Exhibit 10.16
To: NTL (Delaware), Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx
XX 00000
U.S.A.
NTL Cablecom Holding GmbH
c/o ATAG Ernst & Young AG
Xxxxxxxxxxxxx 0
0000 Xxx
Xxxxxxxxxxx
Cablecom GmbH
Xxxxxxxxxxxxxxxx 00
0000 Xxxxxxxxxx
Xxxxxxxxxxx
The Borrowers and the Guarantors (each as defined in the Credit
Agreement (as defined below))
Date: 28 March 2002
CREDIT AGREEMENT DATED 28 MARCH 2000 ORIGINALLY MADE BETWEEN NTL INCORPORATED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 (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:
"CO-ORDINATORS" means the joint co-ordinators as defined in a
Confirmation of Terms of Appointment letter agreement dated 7 March
2002;
"NTL GROUP NOTES" means the Parent 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 NTL Inc. Group;
"PARENT 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 and the
5.75% convertible subordinated notes due 2011 issued by the Parent;
"RELEVANT EVENTS OF DEFAULT" means the Events of Default at:
(a) Clause 23.7.1 (Insolvency and Rescheduling) to the extent that
such Event of Default occurs solely as a result of the
non-payment of interest due under the Parent Notes;
(b) Clause 23.7.3 (Insolvency and Rescheduling) to the extent that
such Event of Default occurs solely as a result of the Parent
Negotiations;
(c) Clause 23.8 (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 23.8 (Winding-up))
solely in connection with the Proposed Steps;
"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;
"SENIOR BANK CREDIT AGREEMENT" means the credit agreement dated 30 May
2000 originally made between NTL Communications Limited as parent, NTL
Business Limited as original borrower, the parties named therein as
guarantors, NTL Communications Corporation as NTL CC and others, as
amended and restated pursuant to a restatement amendment agreement
dated 26 September 2001 and as further amended, novated, varied or
supplemented from time to time prior to the date hereof;
"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; and
"WORKING CAPITAL CREDIT AGREEMENT" means the credit agreement dated 30
May 2000 originally made between NTL Communications Corp. as parent,
NTL (UK) Group, Inc. as intermediate parent, NTL Communications Limited
as borrower and others, as amended, novated, varied, or supplemented
from time to time prior to the date hereof.
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 "PARENT NEGOTIATIONS") with one or more
of the holders (the "PARENT NOTEHOLDERS") of the Parent Notes and/or
their representatives. The Parent has requested the Banks to:
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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 Parent Negotiations) (the
"PROPOSED STEPS"); and
2.2 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; and (b) hereby irrevocably and unconditionally and for
all purposes of the Finance Documents 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
NTL Communications Limited (acting on behalf of the Guarantors
(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 Working Capital Credit Agreement has
entered into a consent letter (upon the instructions of an
Instructing Group (as defined in the Working Capital Credit
Agreement)) with NTL Communications Limited (acting on behalf
of the Obligors (as defined in the Working Capital 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 Parent
Noteholders or the holders of any other NTL Group Notes
(together with the Parent Noteholders, the "NOTEHOLDERS")
which exchange or similar offer has been, or is required to
be, filed with an appropriate governmental agency or body
(such as the U.S. Securities and Exchange Commission) or is
exempted from any such filing but which is capable of
acceptance by such Noteholders (or any of them) (whether or
not subject to satisfaction of conditions);
3.2.2 the execution or other entry into of any legally binding
agreement for, or any offer to Noteholders (or any of them)
which is capable of acceptance (whether or not subject to the
satisfaction of conditions) in respect of, the prepayment (in
whole or in part) of amounts outstanding under the NTL Group
Notes (or any of them) or the granting of any security,
guarantee or other credit support in
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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 NTL Inc. 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 NTL Inc. 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 the Parent's winding-up, dissolution or administration or
any similar or analogous process (including, without
limitation, any filing or commencement of proceedings under or
in connection with the United States Bankruptcy Code, 11
U.S.C. Sections 101 et seq).
3.3 The Consent shall terminate at 5.30pm (New York time) on 14 May 2002.
As at such time or any time after the Consent has terminated the Agent
may by written notice to the Parent and the Principal Borrower take any
action pursuant to Clause 23.19 (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 if at such time the Parent
Negotiations are not continuing and no other Proposed Steps are being
taken at, or are taken after, such time, no Relevant Event of Default
the subject of the Consent shall be continuing.
