1
LON/71510.05
Exhibit 4.2
DIAMOND CABLE COMMUNICATIONS PLC
and
THE BANK OF NEW YORK
As Global Depositary
and
THE OWNERS OF BOOK-ENTRY INTERESTS
in
10-3/4% Senior Discount Notes due February 15, 2007
SENIOR NOTES DEPOSITARY AGREEMENT
Dated as of February 27, 1997
2
SENIOR NOTES DEPOSITARY AGREEMENT
THIS AGREEMENT is made as of this 27th day of February, 1997 by and
between Diamond Cable Communications Plc, a public limited company organized
and existing under the laws of England (the "Company"), which is a party for
the limited purposes referred to herein, The Bank of New York, as Global
Depositary (the "Global Depositary") and owners from time to time of Book-Entry
Interests.
ARTICLE ONE
DEFINITIONS AND OTHER GENERAL PROVISIONS
SECTION 1.01 Definitions.
The following terms, as used herein, have the following meanings:
"Additional Amounts" shall have the meaning ascribed to it in Section 2.15
hereof.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control", when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Board Resolution" shall have the meaning ascribed to it in the Indenture.
"Book-Entry Interests" means interests in any Certificateless Depositary
Interest issued pursuant to this Agreement, which are eligible for trading
through DTC's book-entry system. References to Book-Entry Interests in a
Global Security should be understood to mean Book-Entry Interests in the
Certificateless Depositary Interest issued with respect to such Global
Security.
"Business Day" shall have the meaning ascribed to it in the Indenture.
"Certificateless Depositary Interest" means an interest in a Global
Security held by the Global Depositary that (i) shall, at all times, represent
the right to receive 100% of the principal and premium (if any) of and interest
on such Global Security and the right to require the Global Depositary to
procure the issue of one or more Definitive Registered Securities representing
up to 100% of the principal amount at maturity represented by the Global
Security and (ii) is issued by the Global Depositary to the Depositary or its
nominee.
"Company" means the party named as such in this Agreement until a
successor replaces it pursuant to the applicable provisions of the Indenture
and, thereafter, means the successor.
-1-
3
"Company Order" and "Company Request" shall have the meaning ascribed to
them in the Indenture.
"Corporate Trust Office" means the office of the Global Depositary in the
City of New York, at which any particular time its corporate trust business
shall be principally administered, which at the date hereof is located at 000
Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx, 00000.
"Definitive Registered Securities" means the Securities issued pursuant to
the Indenture in substantially the form set forth in Sections 203 and 204
thereto.
"Depositary" means DTC, or any successor, as the owner of the
Certificateless Depositary Interest and indicated as such in the records of the
Global Depositary.
"DTC" means The Depository Trust Company or its nominee.
"Event of Default" shall have the meaning ascribed to it in the Indenture.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended.
"Exchange Offer" shall have the meaning ascribed to it in the Indenture.
"Global Depositary" means the party named as such in this Agreement or its
nominee or the custodian of either until a successor shall have become such
pursuant to Section 3.08 hereof, and thereafter "Global Depositary" shall mean
such successor or its nominee or the custodian of either.
"Global Security" shall have the meaning ascribed to it in the Indenture.
References to the "Global Securities" shall mean each of the Regulation S
Global Security, the Restricted Global Security and the Unrestricted Global
Security, as applicable.
"Indenture" means the indenture of even date herewith between the Company
and The Bank of New York, as Trustee relating to the 10:% Senior Discount Notes
due February 15, 2007 of the Company as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
thereto entered into pursuant to the applicable provisions thereof, including,
for all purposes the provisions of the TIA that are deemed to be a part of and
govern such instrument.
"Letter of Representations" means the Letter of Representations to DTC of
even date herewith from the Global Depositary.
"Officers' Certificate" shall have the meaning ascribed to it in the
Indenture.
"Opinion of Counsel" means a written opinion from legal counsel, who may
be counsel to the Company and who shall otherwise be reasonably satisfactory to
the Global Depositary.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
-2-
4
"Regulation S Certificate" means the certificate, the form of which is set
forth in Annex A hereto.
"Regulation S Global Security" shall have the meaning ascribed to it in
the Indenture.
"Responsible Officer" means, with respect to the Global Depositary, any
vice president, any assistant vice president, the secretary, any assistant
secretary, any assistant treasurer, any trust officer or assistant trust
officer, employed by the Global Depositary's corporate trust department or any
other officer of the Global Depositary customarily performing functions similar
to those performed by any of the above-designated officers and also means, with
respect to a particular corporate trust or agency matter, any other officer to
whom such matter is referred because of his or her knowledge and familiarity
with the particular subject.
"Restricted Global Security" shall have the meaning ascribed to it in the
Indenture.
"Restricted Period" shall have the meaning ascribed to it in the
Indenture.
"Restricted Security" shall have the meaning ascribed to it in the
Indenture.
"Restricted Securities Certificate" means the certificate, the form of
which is set forth in Annex B hereto.
"Security" means any 10-3/4% Senior Discount Note due February 15, 2007 of
the Company issued under the Indenture.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"TIA" means the United States Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "TIA" means, to the extent required by such amendment, the Trust Indenture
Act of 1939, as so amended.
"Trustee" means the Person acting as Trustee under the Indenture until a
successor Trustee shall have become such pursuant to the applicable provisions
of the Indenture, and thereafter "Trustee" shall mean such successor Trustee.
"Unrestricted Global Security" means a Global Security other than the
Restricted Global Security (but which may be the Regulation S Global Security),
with respect to which Book-Entry Interests therein may be transferable without
material restriction under the Securities Act.
SECTION 1.02 Rules of Construction.
