EXHIBIT 10.12
[GRAPHIC] XXXXXXX
XXXXX
XXXXXXXXXXX
Dated January 9, 2003
(1) NTL COMMUNICATIONS CORP.
(2) NTL INCORPORATED
(3) NTL (DELAWARE), INC.
(4-9) VARIOUS SUBSIDIARIES OF NTL INCORPORATED
(10) CABLE & WIRELESS PUBLIC LIMITED COMPANY
(00-00) XXXXXXX SUBSIDIARIES OF CABLE & WIRELESS
__________________________________________
NOVATION AGREEMENT
RELATING TO PROVISIONS OF AN AMENDED AND RESTATED
TRANSACTION AGREEMENT DATED AS OF 26 JULY 1999, A
TAX DEED DATED 30 MAY 2000 and a settlement
agreement dated 5 October 2001
__________________________________________
CONTENTS
1. DEFINITIONS................................................................3
2. CONDITIONS AND COMPLETION..................................................5
3. UNDERTAKINGS OF NEW NTL, C&W AND CWC.......................................5
4. EXCLUDED UNDERTAKINGS......................................................6
5. NOVATION OF TAX DEED AND SUPPLEMENTARY TAX DEED............................6
6. NOVATION OF SETTLEMENT AGREEMENT...........................................9
7. SEPARATION COSTS LOAN.....................................................10
8. AMENDED NOTICE ADDRESSES..................................................11
9. OVERRIDING AGREEMENT......................................................11
10. COUNTERPARTS..............................................................11
11. GENERAL...................................................................12
12. NOTICES...................................................................12
13. GOVERNING LAW AND JURISDICTION............................................13
THIS DEED is executed on January 9, 2003
BETWEEN:
(1) NTL COMMUNICATIONS CORP., a company incorporated in the State of
Delaware, whose principal office is at 000 Xxxx 00xx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx XX00000, XXX ("New NTL");
(2) NTL INCORPORATED, a company incorporated in the State of Delaware,
whose principal office is at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx XX00000, XXX ("Euroco");
(3) NTL (DELAWARE), INC., a company incorporated in the State of
Delaware, whose principal office is at 000 Xxxx 00xx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx XX00000, XXX ("NTL Delaware");
(4) NTL (CWC) LIMITED, a company incorporated in England and Wales with
registered number 3288998 and whose registered office is at ntl
House, Xxxxxxx Xxxx Xxxxxxxx Xxxx, Xxxx, Xxxxxxxxx, XX00 0XX
("CWC");
(5) NTL (CWC HOLDINGS), a company incorporated in England and Wales
with registered number 3922682 and whose registered office is at
ntl House, Xxxxxxx Xxxx Xxxxxxxx Xxxx, Xxxx, Xxxxxxxxx, XX00 0XX
("CWCH");
(6) NTL TELEPHONE EQUIPMENT LIMITED, a company incorporated in England
and Wales with registered number 3147387 and whose registered
office is at ntl House, Xxxxxxx Xxxx Xxxxxxxx Xxxx, Xxxx,
Xxxxxxxxx, XX00 0XX ("Telephone Equipment");
(7) NTL COMMUNICATIONS SERVICES LIMITED, a company incorporated in
England and Wales with registered number 3403985 and whose
registered office is at ntl House, Xxxxxxx Xxxx Xxxxxxxx Xxxx,
Xxxx, Xxxxxxxxx, XX00 0XX ("NCSL");
(8) NATIONAL TRANSCOMMUNICATIONS LIMITED, a company incorporated in
England and Wales with registered number 2487597 and whose
registered office is at ntl House, Xxxxxxx Xxxx Xxxxxxxx Xxxx,
Xxxx, Xxxxxxxxx, XX00 0XX ("Nat Trans");
(9) NTL GROUP LIMITED, a company incorporated in England and Wales with
registered number 2591237 and whose registered office is at ntl
House, Xxxxxxx Xxxx Xxxxxxxx Xxxx, Xxxx, Xxxxxxxxx, XX00 0XX
("NGL");
(10) CABLE AND WIRELESS PUBLIC LIMITED COMPANY, a company incorporated
in England and Wales with registered number 238525 and whose
registered office is at 000 Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX
("C&W");
(11) CABLE & WIRELESS UK SERVICES LIMITED, a company incorporated in
England and Wales with registered number 3840884 and whose
registered office is at 000 Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX
("CWUSL"); and
(12) CABLE & WIRELESS UK (formerly known as Cable & Wireless
Communications (Mercury)), a company incorporated in England and
Wales with registered number 01541957 and whose registered office
is at 000 Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX ("Mercury").