4. ACTION BY THE AGENT
4.1 Notwithstanding the Consent, the Agent may take any action in respect
of a Relevant Event of Default deemed appropriate pursuant to Clause
23.19 (Acceleration and Cancellation) of the Credit Agreement and/or
under any Finance Document upon (or at anytime after and whilst such
failure is continuing) any of the Parent, the Shareholder,
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any Borrower or any Guarantor failing to duly perform or comply with
any obligation expressed to be assumed by it hereunder unless such
failure relates to the obligation at paragraph 5.3 below and such
failure is remedied within two Business Days or such failure relates to
the obligations at paragraphs 5.4, 5.5 or 5.9 below and such failure is
remedied within 7 Business Days.
5. PARENT UNDERTAKINGS
The Parent undertakes by its counter-signature of this letter to:
5.1 procure that no issuer of NTL Group Notes (or any party on such
issuer's behalf) at any time purchases or buys-back any of the NTL
Group Notes issued by it or by any other member of the NTL Inc. Group;
5.2 procure that no member of the NTL Inc. 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 Restricted
Group (the "FORECAST") which shall be updated by the Parent and
provided to the Agent on a fortnightly basis (the first Forecast to be
delivered pursuant to this paragraph 5.3 shall be delivered by the
Parent to the Agent on 2 April 2002). Each Forecast shall be in
substantially the same form as the pro forma Forecast agreed by and
delivered to the Agent prior to the date hereof and shall include
details of cash balances for members of the Restricted Group in
substantially the same form as that information appears in, and in
respect of the same members of the Restricted 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 Restricted Group or any member
of the Restricted Group which is provided to the Noteholders (or any of
them) by any member of the Restricted Group where such information is
materially different from any information which has been provided to the
Co-Ordinators and/or the Steering Committee and/or the Agent and/or the
Banks. If requested by the Co-Ordinators, the Parent shall make such
aforementioned information available to the Co-Ordinators on the same
basis as such information is made available to the Noteholders PROVIDED
THAT the Co-Ordinators have first signed a confidentiality undertaking
in favour of the Parent in a form acceptable to the Parent (acting
reasonably);
5.5 provide to the Co-Ordinators copies of:
5.5.1 any material term sheets sent by any member of the NTL Inc.
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 NTL Inc. 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 NTL Inc.
Group to the Noteholders (or any of them) and/or any of their advisors
and which relate to the
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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 NTL Inc. Group in relation to the
Proposed Recapitalisation is subject to such member of the NTL Inc.
Group obtaining the prior written consent of the Banks;
5.7 procure that the Co-ordinators are kept informed at each meeting
between the Parent, (and, in the case of paragraph 5.7.2 only, the
Parent, the Shareholder and/or the Principal 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 NTL Inc. Group (or
any member of the NTL Inc. 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
Restricted Group where such disposal is material in the
context of the Restricted 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 NTL
Inc. Group not being a member of the Restricted Group where
such disposal is material in the context of the NTL Inc. Group
(excluding for the purposes of this paragraph 5.7.3 the
Restricted Group) taken as a whole,
PROVIDED THAT the Parent, the Shareholder and the Principal 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 Parent, the Shareholder
or, as the case may be, the Principal Borrower in a form acceptable to
the Parent, the Shareholder or, as the case may be, the Principal
Borrower (in each case acting reasonably) and PROVIDED FURTHER THAT the
Parent, the Shareholder and the Principal Borrower shall not be obliged
to make such information and requested documentation available to the
Co-Ordinators if the Parent, the Shareholder or, as the case may be,
the Principal 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 use its reasonable endeavours, and procure that the members of the NTL
Inc. Group use their reasonable endeavours, to consider with the Agent
(on behalf of the Banks) possible methods of providing the Banks with
additional credit enhancement in relation to the Facilities and/or the
Obligors (it being acknowledged by the Agent (on behalf of the Banks))
that the ability of certain members of the NTL Inc. Group to grant
security is restricted by certain existing contractual arrangements
binding on them;
5.9 on or before 12 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):
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5.9.1 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 Parent
Negotiations;
5.9.2 an up-to-date Group Structure Chart verified by Swiss counsel
to the Parent and which the Banks are authorised (by the
Parent's Swiss counsel) to rely upon; and
5.9.3 a contingency business plan for the Shareholder and the
Restricted Group on the basis that:
(a) no new funding (including no further drawings under
the Credit Agreement) will be available; and
(b) any requested funding, as may be agreed by the Banks,
will not be sufficient to satisfy funding
requirements of the Shareholder and the Restricted
Group during the calendar year 2002;
5.10 no later than 10 Business Days after the request of the Agent or, as
the case may be, the Co-ordinators, settle any outstanding invoices
issued by legal, accounting or other professional advisors appointed by
the Agent or, as the case may be, the Co-ordinators (unless the
relevant invoice is being queried by the Parent in good faith); and
5.11 procure that the restrictions set out in the schedule hereto in respect
of Permitted Acquisitions and Permitted Encumbrances 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 Parent in a form acceptable to
the Parent (acting reasonably).
