Exhibit 10.14
To: NTL Communications Limited
and
NTL Investment Holdings Limited
NTL House
Xxxxxxx Xxxx Xxxxxxxx Xxxx
Xxxx
Xxxxxxxxx
XX00 0XX
NTL Communications Corp.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx
XX 00000
U.S.A.
The Guarantors (as defined in the Credit Agreement (as defined below))
c/o NTL Communications Limited
NTL House
Xxxxxxx Xxxx Xxxxxxxx Xxxx
Xxxx
Xxxxxxxxx
XX00 0XX
Date: 28 March 2002
CREDIT AGREEMENT DATED 30 MAY 2000 ORIGINALLY MADE BETWEEN NTL COMMUNICATIONS
LIMITED AS PARENT, NTL BUSINESS LIMITED AS ORIGINAL BORROWER, THE PARTIES NAMED
THEREIN AS GUARANTORS, NTL COMMUNICATIONS CORPORATION AS NTL CC AND OTHERS, AS
AMENDED AND RESTATED PURSUANT TO A RESTATEMENT AMENDMENT AGREEMENT DATED 26
SEPTEMBER 2001 (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:
"ADDITIONAL PERMITTED PAYMENT" means one or more Restricted Payments
equal to, in aggregate, the amounts from time to time made available to
the UK Group by way of Subordinated UK Group Debt in excess of the
minimum amounts otherwise required to be paid to the UK Group in
connection with the disposal of NTL Australia pursuant to the proviso
to paragraph 3.3.2;
"CABLECOM CREDIT AGREEMENT" means the credit agreement dated 28 March
2000 originally made between NTL Incorporated (now known as NTL
(Delaware) Inc.) 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;
"CABLECOM GROUP" means Cablecom GmbH and its subsidiaries from time to
time;
"CO-ORDINATORS" means the joint co-ordinators as defined in a
Confirmation of Terms of Appointment letter agreement dated 7 March
2002;
"NTL AUSTRALIA" means NTL Belgium SprL and its subsidiaries;
"NTL CC NOTES" means any bonds, notes or similar public debt
instruments issued by NTL CC in the domestic or international capital
markets and outstanding at the date of this letter;
"NTL DIAMOND SUB-GROUP" means Diamond Cable Communications Ltd and its
subsidiaries from time to time;
"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:
(a) Clause 24.7.1 (Insolvency and Rescheduling) to the extent that
such Event of Default occurs solely as a result of the
non-payment of interest due under the NTL CC Notes;
(b) Clause 24.7.2 (Insolvency and Rescheduling) to the extent that
such Event of Default occurs solely as a result of the NTL CC
Negotiations;
(c) Clause 24.8 (Winding-up) to the extent that such Event of
Default relates solely to NTL CC taking any corporate action
or other steps for its "re-organisation" (as such term is
construed in the context of Clause 24.8 (Winding-up)) solely
in connection with the Proposed Steps;
(d) Clause 24.10 (Analogous Events) to the extent that such Event
of Default relates to events analogous to the Events of
Default referred to, and only to the extent referred to, at
paragraphs (a), (b) and (c) above; and
(e) Clause 24.16 (Covenant Group Cross Default) to the extent that
such Event of Default arises solely as a result of a default
in the payment of interest under the NTL CC Notes and occurs
(as notified by the Parent to the Agent) in the context of the
NTL CC Negotiations;
"RELEVANT POTENTIAL EVENT OF DEFAULT" means any event which would
become (with the passage of time, the giving of notice, the making of
any determination under the Credit Agreement or any combination
thereof) a Relevant Event of Default; and
"STEERING COMMITTEE" means the steering committee as set out in a
Confirmation of Terms of Appointment letter agreement dated 7 March
2002 and Societe Generale.
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
NTL CC has informed the Agent that (a) it wishes to pursue a proposed
restructuring, readjustment, rescheduling and/or reorganisation of NTL
CC (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. NTL CC
has requested the Banks to:
2.1 consent to NTL CC 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 consent to the making of the Additional Permitted Payment; and
2.3 agree that any Relevant Event of Default or Relevant Potential
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.
3. CONSENT
Following the receipt of Instructing Group consent, the Agent, on
behalf of the Banks: (a) hereby consents to NTL CC taking the Proposed
Steps; (b) hereby irrevocably and unconditionally and for all purposes
of the Finance Documents consents to the making of the Additional
Permitted Payment; and (c) hereby agrees that any Relevant Event of
Default or Relevant Potential 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 (the "CONSENT") PROVIDED THAT:
3.1 the Consent shall not be effective until the date upon which:
3.1.1 the agent under the Working Capital Facility has entered into
a consent letter (upon the instructions of an Instructing
Group (as defined in the credit agreement constituting the
Working Capital Facility)) with NTL CC (acting on behalf of
the Obligors (as defined in the credit agreement constituting
the Working Capital Facility)) 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 the solicitation of votes or consents, the filing or the
consummation of 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 the execution or other entry into of 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;
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
or otherwise in relation to the NTL Group Notes (or any of
them) in connection with the Proposed Recapitalisation, save
for any legally 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; or
3.2.4 NTL CC taking any corporate action, or any other steps being
taken or any legal proceedings being started and served for
NTL CC's winding-up, dissolution or administration or any
similar or analogous process (including, without limitation,
any filing or commencement of proceedings under or in
connection with the United States Bankruptcy Code, 11 U.S.C.
