Exhibit 10.6(a)
[▇▇▇▇▇▇▇▇ CHANCE LOGO] LIMITED LIABILITY PARTNERSHIP
SCHEDULE 4
RESTATED CREDIT AGREEMENT
NTL COMMUNICATIONS LIMITED
AS PARENT
NTL INVESTMENT HOLDINGS LIMITED
AS POST-NOVATION BORROWER
NTL COMMUNICATIONS CORP.
AS NTL CC
▇.▇. ▇▇▇▇▇▇ plc
AND
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ BANK LIMITED
AS ARRANGERS AND JOINT BOOK MANAGERS
CHASE MANHATTAN INTERNATIONAL LIMITED
AS AGENT, SECURITY TRUSTEE AND SECOND SECURITY TRUSTEE
AND
OTHERS
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CREDIT AGREEMENT
MADE ON 30 MAY 2000,
AS AMENDED OR WAIVED PURSUANT TO A LETTER
DATED 6 JUNE 2000, AMENDMENT AGREEMENTS DATED
8 JUNE 2000, 30 JUNE 2000 AND 4 SEPTEMBER 2000, A
NOVATION AGREEMENT DATED 21 FEBRUARY 2001,
LETTERS OF CONSENT DATED 22 DECEMBER 2000 AND
29 JANUARY 2001 AND AMENDED AND RESTATED PURSUANT TO
AN AMENDMENT AGREEMENT DATED 26 SEPTEMBER 2001
-------------------------------------------------------------
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CONTENTS
CLAUSE PAGE
------ ----
1. Definitions And Interpretation...............................................23
2. The Facilities...............................................................76
3. Utilisation Of The Revolving Facility........................................78
4. Payment And Calculation Of Interest On Revolving Advances....................80
5. Incremental Facility.........................................................81
6. Utilisation Of The Term Facility.............................................85
7. Interest Periods For Term Advances...........................................85
8. Payment And Calculation Of Interest On Term Advances.........................86
9. Market Disruption And Alternative Interest Rates.............................87
10. Notification.................................................................88
11. Repayment And Reduction Of The Revolving Facility............................88
12. Repayment Of The Term Facility...............................................89
13. Cancellation And Prepayment..................................................90
14. Mandatory Prepayment.........................................................92
15. Taxes........................................................................97
16. Tax Receipts.................................................................99
17. Increased Costs.............................................................100
18. Illegality..................................................................101
19. Mitigation..................................................................101
20. Representations.............................................................102
21. Financial Information.......................................................116
22. Financial Condition.........................................................120
23. Covenants...................................................................128
24. Events Of Default...........................................................142
25. Guarantee And Indemnity.....................................................148
26. Commitment Commission And Fees..............................................151
27. Costs And Expenses..........................................................153
28. Default Interest And Break Costs............................................154
29. Borrowers' Indemnities......................................................155
30. Currency Of Account And Payment.............................................156
31. Payments....................................................................156
32. Set-Off.....................................................................158
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33. Sharing.....................................................................158
34. The Agent, The Arrangers And The Banks......................................161
35. Assignments And Transfers...................................................166
36. Economic And Monetary Union.................................................169
37. Additional Borrowers........................................................170
38. Accession Of Guarantors And The Cwc Parent..................................170
39. Calculations And Evidence Of Debt...........................................172
40. Remedies And Waivers, Partial Invalidity....................................173
41. Notices.....................................................................173
42. Counterparts................................................................175
43. Amendments..................................................................175
44. Governing Law...............................................................179
45. Jurisdiction................................................................179
Schedule 1 THE BANKS..............................................................180
Part A (Revolving Banks)....................................................180
Part B (Term Banks).........................................................182
Schedule 2 FORM OF TRANSFER CERTIFICATE...........................................183
Schedule 3 CONDITIONS PRECEDENT...................................................186
Part A Initial Conditions Precedent.....................................186
Part B Cwc Holdings Conditions Precedent................................189
Schedule 4 NOTICE OF DRAWDOWN.....................................................191
Schedule 5 EXISTING ENCUMBRANCES..................................................193
Schedule 6 FORM OF COMPLIANCE CERTIFICATE.........................................198
Schedule 7 FORM OF BORROWER ACCESSION MEMORANDUM..................................205
Schedule 8 FORM OF GUARANTOR ACCESSION MEMORANDUM.................................208
Schedule 9 CWC ACCESSION MEMORANDUM...............................................211
Schedule 10 ADDITIONAL CONDITIONS PRECEDENT.......................................213
Part A Accession Conditions Precedent.......................................213
Part B Security Documentation...............................................215
Schedule 11 FORM OF RESIGNATION NOTICE............................................217
Schedule 12 MANDATORY COSTS.......................................................218
Schedule 13 MEMBERS OF THE TARGET GROUP GRANTING SECURITY.........................221
Schedule 14 MEMBERS OF THE UK GROUP...............................................225
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Schedule 15 UK GROUP PRINCIPAL PROPERTIES.........................................227
Schedule 16 FORM OF REPORT ON TITLE...............................................229
Schedule 17 THE ADDITIONAL FINANCE PROVIDERS......................................230
Schedule 18 FORM OF ADDITIONAL FINANCE PROVIDER ACCESSION UNDERTAKING.............231
Schedule 19 CERTAIN ADDRESSES.....................................................233
Schedule 20 THE GUARANTORS........................................................234
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THIS AGREEMENT made on 30 May 2000, as amended or waived pursuant to a letter
dated 6 June 2000, amendment agreements dated 8 June 2000, 30 June 2000 and 4
September 2000, a novation agreement dated 21 February 2001, letters of consent
dated 22 December 2000 and 29 January 2001 and amended and restated pursuant to
the Restatement Amendment Agreement dated 26 September 2001 is
BETWEEN:
(1) NTL COMMUNICATIONS LIMITED, a company incorporated in England and Wales
with company number 3521915 (the "PARENT");
(2) NTL INVESTMENT HOLDINGS LIMITED, a company incorporated in England and
Wales with company number 3173552 (the "POST-NOVATION BORROWER");
(3) THE GUARANTORS (as defined below);
(4) NTL COMMUNICATIONS CORP., a company incorporated in Delaware ("NTL CC");
(5) ▇.▇. ▇▇▇▇▇▇ PLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ BANK LIMITED as arrangers
and joint book managers of the Revolving Facility (the "ARRANGERS");
(6) CHASE MANHATTAN INTERNATIONAL LIMITED as agent for the Banks (the
"Agent");
(7) CHASE MANHATTAN INTERNATIONAL LIMITED as security trustee for the Finance
Parties (the "SECURITY TRUSTEE");
(8) CHASE MANHATTAN INTERNATIONAL LIMITED as security trustee for the Term
Banks and the Agent (the "SECOND SECURITY TRUSTEE"); and
(9) THE BANKS (as defined below).
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION MEMORANDUM" means a Borrower Accession Memorandum or a
Guarantor Accession Memorandum.
"ACCOUNTANTS' REPORT" means the report prepared by the Target's
accountants, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, dated 14 February 2000 and splitting the
Target's financial statements for its financial years ended 31 March
1997, 31 March 1998 and 31 March 1999 between the CWC ConsumerCo Business
and the CWC DataCo Business (as set out in Part A of Appendix 8 of the
CWC Circular).
"ACQUISITION" means the acquisition by NTL Holdings of the issued share
capital of CWC Holdings pursuant to the Transaction Agreement.
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"ACQUISITION DATE" means the date on which the Acquisition is completed,
being a date on or prior to 31 March 2001.
"ADDITIONAL BORROWER" means any company which has become an Additional
Borrower under the Revolving Facility in accordance with Clause 37
(Additional Borrowers).
"ADDITIONAL FINANCE PROVIDER" means any financial institution named in
Schedule 17 (The Additional Finance Providers).
"ADDITIONAL FINANCE PROVIDER ACCESSION DATE" means, in relation to an
Additional Finance Provider, the date specified as such in its Additional
Finance Provider Accession Undertaking.
"ADDITIONAL FINANCE PROVIDER ACCESSION UNDERTAKING" means an undertaking
substantially in the form set out in Schedule 18 (Form of Additional
Finance Provider Accession Undertaking).
"ADDITIONAL OBLIGOR" means an Additional Borrower or a Guarantor.
"ADVANCE" means a Revolving Advance or a Term Advance.
"ASSET ADJUSTMENT PAYMENTS" means:
(a) a payment made by a member of the Target Group to a company
carrying on the CWC DataCo Business, in respect of a transfer of
assets from that company carrying on the CWC DataCo Business to
such a member of the Target Group; or
(b) a payment made by a company carrying on the CWC DataCo Business
to a member of the Target Group, in respect of a transfer of
assets from such a member of the Target Group to that company
carrying on the CWC DataCo Business,
in each case in accordance with the terms of the Transaction Agreement
and where either Cable & Wireless is obliged to reimburse NTL Holdings or
the member of the Target Group in respect of a payment made by a member
of the Target Group under paragraph (a) or NTL Holdings is obliged to
reimburse Cable & Wireless or the company carrying on the CWC DataCo
Business in respect of a payment received by a member of the Target Group
pursuant to paragraph (b).
"ASSET PASSTHROUGH" means a series of transactions, commencing with a
transaction between NTL UK and a member of the UK Group, which may be
followed by one or more similar transactions between various members of
the UK Group, and culminating with a similar transaction between a member
of the UK Group and a Final Asset Transferee, the purpose of which is to
enable NTL UK to indirectly transfer assets to that Final Asset
Transferee by way of transfers of those assets to and from (and, if
necessary, between) one or more members of the UK Group in such a manner
as to be neutral to the UK Group taken as a whole PROVIDED THAT:
(a) the consideration payable (if any) by the first member of the UK
Group to acquire such assets to NTL UK comprises either (i) cash
funded or to be funded
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directly or indirectly by a payment from the Final Asset Transferee in
connection with that series of transactions or (ii) Subordinated Funding;
(b) if the Parent (having acquired such assets from NTL UK) transfers
them on to another member of the UK Group, the consideration
payable by such a member of the UK Group comprises either (i)
cash funded or to be funded directly or indirectly by a payment
from the Final Asset Transferee in connection with that series of
transactions or (ii) Parent Funding;
(c) the consideration payable by the Final Asset Transferee is equal
to the consideration received or receivable by NTL UK;
(d) the consideration payable by each member of the UK Group
participating in such a series of transactions is equal in value;
(e) all of the transactions comprising such a series of transactions
(from and including the transfer of the assets by NTL UK to and
including the acquisition of those assets by the Final Asset
Transferee) are completed within two Business Days; and
(f) upon completion of all of the transactions comprising such a
series of transactions, no person (other than another member of
the UK Group) has any recourse to any member of the UK Group in
relation to such a series of transactions (other than in respect
of (i) the Subordinated Funding mentioned in paragraph (a) above
and (ii) covenants as to title provided in favour of the Final
Asset Transferee on the same terms as such covenants provided in
favour of the Initial Asset Transferor in respect of the
relevant assets).
"ASSIGNED DEBT" means any loan made by the Parent to any other member of
the UK Group, where on and after the Pushdown Date the Parent's rights in
respect of any such loan which is outstanding on or after the Pushdown
Date have been assigned to the Security Trustee and the Second Security
Trustee pursuant to the Parent Intra-Group Loan Assignment and the Second
Parent Intra-Group Loan Assignment (but without prejudice to the ability
to make or repay such a loan prior to the Pushdown Date).
"AUTHORISED SIGNATORY" means, in relation to the Parent, the CWC Parent,
NTL CC, NTL UK, an Obligor or proposed Obligor, any person who is duly
authorised (in such manner as may be reasonably acceptable to the Agent)
and in respect of whom the Agent has received a certificate signed by a
director or another Authorised Signatory of the Parent, the CWC Parent,
NTL CC, NTL UK 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 COMMITMENT" means, in relation to a Bank at any time, the
aggregate of its Available Revolving Commitment and, prior to the last
day of the Term Availability Period, its Term Commitment.
"AVAILABLE EXCESS CASH FLOW" means, at any time, the aggregate Excess
Cash Flow generated in respect of each financial year of the Parent,
commencing with the financial year ended 31 December 2003, less the
amount of such Excess Cash Flow (in respect of
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each such financial year) which is required to be used (in respect to
such financial year) to prepay the Loan in accordance with Clause 14.1
(Mandatory Prepayment from Excess Cash Flow).
"AVAILABLE REVOLVING COMMITMENT" means, in relation to a Revolving 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, and not due for repayment, PROVIDED THAT such
amount shall not be less than zero.
"AVAILABLE REVOLVING FACILITY" means, at any time, 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 Revolving Bank
pursuant to the terms hereof;
(b) the amount of any Revolving Advance which, pursuant to any other
drawdown, is to be made; and
(c) the amount of any Revolving Advance which is due to be repaid,
on or before the proposed drawdown date.
"AVAILABLE WORKING CAPITAL AMOUNT" means, at any time, the then Available
Revolving Facility less the amount of the Existing Target Indebtedness
which remains outstanding at such time.
"AVERAGE REVENUE CONTRIBUTIONS" means, in respect of any asset at any
time:
A + B
------
2
where:
A = the revenue generated by, or attributable (whether in whole or
in part) to, such asset during the immediately preceding
financial year of the Parent, expressed as a percentage of the
aggregate of the consolidated revenue of the UK Group and, prior
to the Pushdown Date, the consolidated revenue of the Target
Group for such a financial year; and
B = the revenue generated by, or attributable (whether in whole or
in part) to, such asset during the financial year of the Parent
preceding that referred to in A above, expressed as a percentage
of the aggregate of the consolidated revenue of the UK Group
and, prior to the Pushdown Date, the consolidated revenue of the
Target Group for such financial year.
"BANK" means a Revolving Bank or a Term Bank.
"BCM NOTES" means the 3.5 per cent. convertible loan notes due March 2001
and the 5.0 per cent. convertible loan notes due July 2001, in each case
issued by Cable & Wireless Communications (B) Limited.
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"BORROWER ACCESSION MEMORANDUM" means a memorandum substantially in the
form set out in Schedule 7 (Form of Borrower Accession Memorandum).
"BORROWERS" means the Post-Novation Borrower (or, prior to the Pushdown
Date, the Pre-Novation Borrower) and each Additional Borrower, PROVIDED
THAT such company has not been released from its rights and obligations
hereunder in accordance with Clause 37.3 (Resignation of a Borrower).
"BUDGET" means a budget delivered by the Parent to the Agent pursuant to
Clause 21.5 (Budgets).
"BUSINESS DAY" means a day (other than a Saturday or Sunday) which is not
a public holiday and on which banks are open for general business in both
London and New York.
"BUSINESS PLAN" means the financial model including profit and loss
accounts, balance sheets and cashflow projections, in the agreed form,
relating to the UK Group (for these purposes assuming that the Pushdown
has been completed), as set out in annex 16 of the Information
Memorandum.
"C&W (UK) HOLDINGS" means Cable & Wireless (UK) Holdings plc, a company
incorporated in England and Wales (company number 3888319), being (after
the Scheme Effective Date) a wholly owned subsidiary of Cable & Wireless.
"CABLE & WIRELESS" means Cable & Wireless plc, a company incorporated in
England and Wales (company number 238525).
"CABLE & WIRELESS DEBT" means Financial Indebtedness owed by any members
of the Target Group to Cable & Wireless and certain other members of the
CWC DataCo Business.
"CABLE & WIRELESS LOAN" means a loan of up to Pound Sterling50,000,000
from CWC Holdings to Cable & Wireless, made in relation to the costs
incurred by the CWC ConsumerCo Business in connection with separation of
the CWC ConsumerCo Business and the CWC DataCo Business (as provided for
in the Transaction Agreement).
"CABLE BUSINESS" means:
(a) the business of directly or indirectly operating, or owning a
license to operate, a cable and/or television and/or telephone
and/or telecommunications system or service principally within
the United Kingdom and/or in Ireland; and
(b) any Cable Related Business.
"CABLE RELATED BUSINESS" means a business which directly, or indirectly,
owns or provides a service or product used in a Cable Business,
including, without limitation, any television programming, production
and/or licensing business or any programming guide or telephone directory
business or content or software related thereto.
27
"CAPITAL EXPENDITURE" means expenditure on the acquisition or improvement
of an asset which would be treated as a capital asset in accordance with
generally accepted accounting principles in the United Kingdom.
"CAXTON" means Caxton Holdings Limited, a company incorporated in England
and Wales (company number 3840888), being (prior to the First Caxton
Sale) a wholly owned subsidiary of the Target which, together with its
subsidiaries, carries on the CWC DataCo Business.
"CERTAIN FUNDS EVENTS OF DEFAULT" means any circumstance constituting an
Event of Default under any of the following Clauses:
(a) Clause 24.7 (Insolvency and Rescheduling), Clause 24.8
(Winding-up) or, solely in relation to Clause 24.7 (Insolvency
and Rescheduling) and Clause 24.8 (Winding-up), Clause 24.10
(Analogous Events), in each case to the extent such relates to
NTL CC and/or the Pre-Novation Borrower; and
(b) Clause 24.13 (Illegality).
"CERTAIN FUNDS PERIOD" means the period from and including the Execution
Date to (and including) the date falling two Business Days after the
Acquisition Date.
"CHARGED ACCOUNT" means the NTL CC Charged Account or, as the case may
be, the NTL Charged Account.
"CODE" means the City Code on Takeovers and Mergers.
"COMMITMENT" means, in relation to a Bank at any time, the aggregate of
its Revolving Commitment and its Term Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 6 (Form of Compliance Certificate).
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking in the
standard form from time to time of the LMA or in such other form as may
be agreed between the Parent and the Agent addressed to the Parent.
"COURT" means the High Court of Justice of England and Wales.
"COURT MEETING" means the meeting of the holders of the shares of Target
summoned by the Court and directed to consider and vote on whether to
approve the Scheme pursuant to Section 425.
"COVENANT GROUP" means NTL CC and any subsidiary of NTL CC which is a
holding company of the Parent.
"CWC ACCESSION MEMORANDUM" means a memorandum substantially in the form
set out in Schedule 9 (CWC Accession Memorandum), by which CWC Holdings
will accede hereto as both a Guarantor and the CWC Parent.
"CWC CIRCULAR" means the circular to the Target's shareholders dated 14
February 2000 (as supplemented by a circular dated 3 March 2000),
relating to the Scheme and the
28
proposed acquisition of the CWC DataCo Business by Cable & Wireless and
the CWC ConsumerCo Business by NTL Holdings.
"CWC CONSUMERCO BUSINESS" means the residential cable, business cable,
indirect residential telephony, residential internet and digital
television development and services businesses owned and operated by the
Target and its subsidiaries.
"CWC CREDIT AGREEMENT" means the credit agreement dated 19 March 1997 (as
amended and restated on 31 March 1998) between, among others, the Target
and certain financial institutions.
"CWC DATACO BUSINESS" means the corporate, business, internet protocol
and wholesale operations carried on by the Target and its subsidiaries
prior to the First Caxton Sale.
"CWC HOLDINGS" means Cable & Wireless Communications (Holdings) plc, a
company incorporated in England and Wales with company number 3922682.
"CWC HOLDINGS CAPITAL REDUCTION" means the reduction in the share capital
of CWC Holdings occurring prior to the Acquisition, such a reduction
being confirmed by the Court in accordance with section 135 of the
Companies ▇▇▇ ▇▇▇▇.
"CWC HOLDINGS INTRA-GROUP LOAN ASSIGNMENT" means the assignment in the
agreed form executed or to be executed by CWC Holdings in favour of the
Security Trustee, assigning CWC Holding's rights in respect of loans made
or to be made by it to the Target and other members of the Target Group.
"CWC HOLDINGS SHARE CHARGE" means the share charge in agreed form
executed or to be executed by CWC Holdings in favour of the Security
Trustee relating to the issued share capital of the Target.
"CWC PARENT" means CWC Holdings, once such has acceded hereto as the CWC
Parent in accordance with Clause 38.4 (Accession of CWC Parent).
"DEBENTURES" means the debentures, in the agreed forms, executed or to be
executed in connection herewith, creating first ranking (or, in the case
of the Second Security Documents, second ranking (ranking only behind the
first ranking security created pursuant to the Security Documents)) fixed
and floating charges over the whole of the assets and undertaking of the
entity party thereto as Obligor save to the extent that such assets
include:
(a) shares or any other interests in or assets of a Project Company;
(b) shares in a Target Group Excluded Subsidiary or shares in a UK
Group Excluded Subsidiary;
(c) shares in Cable Guide Limited; or
(d) in respect of CableTel Limited, CableTel Investments Limited,
Maza Limited, Northampton Cable Limited and Herts Cable Limited,
assets which are used by or the interests in either of the
Telecential Partnerships where the terms of the
29
partnership deeds relating thereto prohibit the granting of
security over those interests or assets or the granting of such
security could reasonably be expected to result in a breach of a
fiduciary duty.
and includes, where the context so admits, any further or supplemental
charge or security granted pursuant thereto.
"DEBT ADJUSTMENT PAYMENTS" means:
(a) in the event that the members of the Target Group are found to
have had excessive indebtedness as at the Acquisition Date, the
payment of cash or the issue of Cable & Wireless shares to NTL
Holdings; or
(b) in the event that the members of the Target Group are found to
have had insufficient indebtedness as at the Acquisition Date,
the payment of a sum equal to such an insufficient amount of
indebtedness by NTL Holdings to Cable & Wireless,
in each case in accordance with the terms of the Transaction Agreement.
"DIAMOND NOTES" means the:
(a) 13 1/4% senior discount notes due 30 September 2004, with a
principal amount at maturity of $285,000,000, issued by Diamond
Cable Communications plc;
(b) 11 3/4% senior discount notes due 15 December, 2005, with a
principal amount at maturity of $531,000,000, issued by Diamond
Cable Communications plc;
(c) 10 3/4% senior discount notes due 15 February 2007, with a
principal amount at maturity of $421,000,000, issued by Diamond
Cable Communications plc;
(d) 10% senior notes due 1 February 2008 with a principal amount at
maturity of Pound Sterling135,000,000, issued by Diamond Holdings
plc; and
(e) 9 1/8% senior notes due 1 February 2008 with a principal amount
at maturity of $110,000,000, issued by Diamond Holdings plc.
"DISCLOSURE LETTER" means the letter, in the agreed form, dated on or
about the Execution Date from the Parent to the Agent (on behalf of the
Finance Parties) setting out various matters to be excluded from certain
representations and covenants in this Agreement.
"DISPUTE" means any dispute referred to in Clause 45 (Jurisdiction).
"DORMANT SUBSIDIARY" means, at any time, any subsidiary of the Parent or
the CWC Parent which is "dormant" as defined in Section 250(3) of the
Companies ▇▇▇ ▇▇▇▇.
"EBITDA" has the meaning given to it in Clause 22.3 (Financial
Definitions).
"EGM" means the extraordinary general meeting of the Target convened to
consider and vote on the resolutions necessary to implement the Scheme.
30
"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 the
third stage of EMU.
"ENCUMBRANCE" means (a) a mortgage, standard security, 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 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 UK Group (or, prior to the Pushdown Date, the
Pre-Novation Borrower or any member of the UK Group and/or the Target
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 UK Group (or, prior to the Pushdown Date,
the Pre-Novation Borrower or any member of the UK Group and/or the Target
Group) conducted on or from the properties owned or used by the relevant
member of the UK Group (or, prior to the Pushdown Date, the Pre-Novation
Borrower or any member of the UK Group and/or the Target Group).
"EVENT OF DEFAULT" means any circumstance described as such in Clause 24
(Events of Default).
"EXCESS CAPACITY NETWORK SERVICES" means the provision of network
services, or agreement to provide network services, by the Pre-Novation
Borrower or a member of the Target Group or a member of the UK Group in
favour of one or more of its affiliates where such network services are
only provided in respect of the capacity available to the Pre-Novation
Borrower, such member of the Target Group or member of the UK Group in
excess of that network capacity it requires to continue to provide
current services to its existing and projected future customers and to
allow it to provide further services to both its existing and projected
future customers in accordance with the Business Plan.
"EXCESS CASH FLOW" has the meaning given to it in Clause 22.3 (Financial
Definitions).
"EXCLUDED CONTRIBUTIONS" means the cash proceeds of any:
(a) Financial Indebtedness or equity raised by members of the
Covenant Group on or before 31 December 2002, the aggregate
amount of which does not exceed Pound Sterling750,000,000 (or its
equivalent) and PROVIDED THAT:
31
(i) in the case of any Financial Indebtedness incurred by a
member of the Covenant Group on or after the Execution Date
and before the Term Effective Date the final maturity date
of such Financial Indebtedness is a date falling no earlier
than the date twelve months after the Revolving Termination
Date; and
(ii) in the case of any Financial Indebtedness incurred by a
member of the Covenant Group on or after the Term Effective
Date, the final maturity of such Financial Indebtedness is a
date falling no earlier than the date six months after the
Term Final Maturity Date.
(b) equity issued by NTL CC to any other members of the NTL Holding
Group, up to an aggregate amount of Pound Sterling25,000,000 (or
its equivalent) in any financial year of NTL CC; and
(c) Permitted Refinancings.
"EXECUTION DATE" means 30 May 2000.
"EXISTING HEDGING" means the Hedging Agreements of members of the Target
Group in existence on the Acquisition Date.
"EXISTING PERFORMANCE BONDS" means:
(a) performance bonds in an aggregate amount of up to Pound
Sterling7,100,000 issued by Zurich Re at the request of certain
members of the Target Group;
(b) performance bonds in an aggregate amount of up to Pound
Sterling1,139,199 issued by National Westminster Bank Plc at the
request of certain members of the Target Group; and
(c) performance bonds in an aggregate amount of up to Pound
Sterling2,800,000 issued by National Westminster Bank Plc at the
request of certain members of the UK Group.
"EXISTING TARGET INDEBTEDNESS" means the Financial Indebtedness of CWC
Holdings and each of its subsidiaries outstanding on the Acquisition Date
including, without limitation, Financial Indebtedness in respect of:
(a) the Yankee Bonds;
(b) the Sterling Bonds;
(c) the CWC Credit Agreement;
(d) the BCM Notes;
(e) the Videotron Mortgage;
(f) the NatWest Finance Leases;
(g) the Vehicle Finance Leases;
32
(h) the Overdraft Facilities;
(i) the High Yield Bonds;
(j) the Receivables Purchase Facility;
(k) the Cable & Wireless Debt;
(l) the Existing Hedging;
(m) the South Herts Facility; and
(n) the TWTV Debt.
"FACILITY" means the Revolving Facility or the Term Facility.
"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,
in relation to an Additional Finance Provider, in its Additional Finance
Provider Accession Undertaking) or such other office as it may from time
to time select by notice to the Agent.
"FINAL ASSET TRANSFEREE" means the member of the Group, other than a
member of the UK Group, who is the final transferee in respect of a
transfer from NTL UK, through one or more members of the UK Group.
"FINANCE DOCUMENTS" means this Agreement, any Borrower Accession
Memorandum delivered hereunder, any Guarantor Accession Memorandum
delivered hereunder, the letters referred to in Clause 26.6 (Agency and
Other Fees), any Secured Hedging Agreement, the Security Documents, the
Second Security Documents, the Security Trust Agreement, the Second
Security Trust Agreement, the NTL UK Revolving Bank Subordination
Agreement, the NTL UK Term Bank Subordination Agreement, the NTL
Subordination Agreement, any Subordination Agreement and any other
document designated as such by the Agent and the Relevant Obligor.
"FINANCE PARTIES" means, at any time, the Agent, the Arrangers, the
Security Trustee, the Second Security Trustee, the Banks and the Hedge
Counterparties at such time.
"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 Hedging Agreement (and the amount of the Financial
Indebtedness in relation thereto shall be calculated by reference
to the ▇▇▇▇-to-market valuation of such transaction at the
relevant time); and
33
(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 22.3 (Financial
Definitions).
"FIRST CAXTON SALE" means the transfer, after the Scheme Effective Date,
of Caxton by the Target to CWC Holdings, as authorised by the Scheme,
such a transfer being made at book value (subject to adjustment under
Schedule 19 of the Transaction Agreement), on terms that the price
payable by CWC Holdings is left outstanding to the extent that CWC
Holdings does not assume at least a corresponding amount of indebtedness
of the Target in consideration for the sale of Caxton.
"FORCED DRAW" means a utilisation of the Working Capital Facility made as
a result of the lenders under the Working Capital Facility exercising
their right to require the Parent, in its capacity as the borrower under
the Working Capital Facility, to draw an advance thereunder.
"FUNDED EXCLUDED SUBSIDIARY" means, in respect of a UK Group Funding
Passthrough, a UK Group Excluded Subsidiary or, prior to the Pushdown
Date and in respect of a Target Group Funding Passthrough, a Target Group
Excluded Subsidiary which:
(a) indirectly receives funding from NTL UK (in respect of a UK Group
Funding Passthrough) or a member of the NTL Holding Group (in
respect of a Target Group Funding Passthrough); and/or
(b) by way of dividend or other distribution, loan or payment of
interest on or the repayment of the principal amount of any
indebtedness owed by it, makes a payment to NTL UK (in respect of
a UK Group Funding Passthrough) or a member of the NTL Holding
Group (in respect of a Target Group Funding Passthrough).
"FUNDING PASSTHROUGH" means either a UK Group Funding Passthrough or a
Target Group Funding Passthrough.
"GROUP" means NTL Holdings and its subsidiaries for the time being.
"GROUP REPRESENTATIVE" means the Post-Novation Borrower, acting as
representative of the Obligors and as provider of information in relation
to members of the UK Group (and, prior to the Pushdown Date, the
Pre-Novation Borrower in relation to members of the Target Group).
"GROUP STRUCTURE CHARTS" means:
(a) the structure chart showing (at least) the UK Group and the NTL
Holding Group, in the agreed form; and
(b) the structure chart showing the Target Group (in a form similar
to the structure chart referred to in paragraph (a) above).
"GUARANTOR" means any company listed in Schedule 20 (The Guarantors) or
any company which has become a Guarantor in accordance with Clause 38
(Accession of
34
Guarantors and the CWC Parent) PROVIDED THAT (in either case) such
company has not been released from its rights and obligations hereunder
in accordance with Clause 38.3 (Resignation of a Guarantor).
"GUARANTOR ACCESSION MEMORANDUM" means, in respect of the accession of
CWC Holdings as a Guarantor, the CWC Accession Memorandum or, in all
other cases, a memorandum substantially in the form set out in Schedule 8
(Form of Guarantor Accession Memorandum).
"HEDGE COUNTERPARTY" means a Bank who has agreed to enter into a Secured
Hedging Agreement which complies with the provisions of this Agreement.
"HEDGING AGREEMENT" means an agreement in respect of an 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.
"HEDGING LIABILITIES" means all present and future sums and actual or
contingent liabilities and obligations payable, owing, due or incurred by
a member of the UK Group to any Hedge Counterparty pursuant to the terms
of any Secured Hedging Agreement.
"HEDGING STRATEGY" means the hedging strategy adopted by the Parent from
time to time for the sole purpose of hedging the UK Group's (and, adopted
by the CWC Parent prior to the Pushdown Date, for the sole purpose of
hedging the Target Group's) then existing interest rate or currency risk
exposure in connection with its ordinary business acting reasonably and
prudently and not for speculative or proprietary trading purposes.
"HIGH YIELD BONDS" means:
(a) the $256,225,000 11 per cent. senior discount notes due 2005
issued by Cable & Wireless Communications (V) Holdings Limited
(formerly known as Videotron Holdings plc) pursuant to an
indenture dated 15 August 1995 (as supplemented);
(b) the $490,213,555 11.95 per cent. senior discount notes due 2004
issued by Cable & Wireless Communications (B) Limited (formerly
known as ▇▇▇▇ Cablemedia plc) pursuant to an indenture dated 22
July 1994 (as supplemented); and
(c) the $489,115,000 11.875 per cent. senior discount notes due 2005
issued by Cable & Wireless Communications (B) Limited pursuant
to an indenture dated 18 September 1995 (as supplemented),
PROVIDED THAT the covenants in relation thereto have been fully defeased
and the aggregate principal amount of the remaining indebtedness
thereunder is less than $3,200,000.
"ICTA" means the Income and Corporation Taxes ▇▇▇ ▇▇▇▇.
35
"INCREMENTAL FACILITY" means a facility of up to a maximum aggregate
amount of Pound Sterling300,000,000 which may be made available to
members of the UK Group following a request by the Parent pursuant to
Clause 5 (Incremental Facility).
"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 (for the avoidance of doubt excluding any such
instrument issued solely by way of consideration for the
acquisition of assets where such an instrument is not issued for
the purpose of raising finance);
(d) any amount raised pursuant to any issue of shares which are
expressed to be redeemable in cash (other than (i) shares
redeemable after 30 September 2009 and (ii) redeemable shares
issued by way of consideration for the acquisition of assets
where such shares are not issued for the purpose of raising
finance);
(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 CWC ConsumerCo
Business and the UK Group and the Target Group which, at NTL Inc.'s and
the Parent's request and on their behalf, was prepared in relation to
this transaction and distributed by the Arrangers to selected banks
during May 2000 (as the same may be updated on or before the Syndication
Date).
"INITIAL SECURITY" means the CWC Holdings Share Charge, the CWC Holdings
Intra-Group Loan Assignment, the Pre-Novation Borrower Intra-Group Loan
Assignment, the NTL Intra-Group Loan Assignment, the NTL Security Over
Cash Agreement and the Pre-Novation Borrower Security Over Cash
Agreement.
36
"INSTRUCTING GROUP" means, at any time, a Bank or Banks whose Commitments
amount (or, if each Bank's Commitment has been reduced to zero, did
immediately before such reduction to zero, amount) in aggregate to more
than sixty-six and two thirds per cent. of the Total Commitments.
"INSURANCE PROCEEDS" means the proceeds of any insurance claim intended
to compensate for damage to any asset or interruption of business
received by any member of the UK Group or, prior to the Pushdown Date,
any member of the Target Group, after deducting:
(a) any reasonable out of pocket expenses incurred by any member of
the UK Group or, as the case may be, Target Group in relation to
such a claim; and
(b) proceeds relating to third party claims, which are applied
towards meeting such claims.
"INTELLECTUAL PROPERTY" means all patents, trade marks, service marks,
designs, copyrights, design rights, moral rights, inventions,
confidential information, know-how 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 UK Group and, prior to the
Pushdown Date, any member of the Target Group.
"INTERCREDITOR AGREEMENT" means the agreement dated on or about the
Execution Date, as amended on the Term Effective Date, between the Banks,
the lenders under the Working Capital Facility, the Agent, the Working
Capital Facility Agent, and the Security Trustee, by which the lenders
under the Working Capital Facility undertake certain obligations in
respect of their rights under the Working Capital Facility.
"INTEREST PERIOD" has the meaning ascribed in Clause 7.1 (Interest
Periods) in relation to any Term Advance and the meaning ascribed in
Clause 28.1 (Default Interest Periods) in relation to any Unpaid Sum.
"INTRA-GROUP LOAN ASSIGNMENT" means each assignment in the agreed form
executed or to be executed by a member of the NTL Holding Group in favour
of the Security Trustee, assigning the assignor's rights in respect of
loans made or to be made by it to the Pre-Novation Borrower or members of
the Target Group.
"INTRA-GROUP SERVICES" means:
(a) the provision of services by a member of the UK Group or, prior
to the Pushdown Date, the Pre-Novation Borrower to a member of
the Group, where such member of the Group requires those
services to enable it to carry on its business and PROVIDED THAT
the consideration for the provision thereof is in the reasonable
opinion of the Parent no less than the cost (save in any
immaterial respect) incurred by such member of the UK Group or
Pre-Novation Borrower in providing such services;
(b) the provisions of services constituted by NTL Group Limited
employing personnel, acting as agent to buy equipment or other
assets or services or trade
37
with residential customers on behalf of other members of the
Group, where the costs of such employment or purchasing and the
costs and revenues generated by such trading are in the
reasonable opinion of the Parent reimbursed by or distributed
(save in any immaterial respect) to the relevant Group member;
and
(c) the provision of services constituted by the Pre-Novation
Borrower acting as agent to trade with business customers on
behalf of other members of the Group, where the costs and
revenues of such trading are in the reasonable opinion of the
Parent reimbursed by or distributed (save in any immaterial
respect) to the relevant Group Member.
"IRELAND" means the Republic of Ireland.
"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
sterling (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 sterling (or the currency of such Unpaid
Sum) as the Agent, after consultation with the Revolving Banks
or, as the case may be, the Term Banks and the Relevant Obligor,
shall select; or
(b) if no quotation for sterling (or the currency of such Unpaid Sum)
and the relevant period is displayed 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 sterling (or the currency of such
Unpaid Sum) for such period as of 11.00 a.m. on the Quotation
Date for such period.
"LICENCES" means each licence which is material to the conduct of the
business of any member of the UK Group or, prior to the Pushdown Date,
any member of the Target Group.
"LMA" means the Loan Market Association.
"LOAN" means, at any time, the aggregate of the Revolving Loan and the
Term Loan.
"MANDATORY COST RATE" means the rate determined in accordance with
Schedule 12 (Mandatory Costs).
"MATERIAL ADVERSE EFFECT" means:
(a) in respect of the Pre-Novation Borrower only (until such time as
it becomes a member of the UK Group), a material adverse effect
on (i) the business, operations, property or condition (financial
or otherwise) of the Pre-Novation
38
Borrower or (ii) the ability of the Pre-Novation Borrower to
perform its material obligations under the Finance Documents to
which it is a party; and
(b) in all other cases, a material adverse effect on (i) the
business, operations, property or condition (financial or
otherwise) of the UK Group taken as a whole (or, prior to the
Pushdown Date, either the UK Group taken as a whole and/or the
Target Group taken as a whole) or (ii) the ability of any Obligor
to perform its material obligations under the Finance Documents
to which it is a party.
"MATERIAL COMMERCIAL CONTRACTS" means any commercial agreements entered
into by any member of the UK Group or, prior to the Pushdown Date, the
Pre-Novation Borrower or any member of the UK Group and/or the Target
Group which are reasonably likely to be material to the business or
prospects of, in the case of the Pre-Novation Borrower, its business or
prospects or, in the case of any member of the UK Group, the UK Group
taken as a whole (or, prior to the Pushdown Date, either the UK Group
taken as a whole and/or the Target Group taken as a whole).
"MEETINGS" means each of the Court Meeting and EGM.
"NATWEST FINANCE LEASES" means:
(a) the two finance leases dated 7 September 1995 (as amended on 6
October 1999) between Cable & Wireless Communications (Leeds)
Limited as lessee, NatWest Lessors Limited as lessor and Cable &
Wireless Communications Holdings (Leeds) Limited as guarantor;
and
(b) the two finance leases dated 22 March 1996 (as amended on 6
October 1999) between (among others) Cable & Wireless
Communications (South East) Limited as lessee and NatWest Lessors
Limited as lessor.
"NET AVERAGE REVENUE CONTRIBUTIONS" means, at any time:
(a) the aggregate of the Average Revenue Contributions of all assets
disposed of by members of the UK Group and, prior to the Pushdown
Date, the Target Group under paragraph (g) of the definition of
Permitted Disposals,
less
(b) the aggregate of the estimated Average Revenue Contributions of
all assets acquired by members of the UK Group and, prior to the
Pushdown Date, the Target Group either in exchange for, or out of
the proceeds of the disposal of, assets disposed of under
paragraph (g) of the definition of Permitted Disposals (such
estimated Average Revenue Contributions to be reasonably agreed
between either the CWC Parent or the Parent and the Agent on the
basis of the revenues such acquired assets could have reasonably
been expected to have generated for the two financial years of
the Parent immediately preceding the date of their acquisition,
had such assets been owned by the relevant member of the UK Group
or Target Group throughout those two financial years).
39
"NEW YORK OFFICE EXPENSES" means, in relation to any financial year of
NTL Holdings, the expenses (including taxes) so described and specified
in relation to such financial year in the Business Plan.
"NOTICE OF DRAWDOWN" means a notice substantially in the form set out in
Schedule 4 (Notice of Drawdown).
"NOTICE PERIOD" means, in relation to an Advance:
(a) the period commencing ten Business Days before the proposed date
for the making of that Advance and ending 2.00 p.m. three
Business Days before the proposed date for the making of that
Advance; or
(b) such later time as all of the Revolving Banks or, as the case may
be, all of the Term Banks may agree.
"NTL CC" means NTL Communications Corp.
