[ON THE HEADED PAPER OF THE ROYAL BANK OF SCOTLAND PLC]
To: EWT Elektro & Nachrichtentechnik GmbH ("EWT")
And to: The Guarantors (as defined in the Facility Agreement)
From: The Royal Bank of Scotland plc as Facility Agent
And from: The Royal Bank of Scotland plc acting as agent for National
Westminster Bank plc as Bank
1 March, 2002
Dear Sirs,
Re: Revolving loan facility agreement dated 24th October, 2001 made between,
inter alia, EWT as Borrower, the entities identified therein as Guarantors,
The Royal Bank of Scotland plc as Facility Agent and Security Agent and the
financial institutions defined therein as Banks (the "Facility Agreement")
We refer to the Facility Agreement. Terms defined in the Facility Agreement
shall have the same meaning when used in this letter, save where expressly
defined otherwise.
1. Temporary waiver of certain rights
EWT has requested the Banks to temporarily waive certain of their rights under
the Finance Documents arising as a result of a failure by UPC to pay the
interest due on any of the senior notes issued under the indentures listed in
the schedule to this letter (the "Relevant UPC Indentures") on the dates
specified in the schedule (any such failure to pay being a "Specified Event").
We confirm that an Instructing Group agrees, subject to the terms and conditions
outlined below, not to exercise their rights during the Relevant Period (defined
below) under the Relevant Clauses (defined below) of the Facility Agreement
which would otherwise arise as a result of any Event of Default or Potential
Event of Default under:
(a) Clause 19.6.1 of the Facility Agreement which is constituted by a Specified
Event; or
(b) Clause 19.6.2 of the Facility Agreement which is constituted by an event
described in Clause 19.6.2 of the Facility Agreement under the document
relating to any Borrowed Money of UPC which event itself is constituted by
a Specified Event.
At the end of the Relevant Period, the rights of the Finance Parties in respect
of the Relevant Clauses and any Specified Event will revive and will be
exercisable in full by the Finance Parties.
"Relevant Clauses" means the following clauses of the Facility Agreement:
(a) Clause 19.16 (Acceleration and Cancellation); and
(b) subject to paragraphs 2(b) and 4(a) hereof, sub-clause 3.3.3(a) of Clause
3.3 (Drawdown Conditions).
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"Relevant Period" means the period commencing on the Effective Date (as defined
below) and ending on the earlier of:
(a) 3 June, 2002;
(b) the date five Business Days after the date on which the Facility Agent
(acting on the instructions of an Instructing Group) notifies EWT in
writing of a breach by EWT of its obligations hereunder which is continuing
unremedied, unless the breach (if capable of remedy) is remedied within
such 5 Business Day period;
(c) the occurrence of any Event of Default under the Facility Agreement (other
than an Event of Default in respect of which an Instructing Group has
agreed in this letter to temporarily waive certain of their rights); or
(d) the expiration, termination, cancellation, suspension or ceasing to be in
full force and effect of any waiver, suspension or other agreement by any
creditor of UPC, any other member of the UPC Group or any member of the
Group not to exercise any rights or remedies of acceleration or
cancellation (howsoever described) which such creditor may have under the
terms of the Indentures, the Liberty Loan Agreement or the Eur
3,500,000,000, US$ 347,500,000 and Eur 95,000,000 facility agreement dated
26th October, 2000 made between, inter alia, UPC Distribution Holding B.V.,
Chase Manhattan plc, TD Bank Europe Limited and Toronto Dominion (Texas),
Inc. against any of the foregoing as a result of or arising from a
Specified Event.
2. Conditions
The above agreement by an Instructing Group is subject to the following terms
and conditions. EWT acknowledges and agrees to these terms and conditions and
undertakes to perform its obligations as set out below.
(a) The Finance Parties reserve all their rights in respect of any Event of
Default or Potential Event of Default (whether in existence at the date
hereof or arising thereafter and whether or not known to any Finance
Party), except to the extent such rights are expressly varied by this
letter.
(b) Subject to the terms of the Facility Agreement and (during the Relevant
Period) notwithstanding the occurrence of any Specified Event, Advances
(whether or not Rollover Advances) may be drawn under the Facility
Agreement after the date of this letter only if the Term selected for each
such Advance after the date of this letter until the end of the Relevant
Period shall be one month, or such other period as the Facility Agent may
agree. For the avoidance of doubt, the availability of Advances under this
paragraph 2(b) will be subject to no Event of Default or Potential Event of
Default or, in the case of Rollover Advances, Event of Default (other than
an Event of Default or Potential Event of Default or, in the case of
Rollover Advances, Event of Default in respect of which an Instructing
Group has agreed in this letter to temporarily waive certain of their
rights) being outstanding on the date of the Notice of Drawdown for such
Advance or on its Drawdown Date or resulting from the making of the
Advance.