Sections 101 et seq);
3.3 the Consent shall terminate on the earlier of:
3.3.1 5.30pm (New York time) on 14 May 2002 PROVIDED THAT if a
Permitted Payment (other than the Additional Permitted
Payment) falling within paragraph (c)(i) of the definition of
Permitted Payment in the Credit Agreement is made after 15
April 2002 the Consent shall terminate as of the time
immediately preceding the making of that Permitted Payment;
and
3.3.2 5.30pm (New York time) on the date falling 29 days after the
first failure by NTL CC in making payment in full on or before
the due date of all interest due under the NTL CC Notes on 1
April 2002 and/or 15 April 2002 PROVIDED THAT, if on the date
falling 29 days after the first such failure to pay:
(a) a sufficient number of the NTL CC Noteholders to whom
the relevant unpaid interest is owed has agreed,
without prejudice to paragraph 3.2.3, to waive their
rights arising as a result of non-payment under the
relevant NTL CC Notes or has agreed to any
forbearance in respect of such non-payment and such
waiver or, as the case may be, forbearance results in
the trustee of the relevant NTL CC Notes being
precluded from taking any enforcement, acceleration
or similar action in relation to the NTL CC Notes the
subject of the non-payment of interest; or
(b) the relevant failure to pay has been remedied,
the Consent shall terminate at 5.30pm (New York time) on 14
May 2002,
PROVIDED FURTHER THAT the Consent shall terminate with immediate effect
if on the date falling 3 Business Days or 5 days (whichever is the
later) after the payment by the purchaser of the purchase price payable
in connection with the disposal of NTL Australia or (as the case may
be) the disbursement of any relevant bridge financing in connection
with the disposal of NTL Australia:
(a) where payment of the purchase price occurs before the
disbursement of any such bridge financing, NTL (Delaware) Inc.
(through NTL UK) has not made available to the UK Group by way
of Subordinated UK Group Debt an amount of at least
L90,000,000; and
(b) where the disbursement of any bridge financing in connection
with the disposal of NTL Australia occurs before the payment
of such purchase price, NTL (Delaware) Inc. (through NTL UK)
has not made available to the UK Group by way of Subordinated
UK Group Debt:
(i) an amount equal to at least the lower of 9/16 of the
amount of such bridge financing and L90,000,000; and
(ii) to the extent that 9/16 of the amount of any such
bridge financing is less than L90,000,000, an amount
equal to at least 9/16 of the amount of any future
bridge financing in connection with the disposal of
NTL Australia and, if required, a proportion of the
purchase price of the disposal of NTL Australia,
until an aggregate amount equal to at least L90,000,000 has
been so made available to the UK Group.
For the avoidance of doubt any amount in excess of the amounts
specified in paragraph (a) or, as the case may be, paragraph (b) above
(the "MINIMUM AMOUNT") need not be made available to the UK Group at
the same time as such Minimum Amount nor within the timescale specified
in connection therewith.
The Consent shall not terminate pursuant to the immediately preceding
proviso if making such amount available to NTL UK or the UK Group is
prohibited by any injunction or similar legal restriction which is
binding on NTL (Delaware) Inc., NTL UK or any other member of the Group
and which NTL (Delaware) Inc., NTL UK or, as the case may be, such
other member of the Group is obliged, as a matter of law, to comply
with. It is hereby agreed that if an amount referred to in the
immediately preceding proviso (or any additional amount which could
give rise to the Additional Permitted Payment if paid by NTL UK to the
UK Group) has been made available to NTL UK or the UK Group as
aforesaid (together the "AUSTRALIAN AMOUNTS"), the Financial
Indebtedness owed by NTL UK to NTL (Delaware) Inc. as a result of any
such amount being made available to NTL UK or the UK Group:
(i) shall not be taken into account for the purposes of the
Repeating Representation at Clause 20.31.1 (Existing Group
Indebtedness); and
(ii) shall be a permitted exception to the restrictions set out at
sub-clauses 23.26.2 and 23.26.3 of Clause 23.26 (Financial
Indebtedness).
