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EXHIBIT 10.2
RESTATED CREDIT AGREEMENT
NTL (DELAWARE) INC.
AS PARENT
NTL CABLECOM HOLDING GmbH
AS SHAREHOLDER
CABLECOM GmbH
AS PRINCIPAL BORROWER
▇.▇. ▇▇▇▇▇▇ PLC
AND
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
AS ARRANGERS AND JOINT BOOK MANAGERS
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED
AS AGENT
AND
OTHERS
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CHF4,100,000,000
CREDIT AGREEMENT DATED 28 MARCH 2000
RELATING TO THE
ACQUISITION OF THE CABLECOM BUSINESS
AS AMENDED BY AN AMENDMENT AGREEMENT DATED
16 MAY 2000 AND AS AMENDED AND/OR WAIVED
PURSUANT TO LETTERS DATED 25 JULY 2000
19 DECEMBER 2000, 4 MAY 2001, 26 FEBRUARY 2002,
8 MARCH 2002, 28 MARCH 2002, 25 APRIL 2002 AND 25
APRIL 2002 AND AS AMENDED AND RESTATED
PURSUANT TO A RESTATEMENT AMENDMENT
AGREEMENT DATED 30 APRIL 2002
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CONTENTS
Clause Page
1. Definitions And Interpretation.........................................1
2. The Facilities........................................................31
3. Utilisation Of The Original Term Facility.............................32
4. Interest Periods For Original Term Advances...........................32
5. Payment And Calculation Of Interest On Original Term Advances.........33
6. Utilisation Of The Revolving Facility.................................34
7. Payment And Calculation Of Interest On Revolving Advances.............36
8. Market Disruption And Alternative Interest Rates......................37
9. Notification..........................................................38
10. Repayment Of The Original Term Facility...............................38
11. Repayment Of The Revolving Facility...................................38
12. Extension Of The Facility.............................................39
13. Cancellation And Prepayment...........................................39
14. Mandatory Prepayment..................................................40
15. Taxes.................................................................43
16. Tax Receipts..........................................................45
17. Increased Costs.......................................................46
18. Illegality............................................................47
19. Mitigation............................................................48
20. Representations.......................................................48
21. Financial Information.................................................56
22. Financial Condition...................................................61
23. Covenants.............................................................65
24. Events Of Default.....................................................74
25. Guarantee And Indemnity...............................................80
26. Commitment Commission And Fees........................................84
27. Costs And Expenses....................................................85
28. Default Interest And Break Costs......................................86
29. Borrowers' Indemnities................................................87
30. Currency Of Account And Payment.......................................87
31. Payments..............................................................88
32. Set-Off...............................................................91
37
33. Sharing...............................................................91
34. The Agent, The Arrangers And The Banks................................94
35. Assignments And Transfers............................................100
36. Additional Borrowers.................................................103
37. Additional Guarantors................................................104
38. Permitted Facilities Provider........................................104
39. Calculations And Evidence Of Debt....................................105
40. Remedies And Waivers, Partial Invalidity.............................106
41. Notices..............................................................106
42. Counterparts.........................................................107
43. Amendments...........................................................107
44. Governing Law........................................................109
45. Jurisdiction.........................................................109
Schedule 1 THE ORIGINAL PARTIES................................111
Part A The Obligors........................................111
Part B The Operating Companies.............................112
Part C The Banks...........................................113
Schedule 2 FORM OF TRANSFER CERTIFICATE........................115
Schedule 3 CONDITIONS PRECEDENT................................118
Schedule 4 NOTICE OF DRAWDOWN..................................122
Schedule 5 FORM OF COMPLIANCE CERTIFICATE......................123
Schedule 6 FORM OF BORROWER ACCESSION MEMORANDUM...............124
Schedule 7 FORM OF GUARANTOR ACCESSION MEMORANDUM..............126
Schedule 8 ADDITIONAL CONDITIONS PRECEDENT.....................128
Schedule 9 FORM OF RESIGNATION NOTICE..........................130
Schedule 10 MANDATORY COSTS.....................................131
Schedule 11 CONFIDENTIALITY UNDERTAKING.........................133
Schedule 12 EXISTING MORTGAGES..................................137
Schedule 13 FORM OF DEED OF ACCESSION...........................138
THIS AGREEMENT made on 28 March 2000, as amended by an amendment agreement
dated 16 May 2000 and as amended and/or waived pursuant to letters dated 25
July 2000, 19 December 2000, 4 May 2001, 26 February 2002, 8 March 2002, 28
March 2002, 25 April 2002 and 25 April 2002 and as amended and restated
pursuant to the Restatement Amendment Agreement dated 30 April 2002 is
BETWEEN
(1) NTL (DELAWARE), INC. (formerly NTL Incorporated) a company registered
in Delaware, of ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ (the
"Parent");
(2) NTL CABLECOM HOLDING GmbH (the "Shareholder");
(3) CABLECOM GmbH (formerly Cablecom (Ostschweiz) AG) (the "Principal
Borrower");
(4) THE COMPANIES listed in Part A of Schedule 1 as original borrowers
(The Original Parties) in their capacity as borrowers hereunder
(together with the Principal Borrower, the "Original Borrowers");
(5) THE COMPANIES listed in Part A of Schedule 1 as original guarantors
(The Original Parties) in their capacity as guarantors hereunder
(together with the Shareholder and the Principal Borrower, the
"Original Guarantors");
(6) ▇.▇. ▇▇▇▇▇▇ PLC (formerly Chase Manhattan PLC) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SENIOR FUNDING, INC. as arrangers of the Facilities (the
"Arrangers");
(7) ▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED (formerly Chase Manhattan International
Limited) as agent for the Banks (the "Agent"); and
(8) THE BANKS (as defined below).
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"A Debt" means the rights and obligations of the lender under the
First Loan Agreement, such rights being subordinated by the
Subordination Deed and pledged by the Subordinated NTL CV1 Debt
Pledge.
"Accession Memorandum" means a Borrower Accession Memorandum or a
Guarantor Accession Memorandum.
"Accountants' Letter" means the letter from Ernst & Young in the
agreed form, addressed to and capable of being relied upon by the
Finance Parties, confirming that based upon projections provided by
the Parent, which have not been audited by Ernst & Young, each
Original Borrower will have:
(a) projected income (including, if relevant, dividend receipts)
sufficient to enable it to service, in full, all its
projected indebtedness under the Facilities; and
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(b) sufficient taxable income to ensure full tax deductibility
on all projected interest payments to be made by it under
the Facilities,
or, to the extent either (a) or (b) above will not be satisfied based
upon such projections, identifying any relevant shortfalls and
indicating how the Original Borrowers intend to address those
shortfalls.
"Acquisition" means the purchase by the Parent (or its directly
wholly owned subsidiary) and the Principal Borrower of the Cablecom
Business.
"Acquisition Agreement" means the transaction agreement dated as of
12 December 1999 between the Parent, the Vendor and the Vendor's
shareholders, setting out the terms of the Acquisition, together with
all schedules, exhibits and attachments to such agreement.
"Acquisition Agreement Assignment" means the assignment agreement
entered into by the Shareholder and the Principal Borrower, assigning
their respective rights under the Acquisition Documents to the Agent
(on behalf of the Finance Parties) as security for the obligations of
the Obligors under the Finance Documents and/or to the Permitted
Facilities Provider as security for the obligations of any members of
the Group under any documentation relating to the Secured Permitted
Facilities.
"Acquisition Date" means the date on which the Acquisition is
completed in accordance with clause 3.3 of the Acquisition Agreement.
"Acquisition Documents" means the Acquisition Agreement and all
documents executed pursuant thereto on or before the Acquisition
Date, the assignment agreements between certain members of the NTL
Inc. Holding Group and the Principal Borrower (assigning certain
rights of the Parent under the Acquisition Agreement to the
Shareholder and the Principal Borrower) and each other document (if
any) relating to the transactions contemplated in the Acquisition
Agreement and identified by the Agent and the Principal Borrower in
writing as an Acquisition Document.
"Acquisition Recovery Proceeds" means the proceeds of any payment
made by the Vendor, the Vendor's shareholders or the Vendor's (or the
Vendor's shareholders') affiliates, employees, officers or advisers
under or in relation to the Acquisition Documents including (without
limitation) the proceeds of any payment in respect of:
(a) a claim for breach of contract or warranty,
misrepresentation or a claim under an indemnity; or
(b) an adjustment to the Net Purchase Price (as defined in the
Acquisition Agreement) in accordance with either an
adjustment to the net assets of the Cablecom Business and/or
the number of subscribers comprised in the Cablecom
Business, in accordance with clause 2.2.5 and clause 2.2.6
respectively of the Acquisition Agreement;
(c) clause 6.2.1(b) of the Acquisition Agreement, relating to
the number of subscribers of the Cablecom Business; or
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(d) clause 4.7 of the Acquisition Agreement, relating to a
payment out of an escrow amount into which dividends of the
Cablecom Business have been paid.
"Acquisition Remedy" means the application of Acquisition Recovery
Proceeds towards:
(a) the discharge of a liability, charge or claim made upon any
member of the NTL Inc. Holding Group or the Group, where the
Vendor or the Vendor's shareholders are obliged under the
Acquisition Documents to indemnify or otherwise reimburse
the relevant member of the NTL Inc. Holding Group or the
Group for such a liability, charge or claim; or
(b) reimbursing a member of the NTL Inc. Holding Group or the
Group for monies disbursed in connection with discharging
any liability, charge or claim referred to in paragraph (a)
above; or
(c) replacing, reinstating and/or repairing assets of the
Cablecom Business where the loss of, or damage to, such
assets gave rise to a claim for breach of contract or
warranty, misrepresentation or a claim under an indemnity
under the Acquisition Documents.
"Additional Borrower" means any company which has become an
Additional Borrower in accordance with Clause 36 (Additional
Borrowers).
"Additional Guarantor" means any company which has become an
Additional Guarantor in accordance with Clause 37 (Additional
Guarantors).
"Additional Mergers" means mergers of the Principal Borrower with
other members of the Restricted Group (and in the case of
implementation of the Subsidiary Overindebtedness Solution, the
merger of Cablecom Business AG with Cablecom Engineering AG so that
Cablecom Engineering AG is the surviving entity, and immediately
thereafter the merger of Cablecom Engineering AG with the Principal
Borrower) where, in respect of each such merger:
(a) the Principal Borrower is the surviving entity, having all
the rights and obligations which the merged entity and the
Principal Borrower itself had immediately prior to such a
merger taking effect; and
(b) the merger is effected pursuant to documentation, and in
accordance with any Swiss legal or procedural requirements,
approved or deemed applicable by the Agent's Swiss counsel.
"Additional Obligor" means an Additional Borrower or Additional
Guarantor.
"Additional Subordinated Debt" means any loan by the Shareholder or
any member of the NTL Inc. Holding Group to a member of the
Restricted Group, where:
(a) the Agent has been given at least five Business Days prior
written notice that such a loan is to be made;
(b) the lender's rights under such a loan have been subordinated
by an agreement or deed approved by the Agent; and
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(c) if either (i) requested by the Agent (acting reasonably) or
(ii) the amount of such a loan, when aggregated with the
amount of all other Additional Subordinated Debt owed by
members of the Restricted Group at the time such a loan is
made and in respect of which the relevant lenders' rights
have not been assigned to the Agent (or the Finance Parties)
and/or the Permitted Facilities Provider is equal to or
greater than CHF5,000,000, the lender's rights under such a
loan have been assigned to the Agent (or the Finance
Parties) as security for the obligations of the Obligors
under the Finance Documents and to the Permitted Facilities
Provider as security for the obligations of any members of
the Group under any documentation relating to the Secured
Permitted Facilities by an agreement or deed approved by the
Agent.
"Advance" means a Revolving Advance or an Original Term Advance.
"ARPU" means average revenue per user.
"Annualised EBITDA" has the meaning given to it in Clause 22
(Financial Condition).
"Authorised Signatory" means, in relation to the Parent, NTL SPV LLC
(as the general partner of NTL CV1), an Obligor or proposed Obligor,
any person who is duly authorised (in such manner as may be
reasonably acceptable to the Agent) to act on behalf of such person
and in respect of whom the Agent has received a certificate signed by
a director or another Authorised Signatory of the Parent, NTL SPV LLC
or, as the case may be, such Obligor or proposed Obligor setting out
the name and signature of such person and confirming such person's
authority to act.
"Available Revolving Commitment" means, in relation to a Bank at any
time and save as otherwise provided herein, its Revolving Commitment
at such time less its share of the Revolving Advances which are then
outstanding, provided that such amount shall not be less than zero.
"Available Revolving Facility" means, at any time but subject always
to the Facilities Cap, the aggregate amount of the Available
Revolving Commitments adjusted, in the case of any proposed drawdown,
so as to take into account:
(a) any reduction in the Revolving Commitment of a Bank pursuant
to the terms hereof;
(b) any Revolving Advance which, pursuant to any other drawdown,
is to be made;
(c) any Revolving Advance which is due to be repaid,
on or before the proposed drawdown date.
"B Debt" means the rights and obligations of the lender under the
Second Loan Agreement.
"Bank" means any financial institution:
(a) named in Part C of Schedule 1 (The Original Parties); or
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(b) which has become a party hereto in accordance with Clause
35.4 (Assignments by Banks) or Clause 35.5 (Transfers by
Banks),
and which has not ceased to be a party hereto in accordance with the
terms hereof.
"Borrowers" means each of the Original Borrowers and each Additional
Borrower, provided that such company has not been released from its
rights and obligations hereunder in accordance with Clause 36.3
(Resignation of a Borrower).
"Borrower Accession Memorandum" means a memorandum substantially in
the form set out in Schedule 6 (Form of Borrower Accession
Memorandum).
"Budget" means a budget delivered by the Principal Borrower to the
Agent pursuant to Clause 21.6 (Budgets).
"Business Day" means a day (other than a Saturday or Sunday) which is
not a public holiday and on which banks generally are open for
business in London and Zurich.
"Business Plan" means prior to delivery of the business plan under
Clause 21.9 (Business Plan) the business plan delivered by the
Principal Borrower in December 2001 including profit and loss
accounts, balance sheets and cash flow projections as amended for the
financial year commencing on 1 January 2002 by the budget delivered
by the Principal Borrower on or about the Restatement Amendment
Effective Date, relating to the Restricted Group, and following
delivery of the business plan under Clause 21.9 (Business Plan), the
business plan delivered thereunder.
"Business Reorganisation" means the reorganisation of the Restricted
Group to potentially (inter alia) reduce the total number of legal
entities comprising the Restricted Group (as described in the
analysis prepared by the Principal Borrower and delivered as a
condition precedent to the effectiveness of the Restatement Amendment
Agreement).
"BV1" means Nogenta Swiss Acquisition Holding 1 B.V., a limited
liability company incorporated in The Netherlands and (following the
completion of the Hivedown) being a wholly owned subsidiary of NTL
CV1.
"Cablecom Business" means:
(a) the Principal Borrower;
(b) the Cablecom Subsidiaries and the minority interests of the
Cablecom Subsidiaries;
(c) the other assets and liabilities of the Vendor acquired by,
or (as the case may be) transferred to, the Principal
Borrower, CC AG or, as the case may be, the Cablecom
Subsidiaries pursuant to the Acquisition Documents and the
Hivedown; and
(d) prior to the completion of the Initial Mergers, CC AG and
its subsidiaries.
"Cablecom Refinancing" means the refinancing (whether by way of
strategic sale, private equity investment, financial investor
investment or otherwise) necessary to ensure that the Loan is repaid
in full on or prior to the Termination Date.
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"Cablecom Subsidiaries" means the direct and indirect subsidiaries of
the Vendor acquired by the Principal Borrower pursuant to the
Acquisition Documents and the Hivedown.
"CC AG" means Cablecom AG.
"C Debt" means the rights and obligations of the lender under the
Third Loan Agreement, such rights being subordinated by the
Subordination Deed and pledged by the Subordinated NTL CV1 Debt
Pledge.
"Commitment" means, in relation to a Bank at any time, the aggregate
of its Term Commitment and its Revolving Commitment.
"Compliance Certificate" means a certificate substantially in the
form set out in Schedule 5 (Form of Compliance Certificate).
"Confidentiality Undertaking" means the confidentiality undertaking
set out in Schedule 11 (Confidentiality Undertaking) or such other
form of confidentiality undertaking as may be agreed between the
Parent, the Principal Borrower and the Agent.
"Conversion Subsidiaries" means the members of the Restricted Group
identified in the Reorganisation Summary as being entities converted
into Swiss limited liability companies ("GmbH"s) as part of the
Reorganisation.
"Debtors" means NTL Incorporated, NTL (Delaware), Inc., NTL
Communications Corp., Diamond Cable Communications Ltd. and Diamond
Holdings Limited, each as a debtor in possession under proceedings
commenced under Chapter 11 of Title 11 of the United States Code.
"Deed of Accession" means a deed substantially in the form set out in
Schedule 13 (Form of Deed of Accession).
"Dispute" means any dispute referred to in Clause 45 (Jurisdiction).
"Disclosure Letter" means the letter, in the agreed form, dated on or
before the date this Agreement was originally entered into from the
Principal Borrower to the Agent (on behalf of the Finance Parties)
setting out various matters to be excluded from certain
representations and covenants in this Agreement.
"EBITDA" has the meaning given to it in Clause 22 (Financial
Condition).
"EMU" means Economic and Monetary Union as contemplated in the Treaty
on European Union.
"EMU Legislation" means legislative measures of the European Union
for the introduction of, changeover to or operation of the euro in
one or more member states, being in part legislative measures to
implement EMU.
"Encumbrance" means (a) a mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person, (b) any
arrangement under which money or claims to, or the benefit of, a bank
or other account may be applied, set off or made subject to a
combination of accounts so as to effect discharge of any sum owed or
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payable to any person or (c) any other type of preferential
arrangement (including any title transfer and retention arrangement)
having a similar effect.
"Environmental Claim" means any claim, proceeding or investigation by
any person pursuant to any Environmental Law.
"Environmental Law" means any applicable law in any jurisdiction in
which any member of the Restricted Group conducts business which
relates to the pollution or protection of the environment or harm to
or the protection of human health or the health of animals or plants.
"Environmental Permits" means any permit, licence, consent, approval
and other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of
the business of any member of the Restricted Group conducted on or
from the properties owned or used by the relevant member of the
Restricted Group.
"Escrow Account" means an escrow account, bearing interest at a
commercially reasonable rate in relation to the given circumstances,
held with the Agent (or any financial institution acceptable to the
Agent) in the name of the Principal Borrower which is opened after
the date hereof (as the same may be redesignated, substituted or
replaced from time to time) which is pledged, charged or assigned to
the Agent (or the Finance Parties) pursuant to a Security Document to
secure all amounts due under the Finance Documents and into which
certain monies are paid pursuant to Clause 14 (Mandatory Prepayment).
"Event of Default" means any circumstance described as such in Clause
24 (Events of Default).
"Existing Indebtedness" means the indebtedness of the Cablecom
Business outstanding on the Acquisition Date.
"Existing Mortgages" means the Swiss law mortgages ("Hypotheken") set
out in Schedule 12 (Existing Mortgages) granted by certain members of
the Restricted Group and relating only to those assets identified in
Schedule 12 (Existing Mortgages) (but not necessarily with the
mortgagee and maturity referred to therein) and, where any such
mortgage is redeemed, any new mortgage granted over the same asset as
the redeemed mortgage and securing an amount of indebtedness no
greater than the redeemed mortgage.
"Facilities" means the Original Term Facility and the Revolving
Facility.
"Facilities Cap" means, save as otherwise provided herein, the
restriction on the maximum aggregate principal amount of the
Facilities which may be outstanding at any time, being an amount of
CHF 3,755,000,000.
"Facility Office" means, in relation to the Agent, the office
identified with its signature below or such other office as it may
select by notice and, in relation to any Bank, the office notified by
it to the Agent in writing prior to the date hereof (or, in the case
of a Transferee, at the end of the Transfer Certificate to which it
is a party as Transferee) or such other office as it may from time to
time select by notice to the Agent.
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"Finance Documents" means this Agreement, any Borrower Accession
Memorandum, any Guarantor Accession Memorandum, any fee letters
delivered pursuant to Clause 26 (Commitment Commission and Fees), the
Security Documents, the Hedging Agreements, the Subordination Deed,
the Second Subordination Deed (and any other subordination agreements
or deeds executed in relation to any Additional Subordinated Debt)
and any other document designated as such by agreement between the
Agent and the Principal Borrower.
"Finance Parties" means the Agent, the Arrangers, the Banks and any
Hedge Counterparties.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) Indebtedness for Borrowed Money;
(b) any documentary or standby letter of credit facility or
performance bond facility;
(c) any interest rate swap, currency swap, forward foreign
exchange transaction, cap, floor, collar or option
transaction or any other treasury transaction or any
combination thereof or any other transaction entered into in
connection with protection against or benefit from
fluctuation in any rate or price (and the amount of the
Financial Indebtedness in relation to any such transaction
shall be calculated by reference to the ▇▇▇▇-to-market
valuation of such transaction at the relevant time); and
(d) (without double counting) any guarantee or indemnity for any
of the items referred to in paragraphs (a) to (c) above.
"Financial Quarter" has the meaning given to it in Clause 22
(Financial Condition).
"First Loan Agreement" means the loan agreement, in the agreed form,
entered into between NTL SPV Inc. as lender and the Principal
Borrower as borrower, setting out the terms on which the indebtedness
owed by the Principal Borrower in respect of the First Sale and
Purchase Agreement remains outstanding.
"First Sale and Purchase Agreement" means the share sale and purchase
agreement, in the agreed form, entered into in relation to the
Hivedown, between NTL SPV Inc. as seller and the Principal Borrower
as buyer of Cablecom (Zentralschweiz) AG, Cablecome (Bern) AG,
Cablecom Signal Olten AG and Kilchenmann Holding AG, the
consideration payable by the Principal Borrower being represented by
the A Debt.
"Freefall Bankruptcy" means any filing or commencement of proceedings
under the United States Bankruptcy Code, 11 U.S.C. ss.ss.101 et seq,
which has not been approved in advance by the representatives of the
unofficial bondholder steering committee holding bonds issued by the
Parent or which encompasses (other than as agreed by an Instructing
Group) (whether by way of a filing of such company or the application
for an injunction in connection with such company) any member of the
NTL Inc. Group or the NTL Inc. Holding Group (other than, in either
case, the Debtors) or any member of the Group.
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"GmbH Share Pledge" means the share pledge agreement dated 20
December 2000 made between the Shareholder, the Principal Borrower,
Cablecom (Suisse Romande) SA, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as pledgors and The
Chase Manhattan Bank (now known as ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank), ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Senior Funding, Inc. and the Agent and others as pledgees,
relating to the pledge of all the shares in the Conversion
Subsidiaries.
"Group" means the Shareholder and its subsidiaries from time to time.
"Group Structure Chart" means the group structure chart in agreed
form:
(a) showing the NTL Inc. Holding Group;
(b) showing all members of the Group;
(c) showing any person in which any Group member has an interest
in the issued share capital or equivalent ownership interest
of such person;
(d) showing the jurisdiction of incorporation or establishment
of each person within paragraph (a), paragraph (b) or
paragraph (c) above;
(e) showing all Intra-Group Loans existing as at the Acquisition
Date and the Subordinated Funding;
(f) confirming that, on the Acquisition Date, all members of the
NTL Inc. Holding Group (other than the Parent) are
wholly-owned subsidiaries of the Parent; and
(g) confirming that all members of the Restricted Group are
wholly-owned subsidiaries of the Principal Borrower (or
specifying the percentage shareholdings of any members of
the Restricted Group which are not such wholly-owned
subsidiaries).
"Guarantors" means each of the Original Guarantors and each
Additional Guarantor, provided that such company has not been
released from its rights and obligations hereunder in accordance with
Clause 37.3 (Resignation of a Guarantor).
"Guarantor Accession Memorandum" means a memorandum substantially in
the form set out in Schedule 7 (Form of Guarantor Accession
Memorandum).
"Hedge Counterparty" means a Bank or an affiliate of a Bank who (a)
is, at the time it enters into a Hedging Agreement rated at least A
by Standard and Poor's Rating Corporation and A2 by ▇▇▇▇▇'▇ Investors
Services, Inc. and (b) has agreed to enter into a Hedging Agreement.
"Hedging Agreements" means each of the agreements entered into or to
be entered into between certain Borrowers and Hedge Counterparties
for the purpose of hedging interest rate liabilities in accordance
with Clause 23.26 (Hedging).
"Hedging Bank" means a Bank who either is, or becomes, a Hedge
Counterparty or who has an affiliate which is, or becomes, a Hedge
Counterparty.
"Hedging Liabilities" means all present and future sums and actual or
contingent liabilities and obligations payable, owing, due or
incurred by any Borrower to any Hedge
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Counterparty pursuant to the terms of any Hedging Agreement, as
determined by the relevant Hedge Counterparty (acting reasonably) and
agreed by the Agent.
"Hivedown" means, in respect of that part of the Cablecom Business
acquired by NTL SPV Inc. the transfer of such in accordance with the
structure chart and step plan set out in schedule 4 to the
Accountants' Letter, so that such part of the Cablecom Business is
(at the end of the series of transactions set out therein) owned by
the Shareholder and the Principal Borrower.
"Hi-Speed Internet Subscribers" has the meaning given to it in Clause
22 (Financial Condition).
"Indebtedness for Borrowed Money" means any indebtedness for or in
respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(d) any amount raised pursuant to any issue of shares which are
expressed to be redeemable (other than shares redeemable
after 30 September 2006);
(e) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with generally
accepted accounting principles in the relevant jurisdiction,
be treated as a finance or capital lease;
(f) the amount of any liability in respect of any advance or
deferred purchase agreement if the primary reason for
entering into such agreement is to raise finance;
(g) receivables sold or discounted (other than on a non-recourse
basis);
(h) any agreement or option to re-acquire an asset if the
primary reason for entering into such agreement or option is
to raise finance;
(i) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial
effect of a borrowing; and
(j) (without double counting) the amount of any liability in
respect of any guarantee or indemnity for any of the items
referred to in paragraphs (a) to (i) above.
"Information Memorandum" means the document concerning the Cablecom
Business and the Parent which, at the request and on behalf of the
Parent, has been prepared in relation to this transaction, approved
by the Parent and distributed by the Arrangers to selected banks
during February 2000.
"Initial Mergers" means the mergers of the Principal Borrower with:
(a) Kilchenmann Holding AG after Kilchenmann Kabelfernsehen AG
is merged into it;
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(b) Cablecom (Zentralschweiz) AG, Cablecom (Mittelland) AG,
Cablecom (Bern) AG, and Cablecom Signal Olten AG; and
(c) thereafter, with CC AG,
in each case (i) with the Principal Borrower being the surviving
entity, having all the rights and obligations which each of the above
merged entities and the Principal Borrower itself had immediately
prior to such mergers taking effect and (ii) pursuant to
documentation, and in accordance with any Swiss legal or procedural
requirements, approved or deemed applicable by the Agent's Swiss
counsel.
"Initial Share Pledges" means the Swiss law pledges over the shares
of certain members of the Restricted Group (as agreed between the
Agent and the Principal Borrower), such pledges being granted in
favour of the Finance Parties as security for the obligations of the
Obligors under the Finance Documents and/or the Permitted Facilities
Provider as security for the obligations of any members of the Group
under any documentation relating to the Secured Permitted Facilities.
"Instructing Group" means:
(a) before any Advances have been made, a Bank or Banks whose
Commitments amount in aggregate to more than sixty-six and
two thirds per cent. of the Total Commitments; and
(b) thereafter, a Bank or Banks to whom in aggregate more than
sixty-six and two thirds per cent. of the Loan is (or,
immediately prior to its repayment, was then) owed.
"Intellectual Property" means all patents, trade marks, service
marks, designs, business names, copyrights, design rights, moral
rights, inventions, confidential information, knowhow and other
intellectual property rights and interests, whether registered or
unregistered, and the benefit of all licences, applications and
rights to use such intellectual property now or hereafter belonging
to any member of the Group.
"Interest Account" means the bank account in the name of the
Principal Borrower, held with ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, London branch,
which is secured pursuant to the Security Over Cash Agreement.
"Interest Period" means, save as otherwise provided herein:
(a) any of those periods mentioned in Clause 4.1 (Original Term
Advance Interest Periods); and
(b) in relation to an Unpaid Sum, any of those periods mentioned
in Clause 28.1 (Default Interest Periods).
"Intra-Group Loan Assignments" means the assignment agreements
entered into by:
(a) the Principal Borrower, in respect of the Intra-Group Loan
owed to it by Cablecom (Suisse Romande) SA and Cablecom
Engineering SA following the completion of paragraph (a) of
the definition of the Reorganisation; and
-11-
(b) any Obligor, in respect of an Intra-Group Loan by such an
Obligor to another Obligor,
in each case in favour of the Agent (or the Finance Parties) as
security for the obligations of the Obligors under the Finance
Documents and/or the Permitted Facilities Provider as security for
the obligations of any members of the Group under any documentation
relating to the Secured Permitted Facilities.
"Intra-Group Loans" means any loan (a) between the Shareholder and
members of the Restricted Group and (b) between members of the
Restricted Group.
"Key Sites" means the digital master headend sites located at
Zurich-▇▇▇▇▇▇▇▇, Winterthur and St. Gallen.
"Legal Opinions" means the legal opinions delivered to the Agent
pursuant to the Restatement Amendment Agreement, Clause 2.3
(Conditions Precedent), Clause 36.2 (Borrower Conditions Precedent)
or, as the case may be, Clause 37.2 (Guarantor Conditions Precedent).
"Letters of Commitment" means the letters of commitment between the
Principal Borrower and each of the Overindebted Subsidiaries
(excluding Cablecom Kabelkommunikation GmbH and Cablecom Business AG)
and between Cablecom Engineering AG and Cablecom Business AG dated on
or about the Restatement Amendment Effective Date pursuant to which
the Principal Borrower and (in the case of Cablecom Business AG,
Cablecom Engineering AG) agrees to meet the outstanding liabilities
of each of the Overindebted Subsidiaries (excluding Cablecom
Kabelkommunikation GmbH) as they fall due until certain conditions
are met including, inter alia, the resolution of the over
indebtedness of the relevant Overindebted Subsidiary in accordance
with the Subsidiary Overindebtedness Solution.
"LIBOR" means, in relation to any amount to be advanced to or owing
by an Obligor under the Finance Documents on which interest for a
given period is to accrue:
(a) the percentage rate per annum equal to the offered quotation
which appears on the page of the Telerate Screen which
displays the British Bankers Association Interest Settlement
Rate for Swiss Francs (being currently "3750") or the
currency of any Unpaid Sum for such period as of 11.00 a.m.
on the Quotation Date for such period or, if such page or
such service shall cease to be available, such other page or
such other service for the purpose of displaying the British
Bankers Association Interest Settlement Rate for Swiss
Francs (or the currency of such Unpaid Sum) as the Agent,
after consultation with the Banks and the Principal
Borrower, shall select; or
(b) if no quotation for Swiss Francs (or the currency of such
Unpaid Sum) and the relevant period is displayed under (a)
above and the Agent has not selected an alternative service
on which a quotation is displayed, the arithmetic mean
(rounded upwards to five decimal places) of the rates (as
notified to the Agent) at which each of the Reference Banks
was offering to prime banks in the London interbank market
deposits in Swiss Francs (or the currency of such
-12-
Unpaid Sum) for such period as of 11.00 a.m. on the
Quotation Date for such period.
"Licences" means:
(a) telecommunication licences, under the Telecommunication Act;
(b) broadcasting and transmission licences
("Weiterverbreitungs-Konzessionen"), under the Radio and
Television Act; and
(c) Telecommunication Act permits.
"Liquidity Headroom" has the meaning given to it in Clause 22
(Financial Condition).
"Loan" means, at any time, the aggregate of the Original Term Loan
and the Revolving Loan.
"Mandatory Cost Rate" means the rate determined in accordance with
Schedule 10 (Mandatory Costs).
"Margin" means, for all Advances, the percentage rate per annum
determined in accordance with Clause 5.3 (Margin Ratchet) to Clause
5.5 (Default Margin).
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise)
of the Restricted Group taken as a whole or (b) the ability of an
Obligor to perform its material obligations under the Finance
Documents to which it is a party.
"Material Commercial Contracts" means any agreements, contracts or
licences entered into or granted to any member of the Restricted
Group which are reasonably likely to be material to the business or
prospects of the Restricted Group taken as a whole.
"Mortgages" means the Swiss law mortgages, in the agreed form, over
the Key Sites, to be granted by certain Obligors in favour of the
Finance Parties as security for the obligations of the Obligors under
the Finance Documents and/or the Permitted Facilities Provider as
security for the obligations of any members of the Group under any
documentation relating to the Secured Permitted Facilities.
"Notice of Drawdown" means a notice substantially in the form set out
in Schedule 4 (Notice of Drawdown).
"Notice Period" means the period commencing ten Business Days before
the last day of the current Interest Period or Term of an existing
Advance and ending 10.00 a.m. three Business Days before the last day
of the current Interest Period or Term of an existing Advance or, as
the case may be, the period commencing ten Business Days before the
proposed date for the making of an Advance and ending 10.00 a.m. two
Business Days before the proposed date for the making of the Advance.
"Notification Time" means 5.30 p.m. on the day two Business Days
before the first day of an Interest Period or Term.
-13-
"NTL CV1" means Cable Connect Switzerland 1 C.V., a limited
partnership ("Commanditaive Vennoolschap") established under Dutch
law between NTL SPV Inc. as a limited partner and NTL SPV LLC as a
general partner.
"NTL Inc." means NTL Incorporated, a company incorporated in Delaware
of ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ which owns 100 per
cent. of the issued share capital of the Parent.
"NTL Inc. Group" means NTL Inc. and each of its subsidiaries (other
than any member of the NTL Inc. Holding Group (other than the Parent)
or the Group).
"NTL Inc. Holding Group" means NTL Inc. and the Shareholder's other
holding companies.
"NTL Notes" means, to the extent such have been issued in either
domestic or international capital markets, the bonds, notes or
similar public debt instruments issued by members of the NTL Inc.
Group or, as the case may be, members of the NTL Inc. Holding Group
(in each case where such members of the NTL Inc. Group or NTL Inc.
Holding Group are incorporated in any state of the United States of
America) and outstanding at or at any time after the date on which
this Agreement was originally entered into.
"NTL Recapitalisation" means the proposed restructuring of the
outstanding indebtedness, preferred stock and common stock of NTL
Inc., the Parent, NTL Communications Corporation and Diamond Cable
Communications Limited.
"NTL Recapitalisation Effective Date" means the date upon which the
Debtors' consolidated plan of reorganisation is substantially
consummated following confirmation of such plan pursuant to a final
order of the United States Bankruptcy Court for the Southern District
of New York, or such other court having jurisdiction over the
Debtors' Chapter 11 proceedings.
"NTL SPV Inc." means NTL Switzerland SPV, Inc., a Delaware company,
being a wholly owned subsidiary of the Parent.
"NTL SPV LLC" means NTL Switzerland Holdings SPV LLC, a Delaware
limited liability corporation, being a wholly owned subsidiary of NTL
SPV Inc.
"Obligors" means the Borrowers and the Guarantors.
"Operating Companies" means the members of the Restricted Group named
in Part B of Schedule 1 (The Original Parties).
"Original Financial Statements" means:
(a) in relation to the Cablecom Business, the audited pro-forma
combined financial statements of the companies which
constitute the Cablecom Business on the Acquisition Date,
for the financial year ended 31 December 1999 based on the
Vendor's audited consolidated financial statements for its
financial year ended 31 December 1999;
-14-
(b) in relation to each Obligor (other than the Shareholder),
its audited financial statements for its financial year
ended 31 December 1998;
(c) in relation to each Obligor (other than the Shareholder),
its audited balance sheet as at 31 December 1999; and
(d) in relation to any Additional Obligor, its audited financial
statements delivered pursuant to Schedule 8 (Additional
Conditions Precedent).
"Original Obligors" means the Original Borrowers and the Original
Guarantors.
"Original Term Advance" means an advance (as from time to time
consolidated, divided or reduced by repayment) made by the Banks
under the Original Term Facility.
"Original Term Facility" means the Swiss Franc term loan facility
granted to the Borrowers in this Agreement.
"Original Term Loan" means, at any time, the aggregate principal
amount of outstanding Original Term Advances at such time.
"Overindebted Subsidiaries" means each of Cablecom Business AG,
Cablecom Engineering AG, Cablecom Kabelkommunikation GmbH, Cablecom
Management GmbH, Rediffusion AG, Swiss Online AG and Urbanet SA.
"Participating Member State" means each member state of the European
Union which has adopted the euro as its lawful currency at the
relevant time.
"Performance Update Report" means the report to be prepared by the
Reporting Accountants and delivered to the Agent on or prior to 31
January 2003 covering (inter alia) (i) the actual performance of the
Restricted Group during the financial year ending on 31 December 2002
against the projected performance of the Restricted Group as set out
in the Business Plan; and (ii) analysing the Business Plan delivered
in compliance with Clause 21.9 (Business Plan).