"NTL CC CHARGED ACCOUNT" means an account, bearing interest at a
commercially reasonable rate in relation to the given circumstances, in
the name of NTL CC over which first ranking security has been granted in
favour of the Security Trustee pursuant to the NTL CC Security Over Cash
Agreement and second ranking (ranking only behind the first ranking
security created pursuant to the Security Documents) security has been
granted in favour of the Second Security Trustee pursuant to the Second
NTL CC Security Over Cash Agreement, into which members of the UK Group
make deposits for the purpose of making Permitted Payments in accordance
with paragraph (f) of the definition thereof.
"NTL CC NOTES" means, to the extent such have been issued in either the
domestic or the international capital markets, the bonds, notes or
similar public debt instruments issued by NTL CC and outstanding at the
date of this Agreement.
"NTL CC SECURITY OVER CASH AGREEMENT" means the assignment and charge in
the agreed form executed or to be executed by NTL CC in favour of the
Security Trustee, assigning and charging NTL CC's rights in respect of
sums deposited in the NTL CC Charged Account.
"NTL CHARGED ACCOUNT" means an account, bearing interest at a
commercially reasonable rate in relation to the given circumstances, in
the name of NTL Inc. over which first ranking security has been granted
in favour of the Security Trustee pursuant to the NTL Security Over Cash
Agreement and over which, prior to the making of a payment into such
account, second ranking (ranking only behind the first ranking security
created pursuant to the Security Documents) security has been granted in
favour of the Second Security Trustee pursuant to the Second NTL Security
Over Cash Agreement, into which members of the UK Group or, prior to the
Pushdown Date, the Pre-Novation Borrower or members of the Target Group
make deposits for the purpose of making Permitted Payments in accordance
with either paragraph (f) or paragraph (g) of the definition thereof.
"NTL HOLDING GROUP" means NTL Holdings and the Parent's other holding
companies.
40
"NTL HOLDINGS" means NTL Incorporated (formerly named NTL Holdings
Incorporated), a company incorporated in Delaware which became the
holding company of NTL Inc. with effect from the effective date of the
CWC Holdings Capital Reduction.
"NTL INC." means NTL (Delaware) Incorporated (formerly named NTL
Incorporated), a company incorporated in Delaware.
"NTL INC. BUSINESS PLAN" means the long term financial plan warranted by
NTL Inc. and NTL Holdings to SFG VI Inc in connection with an investment
made by SFG VI Inc in NTL Inc. and NTL Holdings in June 2001.
"NTL INTRA-GROUP LOAN ASSIGNMENT" means the assignment in the agreed form
executed or to be executed by NTL Inc. in favour of the Security Trustee,
assigning NTL Inc.'s rights in respect of loans made or to be made by it
to the Pre-Novation Borrower and members of the Target Group.
"NTL SECURITY OVER CASH AGREEMENT" means the assignment and charge in the
agreed form executed or to be executed by NTL Inc. in favour of the
Security Trustee, assigning and charging NTL Inc.'s rights in respect of
sums deposited in the NTL Charged Account.
"NTL SUBORDINATION AGREEMENT" means the subordination agreement in the
agreed form between NTL Inc. as the lender, the Pre-Novation Borrower as
borrower and the Security Trustee, pursuant to which, whilst sums remain
outstanding under the Finance Documents, no payments of interest,
repayments of principal or any other payments of any kind can be made in
respect of indebtedness owed by the Pre-Novation Borrower and members of
the Target Group to NTL Inc., save for certain Permitted Payments
"NTL TRIANGLE ACCESSION" means the accession of the members of the NTL
Triangle Sub-Group as Guarantors in accordance with Clause 38.5 (NTL
Triangle Accession).
"NTL TRIANGLE SUB-GROUP" means NTL Triangle LLC and its subsidiaries from
time to time.
"NTL UK" means NTL (UK) Group, Inc., a company incorporated in Delaware.
"NTL UK INTRA-GROUP LOAN ASSIGNMENT" means the assignment in the agreed
form executed by NTL UK on the Pushdown Date in favour of the Security
Trustee, assigning NTL UK's rights in respect of loans made or to be made
by it to members of the UK Group.
"NTL UK REVOLVING BANK SUBORDINATION AGREEMENT" means the subordination
agreement in the agreed form between NTL UK as the lender, the Parent as
the borrower and the Security Trustee, pursuant to which, whilst sums
remain outstanding under the Finance Documents, no payments of interest,
repayments of principal or any other payments of any kind can be made in
respect of indebtedness owed by the Parent to NTL UK, save for certain
Permitted Payments.
"NTL UK TERM BANK SUBORDINATION AGREEMENT" means the subordination
agreement in the agreed form between NTL UK as the lender, the Parent as
the borrower and the
41
Second Security Trustee, pursuant to which, whilst sums remain
outstanding under the Term Facility, no payments of interest, repayments
of principal or any other payments of any kind can be made in respect of
indebtedness owed by the Parent to NTL UK, save for certain Permitted
Payments.
"OBLIGORS" means the Borrowers and the Guarantors.
"OFTEL" means the Director General of Telecommunications and/or any other
successor or other body or authority having, inter alia, the right,
function and/or obligation to monitor and enforce compliance with the
provisions of licences issued pursuant to the Telecommunications ▇▇▇
▇▇▇▇.
"ORIGINAL FINANCIAL STATEMENTS" means:
(a) in relation to the Parent, its audited consolidated financial
statements for its financial year ended 31 December 1998;
(b) in relation to the Pre-Novation Borrower, its audited
unconsolidated financial statements for its financial year ended
31 December 1998;
(c) in relation to the Target (and insofar as they relate to the CWC
ConsumerCo Business), the consolidated financial statements of
the Target and its subsidiaries, prepared by its auditors for the
financial year ended 31 March 1999 (as set out in the
Accountants' Report) and the consolidated financial statements of
the Target and its subsidiaries, prepared by its management for
the six month period ended 30 September 1999 (as set out in the
CWC Circular).
"OVERDRAFT FACILITY" means any facility provided by a United Kingdom
clearing bank to a member of the Target Group or, as the case may be, a
member of the UK Group.
"PARENT FUNDING" means:
(a) the subscription by the Parent for new equity capital of any
other member of the UK Group; and
(b) Assigned Debt.
"PARENT INTRA-GROUP LOAN ASSIGNMENT" means the assignment in the agreed
form executed on the Pushdown Date by the Parent in favour of the
Security Trustee, assigning the Parent's rights in respect of loans made
or to be made by it to other members of the UK Group.
"PARTICIPATING MEMBER STATE" means any member state of the European Union
which has adopted the euro as its lawful currency at the relevant time.
"PERMITTED ACQUISITIONS" means:
(a) the Acquisition or any acquisitions necessary to effect either
the issues or transfers of shares referred to in paragraphs (a),
(b), (d), (e) and (f) of the definition of the Pushdown or any
other acquisitions consented to in the letter of
42
consent dated 29 January 2001 from the Agent to the Parent, the
Pre-Novation Borrower and the CWC Parent;
(b) prior to the Pushdown Date, with respect to any member of the
Target Group only, any acquisition of (or of any interests in)
(A) companies, partnerships, consortia, joint ventures or other
arrangements or (B) businesses, licences, revenues or assets
PROVIDED THAT:
(i) the relevant company, partnership, consortium, joint
venture or other arrangement or the acquired business,
licence, revenues or asset engages in, or, as the case may
be, relates to, a Cable Business;
(ii) the acquisition of such an entity or asset is financed
solely by equity;
(iii) the entity or asset to be acquired has no Financial
Indebtedness other than Financial Indebtedness owed to
another member of the Target Group; and
(iv) the requirements of paragraphs (1), (2) and (3) of
paragraph (c)(ii) of this definition are complied with in
respect of such acquisition if the total consideration
(including, without limitation, deferred consideration and
any consideration comprising of the issue of either debt
instruments or shares) for such an acquisition either (A)
exceeds Pound Sterling80,000,000 (or its equivalent in
other currencies) or (B) when aggregated with the
consideration (determined in accordance with paragraph
(c)(ii) below) arising in respect of all such other
acquisitions (save for any acquisitions permitted by
paragraphs (a), (d), (f), (h) or (i) of this definition of
Permitted Acquisitions) made by members of the UK Group
and, prior to the Pushdown Date, members of the Target
Group during the then current financial year, exceeds
Pound Sterling100,000,000 (or its equivalent in other
currencies);
(c) with respect to any member of the UK Group at any time, any
acquisition of (or of any interests in) (A) companies,
partnerships, consortia, joint ventures or other arrangements or
(B) businesses, licences, revenues or assets PROVIDED THAT:
(i) the relevant company, partnership, consortium, joint
venture or other arrangement or the acquired business,
licence, revenues or asset engages in, or, as the case may
be, relates to, a Cable Business; and
(ii) if the total consideration (including, without limitation,
assumed debt, deferred consideration and any consideration
comprising of the issue of either debt instruments or
shares) for such an acquisition either (A) exceeds Pound
Sterling80,000,000 (or its equivalent in other currencies)
or (B) when aggregated with the consideration (determined
as aforesaid) arising in respect of all such other
acquisitions (save for any acquisitions permitted by
paragraphs (a), (d), (f), (h) or (i) of this definition of
Permitted Acquisitions) made by members of the UK Group
and, prior to the Pushdown Date, members of the Target
Group during the then current
43
financial year, exceeds Pound Sterling100,000,000 (or its
equivalent in other currencies):
(1) the Parent has provided the Agent with a pro forma
business plan (over a period ending no earlier than 31
December in the year of the Term Final Maturity Date),
together with the key operating assumptions relating
thereto, has provided representations to the Finance
Parties (in the form agreed by the Agent (acting
reasonably) with respect thereto) in relation to such
business plan and has confirmed that no Event of
Default or Potential Event of Default has occurred and
is continuing or would occur following such
acquisition;
(2) the pro forma business plan demonstrates pro forma
compliance with the financial covenants set out in
Clause 22 (Financial Condition) until the Term Final
Maturity Date; and
(3) the pro forma business plan demonstrates that amounts
available for drawdown under the Facilities (following
any planned drawdown to finance the contemplated
acquisition) and under other financing sources
committed to the UK Group are sufficient to meet the UK
Group's projected financing needs until the Term Final
Maturity Date;
(d) the incorporation of a company or the acquisition of the shares
in a newly incorporated company from its subscribing
shareholders, where such a company at all times carries on
business in an administrative capacity, supporting the business
of either the UK Group and/or the Target Group (as carried on in
accordance with Clause 23.31 (Change of Business) or acts as a
holding company for a Permitted Acquisition within paragraph (b)
or (c) above;
(e) the acquisition of no more than 1 per cent. of the issued share
capital of any of (i) Cable & Wireless Communications (B) Limited
by the Target or (ii) the Target by CWC Holdings, in each case
pursuant to a Permitted Issuance;
(f) any acquisition made by a member of the UK Group pursuant to the
implementation of an Asset Passthrough or a member of either the
UK Group or the Target Group pursuant to a Funding Passthrough;
(g) any acquisition by any member of the UK Group of the minority
shareholdings in Northampton Cable Television Limited and/or
Herts Cable Limited;
(h) any acquisition of assets as referred to in paragraph (a) of the
definition of Asset Adjustment Payments; and
(i) any acquisition by an Obligor, a member of the UK Group or, as
the case may be, a member of the Target Group pursuant to a
Permitted Disposal within paragraphs (f), (h) or (i) of the
definition thereof.
44
"PERMITTED COVENANT GROUP INDEBTEDNESS" means any Financial Indebtedness
of any member of the Covenant Group:
(a) arising under the NTL CC Notes;
(b) arising under a Permitted Refinancing;
(c) arising under a guarantee or other covenant for payment given in
respect of the Working Capital Facility or under a covenant for
payment given in the Security Documents or the Second Security
Documents or in respect of any security document securing any
Indebtedness for Borrowed Money incurred pursuant to the
Incremental Facility;
(d) where such is owed by NTL UK to NTL CC or by NTL CC to any other
members of the NTL Holding Group;
(e) arising in respect of any letters of credit, performance bonds or
guarantees issued at the request of a member of the Group in the
ordinary course of its business;
(f) incurred on or after the Execution Date and before the Term
Effective Date provided that:
(i) the aggregate principal amount of such Financial
Indebtedness does not exceed Pound Sterling750,000,000; and
(ii) the final maturity date of such Financial Indebtedness is a
date no earlier than the day falling twelve months after
the Revolving Termination Date.
(g) incurred on or after the Term Effective Date and on or before 31
December 2002 provided that:
(i) the aggregate principal amount of such Financial
Indebtedness and any Financial Indebtedness incurred in
reliance on paragraph (f) above does not exceed Pound
Sterling750,000,000; and
(ii) the final maturity date of such Financial Indebtedness is a
date no earlier than the day falling six months after the
Term Final Maturity Date;
(h) incurred on or after 1 January 2003 PROVIDED THAT:
(i) the requirements of sub-clauses 22.2.3 and 22.2.4 of Clause
22.2 (UK Group Financial Condition) are satisfied; and
(ii) the final maturity date of such indebtedness is a date no
earlier than the day falling six months after the Term
Final Maturity Date; and
(i) under any Hedging Agreement entered into by NTL CC under which
NTL CC enters into currency or interest swaps in relation to its
obligations to make payments under any other of its Permitted
Covenant Group Indebtedness.
45
"PERMITTED DISPOSAL" means any disposal:
(a) made in the ordinary and usual course of business;
(b) on arm's length commercial terms of an asset by either a member
of the UK Group (or, prior to the Pushdown Date, the Target
Group) who is not an Obligor;
(c) for cash (if the relevant asset has any value) on arm's length
commercial terms of any surplus or obsolete assets no longer
required for the efficient operation of the business of either
the UK Group or, prior to the Pushdown Date, the Target Group or
the Pre-Novation Borrower;
(d) of cash, where such a disposal is not otherwise prohibited by the
Finance Documents;
(e) by way of a realisation of a Permitted Investment;
(f) by an Obligor to another Obligor, provided that if the relevant
assets are subject to an Encumbrance pursuant to a Security
Document or a Second Security Document, they remain so or become
subject to a similar Encumbrance in favour of the Finance Parties
in the hands of the acquiring Obligor;
(g) on (A) arm's length commercial terms for cash consideration or
(B) in exchange for similar assets located in either the United
Kingdom or Ireland which the Agent (acting reasonably) determines
to be of a comparable or superior quality PROVIDED THAT:
(i) in each case the Net Average Revenue Contributions at no
time exceed 15 per cent; and
(ii) the proceeds of any disposal under (A) of this paragraph
(g) are applied in accordance with Clause 14.2 (Mandatory
Prepayment from Asset Disposals);
(h) of an interest in real or heritable property by way of a lease or
licence granted by a member of the UK Group (or, prior to the
Pushdown Date, a member of the Target Group or the Pre-Novation
Borrower) to a member of the UK Group (or, prior to the Pushdown
Date, a member of the Target Group or the Pre-Novation Borrower);
(i) by a member of the UK Group (or, prior to the Pushdown Date, a
member of the Target Group) who is not an Obligor to the
Pre-Novation Borrower or another member of the UK Group (or,
prior to the Pushdown Date, a member of the Target Group);
(j) (by way of share sale) of any UK Group Excluded Subsidiary or any
Target Group Excluded Subsidiary (other than Cable & Wireless
Communications (B) Limited) (or any interest therein);
46
(k) necessary to effect the transfers of shares referred to
paragraphs (d), (e) and (f) of the definition of the Pushdown or
any other transfers consented to in the letter of consent dated
29 January 2001 from the Agent to the Parent, the Pre-Novation
Borrower and the CWC Parent;
(l) (by way of share sale) of NTL Insurance Limited, for fair market
value, to any member of the NTL Holding Group;
(m) (by way of share sale) of Lanbase ▇▇▇▇▇▇▇ ▇▇, for fair market
value;
(n) of any assets as referred to in paragraph (b) of the definition
of Asset Adjustment Payments; and
(o) of any assets pursuant to the implementation of an Asset
Passthrough or of any funds received pursuant to the
implementation of a Funding Passthrough.
"PERMITTED ENCUMBRANCE" means:
(a) any Encumbrance specified in Schedule 5 (Existing Encumbrances),
if the principal amount thereby secured is not increased;
(b) any Encumbrance over or affecting any asset acquired by a member
of the UK 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 UK Group; and
(ii) the Financial Indebtedness secured by such Encumbrance at
all times falls within paragraph (n) of the definition of
Permitted Indebtedness;
(c) any Encumbrance over or affecting any asset of any company which
becomes a member of the UK Group after the date hereof, where
such Encumbrance is created prior to the date on which such
company becomes a member of the UK 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 (k) or (n) of the
definition of Permitted Indebtedness;
(d) any netting or set-off arrangement entered into by either any
member of the UK Group (or, prior to the Pushdown Date, a member
of the Target Group or the Pre-Novation Borrower) in the normal
course of its banking arrangements for the purpose of netting
debit and credit balances;
(e) any right of set-off or any title transfer or retention of title
arrangement entered into by either any member of the UK Group
(or, prior to the Pushdown Date, a member of the Target Group or
the Pre-Novation Borrower) in the normal course of its trading
activities on the counterparty's standard or usual terms
47
(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 or the Second Security Documents;
(h) any Encumbrance granted by a member of the UK Group over the
shares or other interests it holds in, or over the assets
attributable to, a Project Company;
(i) any Encumbrance created by any arrangements referred to in
paragraph (e) or paragraph (f) of the definition of Indebtedness
for Borrowed Money;
(j) 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 a member of the UK
Group, a member of the Target Group or the Pre-Novation Borrower
in good faith;
(k) any Encumbrance over cash deposited as security for the
obligations of a member of the UK Group, a member of the Target
Group or the Pre-Novation Borrower in respect of a performance
bond, guarantee, standby letter of credit or similar facility
entered into by such a member of the UK Group, member of the
Target Group or the Pre-Novation Borrower in the ordinary course
of business;
(l) any Encumbrance existing at the date hereof in relation to the
Videotron Mortgage, the NatWest Finance Leases, the South Herts
Facility (or the South Herts Refinancing Loan) or the Vehicle
Finance Leases, for so long as the indebtedness relating to such
constitutes Permitted Indebtedness within paragraph (b) of the
definition of Permitted Indebtedness;
(m) any Encumbrance over assets subject to the Security and securing
Financial Indebtedness arising under the Incremental Facility,
subject to an intercreditor agreement acceptable to all of the
Banks being entered into between the Banks and the lenders under
the Incremental Facility;
(n) any Encumbrance constituted by a rent deposit deed entered into
on arm's length terms and in the ordinary course of business
securing the obligations of a member of the UK Group or, prior to
the Pushdown Date, a member of the Target Group or the
Pre-Novation Borrower in relation to property leased to a member
of the UK Group or, as the case may be, a member of the Target
Group or the Pre-Novation Borrower;
(o) any Encumbrance granted by any member of the Target Group prior
to the Execution Date in favour of the Target or Cable & Wireless
Communications
48
Corporation Limited PROVIDED THAT the indebtedness related
thereto has been fully repaid; and
(p) any Encumbrance securing Permitted Indebtedness falling within
paragraph (n) of the definition of that term.
"PERMITTED INDEBTEDNESS" means any Financial Indebtedness:
(a) arising under or permitted pursuant to the Finance Documents;
(b) in respect of each category of Existing Target Indebtedness
listed in paragraphs (a) to (n) of the definition thereof, until
such time that the Pushdown Condition in relation to that
category of Existing Target Indebtedness should have been
satisfied in accordance with Clause 23.18 (Discharge of Existing
Target Indebtedness);
(c) in respect of Subordinated UK Group Debt or Subordinated Target
Group Debt;
(d) arising in relation to the implementation of the Hedging
Strategy;
(e) arising under Permitted Loans and Guarantees;
(f) arising under the Incremental Facility;
(g) arising under Secured Ancillary Facilities or in relation to any
documentary or standby letter of credit facility or performance
bond facility made available by a financial institution on an
unsecured basis PROVIDED THAT the aggregate indebtedness of all
members of the UK Group and, prior to the Pushdown Date, of the
Pre-Novation Borrower and of all members of the Target Group in
relation to such facilities and the Secured Ancillary Facilities
does not exceed Pound Sterling40,000,000 (or its equivalent);
(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 in reliance on this
paragraph (h) by each member of the UK Group (and, prior to the
Pushdown Date, each member of the Target Group and the
Pre-Novation Borrower) does not exceed Pound Sterling45,000,000
(or its equivalent);
(i) arising in respect of Existing Performance Bonds;
(j) in respect of Permitted Overdraft Borrowings PROVIDED THAT the
aggregate amount of such Financial Indebtedness does not exceed
Pound Sterling20,000,000 (or its equivalent);
(k) of any company which becomes a member of the UK Group after the
date hereof, where such Financial Indebtedness arose prior to the
date on which such company becomes a member of the UK Group; if:
(i) such Financial Indebtedness was not created in
contemplation of the acquisition of such company;
49
(ii) the aggregate amount of all Financial Indebtedness falling
within this paragraph (k) does not exceed Pound
Sterling20,000,000 (or its equivalent); and
(iii) such Financial Indebtedness is repaid within three months
of such company becoming a member of the UK Group;
(l) arising under the Working Capital Facility;
(m) arising in relation to either an Asset Passthrough or a Funding
Passthrough PROVIDED THAT any such Financial Indebtedness is
Subordinated UK Group Debt if it is owed by the Parent to NTL UK,
Assigned Debt if it is owed by a member of the UK Group to the
Parent on and after the Pushdown Date or Subordinated Target
Group Debt if it is owed by the Pre-Novation Borrower or a member
of the Target Group to a member of the NTL Holding Group; and
(n) not falling within paragraphs (a) to (m) above, of any members of
the UK Group or, prior to the Pushdown Date and to the extent
such is outstanding at the Acquisition Date, of any members of
the Target Group or the Pre-Novation Borrower PROVIDED THAT the
aggregate amount of such Financial Indebtedness does not exceed
Pound Sterling20,000,000 (or its equivalent).
"PERMITTED INVESTMENTS" means:
(a) any debt securities which are readily marketable and which are
rated at least "AA" by Standard & Poor's Corporation or "Aa2" by
▇▇▇▇▇'▇ Investors Services, Inc.;
(b) certificates of deposit and deposits with banks and bankers
acceptances in each case with a bank rated at least A- (or the
equivalent thereof) by ▇▇▇▇▇'▇ Investors Services, Inc. or
Standard & Poor's Corporation; or
(c) commercial paper rated at least A-1 (or the equivalent thereof)
by ▇▇▇▇▇'▇ Investors Services, Inc. or Standard & Poor's
Corporation.
"PERMITTED ISSUANCE" means the allotment and issue of shares in Cable &
Wireless Communications (B) Limited, the Target and/or CWC Holdings
(representing, in each case, no more than one per cent. of the issued
share capital of such companies) pursuant to either:
(a) the conversion of any of the BCM Notes or the exercise of options
under the ▇▇▇▇ Cablemedia plc Savings-Related Share Option Plan
1994, the ▇▇▇▇ Cablemedia plc No. 1 Executive Share Option Plan
1994, the NYNEX CableComms Revenue Approved Employee Share Option
Plan and/or the NYNEX CableComms Savings-Related Share Option
Plan; or
(b) the exercise of drag along rights to compulsorily acquire any
such shares pursuant to the articles of association of Cable &
Wireless Communications (B) Limited, the Target and/or CWC
Holdings or the terms attaching to the BCM Notes.
50
"PERMITTED LOANS AND GUARANTEES" means:
(a) trade credit or guarantees or indemnities granted in the ordinary
course of business on usual and customary terms;
(b) loans made by either any member of the UK Group or, prior to the
Pushdown Date, any member of the Target Group or the Pre-Novation
Borrower to its employees either (i) in the ordinary course of
its employees' employment or (ii) to fund the exercise of share
options by its employees;
(c) loans made by one Obligor (other than the Parent) to another
Obligor;
(d) loans made by the Parent to other Obligors where, if such loans
are outstanding on or after the Pushdown Date, the indebtedness
in respect of such constitutes Assigned Debt;
(e) loans made by a member of the UK Group pursuant to either an
Asset Passthrough or a Funding Passthrough or by a member of the
Target Group or the Pre-Novation Borrower pursuant to a Funding
Passthrough;
(f) loans made, prior to the Pushdown Date, by a member of the UK
Group to another member of the UK Group;
(g) loans made, prior to the date falling five Business Days after
the Acquisition Date, by CWC Holdings to other members of the
Target Group to allow such to repay Existing Target Indebtedness
or to meet working capital requirements;
(h) loans made by a member of the UK Group or, prior to the Pushdown
Date, a member of the Target Group which is not an Obligor to any
other member of the UK Group or, as the case may be, member of
the Target Group or the Pre-Novation Borrower;
(i) loans made by a member of the UK Group or, prior to the Pushdown
Date, a member of the Target Group or the Pre-Novation Borrower
to a member of the Group, where the proceeds of such a loan are
either directly or indirectly used to fund a Permitted Payment;
(j) credit granted by any member of the UK Group, any member of the
Target Group or the Pre-Novation Borrower to a member of the
Group, where the indebtedness outstanding thereunder relates to
Intra-Group Services;
(k) loans of up to Pound Sterling17,100,000 by members of the Target
Group to Cable & Wireless Communications (South Hertfordshire)
Limited;
(l) loans of up to an aggregate amount of Pound Sterling5,000,000 (or
its equivalent in dollars) made by any Obligor to NTL (B) Limited
(formerly Cable & Wireless Communications (B) plc) PROVIDED THAT
such loans are used to pay the Existing Target Indebtedness of
NTL (B) Limited;
51
(m) loans made to either of the Telecential Partnerships outstanding
on the Execution Date or made in accordance with Clause 23.29
(Telecential Partnerships);
(n) the Cable & Wireless Loan or other loans arising in connection
with the Transaction Agreement;
(o) loans made, credit granted and guarantees or indemnities given in
an aggregate amount not exceeding Pound Sterling200,000;
(p) any loan made out of Available Excess Cash Flow to a UK Group
Excluded Subsidiary;
(q) a loan in a principal amount of Pound Sterling500,000 made by
X-tant Limited to Comtec Europe Limited pursuant to a facility
letter dated 29 September 2000 from X-tant Limited to Comtec
Europe Limited;
(r) deferred consideration in an amount of up to Pound
Sterling52,500,000 owed to NTL (CWC) Limited in relation to the
disposal of NTL Telephone Equipment Limited; and
(s) any guarantee or indemnity given by a member of the UK Group or,
prior to the Pushdown Date, a member of the Target Group in
respect of any Permitted Indebtedness, or other obligation not
restricted by the terms of the Finance Documents, of another
member of the UK Group or, prior to the Pushdown Date, the Target
Group.
"PERMITTED OVERDRAFT BORROWINGS" means Financial Indebtedness in respect
of an Overdraft Facility if such Financial Indebtedness:
(a) has been incurred solely for short term cash management purposes
in the ordinary course of business;
(b) is fully repaid within three Business Days of it having been
incurred (from available funds other than Permitted Overdraft
Borrowings); and
(c) is not outstanding at any time between the date on which the
Pushdown Condition is satisfied and the Pushdown Date.
"PERMITTED PAYMENT" means a Restricted Payment which is:
(a) made after 31 December 2003 and funded from Available Excess Cash
Flow;
(b) made, at any time, to fund the payment of New York Office
Expenses, the amount of such payments during each financial year
of the Parent being no greater than the amount of New York Office
Expenses so attributed for that financial year in the Business
Plan;
(c) made, at any time, to fund the cash payment obligations of any
member of the NTL Holding Group (and PROVIDED THAT a payment may
only be made once pursuant to this paragraph (c) in respect of
any obligations which have been hedged) in relation to:
52
(i) the NTL CC Notes;
(ii) any Permitted Refinancings within either paragraph (i) (a)
or paragraph (ii) of the definition thereof;
(iii) subject to the NTL Triangle Accession having been
completed, any Permitted Refinancings within paragraph (i)
(c) of the definition thereof;
(iv) any bonds, notes or similar public debt instruments issued
by any member of the NTL Holding Group after the date
hereof, in either the domestic or the international capital
markets, to the extent that the net proceeds thereof have
been invested into the UK Group;
(v) any Hedging Agreement entered into by NTL CC under which
NTL CC enters into currency or interest swaps in relation
to its obligations to make payments under any of the
categories of Permitted Covenant Group Indebtedness
referred to in paragraphs (i) to (iv) above PROVIDED THAT
(for the avoidance of doubt) no payment may be made under
this paragraph (v) if and to the extent that a payment in
respect of the Permitted Covenant Group Indebtedness to be
hedged has already been made under paragraphs (i), (ii),
(iii) or (iv) above,
which, in either case, has fallen due or will fall due within
five Business Days;
(d) made pursuant to an Asset Passthrough and funded solely from cash
generated by entities outside of the UK Group or made available
pursuant to a Funding Passthrough and funded solely from cash
generated by entities outside of the UK Group and the Target
Group;
(e) in an amount of up to Pound Sterling2,000,000 made to NTL
Holdings to finance payments to be made by NTL Holdings to Cable
& Wireless in relation to certain Acquisition overhead costs;
(f) deposited in a Charged Account and:
(i) represents the proceeds from a payment of interest on
Subordinated UK Group Debt, being paid by the Parent to NTL
UK and then paid by NTL UK to NTL CC (and, if applicable,
by NTL CC to NTL Inc.) in accordance with arrangements the
Group has with the Inland Revenue; and
(ii) is reinvested in the Parent within ten Business Days of the
date of the Restricted Payment, such an investment being by
way of Subordinated Funding;
(g) deposited in the NTL Charged Account prior to the Pushdown Date
where:
(i) such a Restricted Payment represents a dividend or other
distribution or the payment of interest on or the repayment
of the principal amount of any Subordinated Target Group
Debt or the granting of a loan by the Pre-Novation Borrower
to NTL Inc.;
53
(ii) such a Restricted Payment is reinvested by NTL Inc. (A) in
the Pre-Novation Borrower by way of Subordinated Funding,
(B) in a member of the Target Group subject to or
potentially liable to US Federal Income Taxes or whose
members or shareholders are liable or potentially liable to
US Federal Income Tax in respect of its net income or
profits, by way of Subordinated Funding or (C) pursuant to
a UK Group Funding Payment in each case made within one
Business Day of the date of the Restricted Payment; and
(iii) the aggregate amount on deposit in the NTL Charged Account
for the purpose of this paragraph (g) at any one time does
not exceed Pound Sterling25,000,000 (or its equivalent);
(h) made out of the proceeds of an Asset Adjustment Payment referred
to in paragraph (b) of the definition thereof received by a
member of the Target Group;
(i) made by either a member of the Target Group or the Pre-Novation
Borrower, where the proceeds of such a Restricted Payment are to
be used by NTL Holdings to make a Debt Adjustment Payment to
Cable & Wireless in accordance with paragraph (b) of the
definition thereof;
(j) made in relation to Intra-Group Services; or
(k) made by a member of the Target Group to another member of the
Target Group on or before the date falling five Business Days
after the Acquisition Date or made by a member of the UK Group to
another member of the UK Group on or before the Pushdown Date,
and provided in each case that such payment shall only be permitted if
and to the extent that no Event of Default has occurred (and is
continuing) or would result from the making of such payment.
"PERMITTED REFINANCINGS" means:
(a) any refinancing of:
(i) the NTL CC Notes;
(ii) the Diamond Notes, by any member of the Covenant Group; or
(iii) the Triangle Notes, by any member of the Covenant Group,
PROVIDED THAT, in each case, the final maturity date of the
indebtedness incurred in respect of such refinancing is a date no
earlier than the day falling six months after the Term Final
Maturity Date; and
(b) any refinancing of the Working Capital Facility, by any member of
the Covenant Group, PROVIDED THAT
54
(i) in the case of any refinancing effected on or after the
Execution Date and before the Term Effective Date, the
final maturity date of the indebtedness incurred in respect
of such refinancing is a date no earlier than the date
falling one year after the Revolving Termination Date; and
(ii) in the case of any refinancing effected on or after the
Term Effective Date, the final maturity date of the
indebtedness incurred in respect of such refinancing is a
date no earlier than the date falling six months after the
Term Final Maturity Date.
"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.
"PRE-NOVATION BORROWER" means NTL Business Limited.
"PRE-NOVATION BORROWER CHARGED ACCOUNT" means an account, bearing
interest at a commercially reasonable rate in relation to the given
circumstances, in the name of the Pre-Novation Borrower over which
security has been granted in favour of the Security Trustee pursuant to
the Pre-Novation Borrower Security Over Cash Agreement and into which the
Pre-Novation Borrower Investment is deposited.
"PRE-NOVATION BORROWER INTRA-GROUP LOAN ASSIGNMENT" means the assignment
in the agreed form executed or to be executed by the Pre-Novation
Borrower in favour of the Security Trustee, assigning the Pre-Novation
Borrower's rights in respect of loans made or to be made by it to CWC
Holdings.
"PRE-NOVATION BORROWER SECURITY OVER CASH AGREEMENT" means the assignment
and charge in the agreed form executed or to be executed by the
Pre-Novation Borrower in favour of the Security Trustee, assigning and
charging the Pre-Novation Borrower's rights in respect of sums deposited
in the Pre-Novation Borrower Charged Account.
"PRE-NOVATION BORROWER INVESTMENT" means the cash invested by NTL Inc. in
the Pre-Novation Borrower on or before the Acquisition Date, such an
investment being made by way of Subordinated Funding.
"PREPAYMENT ESCROW ACCOUNT" means an account, bearing interest at a
commercially reasonable rate in relation to the given circumstances, held
with the Agent (or such other financial institution reasonably acceptable
to the Agent) in the name of the Parent or, prior to the Pushdown Date,
the CWC Parent, over which the Parent or, as the case may be, the CWC
Parent has granted or will grant first ranking security in favour of the
Security Trustee and into which sums are deposited in accordance with
Clause 14 (Mandatory Prepayment).
"PRINCIPAL PROPERTIES" means, in respect of the UK Group, the properties
which are specified in Schedule 15 (UK Group Principal Properties) and,
in respect of the Target Group, those of the properties selected by the
Agent in accordance with Clause 23.39 (Notification of Target Group
Assets).
55
"PROJECT COMPANY" means a subsidiary of the Parent or, prior to the
Pushdown Date, the CWC Parent (or a person in which a subsidiary of the
Parent, prior to the Pushdown Date, the CWC Parent has an interest),
which has a special purpose and whose creditors have no recourse to any
member of the UK Group or, any member of the Target Group in respect of
any Financial Indebtedness of that person or any of its subsidiaries
(other than recourse to any member of the UK Group or, as the case may
be, any member of the Target Group who has granted security over its
shares or other interest in such a Project Company beneficially owned by
it PROVIDED THAT such recourse is limited to the realisation of such
security).
"PROPORTION" means, in relation to a Bank at any time, the proportion
which its Commitment bears to the Total Commitments.
"PUSHDOWN" means:
(a) the release by the Pre-Novation Borrower of indebtedness owed to
it by CWC Holdings and the release by the Security Trustee of the
Initial Security and all guarantees and security created in its
favour by any member of the Target Group pursuant to Clause 23.17
(Post-Acquisition Date Security) in consideration for the issue
by CWC Holdings of preference shares to the Pre-Novation
Borrower, subject to the security referred to in paragraph (h)
below being granted on the same day as such release;
(b) capitalisation of all intra-group indebtedness owed by CWC
Holdings;
(c) (if necessary) the issue of preference shares by CWC Holdings to
NTL Inc. in consideration for the assignment to CWC Holdings of
the benefit of indebtedness owed by members of the Target Group
to NTL Inc. and the subsequent contribution of such preference
shares to the Pre-Novation Borrower in consideration for the
issue of ordinary shares in the Pre-Novation Borrower to NTL
Inc.;
(d) the novation of the obligations of the Pre-Novation Borrower
under this Agreement to the Post-Novation Borrower as
consideration for the transfer by the Pre-Novation Borrower to
the Post-Novation Borrower of all the preference shares of CWC
Holdings issued to it pursuant to paragraph (a) above;
(e) the transfer of the ordinary shares in CWC Holdings held by NTL
Holdings to NTL Group Limited, by way of a series of equity
contributions between the members of the NTL Holding Group, the
Parent, the Post-Novation Borrower and NTL Group Limited;
(f) the transfer of the shares in the Pre-Novation Borrower held by
NTL Inc. to the Post-Novation Borrower by way of a series of
equity contributions between the members of the NTL Holding
Group, the Parent and the Post-Novation Borrower;
(g) filing a United States of America "check-the-box" election in
respect of the Pre-Novation Borrower;
56
(h) the granting of the UK Group Security and the Target Group
Security by the relevant members of the UK Group and the Target
Group to secure the Post-Novation Borrower's (and any other
Borrowers') obligations hereunder;
(i) the re-registration of CWC Holdings as an unlimited liability
company; and
(j) the reduction in the share capital by CWC Holdings by way of
special resolution cancelling its preferences shares and
replacing them with debt,
as amended by the letter of consent dated 29 January 2001 from the Agent
to the Parent, the CWC Parent and the Pre-Novation Borrower.
"PUSHDOWN CONDITION" means the completion of all or any of the following
steps, such that the Pushdown can be effected without a breach of any
Permitted Covenant Group Indebtedness:
(a) the repayment in full of the Existing Target Indebtedness;
(b) the novation or restructuring of the Existing Target Indebtedness
on terms such that there is no surviving recourse to CWC Parent
or any of its subsidiaries;
(c) the transfer of one or more of the Excluded Target Group
Subsidiaries, so that such cease to be subsidiaries of the CWC
Parent; and
(d) the issuing of an opinion by an independent advisor of NTL CC,
confirming that the Pushdown is fair from a financial point of
view to NTL CC and the other relevant members of the Group.
"PUSHDOWN DATE" means the date upon which the Pushdown is completed.
"QUALIFYING LENDER" means:
(a) a Bank which is (on the date a payment of interest falls due
under a Finance Document) beneficially entitled to and within the
charge to United Kingdom corporation tax in respect of that
payment PROVIDED THAT the advance in respect of which the payment
is made was made by a bank for the purposes of section 349 of
ICTA at the time the advance was made;
(b) a Treaty Lender; or
(c) a Bank, being a Term Bank, is a company which is (on the date a
payment of interest falls due under a Finance Document)
beneficially entitled to the payment and is either:
(i) resident in the United Kingdom; or
(ii) not being so resident, carries on a trade in the United
Kingdom through a branch or agency and the payment falls to
be brought into account in computing such Term Bank's
chargeable profits (as that term is defined in section
11(2) of ICTA),
57
and in respect of which, in each case, the United Kingdom Inland
Revenue has not issued a direction that section 349A(1) of ICTA
does not apply.
"QUARTER DATE" has the meaning given to it in Clause 22.3 (Financial
Definitions).
"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 the currency of the relevant 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.
"RECEIVABLES PURCHASE FACILITY" means the facility made available to
certain members of the Target Group pursuant to the receivables purchase
agreement dated 31 March 1998 between those members of the Target Group,
Cable & Wireless Communications Receivables Limited, Cable & Wireless
Communications Services Limited and Bank of America, N.A.
"REFERENCE BANKS" means the principal London offices of The Chase
Manhattan Bank and the principal London offices of Citibank N.A. and The
Royal Bank of Scotland plc or such other bank or banks as may from time
to time be agreed between the Relevant Obligor and the Agent acting on
the instructions of an Instructing Group.
"RELEVANT OBLIGOR" means:
(a) prior to the accession of CWC Holdings as the CWC Parent in
accordance with Clause 38.4 (Accession of CWC Parent), the
Pre-Novation Borrower;
(b) after CWC Holdings has acceded hereto as the CWC Parent in
accordance with Clause 38.4 (Accession of CWC Parent), but prior
to the Pushdown Date, the CWC Parent; and
(c) after the Pushdown Date, the Parent.
"RELEVANT PERIOD" has the meaning given to it in Clause 22.3 (Financial
Definitions).
"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 20.2 (Status and Due Authorisation), Clause 20.4 (No Immunity),
Clause 20.7 (Binding Obligations), Clause 20.9 (No Material Defaults) to
Clause 20.11 (Audited Financial Statements), Clause 20.16 (Budgets),
Clause 20.21 (Execution of this Agreement), Clause 20.25 (Intellectual
Property), Clause 20.26 (Security Interest), Clause 20.27 (Group
Structure) and Clause 20.31 (Existing Group Indebtedness).
"REPORT ON TITLE" means a report on title given by counsel to an
Additional Obligor, substantially in the form set out in Schedule 16
(Form of Report on Title).