It is further agreed that the provisions of Clause 23.22 (Mandatory
Contribution) shall not apply to the Australian Amounts provided always
that any amount made available to the UK Group shall be made available
by way of Subordinated UK Group Debt.
As at such time or any time after the Consent has terminated the Agent
may by written notice to the Relevant Obligor take any action pursuant
to Clause 24.18 (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:
(i) 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 Relevant Event of Default referred to at
paragraphs (a) to (d) of the definition thereof and the
subject of the Consent shall be continuing; and
(ii) if at such time a sufficient number of the NTL CC Noteholders
to whom unpaid interest under the NTL CC Notes is owed has,
without prejudice to paragraph 3.2.3, agreed to waive their
rights arising as a result of non-payment under the
relevant NTL CC Notes or agreed to any forbearance in respect
of such non-payment and such waiver or, as the case may be,
forbearance results in the trustee of the relevant NTL CC
Notes, being precluded from taking any enforcement,
acceleration or similar action in relation to the NTL CC Notes
the subject of the non-payment of interest, no Relevant Event
of Default referred to at paragraph (e) of the definition
thereof and the subject of the Consent shall be continuing in
respect of such payment default PROVIDED THAT any such
Relevant Event of Default shall only be deemed to not be
continuing for so long as such waiver or, as the case may be,
forbearance continues.
4. ACTION BY THE AGENT
Notwithstanding the Consent, the Agent may take any action in respect
of a Relevant Event of Default deemed appropriate pursuant to Clause
24.18 (Acceleration and Cancellation) of the Credit Agreement and/or
under any Finance Document upon (or at anytime after and whilst such
failure is continuing) any of the Parent, the Post-Novation Borrower,
NTL CC 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 within two Business Days or such failure relates to the
obligations at paragraphs 5.4, 5.5 or 5.8 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 Parent 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 Parent to the
Agent on 2 April 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 NTL CC 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 relation to
the Proposed Recapitalisation is subject to such member of the Group
obtaining the prior written consent of the Banks;
5.7 keep the Co-ordinators informed at each meeting between the Parent 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 Parent 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 Parent in a form acceptable to the Parent (acting reasonably)
and PROVIDED FURTHER THAT the Parent shall not be obliged to make such
information and requested documentation available to the Co-Ordinators
if the Parent 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;
5.8 on or before 5 April 2002, provide to the Agent (in sufficient copies
for all the Banks (if the Agent so requests) and in form reasonably
satisfactory to the Agent) a timeline setting out the steps proposed to
be taken (and the date by which such steps are proposed to be taken) in
connection with the Proposed Steps and/or the NTL CC Negotiations;
5.9 procure that no member of the UK Group makes any Permitted Payment
other than:
5.9.1 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) 8 March
2002 to (and including) the date of termination of the Consent
shall not exceed L5,000,000;
5.9.2 a Permitted Payment falling within paragraph (c)(i), (iv) (but
only in respect of any bonds, notes or similar public debt
instruments issued by NTL CC) or (v) of the definition of
Permitted Payment in the Credit Agreement PROVIDED THAT prior
to the proposed Permitted Payment being made NTL CC
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
NTL CC receiving the proposed Permitted Payment the Group
(excluding NTL Australia, the UK Group, the NTL Diamond
Sub-Group, the NTL Triangle Sub-Group, the Cablecom Group and
any non-wholly owned subsidiaries of the Group) (the "RELEVANT
GROUP") will, following the 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 aggregate amount less than L25,000,000 (excluding an amount
of AUS$20,000,000 held in an escrow account in connection with
the disposal of NTL Australia) and for the purpose of this
paragraph 5.9.2 the Relevant Group shall be deemed to have
cash resources available to it (in addition to the cash
resources actually available to it) in an amount equal to the
amount of any cash paid (provided that any such cash payment
shall only be counted for so long as such cash has not been
spent by the recipient thereof) by any member of the Relevant
Group after the date of first posting of this Consent on the
relevant Intralinks site to any member of the NTL Diamond
Sub-Group or any member of the NTL Triangle Sub-Group or any
non-wholly owned subsidiary of the Group (which is not
otherwise a member of the Relevant Group) in circumstances
where the actual cash resources of the NTL Diamond Sub-Group,
the NTL Triangle Sub-Group or the relevant non-wholly owned
subsidiary (as the case may be) at the time of payment are
greater than, or to the extent that they become greater than,
$10,000,000, $10,000,000 and $1,000,000 respectively after
deducting any amounts to be paid by the NTL Diamond Sub-Group,