WHEREAS:
(A) Euroco and certain of its subsidiaries (including New NTL and NTL
Delaware) filed a joint reorganisation plan under Chapter 11 of the
US Bankruptcy Code on 8 May 2002 which was amended on 24 May 2002
and 15 July 2002 and may be further amended, restated or
supplemented (the "Plan");
(B) On September 5, 2002, the United States Bankruptcy Court for the
Southern District of New York entered an order confirming the Plan.
(C) Pursuant to the Plan, it is proposed that Euroco and its
subsidiaries will divide their current businesses and investments
into two new groups, the Euroco Group and the New NTL Group, the
holding companies for which will be Euroco and New NTL
respectively;
(D) Xxxx Atlantic Corporation ("Xxxx"), C&W, CWC (formerly named Cable
& Wireless Communications PLC), NTL Delaware and Euroco are parties
to a novated, restated and amended transaction agreement dated as
of 26 July 1999 (the "Transaction Agreement");
(E) C&W, CWC, CWCH and Euroco are parties to (i) a tax deed dated 30
May 2000 (the "Tax Deed") and (ii) along with Telephone Equipment
(formerly known as Cable & Wireless Communications Telephone
Equipment Limited), a Supplementary Tax Deed dated 30 May 2000 (the
"Supplementary Tax Deed")(together, the "Tax Deeds");
(F) C&W, Euroco and various of their respective subsidiaries are
parties to a settlement agreement dated 5 October 2001 (the
"Settlement Agreement");
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(G) C&W, Euroco, NTL Delaware and New NTL have agreed to novate certain
of Euroco's rights and obligations under and in connection with the
Transaction Agreement to New NTL, to novate Euroco's and NTL
Delaware's rights under the Related Transaction Agreements (as
defined below) to New NTL, to release NTL Delaware from any and all
of its obligations thereunder and to release Euroco from some of
its obligations thereunder upon the terms and subject to the
conditions set out in this Deed; and
(H) The relevant parties have also agreed to novate certain of Euroco's
rights and obligations under the Tax Deeds and the Settlement
Agreement to New NTL upon the terms and subject to the conditions
set out in this Deed.
IT IS AGREED as follows:
1. DEFINITIONS
1.1 In this Deed, the following terms shall, unless the context
otherwise requires, have the following meanings:
Effective Date the meaning ascribed to it in the Plan;
Euroco Group Euroco and all its subsidiary
undertakings from time to time following
the Effective Date;
Group Company in relation to any person, its ultimate
parent undertaking from time to time (if
any) and all the subsidiary undertakings
from time to time of it and such parent
undertaking and the phrase "Group
Companies" shall be construed
accordingly;
Liabilities all losses, liabilities, costs
(including without limitation legal
costs), charges, expenses, actions,
proceedings, claims and demands and
"Liability" shall be construed
accordingly;
New NTL Group New NTL and all its subsidiary
undertakings from time to time following
the Effective Date;
parties the parties to this Deed;
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Related Transaction those agreements relating to or
Agreements otherwise entered into in connection
with the transactions provided for under
the Transaction Agreement other than the
agreements listed in Schedule 2 to this
Agreement, the Transaction Agreement,
the Tax Deeds, the Settlement Agreement,
the Separation Costs Loan Agreement and
any agreement in any way relating to
shares of common stock or other
securities in Euroco or rights and
obligations pertaining thereto;
Separation Costs Loan the loan agreement between CWCH and C&W
Agreement entitled Separation Costs Facility dated
30 May 2000; and
US or USA the United States of America.
1.2 In this Deed, any reference to a "person" shall be construed so as
to include any natural person, partnership, joint venture,
corporation, limited liability company or partnership, trust, firm,
association or governmental agency or department or any two or more
of the foregoing.
1.3 The clause headings in this Deed are for ease of reference only and
shall not affect its interpretation.
1.4 References in this Deed, unless the context otherwise requires, to
numbered clauses or Schedules or lettered recitals are to clauses
of or Schedules or recitals to this Deed.
1.5 For the purposes of this Deed, "subsidiary undertaking" and "parent
undertaking" shall have the meanings ascribed thereto in the
Companies Xxx 0000.
