EXHIBIT 7(s)
October 9, 1998
Nationsbank, N.A., as agent (the "Agent")
for the Lenders (the "Lenders") under that
certain Revolving Credit Agreement with
▇▇▇▇ ▇. ▇▇▇▇▇▇ expected to be dated as
of October 9, 1998 (the "Credit Agreement")
Ladies and Gentlemen:
Reference is made to the Call Agreement, dated as of February 9, 1998
(the "▇▇▇▇▇▇ Call Agreement"), by and among Tele-Communications, Inc. ("TCI"),
▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and ▇▇▇▇▇▇ ▇▇▇▇▇▇. Capitalized terms used but not
defined in this letter are intended to have the meanings assigned to them in the
▇▇▇▇▇▇ Call Agreement.
We have been advised that the Lenders propose to enter into the Credit
Agreement and related loan documents (collectively, the "Loan Documents") with
▇▇▇▇▇▇, subject, among other conditions, to the waiver by TCI of certain
provisions of the ▇▇▇▇▇▇ Call Agreement. We understand that pursuant to the
Credit Agreement, the Lenders from time to time may make loans or other
extensions of credit ("Advances") to ▇▇▇▇▇▇ that will be secured by a pledge of
Member Shares owned by ▇▇▇▇▇▇. It is our understanding that the principal
amount of Advances outstanding at any time will not exceed $360 million. You
have advised us that because the Member Shares to be pledged constitute "margin
stock" for purposes of Regulation U, it is possible that ▇▇▇▇▇▇ will from time
to time be required to provide additional collateral for the Advances, which he
may do by pledging additional Member Shares. For purposes of this letter, the
term "Pledged Shares" means all Member Shares from time to time pledged by
▇▇▇▇▇▇ to secure Advances under the Credit Agreement as in effect from time to
time.
We have been informed that the Loan Documents provide that upon a
foreclosure by the Lenders on the Pledged Shares in the case of a default or
event of default under the Loan Documents, the Lenders may (i) transfer all or
part of the Pledged Shares to the Lenders or the Agent or another nominee of the
Lenders, (ii) sell or otherwise transfer all or part of the Pledged Shares to
other transferees, either following or without an intermediate transfer
described in clause (i), and (iii) exercise other rights and remedies with
respect to the Pledged Shares provided for in the Loan Documents (any such case,
to "foreclose on the Pledged Shares").
TCI hereby confirms that it irrevocably (subject to compliance by the
Lenders and
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the Agent with the terms of this letter) waives all provisions, if any, of the
▇▇▇▇▇▇ Call Agreement that would otherwise: (i) prohibit or restrict (A) the
pledge by ▇▇▇▇▇▇ of the Pledged Shares as provided in the Loan Documents or (B)
the exercise of the Lenders' and Agent's rights to foreclose on the Pledged
Shares pursuant to the Loan Documents; or (ii) require that, following an
exercise by the Lenders or the Agent of the right to foreclose on the Pledged
Shares, the Pledged Shares continue to be subject to the ▇▇▇▇▇▇ Call Agreement
or that the Lenders, Agent or a purchaser at foreclosure of such Pledged Shares
become a member of the ▇▇▇▇▇▇ Group or a party to the ▇▇▇▇▇▇ Call Agreement.
TCI's waiver is based upon our understanding that the Lenders acknowledge and
agree that following the pledge of the Pledged Shares and each and every
exercise by the Lenders or the Agent of their right to foreclose on any or all
of the Pledged Shares, such Pledged Shares shall continue to be subject to the
restrictions on transfer, call and other rights of TCI and other provisions of
the ▇▇▇▇▇▇ Call Agreement to the same extent and with the same effect as if they
continued to be beneficially owned solely by ▇▇▇▇▇▇, other than those Pledged
Shares, if any, which the Lenders (for themselves and their successors, assigns
and transferees) or ▇▇▇▇▇▇ on behalf of the Lenders tender to TCI for conversion
into shares of Low Vote Stock on a share-for-share basis in accordance herewith.