Unless the context otherwise requires: (1) a term has the meaning
assigned to it; (2) any capitalized term not otherwise defined herein shall
have the meaning ascribed to it in the Indenture; (3) "or" is not exclusive;
(4) "including" means including without limitation; (5) words in the singular
include the plural and words in the plural include the singular; and (6) the
words "herein", "hereof" and
-3-
5
"hereunder" and other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other subdivision.
ARTICLE TWO
BOOK-ENTRY INTERESTS
SECTION 2.01 Deposit of the Global Securities.
The Global Depositary hereby accepts custody of the Restricted Global
Security and the Regulation S Global Security and shall act as Global
Depositary in accordance with the terms of this Agreement. The Global
Depositary shall hold such Global Securities at its Corporate Trust Office in
The Borough of Manhattan, The City of New York or at such place or places as it
shall determine with the consent of the Company for the purposes of Section
2.03 below and shall issue the Certificateless Depositary Interests in
accordance with the Letter of Representations.
SECTION 2.02 Book-Entry System.
(a) Upon acceptance by DTC of the Certificateless Depositary Interests in
each of the Global Securities for entry into its book-entry settlement system
in accordance with the terms of the Letter of Representations, Book-Entry
Interests will be traded through DTC's book-entry system, and ownership of such
Book-Entry Interests shall be shown in, and the transfer of such ownership
shall be effected only through, records maintained by (i) DTC or its successors
or (ii) institutions that have accounts with DTC or its successors ("DTC
Participants"). Book-Entry Interests shall be transferable only as units in
the same authorized denominations as the Securities.
(b) The Certificateless Depositary Interests shall be issuable only to
DTC, or successors of DTC or their respective nominees. Except as provided in
Section 2.05 or Section 2.10, no owner of Book-Entry Interests shall be
entitled to receive a Definitive Registered Security on account of such
ownership, and such owner's interest therein shall be shown only in accordance
with the procedures of DTC as set forth in the Letter of Representations.
SECTION 2.03 Procedures in the Event of an Exchange Offer.
Upon receipt by the Global Depositary as Holder of a Global Security of
notice of either the commencement of an Exchange Offer or the implementation of
arrangements permitting the resale by holders of Securities pursuant to the
registration provisions of the Securities Act, the Global Depositary will
forward to the Depositary materials relating to such Exchange Offer or other
arrangements with any additional instructions applicable to owners of
Book-Entry Interests. In the case of an Exchange Offer, upon notice by the
Depositary of the principal amount at maturity of Book-Entry Interests in the
Regulation S Global Security or the Restricted Global Security (as applicable)
tendered in response to the Exchange Offer, the Global Depositary shall (i) in
accordance with Section 305 of the Indenture, deliver to the Trustee that
portion of the Global Securities (as applicable) with respect to which Book-
-4-
6
Entry Interests have been tendered and receive in exchange therefor (to the
extent such portions of the Global Securities are accepted pursuant to the
Exchange Offer) a new Unrestricted Global Security (or an increase in an
existing Unrestricted Global Security) in like principal amount at maturity as
the Book-Entry Interests tendered, (ii) to the extent the Unrestricted Global
Security is new, issue to the Depositary or its nominee a new Certificateless
Depositary Interest in the new Unrestricted Global Security, (iii) record
pursuant to Section 2.04 any changes in the principal amount at maturity of the
Certificateless Depositary Interests in each of the Regulation S Global
Security, the Restricted Global Security and the Unrestricted Global Security,
and (iv) notify the Depositary of any such changes. Book-Entry Interests in
the Unrestricted Global Security shall be assigned a CUSIP number different
from that assigned to Book-Entry Interests in the Restricted Global Security or
the Regulation S Global Security (if the Unrestricted Global Security is not
the Regulation S Global Security).
SECTION 2.04 Record of Transfer of the Certificateless Depositary Interests.
The Company appoints the Global Depositary as its agent for the sole
purpose of maintaining at the Global Depositary's Corporate Trust Office
records in which the Global Depositary shall (i) record DTC as the initial
owner of each Certificateless Depositary Interest, (ii) record the transfer of
any Certificateless Depositary Interest, and (iii) record the increases and
decreases in the principal amount at maturity represented by the
Certificateless Depositary Interests. The Certificateless Depositary Interests
cannot be transferred unless such transfer is noted in the records of the
Global Depositary. The Global Depositary shall treat the Person in whose name
the Certificateless Depositary Interests are recorded in the records of the
Global Depositary as the owner thereof for all purposes whatsoever and shall
not be bound or affected by any notice to the contrary, other than an order of
a court having jurisdiction over the Global Depositary.
The foregoing paragraph shall not (i) impose an obligation on the Global
Depositary to record the interests in or transfers of Book-Entry Interests held
by DTC Participants or Persons that may hold Book-Entry Interests through DTC
Participants or (ii) restrict transfers of such Book-Entry Interests held by
DTC Participants or such Persons.
In connection with the Global Depositary's appointment as the Company's
agent under this Section 2.04, the Company shall have such rights and
obligations as regards removal of the Global Depositary and appointment of a
successor as are specified in Section 3.08 hereof.
SECTION 2.05 Transfer of the Global Securities.
The Global Depositary shall hold each Global Security in custody for the
benefit of the Depositary. The Global Depositary shall not transfer or lend
any Global Security or any interest therein except that the Global Depositary
may transfer the Global Securities to a successor Global Depositary in
accordance with Section 3.08 or deliver the Global Securities to the Trustee
pursuant to the Exchange Offer in accordance with Section 2.03.