58
"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;
(c) the reservations in or anything disclosed by any of the legal
opinions delivered pursuant to Clause 2.5 (Conditions Precedent)
and Schedule 3 (Conditions Precedent), Schedule 10 (Additional
Conditions Precedent) or Clause 2.1 (Conditions Precedent) of the
Restatement Amendment Agreement; and
(d) any circumstance arising through a failure to obtain any of the
consents referred to in Clause 23.15 (Consents and Properties) on
or before the execution of the relevant Security Document or
Second Security Document.
"RESIGNATION NOTICE" means a notice substantially in the form set out in
Schedule 11 (Form of Resignation Notice).
"RESTATEMENT AMENDMENT AGREEMENT" means the amendment agreement between
the parties hereto which amends this Agreement by way of a restatement of
this Agreement to include, inter alia, the terms and conditions relating
to the Term Facility.
"RESTRICTED GROUP" means each member of the Group, other than each
subsidiary of NTL Holdings who is:
(a) a member of either the UK Group or, prior to the Pushdown Date,
the Target Group; and
(b) a Guarantor.
"RESTRICTED PAYMENT" means any payment by a member of the UK Group or,
prior to the Pushdown Date, the Pre-Novation Borrower or a member of the
UK Group or the Target Group to a member of the Restricted Group by way
of dividend or other distribution or the payment of interest on or
repayment of the principal amount of any Assigned Debt or Subordinated UK
Group Debt or Subordinated Target Group Debt.
"REVOLVING ADVANCE" means an advance made or to be made by the Revolving
Banks under the Revolving Facility.
"REVOLVING BANK" means any:
(a) financial institution named in Part A (Revolving Banks) of
Schedule 1 (The Banks);
59
(b) Additional Finance Provider which has become a party hereto as a
Revolving Bank in accordance with Clause 5.5 (Accession of the
Additional Finance Providers); or
(c) financial institution which has become a party hereto as a
Revolving Bank 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.
"REVOLVING COMMITMENT" means, in relation to a Revolving Bank at any time
and save as otherwise provided herein, the amount set opposite its name
under the heading "REVOLVING COMMITMENT" in Part A (Revolving Banks) of
Schedule 1 (The Banks) or, in relation to a Revolving Bank that is an
Additional Finance Provider and save as otherwise provided herein, the
aggregate of the amount notified to the Agent by the relevant Additional
Finance Provider in its Additional Finance Provider Accession Undertaking
and the amount (if any) notified by such Additional Finance Provider to
the Agent in accordance with sub-clause 5.4.2 of Clause 5.4 (Increase of
the Revolving Facility). The Revolving Commitments of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ Bank Limited and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. shall be
determined in accordance with Clause 35.10 (▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Commitment).
"REVOLVING FACILITY" means the revolving loan facility granted to the
Borrowers in this Agreement in an aggregate principal amount of Pound
Sterling2,500,000,000 as the same may be increased from time to time
pursuant to Clause 5.4 (Increase of the Revolving Facility).
"REVOLVING INSTRUCTING GROUP" means, at any time, a Bank or Banks whose
Revolving Commitments amount (or, if each Bank's Revolving Commitment has
been reduced to zero, did immediately before such reduction to zero,
amount) in aggregate to more than sixty-six and two thirds per cent of
the Total Revolving Commitments.
"REVOLVING LOAN" means, at any time, the aggregate principal amount of
the outstanding Revolving Advances at such time.
"REVOLVING MARGIN" means the percentage rate per annum determined in
accordance with Clauses 4.3 (Revolving Margin Ratchet) to 4.5 (Revolving
Default Margin).
"REVOLVING REDUCTION DATE" means each of the dates specified in Clause
11.2 (Reduction).
"REVOLVING REDUCTION INSTALMENT" means each instalment for reduction of
the Total Commitments referred to in Clause 11.2 (Reduction).
"REVOLVING TERMINATION DATE" means 30 September 2005.
"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 by the Borrower of such maturing
Revolving Advance on the day such maturing Revolving Advance is to be
repaid.
60
"SCHEME" means the scheme of arrangement under Section 425 in relation to
the Target, as detailed in appendix 12 of the CWC Circular (or with such
modifications, additions or conditions as may be approved or imposed by
the Court).
"SCHEME DOCUMENTS" means the CWC Circular, including the notice of the
Court Meeting and of the EGM and the resolutions of such Court Meeting
and EGM.
"SCHEME EFFECTIVE DATE" the date upon which an office copy of the order
of the Court sanctioning the Scheme and the cancellation of the Target's
shares covered by the Scheme was registered by the Registrar of
Companies, being 12 May 2000.
"SECOND CAXTON SALE" means the transfer of Caxton by CWC Holdings to C&W
(UK) Holdings in part satisfaction of the CWC Holdings Capital Reduction.
"SECOND DEBENTURE" means the Debenture executed or to be executed by the
Chargors (as listed and defined therein) and the Second Security Trustee
creating second ranking (ranking only behind the first ranking security
created pursuant to the Security Documents) fixed and floating charges
over substantially the whole of the assets and undertaking of such
Chargors, in favour of the Second Security Trustee to hold for the
benefit of the Term Banks, the Agent and itself.
"SECOND INDENTURE OF MORTGAGE" means the second ranking (ranking only
behind the first ranking security created pursuant to the Security
Documents) fixed security over certain properties situated in Northern
Ireland duly executed and delivered by National Transcommunications
Limited and CableTel Northern Ireland Limited in favour of the Second
Security Trustee to hold for the benefit of the Term Banks, the Agent and
itself.
"SECOND NTL CC SECURITY OVER CASH AGREEMENT" means the second ranking
(ranking only behind the first ranking security created pursuant to the
Security Documents) assignment and charge executed or to be executed by
NTL CC in favour of the Second Security Trustee to hold for the benefit
of the Term Banks, the Agent and itself, assigning and charging NTL CC's
rights in respect of sums deposited in the NTL CC Charged Account.
"SECOND NTL UK INTRA-GROUP LOAN ASSIGNMENT" means the second ranking
(ranking only behind the first ranking security created pursuant to the
Security Documents) assignment executed or to be executed by NTL UK in
favour of the Second Security Trustee to hold for the benefit of the Term
Banks, the Agent and itself, assigning NTL UK's rights in respect of
loans made, or to be made, by it to members of the UK Group.
"SECOND PARENT INTRA-GROUP LOAN ASSIGNMENT" means the second ranking
(ranking only behind the first ranking security created pursuant to the
Security Documents) assignment executed or to be executed by the Parent
in favour of the Second Security Trustee to hold for the benefit of the
Term Banks, the Agent and itself, assigning the Parent's rights in
respect of loans made or to be made by it to other members of the UK
Group.
"SECOND PLEDGE AGREEMENT" means the pledge agreement executed or to be
executed by NTL UK CableComms Holdings Inc., NTL CableComms Group plc,
North CableComms Management Inc., North CableComms Holdings Inc., Winston
Investors
61
LLC, NTL Solent Company, NTL Sussex Company, NTL Surrey Company, NTL
Bromley Company, NTL Chartwell Holdings Inc., NTL Wessex Company, NTL
CableComms Group Inc., South CableComms Management Inc., South CableComms
Holdings Inc., Chartwell Investors LP, NTL Winston Holdings Inc., NTL
Winston Holdings Limited, NTL Chartwell Holdings 2, Inc. and NTL
Chartwell Holdings Limited creating second ranking (ranking only behind
the first ranking security created pursuant to the Security Documents)
security over their rights and interests in relation to certain shares as
specified therein in favour of the Second Security Trustee to hold for
the benefit of the Term Banks, the Agent and itself.
"SECOND SECURITY" means the security from time to time constituted by or
pursuant to the Second Security Documents and the guarantees provided
hereunder.
"SECOND SECURITY AGREEMENT" means the security agreement executed or to
be executed by NNS UK Holdings 1 Inc., NNS UK Holdings 2 Inc., North
CableComms Holdings Inc., North CableComms Management Inc., NTL Bromley
Company, NTL CableComms Group Inc., NTL Chartwell Holdings Inc., NTL
Chartwell Holdings 2 Inc., NTL North CableComms Holdings Inc., NTL North
CableComms Management Inc., NTL Programming Subsidiary Company, NTL
Solent Company, NTL South CableComms Holdings Inc., NTL South CableComms
Management Inc., NTL Surrey Company, NTL Sussex Company, NTL UK
CableComms Holdings Inc., NTL Wessex Company, NTL Winston Holdings Inc.,
NTL Wirral Company, South CableComms Holdings Inc., South CableComms
Management Inc., North CableComms LLC, South CableComms LLC and Winston
Investors LLC creating a second ranking (ranking only behind the first
ranking security created pursuant to the Security Documents), continuing
security interest in relation to certain assets as specified therein in
favour of the Second Security Trustee to hold for the benefit of the Term
Banks, the Agent and itself.
"SECOND SECURITY DOCUMENTS" means the Second Debenture, the Second
Indenture of Mortgage, the Second NTL CC Security Over Cash Agreement,
the Second NTL UK Intra-Group Loan Assignment, the Second Parent
Intra-Group Loan Assignment, the Second Security Agreement, the Second
Share Charge Agreement, the Second Share Pledge, the Second Standard
Securities and the Second Pledge Agreement.
"SECOND SECURITY TRUST AGREEMENT" means the security trust agreement
entered into or to be entered into in connection with the Term Facility
between, inter alia, the Second Security Trustee, the Agent and the Term
Banks.
"SECOND SHARE CHARGE AGREEMENT" means the second ranking (ranking only
behind the first ranking security created pursuant to the Security
Documents) share charge agreement executed or to be executed by North
CableComms LLC, NTL Bromley Company, NTL North CableComms Holdings Inc.,
NTL North CableComms Management Inc., NTL Solent Company, NTL South
CableComms Holdings Inc., NTL South CableComms Management Inc., NTL
Surrey Company, NTL Sussex Company, NTL UK CableComms Holdings Inc., NTL
Wessex Company, NTL Wirral Company and South CableComms LLC, charging
their rights and interests in certain shares as specified therein in
favour of the Second Security Trustee to hold for the benefit of the Term
Banks, the Agent and itself.
62
"SECOND SHARE PLEDGE" means the share pledge executed or to be executed
by the Parent, NTL Group Limited and NTL Glasgow creating second ranking
(ranking only behind the first ranking security created pursuant to the
Security Documents) security over their rights and interests in relation
to certain shares in favour of the Second Security Trustee to hold for
the benefit of the Term Banks, the Agent and itself.
"SECOND STANDARD SECURITIES" means the second ranking (ranking only
behind the first ranking security created pursuant to the Security
Documents), fixed security over certain properties situated in Scotland
(ranking second in priority to the fixed security created pursuant to the
Standard Securities) executed and delivered by CableTel (UK) Limited and
National Transcommunications Limited in favour of the Second Security
Trustee to hold for the benefit of the Term Banks, the Agent and itself.
"SECTION 425" means section 425 of the Companies ▇▇▇ ▇▇▇▇.
"SECURED ANCILLARY FACILITIES" means any bank facilities made available
to members of the UK Group or, prior to the Pushdown Date, the
Pre-Novation Borrower or members of the Target Group (on normal
commercial terms) pursuant to documentation in the agreed form and where
the providers of such facilities have each acceded to the Security Trust
Agreement as a Secured Ancillary Facilities Provider PROVIDED THAT the
aggregate indebtedness of all members of the UK Group and, prior to the
Pushdown Date, the Pre-Novation Borrower or members of the Target Group
in respect of Secured Ancillary Facilities at no time exceeds Pound
Sterling40,000,000 (or its equivalent).
"SECURED ANCILLARY FACILITIES PROVIDER" means a financial institution
which has executed a Secured Party Accession Undertaking (as defined in
the Security Trust Agreement) and delivered such to the Security Trustee,
thereby allowing it to share in the Security.
"SECURED HEDGING AGREEMENT" means a Hedging Agreement entered into
between a member of the UK Group and a Hedge Counterparty for the purpose
of hedging the payment obligations of the Obligors under the Finance
Documents.
"SECURITY" means the security from time to time constituted by or
pursuant to the Security Documents and the guarantees provided hereunder.
"SECURITY DOCUMENTS" means the documents constituting the Initial
Security, the Target Group Security, the UK Group Security and the NTL CC
Security Over Cash Agreement and any other agreement or document (other
than the Second Security Documents) pursuant to which any member of the
Group creates any security interest in favour of the Finance Parties (or
the Security Trustee on their behalf) for all or any part of the
obligations of the Obligors or any of them under any of the Finance
Documents.
"SECURITY TRUST AGREEMENT" means the security trust agreement entered
into or to be entered into in connection herewith between, inter alia,
the Security Trustee, the Agent and the Banks.
"SOUTH HERTS FACILITY" means the facility agreement dated 18 April 1995
between, among others, Cable & Wireless Communications (South
Hertfordshire) Limited and Bank of America, N.A.
63
"SOUTH HERTS REFINANCING LOAN" means a loan of up to Pound
Sterling17,100,000 from the Target (or other member of the Target Group)
to Cable & Wireless Communications (South Hertfordshire) Limited where:
(a) such a loan is used by Cable & Wireless Communications (South
Hertfordshire) Limited to refinance its existing outstandings
under the South Herts Facility; and
(b) Cable & Wireless Communications (South Hertfordshire) Limited
provides security in respect of its obligations under such a
loan, substantially similar to the security provided by it in
respect of the South Herts Facility.
"STANDARD SECURITIES" means the first ranking or, in the case of the
Second Security Documents, second ranking (ranking only behind the first
ranking security created pursuant to the Security Documents) fixed
security over certain real or heritable property located in Scotland
given in favour of the Security Trustee or the Second Security Trustee.
"STATUTORY REQUIREMENTS" means any applicable provision or requirement of
any Act of Parliament including the Telecommunications ▇▇▇ ▇▇▇▇, the
Cable and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Cable and the Broadcasting ▇▇▇
▇▇▇▇ or any instrument, rule or order made under any Act of Parliament or
any regulation or by-law of any local or other competent authority or any
statutory undertaking or statutory company which has jurisdiction in
relation to the carrying out, use, occupation, operation of the
properties or the businesses of the Pre-Novation Borrower or any member
of the UK Group (or, prior to the Pushdown Date, the Target Group)
carried out thereon.
"STERLING BONDS" means the Pound Sterling300,000,000 7.125 per cent.
bonds due 2005 and the Pound Sterling200,000,000 7.375 per cent. bonds
due 2017, issued by the Target pursuant to trust deeds dated 27 February
1998 between the Target and Royal Exchange Trust Company Limited.
"SUBORDINATED FUNDING" means:
(a) the subscription by NTL CC or any member of the NTL Holding
Group, for new equity capital of either the Parent or, prior to
the Pushdown Date, the Pre-Novation Borrower or the CWC Parent;
(b) Subordinated UK Group Debt; and
(c) prior to the Pushdown Date, Subordinated Target Group Debt.
"SUBORDINATED TARGET GROUP DEBT" means any loan made by any member of the
NTL Holding Group to the Pre-Novation Borrower, CWC Holdings or any other
member of the Target Group subject to or potentially liable to US Federal
Income Taxes or whose members or shareholders are liable or potentially
liable to US Federal Income tax in respect of its net income or profits,
where:
(a) such a loan has been subordinated to the Revolving Loan pursuant
to the NTL Subordination Agreement or any other Subordination
Agreement; and
64
(b) the relevant member of the NTL Holding Group has assigned its
rights in respect of such a loan to the Security Trustee as
security for the obligations of the Obligors under the Finance
Documents pursuant to the NTL Intra-Group Loan Assignment (in the
case of NTL Inc.) or any other Intra-Group Loan Assignment (in
the case of any other member of the NTL Holding Group).
"SUBORDINATED UK GROUP DEBT" means any loan made by NTL UK to the Parent,
where:
(a) such a loan has been subordinated to the Loan pursuant to the NTL
UK Revolving Bank Subordination Agreement or the NTL UK Term Bank
Subordination Agreement; and
(b) if such a loan is outstanding after the Pushdown Date, NTL UK has
assigned its rights in respect of such a loan to the Security
Trustee and the Second Security Trustee as security for the
obligations of the Obligors under the Finance Documents pursuant
to the NTL UK Intra-Group Loan Assignment and the Second NTL UK
Intra-Group Loan Assignment.
"SUBORDINATION AGREEMENT" means each subordination agreement in the
agreed form executed or to be executed by any member of the NTL Holding
Group in favour of the Security Trustee, pursuant to which the
indebtedness identified therein owed by the Pre-Novation Borrower or any
member of the Target Group to such member of the NTL Holding Group is
subordinated to the obligations of the Obligors under the Finance
Documents.
"SUBSEQUENT PARTICIPANT" means a member state that adopts the euro as its
lawful currency after 1 January 1999.
"SYNDICATION DATE" means the earlier of (a) the day specified by the
Arrangers, after having given five Business Days' prior notice to the
Parent, as the day on which primary syndication of the Revolving Facility
is completed and (b) the day falling six months after the date hereof.
"TARGET" means Cable & Wireless Communications Limited (company number
3288998).
"TARGET GROUP" means CWC Holdings, Target and its direct and indirect
subsidiaries (other than the Target Group Excluded Subsidiaries) after
the Second Caxton Sale, such comprising the CWC ConsumerCo Business and,
for the purpose of Clause 22.1 (Target Group Financial Condition) to
Clause 22.3 (Financial Definitions) and any other provisions of this
Agreement using the definitions defined in Clause 22.3 (Financial
Definitions), the Pre-Novation Borrower.
"TARGET GROUP EXCLUDED SUBSIDIARIES" means:
(a) Cable & Wireless Communications (South Hertfordshire) Limited and
its subsidiaries, until such time as Cable & Wireless
Communications (South Herefordshire) Limited becomes a
wholly-owned subsidiary of the CWC Parent;
65
(b) Fawnspring Limited;
(c) any subsidiary of the CWC Parent which is a Dormant Subsidiary
and which (i) has assets with an aggregate value of Pound
Sterling10,000 or less and (ii) does not hold a Licence; and
(d) any subsidiary of the CWC Parent which is a Project Company,
PROVIDED THAT any of such companies shall become a member of the Target
Group and cease to be a Target Group Excluded Subsidiary if the CWC
Parent and the Agent (acting on the instructions of an Instructing Group,
acting reasonably) so agree.
"TARGET GROUP FUNDING PASSTHROUGH" means a series of transactions between
a member of the NTL Holding Group, one or more members of the Target
Group and a Funded Excluded Subsidiary, where such takes place prior to
the Pushdown Date and:
(a) in the case of funding being provided by a member of the NTL
Holding Group to the Funded Excluded Subsidiary, that funding is:
(i) first made available by the member of the NTL Holding Group
to the CWC Parent by way of Subordinated Funding;
(ii) secondly, (if relevant) made available by one or more
transactions between members of the Target Group (other
than the CWC Parent) and finally made available by a member
of the Target Group to the Funded Excluded Subsidiary in
all such cases by way of either the subscription for new
equity capital, the advancing of loans or capital
contribution; or
(b) in the case of a payment to be made by the Funded Excluded
Subsidiary to a member of the NTL Holding Group, that payment is:
(i) first made by the Funded Excluded Subsidiary to a member of
the Target Group and thereafter between members of the
Target Group (as relevant), by way of dividend or other
distribution, loan or payment of interest on or the
repayment of the principal amount of any indebtedness owed
by such Funded Excluded Subsidiary or relevant Target Group
member; and
(ii) finally made by a member of the Target Group to the
relevant member of the NTL Holding Group by way of dividend
or other distribution, loan or the payment of interest on
or the repayment of the principal amount of any
Subordinated Target Group Debt owed to that member of the
NTL Holding Group.
"TARGET GROUP SECURITY" means the security constituted by each Debenture,
Guarantor Accession Memorandum and any other document pursuant to which a
security interest in favour of the Finance Parties is created, in each
case executed or to be executed by each member of the Target Group listed
in Schedule 13 (Members of the Target Group Granting Security).
66
"TELECENTIAL PARTNERSHIPS" means:
(a) Telecential Communications (Herts) Partnership, a partnership
between CableTel Limited and CableTel Investments Limited (acting
through the Telecential Communications Partnership), Maza Limited
and Herts Cable Limited; and
(b) Telecential Communications (Northants) Partnership, a partnership
between CableTel Limited and CableTel Investments Limited (acting
through the Telecential Communications Partnership), Maza Limited
and Northampton Cable Television Limited.
"TERM" means, in relation to any Revolving Advance, save as otherwise
provided herein, the period for which such Revolving Advance is borrowed,
as specified in the Notice of Drawdown relating thereto.
"TERM ADVANCE" means the advance made or to be made by the Term Banks
under the Term Facility and each portion thereof resulting from a
division provided for in Clause 7.4 (Division of Term Advances) or a
consolidation provided for in Clause 7.3 (Consolidation of Term
Advances), as the same may be reduced by payment in accordance with
Clause 12 (Repayment of the Term Facility), Clause 13 (Cancellation and
Prepayment), Clause 14 (Mandatory Prepayment) or Clause 18 (Illegality)
or any other provision of this Agreement.
"TERM AVAILABILITY PERIOD" means, in relation to the Term Facility, the
period commencing on the Term Effective Date and ending on the earlier
of:
(a) the day which falls two Business Days after the Term Effective
Date; and
(b) the date on which the Term Advance is made.
"TERM BANK" means any company, bank or financial institution:
(a) named in Part B (Term Banks) of Schedule 1 (The Banks); or
(b) which has become a party hereto as a Term Bank 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.
"TERM COMMITMENT" means, in relation to a Term Bank at any time and save
as otherwise provided herein, the amount set opposite its name under the
heading "TERM COMMITMENT" in Part B (Term Banks) of Schedule 1 (The
Banks).
"TERM EFFECTIVE DATE" means the date referred to in clause 2.1
(Conditions Precedent) of the Restatement Amendment Agreement.
"TERM EXECUTION DATE" means the date of the Restatement Amendment
Agreement.
"TERM FACILITY" means the term loan facility granted to the Post-Novation
Borrower in this Agreement in an aggregate principal amount of Pound
Sterling 200,000,000 subject to reduction as herein provided.
67
"TERM FINAL MATURITY DATE" means 31 March 2008.
"TERM INSTRUCTING GROUP" means:
(a) before the Term Advance has been made, a Term Bank or Term Banks
whose Term Commitments amount in aggregate to more than sixty-six
and two thirds per cent of the Total Term Commitments; and
(b) thereafter, a Term Bank or Term Banks to whom in aggregate more
than sixty-six and two thirds per cent of the amount of the Term
Loan is (or, immediately prior to its repayment, was then) owed.
"TERM LOAN" means, at any time, the aggregate principal amount of the
outstanding Term Advances at such time.
"TERM MARGIN" means 3.5 per cent. per annum.
"TERM PREPAYMENT AMOUNT" means, at any time:
(a) prior to the first anniversary of the first day of the Term
Availability Period, two per cent of the portion of the Term Loan
prepaid at such time;
(b) during the period from the first anniversary of the first day of
the Term Availability Period to (but excluding) the second
anniversary of the first day of the Term Availability Period, 1.5
per cent of the portion of the Term Loan prepaid at such time;
and
(c) during the period from the second anniversary of the first day of
the Term Availability Period to (and including) the third
anniversary of the first day of the Term Availability Period, one
per cent of the portion of the Term Loan prepaid at such time.
"TERM REPAYMENT DATE" means each of the dates specified in Clause 12.1
(Term Repayment Instalments), PROVIDED THAT if such day is not a Business
Day, it shall be deemed to be the next succeeding Business Day.
"TOTAL COMMITMENTS" means the aggregate of the Total Revolving
Commitments and the Total Term Commitments.
"TOTAL NET CASH FINANCE CHARGES" has the meaning given to it in Clause
22.3 (Financial Definitions).
"TOTAL REVOLVING COMMITMENTS" means, at any time, the aggregate of the
Revolving Banks' Revolving Commitments at such time.
"TOTAL TERM COMMITMENTS" means, at any time, the aggregate of the Term
Banks' Term Commitments at such time.
"TRANSACTION AGREEMENT" means the restated agreement dated as of 26 July
1999 between ▇▇▇▇ Atlantic Corporation, Cable & Wireless, the Target and
NTL Inc. (as amended from time to time before the date of this
Agreement).
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"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 Relevant Obligor 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.
"TREATY LENDER" means a Bank which is (on the date a payment falls due
under a Finance Document) entitled to that payment under a double
taxation agreement in force on that date (subject to the completion of
any necessary procedural formalities) without a deduction or withholding
for or on account of tax from such a payment PROVIDED THAT in the case of
each Bank which is an Additional Finance Provider, unless the Parent
otherwise agrees, either such Bank has:
(a) provided to the appropriate department of the UK Inland Revenue a
correct and complete claim for that payment to be made without
withholding or deduction for and on account of tax under the
double taxation agreement which claim has been certified by the
relevant non-UK tax authority as applicable under the relevant
double taxation agreement; or
(b) complied with such other arrangement as may be agreed between the
Parent (acting reasonably) and such Bank.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957, as
amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty (which
was signed at Maastricht on 7 February 1992 and came into force on 1
November 1993).
"TRIANGLE NOTES" means the 11.2% senior discount debentures due 15
November 2007, with a principal amount at maturity of $517,300,000,
issued by NTL Triangle LLC (formerly known as Comcast UK Cable Partners
Limited).
"TWTV DEBT" means:
(a) a loan in a principal aggregate amount of up to Pound
Sterling2,000,000 made available to Two Way TV Limited by certain
of its shareholders; and
(b) a loan note in a principal amount of up to Pound Sterling536,000
issued to Granada plc by Two Way TV Limited.
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"UK GROUP" means:
(a) for the purpose of Clause 22.2 (UK Group Financial Condition),
Clause 22.3 (Financial Definitions) and any other provisions of
this Agreement using the definitions defined in Clause 22.3
(Financial Definitions):
(i) the Parent;
(ii) Northampton Cable Television Limited and Herts Cable
Limited;
(iii) Cable & Wireless Communications (South Hertfordshire)
Limited;
(iv) each of the Parent's direct and indirect subsidiaries from
time to time, excluding the UK Group Excluded Subsidiaries
(other than Northampton Cable Television Limited, Herts
Cable Limited and Cable & Wireless Communications (South
Hertfordshire) Limited); and
(v) prior to the Pushdown Date, the Target Group (including the
Pre-Novation Borrower); and
(b) for all other purposes, the Parent and each of its direct and
indirect subsidiaries from time to time other than the UK Group
Excluded Subsidiaries. For information purposes only, the members
of the UK Group on the Execution Date (as defined by this
paragraph (b)) are listed in Schedule 14 (Members of the UK
Group).
"UK GROUP EXCLUDED SUBSIDIARY" means:
(a) any subsidiary of the Parent which is a Dormant Subsidiary and
which (i) has assets (save for loans existing on the Execution
Date owed to it by other members of the UK Group) with an
aggregate value of Pound Sterling10,000 or less and (ii) does not
hold a Licence;
(b) Moleseye Limited;
(c) Northampton Cable Television Limited (until such time as it
becomes a wholly owned subsidiary of the Parent);
(d) Herts Cable Limited (until such time as it becomes a wholly owned
subsidiary of the Parent);
(e) any member of the NTL Triangle Sub-Group (until such time as the
Parent elects for the members of the NTL Triangle Sub-Group to
become members of the UK Group in accordance with Clause 38.5
(NTL Triangle Accession);
(f) any Target Group Excluded Subsidiaries which become subsidiaries
of the Parent pursuant to the Pushdown;
(g) any subsidiary of the Parent which is a Project Company; and
(h) any company which becomes a subsidiary of the Parent after the
date hereof pursuant to an Asset Passthrough,
70
PROVIDED THAT any of such companies shall become a member of the UK Group
and cease to be a UK Group Excluded Subsidiary if the Parent and the
Agent (acting on the instructions of an Instructing Group, acting
reasonably) so agree.
"UK GROUP FUNDING PASSTHROUGH" means a series of transactions between NTL
UK, one or more members of the UK Group and a Funded Excluded Subsidiary
where:
(a) in the case of funding being provided by NTL UK to the Funded
Excluded Subsidiary, that funding is:
(i) first made available by NTL UK to the Parent by way of
Subordinated Funding;
(ii) secondly (if relevant) made available by the Parent to any
other members of the UK Group by way of Parent Funding; and
(iii) thirdly (if relevant) made available by one or more
transactions between members of the UK Group (other than
the Parent) and finally made available by a member of the
UK Group to the Funded Excluded Subsidiary in all such
cases by way of either the subscription for new equity
capital, the advancing of loans or capital contribution; or
(b) in the case of a payment to be made by the Funded Excluded
Subsidiary to NTL UK, that payment is:
(i) first made by the Funded Excluded Subsidiary to a member of
the UK Group, and thereafter between members of the UK
Group (as relevant), by way of dividend or other
distribution, loan or payment of interest on or the
repayment of the principal amount of any indebtedness owed
by such Funded Excluded Subsidiary or relevant UK Group;
and
(ii) finally made by a member of the UK Group to NTL UK by way
of dividend or other distribution, loan or the payment of
interest on or the repayment of the principal amount of any
Subordinated UK Group Debt owed to NTL UK.
"UK GROUP FUNDING PAYMENT" means an indirect payment by NTL Inc. to one
or more members of the UK Group where:
(a) such a payment is made prior to the Pushdown Date and is funded
by a dividend or other distribution or the payment of interest on
or the repayment of the principal amount of any Subordinated
Target Group Debt or the granting of a loan by the Pre-Novation
Borrower to NTL Inc.;
(b) NTL Inc. invests such a payment in NTL CC, who in turn invests
such a payment in NTL UK; and
(c) NTL UK invests such a payment in the Parent as Subordinated
Funding, who in turn makes such Subordinated Funding available to
other members of the UK Group.
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"UK GROUP SECURITY" means the security constituted by the NTL UK
Intra-Group Loan Assignment, the Parent Intra-Group Loan Assignment, each
Debenture and Guarantor Accession Memorandum executed or to be executed
by the Parent and sufficient members of the UK Group to ensure compliance
with Clause 23.32 (Guarantors).
"UNPAID SUM" has the meaning ascribed in Clause 28.1 (Default Interest
Periods).
"VEHICLE FINANCE LEASES" means vehicle finance leases made between PHH
Vehicle Management Services Limited and Cable & Wireless Communications
Corporation Limited.
"VIDEOTRON MORTGAGE" means the loan agreement dated 1 July 1993 between
Videotron Corporation Limited and Barclays Bank PLC.
"WORKING CAPITAL FACILITY" means a facility in the agreed form made or to
be made available to the Parent by certain financial institutions, where:
(a) the amount available to the Parent thereunder is at least Pound
Sterling1,300,000,000 (or its equivalent); and
(b) amounts advanced to the Parent thereunder are applied by it, by
way of Parent Funding, to members of the UK Group for application
towards their working capital purposes.
"WORKING CAPITAL FACILITY AGENT" means the person from time to time
appointed as the agent of the lenders under the Working Capital Facility.
"YANKEE BONDS" means the $750,000,000 6.375 per cent. notes due 2003, the
$650,000,000 6.625 per cent. notes due 2005, the $400,000,000 6.750 per
cent. notes due 2008 and the $700,000,000 6.75 per cent. notes due 2008,
issued by the Target pursuant to an indenture dated 6 March 1998 between
the Target and Citibank, N.A.
1.2 INTERPRETATION
Any reference in this Agreement to:
the "AGENT", an "ARRANGER", the "SECURITY TRUSTEE", the "SECOND SECURITY
TRUSTEE" 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 specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect
common control with that specified person, where:
(a) "CONTROL" (and "CONTROLLING", "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH") mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or
policies of a person, whether by the ownership of shares, by
agreement or otherwise; and
(b) the beneficial ownership of 10 per cent. or more of the issued
share capital of a person shall be deemed to constitute control
of that person;
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"AGREED FORM" in relation to any document means a form which is
initialled by each of the Agent and the Relevant Obligor for the purposes
of identification (as such form may be amended from time to time by
agreement between such parties) or a document executed on or before the
Execution Date by (among others) the Parent, the CWC Parent or the
Pre-Novation Borrower and the Agent or, if not so executed or initialled,
a document in form and substance reasonably satisfactory to the Agent;
"ASSETS" includes present and future properties, revenues and rights of
every description;
a "COMPANY" includes any body corporate;
"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, by-law, order or any other legislative measure of any
government, supranational, local government, statutory or regulatory body
or court;
"LEASEHOLD" shall be construed so as to include any property in Scotland,
title to which is held under a duly registered or recorded long lease;
a "MEMBER STATE" shall be construed as a reference to a member state of
the European Union;
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
73
(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;
"REFINANCING" in the context of a refinancing of the Working Capital
Facility by a member of the Covenant Group shall include a cancellation
of commitment under the Working Capital Facility where an amount at least
equal to such cancellation is contributed to the Parent by such member of
the Covenant Group or by any intermediate member of the Covenant Group;
"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:
(a) any company or corporation:
(i) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(ii) more than half the issued share capital of which is
beneficially owned, directly or indirectly, by the
first-mentioned company or corporation; or
(iii) 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; and
(b) for the purposes only of Clause 21 (Financial Information),
Clause 22 (Financial Condition) and any other Clause where the
financial definitions referred to in Clause 22.3 (Financial
Definitions) are used in this Agreement, any company or
corporation which is a subsidiary undertaking as defined in
Section 258 of the Companies ▇▇▇ ▇▇▇▇ or any other legal entity
which is accounted for as a subsidiary of that first mentioned
company or corporation;
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;
74
"TAX" shall be construed so as to include any tax, levy, impost, duty or
other charge 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 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 "POUND STERLING" and "STERLING" denote lawful currency of the
United Kingdom and "$" and "DOLLARS" denote lawful currency of
the United States of America.
1.3.2 "EURO" means the single currency unit of the European Union as
constituted by the Treaty on European Union as referred to in EMU
Legislation and "EURO UNIT" means the currency unit of the euro
as defined in EMU Legislation.
1.4 AGREEMENTS AND STATUTES
Any reference in a Finance Document 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 TERMS DEFINED IN DEBENTURES
Unless otherwise defined in any Debenture or if the context otherwise
requires, a term defined in this Agreement or in any other Finance
Document has the same meaning in such Debenture or any notice given under
or in connection with such Debenture, as if all
75
references in the defined terms to the Agreement or other Finance
Document were a reference to such Debenture or such notice.
1.8 CONSTRUCTION
Clauses 1.2 (Interpretation) to 1.6 (Time) of this Agreement will apply
as if incorporated in each Debenture or in any notice given under or in
connection with such Debenture, as if all references in such Clauses to
the Agreement were a reference to such Debenture or such notice.
1.9 APPLICATION OF PROVISIONS IN AGREEMENT
Clauses 27 (Costs and Expenses), 29.2 (Currency Indemnity), 40 (Remedies
and Waivers, Partial Invalidity), 41 (Notices) and 45 (Jurisdiction) of
this Agreement are deemed to form part of each Debenture as if expressly
incorporated into it and as if all references in such Clauses to the
Agreement were a reference to each Debenture.
1.10 CLAUSE AND SCHEDULE REFERENCES
References in this Agreement to any Clause or Schedule shall, save as
otherwise specified, be to a Clause or Schedule contained in this
Agreement.
1.11 THIRD PARTY RIGHTS
1.11.1 Save as provided herein, 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.
1.11.2 Each Additional Finance Provider may enjoy the benefit of, or
enforce any terms (which shall include any representation or
warranty made by any party to this Agreement to any Bank on the
Additional Finance Provider Accession Date relating to such
Additional Finance Provider) of this Agreement in accordance with
the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ which in any way
relate to it or its accession to this Agreement , including (but
not limited to), the terms set out in sub-clauses 5.4 and 5.5 of
Clause 5 (Incremental Facility), sub-clauses 20.1.7 and 20.1.8 of
Clause 20.1 (Representing Parties) and Clause 20.14 (Full
Disclosure).
2. THE FACILITIES
2.1 GRANT OF THE FACILITIES
Upon the terms and subject to the conditions hereof, the Revolving ▇▇▇▇▇
▇▇▇▇▇ to the Borrowers the Revolving Facility and the Term ▇▇▇▇▇ ▇▇▇▇▇ to
the Post-Novation Borrower the Term Facility, in each case, as the same
may be reduced in accordance with the terms hereof PROVIDED THAT no
Borrower organised under the laws of any state of the United States of
America may borrow any amount under the Revolving Facility unless NTL
Holdings gives its prior written consent to such borrowing.
2.2 PURPOSE PRIOR TO PUSHDOWN
The Revolving Facility is intended, prior to the Pushdown Date:
2.2.1 to refinance Existing Target Indebtedness (other than the BCM
Notes and the High Yield Bonds referred to in paragraph (a) of
the definition thereof);
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2.2.2 to finance the Cable & Wireless Loan and the South Herts
Refinancing Loan;
2.2.3 to finance, or refinance, acquisitions permitted by paragraph (g)
of the definition of Permitted Acquisitions;
2.2.4 to finance a Permitted Payment to be made in accordance with
paragraph (g) of the definition thereof;
2.2.5 to finance Asset Adjustment Payments; and
2.2.6 to finance the working capital requirements of the UK Group or
the Target Group,
PROVIDED THAT the amount of the Revolving Facility available for the
purposes specified in sub-clauses 2.2.2 to 2.2.6 shall be limited to the
Available Working Capital Amount.
2.3 PURPOSE AFTER PUSHDOWN
On and after the Pushdown Date:
2.3.1 the Revolving Facility is intended to be used by the Borrowers:
(a) to finance the working capital requirements of the UK Group;
(b) to finance, or refinance, Permitted Acquisitions (other than
the Acquisition); and
(c) to finance Asset Adjustment Payments; and
2.3.2 the Term Facility is intended to be used by the Post-Novation
Borrower to refinance amounts outstanding under the Revolving
Facility.
2.4 APPLICATION
Each Borrower shall apply all amounts raised by it hereunder in or
towards satisfaction of, prior to the Pushdown, the purposes specified in
Clause 2.2 (Purpose prior to Pushdown) and, on and after the Pushdown,
the purposes specified in Clause 2.3 (Purpose after Pushdown) and none of
the Finance Parties shall be obliged to concern themselves with such
application.
2.5 INITIAL CONDITIONS PRECEDENT
2.5.1 The conditions precedent to availability of the Revolving
Facility (being the documents and other evidence listed in Part A
(Initial Revolving Bank Conditions Precedent) of Schedule 3
(Conditions Precedent)) have been satisfied.
2.5.2 Save as the Term Banks may otherwise agree, none of the Term
Banks shall have any obligation to make the Term Loan available
until the Term Effective Date has occurred.
2.6 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
77
party hereto nor shall any other party be liable for the failure by such
Bank to perform its obligations hereunder.
2.7 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, save as otherwise
provided in the this Agreement, the Security Trust Agreement and the
Second Security Trust Agreement, 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).
2.8 ACKNOWLEDGEMENT OF SECOND SECURITY
The Revolving Banks acknowledge that, notwithstanding that the Security
covers the Term Loan and the Term Banks, the Term Banks will also be
taking the security constituted or to be constituted by, or pursuant to,
the Second Security Documents. Each party hereto undertakes that it will
not at any time bring any legal action to challenge the validity or
effectiveness of any of the security purported to be created under or
pursuant to any Security Document or Second Security Document. Further,
and for the avoidance of doubt, the Term Banks acknowledge (for the
purposes of Section 94 of the Law of Property Act, 1925) that,
notwithstanding the Second Security, all Advances made by the Banks from
time to time are intended to have the benefit of the Security which ranks
in priority to the Second Security given in respect of the Term Advances.
