Exhibit 10.12
[ON THE LETTERHEAD OF X.X. XXXXXX EUROPE LIMITED]
Date: 8 March 2002
To: NTL Communications Corp.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx
XX 00000
U.S.A.
NTL Communications Limited
and
NTL (UK) Group, Inc.
NTL House
Xxxxxxx Xxxx Xxxxxxxx Xxxx
Xxxx
Xxxxxxxxx
XX00 0XX
CREDIT AGREEMENT DATED 30 MAY 2000 ORIGINALLY MADE BETWEEN NTL COMMUNICATIONS
CORP. AS PARENT, NTL (UK) GROUP, INC. AS INTERMEDIATE PARENT, NTL COMMUNICATIONS
LIMITED AS BORROWER AND OTHERS, AS AMENDED, NOVATED, VARIED, OR SUPPLEMENTED
FROM TIME TO TIME (THE "CREDIT AGREEMENT")
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Terms defined in the Credit Agreement shall, unless otherwise defined
herein, bear the same meaning in this letter and in this letter:
"CABLECOM CREDIT AGREEMENT" means the credit agreement dated 28 March
2000 originally made between NTL Incorporated as parent, NTL Cablecom
Holding GmbH as shareholder, Cablecom (Ostschweiz) AG (now known as
Cablecom GmbH) as principal borrower, the parties named therein as
original borrowers, the parties named therein as original guarantors
and others, as amended pursuant to an amendment agreement dated 16 May
2000 and as further amended, novated, varied or supplemented from time
to time prior to the date hereof;
"CO-ORDINATORS" means the joint co-ordinators as defined in a
Confirmation of Terms of Appointment letter agreement dated 7 March
2002;
"NTL CC NOTES" means any bonds, notes or similar public debt
instruments issued by the Parent in the domestic or international
capital markets and outstanding at the date of this letter;
"NTL GROUP NOTES" means the NTL CC Notes and any other bonds, notes or
similar public debt instruments issued in the domestic or international
capital markets by any other member of the Group;
"RELEVANT EVENTS OF DEFAULT" means the Events of Default at Clauses
19.6 (Cross Default), 19.7 (Insolvency and Rescheduling), 19.8 (Winding
Up) and 19.10 (Analogous Events) of the Credit Agreement; and
"STEERING COMMITTEE" means the steering committee as set out in a
Confirmation of Terms of Appointment letter agreement dated 7
March 2002.
1.2 INTERPRETATION
Clause 1.2 (Interpretation) of the Credit Agreement shall apply to this
letter as if set out in full. Headings in this letter shall not affect
its interpretation.
2. THE PROPOSED RECAPITALISATION
The Parent has informed the Agent that (a) it wishes to pursue a
proposed restructuring, readjustment, rescheduling and/or
reorganisation of the Parent (the "PROPOSED RECAPITALISATION") (in
particular in respect of its debts and other obligations) and (b) in
connection with the Proposed Recapitalisation it intends to commence
and progress negotiations (the "NTL CC NEGOTIATIONS") with one or more
of the holders (the "NTL CC NOTEHOLDERS") of the NTL CC Notes and/or
their representatives. The Parent has requested the Banks to:
2.1 consent to the Parent taking all steps and corporate and other
action to take forward the Proposed Recapitalisation
(including, without limitation, commencing and progressing the
NTL CC Negotiations) (the "PROPOSED STEPS");
2.2 agree that any Event of Default (including any Relevant Event
of Default) or Potential Event of Default (including in
respect of any Relevant Event of Default) which will or may
occur solely (directly or indirectly) as a result of the
Proposed Steps will not constitute an Event of Default or, as
the case may be, Potential Event of Default; and
2.3 agree that the restriction at paragraph 5.8 of this letter
(and the corresponding restriction contained in the consent
letter referred to at paragraph 3.1.1 below) shall not
constitute a breach of Clause 18.31 (Restriction on Payments)
of the Credit Agreement.