"Permitted Acquisitions" means any of the following:
(a) acquisitions comprising the purchase, subscription for, or
other acquisition of any new shares in:
(i) any Obligor by any other Obligor, where (a) such
acquiring Obligor is and remains the immediate
holding company of the Obligor issuing the new
shares and (b) such shares are made subject to a
Share Pledge; or
(ii) any member of the Restricted Group by another
member of the Restricted Group which is not an
Obligor;
(b) acquisitions comprising the acquisition of any assets,
revenues or, licences of, or the business or any interest
therein of:
(i) any member of the Restricted Group who is not an
Obligor by another member of the Restricted Group
who is not an Obligor; or
-15-
(ii) any Obligor by another Obligor, where the disposal
of such an asset, revenue, licence or business is a
Permitted Disposal under paragraph (e) of the
definition thereof;
(c) acquisitions of any shares, assets, revenues or licences of,
or the business or any interest therein of, a member of the
Restricted Group by another member of the Restricted Group,
where such an acquisition is made to effect the
Reorganisation or an Additional Merger or any acquisition of
an interest in real property by a member of the Restricted
Group from another member of the Restricted Group where the
disposal of such an interest is a Permitted Disposal under
paragraph (e) of the definition thereof; and
(d) acquisitions of equipment contemplated in the Business Plan
and falling within the definition of Capital Expenditure.
"Permitted Disposals" means any disposal:
(a) made in the ordinary and usual course of business;
(b) on arm's length commercial terms of an asset by a member of
the Restricted Group who is not an Obligor;
(c) for cash on arm's length commercial terms of any surplus or
obsolete assets no longer required for the efficient
operation of the business of the Restricted Group;
(d) of cash, where such a disposal is not otherwise prohibited
by the Finance Documents;
(e) by an Obligor to another Obligor, provided that the relevant
assets are not subject to an Encumbrance created by or
pursuant to a Security Document;
(f) of an interest in real property by way of a lease or licence
granted by a member of the Restricted Group to another
member of the Restricted Group on arm's length commercial
terms;
(g) by a member of the Restricted Group who is not an Obligor to
another member of the Restricted Group who is not an
Obligor; and
(h) necessary to effect the Reorganisation or an Additional
Merger.
"Permitted Distributions" means the payment or declaration of any
dividend, return on capital, repayment of capital contributions or
other distribution or payment in respect of share capital by any
member of the Restricted Group other than:
(a) by the Principal Borrower; or
(b) by a member of the Restricted Group who is an Obligor to
another member of the Restricted Group who is not an
Obligor; and
-16-
"Permitted Encumbrance" means:
(a) any Encumbrance relating to the Existing Mortgages, to the
extent such Encumbrances relate only to the assets
identified in Schedule 12 (Existing Mortgages);
(b) any Encumbrance over or affecting any asset acquired by a
member of the Restricted Group after the date hereof and
subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation
of the acquisition of such asset by a member of the
Restricted Group; and
(ii) the Financial Indebtedness secured by such
Encumbrance at all times falls within paragraph (j)
of the definition of Permitted Financial
Indebtedness;
(c) any Encumbrance over or affecting any asset of any company
which becomes a member of the Restricted Group after the
date hereof, where such Encumbrance is created prior to the
date on which such company becomes a member of the
Restricted Group, if:
(i) such Encumbrance was not created in contemplation
of the acquisition of such company; and
(ii) the Financial Indebtedness secured by such
Encumbrance at all times falls within paragraph (j)
of the definition of Permitted Financial
Indebtedness;
(d) any netting or set-off arrangement entered into by any
member of the Restricted Group in the normal course of its
banking arrangements for the purpose of netting its debit
and credit balances;
(e) any right of set-off or any title transfer or retention of
title arrangement entered into by any member of the
Restricted Group in the normal course of its trading
activities on the counterparty's standard or usual terms
(where such terms reasonably accord with the terms generally
adopted in the market to which such a trading activity
relates);
(f) any lien arising by operation of law or by a contract having
a similar effect and in each case arising or entered into in
the normal course of business, if such lien is discharged
within thirty days of arising;
(g) any Encumbrance created pursuant to, arising under or
evidenced by the Security Documents;
(h) any Encumbrance created by any arrangements referred to in
paragraph (e) or paragraph (f) of the definition of
Indebtedness for Borrowed Money;
(i) any Encumbrance arising pursuant to an order of attachment,
an injunction restraining the disposal of assets or any
similar legal process in each case arising in connection
with court proceedings being diligently conducted by the
relevant member of the Restricted Group in good faith;
-17-
(j) any Encumbrance over cash deposited as security for the
relevant Obligor's obligations in respect of a performance
bond, guarantee, standby letter of credit or similar
facility entered into by such an Obligor in the ordinary
course of business; and
(k) any Encumbrance existing on the Restatement Amendment
Effective Date securing Permitted Financial Indebtedness
within paragraph (j) of the definition of Permitted
Financial Indebtedness.
"Permitted Facilities" means the Secured Permitted Facilities and any
other bank facilities made available to members of the Group (on
normal commercial terms) provided that the aggregate indebtedness of
all members of the Group in respect of the Secured Permitted
Facilities and such other bank facilities at no time exceeds
CHF40,000,000 (or its equivalent).
"Permitted Facilities Provider" means the financial institution (if
any) which has become the Permitted Facilities Provider in accordance
with Clause 38 (Permitted Facilities Provider).
"Permitted Financial Indebtedness" means any Financial Indebtedness:
(a) arising under or permitted pursuant to the Finance
Documents;
(b) in respect of, prior to the date of implementation of the
Principal Overindebtedness Solution, the Subordinated NTL
CV1 Debt and on and after the date of the implementation of
the Principal Overindebtedness Solution, the Subordinated
Shareholder NTL ▇▇▇ ▇▇▇▇;
(c) in respect of any Additional Subordinated Debt;
(d) arising under Permitted Treasury Transactions;
(e) of the Shareholder, where:
(i) such Financial Indebtedness does not oblige or
permit the Shareholder to make any interest
payments at any time prior to the date five years
after the date of the Original Facility Agreement
(any interest accruing during such a five year
period being capitalised with the principal amount
outstanding);
(ii) such Financial Indebtedness does not have any
scheduled repayments or other amortisations prior
to 30 April 2006 and has a final maturity date on
or after 30 April 2006; and
(iii) the proceeds of such Financial Indebtedness are
applied by the Shareholder towards Subordinated
Funding;
(f) arising under Permitted Loans and Guarantees;
(g) secured by the Existing Mortgages provided that the amount
of Financial Indebtedness secured by each Existing Mortgage
does not exceed the relevant amount set out in Schedule 12
(Existing Mortgages);
-18-
(h) falling within paragraph (e) of the definition of
Indebtedness for Borrowed Money ("Finance Lease Debt")
which, when aggregated with any other Finance Lease Debt
incurred by each other member of the Restricted Group does
not exceed CHF5,000,000 (or its equivalent);
(i) arising under Permitted Facilities; and
(j) not falling within paragraphs (a) to (i) above provided that
the aggregate amount does not exceed CHF10,000,000 (or its
equivalent) .
"Permitted Joint Venture" means either the disposal of shares in the
Shareholder or any member of the NTL Inc. Holding Group to, or the
issue of further shares by the Shareholder or any member of the NTL
Inc. Holding Group to, a company or a subsidiary of a company:
(a) which engages primarily in the operation of a
telecommunications network; and
(b) rated at least A by Standard and Poor's Rating Corporation
and A2 by ▇▇▇▇▇'▇ Investors Services, Inc.
"Permitted Loans and Guarantees" means any of the following:
(a) trade credit or indemnities granted in the ordinary course
of business on usual and customary terms;
(b) Intra-Group Loans made by a member of the Restricted Group
who is not an Obligor to any other member of the Restricted
Group who is not an Obligor;
(c) Intra-Group Loans made by a member of the Restricted Group
who is not an Obligor to a member of the Restricted Group
who is an Obligor, where the rights of the lending member of
the Restricted Group have been (a) subordinated to the
rights of the Finance Parties under the Finance Documents
and (b) assigned to the Agent (or the Finance Parties) as
security for the obligations of the Obligors under the
Finance Documents and to the Permitted Facilities Provider
as security for the obligations of any members of the Group
under any documentation relating to the Secured Permitted
Facilities, in each case by agreements or deeds approved by
the Agent;
(d) Intra-Group Loans made by the Shareholder to a member of the
Restricted Group provided that such Intra-Group Loans
constitute either Subordinated NTL CV1 Debt or Additional
Subordinated Debt;
(e) Intra-Group Loans made by an Obligor (other than the
Shareholder) to any wholly-owned member of the Restricted
Group provided that:
(i) the maximum aggregate principal amount of all such
Intra-Group Loans made during the period from 1
January 2002 to 30 April 2003 (excluding, for the
avoidance of doubt, any capitalisation of interest)
does not, at any time, exceed CHF 73,800,000;
(ii) the maximum aggregate principal amount of all such
Intra-Group Loans does not, at any time, exceed CHF
1,249,500,000;
-19-
(iii) the rights of each lending Obligor in respect of
all such Intra-Group Loans have been assigned or
are so assigned within 15 days of the Restatement
Amendment Effective Date (or simultaneously with
the making of such Intra-Group Loan if it is made
after such date) to the Agent (or the Finance
Parties) as security for the obligations of the
Obligors under the Finance Documents and to the
Permitted Facilities Provider as security for the
obligations of any members of the Group under any
documentation relating to the Secured Permitted
Facilities by an agreement or deed approved by the
Agent; and
(iv) save where the lending Obligor of such Intra-Group
Loan is the Principal Borrower, no borrowing
Obligor (of such Intra-Group Loan) which has
distributable reserves shall make any cash interest
payments to the lending Obligor in respect of such
Intra-Group Loan.
(f) Intra-Group Loans made by an Obligor (other than the
Shareholder) to any member of the Restricted Group which
member is not wholly owned provided that:
(i) the maximum aggregate principal amount of all such
Intra-Group Loans does not, at any time, exceed CHF
73,000,000;
(ii) there is no increase in the principal amount of any
such Intra-Group Loan (excluding, for the avoidance
of doubt, any capitalisation of interest) after 1
January 2002;
(iii) the rights of each lending Obligor under all such
Intra-Group Loans have been assigned or are so
assigned within 15 days of the Restatement
Amendment Effective Date (or simultaneously with
the making of such Intra-Group Loan if it is made
after such date) to the Agent (or the Finance
Parties) as security for the obligations of the
Obligors under the Finance Documents and to the
Permitted Facilities Provider as security for the
obligations of any members of the Group under any
documentation relating to the Secured Permitted
Facilities by an agreement or deed approved by the
Agent;
(g) the Intra-Group Loans owed by Cablecom Engineering AG to the
Principal Borrower following the completion of paragraph (a)
of the definition of the Reorganisation;
(h) the Intra-Group Loan owed by Besonet AG to Cablecom
Management GmbH, in a maximum aggregate principal amount of
CHF 85,000 provided that the rights of Cablecom Management
GmbH as lender thereunder are within 15 days of the
Restatement Amendment Effective Date, assigned to the Agent
or the Finance Parties as security for the obligations of
the Obligors under the Finance Documents and to the
Permitted Facilities Provider as security for the
obligations of any members of the Group under any
documentation relating to the Secured Permitted Facilities
by an agreement or deed approved by the Agent;
-20-
(i) loans made to employees of any members of the Restricted
Group, subject to a maximum aggregate amount of CHF100,000;
(j) any other Intra-Group Loans approved by the Agent (acting on
the instructions of an Instructing Group, acting
reasonably); and
(k) the guarantees constituted by the letters of Commitment.
"Permitted Treasury Transactions" means:
(a) the Treasury Transactions entered into in accordance with
Clause 23.26 (Hedging); and
(b) any other foreign exchange transactions for spot or forward
delivery entered into in the ordinary course of business
(and not for investment or speculative purposes) to hedge
currency exposures incurred by members of the Restricted
Group.
"Potential Event of Default" means any event which would become (with
the passage of time, the giving of notice, the making of any
determination hereunder or any combination thereof) an Event of
Default.
"Principal Overindebtedness Solution" means, the implementation
(prior to the Restatement Amendment Effective Date) of the agreed
steps for the resolution of the overindebtedness of the Principal
Borrower, which steps involve inter alia the discharge in full and
cancellation of the Subordinated NTL CV1 Debt and the creation of the
Subordinated Shareholder NTL CV1 Debt.
"Proportion" means, in relation to a Bank:
(a) whilst no Advances are outstanding, the proportion borne by
its Commitment to the Total Commitments (or, if the Total
Commitments are then zero, by its Commitment to the Total
Commitments immediately prior to their reduction to zero);
or
(b) whilst at least one Advance is outstanding, the proportion
borne by its share of the Loan to the Loan.
"Qualifying Lender" means a financial institution which qualifies as
a bank pursuant to the laws of its jurisdiction of incorporation and
which carries on a genuine banking activity as per explanatory note
of the Swiss Federal Tax Administration No. S-02.128 (1.2000).
"Quotation Date" means, in relation to any period for which an
interest rate is to be determined under the Finance Documents, the
day on which quotations would ordinarily be given by prime banks in
the London Interbank Market for deposits in Swiss Francs (or the
currency of any Unpaid Sum) for delivery on the first day of that
period, provided that, if, for any such period, quotations would
ordinarily be given on more than one date, the Quotation Date for
that period shall be the last of those dates.
-21-
"Radio and Television Act" means the Swiss Radio and Television Act
("Bundesgesetz uber Radio und Fernsehen", "RTVB") of 21 June 1991 and
all of the ordinances implementing such.
"Receivable Accounts" means, with respect of each member of the
Restricted Group, the bank account(s) into which all the receivables
(if any) due to such member of the Restricted Group are paid and such
other bank accounts identified in the Receivables and Receivables
Accounts Assignment.
"Receivables and Receivables Accounts Assignment" means the
assignment agreement(s) entered into by the Operating Companies,
assigning each Operating Company's rights to all current and future
receivables due to it from its trade debtors or subscribers, all
current and future monetary claims due or owing to it and its rights
in respect of its Receivable Accounts to the Agent (on behalf of the
Finance Parties) as security for the obligations of the Obligors
under the Finance Documents and/or to the Permitted Facilities
Provider as security for the obligations of any members of the Group
under any documentation relating to the Secured Permitted Facilities.
"Reference Banks" means the principal London offices of Bank of
America, N.A., BNP Paribas and ▇▇ ▇▇▇▇▇▇ Chase Bank or such other
bank or banks as may from time to time be agreed between the
Principal Borrower and the Agent acting on the instructions of an
Instructing Group.
"Refinancing Condition" means the requirement for a commitment for
the purchase of, or for an investment in, the Restricted Group, from
an investor (whether a strategic investor, a financial investor, a
private equity investor or any other investor) acceptable to an
Instructing Group, such commitment to be on terms acceptable to an
Instructing Group.
"Relevant Period" has the meaning given to it in Clause 22 (Financial
Condition).
"Reorganisation" means:
(a) the transfers, for deferred consideration, by the Principal
Borrower of the entire issued share capital of (i) Coditel
SA to Cablecom (Suisse Romande) SA and (ii) Cablecom Media
AG to Cablecom Engineering SA;
(b) the Initial Mergers; and
(c) thereafter, the conversion of the Conversion Subsidiaries
from joint stock companies ("AG"s) to limited liability
companies ("GmbH"s) and the granting of the Reorganisation
Share Pledges,
in each case in accordance with the Reorganisation Summary.
"Reorganisation Share Pledges" means:
(a) an Austrian law pledge over the shares in Cablecom
KabelKommunikation GmbH; and
(b) the GmbH Share Pledge,
-22-
such pledges being granted in favour of the Finance Parties and the
Permitted Facilities Provider as security for the obligations of the
Obligors under the Finance Documents and the documentation relating
to the Secured Permitted Facilities.
"Reorganisation Summary" means the step plan, in the agreed form,
setting out the consents, authorisations and approvals and steps
taken by the Shareholder and certain members of the Restricted Group
to implement the Reorganisation.
"Repayment Date" means, in relation to any Revolving Advance, the
last day of the Term thereof.
"Repeated Representations" means each of the representations set out
in Clause 20.1 (Status) to Clause 20.6 (Audited Financial
Statements), Clause 20.8 (No Material Adverse Change), Clause 20.11
(Legal and Beneficial Owner), Clause 20.12 (Business Plan), Clause
20.14 (Group Structure) provided that the exclusion set out in
sub-clause 20.14.1 of Clause 20.14 (Group Structure) shall also cover
item (g) of the definition of "Group Structure Chart" upon repetition
of this representation, sub-clause 20.16.1 of Clause 20.16 (No NTL
Note Defaults), Clause 20.21 (No Material Defaults), Clause 20.24
(Other Information) (excluding sub-clause 20.24.1 thereof), Clause
20.27 (Encumbrances and Financial Indebtedness) and Clause 20.30
(Consents and Approvals) (excluding sub-clause 20.30.1 thereof) to
Clause 20.34 (Sale of the Restricted Group).
"Reporting Accountants" means the accountancy firm engaged by the
Agent on behalf of the Banks to advise the Banks in connection with
matters relating to, inter alia, the financial position, performance
and prospects of the Group and compliance with the obligations set
out in this Agreement which, as at the date of the Restatement
Amendment Agreement, is PricewaterhouseCoopers.
"Required Monthly Information" means, with respect to any calendar
month which ends:
(a) on or before 30 September 2002:
(i) the income statement for such calendar month;
(ii) the key performance indicators in the agreed form
(including, inter alia, the number of Hi-speed
Internet Subscribers, subscriber numbers and ARPU
for CATV); and
(iii) management commentary thereon; and
(b) thereafter:
(i) items (i)-(iii) listed in paragraph (a) above; and
(ii) the balance sheet as at the end of such calendar
month; and
(iii) the cash-flow statement for such calendar month.
-23-
"Reservations" means:
(a) the principle that equitable remedies are remedies which may
be granted or refused at the discretion of the court, the
limitation of enforcement by laws relating to bankruptcy,
insolvency, liquidation, reorganisation, court schemes,
moratoria, administration and other laws generally affecting
the rights of creditors, the time barring of claims under
any applicable law, the possibility that an undertaking to
assume liability for or to indemnify against non-payment of
any stamp duty or other tax may be void, defences of set-off
or counterclaim and similar principles;
(b) anything analogous to any of the matters set out in
paragraph (a) above under any laws of any applicable
jurisdiction; and
(c) anything disclosed by any of the Legal Opinions.
"Resignation Notice" means a notice substantially in the form set out
in Schedule 9 (Form of Resignation Notice).
"Restatement Amendment Agreement" means the amendment agreement dated
30 April 2002 between the parties hereto which amends this Agreement
by way of a restatement of this Agreement.
"Restatement Amendment Effective Date" means the "Effective Date" as
such term is defined in the Restatement Amendment Agreement.
"Restricted Group" means the Principal Borrower, the Principal
Borrower's subsidiaries from time to time and, prior to the
completion of the Initial Mergers, CC AG.
"Restricted Obligations" means any obligations of a Swiss Obligor
under (a) Clause 25 (Guarantee and Indemnity) and/or the Security
Documents and (b) Clause 15 (Taxes), in each case in respect of:
(a) a holding company of that Swiss Obligor; and/or
(b) a subsidiary of a holding company of that Swiss Obligor, who
is not that Swiss Obligor or a subsidiary of that Swiss
Obligor.
"Revolving Advance" means an advance made or to be made by the Banks
under the Revolving Facility.
"Revolving Commitment" means, in relation to a Bank at any time and
save as otherwise provided herein, the amount set opposite its name
under the heading "Revolving Commitment" in Part C of Schedule 1 (The
Original Parties).
"Revolving Facility" means the Swiss Franc revolving loan facility
granted to the Borrowers in this Agreement.
"Revolving Loan" means, at any time, the aggregate principal amount
of the outstanding Revolving Advances at such time.
-24-
"Rollover Advance" means a Revolving Advance which is used to
refinance a maturing Revolving Advance and which is the same amount
as such maturing Revolving Advance and is to be drawn on the day such
maturing Revolving Advance is to be repaid.
"Second Loan Agreement" means the loan agreement, in the agreed form,
entered into between NTL SPV Inc. as lender and BV1 as borrower,
setting out the terms on which the indebtedness owed by BV1 in
respect of the Second Sale and Purchase Agreement remains
outstanding.
"Second Sale and Purchase Agreement" means the share sale and
purchase agreement, in the agreed form, entered into in relation to
the Hivedown, between NTL SPV Inc. as seller and BV1 as buyer of part
of NTL SPV Inc.'s interest in CC AG and its entire interest in the
Principal Borrower, the consideration payable by BV1 being
represented by the B Debt.
"Second Subordinated Debt Pledge" means the pledge of receivables,
dated 31 July 2000, between the parties party to the Subordinated NTL
CV1 Debt Pledge, pursuant to which NTL CV1 pledges its rights in
respect of certain further indebtedness owed by the Principal
Borrower to NTL CV1 (which indebtedness is subordinated pursuant to
the Second Subordination Deed) to the Finance Parties as security for
the obligations of the Obligors under the Finance Documents.
"Second Subordination Deed" means the subordination deed, dated 31
July 2000, between the parties party to the Subordination Deed,
pursuant to which certain further indebtedness owed by the Principal
Borrower to NTL CV1 is subordinated.
"Secured Permitted Facilities" means any bank facilities (if any)
made available by the Permitted Facilities Provider to members of the
Restricted Group pursuant to documentation in the agreed form.
"Security" means the security from time to time constituted by or
pursuant to the Security Documents and the guarantees provided
hereunder.
"Security Documents" means each of the following documents in agreed
form delivered to the Agent in accordance with the Restatement
Amendment Agreement, Clause 2.3 (Conditions Precedent) or Clause
23.30 (The Mortgages):
(a) the Share Pledges;
(b) the Receivables and Receivables Accounts Assignment;
(c) the Subordinated NTL CV1 Debt Pledge and the Second
Subordinated NTL CV1 Debt Pledge;
(d) the Acquisition Agreement Assignment;
(e) the Intra-Group Loan Assignments;
(f) the Security Over Cash Agreement; and
(g) the Shareholder Subordinated NTL CV1 Debt Assignment,
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together with any other document entered into by any member of the
Group creating or evidencing an Encumbrance granted in favour of the
Agent or, as the case may be, the Finance Parties for all or any part
of the obligations of the Obligors or any of them under any of the
Finance Documents and/or granted in favour of the Permitted
Facilities Provider for all or any part of the obligations of any
members of the Group under any documentation relating to the Secured
Permitted Facilities.
"Security Over Cash Agreement" means the security agreement entered
into by the Principal Borrower, assigning and charging the Principal
Borrower's rights over the Interest Account as security for the
obligations of the Obligors under the Finance Documents and
specifying the purposes of, and means by which, funds in such account
may be applied.
"Security Parties" means the Finance Parties and the Permitted
Facilities Provider.
"Security Proceeds" means all receipts or recoveries by the Agent (or
by any of the Finance Parties or by the Permitted Facilities
Provider) pursuant to, or upon enforcement of, the Security and all
other monies which are by the terms of any of the Finance Documents
to be applied in accordance with Clause 31.7 (Application of Security
Proceeds), after deducting (to the extent not already deducted or
retained prior to such receipt or recovery by the Agent or, as the
case may be, any other Security Party):
(a) all sums which are by law or contract payable to any
receiver of the assets subject to the Security;
(b) all sums which the Agent is required by the terms of any of
the Security Documents to pay to any other person before
distributing any such receipts or recoveries to any of the
Security Parties and/or discharging any of the obligations
secured by the Security Documents; and
(c) all sums which the Agent is by law required to pay to any
person in priority to the Security Parties.
"Senior Debt" has the meaning given to it in Clause 22 (Financial
Condition).
"Shareholder Subordinated NTL CV1 Debt Assignment" means the
assignment set out in the documentation relating to the Subordinated
Shareholder NTL CVI Debt, pursuant to which NTL CV1 assigns its
rights in respect of the Subordinated Shareholder NTL CV1 Debt to the
Finance Parties as security for the obligations of the Obligors under
the Finance Documents.
"Share Pledges" means the Initial Share Pledges and, following the
Reorganisation, the Reorganisation Share Pledges.
"Steering Committee" means as at the date hereof each of Bank of
America, N.A., BNP Paribas, CIBC World Markets plc, Citibank, N.A.,
Deutsche Bank AG London, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior
Funding, Inc., Societe Generale and The Royal Bank of Scotland, and
hereafter such institutions as may from time to time constitute the
Steering Committee.
-26-
"Subordinated NTL CV1 Debt" means the indebtedness owed by the
Principal Borrower to NTL CV1 in respect of the A Debt and the C
Debt, such indebtedness being subordinated by the Subordination Deed
and pledged by the Subordinated NTL CV1 Debt Pledge.
"Subordinated NTL CV1 Debt Pledge" means the pledge agreement in the
agreed form between NTL SPV LLC (as the general partner of NTL CV1)
and the Agent (on behalf of the Finance Parties), pursuant to which
NTL CV1 pledges its rights in respect of the Subordinated NTL CV1
Debt to the Finance Parties as security for the obligations of the
Obligors under the Finance Documents.
"Subordinated Funding" means:
(a) the subscription by the Shareholder or any member of the NTL
Inc. Holding Group, for new equity capital of either the
Principal Borrower;
(b) the Subordinated NTL ▇▇▇ ▇▇▇▇; and
(c) any Additional Subordinated Debt.
"Subordinated Shareholder NTL CV1 Debt" means the indebtedness
(documented in the promissory note, subordination agreement and
assignment of claims agreement dated on or about the Restatement
Amendment Effective Date by and between the Shareholder and NTL SPV
LLC (as the general partner of NTL CVI) and the Agent) owed by the
Shareholder to NTL CV1 of an amount equal to the Subordinated NTL CV1
Debt.
"Subordination Deed" means the subordination deed in the agreed form
between the Agent (for itself and for and on behalf of the other
Finance Parties) and NTL SPV LLC (as the general partner of NTL CV1),
pursuant to which the Subordinated NTL CV1 Debt is subordinated to
the Principal Borrower's obligations under the Finance Documents and
any documentation relating to the Secured Permitted Facilities.
"Subsidiary Overindebtedness Solution" means the implementation of
the agreed steps for the resolution of the overindebtedness of the
Overindebted Subsidiaries, which steps involve, inter alia, prior to
the Restatement Amendment Effective Date, execution of the Letters of
Commitment, and, if favourable tax rulings are obtained and provided
that any tax charge arising from any such merger is not unacceptably
high in the reasonable opinion of the Principal Borrower, as soon as
practicable after the date of this Agreement (save as otherwise
agreed by the Agent) (except in respect of Cablecom
Kabelkommunikation GmbH whose overindebtedness will be resolved by a
capital contribution of up to CHF798,000), the merger of each of the
Overindebted Subsidiaries into Cablecom GmbH such that Cablecom GmbH
is the surviving entity, except that Rediffusion AG shall not be
required to merge with Cablecom GmbH prior to 31 August 2002 or
thereafter if so agreed by an Instructing Group.
"Swiss Obligor" means an Obligor incorporated under the laws of
Switzerland.
"Syndication Date" means 16 May 2000.
-27-
"Telecommunication Act" means the Swiss Telecommunications Act
("Fernmeldegesetz FMG") of 30 April 1997, together with all of the
ordinances implementing such.
"Term" means, save as otherwise provided herein, in relation to any
Revolving Advance, the period for which such Revolving Advance is
borrowed, as specified in the Notice of Drawdown relating thereto.
"Term Commitment" means, in relation to a Bank at any time and save
as otherwise provided herein, the amount set opposite its name under
the heading "Term Commitment" in Part C of Schedule 1 (The Original
Parties).
"Termination Date" means 30 April 2003 or such later date, if any, as
may be agreed in accordance with the provisions of Clause 12
(Extension of the Facilities) provided that if the Termination Date
determined as aforesaid would otherwise fall on a day which is not a
Business Day, it shall be the immediately succeeding Business Day.
"Third Loan Agreement" means the loan agreement, in the agreed form,
entered into between BV1 as lender and the Principal Borrower as
borrower, setting out the terms on which the indebtedness owed by the
Principal Borrower in respect of the Third Sale and Purchase
Agreement remains outstanding.
"Third Sale and Purchase Agreement" means the share sale and purchase
agreement, in the agreed form, entered into in relation to the
Hivedown, between BV1 as seller and the Principal Borrower as buyer
of Cablecom (Mittelland) AG, the consideration payable by the
Principal Borrower being represented by the C Debt.
"Total Commitments" means, at any time, the aggregate of the Banks'
Commitments.
"Transfer Certificate" means a certificate substantially in the form
set out in Schedule 2 (Form of Transfer Certificate) or in such other
form as may be agreed between the Principal Borrower and the Agent
signed by a Bank and a Transferee under which:
(a) such Bank seeks to procure the transfer to such Transferee
of all or a part of such Bank's rights, benefits and
obligations under the Finance Documents upon and subject to
the terms and conditions set out in Clause 35.3 (Assignments
and Transfers by Banks); and
(b) such Transferee undertakes to perform the obligations it
will assume as a result of delivery of such certificate to
the Agent as contemplated in Clause 35.5 (Transfers by
Banks).
"Transfer Date" means, in relation to any Transfer Certificate, the
date for the making of the transfer as specified in such Transfer
Certificate.
"Transferee" means a person to which a Bank seeks to transfer by
novation all or part of such Bank's rights, benefits and obligations
under the Finance Documents.
"Treasury Transaction" means any currency or interest purchase, cap
or collar agreement, forward rate agreements, interest rate or
currency future or option contract, foreign exchange or currency
purchase or sale agreement, interest rate swap, currency
-28-
swap or combined interest rate and currency swap agreement and any
other similar agreement.
"Unpaid Sum" means the unpaid balance of any of the sums referred to
in Clause 28.1 (Default Interest Periods).
"Vendor" means Cablecom Holding AG.
1.2 Interpretation
Any reference in this Agreement to:
the "Agent", an "Arranger", any "Hedge Counterparty", the "Permitted
Facilities Provider" or any "Bank" shall be construed so as to
include it and any subsequent successors and permitted transferees in
accordance with their respective interests;
an "affiliate" of a person shall be construed as a reference to a
subsidiary of that person or a holding company of that person or any
other subsidiary or holding company of that holding company;
"agreed form" in relation to any document means a form which is
initialled by each of the Agent and the Principal Borrower for the
purposes of identification (as such form may be amended from time to
time by agreement between such parties) or, if not so initialled, is
in a form which is in form and substance reasonably satisfactory to
the Agent;
"assets" includes present and future properties, revenues and rights
of every description;
"continuing", in relation to an Event of Default, shall be construed
as a reference to an Event of Default which has not been waived in
writing or remedied and, in relation to a Potential Event of Default,
one which has not been remedied within the relevant grace period or
waived in accordance with the terms hereof;
"disposal" includes any sale, lease, transfer or other disposal;
the "equivalent" on any date in one currency (the "first currency")
of an amount denominated in another currency (the "second currency")
is a reference to the amount of the first currency which could be
purchased with the amount of the second currency at the spot rate of
exchange quoted by the Agent at or about 11.00 a.m. on such date for
the purchase of the first currency with the second currency;
a "holding company" of a company or corporation shall be construed as
a reference to any company or corporation of which the
first-mentioned company or corporation is a subsidiary;
"indebtedness" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;
a "law" shall be construed as any law (including common or customary
law), statute, constitution, decree, judgment, treaty, regulation,
directive, bye-law, order or any other legislative measure of any
government, supranational, local government, statutory or regulatory
body or court;
-29-
a "month" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in the
next succeeding calendar month save that:
(a) if any such numerically corresponding day is not a Business
Day, such period shall end on the immediately succeeding
Business Day to occur in that next succeeding calendar month
or, if none, it shall end on the immediately preceding
Business Day; and
(b) if there is no numerically corresponding day in that next
succeeding calendar month, that period shall end on the last
Business Day in that next succeeding calendar month,
(and references to "months" shall be construed accordingly);
a "person" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
"repay" (or any derivative form thereof) shall, subject to any
contrary indication, be construed to include "prepay" (or, as the
case may be, the corresponding derivative form thereof) and vice
versa;
a "subsidiary" of a company or corporation shall be construed as a
reference to any company or corporation:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) more than half the issued share capital of which is
beneficially owned, directly or indirectly, by the
first-mentioned company or corporation; or
(c) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation
and, for these purposes, a company or corporation shall be treated as
being controlled by another if that other company or corporation is
able to direct its affairs and/or to control the composition of its
board of directors or equivalent body;
a "successor" shall be construed so as to include an assignee or
successor in title of such party and any person who under the laws of
its jurisdiction of incorporation or domicile has assumed the rights
and obligations of such party under this Agreement or to which, under
such laws, such rights and obligations have been transferred;
"tax" shall be construed so as to include any tax, levy, impost, duty
or other charge or withholding of a similar nature (including any
penalty or interest payable in connection with any failure to pay or
any delay in paying any of the same);
"VAT" shall be construed as a reference to value added tax including
any similar tax which may be imposed in place thereof from time to
time;
a "wholly-owned subsidiary" of a company or corporation shall be
construed as a reference to any company or corporation which has no
other members except that other
-30-
company or corporation and that other company's or corporation's
wholly-owned subsidiaries or persons acting on behalf of that other
company or corporation or its wholly-owned subsidiaries; and
the "winding-up", "dissolution" or "administration" of a company or
corporation shall be construed so as to include any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company or corporation is incorporated or any jurisdiction in which
such company or corporation carries on business including the seeking
of liquidation, winding-up, reorganisation, dissolution,
administration, arrangement, adjustment, protection or relief of
debtors.
1.3 Currency Symbols
1.3.1 "CHF" and "Swiss Francs" denote lawful currency of
Switzerland.
1.3.2 "euro" means the single currency of the European Union as
constituted by the treaty on European Union and as referred
to in EMU Legislation and "euro unit" means the currency
unit of the euro as defined in the EMU Legislation.
1.4 Agreements and Statutes
Any reference in this Agreement to:
1.4.1 this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case
may be, such other agreement or document as the same may
have been, or may from time to time be, amended, varied,
novated or supplemented; and
1.4.2 a statute or treaty shall be construed as a reference to
such statute or treaty as the same may have been, or may
from time to time be, amended or, in the case of a statute,
re-enacted.
1.5 Headings
Clause and Schedule headings are for ease of reference only.
1.6 Time
Any reference in this Agreement to a time of day shall, unless a
contrary indication appears, be a reference to London time.
1.7 Third Party Rights
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Agreement.
2. THE FACILITIES
2.1 Grant of the Facilities
The Banks have granted to the Borrowers, upon the terms and subject
to the conditions hereof:
2.1.1 a Swiss Franc term loan facility in an aggregate amount of
CHF2,700,000,000 which is fully drawn; and
2.1.2 a Swiss Franc revolving loan facility in an aggregate amount
of CHF1,400,000,000.
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2.2 Purpose and Application
The:
2.2.1 Original Term Facility was intended, and was applied, for
the following purposes: (a) to finance the acquisition by
the Principal Borrower of that part of the Cablecom Business
not acquired by NTL SPV Inc. and transferred to the
Shareholder and the Principal Borrower pursuant to the
Hivedown, (b) to refinance the existing indebtedness (other
than Permitted Financial Indebtedness) of the Borrowers and
(c) to finance, in an amount of up to CHF30,000,000, working
capital of the Borrowers; and
2.2.2 Revolving Facility is intended to finance operating
expenses, working capital and other capital expenditure of
the members of the Restricted Group and for such members'
general corporate financing requirements and, accordingly,
each Borrower shall ensure all amounts raised by it
hereunder are applied in or towards satisfaction of such
operating expenses, working capital requirements, capital
expenditure or (as the case may be) general corporate
financing requirements and none of the Finance Parties shall
be obliged to concern themselves with such application.
2.3 Conditions Precedent
The conditions precedent to availability of the Facilities (being the
documents and other evidence listed in Schedule 3 (Conditions
Precedent) have been satisfied.
2.4 Banks' Obligations Several
The obligations of each Bank are several and the failure by a Bank to
perform its obligations hereunder shall not affect the obligations of
an Obligor towards any other party hereto nor shall any other party
be liable for the failure by such Bank to perform its obligations
hereunder.
2.5 Banks' Rights Several
The rights of each Bank are several and any debt arising hereunder at
any time from an Obligor to any of the other parties hereto shall be
a separate and independent debt. Each such party shall be entitled to
protect and enforce its individual rights arising out of this
Agreement independently of any other party (so that it shall not be
necessary for any party hereto to be joined as an additional party in
any proceedings for this purpose).
3. UTILISATION OF THE ORIGINAL TERM FACILITY
The Original Term Facility has been utilised in full.
4. INTEREST PERIODS FOR ORIGINAL TERM ADVANCES
4.1 Original Term Advance Interest Periods
The period for which an Original Term Advance is outstanding shall be
divided into successive periods each of which (other than the first,
which shall begin on the day such Original Term Advance is made)
shall start on the last day of the preceding such period.
4.2 Original Term Advance Interest Period Duration
The duration of each Interest Period in respect of an Original Term
Advance shall, save as otherwise provided herein, be one, two, three
or six months or such other period as the
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Agent (acting on the instructions of all of the Banks) may agree,
in each case as the Borrower to which such Original Term Advance is
made may during the Notice Period, or such other period as the Agent
may agree, by written notice to the Agent select (or, as the case may
be, request and agree), provided that:
4.2.1 if such Borrower fails to give such notice of its selection
in relation to an Interest Period, the duration of that
Interest Period shall, subject to sub-clauses 4.2.2 and
4.2.3 be three months;
4.2.2 any Interest Period in respect of an Original Term Advance
which begins at the same time as any other Interest Period
in respect of an Original Term Advance borrowed by the same
Borrower shall end at the same time as that other Interest
Period; and
4.2.3 any Interest Period which would otherwise end during the
month preceding, or extend beyond, the Termination Date
shall be of such duration that it shall end on the
Termination Date.
