Form of Settlement Deed among Credit Agricole Indosuez, Telewest Communications



 Exhibit 10.46 
  
 CREDIT AGRICOLE INDOSUEZ 
 AND 
 TELEWEST COMMUNICATIONS PLC 
 AND 
 TELEWEST COMMUNICATIONS NETWORKS LIMITED 
  

  
 FORM OF SETTLEMENT DEED 
  

  

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 THIS DEED is made on
                    [    ] 
  
 BETWEEN: 
  

	(1)	CREDIT AGRICOLE INDOSUEZ, a “société anonyme” organised and existing under the laws of France, having its registered office at 9, Quai du
Président Paul Doumer, 92920 Paris La Défense Cédex, France, registered under the number Siren 304 187 701 at the “Registre du Commerce et des Sociétés de Nanterre”, acting through its London Branch at
122 Leadenhall Street, London EC3V 4QH (“CAI”); 

  

	(2)	TELEWEST COMMUNICATIONS PLC, a company incorporated in England and Wales (registered no. 02983307), whose registered office is at Export House, Cowsey Way, Woking, Surrey
GU21 6QX, England (“TELEWEST”); and 

  

	(3)	TELEWEST COMMUNICATIONS NETWORKS LIMITED, a company incorporated in England and Wales (registered no. 03071086), whose registered office is at Export House, Cowsey Way,
Woking, Surrey GU21 6QX, England (“TCN”). 

  
 THIS DEED WITNESSES as follows: 
  

	1.	INTERPRETATION 

  

	1.1	In this Deed: 

  
 “Business Day” means any day (other than Saturday or Sunday) on which banks are open for general business in London; 
  
 “CAI ISDA” means the ISDA Master Agreement dated as of 15
June 2000 and entered into between CAI and Telewest; 
  
 “Claims” means the claims of each of the Swap Banks relating to liabilities of Telewest arising out of or in connection with the Old FX Transactions whether direct or indirect, present or future, certain or contingent and
the “CAI Claim” shall be construed accordingly; 
  
 “Commitment Letter” means a commitment letter between Telewest, TCN, Telewest Global, Inc., Telewest UK Limited and TCN’s senior lenders in respect of the Revised Senior Secured Facility Agreement; 
  
 “Confirmation” means a contractual document confirming and
evidencing a swap or other derivative transaction in accordance with the provisions of an ISDA Master Agreement; 
  
 “Court” means the High Court of Justice of England and Wales; 
  
 “Deeds of Novation” means the deeds of novation to be entered into between Telewest, TCN and each of the
Swap Banks pursuant to which the Telewest ISDAs and the liabilities of Telewest relating to the Claims will be transferred by novation to TCN and the “CAI Deed of Novation” shall be construed accordingly; 
  

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 “Effective Date” means the date on which an office copy of the order of the Court
sanctioning the Scheme is delivered for registration to the Registrar of Companies of England and Wales; 
  
 “Explanatory Statement” means the explanatory statement prepared under section 426 of the Companies Act 1985 in the agreed form relating
to the Scheme; 
  
 “Heads of Terms” means the
document attached as Schedule II hereto which sets out the proposed method for execution of the New CAI Transaction and the Restructuring Swap Transaction; 
  
 “Interim Swap Transaction” the swap transaction entered into between TCN and CAI in accordance with clause 5, the principal terms of
which are set out in Part 3 of Schedule I; 
  
 “New Bank
Documents” means the Revised Senior Secured Facility Agreement and the Security Documents, as defined in the Revised Senior Secured Facility Agreement; 
  
 “New CAI Transaction” means the new interest rate swap transaction, forming part of the Restructuring Swap
Transaction, to be entered into between CAI and TCN in accordance with clause 4, the principal terms of which are set out in Part 2 of Schedule I; 
  
 “New CAI Transaction Confirmation(s)” means the Confirmation(s) in the agreed form entered into in relation to the New CAI Transaction in
accordance with clause 4.3; 
  
 “New CAI Transaction
Notional Amount” means the notional amount of the New CAI Transaction, which shall be equivalent to 32.2% of the notional amount of the Restructuring Swap Transaction (the same proportion as the amount of the CAI Claim bears to the sum of
the Claims); 
  
 “New ISDA” means the ISDA
Master Agreement to be entered into between CAI and TCN; 
  
 “Old CAI FX Transactions” means the forward foreign exchange transactions, entered into between CAI and Telewest, governed by the CAI ISDA and evidenced by the Confirmations attached as Schedule III hereto and which are to
be novated to TCN in accordance with the terms of the CAI Deed of Novation; 
  