3. CONSENT
Following the receipt of Instructing Group consent, the Agent, on
behalf of the Banks: (a) hereby consents to the Parent taking the
Proposed Steps; (b) hereby agrees that any Event of Default (including
any Relevant Event of Default) or Potential Event of Default (including
in respect of any Relevant Event of Default) which will or may occur
solely
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(directly or indirectly) as a result of the Proposed Steps will not
constitute an Event of Default or, as the case may be, Potential Event
of Default and (c) hereby agrees that the restriction at paragraph 5.8
of this letter (and the corresponding restriction contained in the
consent letter referred to at paragraph 3.1.1 below) will not
constitute a breach of Clause 18.31 (Restrictions on Payments) of the
Credit Agreement (the "CONSENT") PROVIDED THAT:
3.1 the Consent shall not be effective until the date upon which:
3.1.1 the agent under the Senior Bank Credit Agreement has entered
into a consent letter (upon the instructions of an Instructing
Group (as defined in the Senior Bank Credit Agreement)) with
the Parent (acting on behalf of the Obligors (as defined in
the Senior Bank Credit Agreement)) on substantially the same
terms as this consent letter; and
3.1.2 the agent under the Cablecom Credit Agreement has entered into
a consent letter (upon the instructions of an Instructing
Group (as defined in the Cablecom Credit Agreement)) with
Cablecom GmbH (acting on behalf of the Obligors (as defined in
the Cablecom Credit Agreement)) on substantially the same
terms as this letter;
3.2 the Proposed Steps shall not include:
3.2.1 any exchange or similar offer to the NTL CC Noteholders or the
holders of any other NTL Group Notes (together with the NTL CC
Noteholders, the "NOTEHOLDERS") which exchange or similar
offer has been, or is required to be, filed with an
appropriate governmental agency or body (such as the U.S.
Securities and Exchange Commission) or is exempted from any
such filing but which is capable of acceptance by such
Noteholders (or any of them) (whether or not subject to
satisfaction of conditions);
3.2.2 any legally binding agreement for, or any offer to Noteholders
(or any of them) which is capable of acceptance (whether or
not subject to the satisfaction of conditions) in respect of,
the prepayment (in whole or in part) of amounts outstanding
under the NTL Group Notes (or any of them) or the granting of
any security, guarantee or other credit support in respect of
amounts outstanding under the NTL Group Notes (or any of them)
PROVIDED THAT this paragraph 3.2.2 shall not prohibit the
granting of any security, guarantee or other credit support by
Diamond Cable Communications Limited, Diamond Holdings Limited
or NTL (Triangle) LLC or any of their respective subsidiaries
where such security is required to be granted pursuant to the
terms (as at the date hereof) of the indentures constituting
the NTL Group Notes issued by Diamond Cable Communications
Limited, Diamond Holdings Limited or, as the case may be, NTL
Triangle LLC; or
3.2.3 the entry by any member of the Group into any legally binding
agreement with the Noteholders (or any of them) in their
capacity as such in relation to the Proposed Recapitalisation
(in the context of a restructuring) or the NTL Group Notes (or
any of them) (in the context of a restructuring), save for any
legally
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binding agreements: (a) entered into for the purpose of
enabling the provision of information by or to any member of
the Group in connection with the Proposed Recapitalisation or
to facilitate or enable the progress of non legally binding
discussions or negotiations in connection with the Proposed
Steps; (b) entered into for the purpose of engaging legal
and/or other professional advisors in connection with the
Proposed Recapitalisation; (c) under which the Noteholders
unconditionally agree for the benefit of the issuer of the
relevant NTL Group Notes to waive all or any, and/or agree not
to exercise all or any, of their rights in respect of the NTL
Group Notes; or (d) under which the Noteholders
unconditionally agree for the benefit of the issuer of the
relevant NTL Group Notes to a standstill arrangement (or any
other arrangement having similar effect) in respect of all or
any of their rights in respect of the NTL Group Notes; and
3.3 the Consent shall terminate at 5.30pm (New York time) on 29 March 2002
and as at such time or any time thereafter the Agent may by written
notice to the Borrower take any action pursuant to Clause 19.17
(Acceleration and Cancellation) of the Credit Agreement in respect of
any Event of Default the subject of the Consent to the extent that, at
the relevant time, such Event of Default is continuing. For the
avoidance of doubt, if at such time the NTL CC Negotiations are not
continuing and no other Proposed Steps are being taken at, or are taken
after, such time, no Event of Default the subject of the Consent shall
be continuing.
4. ACTION BY THE AGENT
Notwithstanding the Consent, the Agent may take any action deemed
appropriate pursuant to Clause 19.17 (Acceleration and Cancellation) of
the Credit Agreement and/or under any Finance Document upon (or at
anytime after):
4.1 the occurrence of any Event of Default under Clause 19.6 (Cross
Default) (but only whilst such Event of Default is continuing) other
than where such Event of Default is in respect of any holder, holders,
creditor or creditors becoming entitled (by reason of default) to
declare any Specified Financial Indebtedness due and payable prior to
its specified maturity by reason of a default arising solely (directly
or indirectly) as a result of any of the Proposed Steps and such
Specified Financial Indebtedness is not declared to be or does not
otherwise become due and payable prior to its specified maturity. For
the avoidance of doubt, the Agent, on behalf of the Banks, hereby
acknowledges that no Event of Default will occur under Clause 19.6
(Cross Default) or Clause 19.7.1 (Insolvency and Rescheduling) in
respect of Specified Financial Indebtedness arising under the NTL CC
Notes not being paid when due and payable until such time as the NTL CC
Noteholders (or any of them) are entitled, under the terms and
conditions of the NTL CC Notes, to declare any Specified Financial
Indebtedness representing principal in respect of the NTL CC Notes due
and payable prior to its specified maturity date; or
4.2 any of the Parent, the Intermediate Parent, the Borrower or any
Guarantor failing to duly perform or comply with any obligation
expressed to be assumed by it hereunder unless such failure relates to
the obligation at paragraph 5.3 below and such failure is remedied
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within two Business Days or such failure relates to the obligations at
paragraph 5.4 or 5.5 below and such failure is remedied within 7
Business Days.