3. UTILISATION OF THE REVOLVING FACILITY
3.1 DRAWDOWN CONDITIONS FOR REVOLVING ADVANCES
A Revolving Advance will be made by the Revolving Banks to a Borrower if:
3.1.1 during the Notice Period, the Agent has received a completed
Notice of Drawdown from such Borrower;
3.1.2 the proposed date for the making of such Revolving Advance is a
Business Day falling one month or more before the Revolving
Termination Date;
3.1.3 the proposed amount of such Revolving Advance is (a) if less than
the Available Revolving Facility an amount or integral multiple
of Pound Sterling50,000,000 (or such lesser amount as the
Pre-Novation Borrower and the Agent may agree in respect of a
Revolving Advance to be utilised to refinance Existing Target
Indebtedness) or (b) equal to the amount of the Available
Revolving Facility;
3.1.4 in respect of any Revolving Advance which:
(a) is requested prior to the Pushdown Date; and
(b) is to be used to finance any of the purposes set out in
sub-clauses 2.2.2 to 2.2.6 of Clause 2.2 (Purpose prior to
Pushdown),
the amount of such a Revolving Advance is equal to or less than
the Available Working Capital Amount;
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3.1.5 there would not, immediately after the making of such a Revolving
Advance, be more than ten Revolving Advances outstanding;
3.1.6 save for Revolving Advances requested to be made during the
Certain Funds Period and Rollover Advances, neither of the events
mentioned in sub-clauses 9.1.1 and 9.1.2 of Clause 9.1 (Market
Disruption) shall have occurred;
3.1.7 in respect of any Revolving Advance requested by a Borrower prior
to the Pushdown Date, 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 Revolving Banks) may agree in each case ending on or before
the estimated Pushdown Date (as from time to time agreed between
the Agent and the Relevant Obligor) PROVIDED THAT prior to the
Syndication Date, only periods of one month (or, if less, such
duration necessary to ensure that such Term shall end on the
Syndication Date) or such other period as the Pre-Novation
Borrower and the Agent may agree may be requested;
3.1.8 in respect of any Revolving Advance requested by a Borrower after
the Pushdown Date and:
(a) prior to any Additional Finance Provider Accession Date, the
proposed Term of the Revolving Advance requested shall be a
period of one, two, three or six months or such other period
as the Agent (acting on the instructions of all Revolving
Banks) may agree in each case ending on or before such
Additional Finance Provider Accession Date; and
(b) after the final Additional Finance Provider Accession Date,
the proposed Term of the Revolving Advance requested shall
be a period of one, two, three or six months or such other
period as the Agent (acting on the instructions of all
Revolving Banks) may agree in each case ending on or before
the Revolving Termination Date; and
3.1.9 on and as of the proposed date for the making of such Revolving
Advance:
(a) in the case of any Revolving Advance requested to be made
during the Certain Funds Period, no Certain Funds Event of
Default is continuing;
(b) in the case of Revolving Advances not within paragraph (a)
above (other than Rollover Advances), (i) no Event of
Default or Potential Event of Default is continuing and (ii)
the Repeated Representations are true in all material
respects; or
(c) in the case of Rollover Advances not within paragraph (a)
above, (i) no Event of Default is continuing and (ii) those
of the Repeated Representations which are not capable of
remedy or change if incorrect or misleading in any material
respect, are true in all material respects.
3.2 TERMS ENDING ON REVOLVING REDUCTION DATES
The Borrowers shall ensure that there are sufficient Revolving Advances
with Terms ending on or before the next succeeding Revolving Reduction
Date to allow the
79
reduction in the Revolving Commitments scheduled to take place on that
Revolving Reduction Date to occur. If the Borrowers have not so ensured
the Agent may, subject to Clause 28.4 (Break Costs), shorten the Terms of
one or more Revolving Advances agreed with the Relevant Obligor to so
ensure.
3.3 EACH REVOLVING BANK'S PARTICIPATION IN REVOLVING ADVANCES Each Revolving
Bank will participate through its Facility Office in each Revolving
Advance made pursuant to this Clause 3 in the proportion borne by its
Available Revolving Commitment to the Available Revolving Facility
immediately prior to the making of that Revolving Advance.
3.4 REDUCTION OF AVAILABLE REVOLVING COMMITMENT
If a Revolving 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.
4. PAYMENT AND CALCULATION OF INTEREST ON REVOLVING ADVANCES
4.1 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 which such
Revolving Advance has been made shall pay accrued interest on that
Revolving Advance.
4.2 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:
4.2.1 the Revolving Margin at such time;
4.2.2 the Mandatory Cost Rate; and
4.2.3 LIBOR.
4.3 REVOLVING MARGIN RATCHET
The Revolving Margin shall:
4.3.1 from the date hereof until the Pushdown Date, be 2.25 per cent.
per annum;
4.3.2 (if relevant) on and after the Pushdown Date and until the date
falling 12 months after the date hereof, be 2.00 per cent. per
annum; and
4.3.3 at any other time, subject to Clause 4.5 (Revolving Default
Margin) and in accordance with the provisions of Clause 4.4
(Revolving Margin Changes), be the percentage rate per annum
determined by the ratio of EBITDA of the UK Group in respect of
the Relevant Period ended on the most recent Quarter Date to the
Total Net Cash Finance Charges for that Relevant Period in
accordance with the table set out below.
80
------------------------------------------------------------------
RATIO OF EBITDA TO TOTAL NET CAS H REVOLVING MARGIN
FINANCE CHARGES PER CENT. PER ANNUM)
------------------------------------------------------------------
Less than 1.25:1 2.00
------------------------------------------------------------------
Equal to or greater than 1.25:1 but 1.75
less than 1.50:1
------------------------------------------------------------------
Equal to or greater than 1.50:1 but 1.50
less than 1.75:1
------------------------------------------------------------------
Equal to or greater than 1.75:1 but 1.25
less than 2.00:1
------------------------------------------------------------------
Equal to or greater than 2.00:1 but 1.00
less than 2.25:1
------------------------------------------------------------------
Equal to or greater than 2.25:1 0.75
------------------------------------------------------------------
4.4 REVOLVING MARGIN CHANGES
Any reduction or increase to the Revolving Margin provided for by Clause
4.3 (Revolving Margin Ratchet) shall take effect in relation to all
existing Revolving Advances and future Revolving Advances, in each case
with effect from the date the Agent receives the Parent's Compliance
Certificate in accordance with Clause 21.4 (Compliance Certificates) for
its most recent Financial Quarter. Any change in the Revolving Margin
applicable to an existing Revolving Advance shall only relate to the
remainder of the current Term of such a Revolving Advance.
4.5 REVOLVING DEFAULT MARGIN
The Revolving Margin shall be 2.25 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.
5. INCREMENTAL FACILITY
5.1 REQUEST FOR INCREMENTAL FACILITY
If no Event of Default or Potential Event of Default has occurred and is
continuing, the Parent may, at any time after the date falling 12 months
after the Acquisition Date, deliver to the Agent and the Arrangers a
request (the "INCREMENTAL FACILITY REQUEST") requesting that the
Arrangers arrange the Incremental Facility.
5.2 REQUIREMENTS OF INCREMENTAL FACILITY REQUEST
The Incremental Facility Request shall be in writing and shall specify:
5.2.1 the proposed amount of the Incremental Facility, which shall not
exceed Pound Sterling300,000,000 in principal aggregate amount;
5.2.2 the proposed final maturity date of the Incremental Facility,
which shall be no earlier than 31 March 2006;
81
5.2.3 the proposed margin payable on amounts drawn under the
Incremental Facility; and
5.2.4 the other proposed key terms and conditions of the Incremental
Facility, which (subject to its being priced by reference to
market conditions on and around the date of delivery of the
Incremental Facility Request) shall be no more onerous than the
terms of this Agreement.
5.3 ACKNOWLEDGEMENT BY BANKS
The Banks consent to the incurrence by the Borrowers of the additional
indebtedness under the Incremental Facility, which shall rank pari passu
with indebtedness under the Revolving Facility and the Term Facility.
Subject to an intercreditor agreement acceptable to all of the Banks
being entered into between the Banks and the lenders under the
Incremental Facility, the indebtedness under the Incremental Facility may
be secured on assets subject to the Security Documents and/or the Second
Security Documents. The Banks (and/or their designated representatives)
shall negotiate in good faith with the proposed lenders under the
Incremental Facility, with a view to such an intercreditor agreement
being agreed and executed as soon as reasonably practicable. The Banks
shall have the opportunity, but shall not be obliged, to participate in
the Incremental Facility and hereby consent to the Incremental Facility
being offered to persons who are not Banks at the time the Incremental
Facility Request is delivered by the Parent. The Incremental Facility
shall be priced by reference to market conditions on and around the date
of delivery of the Incremental Facility Request, but shall otherwise
contain terms no more onerous than the terms hereof, as the same shall be
agreed between the parties hereto and any additional persons who agree to
participate in the Incremental Facility.
5.4 INCREASE OF THE REVOLVING FACILITY
5.4.1 Notwithstanding any other provision of this Clause 5, the Banks
agree that the amount of the Revolving Facility may be increased
from time to time up to a maximum of Pound Sterling2,720,000,000
in principal aggregate amount PROVIDED THAT:
(a) the increase in the Revolving Facility (the "ADDITIONAL
AMOUNT") shall not exceed Pound Sterling220,000,000 in
principal aggregate amount or, if the unutilised portion of
the Incremental Facility is less than Pound
Sterling220,000,000 at any time, the amount of the
unutilised portion of the Incremental Facility;
(b) the Additional Amount is made available by the Additional
Finance Providers only and, prior to the relevant increase
in the Revolving Facility, the relevant Additional Finance
Provider has acceded to this Agreement in accordance with
the provisions of Clause 5.5 (Accession of the Additional
Finance Providers); and
(c) the Parent has notified the Agent of the date of the
proposed accession to this Agreement of the relevant
Additional Finance Provider and the amount of such
Additional Finance Provider's Revolving Commitment to be
specified in the relevant Additional Finance Provider
Accession Undertaking at least 5 Business Days prior to the
relevant Additional Finance Provider Accession Date.
82
5.4.2 A Revolving Bank which is an Additional Finance Provider may, in
its sole discretion, increase the amount of its Revolving
Commitment by giving the Agent not less than 10 Business Days
prior written notice to that effect, specifying the proposed
amount of the increase in its Revolving Commitment and the date
on which such increase is to take effect, if:
(a) the amount of that increase is a minimum amount of Pound
Sterling20,000,000 and a whole multiple of Pound
Sterling5,000,000;
(b) the amount of that increase will not, when aggregated with
the Revolving Commitments of the Additional Finance
Providers at such time, cause the Additional Amount to
exceed Pound Sterling220,000,000 or, if the unutilised
portion of the Incremental Facility is less than Pound
Sterling220,000,000 at that time, the amount of the
unutilised portion of the Incremental Facility;
(c) on the date on which that increase is expressed to take
effect, no Revolving Advance will be outstanding (excluding,
for the avoidance of doubt, any Revolving Advance with a
Term which ends or begins on that date); and
(d) that Additional Finance Provider has not previously given a
notice under this sub-clause,
and such increase shall take effect as so requested.
5.5 ACCESSION OF ADDITIONAL FINANCE PROVIDERS
5.5.1 The accession of each Additional Finance Provider shall be
effected by the delivery to the Agent of a duly completed
Additional Finance Provider Accession Undertaking. Each of the
Obligors and NTL CC hereby authorises the Relevant Obligor to
sign on its behalf, and each Finance Party (other than the Agent)
hereby authorises the Agent to sign on its behalf, each
Additional Finance Provider Accession Undertaking.
5.5.2 No Additional Finance Provider may deliver an Additional Finance
Provider Accession Undertaking if a Revolving Advance will be
outstanding on the relevant proposed Additional Finance Provider
Accession Date (excluding, for the avoidance of doubt, any
Revolving Advance with a Term which ends or begins on the
Additional Finance Provider Accession Date).
5.5.3 With effect from each Additional Finance Provider Accession Date:
(a) the Parent, NTL CC and each of the Obligors and the relevant
Additional Finance Provider shall assume obligations towards
one another and/or acquire rights against one another; and
(b) the Agent, the Arrangers, the Banks and such Additional
Finance Provider shall acquire the same rights and benefits
and assume the same obligations between themselves,
83
as they would have acquired and assumed had such Additional
Finance Provider been an original party hereto as a Revolving
Bank.
5.5.4 If all the conditions of this Clause 5.5 (Accession of Additional
Finance Providers) are satisfied, the relevant Additional Finance
Provider will become a Revolving Bank on the relevant Additional
Finance Provider Accession Date with a Revolving Commitment as
notified to the Agent in its Additional Finance Provider
Accession Undertaking and the Agent shall promptly notify the
Relevant Obligor, the relevant Additional Finance Provider and
each Bank of the same.
5.6 REDUCTION OF INCREMENTAL FACILITY
The reference to Pound Sterling300,000,000 (as such amount may have been
reduced by any other utilisation of the Incremental Facility) in
sub-clause 5.2.1 of Clause 5.2 (Requirements of Incremental Facility
Request) shall be reduced:
5.6.1 on each Additional Finance Provider Accession Date, by the amount
of the Revolving Commitment of the Additional Finance Provider
which becomes a party hereto on such date; and
5.6.2 on the date specified in any notice delivered by an Additional
Finance Provider pursuant to sub-clause 5.4.2 of Clause 5.4
(Increase of the Revolving Facility) (which notice complies with
the conditions specified in such sub-clause 5.4.2), by the amount
of the increase in the Revolving Commitment specified in such
notice.
5.7 INCREMENTAL FACILITY BALANCE
Following the accession of all the Additional Finance Providers to this
Agreement in accordance with Clause 5.5 (Accession of the Additional
Finance Providers) or receipt by the Agent of a notice from the Parent
advising that (i) no further Additional Finance Provider will become a
party to this Agreement and/or (ii) no Additional Finance Provider will
increase its Commitment under sub-clause 5.4.2, the parties hereto agree
that Clause 5 (Incremental Facility), except for this Clause 5.7 and
sub-clause 5.4.2 of Clause 5.4 (Increase of the Revolving Facility),
shall cease to have effect, save that the balance of the Incremental
Facility referred to in sub-clause 5.2.1 of Clause 5.2 (Requirements of
Incremental Facility Request) as reduced pursuant to Clause 5.6
(Reduction of Incremental Facility) (the "INCREMENTAL FACILITY BALANCE")
shall remain available for utilisation by the UK Group PROVIDED THAT:
(a) no Event of Default or Potential Event of Default has occurred
and is continuing;
(b) the Parent supplies the Agent with a certificate stating that the
Incremental Facility Balance will be made available by a third
party on terms which are no more onerous (save as to pricing)
than the terms hereof;
(c) each Bank is supplied with a draft of the credit agreement under
which the Incremental Facility Balance is to be made available
and the terms of such credit agreement are acceptable to an
Instructing Group; and
84
(d) such third party enters into an intercreditor agreement
acceptable to an Instructing Group and the execution of such
intercreditor agreement shall be a condition precedent to the
Incremental Facility Balance being made available.
6. UTILISATION OF THE TERM FACILITY
6.1 DRAWDOWN CONDITIONS FOR THE TERM ADVANCE
A single Term Advance will be made by the Term Banks to the Post-Novation
Borrower if:
6.1.1 during the Notice Period, the Agent has received a completed
Notice of Drawdown for the entire amount of the Term Facility;
6.1.2 the proposed date for the making of such Term Advance is a
Business Day within the Term Availability Period;
6.1.3 the interest rate applicable to such Term Advance during its
first Interest Period would not fall to be determined pursuant to
Clause 9.1 (Market Disruption); and
6.1.4 on and as of the proposed date for the making of such Term
Advance (a) no Event of Default or Potential Event of Default is
continuing, (b) the representations and warranties made pursuant
to sub-clause 20.1.6 of Clause 20.1 (Representing Parties) are
true in all material respects and (c) the Agent has given a
notification pursuant to sub-clause 2.5.2 of Clause 2.5 (Initial
Conditions Precedent).
6.2 EACH TERM BANK'S PARTICIPATION IN THE TERM ADVANCE
Each Term Bank will participate through its Facility Office in the Term
Advance made pursuant to Clause 6.1 (Drawdown Conditions for the Term
Advance) in the proportion borne by its Term Commitment to the Term
Facility immediately prior to the making of the Term Advance.
6.3 REDUCTION OF TERM COMMITMENT
The undrawn Term Commitment of each Term Bank shall, at the close of
business on the last day of the Term Availability Period, be cancelled
and each Term Bank's Term Commitment shall be reduced accordingly.
7. INTEREST PERIODS FOR TERM ADVANCES
7.1 INTEREST PERIODS
The period for which a Term Advance is outstanding shall be divided into
successive periods (each an "INTEREST PERIOD") each of which (other than
the first, which shall begin on the day the Term Advance is made) shall
start on the last day of the preceding Interest Period.
7.2 DURATION
The duration of each Interest Period shall, save as otherwise provided
herein, be one, two, three or six months or such other period as the
Agent (acting on the instructions of all Term Banks) may agree, in each
case as the Post-Novation Borrower may by not less than five Business
Days' prior notice (or such shorter notice period as all the Term Banks
may agree) to the Agent select, PROVIDED THAT:
85
7.2.1 if the Post-Novation 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-clause 7.2.2 of this Clause
7.2, be one month;
7.2.2 in respect of a Term Advance which, after taking into account
other Term Advances with Interest Periods ending on or before a
given Term Repayment Date, needs to be applied in whole or in
part in a repayment of the Term Loan on such Term Repayment Date
in accordance with Clause 12.1 (Term Repayment Instalments), an
Interest Period which would otherwise end during the month
preceding, or extend beyond, that Term Repayment Date shall be of
such duration that it shall end on that Term Repayment Date.
7.3 CONSOLIDATION OF TERM ADVANCES
If two or more Interest Periods end at the same time, then, on the last
day of those Interest Periods, the Term Advances to which they relate
shall be consolidated into and treated as a single Term Advance.
7.4 DIVISION OF TERM ADVANCES
The Post-Novation Borrower may, by not less than five Business Days'
prior notice (or such shorter notice period as all the Term Banks may
agree) to the Agent, direct that a 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 Term Advances in such amounts (in aggregate, equalling the amount of
the Term Advance being so divided) as shall be specified by the
Post-Novation Borrower in such notice, PROVIDED THAT the Post-Novation
Borrower shall not be entitled to make such a direction if any Term
Advance thereby coming into existence would be of an amount less than
Pound Sterling50,000,000.
8. PAYMENT AND CALCULATION OF INTEREST ON TERM ADVANCES
8.1 PAYMENT OF INTEREST
On the last day of each Interest Period (and, if such Interest Period
exceeds six months, on the expiry of each period of six months during
such Interest Period), the Post-Novation Borrower shall pay accrued
interest on the Term Advance to which such Interest Period relates.
8.2 CALCULATION OF INTEREST
The rate of interest applicable to a Term Advance from time to time
during an Interest Period relating thereto shall be the rate per annum
which is the sum of:
(a) the Term Margin;
(b) the Mandatory Cost Rate; and
(c) LIBOR.
86
9. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
9.1 MARKET DISRUPTION
If:
9.1.1 in relation to any Advance 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 Term or Interest Period none or only one of
the Reference Banks supplies a rate for the purpose of
determining LIBOR for the relevant Term or Interest Period; or
9.1.2 in relation to a Revolving Advance, before the close of business
in London on the Quotation Date for such Advance the Agent has
been notified by a Revolving Bank or Revolving Banks to whom in
aggregate fifty per cent. or more of such Revolving Advance would
be owed if made, that the LIBOR rate does not accurately reflect
the cost of funding its participation in such Revolving Advance;
or
9.1.3 in relation to a Term Advance, before the close of business in
London on the Quotation Date for such Advance the Agent has been
notified by a Term Bank or Terms Banks to whom in aggregate fifty
per cent. or more of such Term Advance is owed, or would be owed
if made, that the LIBOR rate does not accurately reflect the cost
of funding its participation in such Term Advance,
then the Agent shall notify the Relevant Obligor, the relevant Borrower
and the Revolving Banks or, as the case may be, the Term Banks of such
event and, notwithstanding anything to the contrary in this Agreement,
Clause 9.2 (Substitute Interest Rate and Substitute Term or Interest
Period) shall apply to such Advance (if it is a Rollover Advance or a
Term Advance that is already outstanding). If any of sub-clauses 9.1.1,
9.1.2 or 9.1.3 of this Clause 9.1 applies to a proposed Advance (other
than a Rollover Advance), such Advance shall not be made or permitted.
9.2 SUBSTITUTE INTEREST RATE AND SUBSTITUTE TERM OR INTEREST PERIOD
If sub-clause 9.1.1 of Clause 9.1 (Market Disruption) applies to an
Advance, the duration of the relevant Term or Interest Period shall be
one month or, if less, such that it shall end on the earlier of the next
succeeding Additional Finance Provider Accession Date (if any), the next
succeeding Revolving Reduction Date or the Revolving Termination Date (in
the case of a Rollover Advance) or the next succeeding Term Repayment
Date (in the case of a Term Advance). If any of sub-clauses 9.1.1, 9.1.2
or 9.1.3 of Clause 9.1 (Market Disruption) applies to an Advance, the
rate of interest applicable to each Revolving Bank's or, as the case may
be, each Term Bank's portion of such Advance during the relevant Term or
Interest Period shall (subject to any agreement reached pursuant to
Clause 9.3 (Alternative Rate)) be the rate per annum which is the sum of:
9.2.1 the Revolving Margin at such time or, as the case may be, the
Term Margin;
9.2.2 the Mandatory Cost Rate; and
9.2.3 the rate per annum notified to the Agent by such Revolving Bank
or such Term Bank before the last day of such Term or Interest
Period to be that which
87
expresses as a percentage rate per annum the cost to such
Revolving Bank or Term Bank of funding from whatever sources it
may reasonably select its portion of such Advance during such
Term or Interest Period.
9.3 ALTERNATIVE RATE
If any of those events mentioned in sub-clauses 9.1.1, 9.1.2 and 9.1.3 of
Clause 9.1 (Market Disruption) occurs in relation to an Advance, then if
the Agent or the Relevant Obligor so requires, the Agent and the Relevant
Obligor 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 relevant Advances and/or (ii) upon which the
relevant Advances may be maintained (whether in sterling 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).
10. NOTIFICATION
10.1 ADVANCES
The Agent shall, promptly upon its receipt of a Notice of Drawdown,
notify each Revolving Bank or, as the case may be, each Term Bank of:
10.1.1 if applicable, the name of the Borrower;
10.1.2 the proposed amount of the relevant Advance;
10.1.3 the proposed length of the relevant Term or Interest Period; and
10.1.4 the aggregate principal amount of the relevant Advance allocated
to such Bank pursuant to Clause 3.3 (Each Revolving Bank's
Participation in Revolving Advances) or Clause 6.2 (Each Term
Bank's Participation in Term Advances).
10.2 INTEREST RATE DETERMINATION
The Agent shall promptly notify the relevant Borrower and the Revolving
Banks or, as the case may be, the Term Banks of each determination of
LIBOR, the Mandatory Cost Rate, and (in the case of the Revolving Banks)
of each determination of the Revolving Margin.
10.3 CHANGES TO ADVANCES OR INTEREST RATES
The Agent shall promptly notify the relevant Borrower and the Revolving
Banks or, as the case may be, the Term Banks of any change to (a) the
proposed length of a Term or Interest Period or (b) any interest rate
occasioned by the operation of Clause 9 (Market Disruption and
Alternative Interest Rates).
11. REPAYMENT AND REDUCTION OF THE REVOLVING FACILITY
11.1 REPAYMENT
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.
88
11.2 REDUCTION
11.2.1 The Revolving Commitments shall be reduced in instalments on each
Revolving Reduction Date by an amount equal to the amount (a
"REVOLVING REDUCTION INSTALMENT"), as set out in the table below:
------------------------------------------------------------------
REVOLVING REDUCTION DATE REVOLVING REDUCTION
INSTALMENT
(POUND STERLING)
------------------------------------------------------------------
30 June 2004 30,000,000
------------------------------------------------------------------
30 September 2004 30,000,000
------------------------------------------------------------------
31 December 2004 30,000,000
------------------------------------------------------------------
31 March 2005 100,000,000
------------------------------------------------------------------
30 June 2005 100,000,000
------------------------------------------------------------------
11.2.2 The Parent shall, to the extent necessary, procure that
sufficient Revolving Advances are repaid on a Revolving Reduction
Date to ensure that the aggregate of the outstanding Revolving
Advances (after such repayment) is equal to or less than the
reduced amount of the Total Revolving Commitments.
11.2.3 Any reduction of the Total Revolving Commitments shall reduce
proportionately the Revolving Commitment of each Revolving Bank.
11.2.4 If any Borrower cancels the whole or any part of the Revolving
Commitments in accordance with Clause 13.1 (Cancellation of the
Revolving Facility) or if the Available Revolving Commitment of
any Revolving Bank is reduced under sub-clause 13.4.4 of Clause
13.4 (Prepayment of the Term Loan), Clause 13.7 (No Further
Advances), Clause 14.7 (Application of Proceeds) or Clause 18
(Illegality) then the amount of the Revolving Reduction
Instalment for each Revolving Reduction Date falling after that
cancellation or reduction will reduce pro rata by the amount
cancelled.
12. REPAYMENT OF THE TERM FACILITY
12.1 TERM REPAYMENT INSTALMENTS
The Post-Novation Borrower shall repay the Term Loan in instalments on
each Term Repayment Date by repaying an amount equal to the percentage
(the "REPAYMENT INSTALMENT"), set opposite that Term Repayment Date in
the table below, of the Term Loan as at the close of business in London
on the last day of the Term Availability Period.
-------------------------------------------------------------------------
TERM REPAYMENT DATE REPAYMENT INSTALMENT
-------------------------------------------------------------------------
30 June 2006 2.5%
-------------------------------------------------------------------------
30 September 2006 2.5%
-------------------------------------------------------------------------
31 December 2006 5.0%
-------------------------------------------------------------------------
31 March 2007 5.0%
-------------------------------------------------------------------------
89
-------------------------------------------------------------------------
30 June 2007 5.0%
-------------------------------------------------------------------------
30 September 2007 5.0%
-------------------------------------------------------------------------
31 December 2007 5.0%
-------------------------------------------------------------------------
31 March 2008 70.0%
or, if different, the
entire unpaid balance
of the Term Loan
-------------------------------------------------------------------------
12.2 SELECTION OF TERM ADVANCES
If, in relation to a Term Repayment Date, the aggregate amount of the
Term Advances exceeds the amount of the Term Loan to be repaid, the
Post-Novation Borrower may, by not less than five Business Days' prior
notice (or such shorter notice period as all the Term Banks may agree) to
the Agent, select which of those Term Advances will be wholly or
partially repaid, PROVIDED THAT:
12.2.1 the Post-Novation Borrower may not make any such selection if, as
a result, more than one such Term Advance would fall to be
partially repaid; and
12.2.2 if the Post-Novation Borrower fails to give such notice, the
Agent shall select the Term Advances to be wholly or partially
repaid.
13. CANCELLATION AND PREPAYMENT
13.1 CANCELLATION OF THE REVOLVING FACILITY
The Relevant Obligor 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 a minimum amount of Pound Sterling 50,000,000 and an
integral multiple of Pound Sterling 10,000,000) of the Available
Revolving Facility. Any such cancellation shall reduce the Available
Revolving Commitment and Revolving Commitment of each Revolving Bank
rateably. Any amount so cancelled under this Clause 13.1 may not be
reborrowed.
13.2 PREPAYMENT OF THE REVOLVING FACILITY
Subject to the provisions of Clause 28.4 (Break Costs), a 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 a minimum amount of
Pound Sterling 50,000,000 and an integral multiple of Pound
Sterling 10,000,000).
13.3 NO CANCELLATION OF THE TERM FACILITY
The Post-Novation Borrower may not cancel the whole or any part of the
Term Facility during the Term Availability Period.
13.4 PREPAYMENT OF THE TERM LOAN
13.4.1 Subject to sub-clause 13.4.2, the Post-Novation Borrower
may, by giving to the Agent not less than five Business Days'
prior notice (or such shorter notice period as the Term Banks may
agree) to that effect, prepay the whole or any part of the Term
Loan (being a minimum amount of Pound Sterling 50,000,000 and an
90
integralmultiple of Pound Sterling10,000,000). Any prepayment so
made shall satisfy pro tanto the Post-Novation Borrower's
obligations under Clause 12.1 (Term Repayment Instalments) and
shall be applied rateably to the instalments provided for
therein.
13.4.2 If any Term Bank receives any prepayment under sub-clause 13.4.1
above, the Post-Novation Borrower shall also, in addition to any
amount payable under Clause 28.4 (Break Costs), pay to the Agent
for the account of the Term Banks the applicable Term Prepayment
Amount. No Term Prepayment Amount shall be payable in respect of
a prepayment required by the Banks (or such of the Banks as may
be relevant in accordance with Clause 43 (Amendments)) as a
condition to any consent, amendment or waiver given under the
Finance Documents.
13.4.3 Subject to this Clause 13.4 and whilst the Revolving Facility
subsists, a prepayment may only be made under the Term Facility
(a "TERM FACILITY PREPAYMENT") if a contemporaneous prepayment is
made under the Revolving Facility (a "REVOLVING FACILITY
PREPAYMENT") (in accordance with Clause 13.2 (Prepayment of the
Revolving Facility) and the amount of the Revolving Facility
Prepayment bears the same proportion to the sum of the Term
Facility Prepayment and the Revolving Facility Prepayment as the
Total Revolving Commitments bears to the Total Commitments at
that time.
13.4.4 If, on the day on which the Term Facility Prepayment and the
Revolving Facility Prepayment are due to be made, the amount of
the Revolving Facility Prepayment determined under Clause 13.4.3
exceeds the Revolving Loan, the Revolving Loan shall be prepaid
in full and the Available Revolving Facility shall be reduced by
an amount equal to the difference between the Revolving Facility
Prepayment and the Revolving Loan. Any such cancellation shall
reduce the Available Revolving Commitment and Revolving
Commitment of each Revolving Bank rateably. Any amount so prepaid
or cancelled under this Clause 13.4 may not be reborrowed.
13.5 NOTICE OF CANCELLATION OR PREPAYMENT
Any notice of cancellation or prepayment given by the Relevant Obligor or
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.
13.6 REPAYMENT OF A BANK'S SHARE OF LOAN
If:
13.6.1 any sum payable to any Bank by an Obligor is required to be
increased pursuant to Clause 15.1 (Tax Gross-up); or
13.6.2 any Bank claims indemnification from an Obligor under Clause 15.2
(Tax Indemnity), the Agent claims indemnification from an Obligor
under Clause 15.2 (Tax Indemnity) in respect of a payment
received by it and paid by it to a
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Bank under the Finance Documents, or any Bank claims
indemnification from a Borrower under Clause 17.1 (Increased
Costs),
the Relevant Obligor 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 Term or
Interest Period, 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 Term or Interest
Period relates. Any repayment of a Term Advance under this Clause 13.6
shall reduce rateably the remaining obligations of the Post-Novation
Borrower under Clause 12.1 (Term Repayment Instalments).
13.7 NO FURTHER ADVANCES
A Bank for whose account a repayment is to be made under Clause 13.6
(Repayment of a Bank's Share of Loan) shall not be obliged to participate
in the making of Advances on or after the date upon which the Agent
receives the Relevant Obligor's notice of its intention to procure the
repayment of such Bank's share of the Loan, and such Bank's Available
Commitment shall be reduced to zero.
13.8 NO OTHER REPAYMENTS
No Borrower shall repay all or any part of the Loan except at the times
and in the manner expressly provided for in this Agreement.
14. MANDATORY PREPAYMENT
14.1 MANDATORY PREPAYMENT FROM EXCESS CASH FLOW
The Parent shall ensure that within ten Business Days of delivery of the
most recent financial statements of the UK Group pursuant to Clause 21.1
(Annual Statements), commencing with the financial statements delivered
in respect of the financial year ending 31 December 2003, 50 per cent. of
Excess Cash Flow for the financial year to which such financial
statements relate is applied in cancellation and repayment of the Loan in
accordance with Clause 14.7 (Application of Proceeds).
14.2 MANDATORY PREPAYMENT FROM ASSET DISPOSALS
Prior to the Pushdown Date, the CWC Parent and the Pre-Novation Borrower
and, after the Pushdown Date, the Parent shall ensure that the net
proceeds of any disposal falling within paragraph (g)(A) of the
definition of Permitted Disposals of any asset by any member of the
Target Group or, after the Pushdown Date, any member of the UK Group, are
applied in cancellation and repayment of the Loan in accordance with
Clause 14.7 (Application of Proceeds) unless the relevant member of the
Target Group or, as the case may be, the UK Group can show to the
satisfaction of the Agent (acting reasonably) that:
14.2.1 such disposal was on arms' length terms and the net proceeds are
to be reinvested in similar or like assets of a comparable or
superior quality or applied towards the Target Group's or, as the
case may be (after the Pushdown Date), the UK Group's Capital
Expenditure within a period of 365 days from the date of receipt
of such proceeds by the relevant member of the Target Group or,
as the case may be, the UK Group; or
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14.2.2 such disposal was on arms' length terms and in the ordinary and
usual course of business of such member of the Target Group or,
as the case may be, the UK Group; or
14.2.3 the net disposal proceeds, when aggregated with the net disposal
proceeds received by members of the Target Group and, after the
Pushdown Date, the UK Group in respect of disposals falling
within paragraph (g)(A) of the definition of Permitted Disposals
made in the immediately preceding twelve calendar month period
(excluding the proceeds from disposals falling within sub-clauses
14.2.1 or 14.2.2 above), does not exceed Pound Sterling10,000,000
or its equivalent.
In the case of sub-clause 14.2.1 only, the net disposal proceeds referred
to therein will be deposited in the Prepayment Escrow Account and the
relevant member of the Target Group or, as the case may be, the UK Group
shall be entitled, during the 365 day period, to withdraw (or, as the
case may be, require the Parent, the CWC Parent or the Pre-Novation
Borrower to withdraw) sums from such account only to the extent that it
is able reasonably to demonstrate that such sums will be reinvested or
applied in accordance with the provisions of sub-clause 14.2.1. Any
amounts not reinvested as specified in sub-clause 14.2.1 during the 365
day period specified therein shall thereafter be applied in repayment of
the Loan in accordance with Clause 14.7 (Application of Proceeds).
14.3 MANDATORY PREPAYMENT FROM INSURANCE PROCEEDS
Prior to the Pushdown Date, the CWC Parent and the Pre-Novation Borrower
and, after the Pushdown Date, the Parent shall ensure that Insurance
Proceeds received by any member of the Target Group or, after the
Pushdown Date, any member of the UK Group, above an aggregate minimum
threshold of Insurance Proceeds of Pound Sterling10,000,000 (the "MINIMUM
THRESHOLD"), are paid to the Agent and applied in repayment of the Loan
in accordance with Clause 14.7 (Application of Proceeds), unless the
Insurance Proceeds received above the Minimum Threshold are:
14.3.1 promptly upon receipt deposited in the Prepayment Escrow Account
in accordance with the provisions of Clause 14.4 (Payment of
Insurance Proceeds into Escrow Account); and
14.3.2 applied, to the satisfaction of the Agent, towards the
replacement, reinstatement and/or repair of the assets and/or the
satisfaction of business interruption losses in respect of which
the relevant insurance claim was made (or to refinance any
expenditure incurred in the replacement, reinstatement and/or
repair of such assets and/or the satisfaction of business
interruption losses) within a period of 365 days from the date of
receipt of such Insurance Proceeds by the relevant member of the
Target Group or, as the case may be, the UK Group.
14.4 PAYMENT OF INSURANCE PROCEEDS INTO PREPAYMENT ESCROW ACCOUNT Prior to the
Pushdown Date, the CWC Parent and the Pre-Novation Borrower and, after
the Pushdown Date, the Parent shall ensure that any Insurance Proceeds to
be applied in accordance with sub-clause 14.3.2 of Clause 14.3 (Mandatory
Prepayment from Insurance Proceeds) are deposited in the Prepayment
Escrow Account. The relevant member of the Target Group or, as the case
may be, the UK Group that received the
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Insurance Proceeds shall be entitled, during the period of 365 days from
its receipt of the Insurance Proceeds, to withdraw sums from the
Prepayment Escrow Account only to the extent that it is able to
reasonably demonstrate that such sums will be applied towards the
replacement, reinstatement and/or repair of the assets and/or the
satisfaction of business interruption losses in respect of which the
relevant insurance claim was made (or to refinance any expenditure
incurred in the replacement, reinstatement and/or repair of such assets
and/or the satisfaction of business interruption losses). 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 14.7
(Application of Proceeds).
14.5 MANDATORY PREPAYMENT FROM DEBT AND EQUITY
Sub-clause 23.22.3 of Clause 23.22 (Mandatory Contribution) obliges NTL
CC to ensure that 75 per cent. of the aggregate amount of the net cash
proceeds of any equity or Financial Indebtedness raised by any member of
the Covenant Group after 31 December 2003 (other than the proceeds of
relevant Excluded Contributions) is contributed to the members of the UK
Group (other than the Parent). NTL CC shall ensure that 50 per cent. of
the aggregate amount of the net cash proceeds of any equity or Financial
Indebtedness raised by members of the Covenant Group at any time after 31
December 2003 (other than the proceeds of relevant Excluded
Contributions), (such an amount being 662/3 per cent. of the amount
contributed to the UK Group (other than the Parent) in accordance with
sub-clause 23.22.3 of Clause 23.22 (Mandatory Contribution)) is deposited
in the Prepayment Escrow Account and applied in cancellation and
repayment of the Loan in accordance with Clause 14.7 (Application of
Proceeds).
14.6 MANDATORY PREPAYMENT FROM FORCED DRAW PROCEEDS
Upon its receipt of a notice from the Working Capital Facility Agent,
specifying that a Forced Draw is required to be made under the Working
Capital Facility, the Parent will promptly provide a copy of such a
notice to the Agent. If such a Forced Draw is to be made on or after the
Pushdown Date and if required by an Instructing Group:
14.6.1 the Agent shall notify the Parent that the Banks require all (or
such lesser amount as specified by an Instructing Group) of the
proceeds of that Forced Draw to be deposited in the Prepayment
Escrow Account and applied in repayment of the Loan in accordance
with Clause 14.7 (Application of Proceeds);
14.6.2 the Parent shall, upon receipt of the proceeds of that Forced
Draw and to the extent specified in the notice received by it
pursuant to sub-clause 14.6.1 above, deposit such proceeds in the
Prepayment Escrow Account for application in repayment of the
Loan in accordance with Clause 14.7 (Application of Proceeds);
and
14.6.3 if the Agent requires it to do so, the Parent shall direct the
Working Capital Facility Agent to pay the relevant amount of the
proceeds of that Forced Draw directly to the Agent.
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14.7 APPLICATION OF PROCEEDS
14.7.1 Any amounts paid to the Agent in accordance with Clause 14.1
(Mandatory Prepayment from Excess Cash Flow) to Clause 14.6
(Mandatory Prepayment from Forced Draw Proceeds) (each, a
"RELEVANT AMOUNT") shall:
(a) be retained in the Prepayment Escrow Account pending any
withdrawal permitted by any of those Clauses; and
(b) if no such right of withdrawal is available, if it has
ceased to be available or if the Relevant Obligor so
instructs the Agent, be retained in the Prepayment Escrow
Account for application on one or more Repayment Dates, or
as the case may be, the last day of one or more Interest
Periods, until such time as such amounts have been applied
in full in repayment of the Loan in accordance with this
Clause 14.7.
14.7.2 Any Relevant Amounts shall, when required to be applied in
repayment of the Loan in accordance with this Clause 14.7 (and
then on the dates indicated in sub-clause 14.7.1 above), be
applied as follows:
(a) in prepayment and cancellation of the Revolving Loan by that
portion of the Relevant Amount equal to the proportion which
the Total Revolving Commitments bear to the Total
Commitments (such portion of the Relevant Amount being
hereinafter referred to as the "REVOLVING RELEVANT AMOUNT")
PROVIDED THAT the Parent may, if this would not give rise to
an obligation under the terms of any indebtedness of any
member of the Group to apply any such amount in repayment
of, or to the offer to repurchase, such indebtedness (a
"MANDATORY REPURCHASE OBLIGATION"), apply an amount equal to
the amount by which the Revolving Relevant Amount exceeds
the Revolving Loan in payment to the relevant member of the
UK Group (with a corresponding cancellation of the Available
Revolving Facility in an amount equal to the amount of such
payment), and for these purposes, if not to do so would give
rise to a Mandatory Repurchase Obligation, the Parent shall
ensure that on the date on which the Revolving Relevant
Amount is due to be applied in accordance with this
sub-clause 14.7.2, the amount of the Revolving Loan shall be
at least equal to the Relevant Revolving Amount; and
(b) in prepayment of the Term Loan by that portion of the
Relevant Amount equal to the proportion which the Total Term
Commitments bears to the Total Commitments.
14.7.3 (i) Unless this would give rise to a Mandatory Repurchase
Obligation, a Term Bank may, at its option, elect to waive
receipt of its portion of a Relevant Amount, in which case
such amount shall be applied to reduce the Revolving Loan in
accordance with paragraph (a) of sub-clause 14.7.2.