 “Old FX Transactions” means the forward foreign exchange transactions (including the Old CAI FX Transactions) entered into by Telewest with each of the Swap Banks, as listed in Schedule IV hereto, and
which are to be novated to TCN in accordance with the terms of the Deeds of Novation; 
  
 “Petition” the winding-up petition in respect of Telewest presented by CAI to the Court on 29 October 2002; 
  
 “Proceedings” means any form of proceedings, execution or other legal process in any jurisdiction or forum including, without limitation,
any legal proceedings, demand, arbitration, levying of distress, enforcement of judgment or enforcement of any security; 
  

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 “Restructuring Swap Transaction” means the interest rate swap, comprising the New CAI
Transaction together with interest rate swap transactions on comparable terms to be entered into between TCN and each of the other Swap Banks, the principal terms of which are set out in Part 1 of Schedule I hereto; 
  
 “Revised Senior Secured Facility Agreement” means the
amended and restated loan agreement to be entered into by TCN in respect of committed facilities of £2,030 million together with uncommitted facilities of £125 million, amending and restating the credit facility agreement dated 16 March
2001; 
  
 “Scheme” means a scheme of arrangement
between Telewest and certain of its creditors pursuant to section 425 of the Companies Act 1985; 
  
 “Scheme Creditors” has the meaning as defined in the Explanatory Statement; 
  
 “Settlement Deed” means a settlement deed in comparable
terms to this Deed to be entered into between Telewest, TCN and a Swap Bank; 
  
 “Swap Banks” means JPMorgan Chase Bank, The Royal Bank of Scotland plc, The Bank of New York and CAI; and 
  
 “Telewest ISDAs” means the ISDA Master Agreements entered into between Telewest and each of the Swap Banks and includes the CAI ISDA.

  

	1.2	In this Deed, a reference to: 

  

	 	1.2.1	a document in the “agreed form” is a reference to a document in a form approved and for the purposes of identification signed by or on behalf of TCN and CAI;


  

	 	1.2.2	a statutory provision includes a reference to the statutory provision as modified or re-enacted or both from time to time before the date of this Deed and any subordinate
legislation made or other thing done under the statutory provision before the date of this Deed; 

  

	 	1.2.3	a person includes a reference to a corporation, body corporate, association or partnership; 

  

	 	1.2.4	a person includes a reference to that person’s legal personal representatives, successors and permitted assigns; 

  

	 	1.2.5	the singular includes the plural and vice versa; 

  

	 	1.2.6	a time of day is a reference to the time in London, unless a contrary indication appears; and 

  

	 	1.2.7	a clause or schedule, unless the context otherwise requires, is a reference to a clause of or schedule to this Deed. 

  

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	1.3	The headings in this Deed do not affect its interpretation. 

  

	2.	CONDITIONS 

  

	2.1	The effectiveness of this Deed is subject to the following: 

  

	 	2.1.1	The Effective Date occurring by the later of 90 calendar days after the date of the Commitment Letter or 60 calendar days after the date of any vote by Scheme Creditors to approve
the Scheme, subject to such vote occurring on or before 75 calendar days after the date of the Commitment Letter; 

  

	 	2.1.2	Delivery to CAI of a copy of the Court order sanctioning the Scheme, the terms of which confirm that an undertaking has been given by the directors of Telewest at the Court hearing
to sanction the Scheme that the Scheme will not be made effective unless and until the directors of Telewest are satisfied that TCN and TCN’s senior lenders have entered into the New Bank Documents and that the Recapitalisation Supplemental
Deed Effective Date (as such term is defined in the New Bank Documents) has occurred or its occurrence is conditional only upon the Effective Date of the Scheme; 

  

	 	2.1.3	Delivery by CAI of a letter of certification to TCN confirming that the New Bank Documents are in satisfactory form; 

  

	 	2.1.4	Receipt by CAI of its reasonable costs and expenses (including legal fees) properly incurred up until the date five Business Days before the Effective Date in connection with or
arising out of the following: 

  

	 	(a)	this Deed; 

  

	 	(b)	the Petition (and subsequent Proceedings related thereto); 

  

	 	(c)	negotiations for the settlement of the CAI Claim; and 

  

	 	(d)	the entering into of the Interim Swap Transaction and the New CAI Transaction; and 

  

	 	2.1.5	Delivery by CAI of a letter of certification to TCN confirming that the form of the New CAI Transaction Confirmation(s) (other than in respect of the economic terms of the New CAI
Transaction) is acceptable to CAI acting reasonably. 

  

	2.2	In the event that any of the foregoing conditions is not fulfilled, this Deed shall be deemed to have had no effect from the date of its execution and the CAI Claim shall be
reinstated in full. 