(c) Pursuant to clause 22.2 of the Facility Agreement, EWT shall pay or
reimburse on demand of each of the Facility Agent and the other Finance
Parties all reasonable costs and expenses (including legal fees) together
with any VAT thereon incurred by any of them in connection with this letter
or any such action as any of them might take in connection with the
preservation and/or enforcement of any of their respective rights under
this letter or under any
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other Finance Document.
(d) By no later than 30 days after the date of this letter, EWT shall pay or
shall cause to be paid as the Facility Agent may direct all costs, fees,
expenses and charges and all stamp, registration or other taxes (including,
without limitation, Eur 54,000 or such other amount as the relevant
authorities may require to be paid in relation to consent requirements) in
connection with the registration and/or filing with the competent land
register of mortgages of the Mortgage and the land charge and other rights
in favour of the Finance Parties over the property located at Berlin
Tempelhof-Kreuzberg, Mitte, land register sheet 693N, subdividable land
42220, parcel of land 123. EWT shall, and shall cause each of the relevant
members of the Group and the Security Providers under the above-mentioned
Mortgage to, promptly do all such acts or execute all such documents
(including notices and instructions) as the Facility Agent or the Security
Agent may specify in such form as the Facility Agent or the Security Agent
may require in connection with the foregoing.
(e) EWT shall, by no later than 30 days after the date of this letter, pay the
following amounts in the following currencies in satisfaction of legal fees
incurred by the Facility Agent in connection with the Facility Agreement:
(i) Euro 79,924.59 to Xxxxxxxx Chance Punder, Frankfurt (invoices dated 11
October and 24 October, 2001); and
(ii) US $2,536.25 to Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, New York (invoice
dated 11 October 2001),
in each case in accordance with the payment instructions provided on
the invoices in relation to the above fees (or otherwise as the
Facility Agent may direct).
(f) EWT shall, as soon as practicable but in any event within five Business
Days of the execution of this letter, deliver to the Facility Agent, a
copy, certified as at the date of delivery thereof as a true and up-to-date
copy by an Authorised Signatory, of an extract of the commercial register
(Handelsregister) of each Obligor and Security Provider.
3. Effective Date
The Relevant Period shall commence on the date on which the Facility Agent
notifies EWT and the Banks that it has received evidence of the due
authorisation and execution of this letter by EWT and each of the Guarantors in
form and substance satisfactory to it (acting reasonably) (the "Effective
Date").
The Facility Agent will give this notice as soon as practicable after these
conditions are satisfied. If the Effective Date has not occurred by 4th March,
2002 (or such later date as an Instructing Group may agree in writing), the
Instructing Group's agreement under paragraph 1 (Temporary waiver of certain
rights) will be automatically cancelled, notwithstanding any subsequent
satisfaction of these conditions.
4. Amendments to the Facility Agreement
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With effect on the Effective Date until the end of the Relevant Period (subject
to the last sentence of this paragraph 4):
(a) any Event of Default or Potential Event of Default in respect of which an
Instructing Group has agreed in this letter to temporarily waive their
rights shall be disregarded for the purpose of Clause 14.5 (No Material
Defaults) and Clause 14.15 (No Default) of the Facility Agreement; and
(b) sub-clauses 19.6.1 and 19.6.2 of Clause 19.6 (Cross-Default) of the
Facility Agreement shall be amended by changing each reference to "UPC" to
"UPC and/or any other member of the UPC Group (other than (i) a member of
the Group, (ii) the immediate holding company of UPC Distribution Holding
B.V. from time to time, being UPC Holding B.V. as of the date hereof, or
(iii) UPC Polska Inc. or any of its Subsidiaries)".
If the Relevant Period ends because of an Event of Default, the above amendments
shall continue to apply until such Event of Default is remedied or waived by an
Instructing Group (or, if required, all the Banks).
5. Miscellaneous
Each Obligor hereby makes the representations and warranties in Clauses 14.1,
14.2, 14.3, 14.4 and 14.9 of the Facility Agreement (on the basis that for this
purpose references in those Clauses to the Facility Agreement or the Finance
Documents shall be construed as references to this letter) and acknowledges that
the Finance Parties have entered into this letter in reliance on these
representations and warranties.
Save as expressly provided for in this letter, this letter is not a waiver or
amendment of any term of the Finance Documents and the Finance Documents remain
in full force and effect.