(ii) Any prepayment of the Term Loan made pursuant to this
Clause 14.7 shall satisfy pro tanto the Post-Novation
Borrower's obligations under Clause
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12.1 (Term Repayment Instalments) and shall be applied
rateably to the instalments provided for therein.
14.7.4 Any amount of the Loan repaid in accordance with this Clause 14.7
may not be reborrowed. Any cancellation of the Available
Revolving Facility in accordance with this Clause 14.7 shall
reduce the Revolving Commitment of each Revolving Bank rateably
and the amount so cancelled may not be reborrowed.
14.8 MANDATORY PREPAYMENT DUE TO CHANGE IN CONTROL
14.8.1 If after the date hereof:
(a) any person, or group of connected persons, (which does not
have control at the date hereof) acquires control of NTL
Holdings;
(b) the Parent ceases to be (directly or indirectly) a
wholly-owned subsidiary of NTL Holdings; or
(c) either CWC Holdings and/or the Pre-Novation Borrower ceases
to be a wholly-owned subsidiary of NTL Holdings other than:
(i) pursuant to the implementation of the Pushdown; or
(ii) where NTL Holdings' ownership in CWC Holdings is
reduced by no more than 1 per cent. of CWC Holdings'
issued share capital as a result of a Permitted
Issuance,
then the Parent and, prior to the Pushdown Date, the CWC Parent
and the Pre-Novation Borrower shall procure the immediate
repayment of the Loan in full (together with accrued interest
thereon and any other sums then owed by the Borrowers hereunder)
and the Available Commitment of each Bank shall immediately be
cancelled and reduced to zero.
14.8.2 For the purpose of this Clause 14.8:
"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 NTL Holdings; or
(ii) appoint or remove all, or the majority, of the
directors or other equivalent officers of NTL
Holdings; or
(iii) give directions with respect to the operating and
financial policies of NTL Holdings which the directors
or other equivalent officers of NTL Holdings are
obliged to comply with; or
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(b) the holding of more than one-half of the issued share
capital of NTL Holdings (excluding any part of that issued
share capital that carries no voting rights).
"GROUP OF CONNECTED PERSONS" 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 NTL Holdings to
obtain or consolidate control of NTL Holdings.
14.8.3 This Clause 14.8 will not apply, and the Available Commitments
will not be cancelled, and the Loan will not become due and
payable in the event that:
(a) France Telecom S.A. or any of its affiliates acquires
control of NTL Holdings; or
(b) any company acquires control of NTL Holdings as part of a
solvent reorganisation of the Group on terms approved by the
Agent (acting on the instructions of an Instructing Group).
14.9 MANDATORY PREPAYMENT DUE TO PUSHDOWN DATE
Notwithstanding any other provision of this Agreement, if the Pushdown
Date has not occurred on or prior to 20 July 2001 the Parent shall
procure that the Loan is repaid in full (together with accrued interest
thereon and any other sums then owed by the Borrowers hereunder), on the
first Business Day after 20 July 2001, and the Available Commitment of
each Bank shall immediately be cancelled and reduced to zero.
15. TAXES
15.1 TAX GROSS-UP
All payments to be made by an Obligor to any Finance Party 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 by law 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 15.4
(Excluded Claims), be increased to the extent necessary to ensure that
such Finance Party 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), 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) 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 such Finance Party, 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 relevant Obligor
shall, within five Business Days of demand by the Agent, promptly
indemnify the Agent or
97
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 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
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 for the avoidance of doubt, any tax imposed on a Bank which would
not have arisen but for the sub-participation of its rights and
benefits under any of 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 Relevant Obligor and the Borrowers thereof. If
the Agent intends to make a claim pursuant to Clause 15.2 (Tax Indemnity)
it shall notify the Relevant Obligor and the Borrowers of the event
giving rise to the claim.
15.4 EXCLUDED CLAIMS
If any Finance Party is not or ceases to be a Qualifying Lender, no
Obligor shall be liable to pay to that Finance Party 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 Finance Party 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 Finance Party ceases to be a Qualifying Lender; or
15.4.2 such Finance Party is not or ceases to be a Qualifying Lender as
a result of the actions of any Obligor.
15.5 TREATY LENDERS
A Treaty Lender and each Obligor which makes a payment to which that
Treaty Lender is entitled shall co-operate in completing any procedural
formalities necessary for that
98
Obligor to obtain authorisation to make that payment without a deduction
or withholding for or on account of tax. If an Obligor is able to
demonstrate that a deduction or withholding for or on account of tax is
required to be made by it as a result of a Treaty Lender's failure to so
co-operate, such an Obligor shall not be liable to pay any increased
amount under Clause 15.1 (Tax Gross-Up) as a result of such a deduction
or withholding.
15.6 NOTIFICATION OF STATUS
Each Bank shall notify the Agent if it is not a Qualifying Lender at the
time it becomes a Bank hereunder or, if it is then a Qualifying Lender,
shall promptly notify the Agent if at any time thereafter it ceases to be
a Qualifying Lender. The Agent shall promptly notify the Relevant Obligor
of any notices it receives under this Clause 15.6 and if it ceases to be
a Qualifying Lender.
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), such Obligor 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 promptly notify the Relevant
Obligor and the Obligor who is required to make such a deduction or
withholding.
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 relevant 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 any Finance Party and such Finance Party, 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 such Finance Party, in its
sole opinion, determines that such credit, relief, remission or repayment
is in respect of or calculated with reference to or otherwise relates to
the additional payment made pursuant to Clause 15 (Taxes), such Finance
Party 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 such Finance Party shall, in its sole
opinion, determine to be the amount which will leave such Finance Party
(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 any Finance Party makes any payment to an Obligor pursuant to Clause
16.3 (Tax Credit Payment) and such Finance Party 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 such Finance Party such
amount as such Finance Party 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 such Finance Party.
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 hereof, 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 Borrower(s) of the relevant Facility (acting through the
Relevant Obligor) 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 of 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 Relevant Obligor thereof.
17.3 EXCLUSIONS
Notwithstanding the foregoing provisions of this Clause 17, no Bank shall
be entitled to make any claim under this Clause 17 in respect of any
reduction in the rate of return on capital, cost or increased cost:
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 15.5
(Treaty Lenders));
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));
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 Relevant Obligor 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 Commitment
shall be immediately reduced to zero; and
18.1.2 if the Agent on behalf of such Bank so requires, each Borrower
which has drawn an Advance shall no later than the last day
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 any
repayment of Term Advances so made shall reduce rateably the
remaining obligations of the Post-Novation Borrower under Clause
12.1 (Term Repayment Instalments).
19. MITIGATION
If, in respect of any Bank, circumstances arise which would or would upon
the giving of notice result in:
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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 Commitment to zero or any
repayment 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 or the Relevant
Obligor under any of the Clauses referred to above, such Bank shall
promptly upon becoming aware of such circumstances notify the Agent
thereof and, in consultation with the Agent and the Relevant Obligor 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 Relevant Obligor and
willing to participate in any Facility in which such Bank has
participated) 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
20.1 REPRESENTING PARTIES
20.1.1 Each Obligor makes the representations and warranties set out in
Clause 20.2 (Status and Due Authorisation) to Clause 20.10 (No
Material Proceedings), Clause 20.13 (No Material Adverse Change),
Clause 20.17 (Environmental Compliance) to Clause 20.21
(Execution of this Agreement) and Clause 20.23 (Licences and
Consents) to Clause 20.26 (Security Interest) with respect to
itself.
20.1.2 Each of the Pre-Novation Borrower and, on and after the date on
which it becomes a party hereto, the CWC Parent, makes the
representations and warranties set out in Clause 20.2 (Status and
Due Authorisation) to Clause 20.11 (Audited Financial
Statements), Clause 20.13 (No Material Adverse Change), Clause
20.14 (Full Disclosure), Clause 20.17 (Environmental Compliance)
to Clause 20.21 (Execution of this Agreement), Clause 20.23
(Licences and Consents) to Clause 20.26 (Security Interest),
Clause 20.28 (Scheme Information) and Clause 20.30 (Existing
Target Indebtedness) with respect to itself.
20.1.3 The Pre-Novation Borrower on and after the Acquisition Date and,
on and after the date on which it becomes a party hereto, the CWC
Parent, makes the representations and warranties set out in
Clause 20.8 (No Winding Up) to Clause 20.10 (No Material
Proceedings), Clause 20.17 (Environmental Compliance) to Clause
20.20 (No Loans), Clause 20.23 (Licences and Consents) to Clause
20.26 (Security Interest) and Clause 20.28 (Scheme
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Information) to Clause 20.30 (Existing Target Indebtedness) with
respect to each member of the Target Group.
In addition, the Pre-Novation Borrower makes the representations
and warranties set out in Clause 20.12 (Original Financial
Statements) and Clause 20.13 (No Material Adverse Change) with
respect to each member of the Target Group and makes the
representations and warranties set out in sub-clause 20.15.3 of
Clause 20.15 (Business Plan and Information Memorandum) and
Clause 20.32 (Initial Guarantors).
20.1.4 The Parent makes the representations and warranties set out in:
(a) Clause 20.2 (Status and Due Authorisation) to Clause 20.11
(Audited Financial Statements), Clause 20.13 (No Material
Adverse Change) to Clause 20.26 (Security Interest), Clause
20.27 (Group Structure), Clause 20.28 (Scheme Information)
and Clause 20.31 (Existing Group Indebtedness) in respect of
itself; and
(b) Clause 20.8 (Winding Up) to Clause 20.10 (No Material
Proceedings), Clause 20.17 (Environmental Compliance) to
Clause 20.20 (No Loans) and Clause 20.23 (Licences and
Consents) to Clause 20.27 (Group Structure) with respect to
each member of the UK Group.
20.1.5 NTL CC makes the representations and warranties set out in Clause
20.2 (Status and Due Authorisation), Clause 20.5 (Validity and
Admissibility in Evidence) to Clause 20.8 (No Winding-Up) and
Clause 20.21 (Execution of this Agreement) with respect to itself
and Clause 20.31 (Existing Group Indebtedness) with respect to
NTL UK only.
20.1.6 Without prejudice to any other terms of this Agreement, on the
Term Effective Date:
(a) each Obligor (other than the Post-Novation Borrower) makes
the representations and warranties set out in Clause 20.2
(Status and Due Authorisation) to Clause 20.10 (No Material
Proceedings), Clause 20.13 (No Material Adverse Change),
Clause 20.17 (Environmental Compliance) to Clause 20.21
(Execution of this Agreement) and Clause 20.23 (Licences and
Consents) to Clause 20.26 (Security Interest) with respect
to itself;
(b) the Post-Novation Borrower makes the representations and
warranties set out in Clause 20.2 (Status and Due
Authorisation) to Clause 20.10 (No Material Proceedings),
Clause 20.13 (No Material Adverse Change), Clause 20.14.2
(Full Disclosure), Clause 20.17 (Environmental Compliance)
to Clause 20.21 (Execution of this Agreement), Clause 20.23
(Licences and Consents) to Clause 20.27(i) (Group Structure)
and Clause 20.34 (NTL Inc. Business Plan) to Clause 20.38
(Principal Properties) with respect to itself and Clause
20.31 (Existing Group Indebtedness) and Clause 20.33 (UK
Group Financial Statements);
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(c) the Parent makes the representations and warranties set out
in:
(i) Clause 20.2 (Status and Due Authorisation) to Clause
20.11 (Audited Financial Statements), Clause 20.13 (No
Material Adverse Change), Clause 20.14.2 (Full
Disclosure), Clause 20.16 (Budgets) to Clause 20.27(i)
(Group Structures), Clause 20.31 (Existing Group
Indebtedness) and Clause 20.33 (UK Group Financial
Statements) to Clause 20.38 (Principal Properties) with
respect to itself; and
(ii) Clause 20.8 (Winding Up) to Clause 20.10 (No Material
Proceedings), Clause 20.17 (Environmental Compliance)
to Clause 20.20 (No Loans) and Clause 20.23 (Licences
and Consents) to Clause 20.27(i) (Group Structures)
with respect to each member of the UK Group; and
(d) NTL CC makes the representations and warranties set out in
Clause 20.2 (Status and Due Authorisation), Clause 20.5
(Validity and Admissibility in Evidence) to Clause 20.7
(Binding Obligations), Clause 20.21 (Execution of this
Agreement) and Clause 20.31 (Existing Group Indebtedness)
with respect to itself.
20.1.7 Without prejudice to any other terms of this Agreement, on each
Additional Finance Provider Accession Date:
(a) each Obligor (other than the Post-Novation Borrower) makes
the representations and warranties set out in Clause 20.2
(Status and Due Authorisation) to Clause 20.10 (No Material
Proceedings), Clause 20.13 (No Material Adverse Change),
Clause 20.17 (Environmental Compliance) to Clause 20.21
(Execution of this Agreement) and Clause 20.23 (Licences and
Consents) to Clause 20.26 (Security Interest) with respect
to itself;
(b) the Post-Novation Borrower makes the representations and
warranties set out in Clause 20.2 (Status and Due
Authorisation) to Clause 20.10 (No Material Proceedings),
Clause 20.13 (No Material Adverse Change), Clause 20.14.3
(Full Disclosure), Clause 20.17 (Environmental Compliance)
to Clause 20.21 (Execution of this Agreement), Clause 20.23
(Licences and Consents) to Clause 20.26 (Security Interest),
Clause 20.31 (Existing Group Indebtedness) and Clause 20.35
(No Default);
(c) the Parent makes the representations and warranties set out
in:
(i) Clause 20.2 (Status and Due Authorisation) to Clause
20.11 (Audited Financial Statements), Clause 20.13 (No
Material Adverse Change), Clause 20.14.3 (Full
Disclosure), Clause 20.16 (Budgets) to Clause 20.26
(Security Interest), Clause 20.31 (Existing Group
Indebtedness) and Clause 20.35 (No Default) with
respect to itself; and
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(ii) Clause 20.8 (Winding Up) to Clause 20.10 (No Material
Proceedings), Clause 20.17 (Environmental Compliance)
to Clause 20.20 (No Loans) and Clause 20.23 (Licences
and Consents) to Clause 20.26 (Security Interest) with
respect to each member of the UK Group; and
(d) NTL CC makes the representations and warranties set out in
Clause 20.2 (Status and Due Authorisation), Clause 20.5
(Validity and Admissibility in Evidence) to Clause 20.7
(Binding Obligations), Clause 20.21 (Execution of this
Agreement) and Clause 20.31 (Existing Group Indebtedness)
with respect to itself.
20.1.8 Each of the Parent, the CWC Parent, NTL CC and each Obligor
acknowledges that the Finance Parties have entered into the
Finance Documents in reliance on those representations and
warranties.
20.2 STATUS AND DUE AUTHORISATION
It is duly organised under the laws of the jurisdiction in which it is
established or incorporated with power to enter into each of the Finance
Documents to which it is a party and to exercise its rights and perform
its obligations thereunder and all corporate and other action required to
authorise its execution of each of the Finance Documents to which it is a
party and its 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.
20.3 NO DEDUCTIONS OR WITHHOLDING
Under the laws of the jurisdiction in which it is established or
incorporated in force at the date hereof, it will not be required to make
any deduction or withholding from any payment it may make under any
Finance Document to any Bank which is a Qualifying Lender (assuming in
the case of a Treaty Lender, that it has secured a direction from the UK
Inland Revenue to pay interest gross).
20.4 NO IMMUNITY
In any proceedings taken in the jurisdiction in which it is incorporated
or established in relation to any Finance Document to which it is party,
it is not entitled to claim for itself or any of its assets immunity from
suit, execution, attachment or other legal process.
20.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All acts, conditions and things required to be done, fulfilled and
performed in order:
20.5.1 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 each of the Finance Documents to which it is
party;
20.5.2 to ensure that the obligations expressed to be assumed by it in
each such Finance Document are legal, valid and (subject to the
Reservations) binding and enforceable; and
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20.5.3 (subject to the Reservations) to make each such Finance Document
admissible in evidence in England,
have been done, fulfilled and performed, other than (a) the registration
of the Encumbrances created by the Security Documents (and, in the case
of the representations and warranties made pursuant to Clause 20.1.6, the
Second Security Documents) with the Registrar of Companies under Sections
395 and 398 of the Companies ▇▇▇ ▇▇▇▇, and in respect of the Principal
Properties and any other properties subject to the Security and Second
Security situated in England and Wales, under Section 2 of the Land
Charges ▇▇▇ ▇▇▇▇ and Section 26 of the Land Registration ▇▇▇ ▇▇▇▇, in
respect of the Principal Properties and any other properties subject to
the Security and Second Security situated in Scotland, in the Land
Register of Scotland or the General Register of Sasines and in respect of
the Principal Properties and any other properties subject to the Security
and Second Security situated in Northern Ireland in the Land Registry of
Northern Ireland or the Registry of Deeds in Belfast or any similar
registrations required in any applicable jurisdiction, (b) the giving of
any notices in respect of any contracts being assigned pursuant to the
Security Documents (and, in the case of the representations and
warranties made pursuant to Clause 20.1.6, the Second Security Documents)
and (c) the obtaining of any consents referred to in Clause 23.15
(Consents and Properties).
20.6 NO FILING OR STAMP TAXES
Under the laws of the jurisdiction in which it is incorporated or
established in force at the date hereof, it is not necessary that any of
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 any
Finance Document other than the entries in public registries referred to
in Clause 20.5 (Validity and Admissibility in Evidence) and fixed duties
on assignments by way of security.
20.7 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document to
which it is expressed to be 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.
20.8 NO WINDING-UP
No Obligor, no member of the UK Group or (as the case may be) no member
of the Target Group, has taken any corporate action nor have any other
steps been taken or legal proceedings been started and served or (to the
best of its knowledge and belief) threatened against any Obligor, any
member of the UK Group or (as the case may be) any member of the Target
Group, for its winding-up, dissolution, administration or re-organisation
or for the appointment of a receiver, administrator, administrative
receiver, trustee or similar officer of it or of any or all of its assets
or revenues (other than for the purpose of a solvent reconstruction or
amalgamation of such Obligor, such member of the UK Group or (as the case
may be) such member of the Target Group (where such would not cause any
breach of this Agreement) or for the purpose of the transfer of all or
part of the business and assets of any Obligor, any member of the UK
Group or (as the case may be) any member of the Target Group to any other
Obligor, member of the UK Group or (as the case may be) member of the
Target Group respectively (provided that such transfer is permitted under
the terms of this Agreement)) and (save in the case of
106
any action, steps or proceedings relating to the appointment of an
administrator) other than where the relevant action, steps or proceedings
are frivolous or vexatious or being contested in good faith by
appropriate legal action and such action, steps or proceedings are
discontinued (in any such case) within 30 days of commencement.
20.9 NO MATERIAL DEFAULTS
No Obligor, no member of the UK Group or (as the case may be) no member
of the Target Group, is in breach of or in default under any agreement to
which it is a party (including, without limitation, the Material
Commercial Contracts) or which is binding on it or any of its assets and
no party has terminated or is entitled to terminate (on the basis of any
breach of or default thereunder) any such agreement, to an extent or in a
manner which could reasonably be expected to have a Material Adverse
Effect.
20.10 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 any of its assets.
20.11 AUDITED FINANCIAL STATEMENTS
Its most recent consolidated audited financial statements (if any),
excluding for the purposes of this Clause 20.11, the Original Financial
Statements in relation to the Target:
20.11.1 were prepared in accordance with accounting principles generally
accepted in its jurisdiction of incorporation and consistently
applied;
20.11.2 disclose, in the case of the audited financial statements of the
Pre-Novation Borrower, all material liabilities (contingent or
otherwise) and all material unrealised or anticipated losses of
the Pre-Novation Borrower and its consolidated subsidiaries, and
in all other cases, all material liabilities (contingent or
otherwise) and all material unrealised or anticipated losses of
any member of the UK Group or, as the case may be, any member of
the Target Group; and
20.11.3 save as disclosed therein, give a true and fair view of the
financial condition and operations of, as the case may be, the
Pre-Novation Borrower and its consolidated subsidiaries, the UK
Group or, as the case may be, the Target Group during the
relevant financial year.
20.12 ORIGINAL FINANCIAL STATEMENTS
Save as disclosed in the Disclosure Letter, the financial statements of
the Target referred to in paragraph (c) of the definition of Original
Financial Statements, to the best of its knowledge and belief:
20.12.1 were prepared in accordance with accounting principles generally
accepted in England and Wales and consistently applied;
20.12.2 disclose all material liabilities (contingent or otherwise) and
all material unrealised or anticipated losses of the Target and
the CWC ConsumerCo Business; and
107
20.12.3 save as disclosed therein, give a true and fair view of the
financial condition and operations of the Target and the CWC
ConsumerCo Business during the period to which such financial
statements relate.
20.13 NO MATERIAL ADVERSE CHANGE
Since the date as at which its most recent audited financial statements
(where required by Clause 21.1 (Annual Statements), consolidated, in the
case of the Parent and the CWC Parent) were stated to be prepared, there
has been no change in its business or financial condition or, in the case
of the Parent, in the business or financial condition of any member of
the UK Group or of the UK Group taken as a whole or, in the case of the
CWC Parent, in the business or financial condition of any member of the
Target Group or of the Target Group taken as a whole which, in each case,
could reasonably be expected to have a Material Adverse Effect.
20.14 FULL DISCLOSURE
20.14.1 It is not aware of any material facts or circumstances that have
not been disclosed to the Finance Parties originally party hereto
and which would, in its reasonable opinion, if disclosed,
adversely affect the decision of a person considering whether or
not to provide finance for the purposes set out in Clauses 2.2
(Purpose prior to Pushdown) and 2.3 (Purpose after Pushdown) on
the terms of the Finance Documents.
20.14.2 In the case of the representations and warranties made pursuant
to Clause 20.1.6, it is not aware of any material facts or
circumstances that have not been disclosed to the Term Banks
party hereto on the Term Execution Date and which would, in its
reasonable opinion, if disclosed, adversely affect the decision
of a person considering whether or not to provide finance for the
purposes set out in sub-clause 2.3.2 of Clause 2.3 (Purpose after
Pushdown) on the terms of the Finance Documents.
20.14.3 In relation to each Additional Finance Provider:
(a) with respect to the representations and warranties made
pursuant to Clause 20.1.7, it is not aware of any material
facts or circumstances that have not been disclosed to each
Additional Finance Provider on the Additional Finance
Provider Accession Date relating to that Additional Finance
Provider and which would, in its reasonable opinion, if
disclosed, adversely affect the decision of a person
considering whether or not to provide finance for the
purposes set out in sub-clause 2.3.1 of Clause 2.3 (Purpose
after Pushdown) on the terms of the Finance Documents; and
(b) the Additional Finance Provider has been provided, prior to
the Additional Finance Provider Accession Date on which it
became a party to this Agreement, with a true and complete
copy or conformed copy of each Finance Document (other than
the fee letters mentioned in Clause 26.6 (Agency and Other
Fees), any Secured Hedging Agreement, the Second Security
Documents, the Second Security Trust Agreement, the NTL UK
Term Bank Subordination Agreement, any documents which are
no longer of relevance or which amended this Agreement
solely for the purpose of
108
syndicating the Revolving Facility or have been reflected in
restatements of documents which have been provided).
20.15 BUSINESS PLAN AND INFORMATION MEMORANDUM
The Parent:
20.15.1 does not regard any of the forecasts or projections set out in
the Business Plan as unreasonable or, to any material extent,
unattainable;
20.15.2 considers (having made all reasonable enquiries) the assumptions
upon which the forecasts and projections contained in the
Business Plan are based to be fair and reasonable in all material
respects; and
20.15.3 confirms that the factual information contained in the
Information Memorandum and any other factual written information
supplied by any member of the UK Group or any member of the
Target Group (in the latter case, supplied after the Acquisition
Date or, if supplied before the Acquisition Date, supplied with
the Parent's knowledge) to the Agent, the Arrangers and the Banks
in connection herewith is (in the case of any such information
supplied by any member of the Target Group, to the best of its
knowledge and belief) true, complete and accurate in all material
respects.
20.16 BUDGETS
It:
20.16.1 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 21.5 (Budgets);
20.16.2 believes (having made all reasonable enquiries) the assumptions,
upon which the forecasts and projections in relation to the CWC
ConsumerCo Business contained in the latest Budget delivered
under Clause 21.5 (Budgets) are based, to be fair and reasonable;
and
20.16.3 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 CWC ConsumerCo
Business to all the persons responsible for the preparing of the
latest Budget delivered under Clause 21.5 (Budgets).
20.17 ENVIRONMENTAL COMPLIANCE
The Pre-Novation Borrower, each member of the UK Group and (to the best
of its knowledge and belief) each member of the Target 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.
20.18 ENVIRONMENTAL CLAIMS
No Environmental Claim has been commenced or (to the best of its
knowledge and belief) is threatened against the Pre-Novation Borrower,
any member of the UK Group or any member of the Target Group where such
claim would be reasonably likely, if
109
determined against the Pre-Novation Borrower or such other member of the
UK Group or the Target Group, to have a Material Adverse Effect.
20.19 NO ENCUMBRANCES
Save (in each case) for Permitted Encumbrances, no Encumbrance exists
over all or any of its present or future revenues or assets and, in the
case of the Parent, over all or any of the present or future revenues or
assets of any other member of the UK Group and, in the case of the
Pre-Novation Borrower and the CWC Parent, over all or any of the present
or future revenues or assets of any other member of the Target Group.
20.20 NO LOANS
Save (in each case) for Permitted Loans and Guarantees, neither the
Pre-Novation Borrower, any member of the UK Group nor (to the best of its
knowledge and belief) any member of the Target Group has made any loans
or granted any credit or other financial accommodation which is or are
outstanding.
20.21 EXECUTION OF THIS AGREEMENT
Its execution of each Finance Document to which it is a party, the
exercise of its rights and the performance of its obligations thereunder
do not and will not:
20.21.1 conflict with any agreement, mortgage, bond or other instrument
or treaty to which it is 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;
20.21.2 conflict with its constitutive documents and rules and
regulations; or
20.21.3 conflict with any applicable law.
20.22 OWNERSHIP OF THE PARENT
The Parent is a wholly-owned subsidiary of NTL Holdings, and no persons
or group of connected persons (as construed in accordance with Clause
14.8 (Mandatory Prepayment due to Change in Control)) has control (as
construed in accordance with Clause 14.8 (Mandatory Prepayment due to
Change in Control)) of NTL Holdings.
20.23 LICENCES AND CONSENTS
It and, in the case of the Parent, each member of the UK Group and, in
the case of the Pre-Novation Borrower and the CWC Parent, each member of
the Target Group has, at all relevant times, obtained all material
licences (including, without limitation, the Licences), permissions,
authorisations and consents (each an "APPROVAL") required for the conduct
of its business as carried on from time to time, and all such approvals
are valid and subsisting save in any such case where failure to obtain
such an approval or the invalidity of such an approval or its failure to
subsist could not reasonably be expected to have a Material Adverse
Effect and to the best of its knowledge and belief (having made, with
respect to the UK Group only, due and careful enquiry) there has been no
act or omission on the part of it or, as the case may be, any Target
Group member or any UK Group member, which is likely to give rise to the
enforcement, revocation, material amendment, suspension, withdrawal or
avoidance of any of the approvals or any of the material terms or
conditions thereof, which enforcement, revocation, amendment, withdrawal,
suspension or avoidance could reasonably be expected to have a Material
Adverse Effect.
110
20.24 GOVERNMENT OR REGULATORY AUTHORITY INQUIRY
Neither it nor, in the case of the Parent, any member of the UK Group
nor, in the case of the Pre-Novation Borrower and the CWC Parent, any
member of the Target Group, has to the best of its knowledge and belief
(having made with respect to the UK Group only, due and careful enquiry)
received any notice or communication which has not been disclosed to the
Agent on or prior to the date hereof (or, where this representation and
warranty is made pursuant to Clause 20.1.6, to the Term Banks on or prior
to the Term Execution Date) from, or is aware of, any inquiry,
investigation or proceeding on the part of any government, court or
regulatory agency or authority the effect of which, in any such case,
could reasonably be expected to have a Material Adverse Effect.
20.25 INTELLECTUAL PROPERTY
It is not aware of any adverse circumstance relating to the validity,
subsistence or use of any of its and, in the case of the Pre-Novation
Borrower and the CWC Parent, any member of the Target Group's and, in the
case of the Parent, any member of the UK Group's Intellectual Property
which could reasonably be expected to have a Material Adverse Effect.
20.26 SECURITY INTEREST
20.26.1 Subject (in each case) to the Reservations, each Security
Document and Second Security Document creates the security
interest which that Security Document or Second Security Document
purports to create or, if that Security Document or Second
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 (save in
respect of, if and to the extent applicable, Permitted
Encumbrances) as specified in the Security Document creating or
evidencing that interest.
20.26.2 Save as disclosed in the Disclosure Letter, the shares of any UK
Group or Target Group member which are subject to an Encumbrance
under the Security Documents and Second Security Documents are
fully paid and not subject to any option to purchase or similar
rights and the constitutional documents of any such UK Group or
Target Group member do not and could not restrict or inhibit
(whether absolutely, partly, under a discretionary power or
otherwise) any transfer of such shares pursuant to enforcement of
the Security Documents or the Second Security Documents.
20.26.3 For the avoidance of doubt, the Security is intended to secure
all amounts outstanding under the Finance Documents from time to
time, including without limitation, all amounts made available by
the Term Banks and the Additional Finance Providers.
20.27 GROUP STRUCTURE
Each of:
(i) the corporate structure of the UK Group and the NTL
Holding Group set out in the group structure chart
delivered to the Term Banks pursuant to Clause 2.5.2
(Initial Conditions Precedent);
111
(ii) the corporate structure of the UK Group and the NTL
Holding Group set out in the Group Structure Chart
delivered pursuant to Clause 2.5.1 (Initial
Conditions Precedent); and
(iii) the corporate structure of the UK Group, the Target
Group and the NTL Holding Group set out in any Group
Structure Chart delivered to the Agent pursuant to
Clause 23.37 (Revised Group Structure),
is true, complete and accurate, in each case as at the date of its
delivery to the Agent or, in the case of (i) above, to the Term Banks.
20.28 SCHEME INFORMATION
The CWC Circular contains all the material terms of the Scheme and the
information contained in the CWC Circular relating to the Group (other
than the Target Group), and the Scheme and, to the best of its knowledge
and belief, the CWC ConsumerCo Business is true, complete and accurate in
all material respects on its date of despatch. An office copy of the
order of the court sanctioning the Scheme under Section 425 was filed
with the Registrar of Companies for registration pursuant to sub-section
3 of Section 425 on 12 May 2000.
20.29 THE SCHEME
In relation to the Scheme:
20.29.1 no step has been taken which has increased (or may in the future
increase) the offer price under the Scheme beyond the level
specified in the CWC Circular;
20.29.2 no modification, variation or amendment of a material nature has
been made to, and no waiver has been granted in respect of, any
of the conditions set out in Appendix 2 to the CWC Circular or in
the Transaction Agreement;
20.29.3 no press release or other publicity, the text of which has not
previously been agreed with the Agent, which makes reference to
the Revolving Facility or to some or all of the Finance Parties
has been issued or allowed to be issued; and
20.29.4 in all material respects relevant in the context of the Scheme,
it and each of its affiliates (as relevant) has complied with the
Code, the Financial Services ▇▇▇ ▇▇▇▇, the Companies ▇▇▇ ▇▇▇▇ and
all other applicable laws and regulations.
20.30 EXISTING TARGET INDEBTEDNESS
To the best of its knowledge and belief:
20.30.1 the Financial Indebtedness of the CWC Parent and its subsidiaries
comprises:
(a) the Financial Indebtedness set out in paragraphs (a) to (n)
of the definition of Existing Target Indebtedness; and
(b) the Financial Indebtedness in respect of the Existing
Performance Bonds referred to in paragraphs (a) and (b) of
the definition thereof;
20.30.2 there are no contractual provisions in any document constituting
such Existing Target Indebtedness or the Existing Performance
Bonds or in any other
112
document to which the CWC Parent or any of its subsidiaries are
party, or which is binding on the CWC Parent or any of its
subsidiaries (or any of their assets) which will prevent
compliance with Clause 23.17 (Post-Acquisition Date Security).
20.31 EXISTING GROUP INDEBTEDNESS
20.31.1 NTL UK owes no Financial Indebtedness to any other members of the
NTL Holding Group, other than NTL CC.
20.31.2 The Parent owes no Financial Indebtedness to any members of the
NTL Holding Group, other than NTL UK.
20.32 INITIAL GUARANTORS
The aggregate EBITDA of the members of the Target Group listed in
Schedule 13 (Members of the Target Group Granting Security) for the
financial year ended 31 March 1999 equal or exceeds 90% of the aggregate
EBITDA of the CWC ConsumerCo Business for that financial year.
20.33 UK GROUP FINANCIAL STATEMENTS
The unaudited consolidated financial statements of the UK Group which
were provided to the Term Banks prior to the Term Execution Date:
20.33.1 were prepared in accordance with accounting principles generally
accepted in its jurisdiction of incorporation and consistently
applied;
20.33.2 disclose all material liabilities (contingent or otherwise) and
all material unrealised or anticipated losses of the UK Group;
and
20.33.3 save as disclosed therein, give a true and fair view of the
financial condition and operations of the UK Group during the
relevant period.
20.34 NTL INC. BUSINESS PLAN AND OTHER INFORMATION
It:
20.34.1 does not regard any of the forecasts or projections set out in
the NTL Inc. Business Plan as unreasonable or, to any material
extent, unattainable;
20.34.2 considers (having made all reasonable enquiries) the assumptions
upon which the forecasts and projections contained in the NTL
Inc. Business Plan are based to be fair and reasonable in all
material respects;
20.34.3 confirms that the factual information contained in all written
information supplied by any member of the Group or its legal
advisors to any Term Bank or its legal advisors in connection
herewith is true, complete and accurate in all material respects,
PROVIDED THAT this representation and warranty shall not apply to
any information provided by or on behalf of any party outside the
Group (including, for the avoidance of doubt, the Business Plan
and the Information Memorandum).
113
20.35 NO DEFAULT
No Event of Default or Potential Event of Default has occurred and is
continuing under this Agreement.
20.36 CIRCUMSTANCES AT TERM EXECUTION DATE
20.36.1 Pushdown occurred on 21 February 2001 and each of the
Pre-Novation Borrower and the Post Novation Borrower are members
of the UK Group.
20.36.2 The syndication of the Revolving Facility has occurred.
20.36.3 As at the Term Execution Date, the only Security (apart from that
comprised in the guarantees provided pursuant to Clause 23.32
(Guarantors), Clause 25 (Guarantee and Indemnity) and Clause 38
(Accession of Guarantors and the CWC Parent)) existing in
relation to the Revolving Facility comprises that granted
pursuant to the following documents:
(a) the Debenture dated 21 February 2001 between (1) the
Chargors (as listed and defined therein) and (2) the
Security Trustee;
(b) the Debenture dated 11 June 2001 between (1) NTL Glasgow
Holdings Limited and NTL Kirklees Holdings Limited and (2)
the Security Trustee;
(c) the Supplemental Mortgage dated 26 June 2001 between (1) NTL
Communication Services Limited and (2) the Security Trustee
in relation to Volvo House, Southampton;
(d) the Indenture of Mortgage dated 21 February 2001 between (1)
National Transcommunications Limited and CableTel Northern
Ireland Limited and (2) the Security Trustee;
(e) the NTL CC Security Over Cash Agreement dated 22 December
2000 between (1) NTL CC and (2) the Security Trustee;
(f) the NTL Security Over Cash Agreements dated 30 May 2000 and
5 October 2000 between (1) NTL Inc. and (2) the Security
Trustee;
(g) the NTL UK Intra-Group Loan Assignment dated 21 February
2001 between (1) NTL UK and (2) the Security Trustee;
(h) the NTL UK Revolving Bank Subordination Agreement dated 30
May 2000 between (1) NTL UK and (2) the Security Trustee;
(i) the Parent Intra-Group Loan Assignment dated 21 February
2001 between (1) the Parent and (2) the Security Trustee;
(j) the Pledge Agreement dated 21 February 2001 between (1) the
Parties listed therein and (2) the Security Trustee;
(k) the Security Agreement dated 21 February 2001 between (1)
the Parties listed therein and (2) the Security Trustee;
114
(l) the Share Charge Agreement dated 21 February 2001 between
(1) the Parties listed therein and (2) the Security Trustee;
(m) the Share Pledge dated 21 February 2001 between (1) the
Companies listed therein and (2) the Security Trustee;
(n) the Standard Security dated 21 February 2001 between (1)
National Transcommunications Limited and (2) the Security
Trustee in respect of Blackhill, Duntilland Road, Salsburgh,
▇▇▇▇▇▇, North Lanarkshire;
(o) the Standard Security dated 21 February 2001 between (1)
National Transcommunications Limited and (2) the Security
Trustee in respect of ▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇; and
(p) the Standard Security dated 12 April 2001 between (1)
CableTel (UK) Limited and (2) the Security Trustee in
respect of land and warehouse premises at ▇▇▇▇▇▇▇
▇▇▇▇/▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇.
20.37 ENTIRE AGREEMENT
True and complete copies or conformed copies of all documents which
together evidence the entire agreement between the parties hereto in
connection with this Agreement on the Term Execution Date (other than the
fee letters mentioned in Clause 26.6 (Agency and Other Fees), any
documents which are signed by the Term Banks and, for the avoidance of
doubt, any documents which are no longer of relevance or which amended
Schedule 1 (The Banks) in connection with the syndication of the
Revolving Facility or have been reflected in restatements of documents
which have been provided) have been provided to the Term Banks prior to
the Term Execution Date.
20.38 PRINCIPAL PROPERTIES
Each Report on Title delivered to the Term Banks pursuant to Clause 2.5
(Initial Conditions Precedent) is accurate in respect of the issues to
which it is stated to relate as at the date of such Report on Title.
20.39 REPETITION OF REPRESENTATIONS
The Repeated Representations shall (to the extent applicable) be deemed
to be repeated by the Post-Novation Borrower (after the date on which it
becomes a party hereto), the CWC Parent (on and after the date on which
it becomes a party hereto) the Parent, the Obligors and NTL CC on each
date on which (a) an Advance is or is to be made, (b) each Additional
Finance Provider Accession Date, and (c) a company becomes an Additional
Obligor, and to the extent that the representations set out in sub-clause
20.15.3 of Clause 20.15 (Business Plan and Information Memorandum) relate
to the Information Memorandum, such shall be deemed to be made on the
date that the Information Memorandum is approved by each of the
Pre-Novation Borrower and the Parent and (save as otherwise disclosed by
the Parent, in writing to the Agent, prior to the Syndication Date) on
the Syndication Date.
115
21. FINANCIAL INFORMATION
21.1 ANNUAL STATEMENTS
The Parent 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 the consolidated financial
statements of the UK Group for such financial year, audited by an
internationally recognised firm of independent auditors licensed to
practise in England and Wales.
21.2 QUARTERLY STATEMENTS
21.2.1 The Parent shall as soon as the same become available, but in any
event within 60 days after the end of each Financial Quarter,
deliver to the Agent in sufficient copies for the Banks the
unaudited consolidated financial statements of the UK Group for
such period.
21.2.2 In respect of any Financial Quarter which ends before the
Pushdown Date, the CWC Parent shall as soon as the same become
available, but in any event within 60 days after the end of each
of those Financial Quarters, deliver to the Agent in sufficient
copies for the Banks the unaudited consolidated financial
statements of the Target Group for such period.
21.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
The Parent and the CWC Parent shall ensure that each set of financial
statements delivered by it pursuant to this Clause 21 is:
21.3.1 certified by one of its Authorised Signatories as giving a true
and fair view of, in the case of the Parent, the consolidated
financial condition of the UK Group and, in the case of the CWC
Parent, the consolidated financial condition of the Target Group
as at the end of the period to which those financial statements
relate and of the results of the UK Group's or, as the case may
be, the Target Group's operations during such period; and
21.3.2 accompanied by a comparison to the Business Plan projections (as
updated by the relevant Budget) for the financial year or, as the
case may be, Financial Quarter, to which those financial
statements relate.
21.4 COMPLIANCE CERTIFICATES
The Parent and the CWC Parent shall ensure that each set of consolidated
financial statements delivered by it pursuant to Clause 21.1 (Annual
Statements) or Clause 21.2 (Quarterly Statements) is accompanied by a
Compliance Certificate signed by two of its Authorised Signatories.