  

	3.	RELEASE AND DISCHARGE 

  
 With effect from the Effective Date, CAI and TCN hereby release and discharge each other from their respective liabilities, duties and obligations under
and in respect of or capable of arising under or connected with the Old CAI FX Transactions (whether direct or indirect, foreseen or unforeseen, contingent or actual, present or future) and that their respective rights under such transactions shall
be cancelled in full. 
  

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	4.	NEW CAI TRANSACTION 

  

	4.1	CAI and TCN undertake and agree to enter into the New CAI Transaction no later than the Business Day next following the seventy-fifth calendar day after the Effective Date.


  

	4.2	The New CAI Transaction will be executed in accordance with the Heads of Terms which makes provision, without limitation, for the following: 

  

	 	4.2.1	the New CAI Transaction may be entered into in one or more tranches, provided that the aggregate notional amount of such tranches is equal to the New CAI Transaction Notional
Amount; and 

  

	 	4.2.2	the rate(s) at which the New CAI Transaction is executed will be determined in accordance with the price quoted by CAI and/or the price quoted by a Swap Bank or a bank selected by
TCN in an auction process. 

  

	4.3	CAI and TCN shall enter into one or more New CAI Transaction Confirmation(s) specifying the terms of each tranche of the New CAI Transaction. The New CAI Transaction will be
governed by the New ISDA and shall be deemed a Transaction for the purposes thereof. 

  

	5.	INTERIM SWAP TRANSACTION 

  

	5.1	With effect from the Effective Date, CAI and TCN shall enter into the Interim Swap Transaction with a notional amount equal to the New CAI Transaction Notional Amount. CAI and TCN
shall enter into a Confirmation specifying the terms of the Interim Swap Transaction. The Interim Swap Transaction will be governed by the New ISDA and shall be deemed a Transaction for the purposes thereof. 

  

	5.2	The Interim Swap Transaction will be cancelled and replaced by the New CAI Transaction when and to the extent that the tranche(s) of the New CAI Transaction are entered into in
respect of the same notional principal amount. For the avoidance of doubt, no payments will be made or will be required to be made under the Interim Swap Transaction unless the New CAI Transaction does not come into full force and effect as provided
under the terms of this Deed. 

  

	6.	THE BRINGING OF LEGAL PROCEEDINGS 

  

	6.1	CAI covenants not to commence or continue any Proceedings whatsoever against TCN arising out of or in any way connected to the CAI Claim, save in the event that this Deed is
breached or is deemed ineffective. 

  

	6.2	Except as otherwise agreed with Telewest and subject to clause 6.1 above, CAI agrees that until 30 June 2004: 

  

	 	6.2.1	it will take no steps to advertise the Petition; and 

  

	 	6.2.2	it will adjourn the Petition. 

  

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	7.	FULL AND FINAL SETTLEMENT 

  
 CAI hereby agrees and acknowledges that the release and discharge referred to in clause 3 above will result in the extinguishment of the CAI Claim and
that TCN and CAI’s entry into the Interim Swap Transaction shall be in full and final settlement of such CAI Claim. 
  

	8.	REPRESENTATIONS AND WARRANTIES 

  
 On the date of this Deed, on the Effective Date and on each date on which a tranche of the New CAI Transaction is entered into, CAI and TCN make to each
other those representations and warranties set forth in Section 3(a) of the New ISDA. 
  

	9.	FURTHER ASSURANCES 

  

	9.1	The parties to this Deed hereby undertake and agree to do all such acts and execute and deliver all such documents as may be reasonably required for the purposes of giving effect to
the provisions of this Deed. 

  

	9.2	Without prejudice to the condition set out in sub-clause 2.1.4, TCN agrees to pay any further and additional reasonable costs and expenses (including legal fees) which CAI may
properly incur in connection with this Deed and as a result of the negotiation, preparation and execution of this Deed, the implementation of the Interim Swap Transaction and the implementation of the New CAI Transaction (including on or after the
date five Business Days before the Effective Date). 

  

	10.	THIRD PARTY RIGHTS  

  
 A person who is not a party to this Deed has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Deed. 

 

	11.	GOVERNING LAW 

  
 This Deed and all matters arising from or connected with it are governed by English law. 
  

	12.	JURISDICTION 

  

	12.1	The courts of England have exclusive jurisdiction to settle any dispute arising from or connected with this Deed (a “Dispute”), including a dispute regarding the
existence, validity or termination of this Deed or the consequences of its nullity. 

  

	12.2	The parties agree that the courts of England are the most appropriate and convenient courts to settle any Dispute and, accordingly, that they will not argue to the contrary.