Notwithstanding the foregoing, the Global Depositary shall not under any
circumstances surrender or deliver the Global Securities to the Depositary. If
(i) the Global Depositary notifies the Company and the Trustee under Section
3.08 hereof that it is unwilling or unable to continue as Global Depositary and
no successor Global Depositary has been appointed by the Company within 120
days of such notification, (ii) DTC notifies the Global Depositary that it is
-5-
7
unwilling or unable to continue as Depositary with respect to the
Certificateless Depositary Interest or if at any time it is unable to or ceases
to be a clearing agency registered under the Exchange Act and a successor
Depositary registered as a clearing agency under the Exchange Act is not
appointed within 120 days by the Global Depositary at the written request of
the Company, or (iii) the Company determines pursuant to Section 305 of the
Indenture that the Global Securities should be exchanged (in whole but not in
part) for Definitive Registered Securities, then the Global Depositary shall
promptly notify the Depositary that the Global Securities will be exchanged in
whole for Definitive Registered Securities pursuant to Section 305 of the
Indenture and, at the option of the Depositary, either (1) one or more
Definitive Registered Securities shall be issued pursuant to the Indenture and
deposited with the Depositary in exchange for the Certificateless Depositary
Interest held by the Depositary, whereupon all outstanding Book-Entry Interests
will represent interests in such Definitive Registered Securities, or (2)
Definitive Registered Securities shall be issued in such names and
denominations as the Depositary shall specify upon cancellation of the
Certificateless Depositary Interests and all Book-Entry Interests. The Global
Depositary agrees that in either such event it will promptly surrender each
Global Security held by it to the Trustee in connection with such exchange for
cancellation pursuant to Section 305 of the Indenture.
SECTION 2.06 Cancellation.
If any Global Security is surrendered for payment, or for redemption or
purchase in full of all the Securities evidenced thereby or for exchange for
Definitive Registered Securities to any Person other than the Trustee then such
Global Security shall, subject to Sections 2.08, 2.09 and 2.10, become void and
be delivered to the Trustee for cancellation.
SECTION 2.07 Payments in Respect of the Certificateless Depositary Interests
and Global Securities.
(a) Whenever the Global Depositary shall receive from the Paying Agent
appointed under the Indenture any payment on any Global Security, the amount so
received shall be distributed promptly to the Depositary entitled thereto, on
the corresponding payment date for such Global Security. So long as DTC is the
Depositary, such payments shall be made in accordance with the Letter of
Representations.
(b) The Global Depositary shall forward to the Company or its agents such
information from its records as the Company may reasonably request to enable
the Company or its agents to file necessary reports with governmental agencies,
and the Global Depositary, the Company or their agents may (but shall not be
required to) file any such reports necessary to obtain benefits under any
applicable tax treaties for the Depositary or beneficial owners of Book-Entry
Interests.
(c) None of the Company, the Trustee, the Global Depositary or any agent
of the Company or the Trustee or the Global Depositary will have any
responsibility or liability for any aspect of the records relating to payments
made by the Depositary (or its direct or indirect participants) on account of
Book-Entry Interests or for maintaining, supervising or reviewing any records
relating to such Book-Entry Interests.
-6-
8
(d) Notwithstanding any other provision of this Agreement, the Global
Depositary shall be required to pay to the Depositary only amounts (including
Additional Amounts) received by the Global Depositary under a Global Security.
SECTION 2.08 Redemption of Securities and Book-Entry Interests.
In the event that the Company exercises any right of redemption under the
Indenture and terms of the Securities in respect of all or any part of any
Global Security, the Global Depositary shall promptly deliver such Global
Security to the Trustee and request the Trustee to endorse Schedule A to such
Global Security to reflect the reduction in the principal amount at maturity of
such Global Security as a result of such redemption. In addition, the Global
Depositary shall notify the Depositary of the principal amount at maturity
redeemed and of a corresponding reduction of the same principal amount at
maturity of the Certificateless Depositary Interest. The Global Depositary
shall pay all such amounts received by it in connection with such redemption to
the Depositary.
SECTION 2.09 Offer to Purchase Securities and Book-Entry Interests.
Upon receipt by the Global Depositary as holder of a Global Security of an
Offer to Purchase Securities pursuant to the Indenture, the Global Depositary
will forward the Offer to Purchase to the Depositary with any additional
instructions applicable to owners of Book-Entry Interests. Upon notice by the
Depositary of the principal amount at maturity of Book-Entry Interests tendered
for purchase in response to such Offer to Purchase, the Global Depositary will
surrender the applicable Global Security in accordance with the instructions
set forth in the Offer to Purchase, indicating the portion of the principal
amount at maturity of such Global Security that is being tendered for purchase
pursuant to the Offer to Purchase. Upon receipt of any payment resulting from
the Offer to Purchase, the Global Depositary shall pay any amounts received to
the Depositary, indicate the principal amount at maturity of such Global
Security reduced by the Trustee in connection with the Offer to Purchase, and
notify the Depositary of a corresponding reduction in the principal amount of
the Certificateless Depositary Interest.
SECTION 2.10 Exchange for Definitive Registered Securities; Transfers and
Transfer Restrictions.
If, upon an Event of Default or at any other time, the owner of a
Book-Entry Interest shall so request (such request of the owner to be given in
writing only through the Depositary), upon transfer or surrender of such
owner's Book-Entry Interest to the account of the Global Depositary maintained
with the Depositary, the Global Depositary shall (i) promptly deliver the
applicable Global Security to the Trustee and request that the Trustee exchange
any part of such Global Security for one or more Definitive Registered
Securities registered in the names specified by the Depositary and endorse
Schedule A to such Global Security to reflect the reduction in principal amount
of such Global Security resulting from such exchange, provided that the
principal amount at maturity of such Definitive Registered Securities and of
such Global Security after such exchange shall be in authorized denominations
and (ii) instruct the Depositary to cancel the Book-Entry Interest surrendered
or transferred to the account of the Global Depositary maintained with the
Depositary and notify the Depositary of a reduction in the principal amount at
maturity of the Certificateless Depositary Interest.