4.3 Consolidation of Original Term Advances
If two Interest Periods relating to Original Term Advances end at the
same time and such Original Term Advances have been made to the same
Borrower then, on the last day of those Interest Periods, the
Original Term Advances to which they relate shall be consolidated
into and treated as a single Original Term Advance.
4.4 Division of Original Term Advances
The Borrower to which an Original Term Advance is made may, by not
less than five Business Days' prior written notice to the Agent,
direct that such Original Term Advance shall, at the beginning of any
Interest Period relating thereto, be divided into (and thereafter,
save as otherwise provided herein, treated in all respects as) two or
more Original Term Advances in such amounts (in aggregate, equalling
the amount of the Original Term Advance being so divided) as shall be
specified by such Borrower in such notice, provided that such
Borrower shall not be entitled to make such a direction if:
4.4.1 as a result of so doing, there would be more than four
outstanding Original Term Advances; or
4.4.2 any Original Term Advance thereby coming into existence
would be of an amount less than CHF50,000,000.
5. PAYMENT AND CALCULATION OF INTEREST ON original TERM ADVANCES
5.1 Payment of Interest
On the last day of each Interest Period of an Original Term Advance
(and, if the duration of an Interest Period exceeds six months, on
the expiry of each period of six months during such Interest Period)
the Borrower to whom such Original Term Advance has been made shall
pay accrued interest on such Original Term Advance.
5.2 Calculation of Interest
The rate of interest applicable to an Original Term Advance from time
to time during an Interest Period relating thereto shall be the rate
per annum which is the sum of:
5.2.1 the Margin at such time;
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5.2.2 the Mandatory Cost Rate; and
5.2.3 LIBOR.
5.3 Margin Ratchet
In accordance with the provisions of Clause 5.4 (Margin Changes) and
subject to Clause 5.5 (Default Margin), the Margin shall be the
percentage rate per annum determined by the ratio of Senior Debt to
Annualised EBITDA in respect of the most recent Financial Quarter in
accordance with the table set out below.
----------------------------------------------------------- ------------------------------------------------------
Ratio of Senior Debt to Annualised EBITDA Margin (per cent. per annum)
----------------------------------------------------------- ------------------------------------------------------
Greater than 6.0:1 2.50
----------------------------------------------------------- ------------------------------------------------------
Equal to or less than 6.0:1 but greater than 2.00
5.0:1
----------------------------------------------------------- ------------------------------------------------------
Equal to or less than 5.0:1 but greater than 1.75
4.0:1
----------------------------------------------------------- ------------------------------------------------------
Equal to or less than 4.0:1 but greater than 1.25
3.0:1
----------------------------------------------------------- ------------------------------------------------------
Equal to or less than 3.0:1 0.75
----------------------------------------------------------- ------------------------------------------------------
5.4 Margin Changes
Any reduction or increase to the Margin provided for by Clause 5.3
(Margin Ratchet) shall take effect in relation to all existing
Advances and future Advances, in each case with effect from the date
the Agent receives the Principal Borrower's Compliance Certificate in
accordance with Clause 21.5 (Compliance Certificates) for its most
recent Financial Quarter. Any change in the Margin applicable to an
existing Advance shall only relate to the remainder of the current
Interest Period or Term of such an Advance.
5.5 Default Margin
The Margin shall be 2.50 per cent. per annum from the date determined
by the Agent (acting reasonably) (in writing) as being the date on
which an Event of Default or Potential Event of Default has occurred
or come into existence until the date specified by the Agent (in
writing) as being the date on which it has been demonstrated to its
satisfaction (acting reasonably) that such Event of Default or
Potential Event of Default is no longer continuing. The Agent shall
promptly notify the other parties hereto of any determination that an
Event of Default or Potential Event of Default has occurred or exists
or, as the case may be, that it has been demonstrated to its
reasonable satisfaction that such is no longer continuing.
6. UTILISATION OF THE REVOLVING FACILITY
6.1 Drawdown Conditions for Revolving Advances
A Revolving Advance (which is not a Rollover Advance) will be made by
the Banks to the Principal Borrower or, as the case may be, a
Rollover Advance will be made by the Banks to a Borrower if:
6.1.1 during the Notice Period the Agent has received a completed
Notice of Drawdown from such Borrower;
6.1.2 the proposed date for the making of such Revolving Advance
is a Business Day falling one month or more before the
Termination Date;
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6.1.3 the proposed date for the making of such Revolving Advance
is not less than five Business Days after the date upon
which the previous Revolving Advance (if any) was made;
6.1.4 the proposed amount of such Revolving Advance is, subject to
the provisions of sub-clause 6.1.6 below (a) if less than
the Available Revolving Facility an amount equal to or
greater than CHF25,000,000 or (b) equal to the amount of the
Available Revolving Facility;
6.1.5 there would not, immediately after the making of such
Revolving Advance, be more than six Revolving Advances
outstanding;
6.1.6 save as otherwise provided in Clause 6.2 (Availability of
Revolving Facility in Excess of the Facilities Cap), the
Loan would not, immediately after the making of such
Revolving Advance, be greater than CHF 3,755,000,000;
6.1.7 (save in relation to a Rollover Advance) the proposed
Revolving Advance is to be credited to:
(a) in the case of a Revolving Advance which is to be
applied towards any purpose permitted by
sub-clause 2.2.2 of Clause 2.2 (Purpose and
Application) (except a purpose specifically
referred to in sub-paragraph (b) below), a
Receivables Account in the name of the Principal
Borrower provided always that the maximum
aggregate principal amount of such Revolving
Advances which may be made for such purposes shall
not exceed CHF 93,493,381; or
(b) in the case of a Revolving Advance which is to be
applied in payment to the Banks of interest due
hereunder and/or in payment to one or more Hedge
Counterparties of Hedging Liabilities the Interest
Account provided always that the maximum aggregate
principal amount of such Revolving Advances which
may be made for such purposes shall not exceed CHF
86,506,619;
6.1.8 the proposed Term of the Revolving Advance requested is a
period of one, two, three or six months or such other period
as the Agent (acting on the instructions of all of the
Banks) may agree in each case ending on or before the
Termination Date;
6.1.9 (save in relation to a Rollover Advance) neither of the
events mentioned in sub-clauses 8.1.1 and 8.1.2 of Clause
8.1 (Market Disruption) shall have occurred; and
6.1.10 on and as of the proposed date for the making of such
Revolving Advance:
(a) (save in relation to a Rollover Advance) no Event
of Default or Potential Event of Default is
continuing; and
(b) the Repeated Representations are true in all
material respects.
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6.2 Availability of Revolving Facility in Excess of the Facilities Cap
6.2.1 Notwithstanding sub-clause 6.1.6 of Clause 6.1 (Drawdown
Conditions for Revolving Advances), the Principal Borrower
shall be entitled to request the making of further Revolving
Advances which would cause the Loan to exceed the Facilities
Cap provided always that the maximum amount of the Revolving
Loan shall not, at any time, exceed the aggregate of the
Revolving Commitments of the Banks.
6.2.2 Such request shall be made by delivery of a written notice
from the Principal Borrower to the Agent not less than
fifteen Business Days prior to the proposed date for the
making of such further Revolving Advances. Such written
notice shall specify the aggregate principal amount of the
proposed further Revolving Advances, and the proposed
purpose and application of the proceeds thereof.
6.2.3 The Agent shall as soon as reasonably practicable notify the
Banks of any notice received by it from the Principal
Borrower pursuant to sub-clause 6.2.2. Each Bank shall,
within ten Business Days of receipt of such notification
from the Agent, notify the Agent whether or not it consents
to the making of the proposed further Revolving Advances for
the purposes specified in such notice.
6.2.4 A proposed further Revolving Advance which is to be applied
only in payment of interest due to the Banks hereunder,
shall require the prior written consent of an Instructing
Group. A proposed further Revolving Advance intended for any
other purpose shall require the prior written consent of all
the Banks.
6.2.5 Subject to the Agent receiving the requisite consent
referred to in sub-clause 6.2.4, the Agent shall as soon as
reasonably practicable thereafter notify the Principal
Borrower thereof and the proposed further Revolving Advance
shall be made subject to and in accordance with the
provisions of Clause 6.1 (Drawdown Conditions for Revolving
Advances).
6.3 Each Bank's Participation in Revolving Advances
Each Bank will participate through its Facility Office in each
Revolving Advance made pursuant to this Clause 6 (Utilisation of the
Revolving Facility) in the proportion borne by its Available
Revolving Commitment to the Available Revolving Facility immediately
prior to the making of that Revolving Advance.
6.4 Reduction of Available Revolving Commitment
If a Bank's Revolving Commitment is reduced in accordance with the
terms hereof after the Agent has received the Notice of Drawdown for
a Revolving Advance and such reduction was not taken into account in
the Available Revolving Facility, then the amount of that Revolving
Advance shall be reduced accordingly.
7. PAYMENT AND CALCULATION OF INTEREST ON REVOLVING ADVANCES
7.1 Payment of Interest
On the Repayment Date relating to each Revolving Advance and, if the
Term of such Revolving Advance exceeds six months, on the expiry of
each period of six months during such Term, the Borrower to whom such
Revolving Advance has been made shall pay accrued interest on that
Revolving Advance.
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7.2 Calculation of Interest
The rate of interest applicable to a Revolving Advance from time to
time during its Term shall be the rate per annum which is the sum of:
7.2.1 the Margin at such time;
7.2.2 the Mandatory Cost Rate; and
7.2.3 LIBOR.
7.3 Margin
The Margin for Revolving Advances shall be determined in accordance
with Clause 5.3 (Margin Ratchet) to Clause 5.5 (Default Margin).
8. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
8.1 Market Disruption
If, in relation to any Advance:
8.1.1 LIBOR is to be determined by reference to Reference Banks
and at or about 11.00 a.m. on the Quotation Date for the
relevant Interest Period or Term none or only one of the
Reference Banks supplies a rate for the purpose of
determining LIBOR for the relevant Interest Period or Term;
or
8.1.2 before the close of business in London on the Quotation Date
for such Advance the Agent has been notified by a Bank or
each of a group of Banks to whom in aggregate fifty per
cent. or more of such Advance is owed (or, in the case of an
undrawn Advance, if made, would be owed) that the LIBOR rate
does not accurately reflect the cost of funding its
participation in such Advance,
then, the Agent shall notify the Principal Borrower, the relevant
Borrower and the Banks of such event and, notwithstanding anything to
the contrary in this Agreement, Clause 8.2 (Substitute Interest
Period and Interest Rate) shall apply to such Advance (if it is an
Original Term Advance which is already outstanding or a Rollover
Advance). If sub-clause 8.1.1 or 8.1.2 applies to a proposed Advance
(other than a Rollover Advance), such Advance shall not be made.
8.2 Substitute Interest Period and Interest Rate
If sub-clause 8.1.1 of Clause 8.1 (Market Disruption) applies to an
Advance, the duration of the relevant Interest Period or Term shall
be one month or, if less, such that it shall end on the Termination
Date. If either sub-clause 8.1.1 or 8.1.2 of Clause 8.1 (Market
Disruption) applies to an Advance, the rate of interest applicable to
each Bank's portion of such Advance during the relevant Interest
Period or Term shall (subject to any agreement reached pursuant to
Clause 8.3 (Alternative Rate)) be the rate per annum which is the sum
of:
8.2.1 the Margin at such time;
8.2.2 the Mandatory Cost Rate; and
8.2.3 the rate per annum notified to the Agent by such Bank before
the last day of such Interest Period or Term to be that
which expresses as a percentage rate per
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annum the cost to such Bank of funding from whatever sources
it may reasonably select its portion of such Advance during
such Interest Period or Term.
8.3 Alternative Rate
If either of those events mentioned in sub-clauses 8.1.1 and 8.1.2 of
Clause 8.1 (Market Disruption) occurs in relation to an Advance, then
if the Agent or the Principal Borrower so requires, the Agent and the
Principal Borrower shall enter into negotiations with a view to
agreeing a substitute basis (i) for determining the rates of interest
from time to time applicable to the Advances and/or (ii) upon which
the Advances may be maintained (whether in Swiss Francs or some other
currency) thereafter and any such substitute basis that is agreed
shall take effect in accordance with its terms and be binding on each
party hereto, provided that the Agent may not agree any such
substitute basis without the prior consent of each Bank (which is not
to be unreasonably withheld).
9. NOTIFICATION
9.1 Advances
The Agent shall, no later than the Notification Time before the first
day of a Term notify each Bank of:
9.1.1 the name of the Borrower;
9.1.2 the proposed amount of the relevant Revolving Advance;
9.1.3 the proposed length of the relevant Term; and
9.1.4 the aggregate principal amount of the relevant Advance
allocated to such Bank pursuant to Clause 6.3 (Each Bank's
Participation in Revolving Advances).
The Agent shall, no later than the Notification Time before the first
day of an Interest Period, notify each Bank of the proposed length of
such Interest Period.
9.2 Interest Rate Determination
The Agent shall promptly notify the relevant Borrower and the Banks
of each determination of LIBOR, the Mandatory Cost Rate and the
Margin.
9.3 Changes to Advances or Interest Rates
The Agent shall promptly notify the relevant Borrower and the Banks
of any change to (a) the proposed length of an Interest Period or
Term or (b) any interest rate occasioned by the operation of Clause 8
(Market Disruption and Alternative Interest Rates).
10. REPAYMENT OF THE ORIGINAL TERM FACILITY
The Principal Borrower shall procure (and each Borrower which has
drawn an Original Term Advance shall repay its share of the Original
Term Loan in order to ensure) that the Original Term Loan is repaid
in full on the Termination Date.
11. REPAYMENT OF THE REVOLVING FACILITY
Each Borrower to which a Revolving Advance has been made shall repay
the Revolving Advance made to it in full on the Repayment Date
relating thereto.
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12. EXTENSION OF THE FACILITY
12.1 The Principal Borrower may, by delivery of a written notice to the
Agent not less than fifteen Business Days prior to the Termination
Date, request the extension of the maturity of the Facilities to a
date falling on or before 31 December 2003.
12.2 The Agent shall, as soon as reasonably practicable, notify the Banks
of any notice received by it from the Principal Borrower pursuant to
Clause 12.1. Each Bank shall, within ten Business Days of receipt of
such notification from the Agent, notify the Agent whether or not it
consents to the proposed extension of the maturity of the Facilities.
12.3 Subject to receipt of Instructing Group consent the Agent shall, as
soon as reasonably practicable thereafter, notify the Principal
Borrower and the Banks thereof and the then prevailing Termination
Date shall be deferred to the date specified in such notice, such
deferral taking effect automatically on the then prevailing
Termination Date.
13. CANCELLATION AND PREPAYMENT
13.1 Prepayment of the Original Term Loan
Subject to the provisions of Clause 28.4 (Break Costs), the Borrower
to which an Original Term Advance has been made may, if it has given
to the Agent not less than five Business Days' prior written notice
to that effect, prepay the whole of any Original Term Advance or any
part of any Original Term Advance (being an amount equal to or
greater than CHF50,000,000) at any time. Any prepayment so made shall
reduce pro tanto the Borrowers' repayment obligations under Clause 10
(Repayment of the Original Term Facility).
13.2 Cancellation of the Revolving Facility
The Principal Borrower may, by giving to the Agent not less than five
Business Days' prior written notice to that effect, cancel the whole
or any part (being an amount equal to or greater than CHF50,000,000)
of the Available Revolving Facility. Any such cancellation shall
reduce the Available Revolving Commitment and the Revolving
Commitment of each Bank rateably.
13.3 Prepayment of the Revolving Loan
Subject to the provisions of Clause 28.4 (Break Costs), the Borrower
to which a Revolving Advance has been made may, by giving to the
Agent not less than five Business Days prior written notice to that
effect, prepay the whole or any part of a Revolving Advance (being an
amount such that such Revolving Advance will be reduced by an amount
equal to or greater than CHF50,000,000).
13.4 Notice of Cancellation or Prepayment
Any notice of cancellation or prepayment given by a Borrower pursuant
to this Clause 13 shall be irrevocable, shall specify the date upon
which such cancellation or prepayment is to be made and the amount of
such cancellation or prepayment and, in the case of a notice of
prepayment, shall oblige the relevant Borrower to make such
prepayment on such date.
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13.5 Repayment of a Bank's Share of the Loan
If:
13.5.1 any sum payable to any Bank by an Obligor is required to be
increased pursuant to Clause 15.1 (Tax Gross-up); or
13.5.2 any Bank claims indemnification from the Obligors under
Clause 15.2 (Tax Indemnity), the Agent claims
indemnification from the Obligors under Clause 15.2 (Tax
Indemnity) in respect of payment received by it and paid by
it to a Bank under the Finance Documents or any Bank claims
indemnification from the Principal Borrower under Clause
17.1 (Increased Costs); or
13.5.3 any Bank gives notice to the Principal Borrower in
accordance with the provisions of Clause 15.5 (Bank
Notification),
the Principal Borrower may, whilst such circumstance continues, give
the Agent at least five Business Days' prior written notice (which
notice shall be irrevocable) of its intention to procure the
repayment of such Bank's share of the Loan. On the last day of each
then current Interest Period or Term, or at any other time subject to
the provisions of Clause 28.4 (Break Costs), each Borrower to which
an Advance has been made shall repay such Bank's portion of the
Advance to which such Interest Period or Term relates. Any repayment
of an Original Term Advance so made shall reduce pro tanto the
Borrowers' repayment obligations under Clause 10 (Repayment of the
Original Term Facility).
13.6 No Further Advances
A Bank for whose account a repayment is to be made under Clause 13.5
(Repayment of a Bank's Share of the Loan) shall not be obliged to
participate in the making of Advances on or after the date upon which
the Agent receives the Principal Borrower's notice of its intention
to procure the repayment of such Bank's share of the Loan, and such
Bank's Available Revolving Commitment shall be reduced to zero.
13.7 No Other Repayments
The Borrowers shall not repay all or any part of the Loan except at
the times and in the manner expressly provided for in this Agreement.
13.8 No Reborrowing of the Original Term Facility
None of the Borrowers shall be entitled to reborrow any amount of the
Original Term Facility which has been repaid.
14. MANDATORY PREPAYMENT
14.1 Mandatory Prepayment from Acquisition Recovery Proceeds
The Principal Borrower and Shareholder shall ensure that Acquisition
Recovery Proceeds received by the Shareholder or any member of the
Restricted Group, above an aggregate minimum threshold of Acquisition
Recovery Proceeds of CHF5,000,000 (the "Minimum Threshold"), are paid
to the Agent and applied in repayment of the Loan in accordance with
Clause 14.3 (Application of Proceeds) unless the Principal Borrower
can show to the satisfaction of the Agent (acting reasonably) that:
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14.1.1 the first CHF130,000,000 aggregate amount of Acquisition
Recovery Proceeds received above the Minimum Threshold have
been, or will promptly upon receipt be, deposited in the
Escrow Account in accordance with the provisions of Clause
14.2 (Payment of Acquisition Recovery Proceeds into Escrow
Account); and
14.1.2 all Acquisition Recovery Proceeds falling within sub-clause
14.1.1 are to be applied towards an Acquisition Remedy
within a period of 365 days from the date of receipt of such
Acquisition Recovery Proceeds by the Shareholder or the
relevant member of the Restricted Group.
Any Acquisition Recovery Proceeds received above the first
CHF150,000,000 aggregate amount of Acquisition Recovery Proceeds
shall be paid to the Agent and applied in repayment of the Loan in
accordance with Clause 14.3 (Application of Proceeds).
14.2 Payment of Acquisition Recovery Proceeds into Escrow Account
The Principal Borrower and Shareholder shall ensure that any
Acquisition Recovery Proceeds to be applied towards an Acquisition
Remedy in accordance with sub-clause 14.1.2 of Clause 14.1 (Mandatory
Prepayment from Acquisition Recovery Proceeds) are deposited in the
Escrow Account. The Shareholder or the relevant member of the
Restricted Group that received the Acquisition Recovery Proceeds
shall be entitled, during the aforementioned 365 day period, to
withdraw sums from the Escrow Account only to the extent that it is
reasonably able to demonstrate that such sums will be applied towards
an Acquisition Remedy. Any sums not so withdrawn during such 365 day
period shall thereafter be paid to the Agent and applied in repayment
of the Loan in accordance with Clause 14.3 (Application of Proceeds).
14.3 Application of Proceeds
14.3.1 Any amounts paid to the Agent in accordance with Clause 14.1
(Mandatory Prepayment from Acquisition Recovery Proceeds)
and Clause 14.2 (Payment of Acquisition Recovery Proceeds
into Escrow Account) shall be retained in the Escrow Account
for application on one or more Repayment Dates or the last
day of Interest Periods in respect of Original Term Advances
until such time as such amounts have been applied in full in
repayment of the Loan in accordance with this 14.3.
14.3.2 Subject to sub-clause 14.3.3 below, any amounts paid to the
Agent in accordance with Clause 14.1 (Mandatory Prepayment
from Acquisition Recovery Proceeds) and Clause 14.2 (Payment
of Acquisition Recovery Proceeds into Escrow Account) shall,
on the dates indicated in sub-clause 14.3.1 above, be
applied as follows: (i) first, in prepayment of the Original
Term Loan (satisfying pro tanto the Borrowers' repayment
obligations under Clause 10 (Repayment of the Original Term
Facility)), (ii) secondly, in prepayment of the Revolving
Loan (and a corresponding cancellation of the Available
Revolving Facility), in an amount equal to the balance not
applied in accordance with (i) above and (iii) thirdly, if
any excess remains thereafter, in payment of such excess to
the relevant member of the Group and in cancellation of the
remaining Available Revolving Facility by an equal amount,
in each case in accordance with the provisions of Clause 13
(Cancellation and Prepayment).
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14.3.3 If the application of such amounts received by the Agent
would at any time amount to an unlawful distribution by a
member of the Restricted Group to its shareholders and such
amounts cannot otherwise be lent by the member of the
Restricted Group entitled to such amounts to sufficient
Borrowers to allow the requirements of this Clause 14
(Mandatory Repayment) to be satisfied, then the Agent will
retain any monies which cannot be applied in accordance with
this Clause 14 in the Escrow Account until such time that
those monies can be so applied or all amounts outstanding
under the Finance Documents have been repaid in full.
14.4 Mandatory Prepayment due to Change in Control
14.4.1 If any person, or group of persons acting in concert, which
does not at the date hereof have control of the Parent or,
of NTL Inc. acquires control of the Parent or of NTL Inc.:
(a) the Principal Borrower shall give notice of that
event to the Agent promptly upon becoming aware
thereof;
(b) if the Agent (acting on the instructions of an
Instructing Group) gives notice to such effect,
the Available Revolving Commitment (if any) of
each Bank shall immediately be cancelled and
reduced to zero; and
(c) if the Agent (acting on the instructions of an
Instructing Group) gives notice to such effect,
the Loan shall become immediately due and payable
and shall be repaid by the relevant Borrowers
together with accrued interest and all other
amounts payable by the Borrowers under the Finance
Documents within seven days of the date of such
notice.
14.4.2 For the purpose of this Clause 14.4 (Mandatory Prepayment
due to Change in Control):
"control" means:
(a) the power (whether by way of ownership of shares,
proxy, contract, agency or otherwise) to:
(i) cast, or control the casting of, more than
one-half of the maximum number of votes
that might be cast at a general meeting of
the Parent or, as the case may be, NTL
Inc.; or
(ii) appoint or remove all, or the majority, of
the directors or other equivalent officers
of the Parent or, as the case may be, NTL
Inc.; or
(iii) give directions with respect to the
operating and financial policies of the
Parent or, as the case may be, NTL Inc.
which the directors or other equivalent
officers of the Parent or, as the case may
be, NTL Inc. are obliged to comply with;
or
(b) the holding of more than one-half of the issued
share capital of the Parent or, as the case may
be, NTL Inc. (excluding any part of that issued
share
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capital that carries no voting rights or
right to participate beyond a specified amount in
a distribution of either profits or capital).
"acting in concert" means, a group of persons who, pursuant
to an agreement or understanding (whether formal or
informal), actively co-operate, through the acquisition by
any of them, either directly or indirectly, of shares in the
Parent or NTL Inc., to obtain or consolidate control of the
Parent or, as the case may be, NTL Inc.
14.4.3 This Clause 14.4 (Mandatory Prepayment due to Change in
Control) will not apply, and the Available Revolving
Commitments will not be cancelled and the Loan will not
become due and payable, in the event that France Telecom
S.A. or any of its affiliates acquires control of either the
Parent or NTL Inc.
15. TAXES
15.1 Tax Gross-up
All payments to be made by an Obligor to any Bank under the Finance
Documents shall be made free and clear of and without deduction for
or on account of tax unless such Obligor is required to make such a
payment subject to the deduction or withholding of tax, in which case
the sum payable by such Obligor (in respect of which such deduction
or withholding is required to be made) shall, subject to Clause 25.10
(Swiss Withholding Tax) and Clause 15.4 (Excluded Claims), be
increased to the extent necessary to ensure that such Bank receives a
sum net of any deduction or withholding equal to the sum which it
would have received had no such deduction or withholding been made or
required to be made.
15.2 Tax Indemnity
Without prejudice to Clause 15.1 (Tax Gross-up) but subject to Clause
25.10 (Swiss Withholding Tax), if the Agent or (as a result of the
introduction of, or change in or in the interpretation,
administration or application of, any law or regulation or order or
governmental rule or double taxation agreement or any published
practice or concession of any relevant taxing authority after the
date hereof) an Obligor or any Bank (a) is required to make any
payment of or on account of tax on or in relation to any sum received
or receivable under the Finance Documents (including any sum deemed
for purposes of tax to be received or receivable by the Agent or such
Bank whether or not actually received or receivable) or (b) has any
liability in respect of any such payment asserted, imposed, levied or
assessed against it, the Obligors (jointly and severally) shall,
within five Business Days of demand by the Agent, promptly indemnify
the Agent or Bank which suffers a loss or liability as a result
against such payment or liability, together with any interest,
penalties, costs and expenses payable or incurred in connection
therewith, provided that this Clause 15.2 (Tax Indemnity) shall not
apply to:
15.2.1 any tax imposed on and calculated by reference to the net
income, profits or gains actually received or receivable by
the Agent or such Bank (but, for the avoidance of doubt, not
including any sum deemed for purposes of tax to be received
or receivable by the Agent or such Bank but not actually
receivable) by the jurisdiction in which the Agent or such
Bank is incorporated or, if different, the jurisdiction (or
jurisdictions) in which the Agent or such Bank is treated as
resident for tax purposes; or
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15.2.2 any tax imposed on and calculated by reference to the net
income, profits or gains of the Facility Office of the Agent
or such Bank actually received or receivable by the Agent or
such Bank (but, for the avoidance of doubt, not including
any sum deemed for purposes of tax to be received or
receivable by the Agent or such Bank but not actually
receivable) by the jurisdiction in which its Facility Office
is located; or
15.2.3 any tax imposed on a Bank which would not have arisen but
for a payment by such Bank, with reference to this Agreement
and in respect of sums received or receivable under the
Finance Documents.
15.3 Claims by Banks and the Agent
A Bank intending to make a claim pursuant to Clause 15.2 (Tax
Indemnity) shall notify the Agent of the event giving rise to the
claim, whereupon the Agent shall notify the Principal Borrower and
the other Borrowers thereof. If the Agent intends to make a claim
pursuant to Clause 15.2 (Tax Indemnity) it shall notify the Principal
Borrower and the other Borrowers of the event giving rise to the
claim.
15.4 Excluded Claims
If any Bank is not or ceases to be a Qualifying Lender, no Obligor
shall be liable to pay to that Bank under Clause 15.1 (Tax Gross-Up)
any amount in respect of taxes levied or imposed in excess of the
amount it would have been obliged to pay if that Bank had been or had
not ceased to be a Qualifying Lender provided that this Clause 15.4
shall not apply (and each Obligor shall be obliged to comply with its
obligations under Clause 15.1 (Tax Gross-Up)) if:
15.4.1 after the date hereof, there shall have been any
introduction of, or change in or in the interpretation,
administration or application of, any law or regulation or
order or governmental rule or double taxation agreement or
any published practice or concession of any relevant taxing
authority and as a result thereof such Bank ceases to be a
Qualifying Lender; or
15.4.2 such Bank is not or ceases to be a Qualifying Lender as a
result of the actions of or omission to act by any Obligor;
or
15.4.3 the relevant Obligor would be required to make a deduction
or withholding in respect of tax irrespective of whether the
Bank is or is not a Qualifying Lender.
15.5 Bank Notification
Each Bank (other than a Bank which became a Bank in accordance with
sub-clause 35.7.2 of Clause 35.7 (Qualifying Lenders)) shall, as soon
as reasonably practicable after becoming aware that it will cease to
be a Qualifying Lender, other than in the circumstances contemplated
by sub-clauses 15.4.1 or 15.4.2 of Clause 15.4 (Excluded Claims) or
if the circumstances contemplated by sub-clause 15.4.3 of Clause 15.4
(Excluded Claims) apply, notify the Principal Borrower thereof. If a
Bank gives notice in accordance with this Clause 15.5 (Bank
Notification) and at any time thereafter while the relevant
circumstances are continuing the Principal Borrower notifies it (in
writing) that it has identified a financial institution acceptable to
it and willing to participate in the Facilities, then such Bank shall
(as requested in such notice) transfer all of its rights, benefits
and obligations under the Finance Documents to such financial
institution
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provided that, save in the case of a Bank which will cease to be a
Qualifying Lender as a result of a decision by such Bank or any
holding company thereof (or any deliberate omission which has the
same consequence) to cease to carry on the business it carries on and
in respect of which it is a Qualifying Lender, the Principal Borrower
shall reimburse such Bank for all reasonable costs and expenses
incurred in connection with such transfer (including any costs
payable under Clause 28.4 (Break Costs)), other than any minor costs
and expenses of an administrative nature.
16. TAX RECEIPTS
16.1 Notification of Requirement to Deduct Tax
If, at any time, an Obligor is required by law to make any deduction
or withholding from any sum payable by it under the Finance Documents
(or if thereafter there is any change in the rates at which or the
manner in which such deductions or withholdings are calculated), the
Principal Borrower and the Bank to which such sum is payable shall
promptly upon becoming aware of such a requirement notify the Agent
accordingly. If the Agent receives such a notification from a Bank it
shall notify the Principal Borrower and the relevant Obligor.
16.2 Evidence of Payment of Tax
If an Obligor makes any payment under the Finance Documents in
respect of which it is required to make any deduction or withholding,
it shall pay the full amount required to be deducted or withheld to
the relevant taxation or other authority within the time allowed for
such payment under applicable law and shall request and, within
thirty days of it receiving the same, deliver to the Agent for each
Bank an original receipt (or a certified copy thereof) issued by such
authority evidencing the payment to such authority of all amounts so
required to be deducted or withheld in respect of that Bank's share
of such payment.
16.3 Tax Credit Payment
If an additional payment is made under Clause 15 (Taxes) by an
Obligor for the benefit of the Agent or any Bank and the Agent or
such Bank, in its sole discretion, determines that it has obtained
(and has derived full use and benefit from) a credit against, a
relief or remission for, or repayment of, any tax, then, if and to
the extent that the Agent or such Bank, in its sole opinion,
determines that:
16.3.1 such credit, relief, remission or repayment is in respect
of, calculated with reference to or otherwise relates to the
additional payment made pursuant to Clause 15 (Taxes); and
16.3.2 its tax affairs for its tax year in respect of which such
credit, relief, remission or repayment was obtained have
been finally settled,
the Agent or such Bank shall, to the extent that it can do so without
prejudice to the retention of the amount of such credit, relief,
remission or repayment, pay to such Obligor such amount as the Agent
or such Bank shall, in its sole opinion, determine to be the amount
which will leave the Agent or such Bank (after such payment) in no
worse after-tax position than it would have been in had the
additional payment in question not been required to be made by such
Obligor.
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16.4 Tax Credit Clawback
If the Agent or any Bank makes any payment to an Obligor pursuant to
Clause 16.3 (Tax Credit Payment) and the Agent or such Bank
subsequently determines in its sole opinion that the credit, relief,
remission or repayment in respect of which such payment was made was
not available or has been withdrawn or that it was unable to use such
credit, relief, remission or repayment in full, such Obligor shall
reimburse the Agent or such Bank such amount as the Agent or such
Bank determines in its sole opinion is necessary to place it in the
same after-tax position as it would have been in if such credit,
relief, remission or repayment had been obtained and fully used and
retained by the Agent or such Bank.
16.5 Tax and Other Affairs
No provision of this Agreement shall interfere with the right of any
Finance Party to arrange its tax or any other affairs in whatever
manner it thinks fit, oblige any Finance Party to claim any credit,
relief, remission or repayment in respect of any payment under Clause
15 (Taxes) in priority to any other credit, relief, remission or
repayment available to it nor oblige any Finance Party to disclose
any information relating to its tax or other affairs or any
computations in respect thereof.
17. INCREASED COSTS
17.1 Increased Costs
If, by reason of the occurrence, in each case after the date on which
this Agreement was originally entered into, of (a) any change in law
or in its interpretation or administration and/or (b) compliance with
any such new law or with any request or requirement relating to the
maintenance of capital or any other request from or requirement of
any central bank or other fiscal, monetary or other authority (in
each case, where a request or requirement that does not have the
force of law is a request or requirement with which financial
institutions subject to such request or requirement are generally
accustomed to comply):
17.1.1 a Bank or any holding company of such Bank is unable to
obtain the rate of return on its capital which it would have
been able to obtain but for such Bank's entering into or
assuming or maintaining a commitment or performing its
obligations under the Finance Documents;
17.1.2 a Bank or any holding company of such Bank incurs a cost as
a result of such Bank's entering into or assuming or
maintaining a commitment or performing its obligations under
the Finance Documents; or
17.1.3 there is any increase in the cost to a Bank or any holding
company of such Bank of funding or maintaining such Bank's
share of the Advances or any Unpaid Sum,
then the Principal Borrower shall, within three Business Days of a
demand of the Agent, pay to the Agent for the account of that Bank
amounts sufficient to indemnify that Bank or to enable that Bank to
indemnify its holding company from and against, as the case may be,
(i) such reduction in the rate of return on capital, (ii) such cost
or (iii) such increased cost.
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17.2 Increased Costs Claims
A Bank intending to make a claim pursuant to Clause 17.1 (Increased
Costs) shall notify the Agent of the event giving rise to such claim,
whereupon the Agent shall notify the Principal Borrower thereof.
17.3 Exclusions
Notwithstanding the foregoing provisions of this Clause 17 (Increased
Costs), no Bank shall be entitled to make any claim under this Clause
17 (Increased Costs) in respect of any reduction in the rate of
return on its capital, cost, increased cost or liability:
17.3.1 attributable to a deduction or withholding for or on account
of tax from a payment under a Finance Document required by
law to be made by an Obligor and compensated for pursuant to
the provisions of Clause 15.1 (Tax Gross-Up) (or would have
been compensated for under Clause 15.1 (Tax Gross-Up) but
was not so compensated solely because of Clause 15.4
(Excluded Claims) or Clause 25.10 (Swiss Withholding Tax));
17.3.2 compensated by Clause 15.2 (Tax Indemnity) (or would have
been compensated for under Clause 15.2 (Tax Indemnity) but
was not so compensated solely because of one of the
exclusions set out in sub-clauses 15.2.1 to 15.2.3 of Clause
15.2 (Tax Indemnity) or Clause 25.10 (Swiss Withholding
Tax));
17.3.3 compensated by the Mandatory Cost Rate; or
17.3.4 attributable to the wilful breach by the relevant Finance
Party or its affiliates of any law or regulation.
18. ILLEGALITY
If, at any time, it is or will become unlawful for a Bank to make,
fund or allow to remain outstanding all or part of its share of the
Advances, then that Bank shall, promptly after becoming aware of the
same, deliver to the Principal Borrower through the Agent a notice to
that effect and:
18.1.1 such Bank shall not thereafter be obliged to participate in
the making of any Advances and the amount of its Available
Revolving Commitment (if any) shall be immediately reduced
to zero;
18.1.2 if the Agent on behalf of such Bank so requires, each
Borrower which has drawn an Advance shall on the last day of
the current Interest Period or, as the case may be, Term of
each Advance or, if earlier, on the date specified by such
Bank (being no earlier than the last day of any applicable
grace period permitted by law) repay such Bank's share of
any outstanding Advances together with accrued interest
thereon and all other amounts owing to such Bank under the
Finance Documents; and
18.1.3 any repayment of Original Term Advances so made shall reduce
pro tanto the Borrowers' repayment obligations under Clause
10 (Repayment of the Original Term Facility).
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19. MITIGATION
If any Bank gives notice to the Principal Borrower under Clause 15.5
(Bank Notification) or if, in respect of any Bank, circumstances
arise which would or would upon the giving of notice result in:
19.1.1 an increase in any sum payable to it or for its account
pursuant to Clause 15.1 (Tax Gross-up);
19.1.2 a claim for indemnification pursuant to Clause 15.2 (Tax
Indemnity) or Clause 17.1 (Increased Costs); or
19.1.3 the reduction of its Available Revolving Commitment to zero
or any repayment being required to be made pursuant to
Clause 18 (Illegality),
then, without in any way limiting, reducing or otherwise qualifying
the rights of such Bank or the obligations of the Obligors under any
of the Clauses referred to above, such Bank shall (in the case of the
circumstances referred to in sub-clauses 19.1.1, 19.1.2 and 19.1.3)
promptly upon becoming aware of such circumstances notify the Agent
thereof and, in all cases (but without prejudice to the obligations
of such Bank under Clause 15.5 (Bank Notification)), in consultation
with the Agent and the Principal Borrower and to the extent that it
can do so lawfully, take reasonable steps (including a change of
location of its Facility Office or the transfer of its rights,
benefits and obligations under the Finance Documents to another
financial institution acceptable to the Principal Borrower and
willing to participate in the Facility) to mitigate the effects of
such circumstances, provided that such Bank shall be under no
obligation to take any such action if, in the opinion of such Bank,
to do so might have any adverse effect upon its business, operations
or financial condition (other than any minor costs and expenses of an
administrative nature).