1.6 Any reference in this Deed to any statute or statutory provision
shall, unless the context otherwise requires, be construed as a
reference to such statute or statutory provision (including all
instruments, orders, regulations made thereunder or deriving
validity therefrom) as in force at the date of this Deed and as
subsequently re-enacted or consolidated.
1.7 Terms defined in the Transaction Agreement shall, unless otherwise
defined in this Deed, have the same meaning in this Deed.
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2. CONDITIONS AND COMPLETION
The undertakings and agreements in clauses 3 to 6 (inclusive) and 9
of this Deed are conditional upon the occurrence of the Effective
Date. Upon the Effective Date the undertakings and agreements in
clauses 3 to 6 (inclusive) and 9 shall become effective forthwith.
3. UNDERTAKINGS OF NEW NTL, C&W AND CWC
3.1 Subject to clause 4, New NTL, C&W and CWC undertake to each other
and to Euroco to perform and discharge their respective obligations
(including their respective Liabilities, if any, as at the
Effective Date) under the Transaction Agreement and the Related
Transaction Agreements as from the Effective Date so far as such
obligations have not been performed or discharged or have not yet
arisen as at the Effective Date and from the Effective Date to
observe, perform, discharge and be bound by the terms of the
Transaction Agreement and the Related Transaction Agreements as if
New NTL had originally been named as a party to the same and all
notices given thereunder and, save to the extent the context
requires otherwise, all references in the Transaction Agreement and
the Related Transaction Agreements to Euroco (other than those
specified in clause 4 below) and all references in the Related
Transaction Agreements to NTL Delaware had been replaced by
references to New NTL.
3.2 Subject to clause 4, Euroco hereby assigns its rights under the
Transaction Agreement to New NTL as from the Effective Date.
3.3 Euroco and NTL Delaware hereby assign their rights under the
Related Transaction Agreements to New NTL as from the Effective
Date.
3.4 As from the Effective Date, each of C&W and CWC releases and
discharges Euroco and NTL Delaware from further performance of all
of their obligations (other than the obligations contained in the
provisions specified in clause 4) under the Transaction Agreement
and all the Related Transaction Agreements (both in relation to the
period prior to and after the Effective Date) and from all claims
and demands whatsoever in respect of the same (and, for the
avoidance of doubt, any reference in this Deed to the rights of
Euroco or NTL Delaware or to the obligations of Euroco or NTL
Delaware under the Transaction Agreement and the Related
Transaction Agreements shall include any such rights or obligations
which, as at the Effective Date, have not been performed or
discharged or are otherwise still outstanding).
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3.5 Each of C&W and CWC accepts New NTL's undertaking to observe,
perform, discharge and be bound by the terms of the Transaction
Agreement and the Related Transaction Agreements and accepts and
consents to the right of New NTL to exercise the rights of Euroco
and NTL Delaware thereunder (other than the rights contained in the
provisions specified in clause 4) from the Effective Date in
substitution for Euroco or NTL Delaware, as the case may be, and
agrees to be bound by the terms of the Transaction Agreement and
the Related Transaction Agreements in all respects as if New NTL
had originally been named in the Transaction Agreement and the
Related Transaction Agreements, as a party to the same instead of
Euroco and / or NTL Delaware, as the case may be.
3.6 In consideration of the substitution of New NTL for Euroco and NTL
Delaware as the party in favour of whom each of C&W and CWC is
obliged to perform certain of its obligations under the Transaction
Agreement and the Related Transaction Agreements, immediately
following the Effective Date each of Euroco and NTL Delaware (as
against themselves and without prejudice to any course of action
New NTL may have) releases and discharges each of C&W and CWC from
further performance of the same and for all claims and demands
whatsoever in respect thereof.
4. EXCLUDED UNDERTAKINGS
New NTL, C&W, CWC and Euroco agree that the following references to
Euroco in the Transaction Agreement shall continue to be read as
references to Euroco:-
4.1 the references in clauses 8(8) and 14(3) of the Transaction
Agreement; and
4.2 the references in Schedules 12 and 13 of the Transaction Agreement;
and that Euroco's rights and obligations under these provisions of
the Transaction Agreement shall not be novated to New NTL and the
provisions of clause 3 above shall be read subject to this.