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6.4 We confirm that you may provide a copy of this letter to the agent and
the banks party to the Senior Bank Credit Agreement and to the agent
and the banks party to the Working Capital Credit Agreement.
6.5 A person who is not a party to this letter has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of
this letter.
6.6 This letter shall be governed by, and construed in accordance with,
English law.
Please indicate your acceptance of the terms hereof by signing the enclosed copy
of this letter and returning it to Xxxxxxx Xxxxxxx at X.X. Xxxxxx Europe Limited
at or before 5.00 pm (London time) on 10 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.
For and on behalf of
X.X. XXXXXX EUROPE LIMITED
as Agent on behalf of the Banks
By: /s/ Xxxxxxxx Xxxxx
/s/ Xxxxxx Xxxxxx
Title:
ACCEPTED AND AGREED
THE PARENT
NTL (DELAWARE), INC.
By: /s/ Xxxx Xxxxx
Title:
Dated:
THE SHAREHOLDER
NTL CABLECOM HOLDING GmbH
By: /s/ Xxxxxxx X. Xxxxxxx
Title:
Dated:
THE BORROWERS
CABLECOM GmbH
By: /s/ Xxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Title:
Dated:
CABLECOM MANAGEMENT GmbH
By: /s/ Xxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Title:
Dated:
BALCAB AG
By: /s/ Xxxxxx Xxxxxxx
/s/ Xxx Xxxxxxxx
Title:
Dated:
THE GUARANTORS
NTL CABLECOM HOLDING GmbH
By: /s/ Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxx
Title:
Dated:
CABLECOM GmbH
By: /s/ Xxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Title:
Dated:
CODITEL Sarl
By: /s/ Xxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Title:
Dated:
BALCAB AG
By: /s/ Xxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxx
Title:
Dated:
SWISS ONLINE AG
By: /s/ Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxxxx
Title:
Dated:
CABLECOM ENGINEERING AG
By: /s/ Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxxxx
Title:
Dated:
NORDEX GmbH
By: /s/ Xxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Title:
Dated:
RERA GmbH IMMOBILIENGESELLSCHAFT
By: /s/ Xxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Title:
Dated:
CABLECOM BUSINESS AG
By: /s/ Xxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Title:
Dated:
REDIFFUSION AG
By: /s/ Xxxxxx Xxxxxxx
/s/ Guadenz X. Xxxxxxx
Title:
Dated:
CABLECOM MANAGEMENT GmbH
By: /s/ Xxxxxx Xxxxxxx
/s/ Guadenz X. Xxxxxxx
Title:
Dated:
URBANET SA
By: /s/ Xxxxxx Xxxxxxx
/s/ Xxxx-Xxxxxxx Cardineaux
Title:
Dated:
SCHEDULE
RESTRICTIONS IN RESPECT OF PERMITTED ACQUISITIONS,
PERMITTED DISPOSALS, PERMITTED ENCUMBRANCES
AND PERMITTED INDEBTEDNESS
1. No member of the Restricted Group shall make any acquisition falling
within paragraph (a), (b) or (e) 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 paragraph (d) of such definition is historic).
2. No member of the Restricted Group shall create or permit to subsist any
Encumbrance falling within paragraph (b) or paragraph (c) of the
definition of "PERMITTED ENCUMBRANCE".