21.5 BUDGETS
The Parent shall, as soon as the same become available, and in any event
no later than 60 days after the beginning of each of its financial years,
deliver to the Agent in sufficient copies for the Banks an annual budget
(in a form agreed with the Agent and, for the purpose of this Clause
21.5, assuming that the Pushdown has been completed) prepared by
reference to each Financial Quarter in respect of such financial year
including:
116
21.5.1 forecasts of projected disposals (including timing and amount
thereof) on a consolidated basis of the UK Group (including,
prior to the Pushdown Date, the Target Group) for such financial
year;
21.5.2 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 UK Group
(including, prior to the Pushdown Date, the Target Group);
21.5.3 revisions to the projections set out in the Business Plan,
together with the main operating assumptions relating thereto,
for such financial year until the Term Final Maturity Date, based
on the financial condition and performance and prospects of the
UK Group (including, prior to the Pushdown Date, the Target
Group) at such time;
21.5.4 projected Permitted Payments to be made during such financial
year and the (in respect of paragraph (c) of the definition of
Permitted Payments) related Financial Indebtedness of the
relevant members of the NTL Holding Group to which those
Permitted Payments will relate;
21.5.5 projected Capital Expenditure to be incurred on a quarterly basis
for such financial year on a consolidated basis for the UK Group
(including, prior to the Pushdown Date, the Target Group);
21.5.6 projected EBIT and EBITDA as at the end of each Financial Quarter
in such financial year, for the UK Group and (prior to the
Pushdown Date) the Target Group; and
21.5.7 a qualitative analysis and commentary from the management on its
proposed activities for such financial year.
The Parent shall provide the Agent with details of any material changes
in the projections delivered under this Clause 21.5 as soon as reasonably
practicable after it becomes aware of any such change.
21.6 HEDGING
The Parent will promptly notify the Agent upon either it or any member of
the UK Group and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, promptly
notify the Agent upon either it or any member of the Target Group
entering into any Hedging Agreement.
21.7 ASSET PASSTHROUGHS AND FUNDING PASSTHROUGHS
The Parent (in the case of an Asset Passthrough or a UK Group Funding
Passthrough) or the CWC Parent (in the case of a Target Group Funding
Passthrough) shall, at least five Business Days prior to effecting either
an Asset Passthrough or a Funding Passthrough provide the Agent with:
21.7.1 written notice of the proposed Asset Passthrough or Funding
Passthrough;
117
21.7.2 a summary of the steps to be implemented in connection with the
proposed Asset Passthrough or Funding Passthrough;
21.7.3 a certificate from an Authorised Signatory of the Parent or, as
the case may be, the CWC Parent, confirming that the proposed
Asset Passthrough or Funding Passthrough will satisfy all of the
requirements of the definition thereof; and
21.7.4 such other information in relation to the proposed Asset
Passthrough or Funding Passthrough as the Agent may reasonably
request.
21.8 UK GROUP FUNDING PAYMENT
The Pre-Novation Borrower shall, at least five Business Days prior to it
making a payment to NTL Inc. to allow a UK Group Funding Payment to be
made, provide the Agent with a certificate signed by one of its
Authorised Signatories:
21.8.1 specifying the amount of the proposed payment; and
21.8.2 demonstrating that the Pre-Novation Borrower and the members of
the Target Group will, after that payment has been made, have
sufficient working capital (in the form of either cash or the
ability to utilise the Available Working Capital Amount under the
Revolving Facility) to meet their working capital requirements in
accordance with the Business Plan.
21.9 OTHER FINANCIAL INFORMATION
Each Obligor shall, the Parent shall procure that each member of the UK
Group shall and the CWC Parent (on and after the date on which it becomes
a party hereto) shall procure that each member of the Target Group 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, respectively, such
Obligor, the UK Group and the Target Group as the Agent or any Bank
(through the Agent) may reasonably require PROVIDED THAT neither the
Parent, the CWC Parent nor any Obligor shall be under any obligation to
supply any information the supply of which would be contrary to any
confidentiality obligation binding on it.
21.10 ACCOUNTING POLICIES
The Parent and the CWC Parent shall ensure that each set of financial
statements delivered pursuant to this Clause 21 is prepared using
accounting policies, practices, procedures and reference period (except
as otherwise agreed pursuant to a consent letter dated 22 December 2000
between the Agent, the Parent, the Pre-Novation Borrower and the CWC
Parent) consistent with those applied in the preparation of the Original
Financial Statements unless, in relation to any such set of financial
statements, the Parent or the CWC Parent notifies the Agent that there
have been one or more changes in any such accounting policies, practices,
procedures or reference period and:
21.10.1 the auditors of the Parent or the CWC Parent 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
relevant Original Financial Statements were prepared; and
118
(b) 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 relevant
Original Financial Statements,
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
relevant Original Financial Statements were prepared; or
21.10.2 the CWC Parent or, as the case may be, the Parent also notifies
the Agent that it is no longer practicable to test compliance
with the financial condition set out in either Clause 22.1
(Target Group Financial Condition) or Clause 22.2 (UK Group
Financial Condition) against the financial statements received in
which case:
(a) the Agent and the CWC Parent or, as the case may be, the
Parent shall enter into negotiations with a view to agreeing
alternative financial conditions to replace those contained
in either Clause 22.1 (Target Group Financial Condition) or
Clause 22.2 (UK Group Financial Condition) in order to
maintain a consistent basis for such financial covenants;
and
(b) if, after three months commencing on the date of the notice
given to the Agent pursuant to this sub-clause 21.10.2, the
Agent and the CWC Parent or, as the case may be, the Parent
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 either the CWC Parent or the
Parent 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 CWC
Parent and the Parent shall continue to prepare financial
statements and calculate such ratios in accordance with
sub-clause 21.10.1 above.
21.11 GENERAL INFORMATION
21.11.1 The Parent shall, as soon as reasonably practicable, furnish the
Agent with such general information as it or any member of the UK
Group is required by law to supply or make available to its (or
such member of the UK Group's) (a) shareholders (in their
capacity as such) or (b) creditors generally or any class
thereof.
21.11.2 Prior to the Pushdown Date, the CWC Parent shall, as soon as
reasonably practicable, furnish the Agent with such general
information as it or any member of the Target Group is required
by law to supply or make available to its (or such member of the
Target Group's) (a) shareholders (in their capacity as such) or
(b) creditors generally or any class thereof.
119
21.12 LITIGATION AND GOVERNMENT OR REGULATORY ENQUIRY
NTL CC (in respect of itself), the Parent (in respect of itself and each
other member of the UK Group) and, prior to the Pushdown Date, the CWC
Parent (in respect of itself and each other member of the Target Group)
shall advise the Agent forthwith of the details of:
21.12.1 any litigation, arbitration or administrative proceedings pending
or threatened against it or, as the case may be, any other member
of the UK Group or the Target Group which could reasonably be
expected to result in liability of it or, as the case may be,
such other member of the UK Group or the Target Group in an
amount in excess of Pound Sterling5,000,000 (or its equivalent);
and
21.12.2 any notice or communication received by it or, as the case may
be, any other member of the UK Group or the Target 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.
21.13 ACQUISITION INFORMATION
The Parent (in the case of the UK Group) and the Pre-Novation Borrower or
the CWC Parent (in the case of the Target Group) shall from time to time,
on the request of the Agent, provide the Agent with any material
information in the possession of any member of either the NTL Holding
Group, the UK Group or (after the Acquisition Date) the Target Group
relating to the Acquisition and/or the Scheme as the Agent may reasonably
request provided that the Parent, the Pre-Novation Borrower and the CWC
Parent shall be under no obligation to supply any information the supply
of which would be contrary to any confidentiality obligation binding on
it or on any member of the NTL Holding Group, the UK Group or the Target
Group.
21.14 WORKING CAPITAL FACILITY DRAWDOWN
The Parent shall, at the same time as it delivers a notice of drawdown
under the Working Capital Facility, deliver a copy thereof to the Agent.
22. FINANCIAL CONDITION
22.1 TARGET GROUP FINANCIAL CONDITION
Each of the Pre-Novation Borrower and, on and after the date it becomes a
party hereto, the CWC Parent shall, prior to the Pushdown Date, ensure
that the financial condition of the Target Group (which shall, for the
purposes of this Clause 22.1 be deemed to include the Pre-Novation
Borrower) shall be such that:
22.1.1 Ratio of Target Group Net Senior Debt to Annualised EBITDA
The ratio of the Target Group Net Senior Debt on each of the
Quarter Dates specified in column one below to the Annualised
EBITDA of the Target Group for the Relevant Period ended on that
date shall be no greater than the ratio set out in column two
below corresponding to that date.
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COLUMN TWO
COLUMN ONE TARGET GROUP NET SENIOR DEBT:
QUARTER DATE ANNUALISED EBITDA
------------ -----------------------------
31 December 2000 27.50:1.0
31 March 2001 23.50:1.0
30 June 2001 19.00:1.0
22.1.2 Target Group Net Senior Interest Cover Ratio
The ratio of the EBITDA of the Target Group for each Relevant
Period ended on the Quarter Dates specified in column one below
to the Target Group Net Cash Senior Finance Charges for that
Relevant Period shall be equal to or greater than the ratio set
out in column two below corresponding to that date.
COLUMN TWO
COLUMN ONE EBITDA: TARGET GROUP NET CASH
QUARTER DATE SENIOR FINANCE CHARGES
------------ -----------------------------
31 December 2000 0.40:1.0
31 March 2001 0.50:1.0
30 June 2001 0.60:1.0
22.2 UK GROUP FINANCIAL CONDITION
The Parent shall ensure that the financial condition of the UK Group
(which shall, for the purposes of this Clause 22.2 be deemed to include
(a) Northampton Cable Television Limited, Herts Cable Limited and Cable &
Wireless Communications (South Hertfordshire) Limited and (b) prior to
the Pushdown Date, the Target Group (including the Pre-Novation
Borrower)) shall be such that:
22.2.1 Ratio of UK Group Net Senior Debt to Annualised EBITDA
The ratio of the UK Group Net Senior Debt on each of the Quarter
Dates specified in column one below to the Annualised EBITDA of
the UK Group for the Relevant Period ended on that date shall be
no greater than the ratio set out in column two below
corresponding to that date.
COLUMN TWO
COLUMN ONE UK GROUP NET SENIOR DEBT:
QUARTER DATE ANNUALISED EBITDA
------------- --------------------------
31 December 2000 11.45:1.0
31 March 2001 10.00:1.0
30 June 2001 8.50:1.0
30 September 2001 6.50:1.0
31 December 2001 5.25:1.0
31 March 2002 5.25:1.0
30 June 2002 4.00:1.0
30 September 2002 3.75:1.0
31 December 2002 3.50:1.0
31 March 2003 3.50:1.0
30 June 2003 2.75:1.0
30 September 2003 2.75:1.0
31 December 2003 2.25:1.0
31 March 2004 2.25:1.0
30 June 2004 2.00:1.0
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COLUMN TWO
COLUMN ONE UK GROUP NET SENIOR DEBT:
QUARTER DATE ANNUALISED EBITDA
------------ -----------------------------
30 September 2004 2.00:1.0
31 December 2004 1.75:1.0
31 March 2005 1.75:1.0
30 June 2005 and each Quarter Date thereafter 1.50:1.0
22.2.2 UK Group Net Senior Interest Cover Ratio
The ratio of the EBITDA of the UK Group for each Relevant Period
ended on the Quarter Dates specified in column one below to the
UK Group Net Cash Senior Finance Charges for that Relevant Period
shall be equal to or greater than the ratio set out in column two
below corresponding to that date.
COLUMN TWO
COLUMN ONE EBITDA: UK GROUP NET CASH SENIOR
QUARTER DATE FINANCE CHARGES
------------ ---------------------------------
31 December 2000 0.95:1.0
31 March 2001 1.20:1.0
30 June 2001 1.45:1.0
30 September 2001 1.75:1.0
31 December 2001 2.15:1.0
31 March 2002 2.15:1.0
30 June 2002 2.75:1.0
30 September 2002 3.25:1.0
31 December 2002 3.50:1.0
31 March 2003 3.50:1.0
30 June 2003 4.50:1.0
30 September 2003 4.50:1.0
31 December 2003 5.25:1.0
31 March 2004 5.25:1.0
30 June 2004 7.00:1.0
30 September 2004 7.00:1.0
31 December 2004 7.50:1.0
31 March 2005 7.50:1.0
30 June 2005 and each Quarter Date thereafter 7.50:1.0
22.2.3 Total Interest Cover Ratio
The ratio of the EBITDA of the UK Group for each Relevant Period
ended on the Quarter Dates specified in column one below to the
Total Net Cash Finance Charges for that Relevant Period shall be
equal to or greater than the ratio set out in column two below
corresponding to that date.
COLUMN ONE COLUMN TWO
QUARTER DATE EBITDA: TOTAL NET CASH FINANCE CHARGES
------------ --------------------------------------
31 December 2002 1.30:1.0
31 March 2003 1.30:1.0
30 June 2003 1.50:1.0
30 September 2003 1.50:1.0
31 December 2003 1.65:1.0
31 March 2004 1.65:1.0
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COLUMN ONE COLUMN TWO
QUARTER DATE EBITDA: TOTAL NET CASH FINANCE CHARGES
------------ --------------------------------------
30 June 2004 1.75:1.0
30 September 2004 1.75:1.0
31 December 2004 2.00:1.0
31 March 2005 2.00:1.0
30 June 2005 and each Quarter Date thereafter 2.25:1.0
22.2.4 Ratio of Total Net Debt to Annualised EBITDA
The ratio of the Total Net Debt on each of the Quarter Dates
specified in column one below to the Annualised EBITDA of the UK
Group for the Relevant Period ended on that date shall be no
greater than the ratio set out in column two below corresponding
to that date.
COLUMN ON E COLUMN TWO
QUARTER DATE TOTAL NET DEBT: ANNUALISED EBITDA
------------ --------------------------------------
31 December 2002 10.25:1.0
31 March 2003 10.00:1.0
30 June 2003 8.00:1.0
30 September 2003 8.00:1.0
31 December 2003 7.50:1.0
31 March 2004 7.50:1.0
30 June 2004 5.50:1.0
30 September 2004 5.50:1.0
31 December 2004 5.25:1.0
31 March 2005 5.25:1.0
30 June 2005 and each Quarter Date thereafter 4.50:1.0
22.3 FINANCIAL DEFINITIONS
In this Agreement the following terms have the following meanings. For
the purpose of the financial definitions set out in this Clause 22.3:
22.3.1 references to the UK Group shall be deemed to include (a)
Northampton Cable Television Limited, Herts Cable Limited and
Cable & Wireless Communications (South Hertfordshire) Limited and
(b) prior to the Pushdown Date, the Target Group; and
22.3.2 references to the Target Group shall be deemed to include the
Pre-Novation Borrower.
"ANNUALISED EBITDA" means with respect to any Quarter Date, the
consolidated EBITDA of the Target Group or, as the case may be, the UK
Group, for the Relevant Period ended on such Quarter Date, multiplied by
two.
"CASH" means at any time, cash denominated in sterling (or any other
currency freely convertible into sterling) and credited to an account in
the name of a member of the Covenant Group, the UK Group or (as
applicable) the Target Group with an Eligible Deposit Bank and to which
such a member of the Covenant Group, the UK Group or the Target Group is
alone beneficially entitled and for so long as:
123
(a) such cash is repayable on demand and repayment of such cash is
not contingent on the prior discharge of any other indebtedness
of any member of the Covenant Group, the UK Group or the Target
Group or of any other person whatsoever or on the satisfaction of
any other condition; or
(b) such cash has been deposited with an Eligible Deposit Bank as
security for any performance bond, guarantee, standby letter of
credit or similar facility the contingent liabilities relating to
such having been included in the calculation of Covenant Group
Net Debt, Target Group Net Senior Debt or, as the case may be, UK
Group Net Senior Debt.
"CURRENT ASSETS" means the aggregate of inventory, trade and other
receivables of each member of the UK Group including sundry debtors (but
excluding cash at bank) maturing within twelve months from the date of
computation.
"CURRENT LIABILITIES" means the aggregate of all liabilities (including
trade creditors, accruals and provisions and prepayments) of each member
of the UK Group falling due within twelve months from the date of
computation but excluding consolidated aggregate Indebtedness for
Borrowed Money of the UK Group falling due within such period and any
interest on such Indebtedness for Borrowed Money due in such period.
"COVENANT GROUP NET 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 Covenant Group
constituting Indebtedness for Borrowed Money together with any other
indebtedness of any member of the Covenant 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:
(c) excluding Indebtedness for Borrowed Money of any member of the
Covenant Group to another member of the Group to the extent
permitted under this Agreement; and
(d) deducting the Cash held by members of the Covenant Group at such
time.
"EBIT" means, in respect of any period, the consolidated net income of
the Target Group or, as the case may be, the aggregate of the
consolidated net income of the UK 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 Target Group or, as the case may
be, the UK 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 Revolving Facility or
the Term Facility;
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(d) any items treated as exceptional or extraordinary items and any
other similar items agreed between the Relevant Obligor and the
Agent (acting on the instructions of an Instructing Group); and
(e) separation and integration costs and payments made by any member
of the Target Group under schedule 8 of the Transaction
Agreement.
"EBITDA" means, in respect of any period, EBIT for such period adding
back (only to the extent, in each case, deducted in calculating EBIT):
(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 Target Group's business or,
as the case may be, the UK Group's, business).
"ELIGIBLE DEPOSIT BANK" means any bank or financial institution with a
short term rating of at least A1 granted by Standard & Poor's Corporation
or P1 granted by ▇▇▇▇▇'▇ Investors Services, Inc.
"EXCESS CASH FLOW" means, for any financial year, Operating Cash Flow for
that period LESS Net Total Debt Service for that period.
"FINANCIAL QUARTER" means the period commencing on the day after one
Quarter Date and ending on the next Quarter Date.
"NET TOTAL DEBT SERVICE" means, in respect of any financial year, the
aggregate of:
(a) Total Net Cash Finance Charges for the two Relevant Periods in
that financial year; and
(b) save to the extent such were immediately reborrowed or refinanced
by a utilisation of the Term Facility, the aggregate of scheduled
and mandatory payments of the principal, capital or nominal
amounts of any Indebtedness for Borrowed Money of any member of
the UK Group or the Covenant Group which fell due during that
financial year (excluding any such payments which relate to
Subordinated Debt where such payments cannot be made due to the
subordination of such Subordinated Debt remaining in full force
and effect).
"OPERATING CASH FLOW" means, in respect of any financial year, EBITDA of
the UK Group for that financial year after:
(a) adding back:
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(i) any decrease in the amount of Working Capital at the end
of such a financial year compared against the Working
Capital at the start of such financial year; and
(ii) any cash receipt in respect of any exceptional or
extraordinary item; and
(b) deducting:
(i) any amount of Capital Expenditure actually made by any
member of the UK Group;
(ii) any increase in the amount of Working Capital at the end
of such financial year compared against the Working
Capital at the start of that financial year;
(iii) any amount actually paid or due and payable in respect of
taxes on the profits of any member of the UK Group; and
(iv) any cash payment in respect of any exceptional or
extraordinary item,
and no amount shall be included or excluded more than once.
"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.
"TARGET GROUP NET 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 Target
Group constituting Indebtedness for Borrowed Money together with any
other indebtedness of any member of the Target 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 Target Group to another member of the Target Group to the
extent permitted under this Agreement;
(b) excluding any Indebtedness for Borrowed Money to the extent such
is Subordinated Target Group Debt; and
(c) deducting the Cash held by members of the Target Group at such
time.
"TARGET GROUP NET CASH SENIOR 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 in cash on
the Target Group Net Senior Debt during such a Relevant Period,
(a) adding any commission, fees and other finance payments payable by
any member of the Target Group in cash under any interest rate
hedging arrangement;
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(b) deducting any commission, fees and other finance payments
receivable by any member of the Target Group under any interest
rate hedging arrangement permitted by this Agreement; and
(c) deducting any interest receivable by any member of the Target
Group on any deposit or bank account.
"TOTAL NET DEBT" means, at any time, the aggregate of the UK Group Net
Senior Debt and the Covenant Group Net Debt.
"TOTAL NET CASH 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 in cash on the Total
Net Debt during such a Relevant Period,
(a) adding any commission, fees and other finance payments payable by
any member of the Covenant Group and the UK Group, in cash under
any interest rate hedging arrangement;
(b) deducting any commission, fees and other finance payments
receivable by any member of the Covenant Group and the UK Group
under any interest rate hedging arrangement permitted by this
Agreement; and
(c) deducting any interest receivable by any member of the Covenant
Group and the UK Group, on any deposit or bank account.
"UK GROUP NET 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 UK Group
constituting Indebtedness for Borrowed Money together with any other
indebtedness of any member of the UK 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 UK Group to another member of the UK Group to the extent
permitted under this Agreement;
(b) excluding any Indebtedness for Borrowed Money to the extent such
is either Subordinated UK Group Debt or Subordinated Target Group
Debt; and
(c) deducting the Cash held by members of the UK Group at such time.
"UK GROUP NET CASH SENIOR 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 in cash on
the UK Group Net Senior Debt during such a Relevant Period,
(d) adding any commission, fees and other finance payments payable by
any member of the UK Group in cash under any interest rate
hedging arrangement;
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(e) deducting any commission, fees and other finance payments
receivable by any member of the UK Group under any interest rate
hedging arrangement permitted by this Agreement; and
(f) deducting any interest receivable by any member of the UK Group
on any deposit or bank account.
"WORKING CAPITAL" means on any date Current Assets less Current
Liabilities.
22.4 ACCOUNTING TERMS
All accounting expressions which are not otherwise defined herein shall
be construed in accordance with generally accepted accounting principles
in England.
23. COVENANTS
23.1 NOTIFICATION OF EVENTS OF DEFAULT
The Group Representative 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 and is continuing.
23.2 CLAIMS PARI PASSU
Each Obligor shall ensure that, subject to the Reservations:
23.2.1 at all times the claims of the Finance Parties against such
Obligor under the Finance Documents (other than the Security
Documents and the Second Security Documents) to which such
Obligor is party rank at least pari passu with the claims of all
its other unsecured and unsubordinated creditors; and
23.2.2 at all times the claims of the Finance Parties against such
Obligor under the Security Documents and the Second Security
Documents to which such Obligor is party rank ahead of the claims
of all its other creditors (other than (if and to the extent
applicable) creditors with the benefit of Permitted Encumbrances)
against the assets the subject of the Encumbrances created by
such Security Documents or the Second Security Documents.
23.3 MAINTENANCE OF LEGAL VALIDITY
Each Obligor shall and the Parent shall procure that each Obligor in the
UK Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall procure that, prior to the Pushdown Date,
each Obligor in the Target Group shall):
23.3.1 do all such things as are necessary to maintain its existence as
a legal person (other than as part of a solvent reorganisation on
terms which have been approved in writing by the Agent acting on
the instructions of an Instructing Group); and
23.3.2 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 and regulations
of each jurisdiction in which it owns or leases property or in
which it conducts its business to enable it lawfully to enter
into
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and perform its obligations under each of the Finance Documents
to which it is expressed to be a party or to ensure the legality
or validity or (subject to the Reservations) enforceability or
admissibility in evidence in England and in each other
jurisdiction in which it owns or leases property or in which it
conducts its business (to the extent applicable) of each such
Finance Document.
23.4 INSURANCE
Each Obligor shall and the Parent shall procure that each member of the
UK Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
each member of the Target Group shall) effect and maintain, insurances
(or, in the case of NTL Insurance Limited (or its successor as the UK
Group's captive insurance company), insurances and re-insurances) on and
in relation to its business and assets against such risks as is
reasonable for a company carrying on a business such as that carried on
by such Obligor, member of the UK Group or member of the Target Group
with either (save in respect of NTL Insurance Limited's own insurance)
NTL Insurance Limited (or its successor as the UK Group's captive
insurance company) or with a reputable underwriter or insurance company
and, in the case of NTL Insurance Limited (or its successor as the UK
Group's captive insurance company), with a reputable underwriter or
insurance or reinsurance company.
23.5 ENVIRONMENTAL COMPLIANCE
Each Obligor shall and the Parent shall procure that each member of the
UK Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
each member of the Target Group shall) comply in all material respects
with all Environmental Law and obtain and maintain any Environmental
Permits, breach of which (or failure to obtain or maintain which) could
reasonably be expected to have a Material Adverse Effect.
23.6 ENVIRONMENTAL CLAIMS
Each Obligor shall and the Parent shall procure that each member of the
UK Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
each member of the Target Group 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 such Obligor's,
member of the UK Group's or member of the Target Group's knowledge and
belief) is threatened against it in any case where such claim would be
reasonably likely, if adversely determined, 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 such Obligor, member of the UK Group or member of the Target
Group in any case where such claim would be reasonably likely, if
adversely determined, to have a Material Adverse Effect.
23.7 MAINTENANCE OF LICENCES AND OTHER AUTHORISATION
Each Obligor shall and the Parent shall procure that each member of the
UK Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
each member of the Target Group shall):
23.7.1 ensure that it has the right and is duly qualified to conduct its
business and to the extent that the loss of any contract,
authorisation, approval, licence, consent,
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right or franchise could reasonably be expected to have a
Material Adverse Effect, do all things necessary to obtain,
preserve, keep valid and binding and, where relevant, renew all
such contracts, authorisations, approvals, licences, consents,
rights and franchises; and
23.7.2 ensure that each Licence (or any replacement or renewal thereof)
is held by a member of the UK Group (other than the Parent) or,
prior to the Pushdown Date, a member of the Target Group (other
than the CWC Parent).
23.8 CONDUCT BUSINESS IN ACCORDANCE WITH LICENCES
Each Obligor shall and the Parent shall procure that each member of the
UK Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
each member of the Target Group shall) 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 Parent
shall procure that no member of the UK Group shall (and the CWC Parent
shall, prior to the Pushdown Date, procure that no member of the Target
Group shall) 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 if such amendment,
revocation, suspension, withdrawal or termination could reasonably be
expected to have a Material Adverse Effect.
23.9 STATUTORY REQUIREMENTS
Each Obligor shall and the Parent shall procure that each member of the
UK Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
each member of the Target Group shall) comply in all material respects
with all Statutory Requirements binding upon it or enforceable against it
in respect of the conduct of its business and the ownership of its
properties if and insofar as failure to do so could reasonably be
expected to have a Material Adverse Effect.
23.10 REGULATORY NOTICES AND COMMUNICATIONS
The:
23.10.1 Parent shall notify the Agent within fourteen days of receipt by
any member of the UK Group of; and
23.10.2 the CWC Parent (on and after the date on which it becomes a party
hereto) shall, prior to the Pushdown Date, notify the Agent
within fourteen days of receipt by any member of the Target Group
of,
any notice or communication from any government, court or regulatory
authority or agency (including, without prejudice to the generality of
the foregoing, the Secretary of State for Trade and Industry, Oftel or
the Radiocommunications Agency) which may give rise to the revocation,
termination, material adverse amendment, suspension, withdrawal or
avoidance of any Licences or any of the terms and conditions thereof if
such revocation, termination, material adverse amendment, suspension,
withdrawal or avoidance could reasonably be expected to have a Material
Adverse Effect.
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23.11 COMPLIANCE WITH MATERIAL COMMERCIAL CONTRACTS
Each Obligor shall and the Parent shall procure that each member of the
UK Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
each member of the Target Group shall):
23.11.1 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;
23.11.2 not amend, vary, novate or supplement any such Material
Commercial Contract in any material respect;
23.11.3 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.
23.12 PRESERVATION OF ASSETS
Each Obligor shall and the Parent shall procure that each member of the
UK Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
each member of the Target 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), repair (with reasonable promptness)
any damage to such assets 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.
23.13 SECURITY
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' 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 24.18 (Acceleration and Cancellation) or 24.19 (Advances Due on
Demand) for facilitating the realisation of any such security or any part
thereof.
23.14 ACCESS
The Parent (in the case of each member of the UK Group) and the CWC
Parent (on or after the date on which it becomes a party hereto and in
the case of each member of the Target Group) shall ensure that any one or
more representatives, agents and advisers of the Agent and/or any of the
Banks will be allowed, whilst an Event of Default or Potential Event of
Default is continuing and with prior notice, to have access to the
assets, books, records and premises of each UK Group member and (prior to
the Pushdown Date) each Target Group member and be permitted to inspect
the same during normal business hours.
23.15 CONSENTS AND PROPERTIES
Each Obligor which owns a Principal Property or any other property to be
subject to a fixed charge under a Debenture shall, and the Parent shall
procure that each such Obligor
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in the UK Group shall (and the CWC Parent (on and after the date on which
it becomes a party hereto) shall, prior to the Pushdown Date, procure
that each such Obligor in the Target Group shall) use all reasonable
endeavours to obtain consents to charge all of such properties which are
leasehold and which are charged pursuant to the Security Documents and/or
the Second Security Documents from the relevant landlords as soon as
practicable.
23.16 ACQUISITION DATE SECURITY
The Pre-Novation Borrower shall procure that, on the Acquisition Date:
23.16.1 the CWC Accession Memorandum and the documentation required under
Clause 38.2 (Guarantor Conditions Precedent) are delivered to the
Agent, such as to allow CWC Holdings to accede hereto as both a
Guarantor and the CWC Parent in accordance with Clause 38
(Accession of Guarantors and the CWC Parent); and
23.16.2 the Initial Security is provided.
23.17 POST-ACQUISITION DATE SECURITY
The CWC Parent (on and after the date on which it becomes a party hereto)
and the Pre-Novation Borrower shall procure that:
23.17.1 within five Business Days of the Acquisition Date, each member of
the Target Group listed in Schedule 13 (Members of the Target
Group Providing Guarantees and Security) accedes hereto as a
Guarantor in accordance with the provisions of Clause 38
(Accession of Guarantors and the CWC Parent) PROVIDED THAT if any
member of the Target Group is a party to any agreement which
prohibits or restricts the granting of such a guarantee, the CWC
Parent and the Pre-Novation Borrower shall only be obliged to
procure that such member of the Target Group accedes hereto as a
Guarantor within sixty days of the Acquisition Date (or such
later date as may be agreed by an Instructing Group, acting
reasonably); and
23.17.2 within thirty days of the Acquisition Date (or such later date as
may be agreed by an Instructing Group (acting reasonably), each
member of the Target Group listed in Schedule 13 (Members of the
Target Group Providing Guarantees and Security) creates security
in favour of the Finance Parties by executing a Debenture and
such other Security Documents as the Agent may reasonably require
and otherwise delivers to the Agent (in form and substance
satisfactory to the Agent) all of the documents and other
evidence listed in Part B (Security Documentation) of Schedule 10
(Additional Conditions Precedent) PROVIDED THAT if any member of
the Target Group is a party to any agreement which prohibits or
restricts the creation of such security, the CWC Parent and the
Pre-Novation Borrower shall only be obliged to procure that such
member of the Target Group creates such security and delivers
such documents and evidence within sixty days of the Acquisition
Date (or such later date as may be agreed by an Instructing
Group, acting reasonably).
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The Security Trustee shall, prior to the Pushdown Date and upon the
written request of the Relevant Obligor, release or allow a member of the
Target Group to refrain from providing any guarantee or security given or
to be given in accordance with this Clause 23.17 where such a member of
the Target Group is a party to an agreement which prohibits or restricts
the granting of such a guarantee or security interest PROVIDED THAT the
Security Trustee is satisfied (acting reasonably) that following such
release the requirements of sub-clause 23.32.1 of Clause 23.32
(Guarantors) will continue to be satisfied and the written request from
the Relevant Obligor confirms (with supporting evidence) that this is the
case.
23.18 DISCHARGE OF EXISTING TARGET INDEBTEDNESS
Each of the Pre-Novation Borrower and, on and after the date on which it
becomes a party hereto, the CWC Parent, shall:
23.18.1 in relation to each category of Existing Target Indebtedness set
out in the table below, use their reasonable endeavours to
procure that the Pushdown Condition in relation to that category
of Existing Target Indebtedness is satisfied no later than the
relevant date set out in that table:
CATEGORY OF EXISTING TARGET LATEST DATE FOR SATISFACTION OF THE
INDEBTEDNESS PUSHDOWN CONDITION IN RELATION TO
THAT EXISTING TARGET INDEBTEDNESS
--------------------------------- --------------------------------------
Yankee Bonds 30 days after the Acquisition Date
Existing Hedging Acquisition Date
Receivables Purchase Facility Acquisition Date
Sterling Bonds Acquisition Date
CWC Credit Agreement Acquisition Date
Cable & Wireless Debt 180 days after the Acquisition Date
High Yield Bonds 30 September 2000
BCM Notes 31 March 2001 and 2 July 2001
respectively
Videotron Mortgage 10 days after the Acquisition Date
NatWest Finance Leases 180 days after the Acquisition Date
Vehicle Finance Leases 120 days after the Acquisition Date
Overdraft Facilities 2 July ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Facility 2 July 2001
TWTV Debt 2 July 2001
23.18.2 procure that the Pushdown Condition is satisfied on or prior to 6
July 2001.
23.19 PUSHDOWN
Each of the CWC Parent, the Parent and the Pre-Novation Borrower shall:
23.19.1 procure that (subject to the release by the Security Trustee of
the Security, as contemplated in paragraph (a) of the definition
of Pushdown), as soon as reasonably practical after and, in any
event, no later than ten Business Days after the Pushdown
Condition is satisfied, steps (a) to (g) of the definition of the
Pushdown are completed in a single day; and
23.19.2 ensure that, prior to the Pushdown Date, it and each member of
the Target Group:
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(a) operates its business and utilises (or refrains from
utilising) the permissions and exceptions to the covenants
set out in this Clause 23 with the overriding objective of
allowing the Pushdown to occur as soon as is reasonably
practicable after the Acquisition Date; and
(b) does not enter into any transaction or do anything which
would require it to utilise any such permissions or
exceptions (including, without limitation, those provided by
the definitions of Permitted Acquisitions, Permitted
Disposals, Permitted Encumbrances, Permitted Indebtedness
and Permitted Loans and Guarantees) if, at the time of
entering into the transaction or first doing such thing in
reliance upon such permission or exception, such transaction
or thing could be reasonably expected to delay the Pushdown.
23.20 UNWINDING OF ACTIONS
If, at any time:
23.20.1 it is reasonably likely that by doing so it will enable Pushdown
to occur at a date earlier than that on which it could otherwise
occur; and
23.20.2 if the Agent (acting on the instructions of an Instructing Group)
so requires,
the Pre-Novation Borrower and the CWC Parent shall, and the CWC Parent
shall procure that each member of the Target Group shall, use its
reasonable endeavours to repay any indebtedness incurred by it after the
Execution Date (including, without limitation, the unwinding of any
outstanding Hedging Agreements) to the extent that such indebtedness
needs to be repaid to satisfy the Pushdown Condition.
23.21 WORKING CAPITAL FACILITY
NTL CC and the Parent shall ensure that an amount equal to the full
amount of the Working Capital Facility is invested by the Parent in the
other members of the UK Group on or prior to the time anticipated in the
Business Plan by way of Parent Funding save to the extent that any amount
of the Working Capital Facility has been cancelled and an amount at least
equal to the amount so cancelled has been borrowed by the Post-Novation
Borrower under the Term Facility.
23.22 MANDATORY CONTRIBUTION
NTL CC shall ensure that the cash proceeds (net of any related expenses)
of any equity or Financial Indebtedness raised by any member of the
Covenant Group shall be applied as follows:
23.22.1 to the extent that such amount is required, pursuant to the
Working Capital Facility to be applied in mandatory prepayment of
the amount outstanding thereunder, such amount shall be invested
in the Parent by way of Subordinated Funding and so applied in
mandatory prepayment of the amount outstanding under the Working
Capital Facility;
23.22.2 to the extent that such amount is required, pursuant to the
Working Capital Facility to be applied in mandatory cancellation
of the Working Capital Facility, such amount shall be invested in
the Parent by way of Subordinated Funding
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and onlent by way of Parent Funding to members of the UK Group
(other than the Parent);
23.22.3 to the extent that such amount is not required pursuant to the
Working Capital Facility to be applied in mandatory prepayment or
cancellation thereof:
(a) from the Acquisition Date up to (and including) 31 December
2003, 66 2/3 per cent. of the aggregate amount of such cash
proceeds; and
(b) at all times thereafter, 75 per cent. of the aggregate
amount of such cash proceeds,
in each case other than Excluded Contributions, shall be contributed to
the Parent by way of Subordinated Funding. The Parent shall in turn
ensure that any such Subordinated Funding received by it is contributed
to the other members of the UK Group by way of Parent Funding.
23.23 NEGATIVE PLEDGE
No Obligor shall and the Parent shall procure that no member of the UK
Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
no member of the Target Group shall) create or permit to subsist any
Encumbrance over all or any of its present or future undertaking,
revenues or assets other than Permitted Encumbrances.
23.24 LOANS AND GUARANTEES
No Obligor shall and the Parent shall procure that no member of the UK
Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall procure that, prior to the Pushdown Date,
no member of the Target Group shall) (save in the ordinary course of
business) make, any loans, grant any credit or give any guarantee or
indemnity to or for the benefit of any person or voluntarily assume any
liability, whether actual or contingent, in respect of any obligation of
any other person other than Permitted Loans and Guarantees.
23.25 DISPOSALS
No Obligor shall and the Parent shall procure that no member of the UK
Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
no member of the Target Group shall) sell, lease, transfer or otherwise
dispose of, by one or more transactions or series of transactions
(whether related or not), the whole or any part of its revenues or its
assets other than any Permitted Disposal.
23.26 FINANCIAL INDEBTEDNESS
23.26.1 No Obligor shall and the Parent shall procure that no member of
the UK Group shall (and the CWC Parent (on and after the date on
which it becomes a party hereto) shall, prior to the Pushdown
Date, procure that no member of the Target Group shall) incur, or
allow to subsist, any Financial Indebtedness or enter into any
agreement or arrangement whereby it is entitled to incur, create
or allow to subsist any Financial Indebtedness other than
Permitted Indebtedness.
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23.26.2 NTL CC shall procure that NTL UK shall not incur, or allow to
subsist, any Financial Indebtedness between it and any other
members of the NTL Holding Group or enter into any agreement or
arrangement whereby it is entitled to incur, create or allow to
subsist any such Financial Indebtedness other than Financial
Indebtedness owed by it to NTL CC.
23.26.3 NTL CC shall not, and shall procure that no other members of the
Covenant Group shall incur, or allow to subsist any Financial
Indebtedness or enter into any agreement or arrangement whereby
it is entitled to incur, create or allow to subsist any Financial
Indebtedness other than, subject to sub-clause 23.26.2, Permitted
Covenant Group Indebtedness.
23.26.4 NTL CC and the Parent shall procure that the only Financial
Indebtedness outstanding between:
(a) NTL UK and the Parent is Subordinated UK Group Debt; and
(b) prior to the Pushdown Date, any members of the NTL Holding
Group (as lenders) and the Pre-Novation Borrower or any
members of the Target Group (as borrowers) is Subordinated
Target Group Debt.
23.27 RESTRICTED PAYMENTS
The Pre-Novation Borrower shall not and the Parent shall not and shall
procure that no member of the UK Group shall (and the CWC Parent (on and
after the date on which it becomes a party hereto) shall not and shall,
prior to the Pushdown Date, procure that no member of the Target Group
shall) make any Restricted Payment other than Permitted Payments.
23.28 ACQUISITIONS AND INVESTMENTS
No Obligor shall and the Parent shall procure that no member of the UK
Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
no member of the Target Group shall) (a) 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 (b) purchase or otherwise acquire (other than in the
ordinary course of business) any assets or revenues or (without
limitation to any of the foregoing) acquire any business or interest
therein or agree to do so, save for (and for agreements relating to):
23.28.1 any investment or acquisition of assets contemplated in the
Business Plan or arising out of expenditure being financed by the
Revolving Facility or the Term Facility;
23.28.2 any investment in a UK Group Excluded Subsidiary made out of
Available Excess Cash Flow;
23.28.3 Permitted Investments; and
23.28.4 Permitted Acquisitions.
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23.29 TELECENTIAL PARTNERSHIPS
The Parent shall, unless all of the partners of the Telecential
Partnerships are wholly-owned members of the UK Group and are subject to
an Encumbrance pursuant to the Security Documents and the Second Security
Documents:
23.29.1 procure that the aggregate of (a) the amount of any loans made by
any members of the UK Group to either of the Telecential
Partnerships after the Execution Date, (b) the book value of any
assets contributed by either CableTel Limited or CableTel
Investments Limited to either of the Telecential Partnerships
after the Execution Date and (c) any cash contributed by either
CableTel Limited or CableTel Investments Limited to either of the
Telecential Partnerships after the Execution Date does not exceed
Pound Sterling25,000,000; and
23.29.2 use its reasonable endeavours to procure that any such loan,
asset contribution or cash contribution made by any members of
the UK Group within such a Pound Sterling25,000,000 threshold is
followed, to the extent and in the manner required by the
partnership agreements relating to the Telecential Partnerships
(as such may be amended from time to time), by a loan, asset
contribution or cash contribution by the minority partner in the
relevant Telecential Partnership (and funded by the minority
shareholder in such a minority partner).