5. NOVATION AND AMENDMENT OF TAX DEED AND SUPPLEMENTARY TAX DEED
5.1 New NTL, C&W, CWC, CWCH, Telephone Equipment and Euroco undertake
to each other to perform and discharge their respective obligations
(including their respective Liabilities, if any, as at the
Effective Date) under the Tax Deeds as from
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the Effective Date so far as such obligations have not been
performed or discharged or have not yet arisen as at the Effective
Date and from the Effective Date to observe, perform, discharge and
be bound by the terms of the Tax Deeds in all respects as if (i)
New NTL had originally been named in the Tax Deeds as a party to
the same (and defined therein as "New NTL"), (ii) the Tax Deed had
been amended in accordance with clause 5.2 below, (iii) all
references in the Supplementary Tax Deed to Euroco had been
replaced with references to New NTL and (iv) references to the Tax
Deed in the Supplementary Tax Deed were references to the Tax Deed
as novated by this Deed and amended by clause 5.2 below.
5.2 New NTL, C&W, CWC, CWCH and Euroco agree that the Tax Deed shall be
amended on the Effective Date by:-
5.2.1 deleting the references to "NTL Holdings" in clauses
1.2.5(b), 1.2.5(c), 2.2(i), 2.3, 5.2, 7.1(a), 7.1(b),
7.1(e), 7.1(f), 7.3(d), 8.1 (other than in 8.1(b)), 8.2
and 8.4 of the Tax Deed and inserting in their place the
words "NTL Holdings or New NTL";
5.2.2 deleting the words "NTL Holdings or New NTL or that
ConsumerCo Company" in clause 2.3 of the Tax Deed and
inserting in their place the words "whichever company
received a deduction";
5.2.3 deleting the first two words of clause 8.1(b) of the Tax
Deed and inserting in their place the words "NTL
Holdings or New NTL, as appropriate" and inserting after
the end of clause 8.1(b) the clause, " New NTL shall
only be obliged to make a payment under this clause
8.1(b) in respect of a benefit or saving received by the
Company or any of the ConsumerCo Companies to the extent
that payment of an equal amount (a "Balancing Payment")
is made to New NTL by whichever company received the
benefit or saving; New NTL shall procure a Balancing
Payment is made to it to enable it to make the payment
due under this clause to C&W on the due date;";
5.2.4 inserting the words ", as appropriate," after the
references to "NTL Holdings or New NTL" in clauses
8.1(a), 8.2(a), 8.2(b) and 8.2(c) of the Tax Deed;
5.2.5 inserting after the two references to "NTL Holdings" in
clause 13.6 of the Tax Deed the words "and New NTL" and
"or New NTL", respectively; and
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5.2.6 deleting all other references to "NTL Holdings" in the
Tax Deed other than the references in the recitals, in
clause 3.1(b), in the last sentence of clause 1.2.5 and
in the definition of NTL Merger of the Tax Deed and
inserting in their place the words "New NTL".
5.3 Euroco hereby assigns to New NTL with effect from the Effective
Date such of its rights under the Tax Deed as are stipulated to be
those of New NTL by reason of the amendments in clause 5.2 above.
5.4 Euroco hereby assigns to New NTL with effect from the Effective
Date its rights under the Supplementary Tax Deed as amended by
clause 5.1.
5.5 As from the Effective Date each of C&W, CWC, CWCH and Telephone
Equipment releases and discharges Euroco from further performance
of its obligations under the Tax Deeds other than those continuing
obligations created by the amendments in clause 5.2 and from all
claims and demands whatsoever in respect of such obligations (and,
for the avoidance of doubt, any reference in this Deed to the
rights of Euroco or the obligations of Euroco under the Tax Deeds
shall include any such rights or obligations which, as at the
Effective Date, have not been performed or discharged or are
otherwise still outstanding).
5.6 Each of C&W, CWC, CWCH and Telephone Equipment accepts New NTL's
undertaking to observe, perform, discharge and be bound by the
terms of the Tax Deeds (both in relation to the period prior to and
after the Effective Date) and accepts and consents to the right of
New NTL to exercise the rights of Euroco thereunder from the
Effective Date in substitution for Euroco and agrees to be bound by
the terms of the Tax Deeds to which it is a party in all respects
as if, save to the extent specified in clause 5.2 above, New NTL
had originally been named in the Tax Deeds as a party to the same
instead of Euroco.