-7-
9
Thereafter, if any Global Security is still outstanding, then at the
request of any holder of a Definitive Registered Security and upon surrender by
such holder of such Definitive Registered Security to the Registrar for
registration of transfer of such Definitive Registered Security to the Global
Depositary, the Global Depositary shall promptly (i) surrender such Definitive
Registered Security to the Registrar for cancellation, deliver the applicable
Global Security held by the Global Depositary to the Trustee and request that
the Trustee endorse Schedule A thereof to increase the principal amount at
maturity of such Global Security by an amount equal to the principal amount at
maturity of the Definitive Registered Security delivered to the Registrar for
cancellation and (ii) notify the Depositary of an increase in the
Certificateless Depositary Interest for the account of such holder equal in
principal amount at maturity to the principal amount at maturity of such
Definitive Registered Security.
If the owner of a Book-Entry Interest in one Global Security wishes at any
time to transfer such interest to a Person who wishes to take delivery thereof
in the form of a Book-Entry Interest in a second Global Security, then upon
receipt by the Global Depositary of (A) an order given by the Depositary or its
authorized representative directing that a Book-Entry Interest in the second
Global Security in a specified principal amount at maturity be credited to a
specified Agent Member's account and that a Book-Entry Interest in the first
Global Security in an equal principal amount be debited from another specified
Agent Member's account and (B) if applicable (see below), a Restricted
Securities Certificate or a Regulation S Certificate satisfactory to the Global
Depositary and duly executed by the owner of such Book-Entry Interest or his
attorney in fact duly authorized in writing, then the Global Depositary shall
(i) promptly deliver the applicable Global Securities to the Trustee and
request that the Trustee endorse Schedule A to such Global Securities to
reflect the reduction in principal amount at maturity of the first Global
Security and the corresponding increase in the second Global Security resulting
from such transfer and (ii) notify the Depositary of the corresponding
adjustments in the principal amount at maturity of the Certificateless
Depositary Interests.
Reference is made to Section 305(b) of the Indenture which sets forth
certain transfer restrictions and certification requirements relating to
exchanges or transfers between Holders of the Global Securities and/or
Definitive Registered Securities. Owners of Book-Entry Interests acknowledge
that analogous transfer restrictions and certification shall apply to transfers
and exchanges described in this Section 2.10. Accordingly, in the
circumstances where a Restricted Securities Certificate (as defined in the
Indenture) or a Regulation S Certificate (as defined in the Indenture) is
required under Section 305(b) of the Indenture to be delivered to the Trustee
in connection with any transfer or exchange involving a Global Security, a
Restricted Securities Certificate (as defined herein) or a Regulation S
Certificate (as defined herein) as applicable shall be delivered to the Global
Depositary in connection with any analogous transfer or exchange involving a
Book-Entry Interest in such Global Security.
The parties hereto acknowledge that pursuant to arrangements with the
Depositary, during the Restricted Period, any trades in Book-Entry Interests in
the Regulation S Global Security will only occur in or through accounts
maintained at the Depositary by the Euroclear System and Cedel Bank, sociJtJ
anonyme.
Each owner of Book-Entry Interests in the Restricted Global Security
understands that such Book-Entry Interests have not been registered under the
Securities Act and may not be offered, resold, pledged or otherwise transferred
by such owner except (a)(i) to a person who such owner reasonably believes is a
qualified institutional buyer acquiring for its own account or the account of a
qualified institutional buyer in a transaction meeting the requirements of Rule
144A, (ii) in an offshore
-8-
10
transaction meeting the requirements of Rule 903 or Rule 904 of Regulation S,
(iii) pursuant to an exemption from registration under the Securities Act
provided by Rule 144 thereunder (if available) or (iv) pursuant to an effective
registration statement under the Securities Act and (b) in accordance with all
applicable securities laws of the states of the United States and other
jurisdictions.
SECTION 2.11 Record Date.
Whenever (i) the Global Depositary shall receive notice of any action to
be taken by the holder of a Global Security, or (ii) the Global Depositary
otherwise deems it appropriate in respect of any other matter, the Global
Depositary shall fix a record date for the determination of the principal
amount at maturity represented by the Certificateless Depositary Interest at
such record date, with respect to which the Depositary shall be entitled to
take any such action or to act in respect of any such matter, which record date
shall be the same date as that fixed with respect to the holder of a Global
Security or holders of Definitive Registered Securities under the Indenture.
Subject to the provisions of this Agreement, only the Depositary in whose name
the Certificateless Depositary Interest is recorded in the records of the
Global Depositary at the close of business on such record date shall be
entitled to receive any such payment, to give instructions as to such action or
to act in respect of any such matter.
SECTION 2.12 Action in Respect of the Certificateless Depositary Interests.
As soon as practicable after receipt by the Global Depositary of notice of
any solicitation of consents or request for a waiver or other action by the
holder of a Global Security under the Indenture or by the Global Depositary
under this Agreement, the Global Depositary shall mail to the Depositary a
notice containing (a) such information as is contained in the notice received,
(b) a statement that the Depositary at the close of business on a specified
record date (established in accordance with Section 2.11 hereof) will be
entitled, subject to the provisions of or governing the Certificateless
Depositary Interest or Global Securities, to instruct the Global Depositary as
to the consent, waiver or other action, if any, pertaining to this Agreement or
the Indenture and (c) a statement as to the manner in which such instructions
may be given. In addition, the Global Depositary will forward to the
Depositary or, based upon instructions received from the Depositary, to owners
of Book-Entry Interests, all materials pertaining to any such solicitation,
request, offer or other action. Upon the written request of the Depositary
received on or before the date established by the Global Depositary for such
purpose, the Global Depositary shall endeavor insofar as practicable and
permitted under the provisions of this Agreement or the Indenture, as the case
may be, to take such action regarding the requested consent, waiver or other
action in respect of all or only a portion of the principal amount at maturity
of the Certificateless Depositary Interest or applicable Global Security, as
the case may be, with respect to which instructions in accordance with any
instructions set forth in such request have been received. The Depositary may
grant proxies or otherwise authorize DTC Participants (or persons owning
Book-Entry Interests through such DTC Participants) to provide such
instructions to the Global Depositary so that it may exercise any rights of a
holder or take any other actions which a holder is entitled to take under the
Indenture. The Global Depositary shall not itself exercise any discretion in
the granting of consents or waivers or the taking of any other action in
respect of a Global Security. Without prejudice to Section 2.07(c), the
records of the Depositary shall, absent manifest error, be conclusive evidence
of the owners of Book-Entry Interests and the principal amount at maturity
represented by such Book-Entry Interests.