  

	13.	COUNTERPARTS 

  
 This Deed may be executed in any number of counterparts, each of which is an original and all of which together evidence the same agreement. 

 

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	14.	EXECUTION AND DELIVERY 

  
 IN WITNESS WHEREOF this Deed has been executed on behalf of the parties as a deed and is delivered as a deed on the date specified above. 
  

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	 Executed as a deed by
	  	 
	CREDIT AGRICOLE INDOSUEZ	  	 )

		
	
	  	 Signature of director

		
	
	  	 Name of director

		
	
	  	 Signature of director/secretary

		
	
	  	 Name of director/secretary

		
	 Executed as a deed by
	  	 
	TELEWEST COMMUNICATIONS PLC	  	 )

		
	
	  	 Signature of director

		
	
	  	 Name of director

		
	
	  	 Signature of director/secretary

		
	
	  	 Name of director/secretary

		
	 Executed as a deed by
	  	 
	TELEWEST COMMUNICATIONS	  	 )

	NETWORKS LIMITED	  	 )

		
	
	  	 Signature of director

		
	
	  	 Name of director

		
	
	  	 Signature of director/secretary

		
	
	  	 Name of director/secretary


  

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 SCHEDULE I 
  

Part 1 
  
 Principal Terms of the Restructuring Swap Transaction 
  

			
		
	Fixed Rate Payer:	  	TCN
		
	Floating Rate Payer:	  	The Swap Banks
		
	Payments by TCN:	  	Fixed Rate (determined in accordance with the Heads of Terms) + 90 basis points (the “Spread”)
		
	Notional Amount:	  	£1,000 million
		
	Transaction Date:	  	The date or dates on which the Restructuring Swap Transaction is entered into determined in accordance with the Heads of Terms
		
	Forward Starting Date:	  	91st calendar day after the Effective Date of the Scheme (adjusted in accordance with the modified following business day convention so that the Forward Starting Date falls on a good Business
Day)
		
	Payment Dates:	  	Quarterly
		
	Maturity Date:	  	3 years from the Forward Starting Date
		
	Fixed Rate Payer Initial Exchange Amount:	  	0.225% of the Notional Amount
		
	Initial Exchange Amount Payment Date:	  	Forward Starting Date
		
	Payments of the Spread:	  	On each quarterly Payment Date except for the final Payment Date (i.e. the Maturity Date)
		
	Security:	  	Share in the security under the bank deal as set out in the New Bank Documents

  

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 Part 2 
  
 Principal Terms of the New CAI Transaction 
  

			
		
	Fixed Rate Payer:	  	TCN
		
	Floating Rate Payer:	  	CAI
		
	Payments by TCN:	  	Fixed Rate (determined in accordance with the Heads of Terms) + 90 basis points
		
	New CAI Transaction Notional Amount:	  	32.2% of the Restructuring Swap Transaction Notional Amount
		
	Transaction Date:	  	The date or dates on which the New CAI Transaction is entered into determined in accordance with the Heads of Terms
		
	Forward Starting Date:	  	91st calendar day after the Effective Date of the Scheme (adjusted in accordance with the modified following business day convention so that the Forward Starting Date falls on a good Business
Day)
		
	Payment Dates:	  	Quarterly
		
	Maturity Date:	  	3 years from the Forward Starting Date
		
	Proportion of Initial Exchange Amount due to CAI:	  	£724,500.00
		
	Initial Exchange Amount Payment Date:	  	Forward Starting Date
		
	Payments of the Spread:	  	On each quarterly Payment Date except for the final Payment Date (i.e. the Maturity Date)
		
	Security:	  	Share in the security under the bank deal as set out in the New Bank Documents

  
 Part 3 
  
 Principal Terms of the Interim Swap Transaction 
  

			
		
	Floating Rate Payer:	  	TCN
		
	Floating Rate Payer:	  	CAI
		
	Payments by CAI:	  	LIBOR
		
	Payments by TCN:	  	LIBOR + 90 basis points
		
	Interim Swap Transaction Effective Date:	  	The Effective Date of the Scheme as defined in clause 1.1
		
	Payment Dates:	  	Quarterly

  

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	Termination Date:	  	The date or dates constituting the Transaction Date of the New CAI Transaction
		
	Tenor:	  	3 years (subject to (early) termination on the Termination Date(s))
		
	Security:	  	Share in the security under the bank deal as set out in the New Bank Documents

  
  

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 SCHEDULE II 
  
 HEADS OF TERMS 
  

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 SCHEDULE III 
  
 OLD CAI FX TRANSACTIONS 
  

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 SCHEDULE IV 
  
 OLD FX TRANSACTIONS 
  

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