23.30 MERGERS
No Obligor shall and the Parent shall procure that no member of the UK
Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
no member of the Target Group shall) enter into any merger or
consolidation with any other person save for, respectively, another
Obligor or, as the case may be, another member of the UK Group or another
member of the Target Group.
23.31 CHANGE OF BUSINESS
Save as contemplated in the Business Plan (and provided that nothing in
this Clause 23.31 shall prevent an Obligor from making any investment or
disposal which is otherwise permitted under this Agreement) no Obligor
shall and the Parent shall procure that no member of the UK Group shall
(and the CWC Parent (on and after the date on which it becomes a party
hereto) shall, prior to the Pushdown Date, procure that no member of the
Target Group shall) enter into any type of business sector which would
result in a change in the business focus of the UK Group taken as a whole
or, as the case may be, the Target Group taken as a whole from its
business focus as at the date hereof.
23.32 GUARANTORS
23.32.1 Prior to the Pushdown Date, and once the members of the Target
Group required to do so pursuant to Clause 23.17
(Post-Acquisition Date Security) have acceded hereto as
Guarantors, the CWC Parent and the Pre-Novation Borrower shall
ensure that, save to the extent that it is unable to do so as a
result of the application of the proviso to sub-clause 23.17.1 of
Clause 23.17 (Post Acquisition Date Security), at all times the
aggregate EBITDA of the Guarantors (in each case calculated on an
unconsolidated basis) for each Financial Quarter ended on or
before the Pushdown Date equals or exceeds 90 per cent. of the
consolidated EBITDA of the Target Group for such period.
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23.32.2 After the Pushdown Date, the Parent 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 95 per cent. of
the consolidated EBITDA of the UK Group for such period.
23.32.3 For the purposes of this Clause 23.32 the aggregate EBITDA of the
Guarantors and the consolidated EBITDA of the UK Group at any
time after the Pushdown Date:
(a) prior to the delivery of the financial statements for the
first Financial Quarter ended after the Pushdown Date, shall
be equal to the aggregate EBITDA of the Guarantors or, as
the case may be, the aggregate EBITDA of the UK Group and
the Target Group for the four Financial Quarters ended
before the Pushdown Date or, if less, the number of
Financial Quarters between the Execution Date and the
Pushdown Date annualised by multiplying by the relevant
fraction;
(b) after the delivery of the financial statements for the first
Financial Quarter ended after the Pushdown Date, shall be
equal to the aggregate EBITDA of the Guarantors or, as the
case may be the aggregate EBITDA of the UK Group for that
Financial Quarter, multiplied by four;
(c) after the delivery of the financial statements for the first
two Financial Quarters ended after the Pushdown Date, shall
be equal to the aggregate EBITDA of the Guarantors or, as
the case may be the aggregate EBITDA of the UK Group for
those Financial Quarters, multiplied by two;
(d) after the delivery of the financial statements for the first
three Financial Quarters ended after the Pushdown Date,
shall be equal to the aggregate EBITDA of the Guarantors or,
as the case may be, the aggregate EBITDA of the UK Group for
those Financial Quarters, multiplied by four and divided by
three; and
(e) after the delivery of the financial statements for the first
four Financial Quarters ended after the Pushdown Date, shall
be equal to the aggregate EBITDA of the Guarantors or, as
the case may be the aggregate EBITDA of the UK Group for the
immediately preceding four complete Financial Quarters.
23.32.4 A breach of this Clause 23.32 shall not constitute an Event of
Default if (i) one or more subsidiaries of the Parent or, as the
case may be, the CWC Parent become Guarantors (in accordance with
Clause 38 (Accession of Guarantors and the CWC Parent)), within
five Business Days of the earlier of notice by the Agent to the
Relevant Obligor of the breach and the Relevant Obligor becoming
aware thereof and (ii) the Agent (acting reasonably) is satisfied
that this Clause 23.32 will, as a result of the Guarantors
thereby created, be satisfied.
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23.33 SHARES
No Obligor shall and the Parent shall procure that no member of the UK
Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall procure that no member of the Target Group
shall) without the prior written consent of an Instructing Group, alter
any rights attaching to its issued shares, if:
23.33.1 those shares are subject to the Security and/or the Second
Security; and
23.33.2 such an alteration would be reasonably likely to prejudice the
value of, or the ability of the Security Trustee and/or the
Second Security Trustee to realise, the Security and/or the
Second Security (as the case may be) over the company represented
by those shares.
23.34 TRANSACTIONS WITH AFFILIATES
No Obligor shall and the Parent shall procure that no member of the UK
Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall procure that no member of the Target Group
shall) enter into any transaction with an affiliate other than:
23.34.1 transactions in respect of either Subordinated Funding or Parent
Funding;
23.34.2 transactions between:
(a) Obligors incorporated in the United Kingdom (other than
transactions prohibited under this Agreement);
(b) Obligors incorporated in the United States of America (other
than transactions prohibited under this Agreement); and
(c) any other transaction, not falling within (a) or (b) above
between members of the Group where such are otherwise
permitted by this Agreement;
23.34.3 transactions in the ordinary course of business and either on no
worse than arms' length terms or, where there is no available
market by which to assess whether such a transaction is on no
worse than arms' length terms, on terms such that in the
reasonable opinion of the Parent the transaction is financially
fair to the relevant Obligor, member of the UK Group or, as the
case may be, member of the Target Group;
23.34.4 transactions between Cable & Wireless Communications Services
Limited and members of the Target Group incorporated in the
United States of America, pursuant to existing agency
arrangements, provided that the consideration for the provision
of such agency arrangements is, in the reasonable opinion of the
Parent, no less than the cost (save in any immaterial respect)
incurred by Cable & Wireless Communications Services Limited in
providing such services;
23.34.5 transactions to effect either an Asset Passthrough or a Funding
Passthrough;
23.34.6 insurance arrangements entered into in the ordinary course of
business with NTL Insurance Limited (or its successor as the
captive insurance company to the UK Group);
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23.34.7 tax sharing arrangements and agreements to surrender tax losses;
23.34.8 transactions relating to the provision of Intra-Group Services;
23.34.9 transactions with Cable & Wireless and its subsidiaries in
relation to the Transaction Agreement;
23.34.10 transactions relating to Excess Capacity Network Services
PROVIDED THAT the price payable by any affiliates in relation to
such Excess Capacity Network Services is no less than the cost
incurred by the relevant Obligor, member of the UK Group or, as
the case may be, member of the Target Group in providing such
Excess Capacity Network Services; and
23.34.11 transactions constituted by loans or investments in any UK Group
Excluded Subsidiary or, prior to the Pushdown Date, in any
Target Group Excluded Subsidiary, where such are otherwise
permitted under this Agreement.
23.35 WORKING CAPITAL FACILITY AMENDMENTS
The Parent shall not agree any material amendments to the terms of the
Working Capital Facility and shall not voluntarily cancel or prepay all
or any part thereof:
23.35.1 unless a replacement or substitute therefor is put in place on
terms acceptable to the Banks and it can demonstrate to the
satisfaction of the Banks that both NTL CC and it are still able
to comply with their obligations under Clause 23.21 (Working
Capital Facility); or
23.35.2 an amount equal to such cancellation is invested in the Parent
by way of Subordinated Funding and thereafter by the Parent in
the other members of the UK Group by way of Parent Funding.
23.36 CHANGE IN FINANCIAL YEAR
No Obligor shall and the Parent shall procure that no member of the UK
Group shall (and the CWC Parent (on and after the date on which it
becomes a party hereto) shall prior to the Pushdown Date procure that no
member of the Target Group shall) change the end of its financial year,
other than:
23.36.1 as agreed by an Instructing Group, acting reasonably;
23.36.2 in the case of the CWC Parent and the Target, a change so that
its financial year ends on 31 May 2000 which is (after May 2001)
followed by a change in its financial year so that it ends on the
same day as the Parent's financial year; or
23.36.3 so as to ensure that the financial year of any member of the UK
Group or the Target Group ends on the same date as the financial
year of the Parent.
23.37 REVISED GROUP STRUCTURE
23.37.1 The Pre-Novation Borrower shall, within 30 days of the Execution
Date, deliver to the Agent the Group Structure Chart referred to
in paragraph (b) of the definition of that term;
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23.37.2 If the Relevant Obligor becomes aware of any material inaccuracy
in the corporate structure as set out in either the Group
Structure Chart delivered to the Agent or the Term Banks pursuant
to Clause 2.5 (Initial Conditions Precedent) or any Group
Structure Chart delivered to the Agent pursuant to this Clause
23.37, it will deliver to the Agent as soon as reasonably
practicable thereafter a revised Group Structure Chart which is
true, complete and accurate insofar as it relates to the
corporate structure of the UK Group, the Target Group or the NTL
Holding Group.
23.38 HEDGING
The Parent shall not, and shall procure that no member of the UK Group
shall, enter into any Hedging Agreement other than:
23.38.1 a Secured Hedging Agreement; or
23.38.2 a Hedging Agreement entered into in accordance with the Hedging
Strategy.
23.39 NOTIFICATION OF TARGET GROUP ASSETS
The CWC Parent and the Pre-Novation Borrower shall, within twenty days of
the Acquisition Date provide the Agent with:
23.39.1 a schedule detailing the real property of the Target Group (other
than leasehold interests where a rack rent is paid by the
relevant member of the Target Group) and indicating for each such
property (a) an estimate of its current value and (b) the nature
of its use; and
23.39.2 the details of the material assets of each member of the Target
Group listed in Schedule 13 (Members of the Target Group Granting
Security), who will be providing security over those assets in
accordance with sub-clause 23.17.2 of Clause 23.17
(Post-Acquisition Date Security), to the extent that such details
are reasonably required to enable those assets to be sufficiently
identified for the purpose of effecting such security.
Upon receipt of the schedule referred to in sub-clause 23.39.1 the Agent
(acting reasonably and in consultation with the CWC Parent) shall
determine which properties are material to the business of the Target
Group, such properties being those which will be secured in favour of the
Finance Parties pursuant to Clause 23.17 (Post-Acquisition Date
Security).
23.40 VOLUNTARY PREPAYMENTS
The Pre-Novation Borrower shall not and the Parent shall not, and shall
procure that no member of the UK Group shall (and the CWC Parent (on and
after the date on which it becomes a party hereto) shall not, and shall,
prior to the Pushdown Date, procure that no member of the Target Group
shall) make any Permitted Payment under paragraph (c) of the definition
of that term which is used or intended to be used to fund a voluntary
prepayment by any member of the NTL Holding Group in respect of all or
any part of any bonds, notes or similar public debt instruments issued by
such member of the NTL Holding Group.
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24. EVENTS OF DEFAULT
Each of Clause 24.1 (Failure to Pay) to Clause 24.17 (Material Adverse
Change) describes circumstances which constitute an Event of Default for
the purposes of this Agreement. Clause 24.18 (Acceleration and
Cancellation) and Clause 24.19 (Advances Due on Demand) deal with the
rights of the Agent and the Banks after the occurrence of an Event of
Default.
24.1 FAILURE TO PAY
Any of the Obligors fails to pay any sum due from it under any of the
Finance Documents to which it is a party at the time, in the currency and
in the manner specified therein unless:
24.1.1 the sum is of a principal amount which was not paid as a result
of a technical error or failure in the transmission of funds and
that payment is then received by the Agent within one Business
Day of the due date;
24.1.2 the sum is of an amount of interest and that payment is then
received by the Agent within three Business Days of the due date;
or
24.1.3 the sum is of an amount other than principal or interest and that
payment is then received by the Agent within five Business Days
of the due date.
24.2 MISREPRESENTATION
Any representation or statement made or repeated by NTL CC, the Parent,
the CWC Parent or any Obligor in any of the Finance Documents or in any
notice or other document or certificate delivered by it pursuant thereto
or in connection 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 NTL CC in the case of a representation or statement by NTL
CC, and to the Group Representative in all other cases, as having been
made inaccurately and (b) NTL CC, the Parent, the CWC Parent or the
relevant Obligor becoming aware of such inaccuracy.
24.3 SPECIFIC COVENANTS
NTL CC, the Parent, the CWC Parent or any of the Obligors fails to comply
with any of its obligations under Clause 21 (Financial Information) or
Clause 23 (Covenants). No Event of Default under this Clause 24.3
(Specific Covenants) shall occur in relation to:
24.3.1 Clause 21.1 (Annual Statements) to Clause 21.9 (Other Financial
Information) or Clause 21.11 (General Information) to Clause
21.13 (Acquisition Information), if the failure to comply with
such is remedied within five Business Days of the Agent giving
notice thereof to the Group Representative;
24.3.2 Clause 23 (Covenants), if the failure to comply with such is
capable of remedy and is remedied within five Business Days of
the date on which NTL CC, the Parent, the CWC Parent or, as the
case may be, the relevant Obligor became
142
aware of such failure to comply PROVIDED THAT a breach of any of
the obligations under Clause 23.2 (Claims Pari Passu), Clause
23.3 (Maintenance of Legal Validity), 23.8 (Conduct Business in
Accordance with Licences), 23.16 (Acquisition Date Security),
Clause 23.17 (Post Acquisition Date Security), sub-clause 23.19.1
of Clause 23.19 (Pushdown), Clause 23.23 (Negative Pledge),
Clause 23.24 (Loans and Guarantees), Clause 23.25 (Disposals),
Clause 23.27 (Restricted Payments), Clause 23.28 (Acquisitions
and Investments), Clause 23.30 (Mergers), Clause 23.34
(Transactions with Affiliates) and Clause 23.40 (Voluntary
Prepayments), shall immediately give rise to an Event of Default;
and
24.3.3 Clause 23.4 (Insurance) to Clause 23.12 (Preservations of Assets)
or Clause 23.34 (Transactions with Affiliates), if the failure to
comply with such is attributable to a member of the Target Group,
is capable of remedy and is remedied within thirty days of the
date on which either NTL CC or the Parent becomes aware of such
failure to comply PROVIDED THAT this sub-clause 24.3.3 shall
cease to apply after the date falling twenty weeks after the
Acquisition Date.
24.4 OTHER OBLIGATIONS
NTL CC, the Parent, the CWC Parent or any of the Obligors fails duly to
perform or comply with any other obligation expressed to be assumed by it
in any of the Finance Documents and such failure is not remedied within
thirty days after the Agent has given notice thereof to NTL CC, the
Parent, the CWC Parent or, in the case of any Obligor, the Group
Representative.
24.5 FINANCIAL CONDITION
At any time any of the requirements of Clause 22.1 (Target Group
Financial Condition) or Clause 22.2 (UK Group Financial Condition) is not
satisfied.
24.6 CROSS DEFAULT
Any:
24.6.1 Financial Indebtedness of any Obligor or of any other member of
the UK Group or, after the Acquisition Date and prior to the
Pushdown Date of any other member of the Target Group is not paid
when due and payable, after taking account of any applicable
grace period, or, if payable on demand (after taking account of
any applicable grace period), is not paid on demand;
24.6.2 Financial Indebtedness of any Obligor or of any other member of
the UK Group or, after the Acquisition Date and prior to the
Pushdown Date of any other member of the Target Group is declared
to be or otherwise becomes due and payable prior to its specified
maturity by reason of a default by the relevant Obligor or other
member of the UK Group or Target Group (as the case may be)
(after taking account of any applicable grace period);
24.6.3 commitment for any Financial Indebtedness of any Obligor, or of
any other member of the UK Group or, after the Acquisition Date
and prior to the Pushdown Date, of any other member of the Target
Group is cancelled or
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suspended by reason of a default by the relevant Obligor or other
member of the UK Group or Target Group (as the case may be); or
24.6.4 creditor or creditors of any Obligor or of any other member of
the UK Group or after the Acquisition Date and prior to the
Pushdown Date, of any other member of the Target Group becomes
entitled (by reason of default) to declare any Financial
Indebtedness of such Obligor or other member of the UK Group or
Target Group (as the case may be) due and payable prior to its
specified maturity by reason of default by the relevant Obligor
or other member of the UK Group or Target Group (as the case may
be) after taking account of any applicable grace period,
save that this Clause shall not apply to any Financial Indebtedness of
any Obligor or of any other member of the UK Group (or, prior to the
Pushdown Date, of any other member of the Target Group) where such
Financial Indebtedness or demand in relation thereto (a) is Existing
Target Indebtedness PROVIDED THAT if any such Existing Target
Indebtedness is accelerated or otherwise becomes due and payable it is
repaid in full by the earlier of 5 Business Days after the demand for
repayment or the end of the grace period contractually provided for in
respect thereof (and the Revolving Facility may be utilised for such
purpose), (b) is cash collateralised and such cash is available for
application in satisfaction of such Financial Indebtedness, (c) is being
contested in good faith by appropriate action or (d) when aggregated with
all such Financial Indebtedness of the Obligors and any other members of
the UK Group or prior to the Pushdown Date of any members of the Target
Group does not exceed an aggregate of Pound Sterling20,000,000 (or its
equivalent in other currencies).
24.7 INSOLVENCY AND RESCHEDULING
If (a) NTL CC; (b) any Obligor; (c) on or prior to the Pushdown Date, any
member of the UK Group or (d) prior to all of the members of the Target
Group required to become Guarantors in accordance with Clause 23.17
(Post-Acquisition Date Security) having done so, any member of the Target
Group:
24.7.1 is unable to pay its debts as they fall due;
24.7.2 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
NTL CC or the relevant Obligor, member of the UK Group or member
of the Target Group, on terms which have been approved in writing
by the Agent, acting on the instructions of an Instructing
Group);
24.7.3 makes a general assignment for the benefit of or a composition
with its creditors; or
24.7.4 has a moratorium declared in respect of any of its indebtedness.
24.8 WINDING-UP
If (a) NTL CC; (b) any Obligor; (c) on or prior to the Pushdown Date, any
member of the UK Group or (d) prior to all of the members of the Target
Group required to become Guarantors in accordance with Clause 23.17
(Post-Acquisition Date Security) having
144
done so, any member of the Target Group takes any corporate action or
other steps are taken or legal proceedings are started and served 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
its revenues and assets PROVIDED THAT it shall not constitute an Event of
Default if:
24.8.1 such action, steps or proceedings relate to a solvent liquidation
or re-organisation of a member of the UK Group or, prior to the
Pushdown Date, of a member of the Target Group which, in either
case 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
24.8.2 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 jurisdiction) and (c) are contested in
good faith by appropriate legal action and are stayed or
discharged within thirty days of their commencement.
24.9 EXECUTION OR DISTRESS
Any execution, distress or diligence is levied against, or an
encumbrancer takes possession of, the whole or any part of, the property,
undertaking or assets of (a) NTL CC; (b) any Obligor; (c) on or prior to
the Pushdown Date, any member of the UK Group or (d) prior to all of the
members of the Target Group required to become Guarantors in accordance
with Clause 23.17 (Post-Acquisition Date Security) having done so, any
member of the Target Group where:
24.9.1 the aggregate value of such assets exceeds Pound Sterling250,000;
and
24.9.2 such execution, distress, diligence or possession is not
discharged within thirty days.
24.10 ANALOGOUS EVENTS
Any event occurs which under the laws of any jurisdiction has a similar
or analogous effect to any of those events mentioned in Clause 24.7
(Insolvency and Rescheduling), Clause 24.8 (Winding-up) or Clause 24.9
(Execution or Distress).
24.11 GOVERNMENTAL INTERVENTION
By or under the authority of any government, (a) the management of any
Obligor or, prior to the Pushdown Date, any member of the UK Group is
wholly or partially displaced or the authority of any Obligor or, prior
to the Pushdown Date, any member of the UK Group in the conduct of a
material part of its business is wholly or partially curtailed or (b) all
or a majority of the issued shares of any Obligor or, prior to the
Pushdown Date, any member of the UK Group 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.
24.12 REPUDIATION
24.12.1 NTL CC or any Obligor repudiates any of the Finance Documents; or
145
24.12.2 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 Group Representative and (b) the date on
which NTL CC or the relevant Obligor becomes aware of such event)
binding and enforceable.
24.13 ILLEGALITY
At any time it is or becomes unlawful for NTL CC or any of the Obligors
to perform or comply with any or all of its obligations under any of the
Finance Documents to which it is a party or any of the obligations of NTL
CC or any of the Obligors thereunder are not or cease to be legal, 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 Group Representative and
(b) the date on which NTL CC or, as the case may be, the relevant Obligor
becomes aware of such event) binding and enforceable.
24.14 ASSET ADJUSTMENT PAYMENTS
If, following a member of the Target Group having made an Asset
Adjustment Payment within paragraph (a) of the definition thereof, NTL
Holdings fails to procure that an amount equal to such an Asset
Adjustment Payment is (in accordance with the other terms of this
Agreement) reimbursed to that member of the Target Group on or before the
date which is the earlier of:
24.14.1 ten Business Days after the date on which NTL Holdings receives a
reimbursement from Cable & Wireless for such an Asset Adjustment
Payment; and
24.14.2 thirty Business Days after the date on which such an Asset
Adjustment Payment is made,
PROVIDED THAT the aggregate amount of Asset Adjustment Payments for which
members of the Target Group have not been reimbursed in accordance with
this Clause 24.14 exceeds Pound Sterling10,000,000 (or its equivalent).
24.15 DEBT ADJUSTMENT PAYMENTS
If, following a Debt Adjustment Payment having being made to NTL Holdings
(or any other member of the Group) in accordance with paragraph (a) of
the definition thereof, NTL Holdings fails to procure that an amount
equal to such a Debt Adjustment Payment is (in accordance with the other
terms of this Agreement) invested in the Target Group or the Pre-Novation
Borrower by the date which is:
24.15.1 in respect of Debt Adjustment Payments anticipated on the
Execution Date, ten Business Days after the date on which NTL
Holdings receives such a Debt Adjustment Payment; and
24.15.2 in respect of all other Debt Adjustment Payments, thirty Business
Days after the date on which NTL Holdings receives such a Debt
Adjustment Payment,
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PROVIDED THAT the aggregate amount of Debt Adjustment Payments for which
members of the Target Group or the Pre-Novation Borrower have not been
reimbursed in accordance with this Clause 24.15 exceeds Pound
Sterling10,000,000 (or its equivalent).
24.16 COVENANT GROUP CROSS DEFAULT
Any Permitted Covenant Group Indebtedness is not paid when due and
payable (after taking into account any applicable grace period) or (by
reason of the occurrence of a default) is declared to be or otherwise
becomes due and payable prior to its specified maturity or any holder or
any creditor in respect of any such Financial Indebtedness becomes
entitled to declare such Financial Indebtedness due and payable prior to
its specified maturity save that this Clause shall not apply to any
Financial Indebtedness of any member of the Covenant Group where such
Financial Indebtedness when aggregated with all such Financial
Indebtedness of any members of the Covenant Group does not exceed an
aggregate of Pound Sterling20,000,000 (or its equivalent).
24.17 MATERIAL ADVERSE CHANGE
Any event or circumstance which would have a Material Adverse Effect
occurs.
24.18 ACCELERATION AND CANCELLATION
Upon the occurrence of an Event of Default and at any time thereafter
whilst such event is continuing, the Agent may (and, if so instructed by
an Instructing Group, shall) by written notice to the Relevant Obligor:
24.18.1 declare 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 hereunder)
or declare the Advances to be due and payable on demand of the
Agent; and/or
24.18.2 declare that any undrawn portion of the Facilities shall be
cancelled, whereupon the same shall be cancelled and the
Available Commitment of each Bank shall be reduced to zero;
and/or
24.18.3 exercise or direct the Security Trustee (on its own behalf and on
behalf of the Banks and the Hedge Counterparties) and the Second
Security Trustee (on its own behalf and on behalf of the Term
Banks), but not only one of them, to exercise all rights and
remedies of a mortgagee or a secured party at such time and
(without limitation), subject to the Security Documents and the
Second Security Documents and to the extent permitted by
applicable law, (a) foreclose on any or all of the assets subject
to the Security and/or the Second Security by any available
judicial procedure, (b) take possession of any or all of the
assets subject to the Security and/or the Second 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 and/or the Second Security, or any books and records
relating thereto, are located and take possession of and remove
the same therefrom.
24.19 ADVANCES DUE ON DEMAND
If, pursuant to Clause 24.18 (Acceleration and Cancellation), the Agent
declares the Advances to be due and payable on demand of the Agent, then,
and at any time
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thereafter, the Agent may (and, if so instructed by an Instructing Group,
shall) by written notice to the Parent:
24.19.1 require repayment of the Advances on such date as it may specify
in such notice (whereupon the same shall become due and payable
on such date together with accrued interest thereon and any other
sums then owed by the Borrowers hereunder) or withdraw its
declaration with effect from such date as it may specify in such
notice; and/or
24.19.2 select as the duration of any Term or Interest Period which
begins whilst such declaration remains in effect a period of six
months or less; and/or
24.19.3 exercise or direct both the Security Trustee and the Second
Security Trustee (but not only one of them) to exercise (on its
own behalf and on behalf of the Banks who have appointed it) all
rights and remedies of a mortgagee or a secured party in
accordance with sub-clause 24.18.3 of Clause 24.18 (Acceleration
and Cancellation).
24.20 ENFORCEMENT OF THE SECOND SECURITY
If there has been a notice from the Agent pursuant to either Clause 24.18
(Acceleration and Cancellation) or Clause 24.19 (Advances Due on Demand)
and the Security Documents have been discharged or the Term Banks
demonstrate to the satisfaction of the Security Trustee (acting
reasonably) that the Security Documents are incapable of being enforced,
the Agent shall act on the instructions of a Term Instructing Group in
relation to the giving of instructions to the Second Security Trustee
pursuant to sub-clause 24.18.3 of Clause 24.18 (Acceleration and
Cancellation) and sub-clause 24.19.3 of Clause 24.19 (Advances Due on
Demand).
25. GUARANTEE AND INDEMNITY
25.1 GUARANTEE AND INDEMNITY
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 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 each
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.
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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
Borrower 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;
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.
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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 an Obligor; and/or
25.7.2 to claim any contribution from any other guarantor of any
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 of any other guarantee or security
taken pursuant to, or in connection with, the Finance Documents
by any Finance Party.
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
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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 LIABILITY OF GROUP FOR TARGET GROUP
Notwithstanding any other provision of the Finance Documents, no member
of the Group (other than the Pre-Novation Borrower and any member of the
Target Group) shall, prior to the Pushdown Date, be liable for or in
respect of, or to procure the performance of, any obligations of the
Pre-Novation Borrower or of any members of the Target Group nor, prior to
the Pushdown Date, shall there be any recourse to a member of the Group
(other than the Pre-Novation Borrower and any member of the Target Group)
for any representation, warranty or certification made in respect of the
Pre-Novation Borrower or any member of the Target Group or any document,
circumstances or matter pertaining to any member of the Target Group or
the Pre-Novation Borrower nor prior to the Pushdown Date, shall any
member of the Group (other than the Pre-Novation Borrower and any member
of the Target Group) be liable for any commitment commission or costs,
expenses or taxes arising in connection with the availability of the
Revolving Facility or the utilisation of the Revolving Facility by the
Pre-Novation Borrower or any member of the Target Group nor, prior to the
Pushdown Date, shall any of the Finance Parties exercise any right to
consolidate or set-off credit balances maintained by any member of the
Group (other than the Pre-Novation Borrower or any member of the Target
Group) against any obligations or liabilities of the Pre-Novation
Borrower or any member of the Target Group.
26. COMMITMENT COMMISSION AND FEES
26.1 COMMITMENT COMMISSION ON THE REVOLVING FACILITY
The Borrowers, acting through the Relevant Obligor, shall pay to the
Agent for the account of each Revolving Bank in respect of each
Commitment Period (as defined below) a commitment commission calculated
at the rate per annum determined pursuant to Clause 26.2 (Rate of
Commitment Commission on the Revolving Facility) on an amount equal to
the average daily Available Revolving Commitments during such Commitment
Period.
26.2 RATE OF COMMITMENT COMMISSION ON THE REVOLVING FACILITY
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.
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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 Commitment Commission on the Revolving
Facility):
26.3.1 "COMMITMENT PERIOD" means each successive period of three months
during the period beginning on the date hereof and ending on the
date falling one month before the Revolving Termination Date
PROVIDED THAT (a) if such a period would otherwise extend beyond
the next succeeding Revolving Reduction Date it shall be
shortened so as to end on that date and (b) if the last such
period would otherwise extend beyond the Revolving 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 Revolving 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 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 ON THE REVOLVING FACILITY
The Agent shall promptly after the end of each Commitment Period notify
the Relevant Obligor (on behalf of the Borrowers) and the Revolving Banks
of the amounts payable by the Borrowers under Clause 26.1 (Commitment
Commission on the Revolving Facility) in respect of such Commitment
Period and the Borrowers, acting through the Relevant Obligor, shall pay
such amount to the Agent for account of the Revolving Banks pro rata to
each Revolving Bank's Revolving Commitment hereunder from time to time
during the applicable Commitment Period within five Business Days of such
notification.
26.5 FUNDING FEE ON THE TERM FACILITY
The Post Novation Borrower shall:
26.5.1 on the date on which the Term Advance is made, pay to the Agent
for the account of each Term Bank (pro rata to its participation
in the Term Advance) a funding fee in the amount set out in a
letter agreement between NTL Holdings, NTL Inc., General Electric
Capital Corporation and SFG VI Inc., dated 22 June 2001 on the
date the Term Advance is made; and
26.5.2 pay to the Term Banks for their own account the fees and expenses
specified in the commitment letter dated 27 April 2001 between
General Electric Capital Corporation and NTL Holdings (and its
attachments) at the times and in the amounts specified in such
letter (and its attachments), as amended and
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supplemented from time to time in writing, including by the
letter agreement between General Electric Capital Corporation,
SFG VI Inc., NTL Inc. and NTL Holdings dated 22 June 2001 (and
its attachments) an the letter agreement between NTL Holdings and
General Electric Capital Corporation dated 18 July 2001 (and its
attachments).
26.6 FEES FOR ADDITIONAL FINANCE PROVIDERS
The Post-Novation Borrower shall pay to each Additional Finance Provider
fees in the amount and at the times as may be agreed between the
Post-Novation Borrower and that Additional Finance Provider.
26.7 AGENCY AND OTHER FEES
The Relevant Obligor shall:
26.7.1 pay (or shall procure that the Borrowers shall pay) to the Agent
for its own account the agency fees specified in the letter dated
16 May 2000 from the Agent to NTL Inc. and the Parent at the
times, and in the amounts, specified in such letter; and
26.7.2 pay (or shall procure that the Borrowers shall pay) to the
Arrangers the fees specified in the letter dated 17 May 2000 from
the Arrangers (and others) to NTL Inc. and the Parent (and the
attachments thereto) at the times, and in the amounts, specified
in such letters.
27. COSTS AND EXPENSES
27.1 TRANSACTION EXPENSES
The Borrowers (acting through the Relevant Obligor) shall, from time to
time on demand of the Agent, reimburse each of the Agent, the Term Banks
and the Arrangers for all reasonable costs and expenses (including legal
fees) together with any VAT thereon incurred by it in connection with the
negotiation, preparation and execution of the Finance Documents, any
other document referred to in the Finance Documents and the completion of
the transactions therein contemplated.
27.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Borrowers, acting through the Relevant Obligor 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).
For the avoidance of doubt, if the Term Banks or the Revolving Banks
shall decide at any time in connection with the Finance Documents that
they require separate advisors, the cost of separate advisors shall be
reimbursed on the terms and subject to the conditions of this Clause
27.2.
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27.3 STAMP TAXES
The Borrowers, acting through the Relevant Obligor, shall pay all stamp,
registration and other taxes to which the Finance Documents or any
judgment given in connection therewith is or at any time may be subject
and shall, from time to time on 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.
27.4 AMENDMENT COSTS
If an Obligor requests any amendment, waiver or consent then the
Borrowers, acting through the Relevant Obligor, shall, within five
Business Days of demand by the Agent, reimburse the Finance Parties for
all costs and expenses (including legal fees) together with any VAT
thereon reasonably incurred by such person in responding to or complying
with such request.
27.5 BANKS' LIABILITIES FOR COSTS
If any of the Borrowers fail to perform any of its obligations under this
Clause 27.5, each Bank shall, in its Proportion, indemnify each of the
Agent and the Arrangers against any loss incurred by any of them 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 (in either case an
"UNPAID SUM"), 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 an "INTEREST PERIOD"), each of which (other
than the first) shall start on the last day of the preceding Interest
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
under the Term Facility (to the extent that the Unpaid Sum is owed to
Term Banks) or the Revolving Facility (to the extent that the Unpaid Sum
is owed to the Revolving Banks) in the amount and currency of such Unpaid
Sum and for the same Term or 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 a Term or Interest Period 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 Term
or Interest Period 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 in relation to a Revolving
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Advance, the Revolving Margin shall be, or be deemed to be, 2.25
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 to the Finance Parties to
whom such Unpaid Sum is owed on the last day of its Interest Period in
respect thereof or on such other dates as the Agent may specify by notice
to such Obligor.
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 the Term or Interest Period relating thereto, the
Borrowers (acting through the Relevant Obligor) shall pay to the Agent on
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 Term or Interest Period exceeds (b) the amount of
interest which in the opinion of the Agent would have been payable to the
Agent on the last day of that Term or Interest Period in respect of a
deposit in the currency of the amount so received or recovered equal to
the amount so received or recovered placed by it 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 Term or
Interest Period.
29. BORROWERS' INDEMNITIES
29.1 BORROWERS' INDEMNITY
The Borrowers, acting through the Relevant Obligor, 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
27.5 (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;
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29.2.2 obtaining or enforcing an order or judgment in any court or other
tribunal,
the Borrowers, acting through the Relevant Obligor, 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
Sterling is the currency of account and payment for each and every sum at
any time due from an Obligor hereunder, PROVIDED THAT:
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 (Borrowers' Indemnities) 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 on 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 on the same day to the
account of such Borrower with such bank in London as
such Borrower shall have previously notified to the
Agent for this purpose; and
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(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
London 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.
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 PARTIAL PAYMENTS
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 that Obligor under
this Agreement in the following order:
31.6.1 FIRST, in or towards payment of any unpaid costs and expenses of
the Agent;
31.6.2 SECONDLY, in or towards payment pro rata of any accrued interest
or commitment commission due but unpaid;
31.6.3 THIRDLY, in or towards payment pro rata of any principal due but
unpaid; and
31.6.4 FOURTHLY, in or towards payment pro rata of any other sum due but
unpaid.
31.7 VARIATION OF PARTIAL PAYMENTS
The order of partial payments set out in Clause 31.6 (Partial Payments)
shall override any appropriation made by the Obligor to which the partial
payment relates but the order set out in sub-clauses 31.6.2, 31.6.3 and
31.6.4 of Clause 31.6 (Partial Payments) may be varied if agreed by all
the Banks.
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31.8 BUSINESS DAYS
31.8.1 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).
31.8.2 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.
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 Bank (a "RECOVERING BANK") applies any receipt or recovery from an
Obligor to a payment due under this Agreement and such amount is received
or recovered other than in accordance with Clause 31 (Payments), then
such Recovering Bank 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 as its share of any payment to be made in
accordance with Clause 31.6 (Partial Payments).
33.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Bank) in accordance with Clause 31.6 (Partial
Payments).
33.3 RECOVERING BANK'S RIGHTS
The Recovering Bank will be subrogated into the rights of the parties
which have shared in a redistribution pursuant to Clause 33.2
(Redistribution of Payments) in respect of the Sharing Payment (and the
relevant Obligor shall be liable to the Recovering Bank 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 becomes repayable and is repaid by such Recovering Bank, then:
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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 an amount equal to its share of such Sharing
Payment; and
33.4.2 such Recovering Bank's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor 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 would not, after
making any payment pursuant hereto, have a valid and enforceable claim
against the relevant Obligor.
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 SECURED HEDGING AGREEMENTS
The Parent shall provide the Agent with, as soon as is reasonably
practicable after the same are entered into, copies of the Secured
Hedging Agreements entered into by either it or any member of the UK
Group pursuant to Clause 23.38 (Hedging). The Parent and each Hedge
Counterparty shall ensure that each Secured Hedging Agreement to which
(a) (in the case of the Parent) it or any other member of the UK Group is
a party or (b) (in the case of a Hedge Counterparty) it is a party:
33.7.1 provides for "two-way payments" in the event of a termination of
a hedging transaction entered into pursuant to a Secured Hedging
Agreement whether upon a termination event or an event of default
(each as defined in the Secured Hedging Agreement), meaning that
the defaulting party under that Secured Hedging Agreement will be
entitled to receive payment under the relevant termination
provisions if the net replacement value of all terminated
transactions effected under the Hedging Agreement is in its
favour; and
33.7.2 includes as an event of default (as defined in the Secured
Hedging Agreement) an Event of Default.
33.8 TERMINATION OF SECURED HEDGING AGREEMENTS
Each Hedge Counterparty shall:
33.8.1 if (a) any hedging transaction under any Secured Hedging
Agreement to which it is party is terminated, (b) a settlement
amount or other amount falls due from it to any member of the UK
Group under such a Secured Hedging Agreement and (c) the Security
has become, and remains at the proposed date of payment
enforceable, pay such settlement amount to the Security Trustee;
and
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33.8.2 unless the Agent otherwise instructs it, exercise any rights it
may have to terminate the hedging transactions under the Secured
Hedging Agreements to which it is 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 24.18 (Acceleration and
Cancellation) or Clause 24.19 (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 Hedge Counterparty will:
33.9.1 demand or receive payment, prepayment (other than a prepayment
arising due to the prepayment of an Advance permitted by this
Agreement), 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 Secured
Hedging Agreements; and
(b) the proceeds of enforcement of the Security Documents
received and applied in the order permitted by the Security
Trust Agreement;
33.9.2 exercise any right it might otherwise have pursuant to any
Secured Hedging Agreement to terminate any hedging transactions
under such Secured 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 24.18
(Acceleration and Cancellation) or Clause 24.19 (Advances Due on
Demand);
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.
33.10 AMENDMENT OF SECURED HEDGING AGREEMENTS
Except with the prior written consent of the Agent (acting on the
instructions of an Instructing Group), neither a member of the UK Group
nor a Hedge Counterparty will amend, vary, supplement or allow to be
superseded any provision of the Secured Hedging Agreements which would
result in:
33.10.1 any provision in the Secured 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
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obligations or conditions on any member of the UK Group which are
more onerous than those originally provided for in the Secured
Hedging Agreements;
33.10.2 any payment under the Secured Hedging Agreements being required
to be made by a member of the UK Group earlier than the date
originally provided for in the Secured Hedging Agreements (except
where that payment is made as a result of the prepayment of an
Advance permitted by this Agreement); or
33.10.3 any member of the UK Group becoming liable to make an additional
payment (or increase an existing payment) under any of the
Secured Hedging Agreements, where such liability does not arise
from the original provisions of the Secured Hedging Agreements.
34. THE AGENT, THE ARRANGERS AND THE BANKS
34.1 APPOINTMENT OF THE AGENT
Each of the Arrangers and the Banks hereby appoints the Agent to act as
its agent in connection herewith and authorises the Agent to exercise
such rights, powers, authorities and discretions as are specifically
delegated to the Agent by the terms hereof together with all such rights,
powers, authorities and discretions as are reasonably incidental thereto.