-9-
11
SECTION 2.13 Changes Affecting the Global Securities.
Upon any reclassification of the Global Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which the Company is a party, any securities that
shall be received by the Global Depositary in exchange for or in respect of a
Global Security shall be treated as a new Global Security or as part of the
Global Security under this Agreement and any corresponding Certificateless
Depositary Interest shall thenceforth represent the Global Security, including
such new securities so received.
SECTION 2.14 Reports.
The Global Depositary shall immediately send to the Depositary any
notices, reports and other communications received from the Company that are
received by the Global Depositary as holder of the Global Securities.
SECTION 2.15 Additional Amounts.
All payments made on Book-Entry Interests will be made free and clear of
and without deduction or withholding for or on account of any present or future
taxes, duties, assessments or governmental charges of whatever nature unless
the withholding or deduction is then required by law. If any such deduction or
withholding is required by the United Kingdom or any political subdivision or
taxing authority thereof or therein ("Taxes"), each owner of Book-Entry
Interests shall be entitled to receive from the Global Depositary additional
amounts ("Additional Amounts") with respect to any such payment, but subject to
the limitations contained in the Indenture, such Additional Amounts and
limitations to be applied for these purposes by treating the owner of any
Book-Entry Interests as a Holder or beneficiary of such payments (referred to
in Section 1016 - Additional Amounts in the Indenture). At least 10 days prior
to the first date on which withholding on account of Taxes would be required
under applicable law or payment of Additional Amounts would be required
pursuant to this Section 2.15 to be made, and at least 10 days prior to any
subsequent such date if there has been any change with respect to such matters,
the Company will furnish the Global Depositary with an Officers' Certificate
that shall specify by country the amount, if any, required to be withheld on
such payments to the Depositary and the amount of Additional Amounts payable to
the Depositary, net of amounts to which the Depositary or any owner of a
Book-Entry Interest is not entitled. The Global Depositary shall have no
responsibility for determining whether the Depositary or any owner of a
Book-Entry Interest is entitled to the payment of Additional Amounts, but shall
be entitled to rely conclusively for this purpose on the Officers' Certificate
or on certifications from the Depositary. The Company shall indemnify the
Global Depositary for, and hold it harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on its part arising
out of or in connection with actions taken or omitted by it in reliance on any
Officers' Certificate furnished to it pursuant to this Section 2.15 or failure
to furnish any such Officers' Certificate. Notwithstanding anything to the
contrary provided above, the Global Depositary shall pay or cause to be paid
Additional Amounts only out of funds that shall be received by it from the
Company for that purpose.
-10-
12
ARTICLE THREE
THE GLOBAL DEPOSITARY
SECTION 3.01 Certain Duties and Responsibilities.
(a) The Global Depositary undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Global Depositary from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) the duties and obligations of the Global Depositary with respect
to the Certificateless Depositary Interests and the Global Securities
shall be determined solely by the express provisions of this Agreement
and the Global Depositary shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Agreement, and no implied covenants or obligations shall be read into
this Agreement against the Global Depositary; and
(2) in the absence of bad faith on its part, the Global Depositary
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Global Depositary and
conforming to the requirements of this Agreement, but in the case of any
such statements, certificates or opinions that by any provision hereof
are specifically required to be furnished to the Global Depositary, the
Global Depositary shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Agreement.
(c) The Global Depositary shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Global Depositary, unless it
shall be proved that the Global Depositary was negligent in ascertaining the
pertinent facts.
(d) The Global Depositary shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Depositary relating to the time, method and place of
conducting any proceeding for any remedy available to the Global Depositary, or
exercising any power conferred upon the Global Depositary, under this
Agreement.
(e) No provision of this Agreement shall require the Global Depositary to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(f) Whether or not therein expressly so provided, every provision of this
Agreement relating to the conduct or affecting the liability of or affording
protection to the Global Depositary shall be subject to the provisions of this
Section.
-11-
13
SECTION 3.02 Notice of Default.
Within 90 days after the occurrence of any Event of Default under the
Indenture of which a Responsible Officer of the Global Depositary assigned to
its Corporate Trustee Administration Department has actual knowledge, the
Global Depositary shall transmit by mail to the Depositary in the manner
provided in Section 4.02, notice of such Event of Default, provided that such
Event of Default shall be continuing.
SECTION 3.03 Certain Rights of Global Depositary.
Subject to the provisions of Section 3.01 hereof:
(a) the Global Depositary may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, security, or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by an Officers' Certificate, a Company Order or
Company Request, and any resolution of the Board of Directors of the
Company may be sufficiently evidenced by a Board Resolution;
(c) the Global Depositary may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection with respect to any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon
in accordance with such advice or Opinion of Counsel;
(d) the Global Depositary shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Global Depositary, in its discretion,
may make reasonable further inquiry or investigation into such facts or
matters related to the issuance of the Global Securities and if the
Global Depositary shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, at reasonable times during normal business
hours, personally or by agent or attorney;
(e) the Global Depositary may execute any of the powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Global Depositary shall not be responsible for any
misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
(f) the Global Depositary shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement at the
request, order or direction of the Depositary pursuant to this Agreement,
unless the Depositary shall have offered to the Global Depositary
reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred
-12-
14
by it in compliance with such request, order or direction, provided that such
request, order or direction shall not expose the Global Depositary to personal
liability;
(g) the Global Depositary shall not be liable for any action taken
or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion, rights or powers conferred upon it
by this Agreement; and
(h) whenever in the administration of its duties under this
Agreement the Global Depositary shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering or
omitting any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Global Depositary, be deemed
to be conclusively proved and established by an Officers' Certificate
delivered to the Global Depositary.
