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Exhibit 4.4
NTL INCORPORATED,
NTL COMMUNICATIONS CORP.
and
THE CHASE MANHATTAN BANK,
as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of March 31, 1999
Supplementing the Indenture dated
as of December 16, 1998
between NTL Incorporated
and
The Chase Manhattan Bank, as Trustee
7% CONVERTIBLE SUBORDINATED NOTES
DUE 2008
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FIRST SUPPLEMENTAL INDENTURE, dated as of March 31, 1999,
between NTL Incorporated, a Delaware corporation (the "COMPANY"), NTL Communi
cations Corp., a Delaware corporation and a direct, wholly owned subsidiary of
the Company ("HOLDCO") and The Chase Manhattan Bank, a New York corporation, as
trustee (the "TRUSTEE").
WITNESSETH:
WHEREAS, the Company and the Trustee previously executed and
delivered the Indenture, dated as of December 16, 1998 (the "INDENTURE"),
providing for the creation, execution authentication and delivery of the
Company's 7% Convertible Subordinated Notes due 2008 (the "SECURITIES"), which
Securities are convertible into shares of common stock, par value $.01 per share
(the "NTL COMMON STOCK"), of the Company in accordance with the terms and
conditions of the Indenture;
WHEREAS, Section 11.01 of the Indenture provides that the
Company and the Trustee may from time to time amend or supplement the Indenture
without the consent of any holders of the Securities, in order to, among other
things, comply with Section 5.12 of the Indenture regarding the effect of
reclassifications, consolidations, mergers or sales on conversion privileges;
WHEREAS, on March 26, 1999, the Company, Holdco and NTL
Mergerco, Inc., a Delaware corporation that is a direct wholly-owned subsidiary
of Holdco and an indirect wholly-owned subsidiary of the Company ("MERGER SUB"),
entered into an Agreement and Plan of Merger (the "MERGER AGREEMENT"), pursuant
to which, among other things, Merger Sub shall be merged with and into the
Company in accordance with Section 251(g) of the General Corporation Law of the
State of Delaware (the "MERGER"), with the Company continuing as the surviving
corporation (the "SURVIVING CORPORATION") under the name "NTL Communications
Corp." and as a wholly-owned subsidiary of Holdco;
WHEREAS, pursuant to the Merger, each outstanding share of NTL
Common Stock shall be converted into the right to receive one validly issued,
fully paid and nonassessable share of common stock, par value $.01 per share, of
Holdco (the "HOLDCO COMMON STOCK");
WHEREAS, upon consummation of the Merger and except as
expressly set forth in Section 2.01 of this First Supplemental Indenture, the
Com-
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pany, as the Surviving Corporation, shall continue to be liable for the
obligations of the Company under the Securities and the Indenture; and
WHEREAS, all actions necessary to make this First Supplemental
Indenture and the Securities valid, binding and enforceable obligations of the
Company and, to the extent applicable, Holdco, have been performed and
fulfilled;
NOW, THEREFORE, for and in consideration of the premises and
mutual covenants herein contained each party agrees as follows for the benefit
of the other party and for the equal and ratable benefit of the holders of the
Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01 GENERAL. For all purposes of the Indenture and
this First Supplemental Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(a) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to the Indenture and this First Supplemental
Indenture as a whole and not to any particular Article, Section or subdivision;
and
(b) capitalized terms used but not defined herein shall have
the meanings assigned to them in the Indenture.
ARTICLE II
EFFECT OF MERGER ON CONVERSION PRIVILEGE; ADJUSTMENT
OF CONVERSION PRICE
SECTION 2.01 CONVERSION OF SECURITIES FOR HOLDCO COMMON STOCK.
In accordance with Section 5.12 of the Indenture, upon and as of the consumma
tion of the Merger, the holder of each Security then outstanding shall have the
right to convert such Security into the amount of shares of Holdco Common Stock
receivable upon effectiveness of the Merger by a holder of the number of shares
of NTL Common Stock deliverable upon conversion of such Security immediately
prior to the Merger. All of the covenants and provisions by or for the benefit
of the Company that are contained in Article V of the Indenture relating to the
conversion
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of the Securities shall, upon consum mation of the Merger, bind and inure to the
benefit of Holdco, including without limitation the covenant set forth in
Section 5.05 of the Indenture, which shall require that Holdco at all times
reserve and keep available, free from preemptive rights, out of authorized but
unissued Holdco Common Stock and solely for the purpose of issuance upon
conversion of Securities, a sufficient number of shares of Holdco Common Stock
to permit conversion of all outstanding Securities for shares of Holdco Common
Stock.
SECTION 2.02 ADJUSTMENTS. Upon consummation of the Merger, any
adjustments of the Conversion Price shall continue to be made in accordance with
Article V of the Indenture, except that adjustments previously applicable with
respect to the NTL Common Stock, shall then be applicable in the same manner
with respect to the Holdco Common Stock.
SECTION 2.03 RIGHTS UPON CONVERSION. Nothing in this First
Supplemental Indenture shall be construed to affect in any way the right that a
holder of a Security may otherwise have, pursuant to clause (ii) of the last
sentence of subsection (c) of Section 5.06, to receive Rights upon conversion of
a Security.