This letter is designated a Finance Document and may be signed in any number of
counterparts.
This letter is governed by English law.
Please confirm your acceptance of the terms of this letter, by countersigning it
and returning it by fax as follows:
The Royal Bank of Scotland plc
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 (0) 000 000 0000
Attention: Xxxxxx Xxxxx/Xxxxx Dec, Corporate & Institutional Banking
The National Westminster Bank plc
Global Services, Financial Markets
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 (0) 000 000 0000
Attention: Xxxxxx Xxxxxxx, NatWest Global Services, Financial Markets
with a copy to
Xxxxxxxx Chance
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Xxxxxxxx 0x
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: x00 00 000 0000
Attention: Xxxx Xxxxxxxxxxx/Xxxxxx Xxxxxx/Xxxxx Xxxxxxx
Yours faithfully,
..............................................
for and on behalf of
The Royal Bank of Scotland plc
in its capacity as Facility Agent
..............................................
for and on behalf of
The Royal Bank of Scotland plc acting as agent for National Westminster Bank plc
in its capacity as Bank
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SCHEDULE
Relevant UPC Indentures
Relevant UPC Indenture Date upon which interest is due
---------------------- -------------------------------
1. Indenture dated 30 July 1999 between UPC and the UPC Trustee for 1 February 2002
the $800,000,000 10 7/8% Senior Notes Due 2009 and the EUR
300,000,000 10 7/8% Senior Notes Due 2009
2. Indenture dated 29 October 1999 between UPC and the UPC Trustee 1 May 2002
for the $200,000,000 10 7/8% Senior Notes Due 2007 and the EUR
100,000,000 10 7/8% Senior Notes Due 2007
3. Indenture dated 29 October 1999 between UPC and the UPC Trustee 1 May 2002
for the $252,000,000 11 1/4% Senior Notes Due 2009 and the EUR
101,000,000 11 1/4% Senior Notes Due 2009
4. Indenture dated 20 January 2000 between UPC and the UPC Trustee 1 February 2002
for $600,000,000 11 1/4% Senior Notes Due 2010 and the EUR
200,000,000 11 1/4% Senior Notes Due 2010
5. Indenture dated 20 January 2000 between UPC and the UPC Trustee 1 February 2002
for the $300,000,000 11 1/2% Senior Notes Due 2010
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We agree to the above terms and conditions:
.............................................
For and on behalf of
EWT Elektro & Nachrichtentechnik GmbH
Name: -----------------------------------
Title: Geschaftsfuhrer/managing director
ACKNOWLEDGEMENT AND AGREEMENT BY GUARANTORS
We hereby confirm our acknowledgement and agreement to the above terms and
conditions and consent to the entry into by EWT Elektro & Nachrichtentechnik
GmbH of this letter. We hereby confirm that each of the Facility Agreement and
the other Finance Documents (as amended from time to time including pursuant to
the above terms and conditions) and our obligations thereunder remain in full
force and effect.
.............................................
For and on behalf of
EWT Communications GmbH
Name: Xx. Xxxxxx Xxxxx
Title: Geschaftsfuhrer/managing director
.............................................
For and on behalf of
Kabeldienst Kabelanschluss-Verwaltungsgesellschaft mbH
Name: Xxxxx Xxxxxxx
Title: Geschaftsfuhrer/managing director
.............................................
For and on behalf of
TSS Telekabel Service Sud Marketing und Verwaltung GmbH
Name: -----------------------------------
Title: Geschaftsfuhrer/managing director
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.............................................
For and on behalf of
EWT GmbH and TSS GmbH GbR
Name: -----------------------------------
Title: Geschaftsfuhrer/managing director of
EWT Elektro & Nachrichtentechnik GmbH
.............................................
For and on behalf of
EWT GmbH and TSS GmbH GbR
Name: -----------------------------------
Title: Geschaftsfuhrer/managing director of
TSS Telekabel Service Sud Marketing und Verwaltung GmbH
.............................................
For and on behalf of
RFC Radio-, Fernseh-u. Computertechnik GmbH
Name: Xxxxxxx Xxxx
Title: Geschaftsfuhrer/managing director
.............................................
For and on behalf of
AdiC - Antennendienst Calau GmbH
Name: Xxxxxxx Xxxxxxxxx
Title: Geschaftsfuhrer/managing director
.............................................
For and on behalf of
CTC GmbH Breitbandtechnik
Name: Xxxx Xxxxxx
Title: Geschaftsfuhrer/managing director
.............................................
For and on behalf of
CTC GmbH Breitbandtechnik
Name: Xxxx Xxxxxxx
Title: Geschaftsfuhrer/managing director
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