TCI's waiver is also based on our understanding that the Lenders will convert
only such Pledged Shares as they deem appropriate to assure that they receive
proceeds sufficient to pay the Lenders in full the obligations secured by the
Pledged Shares.
Please note that the Lenders are not required to tender any Pledged
Shares for conversion into Low Vote Stock, but unless such tender is made as
provided above, such Pledged Shares shall continue to be subject to the ▇▇▇▇▇▇
Call Agreement as provided above. If the Lenders (or their agent or nominee)
foreclose or take any other action to enforce the security interest represented
by the pledge of any Pledged Shares, and so tender such Pledged Shares for
conversion into Low Vote Stock on a share-for-share basis, TCI will (i) cause
(subject to the following sentence) such conversion to be effected at the close
of business on the date such Pledged Shares are duly delivered to TCI for
conversion, (ii) reasonably cooperate with the Lenders (or their agent or
nominee) in effecting such conversion as promptly as reasonably practicable,
(iii) comply with Section 6.4(b) of the Stockholders Agreement ("Section
6.4(b)"), with the understanding that the Low Vote Stock into which such Pledged
Shares are converted satisfy the conditions of Section 6.4(b) for removal of
legends as contemplated by Section 6.4(b), and (iv) otherwise reasonably
cooperate with the transfer of the Low Vote Stock into which such Pledged Shares
are converted free of restriction by the ▇▇▇▇▇▇ Call Agreement and the
Stockholders Agreement. TCI's obligations under clause (i) above are subject to
(x) such Pledged Shares being duly delivered to TCI for conversion in accordance
with the provisions of Article IV, Section E.2(a) of TCI's Certificate of
Incorporation (as amended to such date) (the "TCI Charter"), (y) the Lenders and
the Agent reasonably cooperating with TCI in connection with such conversion,
and (z) no court of competent jurisdiction having enjoined such conversion. For
purposes of this letter, the requirements of Article IV, Section E.2(a) of the
TCI Charter will be deemed satisfied upon proper delivery of certificates
representing the Pledged Shares to be so
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converted to TCI at its office at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: General Counsel (or such other address as TCI may notify the Lenders
and the Agent), accompanied by a duly executed Stock Power and Notice of
Conversion (copies of the forms of which are attached hereto).
This waiver will automatically terminate if the Lenders, the Agent or
their respective successors, assigns or transferees act in any manner or take
any position in any litigation that is inconsistent with the terms of this
letter.
Page 101 of 112 Pages
This waiver does not, expressly or by implication, amend or modify the
terms of the ▇▇▇▇▇▇ Call Agreement, which shall continue in full force and
effect as written, nor obligate TCI to give any further or additional waiver in
the future.
Very truly yours,
TELE-COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and Secretary
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FORM OF STOCK POWER
-------------------
FOR VALUE RECEIVED, [______________________] hereby sells, assigns and
transfer to [________________________], ___________________________________
(_________________________________) shares of the Series B TCI Group Common
Stock of Tele-Communications, Inc. (the "Company") standing in
[_______________________]'s name on the books of the Company represented by
Certificate No.(s) ___________________________________ and do irrevocably
constitute and appoint The Bank of New York as attorney to transfer said stock
on the books of the Company with full power of substitution in the premises.
Dated:
__________________________
[_____________]
Page 103 of 112 Pages
FORM OF NOTICE OF CONVERSION
----------------------------
The undersigned holder of shares of Series B TCI Group Common Stock hereby
delivers to Tele-Communications, Inc. ("TCI") certificates representing
_____________________ shares of Series B TCI Group Common Stock, duly endorsed
for transfer or accompanied by duly executed stock powers, and requests that TCI
convert _________________ shares of Series B TCI Group Common Stock into an
equal number of shares of Series A TCI Group Common Stock and deliver
certificates representing such shares of Series A TCI Group Common Stock
together with certificates representing the shares of Series B TCI Group Common
Stock for which conversion has not been so requested, to the undersigned at the
address specified below.
_______________________________
[Name of Holder]
[Address]
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