20. REPRESENTATIONS
Each Obligor (other than the Shareholder) makes the representations
and warranties set out in Clause 20.1 (Status) to Clause 20.11 (Legal
and Beneficial Owner) and, in addition, the Principal Borrower makes
the representations set out in Clause 20.20 (No Winding Up) to Clause
20.33 (Good Title to Assets).
The Shareholder makes the representations set out in Clause 20.1
(Status) to Clause 20.4 (Execution of Finance Documents), Clause 20.6
(Audited Financial Statements), Clause 20.7 (Original Financial
Statements), Clause 20.9 (Validity and Admissibility in Evidence) to
Clause 20.12 (Business Plan), Clause 20.18 (No Trading), Clause 20.22
(Information Memorandum), Clause 20.27 (Encumbrances and Financial
Indebtedness) and Clause 20.34 (Sale of the Restricted Group).
The Parent makes the representations and warranties set out in Clause
20.1 (Status) to Clause 20.4 (Execution of the Finance Documents),
Clause 20.9 (Validity and Admissibility in Evidence), Clause 20.13
(Initial Parent Information) to Clause 20.19 (Ownership of the
Shareholder), sub-clause 20.24.1 of Clause 20.24 (Other Information)
and Clause 20.30 (Consents and Approvals).
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The Original Obligors and the Parent acknowledge that the Finance
Parties have entered into this Agreement in reliance on those
representations and warranties.
The Finance Parties agree that the representations on the Information
Memorandum set out in Clause 20.22 (Information Memorandum) and
provided by the Shareholder supersede and replace any representations
relating to the Information Memorandum made by the Parent prior to
the date of this Agreement.
20.1 Status
It is a corporation duly organised under the laws of its jurisdiction
of incorporation and has the power and all necessary governmental and
other consents, approvals, licences and authorisations under any
applicable jurisdiction to own its property and assets and to carry
on its business as currently conducted, save where the failure to
have such consents, approvals, licences and authorisations could not
reasonably be expected to have a Material Adverse Effect.
20.2 Governing Law and Judgments
In any proceedings taken in its jurisdiction of incorporation in
relation to the Finance Documents to which it is a party, the choice
of English law as the governing law of this Agreement and the choice
of English, Swiss, Dutch or, as the case may be, Austrian law as the
governing law of certain other of the Finance Documents to which it
is a party and any judgment obtained in
England, Switzerland, The
Netherlands or, as the case may be, Austria will (subject to the
Reservations) be recognised and enforced.
20.3 Binding Obligations
The obligations expressed to be assumed by it in the Finance
Documents to which it is a party are legal and valid obligations and
(subject to the Reservations) binding on it and enforceable against
it in accordance with the terms thereof.
20.4 Execution of the Finance Documents
Its execution of the Finance Documents to which it is a party and, if
applicable, the Acquisition Documents to which it is a party and its
exercise of its rights and performance of its obligations thereunder
do not and will not:
20.4.1 conflict with any agreement, mortgage, bond or other
instrument or treaty to which it is a party or which is
binding upon it or any of its assets in a manner that could
reasonably be expected to have a Material Adverse Effect;
20.4.2 conflict with its constitutive documents; or
20.4.3 conflict with any applicable law.
It has the power to enter into and perform its obligations under the
Finance Documents to which it is a party and, if applicable, the
Acquisition Documents to which it is a party and all corporate and
other action required to authorise the execution of such Finance
Documents and Acquisition Documents and the performance of its
obligations thereunder has been duly taken. No limit on its powers
will be exceeded as a result of the borrowings, granting of security
or giving of guarantees contemplated by the Finance Documents to
which it is a party.
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20.5 No Material Proceedings
No action or administrative proceeding of or before any court,
arbitrator or agency (including, but not limited to, investigative
proceedings) which could reasonably be expected to have a Material
Adverse Effect has been started or threatened against it or its
assets.
20.6 Audited Financial Statements
Its most recent audited financial statements (consolidated in the
case of the Shareholder and the Principal Borrower) delivered to the
Agent in accordance with Clause 21 (Financial Information):
20.6.1 were prepared in accordance with accounting principles
generally accepted in its jurisdiction of incorporation and
consistently applied;
20.6.2 disclose all material liabilities (contingent or otherwise)
and all material unrealised or anticipated losses of such
Obligor, any member of the Restricted Group or, as the case
may be, any member of the Group; and
20.6.3 save as disclosed therein, give a true and fair view of the
financial condition and operations of such Obligor, the
Restricted Group or, as the case may be, the Group during
the relevant financial year.
20.7 Original Financial Statements
Its financial statements (referred to in paragraphs (b) and (c) of
the definition of Original Financial Statements) and, in the case of
the Shareholder, the financial statements of the Cablecom Business
(referred to in paragraph (a) of the definition of Original Financial
Statements), to the best of its knowledge and belief (having made all
reasonable efforts to make due and careful enquiry):
20.7.1 were prepared in accordance with accounting principles
generally accepted in Switzerland and consistently applied;
20.7.2 disclose all material liabilities (contingent or otherwise)
and all material unrealised or anticipated losses of it and,
in the case of the Shareholder, the Cablecom Business; and
20.7.3 save as disclosed therein, give a true and fair view of the
financial condition and operations of it and, in the case of
the Shareholder, the Cablecom Business during the period to
which such financial statements relate.
20.8 No Material Adverse Change
Since the date as at which its most recent audited financial
statements (consolidated, in the case of the Principal Borrower) were
stated to be prepared, there has been no change in its business or
financial condition or, in the case of the Principal Borrower, in the
business or financial condition of any member of the Restricted Group
or of the Restricted Group taken as a whole which, in each case,
could reasonably be expected to have a Material Adverse Effect.
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20.9 Validity and Admissibility in Evidence
All acts, conditions and things required to be done, fulfilled and
performed in order:
20.9.1 to enable it lawfully to enter into, exercise its rights
under and perform and comply with the obligations expressed
to be assumed by it in the Finance Documents to which it is
a party;
20.9.2 to ensure that the obligations expressed to be assumed by it
in the Finance Documents to which it is a party are legal,
valid and (subject to the Reservations) binding and
enforceable; and
20.9.3 subject to the Reservations, to make the Finance Documents
admissible in evidence in its jurisdiction of incorporation,
have been (or will be, no later than the latest time allowed by
applicable law or procedure) done, fulfilled and performed.
20.10 No Filing or Stamp Taxes
Under the laws of its jurisdiction of incorporation in force at the
date hereof, it is not necessary that the Finance Documents to which
it is a party be filed, recorded or enrolled with any court or other
authority in such jurisdiction or that any stamp, registration or
similar tax be paid on or in relation to such Finance Documents,
other than fees and duties relating to public deeds and entries in
public registries which may be required to be made or paid in respect
of the Security Documents.
20.11 Legal and Beneficial Owner
Subject to (a) any Permitted Encumbrances, (b) any security granted
under the Security Documents to which it is a party and (c) any
disclosures in the Disclosure Letter, it is the absolute legal and,
where applicable, beneficial owner of all its material assets, which
are subject to any such Security and/or are employed in and necessary
for the operation of its business in accordance with the Business
Plan.
20.12 Business Plan
The most recently delivered Business Plan has been prepared using
accounting policies, practices and procedures consistent, in all
material respects, with those applied in the preparation of the
Original Financial Statements. After due and careful consideration,
the Principal Borrower, having made all reasonable efforts to make
due and careful enquiry:
20.12.1 is not aware of any material inaccuracy as to factual
matters contained in the Business Plan (by reference to the
facts applicable at the date such Business Plan is delivered
to the Agent);
20.12.2 does not (as at the date on which such Business Plan is
delivered to the Agent) regard as unreasonable, or to any
material extent, unattainable, any of the forecasts or
projections set out in such Business Plan;
20.12.3 believes (having made all reasonable enquiries) the
assumptions, upon which the forecasts and projections
contained in such Business Plan are based, to be fair and
reasonable in all material respects (by reference to the
facts applicable at the date such Business Plan is delivered
to the Agent);
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20.12.4 is not aware of any facts or matters omitted from such
Business Plan (as at the date it is delivered to the Agent)
or the omission of which make any statements contained
therein misleading in any material respect; and
20.12.5 has made (prior to delivery of such Business Plan) full
disclosure of all material facts to all the persons
responsible for the preparing of such Business Plan.
20.13 Initial Parent Information
20.13.1 All of the written information (other than the Information
Memorandum) supplied by any member of the NTL Inc. Group,
any member of the NTL Inc. Holding Group or any of their
advisers to the Agent, the Banks or their advisers in
connection with the Finance Documents was, to the best of
its knowledge and belief (having made all reasonable efforts
to make due and careful enquiry), true, complete and
accurate in all material respects as at the date such
information was supplied (or at such subsequent date, prior
to the date on which this Agreement was originally entered
into, on which such information was revised, replaced or
corrected) and is not misleading in any material respect.
20.13.2 The Parent has not knowingly failed to disclose to the
Arrangers or the Agent any material facts or circumstances
which would be reasonably likely, if disclosed, to affect
adversely the decision of a person considering whether or
not to provide finance (or finance on the terms hereof) to
the Borrowers.
20.14 Group Structure
20.14.1 The Group Structure Chart (excluding for the purposes of
this representation, items (e) and (f) of the definition of
"Group Structure Chart") delivered to the Agent as a
condition precedent to the Restatement Amendment Agreement
and any revised Group Structure Chart delivered to the Agent
pursuant to Clause 23.31 (Revised Group Structure) is true,
complete and accurate as at the date of its delivery to the
Agent.
20.14.2 The Hivedown and all necessary inter-company loans, share
transfers, share exchanges and other steps resulting in the
final structure set out in the Group Structure Chart have
been taken in compliance with all relevant laws and
regulations and all requirements of relevant regulatory
authorities.
20.15 No NTL Inc. Holding Group Winding-up
No member of the NTL Inc. Holding Group has taken any corporate
action nor have any other steps been taken or legal proceedings been
started or (to the best of its knowledge and belief) threatened
against any member of the NTL Inc. Holding Group for its winding-up,
dissolution, administration or re-organisation (whether by voluntary
arrangement, scheme of arrangement or otherwise) or for the
appointment of a receiver, administrator, administrative receiver,
conservator, custodian, trustee or similar officer of it or of any or
all of its assets or revenues.
20.16 No NTL Note Defaults
20.16.1 No NTL Note issued by any member of the NTL Inc. Holding
Group (a) remains as to its principal, capital or nominal
amount (including capitalised interest) unpaid when due or
after the expiry of any grace period provided for or
otherwise allowed in relation thereto or (b) has been
declared to be or has
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otherwise become due and payable prior to its specified
maturity (on account of an event of default (howsoever
described)).
20.16.2 No breach of or default under any NTL Note issued by any
member of the NTL Inc. Holding Group will occur as a result
of the completion of the Acquisition, the Hivedown and the
Parent's and the Obligors' entry into the Finance Documents
and performance of their obligations thereunder.
20.17 Acquisition Documents
20.17.1 Save for (a) minor or technical amendments, variations or
waivers, (b) amendments, variations or waivers approved in
writing by the Agent and (c) disclosures made in the
Disclosure Letter, there has been no amendment to, or
variation or waiver of, the terms of the Acquisition
Documents.
20.17.2 Subject to any disclosures in the Disclosure Letter, it is
not aware of any event, fact or circumstance which would
constitute a material breach of warranty or
misrepresentation or material breach of contract in respect
of an Acquisition Document, or otherwise allow it to make
any other claim (other than minor claims of a non material
nature) against either the Vendor or the Vendor's
shareholders.
20.18 No Trading
Save as contemplated by, or otherwise in connection with, the Finance
Documents, the Hivedown and the Acquisition Documents and the
transactions contemplated hereby or thereby, the Shareholder has not
traded or undertaken any commercial activities of any kind and has no
liabilities or obligations (actual or contingent).
20.19 Ownership of the Shareholder
The Shareholder is, on the date on which this Agreement was
originally entered into, a wholly owned indirect subsidiary of the
Parent.
20.20 No Winding-up
Save for a solvent liquidation of a dormant member of the Restricted
Group which is not an Obligor, neither the Shareholder nor any member
of the Restricted Group has taken any corporate action nor have any
other steps been taken or legal proceedings been started or (to the
best of its knowledge and belief) threatened against the Shareholder
or any member of the Restricted Group for its winding-up,
dissolution, administration or re-organisation (whether by voluntary
arrangement, scheme of arrangement or otherwise) or for the
appointment of a receiver, administrator, administrative receiver,
conservator, custodian, trustee or similar officer of it or of any or
all of its assets or revenues.
20.21 No Material Defaults
No member of the Restricted Group is in breach of or in default under
any agreement to which it is a party or which is binding on it or any
of its assets to an extent or in a manner which could reasonably be
expected to have a Material Adverse Effect.
20.22 Information Memorandum
The factual information contained in the Information Memorandum is,
to the best of its knowledge and belief (having made all reasonable
efforts to make due and careful enquiry), correct in all material
respects and does not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements
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contained therein not materially misleading in light of the
circumstances under which such statements were made. The financial
projections contained therein have been made in good faith and on the
basis of assumptions believed by the Shareholder to be reasonable and
nothing has occurred since the date of the Information Memorandum
that renders the information contained in the Information Memorandum
untrue or misleading in any material respect.
20.23 Budgets
It:
20.23.1 regards (as at the date each Budget is delivered to the
Agent) as neither unreasonable, nor to any material extent
unattainable, any of the forecasts or projections set out in
the latest Budget delivered under Clause 21.6 (Budgets);
20.23.2 believes (having made all reasonable enquiries) the
assumptions, upon which the forecasts and projections in
relation to the Cablecom Business contained in the latest
Budget delivered under Clause 21.6 (Budgets) are based, to
be fair and reasonable; and
20.23.3 has, to the best of its knowledge and belief (having made
all reasonable efforts to make due and careful enquiry),
made full disclosure of all material facts relating to the
Cablecom Business to all the persons responsible for the
preparing of the latest Budget delivered under Clause 21.6
(Budgets).
20.24 Other Information
All written information (other than the Information Memorandum)
supplied:
20.24.1 in the case of the Parent, by the Parent prior to the date
on which this Agreement was originally entered into; or
20.24.2 in the case of the Principal Borrower, by any member of the
Restricted Group,
is true, complete and accurate in all material respects as at the
date it was given and is not misleading in any material respect.
20.25 Environmental Compliance
Each member of the Restricted Group has complied in all material
respects with all Environmental Law and obtained and maintained any
Environmental Permits breach of which or, as the case may be, failure
to obtain or maintain which, could reasonably be expected to have a
Material Adverse Effect.
20.26 Environmental Claims
No Environmental Claim has been commenced or (to the best of the
Principal Borrower's knowledge and belief) is threatened against any
member of the Restricted Group where such claim would be reasonably
likely, if determined against such member of the Restricted Group, to
have a Material Adverse Effect.
20.27 Encumbrances and Financial Indebtedness
20.27.1 Save (in each case) for Permitted Encumbrances, no
Encumbrance exists over all or any of the present or future
revenues or assets of it and, in the case of the Principal
Borrower, any member of the Restricted Group.
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20.27.2 Save (in each case) for Permitted Financial Indebtedness, it
has no Financial Indebtedness and, in the case of the
Principal Borrower, no member of the Restricted Group has
any Financial Indebtedness.
20.28 Ownership of the Principal Borrower
The Principal Borrower and, prior to the completion of the Initial
Mergers, CC AG are wholly-owned subsidiaries of the Shareholder.
20.29 Original Guarantors
The aggregate EBITDA of the Original Guarantors for the financial
year ended 31 December 1999 equals or exceeds 95% of the aggregate
EBITDA of the Cablecom Business for that financial year.
20.30 Consents and Approvals
20.30.1 All necessary consents, licences, authorisations and
approvals in relation to the transactions constituted by the
Acquisition Documents and the Finance Documents have been
obtained and, save in each case where failure to obtain the
same could not reasonably be expected to have a Material
Adverse Effect, all consents, licences (including, without
limitation, the Licences), authorisations and other
approvals necessary for the conduct of the business of the
Restricted Group as carried on immediately prior to the
Acquisition have been, or when required will be obtained
and, to the best of its knowledge and belief, their terms
and conditions have been complied with and they have not
been and will not be revoked or otherwise terminated.
20.30.2 All Swiss tax consents, tax rulings, authorisations,
clearances and approvals either have been or will, to the
best of its knowledge and belief, be obtained:
(a) to allow the equity contribution of the Principal
Borrower and CC AG to the Shareholder to be made
without incurring capital duty tax;
(b) to allow the income and interest expenses of the
members of the Restricted Group to be treated in
accordance with the Business Plan;
(c) to allow the Initial Mergers to be completed; and
(d) confirming compliance with the Swiss thin
capitalisation rules
20.31 Security Interest
20.31.1 Subject (in each case) to the Reservations, each Security
Document creates the security interest which that Security
Document purports to create or, if that Security Document
purports to evidence a security interest, accurately
evidences a security interest which has been validly created
and each security interest ranks in priority as specified in
the Security Document creating or evidencing that interest.
20.31.2 Subject to the disclosures in the Disclosure Letter, the
shares of any Restricted Group member which are subject to
an Encumbrance under the Security Documents are fully paid
and not subject to any option to purchase or similar rights
and the constitutional documents of any such Restricted
Group member do not and could not restrict or inhibit
(whether absolutely, partly, under a
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discretionary power or otherwise) any transfer of such
shares pursuant to enforcement of the Security Documents.
20.32 Intellectual Property
It is not aware of any adverse circumstance relating to validity,
subsistence or use of any of its or any member of the Restricted
Group's Intellectual Property which could reasonably be expected to
have a Material Adverse Effect.
20.33 Good Title to Assets
Subject to the disclosures in the Disclosure Letter, each member of
the Restricted Group has good title to or valid leases of or other
appropriate licence, authorisation or consent to use its assets
necessary to carry on its business as presently conducted (including,
without limitation and subject to Permitted Disposals, the
fibre-optic backbone network, headends, switches and hybrid fibre
coax networks identified in the Information Memorandum).
20.34 Sale of the Restricted Group
There is no restriction, including any requirement for the Parent,
the Shareholder, the Principal Borrower or any other member of the
Restricted Group to obtain the prior consent of any third party
(other than a consent which has already been obtained), on the
ability of the Shareholder to dispose of its shareholding in the
Principal Borrower or (save as provided for in this Agreement) on the
ability of any member of the Restricted Group to dispose of its
shareholding in any other wholly-owned member of the Restricted Group
subject to the provisions of the Security Documents.
20.35 Repetition of Representations
The Repeated Representations shall be deemed to be repeated by the
Parent or, as the case may be, the relevant Obligor by reference to
the facts and circumstances then existing on the first day of each
Interest Period, on each date on which an Advance is or is to be made
and on each date on which a company becomes (or it is proposed that a
company becomes) an Additional Obligor.
21. FINANCIAL INFORMATION
21.1 Annual Statements
Each Obligor shall as soon as the same become available, but in any
event within 120 days after the end of each of its financial years,
deliver to the Agent in sufficient copies for the Banks its
unconsolidated financial statements (and, in the case of the
Principal Borrower, the consolidated financial statements of the
Restricted Group and, in the case of the Shareholder, the
consolidated financial statements of the Group) for such financial
year, audited by an internationally recognised firm of independent
auditors licensed to practise in its jurisdiction of incorporation.
21.2 Quarterly Statements
The Principal Borrower shall as soon as the same become available but
in any event within 45 days after the end of each Financial Quarter
deliver to the Agent in sufficient copies for the Banks the
consolidated financial statements of the Restricted Group for such
period, together with a management commentary thereon which shall
include a comparison of the consolidated financial statements for
such period with the projections contained in the Business Plan for
the corresponding period.
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21.3 Monthly Statements
The Principal Borrower shall as soon as the same become available but
in any event within 30 days after the end of each calendar month
which ends on or after the Restatement Amendment Effective Date,
deliver to the Agent in sufficient copies for the Banks the
consolidated monthly financial statements of the Restricted Group for
such period. Such financial statements shall be in the form agreed
prior to the Restatement Amendment Effective Date and shall include
the Required Monthly Information.
21.4 Requirements as to Financial Statements
Each Obligor shall ensure that each set of financial statements
delivered by it pursuant to Clause 21.1 (Annual Statements) or 21.2
(Quarterly Statements) is certified by an Authorised Signatory of
such Obligor as giving a true and fair view of its financial
condition (and in the case of the Principal Borrower, the
consolidated financial condition of the Restricted Group and, in the
case of the Shareholder, the consolidated financial condition of the
Group) as at the end of the period to which those financial
statements relate and of the results of its (or, as the case may be,
the Restricted Group's or the Group's) operations during such period.
21.5 Compliance Certificates
The Principal Borrower shall ensure that each set of consolidated
financial statements delivered by it pursuant to Clause 21.1 (Annual
Statements) and Clause 21.2 (Quarterly Statements) is accompanied by
a Compliance Certificate signed by two of its Authorised Signatories.
21.6 Budgets
The Principal Borrower shall, as soon as the same become available,
and in any event no later than 30 days prior to the beginning of each
of its financial years which commences prior to the Restatement
Amendment Effective Date, deliver to the Agent in sufficient copies
for the Banks an annual budget (in a form agreed with the Agent)
prepared by reference to each Financial Quarter in respect of such
financial year of the Restricted Group including:
21.6.1 forecasts of projected disposals (including timing and
amount thereof) on a consolidated basis of the Restricted
Group for such financial year;
21.6.2 projected annual profit and loss accounts (including
projected turnover and operating costs) and projected
balance sheets and cash flow statements, together with the
main operating assumptions relating thereto, on a quarterly
basis, for such financial year on a consolidated basis for
the Restricted Group;
21.6.3 revisions to the projections set out in the Business Plan,
together with the main operating assumptions relating
thereto, for such financial year until 31 March 2010, based
on the financial condition and performance and prospects of
the Restricted Group at such time;
21.6.4 projected capital expenditure to be incurred on a quarterly
basis for such financial year on a consolidated basis for
the Restricted Group;
21.6.5 projected EBIT and EBITDA as at the end of each Financial
Quarter in such financial year; and
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21.6.6 a qualitative analysis and commentary from the management on
its proposed activities for such financial year.
The Principal Borrower shall provide the Agent with details of any
material changes in the projections delivered under this Clause 21.6
(Budgets) as soon as reasonably practicable after it becomes aware of
any such change.
21.7 Fortnightly Cashflow Statements
The Principal Borrower shall, as soon as the same become available
but in any event within 2 Business Days:
21.7.1 after the last Wednesday in each calendar month (the
"Month-End Date"); and
21.7.2 after the Wednesday which is at least two weeks but not more
than three weeks after the latest Month End Date and at
least two weeks prior to the next Month End Date,
deliver to the Agent in sufficient copies for the Banks a 13 week
rolling cash flow forecast for the Restricted Group (the "Forecast").
Each Forecast shall be in substantially the same form as the pro
forma Forecast agreed with the Agent prior to the Restatement
Amendment Effective Date 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).
21.8 Fortnightly NTL Recapitalisation Update and Fortnightly Cablecom
Refinancing Update
The following shall, simultaneously with delivery of the Forecast
under Clause 21.7 (Fortnightly Cashflow Statements) be delivered to
the Agent in sufficient copies for the Banks:
21.8.1 by the Parent, a written progress report (in form and
substance satisfactory to the Agent, acting reasonably)
describing (in detail) the status of, and proposed terms
for, the NTL Recapitalisation describing any other material
information relevant thereto and describing (inter alia) the
material differences (if any) between the actual position at
the time of delivery of such written progress report and the
position described in the immediately preceding written
progress report delivered hereunder; and
21.8.2 by the Principal Borrower, a written progress report (in
form and substance satisfactory to the Agent, acting
reasonably) describing (in detail) the status of, and
proposed terms (if any) for, the Cablecom Refinancing
describing any other material information relevant thereto
and describing (inter alia) the material differences (if
any) between the actual position at the time of delivery of
such written progress report and the position described in
the immediately preceding written progress report delivered
hereunder.
21.9 Business Plan
The Principal Borrower shall, as soon as the same becomes available,
but in any event prior to 31 January 2003, deliver to the Agent (in
form and substance satisfactory to the Agent, acting reasonably) in
sufficient copies for the Banks the revised Business Plan,
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which shall include in respect of the financial year ended 31
December 2003, an annual budget prepared by reference to each
Financial Quarter in respect of such financial year of the Restricted
Group, including:
21.9.1 forecasts of projected disposals (including timing and
amount thereof) on a consolidated basis of the Restricted
Group for such financial year;
21.9.2 projected annual profit and loss accounts (including
projected turnover and operating costs) and projected
balance sheets and cash flow statements, together with the
main operating assumptions relating thereto, on a quarterly
basis, for such financial year on a consolidated basis for
the Restricted Group;
21.9.3 revisions to the projections set out in the Business Plan
delivered in December 2001, together with the main operating
assumptions relating thereto, for such financial year until
31 March 2010, based on the financial condition and
performance and prospects of the Restricted Group at such
time;
21.9.4 projected capital expenditure to be incurred on a quarterly
basis for such financial year on a consolidated basis for
the Restricted Group;
21.9.5 projected EBIT and EBITDA as at the end of each Financial
Quarter in such financial year; and
21.9.6 a qualitative analysis and commentary from the management on
its proposed activities for such financial year.
21.10 Information for Reporting Accountants
The Principal Borrower shall, and shall procure that each member of
the Restricted Group shall, provide the Reporting Accountants with
(i) all such information as may be requested by the Reporting
Accountants (acting reasonably) and (ii) access to, and permission to
inspect, the assets, books, records and premises of the Principal
Borrower and each member of the Restricted Group, in order to enable
the Reporting Accountants to prepare the Performance Update Report.
The Principal Borrower hereby acknowledges that the Reporting
Accountants will require a substantially finalised draft of the
revised Business Plan delivered pursuant to Clause 21.9 (Business
Plan) to be delivered to them no later than 31 December 2002 to
enable them to prepare the Performance Update Report.
21.11 Other Financial Information
Each Obligor shall from time to time on the request of the Agent,
furnish the Agent with such information about the business, condition
(financial or otherwise), operations, performance, properties or
prospects of the Restricted Group as the Agent or any Bank (through
the Agent) may reasonably require provided that no Obligor shall be
under any obligation to supply any information the supply of which it
can demonstrate would be contrary to any confidentiality obligation
binding on it.
21.12 Accounting Policies
Each Obligor shall ensure that each set of financial statements
delivered pursuant to this Clause 21 (Financial Information) is
prepared using accounting policies, practices and procedures
consistent with those applied in the preparation of the Original
Financial Statements unless, in relation to any such set of financial
statements, the relevant Obligor
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notifies the Agent that there have been one or more changes in any
such accounting policies, practices, procedures or reference period
and:
21.12.1 the auditors of such Obligor provide:
(a) a description of the changes and the adjustments
which would be required to be made to those
financial statements in order to cause them to use
the accounting policies, practices, procedures and
reference period upon which the Original Financial
Statements of such Obligor were prepared; and
(a) sufficient information, in such detail and format
as may be reasonably required by the Agent, to
enable the Banks to make an accurate comparison
between the financial position indicated by those
financial statements and the Original Financial
Statements of such Obligor,
in which case any reference in this Agreement to those
financial statements shall be construed as a reference to
those financial statements as adjusted to reflect the basis
upon which the Original Financial Statements were prepared;
or
21.12.2 the Principal Borrower also notifies the Agent that it is no
longer practicable to test compliance with the financial
condition set out in Clause 22.1 (Financial Condition)
against the financial statements received in which case:
(a) the Agent and the Principal Borrower shall enter
into negotiations with a view to agreeing
alternative financial conditions to replace those
contained in Clause 22.1 (Financial Condition) in
order to maintain a consistent basis for the
financial covenants; and
(b) if, after one month commencing on the date of the
notice given to the Agent pursuant to this
sub-clause 21.12.2, the Agent and the Principal
Borrower cannot agree alternative financial
conditions which are acceptable to an Instructing
Group, the Agent shall refer the matter to such
internationally recognised accounting firm as may
be agreed between the Principal Borrower and an
Instructing Group for determination of the
adjustments required to be made to such financial
statements or the calculation of such ratios to
take account of such change, such determination to
be binding on the parties hereto, provided that
pending such determination the Principal Borrower
shall continue to prepare financial statements and
calculate such ratios in accordance with
sub-clause 21.12.1 above.
21.13 General Information
The Principal Borrower shall, as soon as reasonably practicable,
furnish the Agent with such general information as it or any member
of the Restricted Group is required by law to supply or make
available to its (or such member of the Restricted Group's) (a)
shareholders (in their capacity as such) or (b) creditors generally
or any class thereof.
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21.14 Litigation and Government or Regulatory Enquiry
The Shareholder (in respect of itself) and the Principal Borrower (in
respect of itself and each other member of the Restricted Group)
shall advise the Agent forthwith of the details of:
21.14.1 any litigation, arbitration or administrative proceedings
pending or threatened against it or, as the case may be, any
other member of the Restricted Group which may result in
liability of it or, as the case may be, such other member of
the Restricted Group in an amount in excess of CHF2,000,000
(or its equivalent); and
21.14.2 any notice or communication received by it or, as the case
may be, any other member of the Restricted Group from, or
any actual or potential enquiry, investigation or
proceedings commenced by, any government, court or
regulatory agency or authority, if such notice,
communication, enquiry, investigation or proceedings could
reasonably be expected to have a Material Adverse Effect.
21.15 Overindebtedness
The Principal Borrower and the relevant members of the Restricted
Group shall notify the Agent and the Reporting Accountants
immediately upon becoming aware of any circumstances due to which
Article 817/725 of the Swiss Federal Code of Obligations is or
becomes applicable to any member of the Restricted Group.
22. FINANCIAL CONDITION
22.1 Financial Condition
The Principal Borrower shall ensure that the financial condition of
the Restricted Group shall be such that:
22.1.1 Minimum EBITDA
The EBITDA of the Restricted Group for each of the Financial
Quarters ended on each of the Quarter Dates specified in
column one below shall be no less than the figure set out in
column two below corresponding to that date:
------------------------------------ ---------------------------------
Column One Column Two
Quarter Date Minimum EBITDA (CHF)
------------------------------------ ---------------------------------
31 March 2002 44,000,000
30 June 2002 51,000,000
30 September 2002 61,000,000
31 December 2002 69,000,000
31 March 2003 64,000,000
------------------------------------ ---------------------------------
22.1.2 Total Cash Interest Cover Ratio
The ratio of the EBITDA of the Restricted Group for each
Relevant Period ended on the Quarter Dates specified in
column one below to the Consolidated Finance Charges of the
Restricted Group for that Relevant Period shall be equal to
or greater than the ratio set out in column two below
corresponding to that date.
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------------------------------------ ---------------------------------
Column One Column Two
Quarter Date EBITDA:
Consolidated Finance Charges
------------------------------------ ---------------------------------
31 March 2002 1.00:1
30 June 2002 1.10:1
30 September 2002 1.10:1
31 December 2002 1.15:1
31 March 2003 1.20:1
------------------------------------ ---------------------------------
22.1.3 Minimum Hi-Speed Internet Subscribers
The number of Hi-Speed Internet Subscribers on each of the
Quarter Dates specified in column one below shall be no less
than the figure set out in column two below corresponding to
that date:
---------------------------------------------------------------------
Column One Column Two
Quarter Date Minimum Number of Hi-Speed
Internet
Subscribers
---------------------------------------------------------------------
31 March 2002 75,000
30 June 2002 95,000
30 September 2002 110,000
31 December 2002 120,000
31 March 2003 145,000
---------------------------------------------------------------------
22.1.4 Maximum Capital Expenditure
The Capital Expenditure of the Restricted Group for each of
the periods which begin on 1 January 2002 and end on each of
the Quarter Dates specified in column one below shall be no
greater than the figure set out in column two below
corresponding to that date:
---------------------------------------------------------------------
Column One Column Two
Quarter Date Cumulative Maximum Capital
Expenditure (CHF)
---------------------------------------------------------------------
31 March 2002 60,000,000
30 June 2002 129,000,000
30 September 2002 191,000,000
31 December 2002 250,000,000
31 March 2003 310,000,000
---------------------------------------------------------------------
22.1.5 Minimum Liquidity Headroom
The Liquidity Headroom of the Restricted Group on each of
the Quarter Dates specified in column one below shall be no
less than the figure set out in column two below
corresponding to that date:
---------------------------------------------------------------------
Column One Column Two
Quarter Date Minimum Liquidity Headroom
(CHF)
---------------------------------------------------------------------
31 March 2002 96,000,000
30 June 2002 209,000,000
30 September 2002 36,000,000
31 December 2002 55,000,000
31 March 2003 82,000,000
---------------------------------------------------------------------
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22.2 Financial Definitions
In this Agreement the following terms have the following meanings.
"Annualised EBITDA" means with respect to any Quarter Date, the
consolidated EBITDA of the Restricted Group for the Relevant Period
ended on such Quarter Date, multiplied by two.
"Capital Expenditure" means at the date of measurement, any
expenditure in relation to which contracts for the supply of
equipment or services have been entered into in a legally binding
form, whether or not invoiced or payable at the date of measurement,
and which would be treated as capital expenditure in accordance with
accounting principles generally accepted in Switzerland, provided
that any such contract (or part of such contract) which is
subsequently cancelled or not fulfilled shall not be included save to
the extent of any payment obligation arising in connection with such
cancellation or non-fulfilment.
"Consolidated Finance Charges" means, in respect of each Relevant
Period, the aggregate amount of the interest (including the interest
element of leasing and hire purchase payments) commission, fees and
other periodic finance payments paid or due and payable by any member
of the Restricted Group in cash in respect of Financial Indebtedness
during such a Relevant Period,
(a) including any commission, fees and other finance payments
payable by any member of the Restricted Group in cash under
any interest rate hedging arrangement;
(b) deducting any commission, fees and other finance payments
receivable by any member of the Restricted Group under any
interest rate hedging instrument permitted by this
Agreement; and
(c) excluding, for the avoidance of doubt, any capitalised
interest in respect of any Subordinated Funding or any other
payment in relation to Subordinated Funding which cannot be
made due to the subordination of such Subordinated Funding
remaining in full force and effect.
"EBIT" means, in respect of any period, the consolidated net income
of the Restricted Group for such period adding back (only to the
extent, in each case, deducted in calculating such consolidated net
income):
(a) any provision on account of taxation;
(b) any interest (including capitalised interest), commission,
discounts or other fees incurred or payable, received or
receivable, by any member of the Restricted Group in respect
of Indebtedness for Borrowed Money;
(c) any amounts received or paid pursuant to the interest
hedging arrangements entered into in respect of the
Facilities; and
(d) any items treated as exceptional or extraordinary items.
"EBITDA" means, in respect of any period, EBIT for such period adding
back (only to the extent, in each case, deducted in calculating
EBIT):
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(a) any amount attributable to amortisation of intangible assets
(including goodwill);
(b) depreciation of tangible assets and capitalised costs and
expenses; and
(c) amortisation, or the writing off, of transaction expenses in
relation to the Acquisition,
and deducting any costs and expenses capitalised during such period
(other than costs and expenses incurred in constructing or upgrading
cable networks in the ordinary course of the Restricted Group's
business).
"Financial Quarter" means the period commencing on the day after one
Quarter Date and ending on the next Quarter Date.
"Hi-Speed Internet Subscribers" means any internet subscribers using
a cable modem but excluding:
(a) any dial-up internet subscribers; and
(b) any internet subscribers (whether cable modem or dial-up
access) in respect of whom no charge is levied for the
provision of their subscription.
"Liquidity Headroom" means, on any Quarter Date, the aggregate of:
(a) the positive cash balances on all bank accounts held by any
member of the Restricted Group; and
(b) the Available Revolving Facility.
"Quarter Date" means 31 March, 30 June, 30 September and 31 December
in each year.
"Relevant Period" means each period of six months ending on a Quarter
Date.
"Senior Debt" means, at any time (without double counting), the
aggregate principal, capital or nominal amounts (including any
capitalised interest) of indebtedness of any member of the Restricted
Group constituting Indebtedness for Borrowed Money together with any
other indebtedness of any member of the Restricted Group constituting
Indebtedness for Borrowed Money which is due and payable and has not
been paid at such time and in respect of which the grace period (if
any) specified in the documentation relating thereto has expired but:
(a) excluding such Indebtedness for Borrowed Money of any member
of the Restricted Group to another member of the Restricted
Group to the extent permitted under this Agreement; and
(b) excluding any Indebtedness for Borrowed Money to the extent
such is Subordinated Funding.
22.3 Financial Testing
The financial covenants set out in Clause 22.1 (Financial Condition)
shall be tested by reference to each of the financial statements
delivered pursuant to Clause 21.2 (Quarterly
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Statements) and/or each Compliance Certificate delivered pursuant to
Clause 21.5 (Compliance Certificates).
