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Exhibit 10.12(a)
PETER HOWARD-DOBSON Managing Director, Partner Services
[MERCURY COMMUNICATIONS LOGO]
11 November 1996 MERCURY COMMUNICATIONS LTD.
New Mercury House
26 Red Lion Square
London WC1R 4HQ
//Direct Tel: (0171) 528 2466
//Direct Fax: (0171) 528 2392
NYNEX CableComms Limited
The Tolworth Tower
Ewell Road
Surbiton
Surrey KT6 7ED
Dear Mr Repp
I am writing with the intention of agreeing the terms for settlement of
backdating claims in respect of the services detailed in the attached Schedule.
The applicable terms are as detailed in the attached Schedule.
I have attached a second copy of this letter, including the Schedule and would
be grateful if you could sign both copies of the letter and attachment to
indicate NYNEX's acceptance of these terms and return one copy to me.
Yours sincerely
/s/ Peter Howard-Dobson
- - ------------------------------------
Peter Howard-Dobson Date: 13.11.96
Managing Director, Partner Services
For and on behalf of
Mercury Communications Limited
Agreed and accepted Date: 21.11.96
/s/ [illegible]
For and on behalf of
NYNEX CableComms Limited
and as agent and on behalf of
each of the 16 franchise companies
specified in Annex 1 to the
attached Schedule
//Mobile: (0836) 332932
//Switchboard: (0171) 528 2000
//E-Mail:
peter.howard-dobson@mercury.co.uk
Registered in England Number: 154-1957,
Registered Office: New Mercury House, 26 Red Lion Square, London WC1R 4HQ
[LOGO] A MEMBER OF THE CABLE & WIRELESS GROUP
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SCHEDULE
(Schedule to the letter dated 11 November 1996)
1. SETTLEMENT OF CLAIMS
1.1 Mercury Communications Limited ("Mercury") shall pay to NYNEX
CableComms Limited pound sterling 220,000 (Two Hundred and Twenty
Thousand Pounds) in full and final settlement of any and all sums
owing and claims due, or allegedly due, between Mercury and NYNEX
CableComms Limited and the franchise companies specified in Annex 1 to
this schedule (collectively, "NYNEX") under the Marketing and
Operations Agreements referred to in Annex 1 (and any amendment or
variation thereof), up to, and including, 31st March, 1995.
1.2 In addition, Mercury shall pay, to NYNEX CableComms Limited, pound
sterling 394,940 (Three Hundred and Ninety Four Thousand Nine Hundred
and Forty Pounds) in full and final settlement of any and all Relevant
Claims between Mercury and NYNEX, as detailed in clause 2 of this
schedule and for the periods specified in said clause 2.
1.3 For the purposes of this Schedule, a "Relevant Claim" is any actual
or potential claim, or sum owing, (whether known or not at the time of
this Schedule) which relates to any charges, payments, rebates and /
or abatements due or allegedly due either to NYNEX, or Mercury under
the Marketing and Operations Agreements referred to in Annex 1 (and
any amendment or variation thereof), in respect of the services
specified in clause 2 of this Schedule.
2. SERVICES FOR RELEVANT CLAIMS
2.1 National Operator Assistance Calls - 1st April, 1995 to 31st March, 1996
The conveyance of Calls in the year 1 April 1995 to 31 March 1996, which
were passed, by NYNEX, to Mercury, enabling NYNEX customers to access
Mercury's national operator assistance service by dialling 100 ("95/6
National Operator Assistance Calls").
2.2 International Calls - 1st July, 1995 to 31st January, 1996
The conveyance of Calls in the period 1 July 1995 to 31 January 1996, which
were passed, by NYNEX, to Mercury, for delivery to a destination outside of
the UK which is on the system of a third party ("95/6 International
Calls").
2.3 Mobile Incentive Payment - 1st January, 1996 to 30th June, 1996
The conveyance of Calls in the period 1 January 1996 to 30 June 1996, which
were passed, by NYNEX, to Mercury, for delivery to any of the dial code
ranges specified in the Mobile Incentive Agreement between Mercury and
NYNEX and dated the same date as this Schedule ("96 Mobile Incentive
Payment").