5.7 In consideration of the assignment to New NTL of certain of
Euroco's rights under the Tax Deed pursuant to clause 5.3 above and
the substitution of New NTL as the party in favour of whom each of
C&W, CWC and CWCH is obliged to perform its respective
corresponding obligations under the Tax Deed, immediately following
the Effective Date, Euroco (as against itself and without prejudice
to any course of action New NTL may have) releases and discharges
each of C&W, CWC and CWCH from further performance of the same and
for all claims and demands whatsoever in respect thereof.
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5.8 In consideration of the substitution of New NTL for Euroco as the
party in favour of whom each of C&W, CWC, CWCH and Telephone
Equipment is obliged to perform its respective obligations under
the Supplementary Tax Deed, immediately following the Effective
Date Euroco (as against itself and without prejudice to any course
of action New NTL may have) releases and discharges each of C&W,
CWC, CWCH and Telephone Equipment from further performance of the
same and for all claims and demands whatsoever in respect thereof.
5.9 Euroco hereby confirms to C&W that there are no arrangements
whereby it may receive a repayment described in clause 8.3(c) of
the Tax Deed in respect of Taxation which any ConsumerCo Company
(as defined in the Tax Deed) is or may be entitled to receive from
any Taxation Authority (as defined in the Tax Deed).
6. NOVATION OF SETTLEMENT AGREEMENT
6.1 New NTL undertakes to C&W, CWUSL, Mercury, Euroco, CWCH, NCSL, Nat
Trans and NGL to perform and discharge the obligations of Euroco
(including its Liabilities, if any, as at the Effective Date) under
the Settlement Agreement as from the Effective Date so far as such
obligations have not been performed or discharged or have not yet
arisen as at the Effective Date and from the Effective Date to
observe, perform, discharge and be bound by the terms of the
Settlement Agreement in all respects as if New NTL had originally
been named in the Settlement Agreement and all notices given
thereunder as a party to the same and, save to the extent the
context requires otherwise, as if all references to Euroco in the
Settlement Agreement had been replaced by references to New NTL.
6.2 Euroco hereby assigns its rights under the Settlement Agreement to
New NTL as from the Effective Date.
6.3 As from the Effective Date each of C&W, CWUSL, Mercury, CWCH, NCSL,
Nat Trans, NGL and New NTL releases and discharges Euroco from
further performance of its obligations under the Settlement
Agreement and from all claims and demands whatsoever in respect of
the same (and, for the avoidance of doubt, any reference in this
Deed to the rights of Euroco or the obligations of Euroco under the
Settlement Agreement shall include any such rights or obligations
which, as at the Effective Date, have not been performed or
discharged or are otherwise still outstanding).
6.4 Each of C&W, CWUSL, Mercury, Euroco, CWCH, NCSL, Nat Trans and NGL
accepts New NTL's undertaking to observe, perform, discharge and be
bound by the terms of the Settlement Agreement (both in relation to
the period prior to and after
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the Effective Date) and accepts and consents to the right of New
NTL to exercise the rights of Euroco thereunder from the Effective
Date in substitution for Euroco and agrees to be bound by the terms
of the Settlement Agreement in all respects as if New NTL had
originally been named in the Settlement Agreement as a party to the
same instead of Euroco.
6.5 In consideration of the substitution of New NTL for Euroco as the
party in favour of whom each of C&W, CWUSL, Mercury, CWCH, NCSL,
Nat Trans and NGL is obliged to perform its respective obligations
under the Settlement Agreement, immediately following the Effective
Date Euroco (as against itself and without prejudice to any course
of action New NTL may have) releases and discharges each of C&W,
CWUSL, Mercury, CWCH, NCSL, Nat Trans and NGL from further
performance of the same and for all claims and demands whatsoever
in respect thereof.
6.6 C&W, New NTL and Euroco agree that if any amounts paid by C&W to
CWCH pursuant to, as contemplated by, or referred to in clause 2 of
the Settlement Agreement are properly subject to VAT, C&W will pay
to CWCH the VAT due on such amounts immediately upon receipt of
written confirmation from HM customs & Excise that the settlement
is in respect of taxable supplies made to C&W and that VAT is due
and upon receipt of a valid VAT invoice addressed to C&W. Where
pursuant to this clause 6.6, CWCH is to issue a VAT invoice to C&W,
CWCH shall as soon as reasonably practicable notify C&W. Within 2
Business Days of such notification C&W shall inform CWCH of the
date which is the last day of the current prescribed accounting
period for VAT (as defined in section 25 VATA 1994) of C&W. CWCH
shall issue any such VAT invoice on the last day of such prescribed
accounting period and C&W shall pay the VAT due on such amounts 30
business days from that date.