22.4 Auditor's Verification
The Agent may, at any time if it has reasonable grounds for believing
that the figures prepared by the Principal Borrower are incorrect,
inaccurate or incomplete at the Principal Borrower's expense require
the auditors of the Restricted Group to verify the figures supplied
by the Principal Borrower in connection with:
22.4.1 the financial conditions set out in Clause 22.1 (Financial
Condition); or
22.4.2 the financial conditions to be satisfied in order to permit
a reduction in the Margin in accordance with Clause 5.3
(Margin Ratchet).
The Agent may also, in accordance with this Clause 22.4 (Auditors
Verification), request confirmation that any figure in a Compliance
Certificate delivered under Clause 21.5 (Compliance Certificates) has
been correctly extracted from the relevant financial statements
delivered under Clause 21 (Financial Information).
22.5 Accounting Terms
All accounting expressions which are not otherwise defined herein
shall be construed in accordance with generally accepted accounting
principles in Switzerland.
23. COVENANTS
23.1 Maintenance of Legal Validity
Each Obligor shall:
23.1.1 do all such things as are necessary to maintain its
existence as a legal person save where it shall cease to
exist as a legal person pursuant to an Additional Merger (or
where it has ceased to exist as a legal person pursuant to
the implementation of the Reorganisation); and
23.1.2 obtain, comply with the terms of and do all that is
necessary to maintain in full force and effect all
authorisations, approvals, licences and consents required in
or by the laws of its jurisdiction of incorporation to (a)
enable it to lawfully enter into and perform its obligations
under the Finance Documents to which it is a party and (b)
ensure the legality, validity, admissibility in evidence or
(subject to the Reservations) enforceability in its
jurisdiction of incorporation of the Finance Documents to
which it is a party.
23.2 Insurance
The Principal Borrower shall procure that each member of the
Restricted Group maintains insurances on and in relation to its
business and assets with reputable underwriters or insurance
companies against such risks and to such extent as is usual for
companies carrying on a business such as that carried on by such
member of the Restricted Group.
23.3 Environmental Compliance
The Principal Borrower shall ensure that each member of the
Restricted Group shall comply in all material respects with all
Environmental Law and obtain and maintain any
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Environmental Permits, breach of which (or failure to obtain or
maintain which) could reasonably be expected to have a Material
Adverse Effect.
23.4 Environmental Claims
The Principal Borrower shall inform the Agent in writing as soon as
reasonably practicable upon becoming aware of the same if any
Environmental Claim has been commenced or (to the best of the
Principal Borrower's knowledge and belief) is threatened against any
member of the Restricted Group in any case where such claim would be
reasonably likely, if determined against such member of the
Restricted Group, to have a Material Adverse Effect, or of any facts
or circumstances which will or are reasonably likely to result in any
Environmental Claim being commenced or threatened against any member
of the Restricted Group in any case where such claim would be
reasonably likely, if determined against such member of the
Restricted Group, to have a Material Adverse Effect.
23.5 Notification of Events of Default
The Principal Borrower shall promptly inform the Agent of the
occurrence of any Event of Default or Potential Event of Default and,
upon receipt of a written request to that effect from the Agent,
confirm to the Agent that, save as previously notified to the Agent
or as notified in such confirmation, no Event of Default or Potential
Event of Default has occurred.
23.6 Claims Pari Passu
Each Obligor shall ensure that, save for claims preferred by any
bankruptcy, insolvency, liquidation or other similar laws of general
application:
23.6.1 at all times the claims of the Finance Parties against it
under the Finance Documents (other than the Security
Documents) to which it is a party rank at least pari passu
with the claims of all its other unsecured and
unsubordinated creditors; and
23.6.2 at all times the claims of the Finance Parties against it
under the Security Documents to which it is a party rank
ahead of the claims of all its other creditors (other than
(if and to the extent applicable) creditors with the benefit
of the Permitted Encumbrances referred to in paragraphs (d),
(e), (f), (h) and (i) of the definition of that term)
against the assets the subject of the Encumbrances created
by such Security Documents.
23.7 Consents and Approvals
23.7.1 Each Obligor (other than the Shareholder) shall, and the
Principal Borrower shall procure that each member of the
Restricted Group shall apply for, obtain, preserve, keep in
full force and effect and comply in all material respects
with the terms and conditions of, all consents, licences
(including, without limitation, the Licences),
authorisations and other approvals necessary to allow such
Obligor or the Restricted Group to conduct its business in
accordance with the Business Plan.
23.7.2 Each Obligor shall, and the Principal Borrower shall procure
that each member of the Restricted Group shall, comply with
all applicable laws, rules, regulations and orders and
obtain and maintain all governmental and regulatory
consents,
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licences, authorisations and approvals the failure to comply
with which or the failure to obtain and maintain which could
reasonably be expected to have a Material Adverse Effect.
23.8 Conduct of Business
Each Obligor (other than the Shareholder) shall, and the Principal
Borrower shall procure that each member of the Restricted Group
shall:
23.8.1 carry on its business, or cause the same to be carried on,
in accordance with the terms and conditions of the Licences
in all material respects and no Obligor shall, and the
Principal Borrower shall procure that no member of the
Restricted Group shall knowingly, do, omit to do or suffer
to be done, any act whereby any person is entitled or
empowered to revoke, materially and adversely amend,
suspend, withdraw or terminate any Licence (except in each
case where the failure to comply with this sub-clause 23.8.1
could not reasonably be expected to have a Material Adverse
Effect); and
23.8.2 save in order to effect the Reorganisation or an Additional
Merger, continue to carry on the business that it carries on
at the date hereof and not enter into any type of business
(other than, for the avoidance of doubt, a business which
relates to the operation of a telecommunications and/or
cable and/or television and/or telephone network or system
or the provision of such services) which would result in a
material change in the business of the Restricted Group
taken as a whole from the business of the Restricted Group
as at the date hereof.
23.9 Compliance with Material Commercial Contracts
Each Obligor (other than the Shareholder) shall, and the Principal
Borrower shall procure that each member of the Restricted Group
shall:
23.9.1 comply in all material respects with its obligations under
each Material Commercial Contract to which it is party and
take all action necessary to ensure the continued validity
and enforceability of its rights thereunder;
23.9.2 not amend, vary, novate or supplement any such Material
Commercial Contract in any material respect; and
23.9.3 not terminate any such Material Commercial Contract prior to
its contractual termination date,
if such non-compliance, failure to take action, amendment, variation,
novation or supplement, or termination, as the case may be, could
reasonably be expected to have a Material Adverse Effect.
23.10 Preservation of Assets
Each Obligor (other than the Shareholder) shall, and the Principal
Borrower shall procure that each member of the Restricted Group
shall, maintain and preserve all of its assets that are necessary and
material in the conduct of its business as conducted at the date
hereof in good working order and condition (ordinary wear and tear
excepted) and shall maintain in all material respects all books and
records which are necessary in connection therewith or in connection
with the conduct of its business.
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23.11 Security
23.11.1 Each Obligor shall, at its own expense, take all such action
as the Agent may reasonably require for the purpose of
perfecting or protecting the Finance Parties' and the
Permitted Facilities Provider's rights under and preserving
the security interests intended to be created or evidenced
by any of the Finance Documents to which it is a party, and
following the making of any declaration pursuant to Clause
24.20 (Acceleration and Cancellation) or 24.21 (Advances Due
on Demand) but without prejudice to the restrictions on
exercising security in sub-clause 24.20.3 of Clause 24.20
(Acceleration and Cancellation) for facilitating the
realisation of any such security or any part thereof.
23.11.2 Each Obligor (other than the Shareholder) shall, to the
extent legally possible and as reasonably required by the
Agent (acting on the instructions of an Instructing Group
and having regard to the cost and expense involved) from
time to time, to the extent practicable create or procure
the creation of security over its material assets (to the
extent such are not secured by the Security Documents) in
favour of the Finance Parties to secure all or any of the
obligations of the Obligors under the Finance Documents and
(if applicable) in favour of the Permitted Facilities
Provider to secure its obligations under any of the
documentation relating to the Secured Permitted Facilities.
23.11.3 The Principal Borrower shall procure that each member of the
Group who is not an Obligor and who utilises any part of the
Secured Permitted Facilities shall, to the extent legally
possible and as reasonably required by the Permitted
Facilities Provider (having regard to the cost and expense
involved), create or procure the creation of security over
its material assets in favour of the Permitted Facilities
Provider to secure all or any of its obligations in respect
of the Secured Permitted Facilities.
23.12 Access
The Shareholder and Principal Borrower shall ensure that any one or
more representatives, agents and advisers of the Agent and/or any of
the Banks will be allowed, on reasonable grounds and with prior
notice, to have access to the assets, books, records and premises of
the Shareholder and each Restricted Group member and be permitted to
inspect the same during normal business hours.
23.13 Bank Account
Each Obligor who is a party to the Receivables and Receivables
Accounts Assignment shall, and the Principal Borrower shall ensure
that such Obligors shall, pay all sums received by it (whether from
customers or otherwise) into a Receivables Account held by it, which
is subject to security pursuant to the Security Documents.
23.14 Vendor Warranties
The Parent, Shareholder and the Principal Borrower will, diligently
pursue all material claims for breach of contract or warranty by, or
misrepresentation by, or indemnity or other claim against the Vendor
or, as appropriate, the Vendor's shareholders under or in connection
with any Acquisition Documents, unless the Agent (acting on the
instructions of an Instructing Group) has consented in writing to
such claim not being made.
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23.15 Amendments
23.15.1 Neither the Parent, the Shareholder nor the Principal
Borrower shall, and the Parent shall procure that no
relevant member of the NTL Inc. Holding Group shall, amend,
vary, novate, supplement or terminate any of the Acquisition
Documents, the documentation relating to the Hivedown, any
documentation relating to the Subordinated NTL CV1 Debt or
any other Subordinated Funding, the constitutional documents
or any other document delivered to the Agent pursuant to
Clauses 2.3 (Conditions Precedent) or 36.2 (Borrower
Conditions Precedent) or 37.2 (Guarantor Conditions
Precedent) or waive any right thereunder other than (a) any
amendment, variation or waiver which is of a minor or
technical nature and (b) any amendments to such
constitutional documents which could not reasonably be
expected to have an adverse effect on the rights of the
Finance Parties under the Finance Documents.
23.15.2 Neither the Shareholder nor the Principal Borrower shall,
and the Principal Borrower shall procure that no member of
the Restricted Group shall without the prior written consent
of the Agent, amend, vary, novate or supplement any
documentation relating to the Secured Permitted Facilities,
other than any amendment, variation or waiver which is of a
minor or technical nature.
23.16 Negative Pledge
No Obligor (other than the Shareholder) shall (and the Principal
Borrower shall ensure that no member of the Restricted Group shall)
without the prior written consent of an Instructing Group, create or
permit to subsist any Encumbrance over all or any of its present or
future revenues or assets other than a Permitted Encumbrance.
23.17 Loans and Guarantees
No Obligor (other than the Shareholder) shall (and the Principal
Borrower shall ensure that no member of the Restricted Group shall)
without the prior written consent of an Instructing Group, make any
loans, grant any credit or give any guarantee or indemnity (except as
required by the Finance Documents) to or for the benefit of any
person or otherwise voluntarily assume any liability, whether actual
or contingent, in respect of any obligation of any other person other
than Permitted Loans and Guarantees.
23.18 Financial Indebtedness
No Obligor shall, and the Principal Borrower shall procure that no
member of the Restricted Group shall, incur, create or permit to
subsist or have outstanding any Financial Indebtedness or enter into
any agreement or arrangement whereby it is entitled to incur, create
or permit to subsist any Financial Indebtedness other than, in either
case, Permitted Financial Indebtedness.
23.19 Acquisitions and Investments
Other than Permitted Acquisitions or pursuant to the implementation
of the Reorganisation or Additional Mergers no Obligor shall, and the
Principal Borrower shall procure that no member of the Restricted
Group shall:
23.19.1 purchase, subscribe for or otherwise acquire any shares (or
other securities or any interest therein) in, or
incorporate, any other company or agree to do any of the
foregoing; or
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23.19.2 purchase or otherwise acquire any assets (other than in the
ordinary course of business), revenues or licences, or
(without limitation to any of the foregoing) acquire any
business or interest therein or agree to do so; or
23.19.3 form, or enter into, any partnership, consortium, joint
venture or other like arrangement or agree to do so.
23.20 Dividends and Distributions
23.20.1 The Principal Borrower shall not (and the Shareholder shall
vote its shares in the Principal Borrower accordingly), and
the Principal Borrower shall procure that no Restricted
Group member shall, pay, make or declare any dividend,
return on capital, repayment of capital contributions or
other distribution (whether in cash or in kind) or make any
distribution of assets or other payment whatsoever in
respect of share capital whether directly or indirectly,
save for Permitted Distributions. On the conversion of a
Conversion Subsidiary in accordance with paragraph (c) of
the definition of the Reorganisation, to the extent any such
conversion involves a decrease in the share capital of such
a Conversion Subsidiary, no dividend, return on capital,
repayment of capital contribution or other distribution to
the shareholder of the Conversion Subsidiary shall be made.
23.20.2 The Principal Borrower shall not, and shall procure that no
Restricted Group member shall, pay any interest or return on
principal or repayment of principal or other distribution
(in cash or in kind) or make any distribution of assets or
other payment whatsoever in respect of any indebtedness
which constitutes Subordinated Funding.
23.21 Disposals
No Obligor shall, and the Principal Borrower shall ensure that no
member of the Restricted Group shall, without the prior written
consent of an Instructing Group, sell, lease, transfer or otherwise
dispose of (including, without limitation, a sale or transfer of an
asset where such is or may be leased to or re-acquired or acquired by
a member of the Restricted Group), by one or more transactions or
series of transactions (whether related or not), the whole or any
part of its revenues or its assets (limited, in the case of the
Shareholder, to its shareholdings in members of the Restricted Group)
other than (a) in the implementation of the Reorganisation or
pursuant to an Additional Merger and (b) Permitted Disposals.
23.22 Mergers
No Obligor shall, and the Principal Borrower shall ensure that no
member of the Restricted Group shall merge or consolidate with any
other person, enter into any demerger transaction or participate in
any other type of corporate reconstruction (including, without
limitation, liquidations or dissolutions), unless:
23.22.1 such a merger, consolidation, demerger or reconstruction is
entered into (a) in the implementation of the Reorganisation
or pursuant to an Additional Merger or (b) as part of a
solvent re-organisation of the Restricted Group, the terms
of which have been approved in writing by the Agent (acting
on the instructions of an Instructing Group); and
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23.22.2 in all cases other than the Initial Mergers or an Additional
Merger, any Obligor involved in such a re-organisation will
(a) each exist as a surviving entity and remain subject to
its obligations under the Finance Documents to which it is a
party and (b) have freely distributable reserves at least
equal to the freely distributable reserves such an Obligor
had immediately prior to such a merger, consolidation,
demerger or reconstruction.
23.23 Guarantors
The Principal Borrower shall ensure that at all times, the aggregate
EBITDA of the Guarantors (in each case calculated on an
unconsolidated basis) for any period of four consecutive Financial
Quarters equals or exceeds 85 per cent. of the consolidated EBITDA of
the Restricted Group for such period.
For the purposes of this Clause 23.23 the aggregate EBITDA of the
Guarantors and the consolidated EBITDA of the Restricted Group at any
time shall be equal to the sum of the aggregate EBITDA of the
Guarantors or, as the case may be, the consolidated EBITDA of the
Restricted Group for the immediately preceding four complete
Financial Quarters.
A breach of this Clause 23.23 shall not constitute an Event of
Default if (i) one or more subsidiaries of the Principal Borrower
become Additional Guarantors (in accordance with Clause 37.1 (Request
for Additional Guarantor)), within five Business Days of the earlier
of notice by the Agent to the Principal Borrower of the breach and
the Principal Borrower becoming aware thereof and (ii) the Agent
(acting reasonably) is satisfied that this Clause 23.23 will, as a
result of the Additional Guarantors thereby created, be satisfied.
23.24 Treasury Transactions
No Obligor (other than the Shareholder) shall, and the Principal
Borrower shall procure that no member of the Restricted Group shall,
enter into any Treasury Transaction other than Permitted Treasury
Transactions.
23.25 Subordinated Debt
The Principal Borrower shall not, and shall procure that no member of
the Restricted Group shall:
23.25.1 owe any indebtedness to any member of the NTL Inc. Group or
the NTL Inc. Holding Group which does not constitute (a)
Subordinated Funding or (b) indebtedness permitted under
sub-clause 23.28.2 of Clause 23.28 (Agreements with Related
Parties);
23.25.2 pay, prepay or repay or defease, exchange or repurchase any
amount under the Subordinated NTL CV1 Debt or any other
Subordinated Funding.
23.26 Hedging
The Principal Borrower (and such other Borrowers selected by the
Principal Borrower and approved by the Agent) shall, within 180 days
of each Advance enter into Hedging Agreements satisfactory to the
Agent in order to ensure that the total interest cost in respect of
at least 40 per cent. of the Loan is capped by interest rates agreed
between the Principal Borrower and the Agent (both acting
reasonably), for a minimum period of 4
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years from the date on which the first such Hedging Agreement is
entered into provided that the Principal Borrower shall not be
required to enter into a Hedging Agreement in respect of any Advance
if, on the date falling 180 days after the date of such Advance, at
least 40 per cent. of the Loan is already so capped and provided
further that the obligations set out in this Clause 23.26 shall cease
to apply on the Restatement Amendment Effective Date.
23.27 Shareholder
The Shareholder shall not carry on any business other than as the
holding company of the Principal Borrower and shall not:
23.27.1 own any assets other than its shareholding in the Principal
Borrower or intra-Group credit balances arising from
Subordinated Funding and credit balances in bank accounts;
and
23.27.2 incur any liabilities of any nature whatsoever other than
(a) any Security contemplated pursuant to the terms of this
Agreement (b) Financial Indebtedness falling within
paragraph (e) of the definition of Permitted Financial
Indebtedness or Subordinated Shareholder NTL CV1 Debt, (c)
professional fees and administration costs in the ordinary
course of business, or (d) any liabilities under the Finance
Documents.
23.28 Agreements with Related Parties
The Parent and the Principal Borrower shall ensure that there is no
indebtedness outstanding, or any contract or arrangement entered into
between (a) any member of the NTL Inc. Group or the NTL Inc. Holding
Group and (b) any member of the Restricted Group, other than:
23.28.1 the Subordinated NTL CV1 Debt and any other Subordinated
Funding; and
23.28.2 other contracts or arrangements entered into on an arm's
length basis in good faith and in the commercial interests
of the parties thereto, provided that in respect of any
contract or arrangement falling within the provisions of
this sub-clause 23.28.2 and having an aggregate value per
contract, per arrangement, per series of related contracts
or per series of related arrangements, as the case may be,
of CHF 1,000,000, the Parent and the Principal Borrower
shall notify the Agent in writing of the intention to enter
into such arrangement, such notification to include a level
of detail satisfactory to the Agent, acting reasonably.
23.29 Accounting Reference Date
The Principal Borrower shall retain, and shall ensure that each
member of the Restricted Group retains, 31 December as its accounting
reference date and shall not change the duration of any of its
financial years.
23.30 The Mortgages
Subject to the Principal Borrower obtaining appropriate Swiss tax
rulings granting a waiver of all or substantially all of the Swiss
source taxes which might otherwise be imposed on interest payments
under the Facilities, the Principal Borrower and each relevant
Obligor shall procure that the Mortgages are entered into, and (to
the extent
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deemed necessary by the Agent's Swiss counsel) all necessary consents
are obtained, additional documents provided and filings made, on or
about the date on which the Reorganisation Share Pledges are entered
into as the final step of the Reorganisation (or, if such Swiss tax
rulings are obtained after the completion of the Reorganisation, as
soon as is reasonably practicable thereafter). The Principal Borrower
shall use its reasonable efforts to obtain such Swiss tax rulings
prior to the completion of the Reorganisation. If the tax rulings do
not grant a waiver of all or substantially all of the Swiss source
taxes which might otherwise be imposed on the interest payments under
the Facilities, the relevant Obligors shall cease to be under any
obligation to enter into the Mortgages.
23.31 Revised Group Structure
If the Principal Borrower becomes aware of any inaccuracies in the
Group Structure Chart delivered to the Agent as a condition to the
effectiveness of the Restatement Amendment Agreement, it will deliver
to the Agent as soon as is reasonably practicable thereafter a
revised Group Structure Chart which is true, complete and accurate.
23.32 Appointment of an Investment Bank
The Principal Borrower shall, if it has not, by the earlier of (i) 31
August 2002 and (ii) the date falling one month after the NTL
Recapitalisation Effective Date, received notification from the Agent
confirming that an Instructing Group is reasonably satisfied that the
Refinancing Condition has been satisfied or that it is satisfied that
sufficient and satisfactory progress is being made towards fulfilling
the Refinancing Condition:
23.32.1 appoint a reputable investment bank approved by the Steering
Committee, or if the Steering Committee ceases to exist, an
Instructing Group to advise it in connection with the sale
of the Restricted Group (or a part thereof); and
23.32.2 prepare (in consultation with such investment bank), and
deliver to the Agent a proposed timeline in relation to such
sale (such timeline to be in form and substance satisfactory
to the Agent acting on the instructions of an Instructing
Group, acting reasonably).
The Parent, the Shareholder and/or the Principal Borrower (as the
case may be) shall procure that:
(i) the Agent is promptly notified of any material developments
which occur (after the appointment of the aforementioned
investment bank) in connection with the proposed sale of the
Restricted Group (or any part thereof), including without
limitation the receipt of any proposal (whether written or
not) for the purchase of, or for an investment (whether
directly or indirectly) in the Restricted Group; and
(ii) any proposed purchase of, or investment (whether directly or
indirectly) in the Restricted Group, which is approved by an
Instructing Group or all the Banks (as required) shall be
approved by the Parent and by any other person whose consent
or approval shall be required.
23.33 Business Reorganisation of the Group
The Parent, the Shareholder, the Principal Borrower and each other
member of the Restricted Group (as appropriate) shall procure that
the Business Reorganisation is
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progressed in accordance with the analysis prepared by the Principal
Borrower and delivered as a condition precedent to the effectiveness
of the Restatement Amendment Agreement.
23.34 Subsidiary Overindebtedness
The Principal Borrower and each of the Overindebted Subsidiaries will
take all necessary steps to ensure the successful implementation of
the Subsidiary Overindebtedness Solution or such other solution in
respect of the overindebtedness of the Overindebted Subsidiaries, as
soon as practicable and in any event on or before 30 June 2002 (or,
where any consent of an Instructing Group or the Banks in connection
with such other solution is required as soon as reasonably
practicable following the giving of such consent, provided that such
consent is requested as soon as reasonably practicable).
24. EVENTS OF DEFAULT
Each of Clause 24.1 (Failure to Pay) to Clause 24.19 (Material
Adverse Change) describes circumstances which constitute an Event of
Default for the purposes of this Agreement.
24.1 Failure to Pay
Any sum due from an Obligor or the Obligors under the Finance
Documents is not paid at the time, in the currency and in the manner
specified therein unless such failure to pay is caused by
administrative or technical error and:
24.1.1 in the case of a payment of principal, payment is made
within one Business Day of the due date;
24.1.2 in the case of a payment of interest or commitment
commission, payment is made within three Business Days of
the due date; or
24.1.3 in the case of a payment of any other amount payable under
the Finance Documents, payment is made within five Business
Days of the due date.
24.2 Misrepresentation
Any representation or statement made or deemed to be made by the
Parent or an Obligor in the Finance Documents or in any notice or
other document, certificate or statement delivered by it pursuant
hereto or thereto or in connection herewith or therewith is or proves
to have been incorrect or misleading in any material respect when
made or deemed to be made and the circumstances giving rise to such
inaccuracy, if capable of remedy or change, are not remedied or do
not change, such that the relevant representation or statement would
be correct and not misleading if repeated five Business Days after
the earlier of (a) it being notified by the Agent to the Parent and
the relevant Obligor as having been made inaccurately and (b) the
Parent or the relevant Obligor becoming aware of such inaccuracy.
24.3 Specific Covenants
The Parent or an Obligor fails duly to perform or comply with any of
the obligations expressed to be assumed by it in Clause 21 (Financial
Information) or Clause 23 (Covenants). No Event of Default under this
Clause 24.3 will occur in relation to:
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24.3.1 Clause 21.1 (Annual Statements) to Clause 21.11 (Other
Financial Information) or Clause 21.13 (General
Information), if the failure to comply with such is remedied
within five Business Days of the Agent giving notice thereof
to the Parent or the relevant Obligor; and
24.3.2 Clause 23 (Covenants), (other than Clause 23.1 (Maintenance
of Legal Validity), Clause 23.6 (Claims Pari Passu), Clause
23.8 (Conduct of Business), Clause 23.11 (Security), Clause
23.13 (Bank Accounts), Clause 23.16 (Negative Pledge),
Clause 23.17 (Loans and Guarantees), Clause 23.19
(Acquisitions and Investments), Clause 23.20 (Dividends and
Distributions), Clause 23.21 (Disposals), Clause 23.22
(Mergers), Clause 23.23 (Guarantors), Clause 23.25
(Subordinated Debt) and Clause 23.28 (Agreements with
Related Parties) if the failure to comply with such is
capable of remedy and is remedied within five Business Days
of the date on which the relevant member of the Restricted
Group or the Principal Borrower became aware of such failure
to comply.
24.4 Financial Condition
At any time any of the requirements of Clause 22 (Financial
Condition) is not satisfied.
24.5 Other Obligations
The Parent or an Obligor fails duly to perform or comply with any
other obligation expressed to be assumed by it in the Finance
Documents and such failure, if capable of remedy, is not remedied
within thirty days after the Agent has given notice thereof to the
Parent or such Obligor (as the case may be).
24.6 Cross Default
Any Financial Indebtedness of any member of the Restricted Group is
not paid when due, any Financial Indebtedness of the Shareholder or
any member of the Restricted Group is declared to be or otherwise
becomes due and payable prior to its specified maturity (on account
of an event of default (howsoever described)), any commitment for any
Financial Indebtedness of any member of the Restricted Group is
cancelled or suspended (on account of an event of default (howsoever
described)) by a creditor of such member of the Restricted Group or
any creditor of any member of the Restricted Group becomes entitled
(on account of an event of default (howsoever described)) to declare
any Financial Indebtedness of such member of the Restricted Group due
and payable prior to its specified maturity, provided that it shall
not constitute an Event of Default if:
24.6.1 with respect to all such Financial Indebtedness, other than
Financial Indebtedness incurred in the ordinary course of
business on usual and customary terms, the aggregate amount
thereof (or its equivalent in Swiss Francs) is less than
CHF10,000,000;
24.6.2 with respect to all such Financial Indebtedness incurred in
the ordinary course of business on usual and customary
terms, the aggregate amount thereof (or its equivalent in
Swiss Francs) is less than CHF2,000,000; or
24.6.3 such Financial Indebtedness comprises Subordinated Funding
or Subordinated Shareholder NTL CV1 Debt and the
subordination relating thereto is in full force and effect
at such time.
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24.7 Cross-acceleration of NTL Notes
Any NTL Note issued by any member of the NTL Inc. Holding Group:
24.7.1 remains as to its principal, capital or nominal amount
(including capitalised interest) unpaid when due or after
the expiry of any grace period provided for or otherwise
allowed in relation thereto; or
24.7.2 is declared to be or otherwise becomes due and payable prior
to its specified maturity (on account of an event of default
(howsoever described)).
24.8 Insolvency and Rescheduling
The Parent, the Shareholder or any member of the Restricted Group:
24.8.1 is unable to pay its debts as they fall due;
24.8.2 has liabilities (taking into account contingent and
prospective liabilities that would be taken into account in
the preparation of its annual financial statements) which
exceed the value of its assets provided that this sub-clause
24.8.2 shall not apply to the Shareholder or, prior to
implementation of the Subsidiary Overindebtedness Solution
in a manner which extinguishes the overindebtedness from the
balance sheet of any of the Overindebted Subsidiaries, to
such Overindebted Subsidiary;
24.8.3 commences negotiations with any one or more of its creditors
with a view to the general readjustment or rescheduling of
its indebtedness (other than as part of a solvent
reorganisation of the Restricted Group, on terms which have
been approved in writing by the Agent, acting on the
instructions of an Instructing Group);
24.8.4 makes a general assignment for the benefit of or a
composition with its creditors; or
24.8.5 has a moratorium declared in respect of any of its
indebtedness.
24.9 Winding-up
The Parent, the Shareholder or any member of the Restricted Group
takes any corporate action or other steps are taken or legal
proceedings are started for its winding-up, dissolution,
administration or re-organisation (whether by way of voluntary
arrangement, scheme of arrangement or otherwise) or for the
appointment of a liquidator, receiver, administrator, administrative
receiver, conservator, custodian, trustee or similar officer of it or
of any or all of its revenues and assets provided that it shall not
constitute an Event of Default if:
24.9.1 such action, steps or proceedings relate to the
Reorganisation or to an Additional Merger or to a solvent
liquidation or re-organisation of a member of the Restricted
Group which is not an Obligor, or are on terms which have
been approved in writing by the Agent, acting on the
instructions of an Instructing Group; or
24.9.2 such action, steps or proceedings (a) are frivolous or
vexatious, (b) do not relate to the appointment of an
administrator (or its equivalent in any other
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jurisdiction) and (c) are contested in good faith by
appropriate legal action and are stayed or discharged within
fourteen days of their commencement.
24.10 Execution or Distress
Any execution or distress is levied against, or an encumbrancer takes
possession of, the whole or any part of, the property, undertaking or
assets of the Shareholder or any member of the Restricted Group or
any event occurs which under the laws of the jurisdiction of
incorporation of the Shareholder or, as the case may be, such member
of the Restricted Group has a similar or analogous effect where:
24.10.1 the aggregate value of such assets exceeds CHF600,000; and
24.10.2 such execution, distress or possession is not discharged
within fourteen days.
24.11 Failure to Comply with Final Judgment
The Shareholder or any member of the Restricted Group fails to comply
with or pay any sum due from it under any final judgment or any final
order made or given by any court of competent jurisdiction.
24.12 Governmental Intervention
By or under the authority of any government, (a) the management of
any Obligor is wholly or partially displaced or the authority of any
Obligor in the conduct of its business is wholly or partially
curtailed or (b) all or a majority of the issued shares of any
Obligor or the whole or any substantial part of its revenues or
assets is seized, nationalised, expropriated or compulsorily
acquired, in each case where such is not remedied to the satisfaction
of the Agent within thirty days of the relevant event occurring.
24.13 Ownership of the Restricted Group
If:
24.13.1 the Principal Borrower ceases to be a wholly-owned
subsidiary of the Shareholder; or
24.13.2 the Principal Borrower ceases to own (either directly or
indirectly) the percentage of the issued share capital of
each of its subsidiaries which is a Guarantor as indicated
on the Group Structure Chart, save as a result of the
Reorganisation or any Additional Mergers.
24.14 Ownership of Shareholder
If:
24.14.1 prior to it or any member of the NTL Inc. Holding Group
entering into a Permitted Joint Venture, the Parent ceases
directly or indirectly) to:
24.14.2 own 100 per cent. of the issued share capital of the
Shareholder; or
24.14.3 to have the power to either control the casting of all of
the votes that might be cast at a general meeting of the
Shareholder or appoint or remove all of the directors or
equivalent officers of the Shareholder; or
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24.14.4 after it or any member of the NTL Inc. Holding Group enters
into a Permitted Joint Venture, the Parent ceases (directly
or indirectly) to:
(a) own at least 50 per cent. of the issued share
capital of the Shareholder; or
(b) to have the power to either control the casting of
at least 50 per cent. of the maximum votes that
might be cast at a general meeting of the
Shareholder or appoint or remove at least half of
the directors or equivalent officers of the
Shareholder.
24.15 Repudiation, Subordination and Security
If:
24.15.1 the Parent, NTL SPV Inc., NTL CV1 or any Obligor repudiates
a Finance Document; or
24.15.2 the security intended to be created by, or the subordination
effected under, the Finance Documents is not or ceases to be
legal and valid and (except as contemplated by the
Reservations or, if capable of remedy, such as is remedied
within five Business Days of the earlier of (a) notice of
the relevant event by the Agent to the Parent and the
Principal Borrower and (b) the date on which the Parent, the
Principal Borrower or the relevant Obligor becomes aware of
such event) binding and enforceable.
24.16 Illegality
At any time it is or becomes unlawful for the Parent or an Obligor to
perform or comply with any or all of its obligations under the
Finance Documents to which it is a party or any of the obligations of
the Parent or an Obligor under the Finance Documents to which it is a
party are not or cease to be legal and valid and (except as
contemplated by the Reservations or, if capable of remedy, such as is
remedied within five Business Days of the earlier of (a) notice of
the relevant event by the Agent to the Parent or, as the case may be,
the relevant Obligor and (b) the date on which the Parent or, as the
case may be, the relevant Obligor becomes aware of such event)
binding and enforceable.
24.17 Adverse Proceedings
If any investigation or proceedings are commenced by, any government,
court or regulatory agency or authority, which could reasonably be
expected to be adversely determined, and if so determined, are
reasonably likely to have a Material Adverse Effect.
24.18 Subordinated Funding
Any person (other than a Finance Party or an Obligor) party to the
Subordination Deed, the Second Subordination Deed or any other
agreement or deed approved by the Agent in respect of Subordinated
Funding fails to comply with its obligations under the Subordination
Deed, the Second Subordination Deed or such other agreement or deed
and (unless an Obligor party to the Subordination Deed, the Second
Subordination Deed or any such other agreement or deed has also so
failed to comply) such failure might reasonably be expected to have a
material adverse effect on the subordination intended to be effected
by the Subordination Deed, the Second Subordination Deed or such
other agreement or deed.
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24.19 Material Adverse Change
Any event or circumstance occurs which has or could reasonably be
expected to have a Material Adverse Effect.
24.20 Acceleration and Cancellation
Upon the occurrence of an Event of Default and at any time thereafter
whilst it is continuing, the Agent may (and, if so instructed by an
Instructing Group, shall) by notice to the Parent and the Principal
Borrower (on its own behalf and on behalf of the other Borrowers):
24.20.1 declare all or any part of the Advances to be immediately
due and payable (whereupon the same shall become so payable
together with accrued interest thereon and any other sums
then owed by the Borrowers under the Finance Documents) or
declare all or any part of the Advances to be due and
payable on demand of the Agent; and/or
24.20.2 declare that any undrawn portion of the Revolving Facility
shall be cancelled, whereupon the same shall be cancelled
and the Available Revolving Commitment of each Bank shall be
reduced to zero; and/or
24.20.3 exercise (on its own behalf and on behalf of the Banks and
the Hedge Counterparties) all rights and remedies of a
mortgagee or a secured party at such time and (without
limitation), subject to the Security Documents and to the
extent permitted by applicable law, (a) foreclose on any or
all of the assets subject to the Security by any available
judicial procedure, (b) take possession of any or all of the
assets subject to the Security and the books and records
relating thereto, with or without judicial process and/or
(c) enter any premises where any assets subject to the
Security, or any books and records relating thereto, are
located and take possession of and remove the same
therefrom, provided that:
(a) upon the occurrence of an Event of Default
pursuant to:
(i) Clause 24.8 (Insolvency and Rescheduling)
in respect of the Parent only; or
(ii) Clause 24.9 (Winding-up) in respect of the
Parent only, except where the
circumstances giving rise to such Event of
Default constitute a Freefall Bankruptcy
or otherwise arise from circumstances in
respect of which Instructing Group consent
has been requested in writing by a member
of the Group or the Parent but has not
been obtained; or
(iii) Clause 24.2 (Misrepresentation) by virtue
only of breach of the Repeated
Representation contained in sub-clause
20.16.1 of Clause 20.16 (No NTL Note
Defaults); or
(iv) Clause 24.5 (Other Obligations) in respect
of a breach by the Parent of its
obligations under the consent letter dated
28 March 2002 which breach would trigger
an Event of Default under Clause 24.8
(Insolvency and Rescheduling) and/or
Clause 24.9 (Winding-up);
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(v) Clause 24.7 (Cross-acceleration of NTL
Notes); or
(vi) Clause 24.14 (Ownership of Shareholder);
or
(b) the acceleration of the Loan pursuant to
sub-clause 14.4.1(c) of Clause 14.4 (Mandatory
Prepayment due to Change of Control),
neither the Agent (acting on its behalf and on behalf of the
Banks and the Hedge Counterparties) nor any other Security
Party shall exercise its rights in respect of the security
granted pursuant to any Security Documents which are
governed by Swiss law until such time as the Agent has
exercised its rights in respect of the shares in Cablecom
GmbH pursuant to the GmbH Share Pledge and has become
entitled to deal with such shares in accordance with the
terms of the GmbH Share Pledge and to direct the Shareholder
to vote such shares (assuming that the Shareholder complies
with its obligation to vote such shares in accordance with
the terms of the GmbH Share Pledge). For the avoidance of
doubt, monies credited to any account secured pursuant to
the Receivables and Receivables Account Assignment shall
continue to be available to fund all purposes permitted by
sub-clause 2.2.2 of Clause 2.2 (Purpose and Application) and
monies credited to the Interest Account shall continue to be
available to fund interest payments and Hedging Liabilities
prior to enforcement of the rights in respect of the shares
in Cablecom GmbH as aforesaid subject to the Agent becoming
entitled to deal with such shares and to direct the
Shareholder to vote such shares (assuming that the
Shareholder complies with its obligations to vote such
shares in accordance with the terms of the GmbH Share
Pledge).