Mercury-NYNEX 11 November 1996 Main Body
Backdating Agreement Page 1 of 3
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2.4 Interest Payments
For the avoidance of doubt, the payments referred to in clauses 1.1 and 1.2
include any claim for the payment of interest in respect of the claims
specified in clause 1.1 and in respect of the services specified in clauses
2.1 to 2.3 above.
3. PAYMENTS
3.1 Timing and Method
The payment referred to in clauses 1.1 and 1.2 shall be made on or before
the Effective Date, by cheque, or in such other manner as the parties may
agree.
3.2 VAT
Where appropriate, value added tax (VAT) shall be added to the payment to
be made under this Schedule and be paid by the party responsible for making
such payment.
4. ANNOUNCEMENTS
The parties shall consult together as to the terms of any announcement
which either of them may desire, or be obliged, to make regarding this
Schedule and/or its terms and neither party shall make, or permit to be
made, by any of its directors or employees or on its behalf, any such
announcement without the other party's prior written consent, unless it is
made pursuant to a statutory, regulatory, or Stock Exchange requirement.
Where any announcement is required to be made pursuant to a statutory,
regulatory, or Stock Exchange requirement, the parties will, insofar as is
possible, consult together in accordance with the terms of this clause
prior to the issue of any announcement.
5. WARRANTIES
5.1 Each party warrants to the other that:
a) the execution and performance of this Schedule is within its objects and
powers and has been duly authorised by all necessary corporate actions; and
b) its obligations under this Schedule constitute legal, valid and binding
obligations, enforcable in accordance with the terms of this Schedule.
5.2 NYNEX CableComms Limited warrants and represents that:
a) it has been duly appointed as agent of each of the 16 franchise companies
specified in Annex 1;
b) none of the appointments as agent specified in clause 5.2(a) has been
revoked; and
Mercury-NYNEX 11 November 1996 Main Body
Backdating Agreement Page 2 of 3
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c) execution of this schedule by NYNEX CableComms Limited, for and on behalf
of each of the 16 franchise companies specified in Annex 1, shall bind
NYNEX CableComms Limited and each of the said 16 franchise companies.
5.3 Each party undertakes to the other to comply with all applicable laws and
regulations to the extent relevant to this schedule.
6. GOVERNING LAW
This schedule shall be governed by, and construed and interpreted in
accordance with, the laws of England and shall be subject to the
non-exclusive jurisdiction of the English courts.
7. GENERAL
7.1 In this Schedule
"Calls" has the same meaning as set out in the Marketing and Operations
Agreement referred to in Annex 1.
"Effective Date" means ten working days after the signature, by NYNEX, of
this Schedule.
/s/ [illegible] Date: 13.11.96
--------------------------------------------- -----------
for, and on behalf of,
Mercury Communications Limited
/s/ [illegible] Date: 21 Nov. '96
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for, and on behalf of,
NYNEX CableComms Limited
and as agent for, and on behalf of,
the 16 franchise companies specified in Annex 1
Mercury-NYNEX 11 November 1996 Main Body
Backdating Agreement Page 3 of 3
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ANNEX 1
Date of Marketing and
Franchise Operations Agreement
NYNEX CableComms Bolton 21 October 1994
NYNEX CableComms Bromley 20 August 1993
NYNEX CableComms Bury and Rochdale 21 October 1994
NYNEX CableComms Cheshire 21 October 1994
NYNEX CableComms Derby 21 October 1994
NYNEX CableComms East Lancashire 21 October 1994
NYNEX CableComms Greater Manchester 21 October 1994
NYNEX CableComms Macclesfield 21 October 1994
NYNEX CableComms Oldham and Tameside 21 October 1994
NYNEX CableComms Solent 20 August 1993
NYNEX CableComms Staffordshire 21 October 1994
NYNEX CableComms Stockport 21 October 1994
NYNEX CableComms Surrey 20 August 1993
NYNEX CableComms Sussex 20 August 1993
NYNEX CableComms Wessex 21 October 1994
NYNEX CableComms Wirral 21 October 1994
Mercury-NYNEX 11 November 1996 Annex 1
Backdating Agreement Page 1 of 1