Exhibit 10.15
To:
NTL Communications Corp.
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NTL (UK) Group, Inc.
and NTL Communications Limited
NTL House
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Date: 28 March 2002
CREDIT AGREEMENT, ORIGINALLY FOR L1,300,000,000, DATED 30 MAY 2000 (AS FROM TIME
TO TIME AMENDED, VARIED, SUPPLEMENTED OR NOVATED) AND MADE BETWEEN (AMONGST
OTHERS) NTL COMMUNICATIONS CORP. AS PARENT, NTL (UK) GROUP INC. AS INTERMEDIATE
PARENT, NTL COMMUNICATIONS LIMITED AS BORROWER, ▇.▇. ▇▇▇▇▇▇ PLC (FORMERLY KNOWN
AS CHASE MANHATTAN PLC) AND ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ BANK LIMITED AS ARRANGERS
AND JOINT BOOK MANAGERS, ▇.▇. ▇▇▇▇▇▇ EUROPE LTD (FORMERLY KNOWN AS CHASE
MANHATTAN INTERNATIONAL LIMITED) AS AGENT AND SECURITY TRUSTEE AND THE LENDERS
PARTY THERETO (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 Intermediate Parent by way of NTL Delaware
Subordinated 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March 2000 originally made between NTL Incorporated (now known as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 the Parent in the domestic or international
capital markets and outstanding at the date of this letter;
"NTL DELAWARE SUBORDINATED DEBT" means Financial Indebtedness
incurred by the Intermediate Parent to NTL (Delaware) Inc. in an
amount not exceeding an amount equal to the net proceeds from the
disposal of NTL Australia;
"NTL DELAWARE SUBORDINATION AGREEMENT" means the Subordination
Agreement to be entered into between the Intermediate Parent and
NTL (Delaware) Inc. (as borrower and creditor respectively
thereunder) and the Security Trustee pursuant to which the
Subordinated Liabilities (as defined therein and to include without
limitation NTL Delaware Subordinated Debt) are to be subordinated
to the Senior Liabilities (as defined therein) on terms
satisfactory to the Arrangers (acting reasonably) and which will
include provisions permitting the repayment of NTL Delaware
Subordinated Debt in an amount no greater than the Additional
Permitted Payment;
"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;
"NTL PARTIES" means each of the parties to whom this Consent is
addressed and "NTL PARTY" means any one of them;
"RELEVANT EVENTS OF DEFAULT" means the Events of Default at:
(a) Sub-clause 19.7.1 of Clause 19.7 (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) Sub-clause 19.7.2 of Clause 19.7 (Insolvency and
Rescheduling) to the extent that such Event of Default
occurs solely as a result of the NTL CC Negotiations;
(c) Clause 19.8 (Winding-up) to the extent that such Event of
Default relates solely to the Parent taking any corporate
action or other steps for its "re-organisation"
(as such term is construed in the context of Clause 19.8
(Winding-up)) solely in connection with the Proposed Steps;
(d) Clause 19.10 (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) Sub-clause 19.6.4 of Clause 19.6 (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
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 consent to the making of the Additional Permitted
Payment;
2.3 consent to the incurrence and subsistence of NTL
Delaware Subordinated Debt provided that such consent
shall be conditional upon the NTL Delaware
Subordination Agreement having been entered into by
the respective parties no later than the first date on
which any NTL Delaware Subordinated Debt is incurred;
2.4 consent to the execution of the NTL Delaware
Subordination Agreement by, amongst others, the
Intermediate Parent and the Security Trustee; and
2.5 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 the Parent 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; (c) hereby consents to the incurrence
and subsistence of NTL Delaware Subordinated Debt in the manner
specified and subject to the conditions set out in paragraph 2.3;
(d) hereby consents to the execution of the NTL Delaware
Subordination Agreement by the Intermediate Parent and the Security
Trustee (amongst others) and (e) 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 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 (amongst others) NTLIH, the
Borrower and 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 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 of or other entry into 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 the Parent taking any corporate action or any other
steps being taken or any legal proceedings being
started and served for its 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 the Parent 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 have 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 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. has not made
available to the Intermediate Parent, NTL Delaware Subordinated
Debt in an amount not less than L90,000,000 of which at least
L90,000,000 has been contributed to the UK Group; 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. has not made available to the
Intermediate Parent, NTL Delaware Subordinated Debt:
(i) in an amount not less than 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, in 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 Intermediate Parent and of which at least
L90,000,000 has been contributed 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 Intermediate Parent or contributed 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 the Intermediate Parent or the UK Group is
prohibited by any injunction or similar legal restriction which is binding on
NTL (Delaware) Inc., the Intermediate Parent or any other member of the Group
and which NTL (Delaware) Inc., the Intermediate Parent 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 the NTL Delaware Subordinated Debt:
(i) shall not cause a breach of Clause 18.15 (Subordinated
Debt), sub-clauses 18.21.1 and 18.21.2 of Clause 18.21
(Financial Indebtedness) and Clause 18.27
(Transactions with Affiliates);
(ii) shall be subordinated to the Loan pursuant to the NTL
Delaware Subordination Agreement; and
(iii) shall not be included for the purposes of the
definition of "Parent Covenant Group Net Debt" in
Clause 17.1 (Financial Definitions).
As at such time or any time after the Consent has terminated the
Agent may by written notice to the Obligors 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:
(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 have, 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 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 19.17 (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 NTL Parties
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 paragraph 5.4, 5.5 or 5.8 below and such failure is remedied
within 7 Business Days.
5. UNDERTAKINGS OF THE NTL PARTIES
Each of the NTL Parties 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 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 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, any NTL Party
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 each of the
NTL Parties in a form acceptable to the NTL Parties (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 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;
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 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 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;
and
5.9.3 a Permitted Payment falling within paragraph (d) or
(e) of the definition of Permitted Payment in the
Credit Agreement
5.9.4 a Permitted Payment falling within the definition of
Additional Permitted Payment;
5.10 procure that no cash payments are made by any member of the
Relevant 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 any of the NTL
Parties 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 underpayment 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 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
4.1 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 Borrower in a
form acceptable to the Borrower (acting reasonably).
6.4 We confirm that you may provide a copy of this letter to the agent
and the banks under the Senior Bank Credit Agreement 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) ▇▇▇ ▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at ▇.▇. ▇▇▇▇▇▇ 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
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED
as Agent on behalf of the Banks
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
ACCEPTED AND AGREED
NTL COMMUNICATIONS CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Title:
Dated:
NTL (UK) GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Dated:
NTL COMMUNICATIONS LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Title:
Dated:
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 (b) 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), and (f) of such definition are historic.
2. 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".
3. No member of the UK Group shall incur any Financial Indebtedness
falling within paragraph (e) which it is not obliged to incur at
the date of first posting of this Consent on the relevant
Intralinks site or paragraph (l) of the definition of "PERMITTED
INDEBTEDNESS".