24.21 Advances Due on Demand
If, pursuant to Clause 24.20 (Acceleration and Cancellation), the
Agent declares all or any part of the Advances to be due and payable
on demand of the Agent, then, and at any time thereafter, the Agent
may (and, if so instructed by an Instructing Group, shall) by notice
to the Borrowers:
24.21.1 require repayment of all or such part of the Advances on
such date as it may specify in such notice (whereupon the
same shall become due and payable on the date specified
together with accrued interest thereon and any other sums
then owed by the Borrowers under the Finance Documents) or
withdraw its declaration with effect from such date as it
may specify; and/or
24.21.2 select as the duration of any Interest Period or Term which
begins whilst such declaration remains in effect a period of
six months or less.
25. GUARANTEE AND INDEMNITY
25.1 Guarantee and Indemnity
Subject to Clause 25.9 (Swiss Restrictions) and Clause 25.11
(Recourse to Shareholder), each of the Guarantors irrevocably and
unconditionally jointly and severally:
25.1.1 guarantees to each Finance Party the due and punctual
observance and performance of all the terms, conditions and
covenants on the part of each
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Borrower contained in the Finance Documents and agrees to
pay from time to time on demand any and every sum or sums of
money which each Borrower is at any time liable to pay to
any Finance Party under or pursuant to the Finance Documents
and which has become due and payable but has not been paid
at the time such demand is made; and
25.1.2 agrees as a primary obligation to indemnify each Finance
Party from time to time on demand from and against any loss
incurred by any Finance Party as a result of any of the
obligations of any Borrower under or pursuant to the Finance
Documents being or becoming void, voidable, unenforceable or
ineffective as against such Borrower for any reason
whatsoever, whether or not known to any Finance Party or any
other person, the amount of such loss being the amount which
the person or persons suffering it would otherwise have been
entitled to recover from such Borrower.
25.2 Additional Security
The obligations of each Guarantor herein contained shall be in
addition to and independent of every other security which any Finance
Party may at any time hold in respect of any of any Obligor's
obligations under the Finance Documents.
25.3 Continuing Obligations
The obligations of each Guarantor herein contained shall constitute
and be continuing obligations notwithstanding any settlement of
account or other matter or thing whatsoever and shall not be
considered satisfied by any intermediate payment or satisfaction of
all or any of the obligations of the Borrowers under the Finance
Documents and shall continue in full force and effect until final
payment in full of all amounts owing by any Borrowers under the
Finance Documents and total satisfaction of all the Borrowers' actual
and contingent obligations under the Finance Documents.
25.4 Obligations not Discharged
Neither the obligations of each Guarantor herein contained nor the
rights, powers and remedies conferred in respect of each Guarantor
upon any Finance Party by the Finance Documents or by law shall be
discharged, impaired or otherwise affected by:
25.4.1 the winding-up, dissolution, administration or
re-organisation of any Obligor or any other person or any
change in its status, function, control or ownership;
25.4.2 any of the obligations of any Obligor or any other person
under the Finance Documents or under any other security
taken in respect of any of its obligations under the Finance
Documents being or becoming illegal, invalid, unenforceable
or ineffective in any respect;
25.4.3 time or other indulgence being granted or agreed to be
granted to any Obligor or any other person in respect of its
obligations under the Finance Documents or under any such
other security;
25.4.4 any amendment to, or any variation, waiver or release of,
any obligation of any Obligor or any other person under the
Finance Documents or under any such other security;
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25.4.5 any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken in
respect of any Obligor's obligations under the Finance
Documents;
25.4.6 any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any
security taken in respect of any Obligor's obligations under
the Finance Documents; or
25.4.7 any other act, event or omission which, but for this Clause
25.4, might operate to discharge, impair or otherwise affect
any of the obligations of each Guarantor herein contained or
any of the rights, powers or remedies conferred upon any of
the Finance Parties by the Finance Documents or by law.
25.5 Settlement Conditional
Any settlement or discharge between a Guarantor and any of the
Finance Parties shall be conditional upon no security or payment to
any Finance Party by an Obligor or any other person on behalf of an
Obligor being avoided or reduced by virtue of any laws relating to
bankruptcy, insolvency, liquidation or similar laws of general
application and, if any such security or payment is so avoided or
reduced, each Finance Party shall be entitled to recover the value or
amount of such security or payment from such Guarantor subsequently
as if such settlement or discharge had not occurred.
25.6 Exercise of Rights
No Finance Party shall be obliged before exercising any of the
rights, powers or remedies conferred upon them in respect of any
Guarantor by the Finance Documents or by law:
25.6.1 to make any demand of any Obligor (save where such demand is
expressly required by the terms of the Finance Documents);
25.6.2 to take any action or obtain judgment in any court against
any Obligor;
25.6.3 to make or file any claim or proof in a winding-up or
dissolution of any Obligor; or
25.6.4 to enforce or seek to enforce any other security taken in
respect of any of the obligations of any Obligor under the
Finance Documents.
25.7 Deferral of Guarantors' Rights
Until all amounts which may be or become payable by the Borrowers
under or in connection with the Finance Documents have been
irrevocably paid in full and unless the Agent otherwise directs, no
Guarantor will exercise any rights which it may have by reason of
performance by it of its obligations under the Finance Documents:
25.7.1 to be indemnified by a Borrower;
25.7.2 to claim any contribution from any other guarantor of the
obligations of any Borrower under the Finance Documents;
and/or
25.7.3 to take the benefit (in whole or in part and whether by way
of subrogation or otherwise) of any rights of the Finance
Parties under the Finance Documents or
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of any other guarantee or security taken pursuant to, or in
connection with, the Finance Documents by any Finance Party.
Provided that, notwithstanding the foregoing provisions of this
Clause 25.7, no Guarantor may exercise any rights as aforesaid if any
of the Share Pledges has been enforced.
25.8 Appropriations
Until all amounts which may be or become payable by the Borrowers
under or in connection with the Finance Documents have been
irrevocably paid in full, each Finance Party (or any trustee or agent
on its behalf) may:
25.8.1 refrain from applying or enforcing any other moneys,
security or rights held or received by that Finance Party
(or any trustee or agent on its behalf) in respect of those
amounts, or apply and enforce the same in such manner and
order as it sees fit (whether against those amounts or
otherwise) and no Guarantor shall be entitled to the benefit
of the same; and
25.8.2 hold in an interest-bearing suspense account any moneys
received from any Guarantor or on account of any Guarantor's
liability under this Clause 25.
25.9 Swiss Restrictions
The Restricted Obligations of (a) each Swiss Obligor under this
Clause 25 and the Security Documents to which that Swiss Obligor is a
party and (b) each Swiss Obligor under Clause 15 (Taxes) shall at all
times be limited to the maximum amount of that Swiss Obligor's
profits available for distribution as dividends at any given time
(being the balance sheet profits and any reserves made for this
purpose, in each case in accordance with article 675(2) and article
671(1) and (2), no. 3, of the Swiss Federal Code of Obligations).
25.10 Swiss Withholding Tax
Each Swiss Obligor shall:
25.10.1 if and to the extent required by applicable law in force at
the relevant time:
(a) subject to any applicable double taxation treaty,
deduct Swiss Anticipatory Tax (withholding tax) at
the rate of 35 per cent. (or such other rate as in
force from time to time) from any payment made by
it in respect of Restricted Obligations;
(b) pay any such deduction to the Swiss Federal Tax
Administration; and
(c) notify (or procure that the Principal Borrower
notifies) the Agent that such a deduction has been
made in accordance with Clause 16.1 (Notification
of Requirement to Deduct Tax) and provide, in
accordance with Clause 16.2 (Evidence of Payment
of Tax) the Agent with evidence that such a
deduction has been paid to the Swiss Federal Tax
Administration; and
25.10.2 to the extent such a deduction is made, not be obliged to
either gross-up in accordance with Clause 15.1 (Tax
Gross-up) or indemnify the Finance Parties
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in accordance with Clause 15.2 (Tax Indemnity) in relation
to any payment made by it in respect of Restricted
Obligations.
25.11 Recourse to Shareholder
The liability of the Shareholder under this Clause 25 shall at all
times be limited to the proceeds of the Security granted by the
Shareholder. A Finance Party shall not be entitled to take any
further steps to recover from the Shareholder sums due to it under
the Finance Documents and any claims the Finance Parties have against
the Shareholder shall be extinguished once the Security granted by
the Shareholder has been realised and the proceeds applied against
sums due by the Shareholder under the Finance Documents.
26. COMMITMENT COMMISSION AND FEES
26.1 Commitment Commission on the Revolving Facility
The Borrowers, acting through the Principal Borrower, shall pay to
the Agent for account of each Bank in respect of each Commitment
Period (as defined below) a commitment commission calculated at the
percentage rate per annum determined pursuant to Clause 26.2 (Rate of
Revolving Facility Commitment Commission) on an amount equal to the
average daily Available Revolving Commitments during such Commitment
Period.
26.2 Rate of Revolving Facility Commitment Commission
The applicable rate of commitment commission for any Commitment
Period in respect of the Revolving Facility shall be determined by
reference to the average daily utilisation of the Revolving Facility
during such Commitment Period expressed as a percentage of the
average daily Revolving Commitment during such Commitment Period and
in accordance with the following scale:
Average daily utilisation as percentage Applicable rate of
of average daily Revolving Commitment commitment
commission
Up to and including 50 per cent. 0.75 per cent.
Over 50 per cent. 0.50 per cent.
26.3 Definitions and Average Calculations
For the purposes of Clauses 26.1 (Commitment Commission on the
Revolving Facility) and Clause 26.2 (Rate of Revolving Facility
Commitment Commission):
26.3.1 "Commitment Period" means each successive period of three
months during the period beginning on the date hereof and
ending on the Termination Date (except that if the last such
period would otherwise extend beyond the Termination Date it
shall be shortened so as to end on that date).
26.3.2 The average daily utilisation of the Revolving Facility
during a Commitment Period shall equal the sum of all
Revolving Advances made by the Banks and outstanding on each
day during such Commitment Period, divided by the number of
days in such Commitment Period.
26.3.3 The average daily Revolving Commitments during a Commitment
Period shall equal the aggregate of the Revolving
Commitments on each day during such
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Commitment Period divided by the number of days in such
Commitment Period.
26.3.4 The average daily Available Revolving Commitments during a
Commitment Period shall equal the aggregate of the Available
Revolving Commitments on each day during such Commitment
Period divided by the number of days in such Commitment
Period.
26.4 Payment of Commitment Commission
The Agent shall promptly after the end of each Commitment Period
notify the Principal Borrower (on its own behalf and on behalf of the
Borrowers) and the Banks of the amounts payable by the Borrowers
under Clause 25.1 (Commitment Commission on the Revolving Facility)
in respect of such Commitment Period and the Borrowers, acting
through the Principal Borrower, shall pay such amount to the Agent
for account of the Banks pro rata to each Bank's Revolving Commitment
hereunder from time to time during the applicable Commitment Period,
within five Business Days of such notification.
26.5 Agency and Other Fees
The Parent shall:
26.5.1 pay (or shall procure that the Principal Borrower shall pay)
to the Agent for its own account the agency fees specified
in the letter dated 16 February 2000 as amended pursuant to
a letter dated on or about the Restatement Amendment
Effective Date from the Agent to the Parent at the times,
and in the amounts, specified in such letter; and
26.5.2 pay (or shall procure that the Principal Borrower shall pay)
to the Arrangers the fees specified in the letters dated 16
February 2000 from the Arrangers to the Parent (and the
attachments thereto) at the times, and in the amounts,
specified in such letters.
27. COSTS AND EXPENSES
27.1 Preservation and Enforcement of Rights
The Borrowers, acting through the Principal Borrower, shall, from
time to time on demand of the Agent, reimburse the Finance Parties
for all costs and expenses (including legal fees) on a full indemnity
basis together with any VAT thereon incurred in or in connection with
the preservation and/or enforcement of any of the rights of the
Finance Parties under the Finance Documents and any document referred
to in the Finance Documents (including, without limitation, any costs
and expenses reasonably incurred in relation to any investigation as
to whether or not an Event of Default might have occurred or is
likely to occur or any steps necessary or desirable in connection
with any proposal for remedying or otherwise resolving an Event of
Default or Potential Event of Default).
27.2 Stamp Taxes
The Borrowers, acting through the Principal Borrower, shall pay all
stamp, registration and other taxes to which the Finance Documents,
any other document referred to in the Finance Documents (save as
otherwise specified therein) or any judgment given in connection
therewith is or at any time may be subject and shall, from time to
time on
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demand of the Agent, indemnify the Finance Parties against any
liabilities, costs, claims and expenses resulting from any failure to
pay or any delay in paying any such tax.
27.3 Amendment Costs
If an Obligor requests any amendment, waiver or consent then the
Borrowers, acting through the Principal Borrower, shall, within five
Business Days of demand by the Agent, reimburse the Agent for all
costs and expenses (including legal fees) together with any VAT
thereon reasonably incurred by it in responding to or complying with
such request.
27.4 Banks' Liabilities for Costs
If the Borrowers fail to perform any of their obligations under this
Clause 27, each Bank shall, in its Proportion, indemnify the Agent
against any loss incurred by the Agent as a result of such failure.
28. DEFAULT INTEREST AND BREAK COSTS
28.1 Default Interest Periods
If any sum due and payable by an Obligor hereunder is not paid on the
due date therefor in accordance with Clause 31 (Payments) or if any
sum due and payable by an Obligor under any judgment of any court in
connection herewith is not paid on the date of such judgment, the
period beginning on such due date or, as the case may be, the date of
such judgment and ending on the date upon which the obligation of
such Obligor to pay such sum is discharged shall be divided into
successive periods, each of which (other than the first) shall start
on the last day of the preceding such period and the duration of each
of which shall (except as otherwise provided in this Clause 28) be
selected by the Agent.
28.2 Default Interest
An Unpaid Sum shall bear interest during each Interest Period in
respect thereof at the rate per annum which is one per cent. per
annum above the percentage rate which would apply if such Unpaid Sum
had been an Advance in the amount and currency of such Unpaid Sum and
for the same Interest Period, provided that if such Unpaid Sum
relates to an Advance which became due and payable on a day other
than the last day of an Interest Period or Term relating thereto:
28.2.1 the first Interest Period applicable to such Unpaid Sum
shall be of a duration equal to the unexpired portion of the
current Interest Period or Term relating to that Advance;
and
28.2.2 the percentage rate of interest applicable thereto from time
to time during such period shall be that which exceeds by
one per cent. the rate which would have been applicable to
it had it not so fallen due, save that the Margin shall be,
or be deemed to be, 2.50 per cent. per annum.
28.3 Payment of Default Interest
Any interest which shall have accrued under Clause 28.2 (Default
Interest) in respect of an Unpaid Sum shall be due and payable and
shall be paid by the Obligor owing such Unpaid Sum on the last day of
each Interest Period in respect thereof or on such other dates as the
Agent may specify by notice to such Obligor.
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28.4 Break Costs
If any Bank or the Agent on its behalf receives or recovers all or
any part of such Bank's share of an Advance or Unpaid Sum otherwise
than on the last day of an Interest Period or Term relating thereto,
the Principal Borrower shall pay to the Agent within three Business
Days of demand for account of such Bank an amount equal to the amount
(if any) by which (a) the additional interest which would have been
payable on the amount so received or recovered had it been received
or recovered on the last day of that Interest Period or Term exceeds
(b) the amount of interest which that Bank would have been able to
obtain by placing an amount equal to the amount so received or
recovered on deposit with a prime bank in London for a period
starting on the Business Day following the date of such receipt or
recovery and ending on the last day of that Interest Period or Term.
29. BORROWERS' INDEMNITIES
29.1 Borrowers' Indemnity
The Borrowers, acting through the Principal Borrower, undertake to
indemnify:
29.1.1 each Finance Party against any cost, claim, loss, expense
(including legal fees) or liability together with any VAT
thereon, which it may sustain or incur as a consequence of
the occurrence of any Event of Default or any default by any
Obligor in the performance of any of the obligations
expressed to be assumed by it in the Finance Documents;
29.1.2 each Bank against any cost or loss it may suffer under
Clause 27.4 (Banks' Liabilities for Costs) or Clause 34.6
(Indemnification); and
29.1.3 each Bank against any cost or loss it may suffer or incur as
a result of its funding or making arrangements to fund its
portion of an Advance requested by any Borrower but not made
by reason of the operation of any one or more of the
provisions hereof.
29.2 Currency Indemnity
If any sum (a "Sum") due from an Obligor under the Finance Documents
or any order or judgment given or made in relation thereto has to be
converted from the currency (the "First Currency") in which such Sum
is payable into another currency (the "Second Currency") for the
purpose of:
29.2.1 making or filing a claim or proof against such Obligor;
29.2.2 obtaining or enforcing an order or judgment, in any court or
other tribunal or authority,
the Borrowers, acting through the Principal Borrower, shall indemnify
each person to whom such Sum is due from and against any loss
suffered or incurred as a result of any discrepancy between (a) the
rate of exchange used for such purpose to convert such Sum from the
First Currency into the Second Currency and (b) the rate or rates of
exchange available to such person at the time of receipt of such Sum.
30. CURRENCY OF ACCOUNT AND PAYMENT
The Swiss Franc is the currency of account and payment for each and
every sum at any time due from an Obligor hereunder, provided that:
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30.1.1 each payment in respect of costs and expenses shall be made
in the currency in which the same were incurred; and
30.1.2 each payment pursuant to Clause 15.2 (Tax Indemnity), Clause
17.1 (Increased Costs) or Clause 29.1 (Borrowers' Indemnity)
shall be made in the currency specified by the party
claiming thereunder.
31. PAYMENTS
31.1 Notification of Payments
Without prejudice to the liability of each party hereto promptly to
pay each amount owing by it hereunder on the due date therefor,
whenever a payment is expected to be made by any of the parties
hereto, the Agent shall, at least two Business Days prior to the
expected date for such payment, notify all the parties hereto of the
amount, currency and timing of such payment and the identity of the
party liable to make such payment.
31.2 Payments to the Agent
On each date on which this Agreement requires an amount to be paid by
an Obligor or a Bank, such Obligor or, as the case may be, such Bank
shall make the same available to the Agent for value on the due date
at such time and in such funds and to such account with such bank as
the Agent shall (acting reasonably) specify from time to time.
31.3 Payments by the Agent
31.3.1 Save as otherwise provided herein, each payment received by
the Agent pursuant to Clause 31.2 (Payments to the Agent)
shall:
(a) in the case of a payment received for the account
of a Borrower, be made available by the Agent to
such Borrower by application:
(i) first, in or towards payment the same day
of any amount then due from such Borrower
hereunder to the person from whom the
amount was so received; and
(ii) secondly, in or towards payment the same
day to the account of such Borrower with
such bank in Zurich as such Borrower shall
have previously notified to the Agent for
this purpose; and
(b) in the case of any other payment, be made
available by the Agent to the person entitled to
receive such payment in accordance with this
Agreement (in the case of a Bank, for the account
of its Facility Office) for value the same day by
transfer to such account of such person with such
bank in Zurich as such person shall have
previously notified to the Agent.
31.3.2 A payment will be deemed to have been made by the Agent on
the date on which it is required to be made under this
Agreement if the Agent has, on or before that date, taken
steps to make that payment in accordance with the
regulations or operating procedures of the clearing or
settlement system used by the Agent in order to make the
payment.
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31.4 No Set-off
All payments required to be made by an Obligor hereunder shall be
calculated without reference to any set-off or counterclaim and shall
be made free and clear of and without any deduction for or on account
of any set-off or counterclaim.
31.5 Clawback
Where a sum is to be paid hereunder to the Agent for account of
another person, the Agent shall not be obliged to make the same
available to that other person until it has been able to establish to
its satisfaction that it has actually received such sum, but if it
does so and it proves to be the case that it had not actually
received such sum, then the person to whom such sum was so made
available shall on request refund the same to the Agent together with
an amount sufficient to indemnify the Agent against any cost or loss
it may have suffered or incurred by reason of its having paid out
such sum prior to its having received such sum.
31.6 Security Proceeds
Each Security Party (other than the Agent) shall promptly pay all
Security Proceeds recovered by it to the Agent. All Security Proceeds
received, recovered or paid to the Agent will be held and applied by
the Agent as follows:
31.6.1 to the extent such sums are not denominated in Swiss Francs,
they will be converted by the Agent into the equivalent
amount of Swiss Francs; and
31.6.2 the net Security Proceeds will then be credited to such
account or accounts as the Agent thinks fit pending their
application in accordance with Clause 31.7 (Application of
Security Proceeds), the Agent being entitled to retain the
net Security Proceeds in such account or accounts whilst any
Obligor remains under any actual or contingent obligations
under the Finance Documents and/or any member of the Group
remains under any actual or contingent obligations under or
in respect of the Secured Permitted Facilities.
31.7 Application of Security Proceeds
Amounts standing to the credit of the account or accounts referred to
in Clause 31.6 (Security Proceeds) shall (save to the extent
prohibited by any applicable law) be applied by the Agent in the
following order of priority:
31.7.1 first, in or towards payment of any unpaid costs and
expenses of the Agent;
31.7.2 secondly, in or towards discharging all assessments to tax
made on the Agent (or, as the case may be, any other
Security Party) in respect of any of the Security held by it
or its receipt of the Security Proceeds;
31.7.3 thirdly, after setting aside any sums which the Agent
believes will or may become payable under either sub-clause
31.7.1 or sub-clause 31.7.2 above, in or towards satisfying
the Principal Borrower's obligations to the Banks under
sub-clause 29.1.2 of Clause 29.1 (Borrowers' Indemnities);
31.7.4 fourthly, to the Finance Parties and the Permitted
Facilities Provider in or towards the discharge, pro rata,
of all sums due and payable by the Parent or the Obligors
under the Finance Documents or, as the case may be, by any
members of the Group under or in respect of the Secured
Permitted Facilities;
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31.7.5 fifthly, if no Obligor has any further actual or contingent
liability under the Finance Documents and no member of the
Group has any further actual or contingent liability under
the documentation relating to the Secured Permitted
Facilities, in payment to the extent necessary to any person
the Agent is obliged to pay in priority to the member of the
Group otherwise entitled to such sum; and
31.7.6 thereafter, in payment to the member of the Group entitled
to such sum.
The Permitted Facilities Provider shall, for the purposes of enabling
the Agent to determine the amounts to be applied in accordance with
the provisions of Clause 31.7.4 and Clause 31.7.5, promptly after the
Agent declares all or any part of the Advances to be immediately due
and payable in accordance with either Clause 24.20 (Acceleration and
Cancellation) or Clause 24.21 (Advances Due on Demand), notify the
Agent of the amounts due and payable to it under or in respect of the
Secured Permitted Facilities (identifying, in such notification, the
nature of each such amount payable and whether it is in respect of
principal, interest or some other obligation).
31.8 Partial Payments
31.8.1 If and whenever a payment is made by an Obligor hereunder
and the Agent receives an amount less than the due amount of
such payment, the Agent may apply the amount received
towards the obligations of the Obligors under the Finance
Documents in the following order:
(a) first, in or towards payment of any unpaid costs
and expenses of the Agent;
(b) secondly, in or towards payment pro rata of any
accrued interest or commitment commission due but
unpaid;
(c) thirdly, in or towards payment pro rata of any
principal due but unpaid; and
(d) fourthly, in or towards payment pro rata of any
other sum due but unpaid.
31.9 Variation of Partial Payments
The order of partial payments set out in Clause 31.8 (Partial
Payments) shall, in the case of the payment made by any member of the
Group, override any appropriation made by the member of the Group to
which the partial payment relates but the order set out in
sub-clauses (b), (c) and (d) of Clause 30.8 (Partial Payments) may be
varied if agreed by all the Banks.
31.10 Business Days
31.10.1 Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the
same calendar month (if there is one) or the preceding
Business Day (if there is not).
31.10.2 During any extension of the due date for payment of any
principal or an Unpaid Sum under this Agreement interest is
payable on the principal at the rate payable on the original
due date.
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32. SET-OFF
32.1 Contractual Set-off
Each Obligor authorises each Bank, at any time any sum is due and
payable hereunder and remains unpaid, to apply any credit balance to
which such Obligor is entitled on any account of such Obligor with
such Bank in satisfaction of any sum due and payable from such
Obligor to such Bank under the Finance Documents but unpaid. For this
purpose, each Bank is authorised to purchase with the moneys standing
to the credit of any such account such other currencies as may be
necessary to effect such application.
32.2 Set-off not Mandatory
No Bank shall be obliged to exercise any right given to it by Clause
32.1 (Contractual Set-off).
33. SHARING
33.1 Payments to Banks
If (a) prior to the Agent declaring all or any part of the Advances
to be immediately due and payable in accordance with either
sub-clause 14.4.1(b) of Clause 14.4 (Mandatory Prepayment due to
Change in Control), Clause 24.20 (Acceleration and Cancellation) or
Clause 24.21 (Advances Due on Demand), a Bank (a "Recovering Bank")
applies any receipt or recovery from an Obligor to a payment due and
payable under this Agreement and such amount is received or recovered
other than in accordance with Clause 31.3 (Payments by the Agent), or
(b) after the Agent declaring all or any part of the Advances to be
immediately due and payable in accordance with either sub-clause
14.4.1(b) of Clause 14.4 (Mandatory Prepayment due to Change in
Control), Clause 24.20 (Acceleration and Cancellation) or Clause
24.21 (Advances Due on Demand), a Bank or the Permitted Facilities
Provider (a "Recovering Entity") applies any receipt or recovery from
a member of the Group to a payment due and payable under this
Agreement and/or the documentation relating to the Secured Permitted
Facilities and such amount is received or recovered other than in
accordance with Clause 31.7 (Application of Security Proceeds) or
Clause 31.8 (Partial Payments), then such Recovering Bank or, as the
case may be, such Recovering Entity shall:
33.1.1 notify the Agent of such receipt or recovery;
33.1.2 at the request of the Agent, promptly pay to the Agent an
amount (the "Sharing Payment") equal to such receipt or
recovery less any amount which the Agent determines may be
retained by such Recovering Bank or, as the case may be,
such Recovering Entity as its share of any payment to be
made in accordance with Clause 31.8 (Partial Payments).
33.2 Redistribution of Payments
The Agent shall treat the Sharing Payment as if it had been paid by
the relevant member of the Group and distribute it between the
Finance Parties (other than the Recovering Bank) or, as the case may
be, between the Security Parties (other than the Recovering Entity)
in accordance with Clause 31.8 (Partial Payments).
33.3 Recovering Bank's Rights
The Recovering Bank or, as the case may be, the Recovering Entity
will be subrogated into the rights of the parties which have shared
in a redistribution pursuant to Clause 33.2
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(Redistribution of Payments) in respect of the Sharing Payment (and
the relevant Obligor (or, in the case of any member of the Group
which is not an Obligor, the Principal Borrower shall procure that
such member of the Group) shall be liable to the Recovering Bank or,
as the case may be, the Recovering Entity in an amount equal to the
Sharing Payment).
33.4 Repayable Recoveries
If any part of the Sharing Payment received or recovered by a
Recovering Bank or, as the case may be, the Recovering Entity becomes
repayable and is repaid by such Recovering Bank or, as the case may
be, by such Recovering Entity, then:
33.4.1 each party which has received a share of such Sharing
Payment pursuant to Clause 33.2 (Redistribution of Payments)
shall, upon request of the Agent, pay to the Agent for
account of such Recovering Bank or, as the case may be, such
Recovering Entity an amount equal to its share of such
Sharing Payment; and
33.4.2 such Recovering Bank's or, as the case may be, such
Recovering Entity's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant member of
the Group will be liable to the reimbursing party for the
amount so reimbursed.
33.5 Exception
This Clause 33 shall not apply if the Recovering Bank or, as the case
may be, the Recovering Entity would not, after making any payment
pursuant hereto, have a valid and enforceable claim against the
relevant member of the Group.
33.6 Recoveries Through Legal Proceedings
If any Bank intends to commence any action in any court it shall give
prior notice to the Agent and the other Banks. If any Bank shall
commence any action in any court to enforce its rights hereunder and,
as a result thereof or in connection therewith, receives any amount,
then such Bank shall not be required to share any portion of such
amount with any Bank which has the legal right to, but does not, join
in such action or commence and diligently prosecute a separate action
to enforce its rights in another court.
33.7 Hedging Agreements
The Principal Borrower shall provide the Agent with, as soon as is
reasonably practicable after the same are entered into, copies of the
Hedging Agreements entered into by either it or any other Borrowers
selected by it pursuant to Clause 22.26 (Hedging). The Principal
Borrower and each Hedging Bank shall ensure that each Hedging
Agreement to which (a) (in the case of the Principal Borrower) it or
any other member of the Group is a party or (b) (in the case of a
Hedging Bank) it or any of its affiliates is a party as a Hedge
Counterparty:
33.7.1 provides for "two-way payments" in the event of a
termination of a hedging transaction entered into pursuant
to a Hedging Agreement whether upon a termination event or
an event of default (each as defined in the Hedging
Agreement), meaning that the defaulting party under that
Hedging Agreement will be entitled to receive payment under
the relevant termination provisions if
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the net replacement value of all terminated transactions
affected under the Hedging Agreement is in its favour;
33.7.2 includes as an event of default (as defined in the Hedging
Agreement) an Event of Default.
33.8 Termination of Hedging Agreements
Each Hedging Bank shall:
33.8.1 if (a) any hedging transaction under any Hedging Agreement
to which it (or, as the case may be, its affiliate) is a
party is terminated, (b) a settlement amount or other amount
falls due from it (or, as the case may be, its affiliate) to
any Obligor under such a Hedging Agreement and (c) the
Security has become, and remains at the proposed date of
payment, enforceable, pay (or procure that its affiliate
pays) such a settlement amount to the Agent as Security
Proceeds for application in accordance with Clause 31.7
(Application of Security Proceeds); and
33.8.2 unless the Agent otherwise instructs it, exercise (or
procure that its affiliate exercises) any rights it may have
to terminate the hedging transactions under the Hedging
Agreements to which either it or its affiliate is a party as
soon as is reasonably practicable after the date on which
the Agent declares all or any part of the Advances to be
immediately due and payable in accordance with either Clause
24.20 (Acceleration and Cancellation) or Clause 24.21
(Advances Due on Demand).
33.9 Rights of Hedge Counterparties
Whilst any Obligor has any actual or contingent liabilities under the
Finance Documents, except with the prior consent of the Agent (acting
on the instructions of an Instructing Group), no Hedging Bank will
(and each Hedging Bank will procure that any of its affiliates who
are Hedge Counterparties do not):
33.9.1 demand or receive payment, prepayment, repayment, or any
distribution in respect of or on account of any of the
Hedging Liabilities in cash or in kind or apply any money or
property in or towards the discharge of any Hedging
Liabilities except for:
(a) scheduled payments arising under the terms of the
Hedging Agreements; and
(b) the proceeds of enforcement of the Security
Documents received and applied in the order
permitted by Clause 31.7 (Application of Security
Proceeds);
33.9.2 exercise any right it might otherwise have pursuant to any
Hedging Agreement to terminate any hedging transactions
under such Hedging Agreement or to refuse to make any
payment due from it under such hedging transactions until
the Agent declares all or any part of the Advances to be
immediately due and payable in accordance with either Clause
24.20 (Acceleration and Cancellation) or Clause 24.21
(Advances Due on Demand);
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33.9.3 discharge all or any part of the Hedging Liabilities by
set-off, any right of combination of accounts or otherwise
except if and to the extent that those Hedging Liabilities
are permitted to be paid under sub-clause 33.9.1(a); or
33.9.4 take, accept or receive the benefit of any Encumbrance or
guarantee in respect of the Hedging Liabilities other than
under (a) the Finance Documents or (b) any other Encumbrance
or guarantee granted for the full benefit of the Finance
Parties in accordance with the ranking specified in this
Agreement.
33.10 Amendment of Hedging Agreements
Except with the prior written consent of the Agent (acting on the
instructions of an Instructing Group), neither an Obligor nor a
Hedging Bank will (and each Hedging Bank which has an affiliate who
is a Hedge Counterparty will procure that such affiliate does not)
amend, vary, supplement or allow to be superseded any provision of
the Hedging Agreements which would result in:
33.10.1 any provision in the Hedging Agreements being amended unless
the Hedge Counterparty concerned, acting reasonably and in
good faith, certifies to the Agent that it considers such
amendment does not impose restrictions or obligations or
conditions on any Obligor which are more onerous than those
originally provided for in the Hedging Agreements;
33.10.2 any payment under the Hedging Agreements being required to
be made by a Obligor earlier than the date originally
provided for in the Hedging Agreements; or
33.10.3 any Obligor becoming liable to make an additional payment
(or increase an existing payment) under any of the Hedging
Agreements, where such liability does not arise from the
original provisions of the Hedging Agreements.
34. THE AGENT, THE ARRANGERS AND THE BANKS
34.1 Appointment of the Agent
Each of the Arrangers, the Banks and, for the purposes of (a) Clause
31 (Payments), Clause 33 (Sharing) and Clause 43 (Amendments) of this
Agreement and (b) the Agent's entry into of certain of the Security
Documents, the Permitted Facilities Provider, hereby appoints the
Agent to act as its agent in connection with the Finance Documents
and authorises the Agent to exercise such rights, powers, authorities
and discretions as are specifically delegated to the Agent under or
in connection with the Finance Documents or, as the case may be, the
Secured Permitted Facilities together with any other incidental
rights, powers, authorities and discretions. In respect of the
Subordination Deed and the Second Subordination Deed, the parties
hereto agree that the Agent acts as the agent and representative of
the Finance Parties and the Permitted Facilities Provider in
accordance with the provisions of Dutch law.
34.2 Agent's Discretions
The Agent may:
34.2.1 assume, unless it has, in its capacity as agent for the
Banks, received notice to the contrary from any other party
hereto, that (a) any representation made or deemed to be
made by the Parent or an Obligor in connection with the
Finance
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Documents is true, (b) no Event of Default or Potential
Event of Default has occurred (unless it has actual
knowledge of an Event of Default arising under Clause 24.1
(Failure to Pay)), (c) neither the Parent nor any Obligor is
in breach of or default under its obligations under the
Finance Documents and (d) any right, power, authority or
discretion vested herein upon an Instructing Group, the
Banks or any other person or group of persons has not been
exercised;
34.2.2 assume that (a) the Facility Office of each Bank is that
notified to it by such Bank in writing and (b) the
information provided by each Bank pursuant to Clause 41
(Notices), Clause 34.15 (Banks' Mandatory Cost Details) and
Schedule 10 (Mandatory Costs), and the information provided
by the Permitted Facilities Provider pursuant to Clause 41
(Notices), is true and correct in all respects until it has
received from such Bank or, as the case may be, the
Permitted Facilities Provider notice of a change to the
Facility Office or any such information and act upon any
such notice until the same is superseded by a further
notice;
34.2.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or
services may to it seem necessary, expedient or desirable
and rely upon any advice so obtained;
34.2.4 rely as to any matters of fact which might reasonably be
expected to be within the knowledge of the Parent or an
Obligor upon a certificate signed by or on behalf of the
Parent or such Obligor;
34.2.5 rely upon any communication or document believed by it to be
genuine;
34.2.6 refrain from exercising any right, power or discretion
vested in it as agent under the Finance Documents unless and
until instructed by an Instructing Group as to whether or
not such right, power or discretion is to be exercised and,
if it is to be exercised, as to the manner in which it
should be exercised;
34.2.7 refrain from acting in accordance with any instructions of
an Instructing Group to begin any legal action or proceeding
arising out of or in connection with the Finance Documents
until it shall have received such security as it may require
(whether by way of payment in advance or otherwise) for all
costs, claims, losses, expenses (including legal fees) and
liabilities together with any VAT thereon which it will or
may expend or incur in complying with such instructions; and
34.2.8 assume (unless it has specific notice to the contrary) that
any notice or request made by the Principal Borrower is made
on behalf of all the Obligors.
34.3 Agent's Obligations
The Agent shall:
34.3.1 promptly inform each Bank of the contents of any written
notice or document received by it in its capacity as Agent
from the Parent or an Obligor under the Finance Documents;
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34.3.2 promptly notify each Bank of the occurrence of any Event of
Default or any default by the Parent or an Obligor in the
due performance of or compliance with its obligations under
the Finance Documents of which the Agent has notice from any
other party hereto;
34.3.3 promptly notify each Bank of the occurrence of an Event of
Default under Clause 24.1 (Failure to Pay);
34.3.4 promptly notify each Bank and the Permitted Facilities
Provider of all or any part of the Advances being declared
to be immediately due and payable in accordance with either
Clause 24.20 (Acceleration and Cancellation) or Clause 24.21
(Advances Due on Demand);
34.3.5 save as otherwise provided herein, act as agent under the
Finance Documents in accordance with any instructions given
to it by an Instructing Group, which instructions shall be
binding on the Arrangers and the Banks;
34.3.6 if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it as
agent under the Finance Documents; and
34.3.7 unless it has a Bank's consent, refrain from acting on
behalf of that Bank in any legal or arbitration proceedings
relating to any Finance Document.
The Agent's duties under the Finance Documents are solely mechanical
and administrative in nature.
34.4 Excluded Obligations
Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent nor an Arranger shall:
34.4.1 be bound to enquire as to (a) whether or not any
representation made or deemed to be made by either the
Parent or an Obligor in connection with the Finance
Documents is true, (b) the occurrence or otherwise of any
Event of Default or Potential Event of Default, (c) the
performance by either the Parent or an Obligor of its
obligations under the Finance Documents or (d) any breach of
or default by either the Parent or an Obligor of or under
its obligations under the Finance Documents;
34.4.2 be bound to account to any Bank or the Permitted Facilities
Provider for any sum or the profit element of any sum
received by it for its own account;
34.4.3 be bound to disclose to any other person any information
relating to any member of the NTL Inc. Group, any member of
the NTL Inc. Holding Group or any member of the Group if (a)
such information is confidential or (b) such disclosure
would or might in its reasonable opinion constitute a breach
of any law or a breach of fiduciary duty;
34.4.4 be under any obligations other than those for which express
provision is made herein; or
34.4.5 be or be deemed to be a fiduciary for any other party
hereto.
