modification. This Agreement, together with
Schedule I, constitutes the entire agreement among the parties pertaining to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties. No
amendment, supplement, modification or waiver of this Agreement shall be binding
unless executed in writing by the party to be bound thereby. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provision hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed on their respective behalf, by their respective
officers thereunto duly authorized, as of the day and year first written above.
NTL INCORPORATED
By:
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Name:
Title:
NTL (DELAWARE), INC.
By:
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Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK
By:
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Name:
Title:
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SCHEDULE I TO DEPOSIT AGREEMENT
In connection with the services provided hereunder by the
Depositary, the Depositary shall be limited to receive the following fees (not
including its expenses as provided hereunder) for so long as it continues to
serve as Depositary hereunder:
1. Initial Fee of $3,500.00.
2. Annual administrative fee of $7,500.00.
3. Activity fees, where applicable:
o Free Receive and Free Deliver of Securities, each $25.00
o Trades on a DVP Buying, each $25.00
o Wire transfers per outgoing Fed wire
(no charge for incoming wire transfers) $25.00