5. PARENT UNDERTAKINGS
The Parent undertakes by its counter-signature of this letter to:
5.1 procure that no issuer of NTL Group Notes (or any party on such
issuer's behalf) at any time purchases or buys-back any of the NTL
Group Notes issued by it or by any other member of the Group;
5.2 procure that no member of the Group which is a Guarantor as at the date
of this letter resigns as a Guarantor;
5.3 provide to the Agent (in sufficient copies for all Banks, if the Agent
so requests) a 13 week rolling cash flow forecast for the UK Group (the
"FORECAST") which shall be updated by the Borrower and provided to the
Agent on a fortnightly basis (the first Forecast to be delivered
pursuant to this paragraph 5.3 shall be delivered by the Borrower to
the Agent on 5 March 2002). Each Forecast shall be in substantially the
same form as the pro forma Forecast agreed by and delivered to the
Agent prior to the date hereof and shall include details of cash
balances for members of the Group in substantially the same form as
that information appears in, and in respect of the same members of the
Group as, the aforementioned pro forma Forecast;
5.4 supply or otherwise make available to the Co-Ordinators an index of any
information relating to the Parent or the UK Group or any member of the
UK Group which is provided to the Noteholders (or any of them) by any
member of the Group where such information is materially different from
any information which has been provided to the Co-Ordinators and/or the
Steering Committee and/or the Agent and/or the Banks. If requested by
the Co-Ordinators, the Parent shall make such aforementioned
information available to the Co-Ordinators on the same basis as such
information is made available to the Noteholders PROVIDED THAT the
Co-Ordinators have first signed a confidentiality undertaking in favour
of the Parent in a form acceptable to the Parent (acting reasonably);
5.5 provide to the Co-Ordinators copies of:
5.5.1 any material term sheets sent by any member of the Group to
the Noteholders (or any of them) and/or any of their advisors
and which relate to the Proposed Recapitalisation; and
5.5.2 any material comments sent by any member of the Group to the
Noteholders (or any of them) and/or any of their advisors on
any material term sheets which relate to the Proposed
Recapitalisation;
5.6 ensure that any material term sheets sent by any member of the Group to
the Noteholders (or any of them) and/or any of their advisors and which
relate to the Proposed Recapitalisation are expressly marked so as to
indicate that any conclusive agreement (whether or not subject to
satisfaction of conditions) by any member of the Group in
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relation to the Proposed Recapitalisation is subject to such member of
the Group obtaining the prior written consent of the Banks;
5.7 procure that the Borrower keeps the Co-ordinators informed at each
meeting between the Borrower and the Co-Ordinators of all material
developments in relation to and, at the request of the Co-Ordinators,
make available to the Co-Ordinators all requested documentation
relating to:
5.7.1 any possible strategic investment in the Group (or any member
of the Group) by any person; or
5.7.2 any proposed disposal of, by one or more transactions or
series of transactions (whether related or not), the whole or
any part of the revenues or assets of any member of the UK
Group where such disposal is material in the context of the UK
Group taken as a whole; or
5.7.3 any proposed disposal of, by one or more transactions or
series of transactions (whether related or not), the whole or
any part of the revenues or assets of any member of the Group
not being a member of the UK Group where such disposal is
material in the context of the Group (excluding for the
purposes of this paragraph 5.7.3 the UK Group) taken as a
whole,
PROVIDED THAT the Borrower shall only make any such information and
requested documentation available to the Co-Ordinators if the
Co-Ordinators have first signed a confidentiality undertaking in favour
of the Borrower in a form acceptable to the Borrower (acting
reasonably) and PROVIDED FURTHER THAT the Borrower shall not be obliged
to make such information and requested documentation available to the
Co-Ordinators if the Borrower demonstrates to the satisfaction of the
Co-Ordinators (by the delivery of a letter from the Group's external
legal advisors confirming the same, or by other satisfactory means)
that it is prohibited from making the information or, as the case may
be, requested documentation available under the terms of a
confidentiality undertaking it has entered into with a third party; and
5.8 procure that no member of the Covenant Group makes any Permitted
Payment other than:
5.8.1 a Permitted Payment falling within paragraph (b) of the
definition of Permitted Payment in the Credit Agreement
PROVIDED THAT the aggregate amount of all such Permitted
Payments made during the period from (and including) the date
hereof to (and including) the date of termination of the
Consent shall not exceed L5,000,000;
5.8.2 a Permitted Payment falling within paragraph (c)(i), (iv) (but
only in respect of any bonds, notes or similar public debt
instruments issued by the Parent) or (v) of the definition of
Permitted Payment in the Credit Agreement PROVIDED THAT prior
to the proposed Permitted Payment being made the Parent
demonstrates to the satisfaction of the Agent (it being agreed
that the Agent shall be satisfied if the most recently
delivered Forecast confirms the same) that in the absence of
the Parent receiving the proposed Permitted Payment it will,
following the
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making of the relevant cash payment obligation in respect of
which the Permitted Payment is proposed to be made, have cash
resources available to it in an amount less than L25,000,000;
and
5.8.3 a Permitted Payment falling within paragraph (d) or (e) of the
definition of Permitted Payment in the Credit Agreement.