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34.5 Delegation
The Agent may delegate, transfer or assign to any subsidiary of ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇ & Co. or its successor from time to time all or any of
the rights, powers, authorities and discretions vested in it under
the Finance Documents and the performance of its duties in accordance
therewith, and such delegation, transfer or assignment may be made
upon such terms and subject to such conditions (including the power
to sub-delegate) and subject to such regulations as the Agent may
think fit (and the term "Agent" as used in this Agreement shall
include any such delegate).
34.6 Indemnification
Each Bank shall, in its Proportion, from time to time on demand by
the Agent, indemnify the Agent against any and all costs, claims,
losses, expenses (including legal fees) and liabilities together with
any VAT thereon which the Agent may incur, otherwise than by reason
of its own gross negligence or wilful misconduct, in acting in its
capacity as agent under the Finance Documents (other than any which
have been reimbursed by the Borrowers pursuant to Clause 29.1
(Borrowers' Indemnity)).
34.7 Exclusion of Liabilities
Each Bank confirms that it has read the Notice to Recipients in the
Information Memorandum, that it has complied with the Recipients'
Obligations (as set out in the Notice to Recipients) and,
accordingly, that it enters into this Agreement on the basis of the
Notice to Recipients. In particular, each of the Banks accepts that
it is entering into this Agreement in reliance only on the
representations of the Parent and Obligors in this Agreement (and, in
relation to the Information Memorandum, in reliance only on the
representations of the Shareholder in Clause 20.22 (Information
Memorandum)) and on its own investigations, that it has not relied on
the Arrangers and that, except as set out below, it neither has nor
will have any claims against the Arrangers arising from or in
connection with this Agreement. Similarly, each of the Banks accepts
that the Notice to Recipients in the Information Memorandum is
applicable also to the Agent as if the Agent had been named in
addition to the Arrangers in the Important Notice.
Except in the case of gross negligence or wilful default, neither the
Agent nor any Arranger accepts any responsibility to any of the Banks
and/or to the Permitted Facilities Provider:
34.7.1 for the adequacy, accuracy and/or completeness of the
Information Memorandum or any other information supplied by
the Agent or the Arrangers, by the Parent or an Obligor or
by any other person in connection with the Finance Documents
or any other agreement, arrangement or document entered
into, made or executed in anticipation of, pursuant to or in
connection with the Finance Documents;
34.7.2 for the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection
with the Finance Documents; or
34.7.3 for the exercise of, or the failure to exercise, any
judgement, discretion or power given to any of them by or in
connection with the Finance Documents or any
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other agreement, arrangement or document entered into, made
or executed in anticipation of, pursuant to or in connection
with the Finance Documents.
Accordingly, neither the Agent nor the Arrangers shall be under any
liability (whether in negligence or otherwise) in respect of such
matters, save in the case of gross negligence or wilful misconduct.
34.8 No Actions
Each of the Banks agrees that it will not assert or seek to assert
against any director, officer or employee of the Agent or the
Arrangers any claim it might have against any of them in respect of
the matters referred to in Clause 34.7 (Exclusion of Liabilities).
34.9 Business with the Group
The Agent and the Arrangers may accept deposits from, lend money to
and generally engage in any kind of banking or other business with
any member of the NTL Inc. Group, the NTL Inc. Holding Group or any
member of the Group whether or not it may or does lead to a conflict
with the interests of any of the Banks. Similarly, the Agent or the
Arrangers may undertake business with or for others even though it
may lead to a conflict with the interests of any of the Banks.
34.10 Resignation
The Agent may resign its appointment hereunder at any time without
assigning any reason therefor by giving not less than thirty days'
prior notice to that effect to each of the other parties hereto,
provided that no such resignation shall be effective until a
successor for the Agent is appointed in accordance with the
succeeding provisions of this Clause 34.
34.11 Removal of Agent
An Instructing Group may, after consultation with the Principal
Borrower, remove the Agent from its role as agent under the Finance
Documents by giving notice to that effect to each of the other
parties hereto. Such removal shall take effect only when a successor
to the Agent is appointed in accordance with the terms of the Finance
Documents.
34.12 Successor Agent
If the Agent gives notice of its resignation pursuant to Clause 34.10
(Resignation) or it is removed pursuant to Clause 34.11 (Removal of
Agent), then any reputable and experienced bank or other financial
institution may, with the prior consent of the Principal Borrower, be
appointed as a successor to the Agent by an Instructing Group during
the period of such notice but, if no such successor is so appointed,
the Agent may appoint such a successor itself.
34.13 Rights and Obligations
If a successor to the Agent is appointed under the provisions of
Clause 34.12 (Successor Agent), then (a) the retiring or departing
Agent shall be discharged from any further obligation under the
Finance Documents but shall remain entitled to the benefit of the
provisions of this Clause 34 and (b) its successor and each of the
other parties to the Finance Documents shall have the same rights and
obligations amongst themselves as they would have had if such
successor had been a party thereto.
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34.14 Own Responsibility
It is understood and agreed by each Bank that at all times it has
itself been, and will continue to be, solely responsible for making
its own independent appraisal of and investigation into all risks
arising under or in connection with the Finance Documents including,
but not limited to:
34.14.1 the financial condition, creditworthiness, condition,
affairs, status and nature of each member of the NTL Inc.
Group, the NTL Inc. Holding Group and the Group;
34.14.2 the legality, validity, effectiveness, adequacy and
enforceability of the Finance Documents and any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection
with the Finance Documents;
34.14.3 whether such Bank has recourse, and the nature and extent of
that recourse, against an Obligor or any other person or any
of their respective assets under or in connection with the
Finance Documents, the transactions therein contemplated or
any other agreement, arrangement or document entered into,
made or executed in anticipation of, pursuant to or in
connection with the Finance Documents; and
34.14.4 the adequacy, accuracy and/or completeness of the
Information Memorandum and any other information provided by
the Agent or the Arrangers, the Parent, an Obligor, or by
any other person in connection with the Finance Documents,
the transactions contemplated therein or any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection
with the Finance Documents.
Accordingly, each Bank acknowledges to the Agent and the Arrangers
that it has not relied on and will not hereafter rely on the Agent
and the Arrangers or any of them in respect of any of these matters.
34.15 Banks' Mandatory Cost Details
Each Bank will supply the Agent with such information and in such
detail as the Agent may require in order to calculate the Mandatory
Cost Rate in accordance with Schedule 10 (Mandatory Costs).
34.16 Receipt of Information by the Agent
Any information or document received by the Agent shall only be
treated as having been received by the Agent if the same has been
delivered to the Agent's agency department in accordance with Clause
41 (Notices). Accordingly, any information or documents received by
the Agent other than by its agency department in accordance with
Clause 41 (Notices) is not by reason of that receipt to be treated as
having been received by the Agent unless and until the Agent's agency
department has received actual notice of the same in accordance with
such Clause. Save as expressly set out in this Agreement and, unless
the Agent's agency department shall have received information or
documents in accordance with Clause 41 (Notices) the Agent shall have
no duty to disclose, and shall not be liable for the failure to
disclose, any information or documents, that are communicated to or
obtained by the Agent.
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35. ASSIGNMENTS AND TRANSFERS
35.1 Binding Agreement
The Finance Documents shall be binding upon and enure to the benefit
of each party hereto and its or any subsequent successors and
Transferees.
35.2 No Assignments and Transfers by the Parent or the Obligors
Neither the Parent nor any Obligor shall be entitled to assign or
transfer all or any of its rights, benefits and obligations under the
Finance Documents.
35.3 Assignment and Transfers by Banks
35.3.1 Subject to Clause 35.7 (Qualifying Lenders), any Bank may,
at any time, assign all or any of its rights and benefits
hereunder, transfer in accordance with Clause 35.5
(Transfers by Banks) all or any of its rights, benefits and
obligations hereunder to, or enter into any form of
sub-participation agreement with, a bank or financial
institution.
35.3.2 The prior written consent of the Principal Borrower (which
shall be deemed to be given on its own behalf and on behalf
of the other Obligors) is required for an assignment or
transfer by a Bank unless the assignment or transfer is to:
(a) another Bank; or
(b) an affiliate of the transferring Bank.
35.3.3 The Principal Borrower's consent must not be (a)
unreasonably delayed or withheld or (b) withheld solely
because the assignment or transfer may result in an increase
to the Mandatory Cost Rate.
35.3.4 Any assignment or transfer by a Bank shall be in respect of
a pro rata amount of such Bank's participation in each
Facility.
35.4 Assignments by Banks
If any Bank assigns all or any of its rights and benefits under the
Finance Documents in accordance with Clause 35.3 (Assignments and
Transfers by Banks), then, unless and until the assignee has
delivered a notice to the Agent confirming in favour of the other
Finance Parties that it shall be under the same obligations towards
each of them as it would have been under if it had been an original
party hereto as a Bank (whereupon such assignee shall become a party
hereto as a "Bank"), the Agent, the Arrangers, the other Banks and
the Permitted Facilities Provider shall not be obliged to recognise
such assignee as having the rights against each of them which it
would have had if it had been such a party hereto.
35.5 Transfers by Banks
If any Bank wishes to transfer all or any of its rights, benefits
and/or obligations under the Finance Documents as contemplated in
Clause 35.3 (Assignments and Transfers by Banks), then such transfer
may be effected by the delivery to the Agent of a duly completed
Transfer Certificate executed by such Bank and the relevant
Transferee in which event, on the later of the Transfer Date
specified in such Transfer Certificate and the fifth Business Day
after (or such earlier Business Day endorsed by the Agent on such
Transfer Certificate falling on or after) the date of delivery of
such Transfer Certificate to the Agent:
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35.5.1 to the extent that in such Transfer Certificate the Bank
party thereto seeks to transfer by novation its rights,
benefits and obligations under the Finance Documents, the
Parent and each of the Obligors and such Bank shall be
released from further obligations towards one another under
the Finance Documents and their respective rights against
one another shall be cancelled (such rights and obligations
being referred to in this Clause 35.5 as "discharged rights
and obligations");
35.5.2 the Parent, each of the Obligors and the Transferee party
thereto shall assume obligations towards one another and/or
acquire rights against one another which differ from such
discharged rights and obligations only insofar as the
Parent, the Obligors and such Transferee have assumed and/or
acquired the same in place of the Parent, the Obligors and
such Bank;
35.5.3 the Agent, the Arrangers, the Permitted Facilities Provider,
such Transferee and the other Banks shall acquire the same
rights and benefits and assume the same obligations between
themselves as they would have acquired and assumed had such
Transferee been an original party hereto as a Bank with the
rights, benefits and/or obligations acquired or assumed by
it as a result of such transfer and to that extent the
Agent, the Arrangers, the Permitted Facilities Provider, the
other Banks and the relevant Bank shall each be released
from further obligations to each other under the Finance
Documents; and
35.5.4 such Transferee shall become a party hereto as a "Bank".
35.6 No Increased Obligations
If:
35.6.1 a Bank assigns or transfers any of its rights or obligations
under the Finance Documents or changes its Facility Office;
and
35.6.2 as a result of circumstances existing at the date of the
assignment, transfer or change of Facility Office, an
Obligor would be obliged to make a payment to the assignee,
Transferee or the Bank acting through its new Facility
Office under Clause 15.1 (Tax Gross-up), Clause 15.2 (Tax
Indemnity) or Clause 17 (Increased Costs),
then the assignee, Transferee or the Bank acting through its new
Facility Office shall only be entitled to receive payment under those
Clauses to the same extent as the assignor, transferor or the Bank
acting through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
35.7 Qualifying Lenders
35.7.1 Subject to sub-clause 35.7.2 below, no Bank may:
(a) assign all or any of its rights and benefits
hereunder to;
(b) transfer all or any of its rights, benefits and
obligations hereunder to; or
(c) enter into a sub-participation agreement in
relation to this Agreement with,
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any person who is not, at the time of such an assignment,
transfer or sub-participation a Qualifying Lender.
35.7.2 On or before the Syndication Date, the Banks may with the
consent of the Arrangers (and in consultation with the
Principal Borrower) assign all or any of their rights and
benefits hereunder or transfer all or any of their rights,
benefits and obligations hereunder to financial institutions
who are not Qualifying Lenders provided that the number of
Banks who are not Qualifying Lenders shall not exceed ten.
35.7.3 Any Bank who enters into a sub-participation agreement in
relation to this Agreement shall ensure that:
(a) the terms of such sub-participation agreement
oblige the sub-participant to neither enter into
further sub-participation agreements (in relation
to the rights between it and such Bank) nor assign
or grant any interest over the sub-participation
agreement, except in each case to a person who is
a Qualifying Lender;
(b) the sub-participant enters into an undertaking in
favour of each Obligor to abide by the terms
included in the sub-participation agreement to
reflect paragraph (a) above; and
(c) the terms of such sub-participation agreement
oblige the sub-participant, in respect of any
further sub-participation, assignment or grant, to
include a term identical to the provisions of this
clause mutatis mutandis, including a requirement
that any further sub-participant, assignee or
grantee enters into such undertaking.
35.8 Assignment and Transfer Fees
On the date upon which an assignment takes effect pursuant to Clause
35.4 (Assignments by Banks) or a transfer takes effect pursuant to
Clause 35.5 (Transfers by Banks) the relevant assignee or Transferee
shall pay to the Agent for its own account a fee of $1,500.
35.9 Confidentiality
Each Bank agrees to be bound by the terms and conditions of the
Confidentiality Undertaking, as if such had been issued by such a
Bank to, and countersigned by, the Parent. This Clause 35.9 and the
terms and conditions of the Confidentiality Undertaking shall replace
and supersede any undertakings with respect to confidentiality in
relation to this transaction previously given by any Bank in favour
of the Parent and other members of the NTL Inc. Group, the NTL Inc.
Holding Group and the Group.
35.10 Disclosure of Information
Any Bank may disclose to any person:
35.10.1 to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights,
benefits and obligations under the Finance Documents;
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35.10.2 with (or through) whom such Bank enters into (or may
potentially enter into) any sub-participation in relation
to, or any other transaction under which payments are to be
made by reference to, the Finance Documents or any Obligor;
or
35.10.3 to whom information may be required to be disclosed by any
applicable law,
such information about the Parent, the NTL Inc. Group, the NTL Inc.
Holding Group, the Group and the Finance Documents as such Bank shall
consider appropriate provided that, in relation to sub-clauses
35.10.1 and 35.10.2, the person to whom such information is to be
given has entered into a Confidentiality Undertaking.
35.11 Notification
The Agent shall within fourteen days of receiving a Transfer
Certificate notify the Principal Borrower (on its own behalf and on
behalf of the other Borrowers) of any assignment or transfer
completed pursuant to this Clause 35.
36. ADDITIONAL BORROWERS
36.1 Request for Additional Borrower
The Principal Borrower may request that any of its subsidiaries
incorporated in either Switzerland or Austria become an Additional
Borrower by delivering to the Agent a Borrower Accession Memorandum
duly executed by the Principal Borrower and such subsidiary, together
with the documents and other evidence listed in Schedule 8
(Additional Conditions Precedent) in relation to such subsidiary.
36.2 Borrower Conditions Precedent
A company, in respect of which the Principal Borrower has delivered a
Borrower Accession Memorandum to the Agent, shall become an
Additional Borrower and assume all the rights, benefits and
obligations of a Borrower as if it had been an Original Borrower on
the date on which the Agent notifies the Principal Borrower that:
36.2.1 all of the Banks accepts the Principal Borrower's request in
respect of such subsidiary; and
36.2.2 the Agent has received, in form and substance satisfactory
to it, all documents and other evidence listed in Schedule 8
(Additional Conditions Precedent) in relation to such
subsidiary,
unless on such date an Event of Default or Potential Event of Default
is continuing or would occur as a result of such subsidiary becoming
an Additional Borrower.
36.3 Resignation of a Borrower
If at any time a Borrower (other than the Principal Borrower) is
under no actual or contingent obligation under or pursuant to any
Finance Document, the Principal Borrower may request that such
Borrower shall cease to be a Borrower by delivering to the Agent a
Resignation Notice. Such Resignation Notice shall be accepted by the
Agent on the date on which it notifies the Principal Borrower (i)
that it is satisfied that such Borrower is under no actual or
contingent obligation under or pursuant to any Finance Document; and
(ii) that it has received Instructing Group consent to the
resignation of such Borrower, and such Borrower shall immediately
cease to be a Borrower and shall
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have no further rights, benefits or obligations hereunder save for
those which arose prior to such date.
37. ADDITIONAL GUARANTORS
37.1 Request for Additional Guarantor
The Principal Borrower may request that any of its subsidiaries
become an Additional Guarantor by delivering to the Agent a Guarantor
Accession Memorandum duly executed by the Principal Borrower and such
subsidiary, together with the documents and other evidence listed in
Schedule 8 (Additional Conditions Precedent) in relation to such
subsidiary.
37.2 Guarantor Conditions Precedent
A company, in respect of which the Principal Borrower has delivered a
Guarantor Accession Memorandum to the Agent, shall become an
Additional Guarantor and assume all the rights, benefits and
obligations of a Guarantor as if it had been an original party hereto
as a Guarantor on the date on which the Agent notifies the Principal
Borrower that it has received, in form and substance satisfactory to
it, all the documents and other evidence listed in Schedule 8
(Additional Conditions Precedent).
37.3 Resignation of a Guarantor
The Principal Borrower may request that a Guarantor (other than the
Principal Borrower or the Shareholder) ceases to be a Guarantor by
delivering a Resignation Notice to the Agent. The Agent shall accept
such Resignation Notice and notify the Principal Borrower of its
acceptance (whereupon such Guarantor shall immediately cease to be a
Guarantor and shall have no further rights, benefits or obligations
hereunder) if:
37.3.1 the Agent has received evidence, in form and substance
satisfactory to it, confirming that the aggregate EBITDA of
the remaining Guarantors for the last financial year of the
Principal Borrower equalled or exceeded 85% of the
consolidated EBITDA of the Restricted Group for such a
financial year (calculated in accordance with Clause 23.23
(Guarantors); and
37.3.2 on such date no Event of Default or Potential Event of
Default is continuing or would occur as a result of such
cessation.
38. PERMITTED FACILITIES PROVIDER
38.1 Request for Permitted Facilities Provider
The Principal Borrower may request that any financial institution
becomes the Permitted Facilities Provider by delivering to the Agent:
38.1.1 a written request, identifying such financial institution;
and
38.1.2 copies of the proposed documentation setting out the terms
on which the Secured Permitted Facilities will be made
available to certain members of the Restricted Group.
38.2 Permitted Facilities Provider Conditions Precedent
The financial institution, in respect of which the Principal Borrower
has delivered a request in accordance with Clause 38.1 (Request for
Permitted Facilities Provider), shall become the Permitted Facilities
Provider and assume all the rights, benefits and
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obligations of the Permitted Facilities Provider as if it had been an
original party hereto as the Permitted Facilities Provider if:
38.2.1 the Agent (acting on the instructions of an Instructing
Group) has (a) confirmed to the Principal Borrower that such
financial institution is acceptable to it and (b) approved
the terms of the proposed documentation on which the Secured
Permitted Facilities will be provided; and
38.2.2 the Agent has received a Deed of Accession executed by such
a financial institution.
39. CALCULATIONS AND EVIDENCE OF DEBT
39.1 Basis of Accrual
Interest and commitment commission shall accrue from day to day and
shall be calculated on the basis of a year of 360 days (or, in any
case where market practice differs, in accordance with market
practice) and the actual number of days elapsed.
39.2 Quotations
If on any occasion a Reference Bank or Bank fails to supply the Agent
with a quotation required of it under the foregoing provisions of
this Agreement, the rate for which such quotation was required shall
be determined from those quotations which are supplied to the Agent,
provided that, in relation to determining LIBOR, this Clause 39.2
shall not apply if only one Reference Bank supplies a quotation.
39.3 Evidence of Debt
Each Bank shall maintain in accordance with its usual practice
accounts evidencing the amounts from time to time lent by and owing
to it hereunder.
39.4 Control Accounts
The Agent shall maintain on its books a control account or accounts
in which shall be recorded (a) the amount of any Advance or any
Unpaid Sum and each Bank's share therein, (b) the amount of all
principal, interest and other sums due or to become due from an
Obligor and each Bank's share therein and (c) the amount of any sum
received or recovered by the Agent hereunder and each Bank's share
therein.
39.5 Prima Facie Evidence
In any legal action or proceeding arising out of or in connection
with this Agreement, the entries made in the accounts maintained
pursuant to Clause 39.3 (Evidence of Debt) and Clause 39.4 (Control
Accounts) shall be prima facie evidence of the existence and amounts
of the specified obligations of the Obligors.
39.6 Certificates of Banks
A certificate of a Bank as to (a) the amount by which a sum payable
to it hereunder is to be increased under Clause 15.1 (Tax Gross-up),
(b) the amount for the time being required to indemnify it against
any such cost, payment or liability as is mentioned in Clause 15.2
(Tax Indemnity), Clause 17.1 (Increased Costs) or Clause 29.1
(Borrowers' Indemnity) or (c) the amount of any credit, relief,
remission or repayment as is mentioned in Clause 16.3 (Tax Credit
Payment) or Clause 16.4 (Tax Credit Clawback) shall, in the absence
of manifest error, be prima facie evidence of the existence and
amounts of the specified obligations of the Obligors.
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39.7 Agent's Certificates
A certificate of the Agent as to the amount at any time due from a
Borrower hereunder or the amount which, but for any of the
obligations of such Borrower hereunder being or becoming void,
voidable, unenforceable or ineffective, at any time would have been
due from such Borrower hereunder shall, in the absence of manifest
error, be conclusive for the purposes of Clause 25 (Guarantee and
Indemnity).
40. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
40.1 Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of
any Finance Party, any right or remedy under the Finance Documents
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right or remedy prevent any further or other exercise
thereof or the exercise of any other right or remedy. The rights and
remedies herein provided are cumulative and not exclusive of any
rights or remedies provided by law.
40.2 Partial Invalidity
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions thereof nor the legality, validity or
enforceability of such provision under the law of any other
jurisdiction shall in any way be affected or impaired thereby.
41. NOTICES
41.1 Communications in Writing
Each communication to be made under the Finance Documents shall be
made in writing and, unless otherwise stated, shall be made by fax or
letter.
41.2 Addresses
Any communication or document to be made or delivered pursuant to the
Finance Documents shall be made or delivered to the address or fax
number (and the department or officer, if any, for whose attention
the communication is made):
41.2.1 in the case of the Parent, the Original Obligors and the
Agent, identified with its name below;
41.2.2 in the case of each Bank, notified in writing to the Agent
prior to the date hereof (or, in the case of a Transferee,
at the end of the Transfer Certificate to which it is a
party as Transferee);
41.2.3 in the case of the Permitted Facilities Provider, in the
Deed of Accession; and
41.2.4 in the case of each Additional Obligor, in the relevant
Accession Memorandum,
or to any substitute address, fax number or department or officer as
the Parent, an Obligor, the Permitted Facilities Provider, or a Bank
may notify to the Agent (or the Agent may notify to the Principal
Borrower (on its own behalf and on behalf of the other Obligors), the
Permitted Facilities Provider and the Banks, if a change is made by
the Agent) by not less than five Business Days' notice. Any
communication to be made to an Obligor (other than the Principal
Borrower) by fax shall be made to the fax number identified with the
Principal Borrower's name below. Any communication or document
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to be made or delivered to an Obligor (other than the Principal
Borrower) shall be copied to the Principal Borrower.
41.3 Delivery
Any communication or document to be made or delivered by one person
to another under or in connection with the Finance Documents shall
only be effective:
41.3.1 if by way of fax, when received in legible form;
41.3.2 if by way of letter, when left at the relevant address or,
as the case may be, five days after being deposited in the
post in a postage prepaid envelope addressed to such
address; and
41.3.3 if a particular department or officer is specified as part
of the address details provided under Clause 41.2
(Addresses), if addressed to that department or officer,
provided that any communication or document to be made or delivered
to the Agent shall be effective only when actually received by its
agency division and then only if the same is expressly marked for the
attention of the department or officer identified with the Agent's
signature below (or such other department or officer as the Agent
shall from time to time specify for this purpose).
41.4 The Agent
All notices from or to either the Parent or an Obligor shall be sent
through the Agent.
41.5 English Language
Each communication and document made or delivered by one party to
another pursuant to the Finance Documents shall be in the English
language or accompanied by a translation thereof into English
certified (by an officer of the person making or delivering the same)
as being a true and accurate translation thereof.
41.6 Notification of Changes
Promptly upon receipt of notification, from the Parent or an Obligor,
of a change of address or fax number pursuant to Clause 41.2
(Addresses) or changing its own address or fax number the Agent shall
notify the other parties hereto of such change.
41.7 Deemed Receipt by the Obligors
Any communication or document made or delivered to the Principal
Borrower in accordance with Clause 41.3 (Delivery) shall be deemed to
have been made or delivered to each of the Obligors.
42. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
43. AMENDMENTS
43.1 Amendments
Each of the parties hereto agrees that, if the Agent has the prior
consent of an Instructing Group, the Agent, the Parent and the
Obligors party to a Finance Document may from
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time to time agree in writing to amend such Finance Document or, as
the case may be, the Agent may consent to or waive, prospectively or
retrospectively, any of the requirements of such Finance Document and
any amendments or waivers so agreed or consents so given shall be
binding on all the Finance Parties and the Permitted Facilities
Provider, provided that no such waiver or amendment shall subject any
Finance Party or the Permitted Facilities Provider to any new or
additional obligations without the consent of such Finance Party or,
as the case may be, the Permitted Facilities Provider.
43.2 Amendments Requiring the Consent of all the Banks
An amendment or waiver which relates to:
43.2.1 Clause 33 (Sharing) or this Clause 43;
43.2.2 a change in the principal amount of or currency of any
Advance, or a deferral of any Repayment Date or the
Termination Date;
43.2.3 a change in the Margin, the amount of any payment of
principal, interest, fees or any other amount payable
hereunder to any Finance Party or deferral of the date for
payment thereof;
43.2.4 a release of any of the Security;
43.2.5 a Security Document, where such an amendment or waiver could
affect the nature or scope of the property subject to the
Security;
43.2.6 an increase in the commitment of a Bank;
43.2.7 a change to the Borrowers or Guarantors other than in
accordance with Clause 36 (Additional Borrowers) or Clause
37 (Additional Guarantors);
43.2.8 Clause 2.4 (Banks' Obligations Several), Clause 2.5 (Banks'
Rights Several), Clause 31.6 (Security Proceeds), Clause
31.7 (Application of Security Proceeds), Clause 36
(Additional Borrowers) or Clause 37 (Additional Guarantors);
43.2.9 the conditions set out in sub-clause 6.1.10 of Clause 6.1
(Drawdown Conditions for Revolving Advances) if an Event of
Default or Potential Event of Default which relates to a
Repeated Representation or Clause 23.16 (Negative Pledge) is
continuing;
43.2.10 the definition of Instructing Group, Permitted Encumbrance
or Potential Event of Default; or
43.2.11 any provision which contemplates the need for the consent or
approval of all the Banks,
shall not be made without the prior consent of all the Banks.
43.3 Exceptions
43.3.1 Notwithstanding any other provisions hereof, the Agent shall
not be obliged to agree to any such amendment or waiver if
the same would:
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(a) amend or waive this Clause 43, Clause 27 (Costs
and Expenses) or Clause 34 (The Agent, the
Arrangers and the Banks); or
(b) otherwise amend or waive any of the Agent's rights
hereunder or subject the Agent or the Arrangers to
any additional obligations hereunder.
43.3.2 Notwithstanding any other provisions hereof, the Permitted
Facilities Provider's consent shall be required for any such
amendment or waiver relating to Clause 31 (Payments) and/or
Clause 33 (Sharing) if the same would have a material
adverse effect on the Permitted Facilities Provider's rights
and/or obligations under Clause 31 (Payments) and/or Clause
33 (Sharing).
44. GOVERNING LAW
This Agreement is governed by English law.
45. JURISDICTION
45.1 English Courts
The courts of
England have exclusive jurisdiction to settle any
dispute (a "Dispute") arising out of or in connection with this
Agreement (including a dispute regarding the existence, validity or
termination of this Agreement or the consequences of its nullity).
45.2 Convenient Forum
The parties agree that the courts of
England are the most appropriate
and convenient courts to settle Disputes between them and,
accordingly, that they will not argue to the contrary.
45.3 Non-Exclusive Jurisdiction
This Clause 45 is for the benefit of the Finance Parties only. As a
result and notwithstanding Clause 45.1 (English Courts), it does not
prevent any Finance Party from taking proceedings relating to a
Dispute ("Proceedings") in any other courts with jurisdiction. To the
extent allowed by law, the Finance Parties may take concurrent
Proceedings in any number of jurisdictions.
45.4 Service of Process
The Parent and each Original Obligor agrees that the documents which
start any Proceedings and any other documents required to be served
in relation to those Proceedings may be served on it:
45.4.1 in the case of the Parent, on NTL Group Limited at ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
or, if different, its registered office.
45.4.2 in the case of each Original Obligor, on NTL Group Limited
at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ or, if different, its registered office.
If the Parent or any Original Obligor ceases to have a place of
business in Great Britain or, as the case may be, the appointment of
the person mentioned in this Clause 45.4 (Service of Process) ceases
to be effective, the Parent or the relevant Original Obligor shall
immediately appoint another person in
England to accept service of
process on its
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behalf in
England. If the Parent or an Original Obligor fails to do
so (and such failure continues for a period of not less than fourteen
days), the Agent shall be entitled to appoint such a person by notice
to the Parent or, as the case may be, the relevant Original Obligor.
Nothing contained herein shall restrict the right to serve process in
any other manner allowed by law. This Clause 45.4 (Service of
Process) applies to Proceedings in
England and to Proceedings
elsewhere.
This Agreement has been entered into on the date stated at the beginning of
this Agreement.
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SCHEDULE 1
THE ORIGINAL PARTIES
Part A
The Obligors
Original Borrowers
--------------------------------------- --------------------------------------
Name of Original Borrower Jurisdiction of Incorporation
--------------------------------------- --------------------------------------
Balcab AG Switzerland
--------------------------------------- --------------------------------------
Cablecom GmbH Switzerland
--------------------------------------- --------------------------------------
Cablecom Management GmbH Switzerland
--------------------------------------- --------------------------------------
Original Guarantors
--------------------------------------- --------------------------------------
Name of Original Guarantor Jurisdiction of Incorporation
--------------------------------------- --------------------------------------
Balcab AG Switzerland
--------------------------------------- --------------------------------------
Cablecom Business AG Switzerland
--------------------------------------- --------------------------------------
Cablecom Engineering AG Switzerland
--------------------------------------- --------------------------------------
Cablecom GmbH Switzerland
--------------------------------------- --------------------------------------
Cablecom Management GmbH Switzerland
--------------------------------------- --------------------------------------
Coditel Sarl Switzerland
--------------------------------------- --------------------------------------
Nordex Sagl Switzerland
--------------------------------------- --------------------------------------
NTL Cablecom Holding GmbH Switzerland
--------------------------------------- --------------------------------------
Rediffusion AG Switzerland
--------------------------------------- --------------------------------------
Rera GmbH Immobiliengesellschaft Switzerland
--------------------------------------- --------------------------------------
Swiss Online AG Switzerland
--------------------------------------- --------------------------------------
Urbanet SA Switzerland
--------------------------------------- --------------------------------------
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Part B
The Operating Companies
The Principal Borrower
Balcab AG
Cablecom Business AG
Cablecom Engineering AG
Coditel Sarl
Rediffusion AG
Swiss Online AG
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Part C
The Banks
Bank Revolving Commitment CHF Term Commitment CHF
Abbey National Treasury Services plc 22,195,121.95 42,804,878.05
ABC International Bank plc 28,887,804.88 55,712,195.12
Banca Commerciale Italiana S.p.A. - London Branch 13,658,536.59 26,341,463.41
Banca Nazionale del Lavoro S.p.A., London Branch 37,526,829.27 72,373,170.73
Bank of America, N.A. 57,707,317.07 111,292,682.93
Bankgesellschaft Berlin AG 44,356,097.56 85,43,902.44
Banque et Caisse d'Epargne de L'Etat, Luxembourg 6,829,268.29 13,170,731.71
Bayerische Hypo- und Vereinsbank Aktiengesellschaft, 66,243,902.44 127,756,097.56
London Branch
Bayerische Landesbank Girozentrale 37,526,829.27 72,373,170.73
BNP Paribas 57,707,317.07 111,292,682.93
CDC IXIS 13,658,536.59 26,341,463.41
(formerly Caisse Nationale des Caisses D'Epargne et de
Prevoyance)
CIBC World Markets plc 57,707,317.07 111,292,682.93
Citibank, N.A. 47,946,072.83 92,467,426.17
Cooperative Centrale Raiffeisen-Boerenleenbank BA 13,658,536.59 26,341,463.41
(trading as Rabobank International)
Credit Agricole Indosuez 5,804,878.05 11,195,121.95
Credit Industriel et Commercial 13,658,536.59 26,341,463.41
Credit Lyonnais 37,526,829.27 72,373,170.73
Credit Suisse 27,282,004.97 52,615,295.31
Credit Suisse First Boston 37,526,829.27 72,373,170.73
Deutsche Bank AG London 60,639,293.02 116,947,207.98
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Bank Revolving Commitment CHF Term Commitment CHF
Dexia Project and Public Finance International Bank 37,526,829.27 72,373,170.73
DZ Bank Deutsche Genossenschaftsbank AG 23,868,292.68 46,031,707.32
Dresdner Bank Luxembourg S.A. 57,707,317.07 111,292,682.93
IBM Global Finance Switzerland 5,634,146.34 10,865,853.66
JPMorgan Chase Bank 123,165,853.66 237,534,146.34
(formerly The Chase Manhattan Bank)
Kreditanstalt fur Wiederaufbau 12,975,609.76 25,024,390.24
Landesbank Sachsen Girozentrale 8,536,585.37 16,463,414.63
MeesPierson N.V. 37,526,829.27 72,373,170.73
Mizuho Corporate Bank Ltd 41,965,853.66 80,934,146.34
(formerly The Fuji Bank, Limited)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. 72,185,365.85 139,214,634.15
Natexis Banques Populaires 6,829,268.00 13,170,731.71
Neue Argauer Bank 10,244,824.29 19,757,875.43
Norddeutsche Landesbank Luxembourg S.A. 18,780,487.80 36,219,512.20
Scotiabank Europe plc 37,526,829.27 72,373,170.73
Societe Generale 57,707,317.07 111,292,682.93
Sumitomo Trust and Banking 6,829,268.00 13,170,731.71
The Governor and Company of the Bank of Scotland 37,526,829.27 72,373,170.73
The Royal Bank of Scotland plc 57,707,317.07 111,292,682.93
Westdeutsche Landesbank Girozentrale 57,707,317.07 111,292,682.93
------------------------------------- -------------------------------
CHF1,400,000,000 CHF2,700,000,000
------------------------------------- -------------------------------
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SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
To: ▇.▇. ▇▇▇▇▇▇ Europe Limited (formerly Chase Manhattan International Limited)
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated,
supplemented, or restated the "
Credit Agreement") dated 28 March 2000 whereby
CHF4,100,000,000 term and revolving loan facilities were made available to a
group of borrowers including the Principal Borrower by a group of banks on
whose behalf ▇.▇. ▇▇▇▇▇▇ Europe Limited (formerly Chase Manhattan
International Limited) acted as agent in connection therewith.
1. Terms defined in the
Credit Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank, Transferee
and Portion Transferred are defined in the schedule hereto.
2. The Bank (i) confirms that the details in the schedule hereto under
the heading "Bank's Participation in the Original Term Facility",
"Original Term Advances", "Bank's Participation in the Revolving
Facility" and "Revolving Advances" accurately summarises its
participation in the
Credit Agreement and the Interest Period or Term
of any existing Advances and (ii) requests the Transferee to accept
and procure the transfer by novation to the Transferee of the Portion
Transferred (specified in the schedule hereto) of its Term Commitment
and/or Revolving Commitment and/or its participation in such
Advance(s) by counter-signing and delivering this Transfer
Certificate to the Agent at its address for the service of notices
specified in the
Credit Agreement.
3. The Transferee hereby requests the Agent to accept this Transfer
Certificate as being delivered to the Agent pursuant to and for the
purposes of Clause 35.5 (Transfers by Banks) of the
Credit Agreement
so as to take effect in accordance with the terms thereof on the
Transfer Date or on such later date as may be determined in
accordance with the terms thereof.
4. The Transferee confirms that it has received a copy of the
Credit
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will
not hereafter rely on the Bank to check or enquire on its behalf into
the legality, validity, effectiveness, adequacy, accuracy or
completeness of any such information and further agrees that it has
not relied and will not rely on the Bank to assess or keep under
review on its behalf the financial condition, creditworthiness,
condition, affairs, status or nature of the Parent or the Obligors.
5. The Transferee hereby undertakes with the Bank and each of the other
parties to the
Credit Agreement that it will perform in accordance
with their terms all those obligations which by the terms of the
Finance Documents will be assumed by it after delivery of this
Transfer Certificate to the Agent and satisfaction of the conditions
(if any) subject to which this Transfer Certificate is expressed to
take effect.