7. separation costs loan
C&W, Euroco and NTL Delaware agree that notwithstanding the terms
of the Settlement Agreement (and the novation agreement relating
thereto) and Part D of Schedule 19 to the Transaction Agreement
that Euroco shall only be obliged to pay any amounts due to C&W
under paragraph 4 of such Part D (which C&W shall direct shall be
paid directly to CWCH in satisfaction of all amounts due from C&W
under the Separation Costs Loan Agreement) on the Effective Date,
provided that it is understood that New NTL will be advancing such
sum to Euroco in accordance with the Plan.
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8. amended notice addresses
C&W, CWC, New NTL and Euroco agree that upon execution of this Deed
and until further notice is received upon the terms of sub-clause
20(4)(d) of the Transaction Agreement, the contact details for
Notices under the Transaction Agreement shall be those set forth in
Schedule 1.
9. OVERRIDING AGREEMENT
9.1 The parties agree that this Deed shall be effective and that as
between the parties, its provisions shall amend and supplement
those in the Transaction Agreement notwithstanding clauses 20(2),
20(3) and 20(5)(d) of the Transaction Agreement.
9.2 The parties agree that nothing in this Deed shall prejudice any
rights of the parties to the Transaction Agreement which are not
parties to this Deed.
9.3 The parties agree that nothing in this Deed shall (i) increase any
Liability any of the parties has incurred or would have incurred
under any of the Transaction Agreement, the Related Transaction
Agreements, the Tax Deeds or the Settlement Agreement (the "Novated
Agreements") over and above the amount of such Liability if the
novation of Euroco's rights and obligations under such agreements
pursuant to this Agreement had not taken place and New NTL had
remained an indirect subsidiary of Euroco or (ii) save to the
extent specifically provided by the terms of this Agreement
(including, for the avoidance of doubt, the terms of clauses 4 and
5.2 of this Deed), reduce the extent of any party's rights under
the Novated Agreements in any manner that would have an adverse
effect on such party, it being acknowledged that nothing in this
clause 9.3 should prevent in any way the transfer of the rights and
obligations of Euroco and NTL Delaware under the Novated Agreements
to New NTL.
10. COUNTERPARTS
10.1 This Deed may be executed in any number of counterparts, and by the
parties on separate counterparts, but shall not be effective until
each party has executed at least one counterpart.
10.2 Each counterpart shall constitute an original of this Deed, but all
the counterparts shall together constitute but one and the same
instrument.
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11. GENERAL
11.1 The parties agree that, if any of C&W, CWC, CWCH, Euroco, NTL
Delaware or New NTL are in breach, or threaten a breach, of any
obligation under this Deed, damages would not be an adequate remedy
and accordingly any of the other parties to this Deed shall be
entitled to the remedy of injunction or specific performance or any
such equitable relief without proof of special damages.
11.2 No failure, delay or indulgence on the part of any party in
exercising any power or right under this Deed shall operate as a
waiver of such power or right.
11.3 No single or partial exercise of any power or right by any party
shall preclude any other or further exercise thereof or the
exercise of any other such power or right under this Deed.
11.4 Any specific rights or remedies conferred on the parties under this
Deed are non-exclusive and are in addition to and without prejudice
to all other rights and remedies which any such party may have
available to it against the other or otherwise.
11.5 No party shall, without the prior written consent of all of the
others, assign, mortgage, charge, declare a trust over, transfer or
otherwise, dispose of any of its rights or obligations under this
Deed.
11.6 No variation of this Deed shall be effective unless made in writing
signed by or on behalf of each of the parties and expressed to be
such a variation.
11.7 Nothing in this Deed shall create, or be deemed to create, a joint
venture, partnership or agency between the parties.
11.8 The parties do not intend this Deed or any part of it, by virtue of
the Contracts (Rights of Third Parties) Xxx 0000 (the "Rights of
Third Parties Act"), to benefit or be enforceable by any person who
is not a party to this Deed.
12. NOTICES
Any notice, consent, statement, request or approval to be given
under this Deed shall be made and delivered in accordance with
sub-clause 20(4) of the Transaction Agreement as amended by this
Deed. Any further alteration in such details shall, to have effect,
be notified to the other parties in accordance with that sub-clause
20(4).