6. CONFIRMATION AND REPRESENTATION FROM PARENT
6.1 The Parent confirms and represents by its countersignature to this
letter that to the best of its knowledge and belief no Event of Default
will occur under, and no Potential Event of Default will occur in
respect of, Clause 19.6 (Cross Default) (other than under the Senior
Bank Credit Agreement and (assuming their unwind values exceed
L20,000,000 in aggregate) the ISDA Master Agreements each dated 26
March 2001 between The Chase Manhattan Bank and the Parent and between
The Royal Bank of Scotland plc and the Parent) as a result of the
Proposed Steps. The Parent agrees to promptly inform the Agent if it
becomes aware of any event which, if it were not the subject of the
agreement of the Banks contained in this letter, would constitute an
Event of Default or Potential Event of Default under or in respect of
Clause 19.6 (Cross Default) (save under the Senior Bank Credit
Agreement or the aforementioned ISDA Master Agreements).
6.2 The Parent represents that to the best of its knowledge and belief no
Event of Default (which is not a Relevant Event of Default) or
Potential Event of Default (which is not in respect of a Relevant Event
of Default) will or is likely to occur as a result of the Proposed
Steps.
6.3 For the purposes of this paragraph 6 "to the best of its knowledge and
belief" means the actual knowledge and belief of the Parent's Chief
Financial Officer and the Parent's Group Treasurer, each after having
made due and careful enquiry.
7. MISCELLANEOUS
7.1 This letter is a Finance Document for the purposes of the Credit
Agreement and all other Finance Documents.
7.2 The Consent shall be without prejudice to any other rights or remedies
(save as specifically agreed otherwise in this letter) which the Agent,
any Bank or any other person may now or at any time in the future have
or which may now or at any time in the future be available to them
under the terms of the Finance Documents or as a matter of law and
nothing contained herein shall (save as specifically consented to or
agreed in this letter) constitute or be deemed to constitute a waiver,
release or discharge of any or all of the rights and remedies which the
Agent, any Bank or any other person may have under the Finance
Documents or as a matter of law.
7.3 The Co-Ordinators agree that they shall forward copies of any
documentation or information received pursuant to paragraphs 5.4, 5.5
or 5.7 only to members of the Steering Committee who have entered into
a confidentiality undertaking with the Parent in a form acceptable to
the Parent (acting reasonably).
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7.4 We confirm that you may provide a copy of this letter to the agent and
the banks party to the Senior Bank Credit Agreement and to the agent
and the banks party to the Cablecom Credit Agreement.
7.5 A person who is not a party to this letter has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of
this letter.
7.6 This letter shall be governed by, and construed in accordance with,
English law.
Please indicate your acceptance of the terms hereof by signing the enclosed copy
of this letter and returning it to Xxxxxxx Xxxxxxx at X.X. Xxxxxx Europe Limited
at or before 5:00pm (London time) on 22nd March 2002, the time at which
the agreement of the Agent and the Banks set forth above (if not so accepted
prior thereto) will expire.
Yours faithfully,
For and on behalf of
X.X. XXXXXX EUROPE LIMITED
as Agent on behalf of the Banks
By: /s/ Xxxxxxxx Xxxxx
-----------------------------
/s/ Xxxxxx Xxxxxx
-----------------------------
Title:
ACCEPTED AND AGREED
NTL COMMUNICATIONS CORP.
As Parent and Guarantor
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Title:
Dated:
NTL (UK) GROUP, INC.
as Intermediate Parent and Guarantor
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Title: Director
Dated: 11.3.02
8
NTL COMMUNICATIONS LIMITED
as Borrower
By: /s/ Xxxx Xxxxx
-----------------------------
Title:
Dated:
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