SECTION 3.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in the Indenture and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Global Depositary assumes no responsibility for their
correctness. The Global Depositary makes no representations as to the validity
or sufficiency of this Agreement or of the Securities or of any offering
materials. The Global Depositary shall not be accountable for the use or
application by the Company of the proceeds with respect to the Securities.
SECTION 3.05 Money Held in Trust.
Money held by the Global Depositary in trust hereunder need not be
segregated from other funds held by the Global Depositary, except to the extent
required by law. The Global Depositary shall be under no obligation to invest
or pay interest on any money received by it hereunder, except as otherwise
agreed with the Depositary (or in the absence of such an agreement, with the
Company).
SECTION 3.06 Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Global Depositary from time to time such
compensation as agreed between them in writing for all services rendered
by it hereunder (which compensation shall not be limited by any provision
of law with regard to the compensation of a trustee of an express trust);
(b) to reimburse the Global Depositary and any predecessor Global
Depositary upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Global Depositary in accordance with
any provision of this Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
-13-
15
(c) to indemnify the Global Depositary and any predecessor Global
Depositary for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this
Agreement and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
The obligations of the Company under this Section to compensate and
indemnify the Global Depositary and any predecessor Global Depositary and to
pay or reimburse the Global Depositary and any predecessor Global Depositary
for expenses, disbursements and advances shall survive the payment of the
Global Securities, resignation or removal of the Global Depositary and
satisfaction, discharge or other termination of this Agreement.
SECTION 3.07 Global Depositary Required; Eligibility.
At all times when there is a Global Depositary hereunder, such Global
Depositary shall be a corporation organized and doing business under the laws
of the United States of America, any State thereof or the District of Columbia,
having, together with its parent, a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal, State or
District of Columbia authority, willing to act on reasonable terms. Such
corporation shall have its principal place of business in the Borough of
Manhattan, the City of New York, if there be such a corporation in such
location willing to act upon reasonable and customary terms and conditions. If
such corporation, or its parent, publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The Global Depositary hereunder shall at all times be the Trustee
under the Indenture, subject to receipt of an Opinion of Counsel that the same
Person is precluded by law from acting in such capacities. If at any time the
Global Depositary shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 3.08 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Global Depositary and no appointment
of a successor Global Depositary pursuant to this Article shall become
effective until (i) the acceptance of appointment by the successor Global
Depositary in accordance with the applicable requirements of Section 3.09
hereof or (ii) the issuance of Definitive Registered Securities in accordance
with Section 2.05 hereof.
(b) The Global Depositary may resign by giving written notice thereof to
the Company and the Depositary, in accordance with Section 4.01 and Section
4.02, 60 days prior to the effective date of such resignation. The Global
Depositary may be removed at any time upon 90 days' notice by the filing with
it of an instrument in writing signed on behalf of the Company and specifying
such removal and the date when it is intended to become effective.
-14-
16
(c) If at any time
(1) the Global Depositary shall cease to be eligible under Section
3.07 hereof and shall fail to resign after written request therefor by
the Company or by the Depositary, or
(2) the Global Depositary shall become incapable of acting with
respect to the Certificateless Depositary Interest or shall be adjudged a
bankrupt or insolvent, or a receiver or liquidator of the Global
Depositary or of its property shall be appointed or any public officer
shall take charge or control of the Global Depositary or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, by Board Resolution, may immediately
remove the Global Depositary and appoint a successor Global Depositary or (ii)
the Depositary or Global Depositary may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Global Depositary and the appointment of a successor Global
Depositary or Global Depositaries unless the Global Securities have been
completely replaced by Definitive Registered Securities which have been issued
in accordance with the Indenture. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Global Depositary and
appoint a successor Global Depositary.
(d) If the Global Depositary shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Global Depositary for
any cause, the Company, by Board Resolution, shall promptly appoint a successor
Global Depositary (other than the Company) and shall comply with the applicable
requirements of Section 3.09 hereof. If no successor Global Depositary with
respect to the Global Securities shall have been so appointed by the Company
and accepted appointment in the manner required by Section 3.09, the Depositary
or Global Depositary may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Global Depositary unless the Global Securities have been completely
replaced by Definitive Registered Securities which have been issued in
accordance with the Indenture.
(e) The Company shall give, or shall cause such successor Global
Depositary to give, notice of each resignation and each removal of a Global
Depositary and each appointment of a successor Global Depositary to the
Depositary in accordance with Section 4.02 hereof. Each notice shall include
the name of the successor Global Depositary and the address of its Corporate
Trust Office. If the Company fails to give notice within ten days after
acceptance of appointment by the successor Global Depositary, the successor
Global Depositary shall cause such notice to be given at the expense of the
Company.
SECTION 3.09 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Global Depositary,
every such successor Global Depositary so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Global Depositary an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Global Depositary shall become effective and such successor Global
Depositary, without any further act, deed or conveyance, shall become vested
with all the rights, powers, agencies and duties of the retiring Global
Depositary, with like effect as if originally named as
-15-
17
Global Depositary hereunder; but, on the request of the Company or the
successor Global Depositary, such retiring Global Depositary shall, upon
payment of all amounts due and payable to it pursuant to Section 3.06 hereof,
execute and deliver an instrument transferring to such successor Global
Depositary all the rights and powers of the retiring Global Depositary and
shall duly assign, transfer and deliver to such successor Global Depositary all
property and money held by such retiring Global Depositary hereunder and shall
deliver the Global Securities to the successor.