the NTL Triangle Sub-Group or non-wholly owned subsidiary (as
the case may be) in connection with which the relevant payment
is made;
5.9.3 a Permitted Payment falling within paragraph (d) or (f) of the
definition of Permitted Payment in the Credit Agreement; and
5.9.4 a Permitted Payment falling within the definition of
Additional Permitted Payment;
5.10 to procure that, and NTL CC undertakes to procure that, no cash
payments are made by any member of the Restricted Group (as defined in
paragraph 5.9.2) to any member of the NTL Diamond Sub-Group, any member
of the NTL Triangle Sub-Group or any non-wholly owned subsidiary of the
Group (which is not otherwise a member of the Relevant Group) where the
actual cash resources of the NTL Diamond Sub-Group, the NTL Triangle
Sub-Group or the relevant non-wholly owned subsidiary (as the case may
be) at the time of the proposed payment are greater than, or to the
extent they would, if such proposed payment were to be made, become
greater than $10,000,000, $10,000,000 and $1,000,000 respectively after
deducting any amounts to be paid by the NTL Diamond Sub-Group, the NTL
Triangle Sub-Group or non-wholly owned subsidiary (as the case may be)
in connection with which the relevant payment is proposed to be made;
5.11 no later than 10 Business Days after the request of the Agent or, as
the case may be, the Co-ordinators, settle any outstanding invoices
issued by legal, accounting or other professional advisors appointed by
the Agent or, as the case may be, the Co-ordinators (unless the
relevant invoice is being queried by the Parent in good faith);
5.12 procure that as from the date hereof the settlement of all intercompany
accounts between members of the UK Group and members of the NTL Diamond
Sub-Group or the NTL Triangle Sub-Group takes place on a fortnightly
basis PROVIDED THAT any overpayment or under payment arising as a
result of the fortnightly settlement of all such intercompany accounts
may be returned to the overpaying party or paid by the underpaying
party and any intercompany balance representing any such overpayment or
under payment arising as a result of such settlement and any payment in
connection with such overpayment or underpayment shall not constitute a
breach of any restriction contained in the Credit Agreement; and
5.13 procure that the restrictions set out in the schedule hereto in respect
of Permitted Acquisitions, Permitted Disposals, Permitted Encumbrances
and Permitted Indebtedness are complied with.
6. MISCELLANEOUS
6.1 This letter is a Finance Document for the purposes of the Credit
Agreement and all other Finance Documents.
6.2 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 PROVIDED THAT this Consent
shall replace, for all purposes, the consent dated 8 March 2002 granted
in relation to the Credit Agreement save that the acknowledgements at
paragraph 4.2 of that consent shall remain.
6.3 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).
6.4 We confirm that you may provide a copy of this letter to the agent and
the banks under the Working Capital Facility and to the agent and the
banks party to the Cablecom Credit Agreement.
6.5 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.
6.6 This letter shall be governed by, and construed in accordance with,
English law.
6.7 It is agreed that the definition of "PERMITTED PAYMENT" contained in
Clause 1.1. (Definitions) of the Credit Agreement shall be amended by
the inclusion, after the end of the proviso, of a new paragraph (l) as
follows: "(l) an Additional Permitted Payment" (as defined in this
Consent, which definition shall be incorporated mutatis mutandis, into
the Credit Agreement), which, for the avoidance of doubt, shall be
payable irrespective of whether there is an Event of Default or one
which would result from the making of the payment.
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 5.00 pm (London time) on 5th April 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:
-11-
ACCEPTED AND AGREED
NTL INVESTMENT HOLDINGS LIMITED
By: /s/ Xxxx Xxxxx
Title:
Dated:
NTL COMMUNICATIONS CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
Title:
Dated:
NTL COMMUNICATIONS LIMITED
for itself and for and on behalf
of the Guarantors
By: /s/ Xxxx Xxxxx
Title:
Dated:
-12-
SCHEDULE
RESTRICTIONS IN RESPECT OF PERMITTED ACQUISITIONS,
PERMITTED DISPOSALS, PERMITTED ENCUMBRANCES
AND PERMITTED INDEBTEDNESS
1. No member of the UK Group shall make any acquisition falling within
paragraph (c) of the definition of "PERMITTED ACQUISITION" which it is
not obliged to make at the date of first posting of this Consent on the
relevant Intralinks site (it being acknowledged that paragraphs (a),
(b), (e) and (g) of such definition are historic).
2. No member of the UK Group shall make any disposal falling within
paragraph (b) of the definition of "PERMITTED DISPOSAL" (it being
acknowledged that paragraphs (k), (l) and (m) of such definition are
historic).
3. No member of the UK Group shall create or permit to subsist any
Encumbrance falling within paragraph (b) or paragraph (c) of the
definition of "PERMITTED ENCUMBRANCE".
4. No member of the UK Group shall incur any Financial Indebtedness
falling within paragraph (d) which it is not obliged to incur at the
date of first posting of this Consent on the relevant Intralinks site
or paragraph (k) of the definition of "PERMITTED INDEBTEDNESS".
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