SECTION 2.04 HOLDCO AS SIGNATORY. In accordance with Section
5.12 of the Indenture, Holdco, as the issuer of the consideration receivable by
holders of NTL Common Stock upon consummation of the Merger, has also executed
this First Supplemental Indenture.
SECTION 2.05 RIGHTS, POWERS AND OBLIGATIONS OF THE COMPANY
CONTINUE. Upon consummation of the Merger and except as expressly set forth in
Section 2.01 of this First Supplemental Indenture, the Company as the Surviving
Corpora tion shall exercise all of the rights and powers of the Company under
the Indenture and the Securities and shall be solely liable for all of the
obligations of the Company thereunder, including the performance and observance
of every covenant of the Indenture to be performed or observed on the part of
the Company.
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ARTICLE III
MISCELLANEOUS
SECTION 3.01 EFFECT OF FIRST SUPPLEMENTAL INDENTURE. Upon the
execution and delivery of this First Supplemental Indenture by the Company and
the Trustee, the Indenture shall be supplemented in accordance herewith, and
this First Supplemental Indenture shall form a part of the Indenture for all
purposes, and every holder of Securities heretofore or hereafter authenticated
and delivered under the Inden ture shall be bound thereby.
SECTION 3.02 NOTATION REFLECTING FIRST SUPPLEMENTAL INDENTURE.
The Trustee may place an appropriate notation about the First Supplemental
Indenture on any Security authenticated after the execution and delivery of this
First Supplemental Indenture. The Company in exchange for all Securities may
issue and the Trustee shall authenticate new Securities that reflect the First
Supplemental Indenture.
SECTION 3.03 INDENTURE REMAINS IN FULL FORCE AND EFFECT.
Except as supplemented hereby, all provisions in the Indenture shall remain in
full force and effect.
SECTION 3.04 INDENTURE AND FIRST SUPPLEMENTAL INDENTURE
CONSTRUED TOGETHER. This First Supplemental Indenture is an indenture
supplemental to and in implementation of the Indenture, and the Indenture and
this First Supplemental Indenture shall henceforth be read and construed
together.
SECTION 3.05 CONFIRMATION AND PRESERVATION OF INDENTURE. The
Indenture as supplemented by this First Supplemental Indenture is in all
respects confirmed and preserved.
SECTION 3.06 CONFLICT WITH TRUST INDENTURE ACT. If any
provision of this First Supplemental Indenture limits, qualifies or conflicts
with any provision of the Trust Indenture Act that is required under the Trust
Indenture Act to be part of and govern any provision of this First Supplemental
Indenture, the provision of the Trust Indenture Act shall control. If any
provision of this First Supplemental Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
provision of the Trust Indenture Act
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shall be deemed to apply to the Indenture as so modified or to be excluded by
this First Supplemental Indenture, as the case may be.
SECTION 3.07 SEVERABILITY. In case any provision in this First
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 3.08 HEADINGS. The Article and Section headings of
this First Supplemental Indenture have been inserted for convenience of
reference only, are not to be considered a part of this First Supplemental
Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 3.09 BENEFITS OF FIRST SUPPLEMENTAL INDENTURE, ETC.
Nothing in this First Supplemental Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto and thereto and
their successors hereunder and thereunder and the holders of the Securities, any
benefit of any legal or equitable right, remedy or claim under the Indenture,
this First Supplemental Indenture or the Securities.
SECTION 3.10 SUCCESSORS. All agreements of the Company in this
First Supplemental Indenture shall bind its successors. All agreements of the
Trustee in this First Supplemental Indenture shall bind its successors.
SECTION 3.11 TRUSTEE NOT RESPONSIBLE FOR RECITALS. The Trustee
accepts the amendments to the Indenture effected by the First Supplemental
Indenture and agrees to perform the same upon the terms of the Indenture as
supplemented by this First Supplemental Indenture. Without limiting the
generality of the foregoing, the Trustee shall not be liable or responsible for
the validity as to the Company or sufficiency of this First Supplemental
Indenture or as to the due execution hereof by the Company or as to recitals of
fact contained herein, all of which are made by the Company solely.
SECTION 3.12 CERTAIN DUTIES AND RESPONSIBILITIES OF THE
TRUSTEE. In entering into this First Supplemental Indenture, the Trustee shall
be entitled to the benefit of every provision of the Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee,
whether or not elsewhere herein so provided.
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SECTION 3.13 GOVERNING LAW. The internal law of the State of
New York shall govern and be used to construe this First Supplemental Indenture.
SECTION 3.14 COUNTERPART ORIGINALS. The parties may sign any
number of copies of this First Supplemental Indenture. Each signed copy shall be
an original, but all of them together represent the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the date first above
written.
NTL INCORPORATED
By: /S/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President,
General Counsel and
Secretary
NTL COMMUNICATIONS CORP.
By: /S/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President,
General Counsel
and Secretary
THE CHASE MANHATTAN BANK, as Trustee
By: /S/ Xxxxxx X.Deck
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Name: Xxxxxx X. Deck
Title: Vice President
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