(b) Upon request of any such successor Global Depositary, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Global Depositary all such rights, powers and
agencies referred to in paragraph (a) of this Section.
(c) No successor Global Depositary shall accept its appointment unless at
the time of such acceptance such successor Global Depositary shall be eligible
under this Article.
(d) Upon acceptance of appointment by any successor Global Depositary as
provided in this Section, the Company shall give notice thereof to the
Depositary in accordance with Section 4.02 hereof. If the acceptance of
appointment is substantially contemporaneous with the resignation of the Global
Depositary, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 3.08 hereof. If the Company
fails to give such notice within 15 days after acceptance of appointment by the
successor Global Depositary, the successor Global Depositary shall promptly
cause such notice to be given at the expense of the Company.
SECTION 3.10 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Global Depositary may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Global Depositary
shall be a party, or any corporation succeeding to all or substantially all the
agency business of the Global Depositary, shall be the successor of the Global
Depositary hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation shall be otherwise eligible under this Article.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.01 Notices to Global Depositary or Company.
Any request, demand, authorization, direction, notice, consent, or waiver
or other document provided or permitted by this Agreement to be made upon,
given or furnished to, or filed with,
(a) the Global Depositary by the Depositary, the Trustee or the Company
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and delivered
or mailed and received, first-class postage prepaid, to the Global Depositary
at its Corporate Trust Office, Attention: Corporate Trust Trustee
Administration Department, or at any other address previously furnished in
writing by the Global Depositary to the Depositary, the Trustee and the
Company, or
-16-
18
(b) the Company, by the Global Depositary shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if made, given,
furnished or filed in writing and delivered or mailed and received, first-class
postage prepaid to Diamond Cable Communications Plc, Attention: Managing
Director, Regency House, 0X Xxxxxxxx Xxxx, Xxxxxxxxxx XX0 0XX, Xxxxxxx, or at
any other address previously furnished in writing to the Global Depositary by
the Company.
SECTION 4.02 Notice to Depositary and Owners; Waiver.
Where this Agreement provides for notice to the Depositary or owners of
Book-Entry Interests of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided or as provided in the Letter of
Representations) if in writing and mailed, first-class postage prepaid, to the
Depositary at the address notified to the Global Depositary, in each case not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. Where this Agreement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by the Depositary shall be filed
with the Global Depositary, but such filing shall not be a condition precedent
to the validity of any such action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Global Depositary
shall constitute a sufficient notification for every purpose hereunder.
SECTION 4.03 Effect of Headings.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
SECTION 4.04 Successors and Assigns.
All covenants and agreements of the Company in this Agreement and the
Securities shall bind the Company's successors and assigns, whether so
expressed or not.
SECTION 4.05 Separability Clause.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
SECTION 4.06 Benefits of Agreement.
-17-
19
Nothing in this Agreement, the Securities or the Indenture, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any benefits or any legal or equitable right, remedy or
claim under this Agreement. The owners from time to time of the Book-Entry
Interests shall be parties to this Agreement and, by their acceptance of
delivery of the Book-Entry Interests, shall be deemed to be bound by all of the
terms and conditions hereof and of the Indenture and the Securities.
SECTION 4.07 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW THEREOF.
SECTION 4.08 Jurisdiction.
By the execution and delivery of this Agreement, the Company (i)
acknowledges that it has, by separate written instrument, irrevocably
designated and appointed CT Corporation Systems as its authorized agent upon
which process may be serviced in any suit or proceeding by the Global
Depositary arising out of this Agreement that may be instituted in any Federal
or State court in the Borough of Manhattan, The City of New York, and
acknowledges that CT Corporation Systems has accepted such designation, (ii)
submits to the jurisdiction of any such court in any such suit or proceeding,
and waives any objection which it may now or hereafter have to the laying of
venue of any such proceeding or any claim of inconvenient forum and (iii)
agrees that service of process upon CT Corporation Systems and written notice
of said service to it (mailed or delivered to its Secretary at its principal
office) shall be deemed in every respect effective service of process upon it
in any such suit or proceeding. The Company further agrees to take any and all
action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment
of CT Corporation Systems in full force and effect so long as this Agreement
shall be in full force and effect and so long as any Global Security shall be
outstanding.
To the extent that the Company has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution
or otherwise) with respect to itself or its property, hereby irrevocably waives
such immunity in respect of its respective obligations under this Agreement to
the fullest extent permitted by law.
SECTION 4.09 Counterparts.
This Agreement may be executed in any number of counterparts by the
parties hereto on separate counterparts, each of which, when so executed and
delivered, shall be deemed an original, but all such counterparts shall
together constitute one and the same instrument.
SECTION 4.10 Inspection of Agreement.
-18-
20
A copy of this Agreement shall be available at all reasonable times during
normal business hours at the Corporate Trust Office of the Global Depositary
for inspection by any owner of Book-Entry Interests.
SECTION 4.11 Satisfaction and Discharge.
This Agreement upon a Company Request shall cease to be of further effect,
and the Global Depositary, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Agreement, when
(i) the Indenture has been satisfied and discharged pursuant to the provisions
thereof or Definitive Registered Securities have been issued and the Global
Securities have been cancelled in accordance with the provisions of Section
2.05 or 2.06 hereof, (ii) the Company has paid or caused to be paid all sums
payable hereunder by the Company and (iii) the Company has delivered to the
Global Depositary an Officers' Certificate and an Opinion of Counsel, stating
that all conditions precedent herein provided relating to the satisfaction and
discharge of this Agreement have been complied with.
SECTION 4.12 Amendments.