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13. GOVERNING LAW AND JURISDICTION
This Deed shall be governed by, and construed in accordance with,
English law and the parties submit to the exclusive jurisdiction of
the English courts.
This Deed has been duly executed and delivered by the parties on the date set
out above.
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SCHEDULE 1
Notice Details
Notices shall be addressed as follows to the following parties:
o New NTL: 000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx
XX00000
XXX
fax: x0 000 000 0000
and marked for the attention of Xxxxxxx X Xxxxxxx
with a copy to ntl House
Xxxxxx Xxxx Square
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
XX
fax: x00 00 0000 0000
and marked for the attention of Xxxxxxxx X Xxxxxx
and to Xxxxxxx Xxxxx Xxxxxxxxxxx
00 Xxxx Xxxx
Xxxxxx XX0X 0XX
XX
fax: x00 00 0000 0000
and marked for the attention of Xxxxxxx Xxxxxxxxxxx
and to Xxxxxxx Xxxx Slate Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX00000 3897
USA
fax: x0 000 000 0000
and marked for the attention of Xxx Xxxxxxx
o Euroco NTL Europe, Inc.
00 Xxxxxxxx Xxxxxx
Xxx
Xxx Xxxx 00000
14
fax: x0 000 000 0000
and marked for the attention of Xxxxxxx X. Xxxxxxx
and Xxxxxxx X Xxxxx
with a copy to Xxxxx Xxxxxxx LLP
1251 Avenue of the Americas
Xxx Xxxx
Xxx Xxxx 00000-0000
fax: x0 000 000-0000
and marked for the attention of Xxxxxxxx Xxxxx
and to Xxxxxxx Xxxxx Xxxxxxxxxxx
00 Xxxx Xxxx
Xxxxxx XX0X 0XX
XX
fax: x00 00 0000 0000
and marked for the attention of Xxxxxxx Xxxxxxxxxxx
o NTL (CWC) Limited ntl House
Xxxxxxx Xxxx Xxxxxxxx Xxxx
Xxxx
Xxxxxxxxx
XX00 0XX
XX
fax: x00 000 000000
and marked for the attention of Xxxxxx Xxxxxxxxx
with a copy to ntl House
Xxxxxx Xxxx Square
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
XX
fax: x00 00 0000 0000
and marked for the attention of Xxxx Xxxxx
and to Xxxxxxx Xxxxx Xxxxxxxxxxx
00 Xxxx Xxxx
Xxxxxx XX0X 0XX
XX
fax: x00 00 0000 0000
and marked for the attention of Xxxxxxx Xxxxxxxxxxx
SCHEDULE 2
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No Date Agreement The Parties
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1. 09.02.00 Novation Agreement relating (1) NTL Incorporated
to the Transaction Agreement (2) NTL Holdings Incorporated
(3) Xxxx Atlantic Corporation
(4) Cable & Wireless Plc
(5) Cable & Wireless Communications Plc
--------------------------------------------------------------------------------------------------------
2. 02.02.00 Registration Rights (1) NTL Incorporated
Agreement (2) Cable & Wireless Plc
--------------------------------------------------------------------------------------------------------
3. 17.04.00 Ancillary Agreement (1) Xxxx Atlantic Corporation
(2) Cable & Wireless Plc
(3) Cable & Wireless Communications Plc
(4) NTL Incorporated
--------------------------------------------------------------------------------------------------------
4. 16.05.00 Letter relating to interest (1) NTL Incorporated
on a loan made by CWCH to (2) Cable & Wireless Plc
CWC prior to completion (3) Cable & Wireless Communications
Limited
--------------------------------------------------------------------------------------------------------
5. 26.05.00 Payment Shares Agreement (1) Cable & Wireless Plc
(2) NTL Incorporated
(3) Cable & Wireless Communications
Limited
--------------------------------------------------------------------------------------------------------
6. Undated Further Supplementary (1) Cable & Wireless Plc
Tax Deed (2) Cable & Wireless Communications Limited
(3) Cable & Wireless Communications (V)
Holdings Plc
(4) NTL Incorporated
--------------------------------------------------------------------------------------------------------
7. 30.05.00 Third Supplementary (1) Cable & Wireless Plc
Tax Deed (2) Cable & Wireless Communications Limited
(3) Cable & Wireless Communications (Holdings) Plc
(4) NTL Incorporated
--------------------------------------------------------------------------------------------------------
8. 24.05.00 Notice of Exercise of Call (1) NTL Incorporated
Option in respect of CWC (2) Cable & Wireless Plc
Holdings Shares