6. The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Finance Documents or any document
relating thereto and assumes no responsibility for the
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financial condition of the Obligors or for the performance and
observance by the Obligors of any of their respective obligations
under the Finance Documents or any document relating thereto and any
and all such conditions and warranties, whether express or implied by
law or otherwise, are hereby excluded.
7. The Bank hereby gives notice that nothing herein or in the Finance
Documents (or any document relating thereto) shall oblige the Bank to
(a) accept a re-transfer from the Transferee of the whole or any part
of its rights, benefits and/or obligations under the Finance
Documents transferred pursuant hereto or (b) support any losses
directly or indirectly sustained or incurred by the Transferee for
any reason whatsoever including the non-performance by any Obligor or
any other party to the Finance Documents (or any document relating
thereto) of its obligations under any such document. The Transferee
hereby acknowledges the absence of any such obligation as is referred
to in (a) or (b) above.
8. This Transfer Certificate and the rights, benefits and obligations of
the parties hereunder shall be governed by and construed in
accordance with English law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Bank's Participation in the Original Term Facility: Portion Transferred
Bank's Term Commitment
5. Original Term Advance(s): Interest Period Portion Transferred
Amount of Bank's Participation
6. Bank's Participation in the Revolving Facility: Portion Transferred
Bank's Revolving Commitment
7. Revolving Advance(s): Term and Repayment Date Portion Transferred
Amount of Bank's Participation
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
_____________________________________________________________________________
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
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Contact Name:
Account for Payments:
Telex:
Fax:
Telephone:
_____________________________________________________________________________
[Note: Each Transferee should, at the same time as executing this Transfer
Certificate, execute accession documents for the various Security Documents.]
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SCHEDULE 3
CONDITIONS PRECEDENT
(A) Corporate Documents
1. In relation to the Parent and each Original Obligor:
(a) a copy, certified as at the date of this Agreement a true
and up-to-date copy by an Authorised Signatory of the Parent
or, as the case may be, the relevant Original Obligor, of
the constitutional documents of the Parent or such Original
Obligor;
(b) a copy, certified as at the date of this Agreement a true
and up-to-date copy by an Authorised Signatory of the Parent
or, as the case may be, the relevant Original Obligor, of a
board resolution of the Parent or such Original Obligor
approving the execution, delivery and performance of the
Finance Documents to which the Parent or such Original
Obligor is a party and the terms and conditions thereof and
authorising a named person or persons to sign such Finance
Documents and any documents to be delivered by the Parent or
such Original Obligor pursuant thereto; and
(c) a certificate of an Authorised Signatory of the Parent or,
as the case may be, the relevant Original Obligor setting
out the names and signatures of the persons authorised to
sign, on behalf of the Parent or such Original Obligor, the
Finance Documents to which the Parent or such Original
Obligor is a party and any documents to be delivered by the
Parent or such Original Obligor pursuant thereto.
2. In relation to NTL CV1:
(a) a copy of an up-to-date extract ("uittreksel") from the
relevant Dutch Chamber of Commerce and a copy of the
executed agreement of association;
(b) a copy of a resolution of the partners approving the general
partner to enter into the Finance Documents on behalf of NTL
CV1, and approving the separate contributions and revised
Schedule B;
(c) a certificate signed by the general partner of NTL CV1
setting out the names and signatures of the persons
authorised to sign, on behalf of NTL CV1, the Finance
Documents to which NTL CV1 is a party and any documents to
be delivered by NTL CV1 pursuant thereto.
3. The Group Structure Chart (showing all members of the Group, assuming
that the Acquisition has completed).
4. To the extent not delivered under A1, a copy, certified (to the best
of such Authorised Signatory's knowledge and belief) as at the date
of this Agreement a true and up-to-date copy by an Authorised
Signatory of the relevant Group member of the constitutive documents
of each Group member whose shares are secured by the Share Pledges.
(B) Accounts and Reports
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1. The Business Plan.
2. The Accountant's Letter, addressed to the Finance Parties.
3. Copies, certified true copies by an Authorised Signatory of the
Principal Borrower, of the Original Financial Statements (other than
those referred to in paragraph (a) of the definition thereof).
4. The Vendor's audited consolidated financial statements for its
financial year ended 31 December 1999.
(C) Acquisition Documents, Hivedown and Related Matters
1. A copy, certified by an Authorised Signatory of the Parent as true,
complete and up-to-date, of each Acquisition Document.
2. Evidence that the Acquisition has completed or, immediately following
the first Original Term Advance hereunder, will be completed in
accordance with the terms of the Acquisition Documents and that no
right or entitlement of the Parent or any member of either the NTL
Inc. Holding Group or the Group (whether to receive documents or
otherwise) thereunder has been waived or modified except with the
written consent of the Agent, together with written confirmation from
the Parent that the Acquisition Documents contain the full agreement
of the parties thereto as to the matters set out therein (save for
any amendments to the Acquisition Documents disclosed in the
Disclosure Letter).
3. Evidence that, immediately following the completion of the
Acquisition neither the Shareholder nor any member of the Restricted
Group shall have (or will have) any Financial Indebtedness
outstanding (other than Permitted Financial Indebtedness) and that
all Encumbrances (other than Permitted Encumbrances) have been, or
will be, discharged.
4. A Certificate of an Authorised Signatory of the Principal Borrower
confirming that all necessary consents, licences, authorisations and
approvals in relation to the transactions constituted by the
Acquisition Documents and the Finance Documents have been obtained,
such a certificate having certified copies of the following annexed
to it:
(a) the Licences necessary for the Cablecom Business to conduct
its business as at the date of the completion of the
Acquisition (other than any Licences referred to in
paragraph (c) of the definition thereof, where such Licences
are not material in the context of the Cablecom Business as
a whole);
(b) the approval of the Acquisition by the Swiss Federal Office
for Communication;
(c) clearance from the Swiss Competition Commission (or a
confirmation from the Parent's Swiss counsel that no such
clearance is required in connection with the Acquisition).
5. Copies, certified by an Authorised Signatory of the Parent as true,
complete and up-to-date, of all of the documents relating to the
Hivedown, evidencing that immediately following the making of the
first Original Term Advance hereunder in order to complete the
Acquisition the Principal Borrower and CC AG will be wholly owned
subsidiaries of
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the Shareholder and that the Principal Borrower, CC AG and the
Principal Borrower's subsidiaries will constitute the Cablecom
Business.
6. Evidence satisfactory to the Agent that the Group has (or, within a
reasonable period following the completion of the Acquisition, will
have) in existence, insurance policies in relation to the Cablecom
Business against those risks and at those levels which are usual for
companies carrying on a business such as that carried on by the
Cablecom Business at the completion of the Acquisition.
7. Evidence satisfactory to the Agent that an aggregate amount of at
least CHF3,100,000,000 has been, pursuant to and in accordance with
the Acquisition Documents and the Hivedown, contributed by the Parent
towards the Acquisition consideration.
(D) Security Documents and Related Documentation
1. The Security Documents, duly executed and delivered by the relevant
Original Obligors, in the form of public deeds where required by
applicable law.
2. All share certificates and, where applicable, the shareholders'
register and an approving board resolution (except in the case of an
approving board resolution where indicated by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
that this is unnecessary for a particular Group member) in relation
to the certificated shares in Group members which have been pledged
pursuant to the Share Pledges.
3. The Subordination Deed, duly executed by NTL SPV LLC as sole general
partner of CV1 and the Principal Borrower.
(E) Legal Opinions
Legal opinions from the following:
(a) ▇▇▇▇▇▇▇▇ Chance, London, the Agent's English counsel;
(b) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇, the Agent's Swiss counsel;
(c) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, the Parent's
Delaware counsel or (to the extent acceptable to the Agent)
other US Counsel;
(d) ▇▇▇▇▇▇▇▇ Chance, Amsterdam, the Agent's Dutch counsel;
(e) Dutch counsel to the Parent,
in each case in substantially the form distributed to the Banks prior
to the signing of this Agreement.
(F) Miscellaneous
1. The fees letters referred to in Clause 26.5 (Agency and Other Fees).
2. Written confirmation from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
or other US counsel, that (a) the Parent's entry into of this
Agreement, the Acquisition Documents and (b) the entry into by other
members of the NTL Inc. Holding Group and members of
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the Group of the Acquisition Documents, the documentation relating to
the Hivedown and the Finance Documents will not breach (i) the
Parent's constitutive documents and (ii) the indentures and other
documentation relating to the NTL Notes issued by any member of the
NTL Inc. Group or the NTL Inc. Holding Group.
3. Evidence that the party or parties specified in Clause 45.4 (Service
of Process) have agreed to act as the agents of the Parent and of
each Original Obligor for the service of process in
England.
4. Evidence that the fees, costs and expenses required to be paid on or
about the date of this Agreement by either the Parent or the
Principal Borrower pursuant to Clause 26.5 (Agency and Other Fees)
and Clause 27.2 (Stamp Taxes) have been paid or will be paid
immediately following the completion of the Acquisition.
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SCHEDULE 4
NOTICE OF DRAWDOWN
From: [Borrower]
To: ▇.▇. ▇▇▇▇▇▇ Europe Limited
Dated:
Dear Sirs,
1. We refer to the agreement dated 28 March 2000 (as from time to time
amended, varied, novated, supplemented or restated) and made between,
inter alia, a group of borrowers including Cablecom GmbH (formerly
Cablecom (Ostschweiz) AG), ▇.▇. ▇▇▇▇▇▇ Europe Limited (formerly Chase
Manhattan International Limited) as agent and the financial
institutions named therein as Banks (the "
Credit Agreement").
Terms defined in the Credit Agreement shall have the same meaning in
this notice.
2. This notice is irrevocable.
3. We hereby give you notice that, pursuant to the Credit Agreement and
on [date of proposed Advance], we wish to borrow a Revolving Advance
in the amount of CHF[ ] upon the terms and subject to the conditions
contained therein.
4. We would like this Advance to have a Term of [ ] months' duration.
5. This Revolving Advance shall be applied towards [the purposes
specified in sub-clause 2.2.2 of Clause 2.2 (Purpose and
Application)]* [payment of Bank interest and Hedging Liabilities].*
6. We confirm that, at the date hereof, the Repeated Representations are
true in all material respects and no Event of Default or Potential
Event of Default** is continuing.
7. The proceeds of this drawdown should be credited to [insert account
details].***
Yours faithfully
.............................
Authorised Signatory
for and on behalf of
[Insert name of Borrower]
* Delete as appropriate
** Delete for a Rollover Advance.
*** Must be either the Interest Account or Receivables Account as
designated by the Principal Borrower, as appropriate
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SCHEDULE 5
FORM OF COMPLIANCE CERTIFICATE
To: ▇.▇. ▇▇▇▇▇▇ Europe Limited
Date:
Dear Sirs,
We refer to an agreement dated 28 March 2000 (as from time to time amended,
varied, novated, supplemented or restated), and made between a group of
borrowers including Cablecom GmbH (formerly known as Cablecom (Ostschweiz)
AG), ▇.▇. ▇▇▇▇▇▇ Europe Limited (formerly known as Chase Manhattan
International Limited) as agent, the financial institutions defined therein as
Banks and others (the "Credit Agreement").
Terms defined in the Credit Agreement shall bear the same meaning herein.
We confirm that:
1. The EBITDA of the Restricted Group for the period ended on [Quarter
Date] was [ ].
2. The ratio of the EBITDA of the Group for the six months ended on
[Quarter Date] to the Consolidated Finance Charges of the Restricted
Group for that six month period was [ ]:1.
3. The number of Hi-Speed Internet Subscribers on [Quarter Date] was [
].
4. The capital expenditure for the period beginning [1 January 2002] and
ended on [Quarter Date] was [ ].
5. The Liquidity Headroom of the Restricted Group on [Quarter Date] was
[ ].
The Senior Debt of the Restricted Group on [Quarter Date] was [ ]. The
Annualised EBITDA of the Restricted Group for the Financial Quarter ended on
[Quarter Date] was [ ]. On the basis of this, we confirm that the Margin in
relation to any Advance outstanding on or after your receipt of this
Compliance Certificate will be [ ] per cent. per annum.
We also confirm that the aggregate EBITDA of the Guarantors for the 12 month
period ending on [Quarter Date] equalled or exceeded 85% of the consolidated
EBITDA of the Restricted Group for such 12 month period.
Signed: ............... ...............
Director Director
of of
Cablecom GmbH Cablecom GmbH
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SCHEDULE 6
FORM OF BORROWER ACCESSION MEMORANDUM
To: ▇.▇. ▇▇▇▇▇▇ Europe Limited
From: [Subsidiary]
and
Cablecom GmbH
Dated:
Dear Sirs,
1. We refer to an agreement dated 28 March 2000 (as from time to time
amended, varied, novated, supplemented or restated) and made between
a group of borrowers including Cablecom GmbH (formerly known as
Cablecom (Ostschweiz) AG) (the "Principal Borrower"), ▇.▇. ▇▇▇▇▇▇
Europe Limited (formerly known as Chase Manhattan International
Limited) as agent, the financial institutions defined therein as
Banks and others (the "Credit Agreement").
2. Terms defined in the Credit Agreement shall bear the same meaning
herein.
3. The Principal Borrower requests that [Subsidiary] become an
Additional Borrower pursuant to Clause 36.1 (Request for Additional
Borrower) of the Credit Agreement.
4. [Subsidiary] is a company duly organised under the laws of [name of
relevant jurisdiction].
5. [Subsidiary] confirms that it has received from the Principal
Borrower a true and up-to-date copy of the Credit Agreement.
6. [Subsidiary] undertakes, upon its becoming a Borrower, to perform all
the obligations expressed to be undertaken under the Credit Agreement
by a Borrower and agrees that it shall be bound by the Credit
Agreement in all respects as if it had been an original party thereto
as an Original Borrower.
7. The Principal Borrower confirms that, if [Subsidiary] is accepted as
an Additional Borrower, its guarantee obligations and the guarantee
obligations of the other Guarantors pursuant to Clause 25 (Guarantee
and Indemnity) of the Credit Agreement will apply to all the
obligations of [Subsidiary] under the Finance Documents in all
respects in accordance with the terms of the Credit Agreement.
8. The Principal Borrower:
(a) repeats the Repeated Representations; and
(b) confirms that no Event of Default or Potential Event of
Default is continuing or would occur as a result of
[Subsidiary] becoming an Additional Borrower.
9. [Subsidiary] makes the representations and warranties set out in
Clause 20.1 (Status) to Clause 20.11 (Legal and Beneficial Owner).
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10. [Subsidiary's] administrative details are as follows:
Address:
Fax No.:
11. Process Agent
[Subsidiary] agrees that the documents which start any Proceedings
and any other documents required to be served in relation to those
Proceedings may be served on it at [address of Subsidiary's place of
business in
England] or at any address in Great Britain at which
process may be served on it in accordance with Part XXIII of the
Companies Act 1985]/[on name of process agent in
England at address
of process agent or, if different, its registered office. If
[[Subsidiary] ceases to have a place of business in Great
Britain]/[the appointment of the person mentioned above ceases to be
effective], [Subsidiary] shall immediately appoint another person in
England to accept service of process on its behalf in England. If it
fails to do so (and such failure continues for a period of not less
than fourteen days), the Agent shall be entitled to appoint such a
person by notice. Nothing contained herein shall restrict the right
to serve process in any other manner allowed by law. This applies to
Proceedings in England and to Proceedings elsewhere.]
12. This Memorandum is governed by English law.
Cablecom GmbH [Subsidiary]
By: ........................ By: ..................
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SCHEDULE 7
FORM OF GUARANTOR ACCESSION MEMORANDUM
To: ▇.▇. ▇▇▇▇▇▇ Europe Limited
From: [Subsidiary] and
Cablecom GmbH
Dated:
Dear Sirs,
1. We refer to an agreement dated 28 March 2000 (as from time to time
amended, varied, novated, supplemented or restated) and made between
a group of borrowers including Cablecom GmbH (formerly known as
Cablecom (Ostschweiz) AG) (the "Principal Borrower"), ▇.▇. ▇▇▇▇▇▇
Europe Limited (formerly known as Chase Manhattan International
Limited) as agent, the financial institutions defined therein as
Banks and others (the "Credit Agreement").
2. Terms defined in the Credit Agreement shall bear the same meaning
herein.
3. The Principal Borrower requests that [Subsidiary], a subsidiary of
the Principal Borrower, become an Additional Guarantor pursuant to
Clause 37.1 (Request for Additional Guarantor) of the Credit
Agreement.
4. [Subsidiary] is a company duly organised under the laws of [name of
relevant jurisdiction].
5. [Subsidiary] confirms that it has received from the Principal
Borrower a true and up-to-date copy of the Credit Agreement and a
list of the Borrowers as at the date hereof.
6. [Subsidiary] undertakes, upon its becoming a Guarantor, to perform
all the obligations expressed to be undertaken under the Credit
Agreement by a Guarantor and agrees that it shall be bound by the
Credit Agreement in all respects as if it had been an original party
thereto as an Original Guarantor.
7. The Principal Borrower:
(a) repeats the Repeated Representations; and
(b) confirms that no Event of Default or Potential Event of
Default is continuing or would occur as a result of
[Subsidiary] becoming an Additional Guarantor.
8. [Subsidiary] makes the representations and warranties set out in
Clause 20.1 (Status) to Clause 20.11 (Legal and Beneficial Owner).
9. [Subsidiary's] administrative details are as follows:
Address:
Fax No.:
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10. [Process Agent*
[Subsidiary] agrees that the documents which start any Proceedings
and any other documents required to be served in relation to those
Proceedings may be served on it at [address of Subsidiary's place of
business in England] or at any address in Great Britain at which
process may be served on it in accordance with Part XXIII of the
Companies Act 1985] / [on name of process agent in England at address
of process agent or, if different, its registered office. If
[Subsidiary] ceases to have a place of business in Great Britain]/[
the appointment of the person mentioned above ceases to be
effective], [Subsidiary] shall immediately appoint another person in
England to accept service of process on its behalf in England. If it
fails to do so (and such failure continues for a period of not less
than fourteen days), the Agent shall be entitled to appoint such a
person by notice. Nothing contained herein shall restrict the right
to serve process in any other manner allowed by law. This applies to
Proceedings in England and to Proceedings elsewhere.]
11. This Memorandum is governed by English law.
This Memorandum is executed and delivered as a deed by [name of Additional
Guarantor]
............................................
Director of Additional Guarantor
............................................
Director/Secretary of Additional Guarantor]
or
[The Common Seal of [Additional Guarantor]
was affixed to this deed in the presence of
................................
Director of Additional Guarantor
............................................
Director/Secretary of Additional Guarantor**
[Insert name of Parent]
By: .........................
* This clause is required only if the Additional Guarantor is not
incorporated in England or Wales.
** Delete as appropriate. If the company is not incorporated in England
or Wales, alternate form of execution may be more appropriate.
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SCHEDULE 8
ADDITIONAL CONDITIONS PRECEDENT
1. A copy, certified as at the date of the relevant Accession Memorandum
a true and up-to-date copy by an Authorised Signatory of the proposed
Additional Obligor, of the constitutional documents of such proposed
Additional Obligor.
2. A copy, certified as at the date of the relevant Accession Memorandum
a true and up-to-date copy by an Authorised Signatory of the proposed
Additional Obligor, of a board resolution of such proposed Additional
Obligor approving the execution and delivery of an Accession
Memorandum, the accession of such proposed Additional Obligor to this
Agreement and the performance of its obligations under the Finance
Documents and authorising a named person or persons to sign such
Accession Memorandum, any other Finance Document and any other
documents to be delivered by such proposed Additional Obligor
pursuant thereto.
3. If the proposed Additional Obligor is incorporated in a jurisdiction
other than England and Wales and if deemed either necessary or
desirable by the Agent's counsel in the jurisdiction of incorporation
of the proposed Additional Obligor, a copy, certified as at the date
of the relevant Accession Memorandum a true and up-to-date copy by an
Authorised Signatory of the proposed Additional Obligor, of the
resolutions of the shareholders of such Additional Obligor
authorising the execution and delivery of an Accession Memorandum,
the accession of such Additional Obligor to this Agreement and the
performance of its obligations under the Finance Documents.
4. A certificate of an Authorised Signatory of the proposed Additional
Obligor setting out the names and signatures of the person or persons
authorised to sign, on behalf of such proposed Additional Obligor,
the Accession Memorandum, any other Finance Documents and any other
documents to be delivered by such proposed Additional Obligor
pursuant thereto.
5. If deemed either necessary or desirable by the Agent's counsel in the
jurisdiction of incorporation of the proposed Additional Obligor, a
certificate of an Authorised Signatory of the proposed Additional
Obligor confirming that the utilisation of the Facilities would not
breach any restriction of its borrowing powers (or, as the case may
be, its guaranteeing powers).
6. If the proposed Additional Obligor is incorporated in a jurisdiction
other than England and Wales, a copy, certified a true copy by or on
behalf of the proposed Additional Obligor, of each such law, decree,
consent, licence, approval, registration or declaration as is, in the
opinion of counsel to the Banks, necessary to render the relevant
Accession Memorandum legal, valid, binding and enforceable, to make
such Accession Memorandum admissible in evidence in the proposed
Additional Obligor's jurisdiction of incorporation and to enable the
proposed Additional Obligor to perform its obligations thereunder and
under the other Finance Documents.
7. Copies, certified true copies by an Authorised Signatory of the
proposed Additional Obligor, of its latest annual audited
consolidated financial statements and any subsequent interim
consolidated financial statements (to the extent such are available).
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8. An opinion of ▇▇▇▇▇▇▇▇ Chance, solicitors to the Agent, in form and
substance satisfactory to the Agent.
9. A legal opinion of the Agent's legal advisors in the jurisdiction in
which such Additional Obligor is incorporated.
10. Evidence that the process agent specified in the relevant Accession
Memorandum has agreed to act as its agent for the service of process
in England.
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SCHEDULE 9
FORM OF RESIGNATION NOTICE
To: ▇.▇. ▇▇▇▇▇▇ Europe Limited
From: Cablecom GmbH
Dated:
Dear Sirs,
1. We refer to an agreement dated 28 March 2000 (as from time to time
amended, varied, novated, supplemented or restated) and made between
a group of borrowers including Cablecom GmbH (formerly known as
Cablecom (Ostschweiz) AG) (the "Principal Borrower"), ▇.▇. ▇▇▇▇▇▇
Europe Limited (formerly known as Chase Manhattan International
Limited) as agent, the financial institutions defined therein as
Banks and others (the "Credit Agreement").
2. Terms defined in the Credit Agreement shall bear the same meaning
herein.
3. [We declare that [name of Borrower] is under no actual or contingent
obligation under any Finance Document in its capacity as a
Borrower.]*
4. Pursuant to Clause [36.3 (Resignation of a Borrower)]/[37.3
(Resignation of a Guarantor) we hereby request that [name of Obligor]
shall cease to be a [Borrower]/[Guarantor] under the Credit
Agreement.
5. [We hereby confirm that the aggregate EBITDA of the remaining
Guarantors for the last financial year of the Principal Borrower
equalled or exceeded 85% of the consolidated EBITDA of the Restricted
Group for such a financial year.]**
Yours faithfully
Cablecom GmbH
* Delete if notice is for a Guarantor.
** Delete if notice is for a Borrower.
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SCHEDULE 10
MANDATORY COSTS
1. The Mandatory Cost Rate is an addition to the interest rate to
compensate Banks for the cost of compliance with (a) the requirements
of the Financial Services Authority (or any other authority which
replaces all or any of its functions) or (b) the requirements of the
European Central Bank.
2. On the first day of each Interest Period or Term, as the case may be,
(or as soon as possible thereafter) the Agent shall calculate, as a
percentage rate, a rate (the "additional costs rate") for each Bank,
in accordance with the formula set out below. The Mandatory Cost Rate
will be calculated by the Agent as a weighted average of such Bank's
additional costs rates rounded to five decimal places (weighted in
proportion to the percentage participation of each Bank in the
relevant Advance) and will be expressed as a percentage rate per
annum.
3. The additional costs rate for any Bank lending from a Facility Office
in a Participating Member State will be the percentage notified by
that Bank to the Agent as the cost of complying with the minimum
reserve requirements of the European Central Bank.
4. The additional cost rate for any Bank lending from a Facility Office
in the United Kingdom will be calculated by the Agent as follows:
F x 0.01
-------- per cent. per annum.
300
Where F is the rate of charge payable by that Bank to the Financial
Services Authority pursuant to the Fee Regulations (but, for this
purpose, ignoring any minimum fee required pursuant to the Fee
Regulations) and expressed in pounds per (pound)1,000,000 of the Fee
Base of that Bank.
5. For the purposes of this Schedule:
(a) "Fee Regulations" means the Banking Supervision (Fees)
Regulations 1999 or such other law as may be in force from
time to time in respect of the payment of fees for banking
supervision; and
(b) "Fee Base" has the meaning given to it, and will be
calculated in accordance with, the Fee Regulations.
6. Each Bank shall supply any information required by the Agent for the
purpose of calculating its additional costs rate. In particular, but
without limitation, each Bank shall supply the following information
in writing on or prior to the date on which it becomes a Bank:
(a) its jurisdiction of incorporation and the jurisdiction of
its Facility Office; and
(b) such other information that the Agent may reasonably require
for such purpose.
Each Bank shall promptly notify the Agent in writing of any change to
the information provided by it pursuant to this paragraph.
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7. The rates of charge of each Bank for the purpose of F above shall be
determined by the Agent based upon the information supplied to it
pursuant to paragraph 6 above and on the assumption that unless a
Bank notifies the Agent to the contrary, each Bank's obligations in
relation to the Fee Regulations are the same as those of a typical
bank from its jurisdiction of incorporation with a Facility Office in
the same jurisdiction as its Facility Office.
The Agent shall have no liability to any person if such determination
results in an additional costs rate which over or under compensates
any Bank and shall be entitled to assume that the information
provided by any Bank pursuant to paragraph 6 above is true and
correct in all respects.
8. The Agent shall distribute the additional amounts received pursuant
to the Mandatory Cost Rate to the Banks on basis of the additional
cost rate incurred by each Bank, as calculated in accordance with the
above formula and based on the information provided by each Bank
pursuant to paragraph 6 above.
9. Any determination by the Agent pursuant to this Schedule in relation
to a formula, the Mandatory Cost Rate, an additional costs rate or
any amount payable to a Bank shall, in the absence of manifest error,
be conclusive and binding on all of the parties hereto.
10. The Agent may from time to time, after consultation with the
Principal Borrower (on its own behalf and on behalf of the other
Borrowers) and the Banks, determine and notify to all parties any
amendments or variations which are required to be made to this
Schedule in order to comply with any charge in law, regulation or any
requirements from time to time imposed by the Financial Services
Authority or the European Central Bank (or, in any case, any other
authority which replaces all or any of its functions) and any such
determination shall, in the absence of manifest error, be conclusive
and binding on all the parties hereto.
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SCHEDULE 11
CONFIDENTIALITY UNDERTAKING
To: NTL (Delaware) Inc. and each of its subsidiaries including each person
comprised in the Cablecom Business (as defined below)
[Date]
Dear Sirs
We refer to the CHF 4,100,000,000 credit agreement dated 28 March 2000 (as
from time to time amended, varied, novated, supplemented or restated) between
NTL (Delaware) Inc. as parent, Cablecom GmbH as principal borrower, Chase
Manhattan plc and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. as arrangers, ▇.▇.
▇▇▇▇▇▇ Europe Limited as agent and others (the "Credit Agreement").
Capitalised terms used in this letter shall, unless otherwise stated, have the
meaning given to them in paragraph 11 below.
In consideration of you agreeing to certain information being made available
to us, by our signature of this letter we agree as follows:
1. Confidentiality Undertaking We undertake (a) to keep the Confidential
Information confidential and not to disclose it to anyone except as
provided for by paragraph 2 below and to ensure that the Confidential
Information is protected with security measures and a degree of care
that would apply to our own confidential information, (b) to use the
Confidential Information only for the Permitted Purpose and (c) to
use all reasonable endeavours to ensure that any person to whom we
pass any Confidential Information (unless disclosed under paragraph 2
(c) below) acknowledges and complies with the provisions of this
letter as if that person were also a party to it (and so bound by its
terms in your favour).
2. Permitted Disclosure You agree that we may disclose Confidential
Information:
(a) to any other bank which becomes (or is considering becoming)
a bank under the Credit Agreement and their officers,
directors, employees and professional advisers only to the
extent necessary for the Permitted Purpose and so long as
any such other bank has addressed and delivered a letter to
you in substantially the same form as this letter;
(b) subject to us procuring that the following comply with the
terms of this letter, to other members of the Group and
their officers, directors, employees and professional
advisers, in each case to the extent necessary for the
Permitted Purpose, and to their auditors;
(c) (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental,
supervisory or regulatory body, (ii) where
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required by the rules of any stock exchange on which the
shares or other securities of any member of the Group are
listed or (iii) where required by the laws or regulations of
any country with jurisdiction over the affairs of any member
of the Group; and
(d) to our officers, directors, employees, professional
advisers, in each case to the extent necessary for the
Permitted Purpose, and to our auditors to the extent
necessary for auditing our business.
3. Notification of Required or Unauthorised Disclosure We agree (to the
extent permitted by law) to inform you promptly of the full
circumstances of any disclosure under paragraph 2(c) or upon becoming
aware that Confidential Information has been disclosed in breach of
this letter.
4. Return of Copies If (a) you so request in writing and (b) we do not
become or cease to be a bank under the Credit Agreement, we shall
promptly return all Confidential Information supplied to us by you,
the Agent, the Arrangers and/or any Bank and destroy or permanently
erase all copies of Confidential Information made by us and use all
reasonable endeavours to ensure that anyone to whom we have supplied
any Confidential Information destroys or permanently erases such
Confidential Information and any copies made by them, in each case
save to the extent that we or the recipients are required to retain
any such Confidential Information by any applicable law, rule or
regulation or by any competent judicial, governmental, supervisory or
regulatory body or in accordance with internal policy, or where the
Confidential Information has been disclosed under paragraph 2(c)
above.
5. Continuing Obligations The obligations in this letter are continuing
and, in particular, shall survive the termination of any discussions
or negotiations between you and us or us and any Bank.
Notwithstanding the previous sentence, the obligations in this letter
shall cease (without prejudice to any antecedent breach of this
letter) twelve months after we have returned all Confidential
Information supplied to us by you, the Agent, the Arrangers and/or
any Bank and destroyed or permanently erased all copies of
Confidential Information made by us (other than any such Confidential
Information or copies which have been disclosed under paragraph 2
above (or which, pursuant to paragraph 4 above, are not required to
be returned or destroyed)).
6. Consequences of Breach We acknowledge and agree that you may be
irreparably harmed by the breach of the terms hereof and damages may
not be an adequate remedy; you may be granted an injunction or
specific performance for any threatened or actual breach of the
provisions of this letter by us.
7. No Waiver; Amendments, etc This letter sets out the full extent of
our obligations of confidentiality owed to the addressees of this
letter (save in relation to any obligations of confidentiality under
a letter signed by us after the date of this letter) in relation to
the information the subject of this letter. No failure or delay in
exercising any right, power or privilege hereunder will operate as a
waiver thereof nor will any single or partial exercise of any right,
power or privilege preclude any further exercise thereof or the
exercise of any other right, power or privileges hereunder. The terms
of this letter and our obligations hereunder may only be amended or
modified by written agreement between us.
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8. Inside Information We acknowledge that some or all of the
Confidential Information is or may be price-sensitive information and
that the use of such information may be regulated or prohibited by
applicable legislation relating to insider dealing.
9. Nature of Undertakings The undertakings given by us under this letter
are given (without implying any fiduciary obligations on your part)
to and for the benefit of each member of the NTL group (including,
each person comprised in the Cablecom Business).
10. Governing Law and Jurisdiction This letter (including the agreement
constituted by your acknowledgement of its terms) shall be governed
by and construed in accordance with the laws of England and we submit
to the non-exclusive jurisdiction of the English courts.
11. Definitions In this letter:
"Acquisition" means the acquisition by certain members of the NTL
(Delaware) Inc. group of the Cablecom Business.
"Agent" means ▇.▇. ▇▇▇▇▇▇ Europe Limited.
"Arrangers" means ▇.▇. ▇▇▇▇▇▇ plc (formerly Chase Manhattan plc) and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
"Bank" means any bank or financial institution which is, at any time,
party to the Facility Agreement as a "Bank".
"Cablecom Business" means the subsidiaries of Cablecom GmbH, together
with certain other assets and liabilities.
"Confidential Information" means any information relating to any
member of the NTL Inc. group, any person comprised in the Cablecom
Business, the Information Memorandum, the Credit Agreement and/or the
Acquisition provided to us by you, any of your affiliates or
advisers, the Agent, the Arrangers and/or any Bank (or any affiliates
or advisers of any Bank), in whatever form, and includes information
given orally and any document, electronic file or any other way of
representing or recording information which contains or is derived or
copied from such information but excludes information that (a) is or
becomes public knowledge other than as a direct or indirect result of
any breach of this letter or (b) is known by us before the date the
information is disclosed to us by you or any of your affiliates or
advisers, the Agent, the Co-ordinators and/or any Bank (or any
affiliates or advisers of any Bank) or is obtained by us thereafter,
other than from a source which is connected with the NTL (Delaware)
Inc. group or any person comprised in the Cablecom Business and
which, in either case, as far as we are aware, has not been obtained
in violation of, and is not otherwise subject to, any obligation of
confidentiality.
"Group" means us, each of our holding companies and subsidiaries and
each subsidiary of each of our holding companies (as each such term
is defined in the Companies Act 1985).
-135-
"Information Memorandum" means the information memorandum dated
February 2000, relating to the Acquisition and the Cablecom Business,
prepared and distributed by the Arrangers.
"Permitted Purpose" means:
(a) in respect of a person who is considering and evaluating
whether to participate in the Credit Agreement as a Bank,
such consideration and evaluation;
(b) in respect of a person who is a party to the Credit
Agreement as a Bank, its continued participation as a Bank;
or
(c) in respect of a person who has ceased to participate in the
Credit Agreement as a Bank, the maintenance by such a person
of a record of its participation.
Please sign and return the enclosed copy of this letter to acknowledge your
consent to the terms and conditions hereof.
Yours faithfully
..................................
For and on behalf of
[insert name of bank or other lending institution]
We agree to the above.
..................................
For and on behalf of
NTL (Delaware) Inc.
Date:
-136-
SCHEDULE 12
EXISTING MORTGAGES
-------------------------- ------------------------ ---------------------------- ----------------------- ---------------------
Mortgagor member of the Mortgagee Assets subject to an Maximum principal Maturity
Restricted Group Encumbrance amount of
indebtedness
Mortgagor can owe
(CHF)
-------------------------- ------------------------ ---------------------------- ----------------------- ---------------------
Principal Borrower Graubundner KB Building at 671,000 31/12/2006
Commercialstrasse 23, Chur
-------------------------- ------------------------ ---------------------------- ----------------------- ---------------------
Rera GmbH Immobilien Graubundner KB Building at 1,200,000 None
gesellschaft ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, Chur
-------------------------- ------------------------ ---------------------------- ----------------------- ---------------------
Rera GmbH PK Rediffussion Building at Zollstrasse 12,000,000 ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇
-------------------------- ------------------------ ---------------------------- ----------------------- ---------------------
Rera GmbH PK Rediffussion Building at Belpstrasse 1,200,000 ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
-------------------------- ------------------------ ---------------------------- ----------------------- ---------------------
Rera GmbH United Bank of Building at ▇▇▇▇▇-▇▇▇▇ ▇, ▇,▇▇▇,▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Lausanne
-------------------------- ------------------------ ---------------------------- ----------------------- ---------------------
Video 2000 SA Pension Fund ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇,▇▇▇ 31/5/2008
Neuchatel Gare 5, Neuchatel
-------------------------- ------------------------ ---------------------------- ----------------------- ---------------------
Video 2000 SA United Bank of Building at Avenue de la 600,000 23/4/2003
Switzerland Gare 5, Neuchatel
-------------------------- ------------------------ ---------------------------- ----------------------- ---------------------
Rera GmbH Winterthur Versich Building at ▇▇▇▇▇▇▇▇▇▇ ▇▇, 2,300,000 None
Immobilien-gesellschaft Ben
-------------------------- ------------------------ ---------------------------- ----------------------- ---------------------
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SCHEDULE 13
FORM OF DEED OF ACCESSION
THIS Deed dated [ ], [ ] is supplemental to a credit agreement dated 28 March
2000 (as from time to time amended, varied, novated, supplemented or restated)
and made between a group of borrowers including Cablecom GmbH (formerly known
as Cablecom (Ostschweiz) AG), ▇.▇. ▇▇▇▇▇▇ Europe Limited (formerly known as
Chase Manhattan International Limited) as agent, the financial institutions
defined therein as Banks and others (the "Credit Agreement").
Words and expressions defined in the Credit Agreement have the same meaning
when used in this Deed.
[Name of Permitted Facilities Provider] hereby agrees with each other person
who is or who becomes a party to the Credit Agreement that with effect on and
from the date hereof it will be bound by the Credit Agreement as the Permitted
Facilities Provider as if it had been party to the Credit Agreement in that
capacity.
The address for notice of [Name of the Permitted Facilities Provider] for the
purposes of Clause 41 (Notices) of the Credit Agreement is:-
[
].
This Deed is governed by English law.
EXECUTED AS A DEED )
by [Name of the Permitted Facilities Provider] )
acting by [ ] )
in the presence of:- )
Name:
Address:
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