The Company and the Global Depositary may amend this Agreement without the
consent of the Depositary or the owners of Book-Entry Interests:
(a) to cure any ambiguity, omissions, defect or inconsistency;
(b) to add to the covenants and agreements of the Global Depositary or the
Company;
(c) to evidence or effectuate the assignment of the Global Depositary's
rights and duties to a qualified successor, as provided herein;
(d) to evidence the succession of another person to the Company (when a
similar amendment with respect to the Indenture is being executed) and the
assumption by any such successor of the covenants of the Company therein;
(e) to comply with any requirements of the Securities and Exchange
Commission and the TIA; or
(f) to modify, alter, amend or supplement this Agreement in any other
manner that is not adverse to the Depositary or the owners of Book-Entry
Interests.
No amendment that adversely affects the Depositary may be made to this
Agreement or the Book-Entry Interests without the consent of the Depositary.
SECTION 4.13 Global Depositary To Sign Amendments.
-19-
21
The Global Depositary shall sign any amendment authorized pursuant to
Section 4.12 if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Global Depositary. If it does, the Global
Depositary may, but need not, sign it. In signing such amendment, the Global
Depositary shall be entitled to receive indemnity reasonably satisfactory to it
and to receive, and shall be fully protected in reasonably relying upon, an
Officers' Certificate (which need only cover the matters set forth in clause
(a) below) and an Opinion of Counsel stating that:
(a) such amendment is authorized or permitted by this Agreement;
(b) the Company has all necessary corporate power and authority to execute
and deliver the amendment and that the execution, delivery and performance of
such amendment has been duly authorized by all necessary corporate action;
(c) the execution, delivery and performance of the amendment do not
conflict with, or result in the breach of or constitute a default under any of
the terms, conditions or provisions of (i) this Agreement, (ii) the Memorandum
of Association and Articles of Association of the Company or (iii) any law or
regulation applicable to the Company; and
(d) such amendment has been duly and validly executed and delivered by the
Company, and this Agreement together with such amendment constitutes a legal,
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
DIAMOND CABLE COMMUNICATIONS PLC
--------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Chief Financial Officer
THE BANK OF NEW YORK
as Global Depositary
--------------------------------
Name:
Title:
-20-
22
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
The Bank of New York, as Global Depositary
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 10-3/4% Senior Discount Notes due February 2007 of
Diamond Cable Communications Plc (the "Securities")
Reference is made to the Senior Notes Depositary Agreement, dated as of
February 27, 1997 (the "Deposit Agreement"), among inter alia The Bank of New
York, as Global Depositary, and the owners of Book-Entry Interests. Terms used
herein and defined in the Deposit Agreement or in Regulation S or Rule 144
under the U.S. Securities Act of 1933 (the "Securities Act") are used herein as
so defined.
This certificate relates to U.S. $____________ principal amount at
maturity of Securities, or Book-Entry Interests therein (the "Specified
Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
AGENT MEMBER'S
ACCOUNT No(s). _________________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a Global Security,
Book-Entry Interests therein are held through The Depository Trust Company or
an agent member in the name of the Undersigned, as or on behalf of the Owner.
If the Specified Securities are not represented by a Global Security, they are
registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of a Regulation S
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with
Rule 904 or Rule 144 under the Securities Act and with all applicable
securities laws of the states of the United States and other jurisdictions.
Accordingly, the Owner hereby further certifies as follows:
A-1
23
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an
affiliate of Diamond Cable Communications Plc (the "Company") or
any such distributor or a person acting on behalf of any of the
foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States or for the account or benefit of a U.S.
Person;
(C) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or
through the facilities of the Eurobond market, as regulated
by the Association of International Bond Dealers, or another
designated offshore securities market and neither the Owner
nor any person acting on its behalf knows that the
transaction has been prearranged with a buyer in the United
States;
(D) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a
selling concession, fee or other renumeration in respect of the
Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(c)(1) have
been satisfied; and
(F) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
(A) the transfer is occurring after February 27, 1999 and is
being effected in accordance with the applicable amount, manner of
sale and notice requirements of Rule 144; or
(B) the transfer is occurring after February 27, 2000 and the
Owner is not, and during the preceding three months has not been,
an affiliate of the Company.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Purchasers.
A-2
24
Dated: ------------------------------------------------
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this
certificate.)
By:
--------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership
or fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
A-3
25
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
The Bank of New York, as Global Depositary
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 10-3/4% Senior Discount Notes due February 2007 of
Diamond Cable Communications Plc (the "Securities")
Reference is made to the Senior Notes Depositary Agreement, dated as of
February 27, 1997 (the "Deposit Agreement"), among inter alia The Bank of New
York, as Global Depositary, and the owners of Book-Entry Interests. Terms used
herein and defined in the Deposit Agreement or in Regulation S or Rule 144
under the U.S. Securities Act of 1933 (the "Securities Act") are used herein as
so defined.
This certificate relates to U.S. $_____________ principal amount at
maturity of Securities, or Book-Entry Interests therein (the "Specified
Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
AGENT MEMBER'S
ACCOUNT No(s).__________________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a Global Security,
Book-Entry Interests therein are held through The Depository Trust Company or
an agent member in the name of the Undersigned, as or on behalf of the Owner.
If the Specified Securities are not represented by a Global Security, they are
registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of a Restricted
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective
B-1
26
registration statement under the Securities Act, it is being effected in
accordance with Rule 144A or Rule 144 under the Securities Act and all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as:
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably
believe is a "qualified institutional buyer" within the meaning of
Rule 144A, acquiring for its own account or for the account of a
qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the
Owner may be relying on Rule 144A in connection with the transfer;
and
(2) Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
(A) the transfer is occurring after February 27, 1999 and is
being effected in accordance with the applicable amount, manner of
sale and notice requirements of Rule 144; or
(B) the transfer is occurring after February 27, 2000 and the
Owner is not, and during the preceding three months has not been,
an affiliate of the Diamond Cable Communications Plc (the
"Company").
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Purchasers.
Dated: ------------------------------------------------
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this
certificate.)
By:
--------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership
or fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
B-2