--------------------------------------------------------------------------------------------------------
16
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No Date Agreement The Parties
-------------------------------------------------------------------------------------------------------------------
9. 09.02.00 Letter from NTL to Cable & Wireless
Communications Plc confirming satisfaction of
pre-conditions
-------------------------------------------------------------------------------------------------------------------
10. 30.05.00 Letter from Cable & Wireless Plc to Cable &
Wireless Communications Limited, Cable & Wireless
Communications (Holdings) Plc and NTL Incorporated
regarding payment of VAT
-------------------------------------------------------------------------------------------------------------------
11. 26.05.00 Letter regarding (1) Cable & Wireless Plc
Supplementary Tax Deed (2) NTL Incorporated
-------------------------------------------------------------------------------------------------------------------
12. 30.05.00 Consideration Agreement (1) Cable & Wireless
Plc relating to the Four (2) NTL Incorporated
Properties
-------------------------------------------------------------------------------------------------------------------
13. 30.05.00 Side Letter in respect of (1) Cable & Wireless Plc
specific Telecommunications (2) Cable & Wireless Communications Plc
Service Agreement (3) NTL Incorporated
-------------------------------------------------------------------------------------------------------------------
14. 16.04.00 Agreement relating to Two (1) Cable & Wireless Plc
Way TV Limited (2) Cable & Wireless Communications Plc
(3) NTL Incorporated
-------------------------------------------------------------------------------------------------------------------
17
EXECUTED as a DEED by duly )
authorised signatories on behalf of ) J Xxxxxxx Xxxxx
NTL COMMUNICATIONS CORP. ) ...............................
Authorised Officer
Xxxx Xxxxx
...............................
Authorised Officer
EXECUTED as a DEED by duly )
authorised signatories on behalf of ) J Xxxxxxx Xxxxx
NTL INCORPORATED ) ...............................
Authorised Officer
Xxxx Xxxxx
...............................
Authorised Officer
EXECUTED as a DEED by duly )
authorised signatories on behalf of ) J Xxxxxxx Xxxxx
NTL (DELAWARE), INC. ) ...............................
Authorised Officer
Xxxx Xxxxx
...............................
Authorised Officer
18
EXECUTED as a DEED by )
NTL (CWC) LIMITED ) J Xxxxxxx Xxxxx
acting by:- ) ....................................
Director
R Mackenzie
....................................
Secretary
EXECUTED as a DEED by )
NTL (CWC HOLDINGS) ) J Xxxxxxx Xxxxx
acting by:- ) ....................................
Director
R Mackenzie
....................................
Secretary
EXECUTED as a DEED by )
NTL TELEPHONE EQUIPMENT ) J Xxxxxxx Xxxxx
LIMITED acting by:- ) ....................................
Director
R Mackenzie
....................................
Secretary
19
EXECUTED as a DEED by )
NTL COMMUNICATIONS SERVICES ) J Xxxxxxx Xxxxx
LIMITED acting by:- ) ....................................
Director
R Mackenzie
....................................
Secretary
EXECUTED as a DEED by )
NATIONAL TRANSCOMMUNICATIONS ) J Xxxxxxx Xxxxx
LIMITED acting by:- ) .................................
Director
R Mackenzie
.................................
Secretary
EXECUTED as a DEED by )
NTL GROUP LIMITED ) J Xxxxxxx Xxxxx
acting by:- ) ....................................
Director
R Mackenzie
....................................
Secretary
20
EXECUTED as a DEED by )
CABLE AND WIRELESS PUBLIC )
LIMITED COMPANY ) Xxxxx Xxxxxx
acting by:- ) ....................................
Director
Xxx Xxxxxxx
....................................
EXECUTED as a DEED by )
CABLE & WIRELESS UK SERVICES ) Xxx Xxxx
LIMITED acting by:- ) ....................................
Director
Xxx Xxxxxxx
....................................
Secretary
EXECUTED as a DEED by )
CABLE & WIRELESS UK ) Xxx Xxxx
acting by:- ) ....................................
Director
Xxx Xxxxxxx
....................................
Secretary
21