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,
the CWC Parent, NTL CC or an Obligor in connection with the
Finance Documents is true, (b) no Event of Default or Potential
Event of Default has occurred, (c) neither the Parent, the CWC
Parent, NTL CC 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 12 (Mandatory Costs) is true
and correct in all respect until it has received from such Bank
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 an Obligor upon a certificate
signed by or on behalf of such Obligor;
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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 hereunder 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 Relevant Obligor 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, the CWC Parent, NTL CC or an Obligor under the Finance
Documents;
34.3.2 promptly notify each Bank of the occurrence of any Event of
Default or any default by 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 of all or any part of the Advances
being declared to be immediately due and payable in accordance
with either Clause 24.18 (Acceleration and Cancellation) or
Clause 24.19 (Advances Due on Demand);
34.3.5 save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by an Instructing
Group (or if specifically provided for in the Finance Documents,
Term Instructing Group or Revolving Instructing Group as the case
may be), which instructions shall be binding on the Arrangers and
the Banks;
34.3.6 if so instructed by an Instructing Group (or if specifically
provided for in the Finance Documents, Term Instructing Group or
Revolving Instructing Group as the case may be), refrain from
exercising any right, power or discretion vested in it as agent
hereunder; 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.
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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 the Parent, the CWC Parent, NTL CC
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, the CWC Parent, NTL CC or an Obligor of its obligations
under the Finance Documents or (d) any breach of or default by
either the Parent, the CWC Parent, NTL CC or an Obligor of or
under its obligations under the Finance Documents;
34.4.2 be bound to account to any Bank 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 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.
34.5 DELEGATION
The Agent may delegate, transfer or assign to any of its holding
companies, subsidiaries or subsidiaries of any of its holding companies
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 Revolving 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
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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, the CWC Parent, NTL CC and the Obligors in
this Agreement 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 Revolving 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:
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, the CWC Parent, NTL CC 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 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 an Arranger 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). Any third party
referred to in this Clause 34.8 may enjoy the benefit of, or enforce the
terms of, this Clause 34.8 in accordance with the provisions of the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇.
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 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.
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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 Relevant Obligor,
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 Relevant Obligor 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 hereto shall have the
same rights and obligations amongst themselves as they would have had if
such successor had been a party hereto.
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 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
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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, the CWC Parent, NTL CC or 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 12 (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.
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 NTL
Neither the Parent, the CWC Parent, NTL CC nor any Obligor shall be
entitled to assign or transfer all or any of its rights, benefits and
obligations under the Finance Documents, other than as permitted pursuant
to the terms of this Agreement PROVIDED THAT the Pre-Novation Borrower
may novate its rights and obligations under the Finance Documents to the
Post-Novation Borrower pursuant to the implementation of the Pushdown.
35.3 ASSIGNMENT AND TRANSFERS BY BANKS
35.3.1 Any Bank may, at any time, assign all or any of its rights and
benefits hereunder or 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.
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35.3.2 The prior written consent of the Relevant Obligor (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) any subsidiary or holding company (or to any subsidiary of
any holding company) of the transferring Bank.
35.3.3 The Relevant Obligor'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.
35.4 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 Agent, the Arrangers and
the other Banks 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 and the other Banks 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:
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, the CWC
Parent, NTL CC 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, the CWC Parent, NTL CC and 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 CWC Parent, NTL CC, the Obligors and such Transferee
have assumed and/or acquired the same in place of the Parent, the
CWC Parent, NTL CC the Obligors and such Bank;
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35.5.3 the Agent, the Arrangers, 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 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 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), in each case where such an assignment or transfer
takes effect after the Syndication Date, the relevant assignee or
Transferee shall pay to the Agent for its own account a fee of Pound
Sterling1,000.
35.8 DISCLOSURE OF INFORMATION
Any Bank may disclose to any person:
35.8.1 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;
35.8.2 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;
35.8.3 to whom information may be required to be disclosed by any
applicable law; or
35.8.4 any of its subsidiaries or any holding company (or any subsidiary
of a holding company),
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such information about the Parent, the CWC Parent, NTL CC, any Obligor or
the Group and the Finance Documents as such Bank shall consider
appropriate PROVIDED THAT, in relation to sub-clauses 35.8.1 and 35.8.2,
the person to whom such information is to be given has entered into a
Confidentiality Undertaking. Any Bank which discloses any such
information to any of the persons referred to in sub-clause 35.8.4 shall
procure that those persons keep the information they receive confidential
(save for disclosures they are required to make by any applicable law).
35.9 NOTIFICATION
The Agent shall within fourteen days of receiving a Transfer Certificate
or a notice relating to an assignment pursuant to Clause 35.4
(Assignments by Banks) notify the Relevant Obligor (on its own behalf and
on behalf of the other Obligors) of any assignment or transfer completed
pursuant to this Clause 35.
35.10 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ COMMITMENT
References to the Revolving Commitment of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Bank
Limited in relation to the Revolving Facility shall be construed as
references to the aggregate Revolving Commitment in relation to the
Revolving Facility of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Bank Limited and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Senior Funding, Inc., in such proportions as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ Bank Limited notifies to the Agent from time to time and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Senior Funding, Inc. is a party to this Agreement to give effect
to such Revolving Commitment (as so notified).
36. ECONOMIC AND MONETARY UNION
36.1 ECONOMIC AND MONETARY UNION
If the United Kingdom becomes a Participating Member State and as a
result the Bank of England recognises more than one currency or currency
unit as the lawful currency of the United Kingdom:
36.1.1 (unless prohibited by law) the Agent may designate (after
consultation with the Relevant Obligor) which currency or
currency unit the obligations arising under the Finance Documents
are to be denominated or payable in;
36.1.2 (unless prohibited by law) any translation from currency or
currency unit to another shall be at the official rate of
exchange recognised by the Bank of England for conversion,
rounded up or down by the Agent (acting reasonably); and
36.1.3 the Finance Documents shall be subject to such reasonable changes
of construction as the Agent may specify from time to time to be
appropriate to reflect the adoption of the euro in the United
Kingdom and any relevant market conventions or practices relating
to the euro.
36.1.4 any amount payable by the Agent to the Banks under the Finance
Document shall be paid in the euro unit.
36.2 INCREASED COSTS
The Relevant Obligor shall, from time to time on demand of the Agent, pay
to the Agent for the account of such Bank the amount of any cost or
increased cost incurred by, or of
169
any reduction in any amount payable to or in the effective return on its
capital to, or of interest or other return foregone by, a Bank or any
holding company of such Bank as a result of the introduction of,
changeover to or operation of the euro in the United Kingdom, other than
any such cost or reduction or amount foregone reflected in the Mandatory
Cost Rate.
37. ADDITIONAL BORROWERS
37.1 REQUEST FOR ADDITIONAL BORROWER
The Relevant Obligor may request that any member of the Target Group or
any member of the UK Group become an Additional Borrower under the
Revolving Facility by delivering to the Agent a Borrower Accession
Memorandum duly executed by the Relevant Obligor and such member of the
Target Group or, as the case may be, the UK Group, together with the
documents and other evidence listed in Part A (Accession Conditions
Precedent) Schedule 10 (Additional Conditions Precedent) in relation to
such member of the Target Group or, as the case may be, the UK Group.
37.2 BORROWER CONDITIONS PRECEDENT
A company, in respect of which the Relevant Obligor has delivered a
Borrower Accession Memorandum to the Agent, shall become an Additional
Borrower under the Revolving Facility and assume all the rights, benefits
and obligations of a Borrower as if it had originally been a Borrower
under the Revolving Facility on the date on which the Agent notifies the
Relevant Obligor that the Agent has received, in form and substance
satisfactory to it, all documents and other evidence listed in Part A
(Accession Conditions Precedent) of Schedule 10 (Additional Conditions
Precedent) in relation to such member of the Target Group or, as the case
may be, the UK Group, unless on such date an Event of Default or
Potential Event of Default is continuing or would occur as a result of
such member of the Target Group or, as the case may be, the UK Group
becoming an Additional Borrower.
37.3 RESIGNATION OF A BORROWER
If at any time a Borrower (other than, prior to the Pushdown Date, the
Pre-Novation Borrower and, at any time thereafter, the Post-Novation
Borrower for so long as it has the rights and obligations of the
Pre-Novation Borrower (which were novated to it)) is under no actual or
contingent obligation under or pursuant to any Finance Document, the
Relevant Obligor 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 Relevant Obligor that it is satisfied that such Borrower is
under no actual or contingent obligation under or pursuant to any Finance
Document and such Borrower shall immediately cease to be a Borrower and
shall have no further rights, benefits or obligations hereunder save for
those which arose prior to such date.
38. ACCESSION OF GUARANTORS AND THE CWC PARENT
38.1 REQUEST FOR GUARANTOR
The Relevant Obligor may request that any member of the UK Group or,
prior to the Pushdown Date, the Target Group become a Guarantor by
delivering to the Agent a Guarantor Accession Memorandum duly executed by
the Relevant Obligor and such
170
member of the UK Group or, as the case may be, the Target Group, together
with the documents and other evidence listed in Part A (Accession
Conditions Precedent) of Schedule 10 (Additional Conditions Precedent) in
relation to such subsidiary.
38.2 GUARANTOR CONDITIONS PRECEDENT
A company, in respect of which the Relevant Obligor has delivered a
Guarantor Accession Memorandum to the Agent, shall became a 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 Relevant Obligor that it has received, in form and
substance satisfactory to it, all the documents and other evidence listed
in:
38.2.1 Part C (CWC Holdings Conditions Precedent) of Schedule 3
(Conditions Precedent), in respect of the accession of CWC
Holdings as a Guarantor; or
38.2.2 Part A (Accession Conditions Precedent) of Schedule 10
(Additional Conditions Precedent), in all other cases.
38.3 RESIGNATION OF A GUARANTOR
The Relevant Obligor may request that a Guarantor (other than, prior to
the Pushdown Date, the CWC Parent and, at any time thereafter, the
Parent) ceases to be a Guarantor by delivering to the Agent a Resignation
Notice. The Agent shall accept such Resignation Notice and notify the
Relevant Obligor of its acceptance (whereupon such Guarantor shall
immediately cease to be a Guarantor and shall have no further rights,
benefits or obligations hereunder) if:
38.3.1 the Agent has received evidence, in form and substance
satisfactory to it, confirming that after the release of such a
Guarantor the requirements of Clause 23.32 (Guarantors) will
continue to be satisfied; or
38.3.2 an Instructing Group has consented to such request,
unless on such date an Event of Default or Potential Event of Default is
continuing or would occur as a result of such cessation.
38.4 ACCESSION OF CWC PARENT
Upon the Pre-Novation Borrower delivering the CWC Accession Memorandum to
the Agent, CWC Holdings shall:
38.4.1 become a Guarantor in accordance with, and subject to the
requirements of, Clause 38.2 (Guarantor Conditions Precedent);
and
38.4.2 become the CWC Parent and assume all the rights, benefits and
obligations of the CWC Parent as if it had been an original party
hereto as the CWC Parent.
38.5 NTL TRIANGLE ACCESSION
The Parent may request that all the members of the NTL Triangle Sub-Group
become Guarantors by delivering to the Agent Guarantor Accession
Memoranda duly executed by the Parent and the members of the NTL Triangle
Sub-Group, together with the documents and other evidence listed in Part
A (Accession Conditions Precedent) and
171
Part B (Security Documentation) of Schedule 10 (Additional Conditions
Precedent) in relation to such members of the NTL Triangle Sub-Group.
38.6 NTL TRIANGLE ACCESSION CONDITIONS PRECEDENT
The members of the NTL Triangle Sub-Group, in respect of which the Parent
has delivered Guarantor Accession Memoranda to the Agent, shall became
Guarantors and each 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 Parent that it has received, in
form and substance satisfactory to it:
38.6.1 all the documents and other evidence listed in Part A (Accession
Conditions Precedent) and Part B (Security Documentation) of
Schedule 10 (Additional Conditions Precedent);
38.6.2 a pro forma business plan (over a period ending no earlier than
31 December in the year of the Term Final Maturity Date),
together with the key operating assumptions relating thereto,
such a pro forma business plan demonstrating:
(a) pro forma compliance with the financial covenants set out in
Clause 22 (Financial Condition) until the Term Final
Maturity Date; and
(b) that amounts available for drawdown under the Facilities and
under other financing sources committed to the UK Group are
sufficient to meet the UK Group's projected financing needs
until the Term Final Maturity Date; and
38.6.3 representations from the Parent to the Finance Parties (in the
form agreed by the Agent, acting reasonably) in relation to such
a business plan.
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 365 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
172
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 (Borrower's Indemnity) or
(c) the amount of any credit, relief, remission or repayment as is
mentioned in Clause 16.3 (Tax Credit Payment), Clause 16.4 (Tax Credit
Clawback) or Clause 28.4 (Break Costs) shall, in the absence of manifest
error, be prima facie evidence of the existence and amounts of the
specified obligations of the Obligors.
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.
173
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, NTL CC, the Post-Novation Borrower,
the Security Trustee, the Second Security Trustee and the Agent,
identified in Schedule 19 (Certain Addresses);
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)
or, in the case of a Bank which is an Additional Finance
Provider, identified in its Additional Finance Provider Accession
Undertaking;
41.2.3 in the case of the CWC Parent, in the CWC Accession Memorandum;
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, the CWC Parent, NTL CC, the Security Trustee, the Second Security
Trustee, an Obligor or a Bank may notify to the Agent (or the Agent may
notify to the Relevant Obligor (on its own behalf and on behalf of the
other Obligors), the Security Trustee, the Second Security Trustee 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 Relevant Obligor) by fax shall be made to the fax number
identified with the Relevant Obligor's name below (or, in the case of the
CWC Parent, in the CWC Accession Memorandum). Any communication or
document to be made or delivered to an Obligor (other than the Relevant
Obligor) shall be copied to the Relevant Obligor. Any communication or
document to be made or delivered to the Parent, the CWC Parent or any
Obligor pursuant to the Finance Documents shall be copied to NTL CC (at
the address or fax number indicated with its name below).
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 postage
prepaid in an envelope addressed to it at 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 received by its agency division
and then only if the same is expressly marked for the attention of the
department or officer specified by the Agent in
174
Schedule 19 (Certain Addresses) (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, the CWC Parent, NTL CC 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 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 Relevant Obligor
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
Subject to Clauses 43.2 (Amendments Requiring the Consent of a Revolving
Instructing Group), 43.3 (Amendments Requiring the Consent of all the
Revolving Banks), 43.4 (Amendments Requiring the Consent of a Term
Instructing Group), 43.5 (Amendments Requiring the Consent of all the
Term Banks) and 43.6 (Amendments Requiring the Consent of all the Banks)
if the Agent has the prior consent of an Instructing Group, the Agent,
the Relevant Obligor, NTL CC and the Obligors party to a Finance Document
may from 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, PROVIDED THAT no such waiver or amendment shall
subject any Finance Party hereto to any new or additional obligations
without the consent of such Finance Party.
43.2 AMENDMENTS REQUIRING THE CONSENT OF A REVOLVING INSTRUCTING GROUP
Subject to Clauses 43.3 (Amendments Requiring the Consent of all the
Revolving Banks) and 43.6 (Amendments Requiring the Consent of all the
Banks), if the Agent has the prior consent of a Revolving Instructing
Group, the Agent, the Relevant Obligor, NTL CC and the Obligors party to
a Finance Document may from time to time agree in writing to amend such
Finance Document or, as the case may be, the Agent may consent to or
175
waive, prospectively or retrospectively, any of the requirements of such
Finance Documents and any amendments or waivers so agreed or consents so
given shall be binding on all the Finance Parties, PROVIDED THAT:
43.2.1 the amendment, consent or waiver relates solely to the Revolving
Facility and has no direct prejudicial effect on the Term
Facility, including, for the avoidance of doubt, where such
amendment, consent or waiver relates to the obligation of the
Borrowers to make a prepayment under the Revolving Facility under
Clause 13.4.3 (Prepayment of the Term Loan) or Clause 14.7
(Application of Proceeds); and
43.2.2 no such waiver or amendment shall subject any Finance Party
hereto to any new or additional obligations without the consent
of such Finance Party.
43.3 AMENDMENTS REQUIRING THE CONSENT OF ALL THE REVOLVING BANKS
Subject to Clause 43.6 (Amendments Requiring the Consent of all the
Banks), an amendment or waiver which relates to:
43.3.1 a change in the principal amount or currency of any Revolving
Advance, or deferral of any Repayment Date, any Revolving
Reduction Date or the Revolving Termination Date;
43.3.2 a decrease in the Revolving Margin or the amount of any payment
of interest, fees or any other amount payable hereunder to any
Revolving Bank or deferral of the date of payment thereof;
43.3.3 the conditions set out in sub-clause 3.1.9 of Clause 3.1
(Drawdown Conditions for Revolving Advances) if an Event of
Default or Potential Event of Default which relates to a Repeated
Representation or Clause 23.23 (Negative Pledge) is continuing;
43.3.4 an increase in the Revolving Commitment of a Bank (other than
pursuant to Clause 35 (Assignments and Transfers));
43.3.5 the definition of Revolving Instructing Group; or
43.3.6 any provision which is expressed to be subject to the consent of
all the Revolving Banks,
shall not be made without the prior written consent of all the Revolving
Banks.
43.4 AMENDMENTS REQUIRING THE CONSENT OF A TERM INSTRUCTING GROUP
Subject to Clauses 43.5 (Amendments Requiring the Consent of all the Term
Banks) and 43.6 (Amendments Requiring the Consent of all the Banks), if
the Agent has the prior consent of a Term Instructing Group, the Agent,
the Relevant Obligor, NTL CC and the Obligors party to a Finance Document
may from 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 Documents and
any amendments or waivers so agreed or consents so given shall be binding
on all the Finance Parties, PROVIDED THAT:
176
43.4.1 the amendment, consent or waiver relates solely to the Term
Facility and has no direct prejudicial effect on the Revolving
Facility, including where such amendment, consent or waiver
relates to:
(a) a provision of this Agreement or any related definition
which imposes a restriction on any member of the Covenant
Group or the UK Group by reference to the Term Final
Maturity Date, (EXCEPT THAT where such provision or
definition uses the Term Final Maturity Date as a limit, the
limit shall not be amended or waived so as to fall prior to
the Revolving Termination Date, and where such provision or
definition uses six months after the Term Final Maturity
Date as a limit, the limit shall not be amended or waived so
as to fall prior to the date falling one year after the
Revolving Termination Date, in each case without the consent
of an Instructing Group);
(b) the obligation of the Post-Novation Borrower to make a
prepayment under the Term Facility under Clause 14.7
(Application of Proceeds); or
(c) the making of any of the representations and warranties
pursuant to Clause 20.1.6 (Representations);
43.4.2 the amendment, consent or waiver relates to receipt of any
documents or other evidence under sub-clause 2.5.2 of Clause 2.5
(Initial Conditions Precedent), or any waiver letter granted by
the Term Banks in respect thereof; and
43.4.3 no such waiver or amendment shall subject any Finance Party
hereto to any new or additional obligations without the consent
of such Finance Party.
43.5 AMENDMENTS REQUIRING THE CONSENT OF ALL THE TERM BANKS
Subject to Clause 43.6 (Amendments Requiring the Consent of all the
Banks), an amendment or waiver which relates to:
43.5.1 a change in the principal amount or currency of any Term Advance
or deferral of any Term Repayment Date, the last day of any
Interest Period or the Term Final Maturity Date;
43.5.2 a decrease in the Term Margin or the amount of any payment of
interest, fees or any other amount payable hereunder to any Term
Bank or deferral of the date for payment thereof;
43.5.3 an increase in the Term Commitment of a Bank (other than pursuant
to Clause 35 (Assignments and Transfers));
43.5.4 the definition of Term Instructing Group; or
43.5.5 any terms of the undertaking to be given by the Security Trustee
to the Second Security Trustee pursuant to Clause 9 (Second
Security Documents) of the Restatement Amendment Agreement
43.5.6 any provision which is expressed to be subject to the consent of
all the Term Banks,
177
shall not be made without the prior consent of all the Term Banks.
43.6 AMENDMENTS REQUIRING THE CONSENT OF ALL THE BANKS
An amendment or waiver which relates to:
43.6.1 Clause 33 (Sharing) or this Clause 43;
43.6.2 an increase in the Revolving Margin or the Term Margin or the
amount of any payment of interest, fees or any other amount
payable hereunder to any Finance Party or acceleration of the
date of payment thereof;
43.6.3 the acceleration of any Revolving Reduction Date, Term Repayment
Date, the Revolving Termination Date or the Term Final Maturity
Date (provided that the Term Final Maturity Date may be
accelerated with the consent of a Term Instructing Group to a
date no earlier than one year after the Revolving Termination
Date);
43.6.4 Clause 25 (Guarantee and Indemnity);
43.6.5 a release of any of the Security;
43.6.6 a Security Document, where such an amendment or waiver could
affect the nature or scope of the property subject to the
Security;
43.6.7 a change to the Borrowers or Guarantors other than in accordance
with Clause 37 (Additional Borrowers) or Clause 38 (Accession of
Guarantors and the CWC Parent);
43.6.8 Clause 2.6 (Banks' Obligations Several), Clause 2.7 (Banks'
Rights Several), Clause 37 (Additional Borrowers) or Clause 38
(Accession of Guarantors and the CWC Parent);
43.6.9 the definition of Instructing Group, Permitted Encumbrance or
Potential Event of Default;
43.6.10 any provision which contemplates the need for the consent or
approval of all the Banks;
43.6.11 Clause 2.8 (Acknowledgement of Second Security);
43.6.12 a provision of the Security Trust Agreement or the Second
Security Trust Agreement;
43.6.13 a release of any of the Second Security; or
43.6.14 a Second Security Document, where such an amendment or waiver
could affect the nature or scope of the property subject to the
Second Security,
shall not be made without the prior consent of all the Banks.
43.7 EXCEPTIONS
Notwithstanding any other provisions hereof, the Agent shall not be
obliged to agree to any such amendment or waiver if the same would:
178
43.7.1 amend or waive this Clause 43, Clause 27 (Costs and Expenses) or
Clause 34 (The Agent, the Arrangers and the Banks); or
43.7.2 otherwise amend or waive any of the Agent's rights hereunder or
subject the Agent or the Arrangers to any additional obligations
hereunder.
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
NTL CC 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 by service of such documents on NTL Group Limited at
NTL House, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (marked
for the attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) or, if different, its registered
office.
If NTL Group Limited ceases to have a place of business in Great Britain
or, as the case may be, its appointment ceases to be effective, NTL CC
shall immediately appoint another person in England to accept service of
process on its behalf in England. If NTL CC 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 NTL CC. Nothing
contained herein shall restrict the right to serve process in any other
manner allowed by law. This Clause 45.4 applies to Proceedings in England
and to Proceedings elsewhere.
179
SCHEDULE 1
THE BANKS
PART A
(REVOLVING BANKS)
REVOLVING BANK REVOLVING
COMMITMENT
Pound Sterling
The Chase Manhattan Bank 211,232,242.43
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Bank Limited 135,876,363.65
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. -
Bank of America, N.A. 135,876,363.65
BNP Paribas 135,876,363.65
CIBC World Markets plc 135,876,363.65
Citibank, N.A. 135,876,363.65
The Royal Bank of Scotland plc 135,876,363.65
Deutsche Bank AG London 133,376,363.65
IntesaBci S.p.A., London Branch 90,355,878.78
The Bank of Nova Scotia 90,355,878.78
Bankgesellschaft Berlin AG 90,355,878.78
The Governor and Company of the Bank of Scotland 90,355,878.78
Bayerische Landesbank Girozentrale acting through its
London Branch 90,355,878.78
Credit Lyonnais 90,355,878.78
Fortis Bank S.A./N.V. 90,355,878.78
HSBC Bank plc 90,355,878.78
Westdeutsche Landesbank Girozentrale 90,355,878.78
Abbey National Treasury Services plc 54,616,969.70
Bayerische Hypo- und Vereinsbank AG, London Branch 54,616,969.70
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. 54,616,969.70
(trading as Rabobank International, London
Branch)
Dresdner Bank AG London Branch 54,616,969.70
Lloyds TSB Bank plc 45,672,727.28
The Dai-Ichi Kangyo Bank, Limited 44,616,969.70
Fleet National Bank 38,172,727.28
Credit Agricole Indosuez 25,000,000.00
180
Credit Industriel et Commercial 25,000,000.00
The Bank of Tokyo-Mitsubishi, Ltd. 20,000,000.00
Barclays Bank PLC 20,000,000.00
IBM United Kingdom Financial Services Limited 20,000,000.00
Natexis Banques Populaires (London Branch) 15,000,000.00
ABC International Bank Plc 15,000,000.00
The Governor and Company of the Bank of Ireland 10,000,000.00
N M Rothschild & Sons Ltd 10,000,000.00
The Sumitomo Trust & Banking Co. Ltd 10,000,000.00
Singer & ▇▇▇▇▇▇▇▇▇▇▇ Limited 10,000,000.00
TOTAL 2,500,000,000
181
PART B
(TERM BANKS)
TERM BANK TERM
COMMITMENT
Pound Sterling
GE Capital Structured Finance Group Limited 200,000,000
TOTAL 200,000,000
182
SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
To: Chase Manhattan International Limited
TRANSFER CERTIFICATE
relating to the agreement dated 30 May 2000 (as from time to time amended,
varied, novated, supplemented or restated the "CREDIT AGREEMENT") whereby
certain credit facilities were made available to a group of borrowers including
NTL Investment Holdings Limited by a group of banks on whose behalf 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 REVOLVING FACILITY", "REVOLVING
Advances", "BANK'S PARTICIPATION IN THE TERM FACILITY" and "TERM
ADVANCES" accurately summarises its participation in the Credit Agreement
and the Term or Interest Period 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 Revolving Commitment and/or Term 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, the CWC Parent, the NTL Holding Group 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.
183
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 financial
condition of the Obligors or for the performance and observance by the
Obligors of any of its 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 an 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
9. Bank:
10. Transferee:
11. Transfer Date:
12. Bank's Participation in the
Revolving Facility:
Bank's Revolving Commitment Portion Transferred
13. Revolving Advance(s): Term and Repayment Portion Transferred
Date
Amount of Bank's Participation
14. Bank's Participation in the Term
Facility:
Bank's Term Commitment Portion Transferred
15. Term Advance(s): Interest Period Portion Transferred
Amount of Bank's Participation
184
[Transferor Bank] [Transferor Bank]
By: By:
Date: Date:
----------------------------------------------------------------------------
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments:
Telex:
Fax:
Telephone:
-----------------------------------------------------------------------------
NOTE: EACH TRANSFEREE SHOULD, AT THE SAME TIME AS EXECUTING THIS TRANSFER
CERTIFICATE, EXECUTE ACCESSION MEMORANDA IN RELATION TO THE SECURITY TRUST
AGREEMENT AND THE INTERCREDITOR AGREEMENT.
185
SCHEDULE 3
CONDITIONS PRECEDENT
PART A
INITIAL CONDITIONS PRECEDENT
(a) Corporate Documents
1. In relation to the Parent, the Pre-Novation Borrower, NTL UK, NTL CC and
NTL Inc. (each an "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 such Original
Obligor, of the constitutional documents of 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 such Original
Obligor, of a board resolution of such Original Obligor approving
the execution, delivery and performance of the Finance Documents
to which that 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
such Original Obligor pursuant thereto;
(c) a certificate of an Authorised Signatory of such Original Obligor
setting out the names and signatures of the persons authorised to
sign, on behalf of such Original Obligor, the Finance Documents
to which that Original Obligor is a party and any documents to be
delivered by such Original Obligor pursuant thereto.
2. In relation to the Pre-Novation Borrower, a certificate of an Authorised
Signatory of the Pre-Novation Borrower confirming that utilisation of the
full amount of the Revolving Facility would not breach any restriction of
its borrowing powers.
3. The Group Structure Chart referred to in paragraph (a) of the definition
of that term.
(b) ACCOUNTS AND REPORTS
1. The Business Plan.
2. Copies of the Original Financial Statements referred to in paragraphs (a)
to (c) of the definition of that term, certified true copies by an
Authorised Signatory of either the Pre-Novation Borrower (in the case of
its and the Target's financial statements) or the Parent (in the case of
its financial statements).
(c) ACQUISITION AND RELATED MATTERS
1. A copy, certified by an Authorised Signatory of the Parent as true,
complete and up-to-date, of the Transaction Agreement.
186
2. A certificate from an Authorised Signatory of the Parent confirming that
all the conditions precedent to the completion of the Acquisition in
accordance with the Transaction Agreement have been satisfied or waived
as permitted thereby save insofar as such conditions precedent relate to
or are dependent upon the utilisation of the Revolving Facility.
3. A copy, certified as being a true and complete copy by an Authorised
Signatory of the Parent of the resolutions of the shareholders of the
Target passed at the Court Meetings.
4. A copy, certified as being a true and complete copy by an Authorised
Signatory of Parent, of the resolutions of the shareholders of the Target
passed at the EGM.
5. A certified copy of the order of the Court sanctioning the Scheme under
Section 425, as registered with the Registrar of Companies.
6. Certified copies of executed stock transfer forms evidencing that NTL
Holdings will, upon registration of the transfers effected by such stock
transfer forms, hold shares in the issued share capital of CWC Holdings
(representing 100 per cent. of the shares in CWC Holdings subject to the
call option in favour of NTL Holdings granted pursuant to the Transaction
Agreement).
7. A certificate from an Authorised Signatory of the Parent confirming that,
immediately following the completion of the Acquisition neither any
member of the UK Group nor (to the best of such Authorised Signatory's
knowledge and belief) any member of the Target Group shall have (or will
have) any Financial Indebtedness outstanding (other than Permitted
Indebtedness) and that all Encumbrances (other than Permitted
Encumbrances) have been, or will be, discharged.
8. A Certificate of an Authorised Signatory of the Parent confirming that
all necessary consents, licences, authorisations and approvals in
relation to the Acquisition and the Finance Documents have been obtained,
together with copy letters from the ITC, Oftel and the DTI and copies of
any consents or other approvals required under the terms of any Licence.
9. A letter from the Parent's insurance broker addressed to the Agent
confirming the adequacy of the UK Group's insurance cover.
(d) SECURITY DOCUMENTS AND RELATED DOCUMENTATION
1. The Pre-Novation Borrower Intra-Group Loan Assignment and the
Pre-Novation Borrower Security Over Cash Agreement, duly executed and
delivered by the Pre-Novation Borrower.
2. The NTL UK Revolving Bank Subordination Agreement, duly executed by NTL
UK.
3. The NTL Subordination Agreement, duly executed by NTL Inc.
4. The NTL Intra-Group Loan Assignment and the NTL Security Over Cash
Agreement, duly executed and delivered by NTL Inc.
5. The Security Trust Agreement duly executed and delivered by the parties
thereto.
187
(e) LEGAL OPINIONS
1. A legal opinion from ▇▇▇▇▇▇▇▇ Chance, London, the Agent's English counsel
in substantially the form distributed to the Revolving Banks prior to the
signing of this Agreement.
2. A legal opinion from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, NTL CC's
Delaware counsel, in substantially the form distributed to the Revolving
Banks prior to the signing of this Agreement.
(f) MISCELLANEOUS
1. The fees letters referred to in Clause 26.6 (Agency and Other Fees).
2. Evidence that NTL Group Limited has agreed to act as the agent of NTL
Inc. and NTL CC for the service of process in England in respect of:
(a) this Agreement (for NTL CC); and
(b) the NTL Subordination Agreement, the NTL Intra-Group Loan
Assignment and the NTL Security Over Cash Agreement (for NTL
Inc.).
3. Evidence confirming that, in addition to the amounts specified in the
balance sheet in the management accounts for the Group for the period
ended 30 April 2000, an amount of no less than Pound
Sterling2,800,000,000 (or its equivalent) has been or will on the
Acquisition Date be invested in the common stock or convertible preferred
stock of NTL Holdings by France Telecom S.A.
4. Evidence that no less than:
(a) Pound Sterling215,798,000 was available for use by the UK Group
as at 25 May 2000; and
(b) Pound Sterling591,166,950 was available for use by the
Pre-Novation Borrower as at 25 May 2000,
such evidence comprising of certificates from an Authorised Signatory of
the Parent or, as the case may be, the Pre-Novation Borrower.
5. Evidence that the Working Capital Facility is in place and all conditions
precedent thereunder (save for those that are conditional on the
effectiveness of this Agreement) have been satisfied or waived in
accordance with their terms.
188
PART B
CWC HOLDINGS CONDITIONS PRECEDENT
(A) Corporate Documents
1. In relation to CWC Holdings:
(a) a copy, certified as at the Execution Date a true and up-to-date
copy by an Authorised Signatory of CWC Holdings, of the
constitutional documents of CWC Holdings;
(b) a copy, certified as at the Execution Date a true and up-to-date
copy by an Authorised Signatory of CWC Holdings, of a board
resolution of CWC Holdings approving the execution, delivery and
performance of the Finance Documents to which CWC Holdings 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 CWC Holdings pursuant thereto;
(c) a certificate of an Authorised Signatory of CWC Holdings setting
out the names and signatures of the persons authorised to sign,
on behalf of CWC Holdings, the Finance Documents to which CWC
Holdings is a party and any documents to be delivered by CWC
Holdings pursuant thereto.
2. A copy, certified as at the date of this Agreement a true and up-to-date
copy by an Authorised Signatory of CWC Holdings, of the constitutional
documents of the Target.
3. A certificate of an Authorised Signatory of CWC Holdings confirming that
the utilisation of the Revolving Facility would not breach any
restriction of its borrowing and/or guaranteeing powers.
(B) Security Documents and Related Documentation
1. The CWC Holdings Share Charge and the CWC Holdings Intra-Group Loan
Assignment, duly executed and delivered by CWC Holdings.
2. A deed of accession to the Security Trust Agreement executed by CWC
Holdings, substantially in the form set out in schedule 1 (Form of
Obligor Deed of Accession) to the Security Trust Agreement.
3. A letter from the Pre-Novation Borrower to the Agent (attaching
supporting advice from the Pre-Novation Borrower's English solicitors)
confirming that CWC Holdings is not prohibited by section 151 of the
Companies ▇▇▇ ▇▇▇▇ from entering into the Finance Documents and
performing its obligations thereunder.
189
(C) Legal Opinion
A legal opinion from ▇▇▇▇▇▇▇▇ Chance, London, the Agent's English counsel
in substantially the form distributed to the Revolving Banks prior to the
signing of this Agreement.
190
SCHEDULE 4
NOTICE OF DRAWDOWN
From: [Borrower]
To: Chase Manhattan International Limited
Dated:
Dear Sirs,
1. We refer to the agreement dated 30 May 2000 as from time to time amended,
varied, novated, supplemented or restated, and made between, among
others, NTL Business Limited (whose obligations have been novated to NTL
Investment Holdings Limited) as the Post-Novation Borrower, 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]/[Term]
Advance of Pound Sterling[ ] upon the terms and subject to the conditions
contained therein.
4. We would like this [Revolving]/[Term] Advance to have a [Term]/[first
Interest Period] of [ ] months' duration.
5. We confirm that, at the date hereof [no Certain Funds Event of Default is
continuing] [(i) no Event of Default or Potential Event of Default is
continuing and (ii) the Repeated Representations are true in all material
respects] [(i) no Event of Default is continuing and (ii) those of the
Repeated Representations, which are not capable of remedy or change if
incorrect or misleading in any material respect, are true in all material
respects]*.
6. [Pound Sterling[ ] of this Advance will be applied to refinance Existing
Target Indebtedness.] [As at the proposed date of drawdown, the Existing
Target Indebtedness will have been fully repaid.]**
7. [Pound Sterling[ ] of this Advance will be used to finance either the
Cable & Wireless Loan, the South Herts Refinancing Loan, Asset Adjustment
Payments or the working capital requirements of the UK Group or the
Target Group. We confirm that the amount of such an Advance is equal to
or less than the Available Working Capital Amount.]***
8. The proceeds of this drawdown should be credited to [insert account
details].
----------------------
* Use the first option for Revolving Advances to be made during the Certain
Funds Period. Use second option for Revolving Advances to be made after the
Certain Funds Period (if not Rollover Advances) and for Term Advances. Use
third option for Rollover Advances.
** Delete as appropriate.
*** To be included for working capital Advances to be made prior to the
Pushdown Date.
191
Yours faithfully
.............................
Authorised Signatory
for and on behalf of
[Insert name of Borrower]
192
SCHEDULE 5
EXISTING ENCUMBRANCES
(A) TARGET GROUP
-------------------- ------------------ ------------------------------- --------------------------------------------------------
CHARGOR DATE BENEFICIARY SUMMARY
-------------------- ------------------ ------------------------------- --------------------------------------------------------
CWC (Ealing) Ltd 30.12.91 Citicorp Investment Bank Ltd Deed of Charge (relating to obligations under a lease,
ancillary agreements and guarantee). Charges the
"Charges Equipment".
-------------------- ------------------ ------------------------------- --------------------------------------------------------
CWC Holdings 07.09.95 NatWest Leasing (GB) Ltd Fixed charge over 16,092,892 shares in CWC (Leeds) and
(Leeds) Ltd the "Equipment" as defined in the 12 and 7 year leases
(unavailable).
-------------------- ------------------ ------------------------------- --------------------------------------------------------
CWC Holdings 22.03.96 NatWest Specialist Finance Ltd Fixed charge over 317,520 shares in the Borrower
(East London) Ltd (presumably CWC (East London).
-------------------- ------------------ ------------------------------- --------------------------------------------------------
CWC (Kent) Ltd 22.03.96 NatWest Specialist Finance Ltd Debenture.
-------------------- ------------------ ------------------------------- --------------------------------------------------------
CWC (B) Ltd (i) and (ii) (i) and (ii) Nationbanks N.A. (i) Share charge re. Monies due from BCM (South
18.04.95 x 2 (Carolinas) x2 Herts) Ltd
(ii) Subordination deed (again relating to BCM
(South Herts) Ltd)
-------------------- ------------------ ------------------------------- --------------------------------------------------------
CWC (Southampton 30.07.92 NatWest Bank plc Charge over credit balance (Pound Sterling1,139,199)
and Eastleigh) Ltd
-------------------- ------------------ ------------------------------- --------------------------------------------------------
193
-------------------- ------------------ ------------------------------- --------------------------------------------------------
CHARGOR DATE BENEFICIARY SUMMARY
-------------------- ------------------ ------------------------------- --------------------------------------------------------
CWC (South East) (ii) 06.05.97 (i) NatWest Specialist (i) Collateral accounts security assignment.
Ltd Finance
(iii) 25.08.98 (ii) NatWest Leasing(GB) (ii) Deed of sale, assignment and amendment
releases dated 22/3/96 (fiche not
available).
(iv) 06.10.99 (iii) Canadian Imperial Bank (iii) Deposit agreement and charge.
of Commerce
(v) 06.10.99 (iv) Canadian Imperial Bank (iv) Deposit agreement and charge.
of Commerce
(vi) 06.10.99 (v) NatWest Lessors Ltd (v) Deed of assignment, amendment and security
unwind re agreements dated 22/3/96.
-------------------- ------------------ ------------------------------- --------------------------------------------------------
CWC Corporation 16.08.93 Barclays Bank plc Legal charge over ▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
Ltd (279230 and SGL 1037). Secures only liabilities
relating to bank account ▇▇▇▇▇▇▇▇ with the Ocean
Village, Southampton branch.
-------------------- ------------------ ------------------------------- --------------------------------------------------------
CWC (Leeds) Ltd (iii) 07.09.95 (i) NatWest Leasing (GB) (i) Debenture. Secures all obligations. Charges
Ltd all real property with market value of Pound
Sterling1m+, goodwill, bad debts, IP etc.
(vii) 26.09.96 (ii) NatWest Leasing (GB) (ii) Conformatory deed of assignment.
Ltd
(viii) 06.05.97 (iii) NatWest Leasing (GB) (iii) Collateral accounts security assignment.
Ltd
(ix) 06.10.99 (iv) NatWest Lessors (iv) Deed of assignment, amendment and security
unwind relating to leases dated 7/9/95.
Secures all liabilities under the "Operative
Documents" (all dated 07.09.95)
- 12 year lease
194
-------------------- ------------------ ------------------------------- --------------------------------------------------------
CHARGOR DATE BENEFICIARY SUMMARY
-------------------- ------------------ ------------------------------- --------------------------------------------------------
- 17 year lease
- Agreement to acquire
- Construction agreement
- Collateral accounts agreement
- Lease security agreement
- Guarantee from CWC Holdings (Leeds)
- 10m Guarantee
- Priority agreement (06.05.97)
- Collateral accounts security assignment
-------------------- ------------------ ------------------------------- --------------------------------------------------------
195
(B) UK GROUP
----------------------- ------------------ ------------------------------- ---------------------------------------------------
CHARGOR DATE BENEFICIARY SUMMARY
----------------------- ------------------ ------------------------------- ---------------------------------------------------
NTL Technologies (iv) 30.09.95 (i) Barclays Bank Plc (i) Guarantee and debenture.
Limited (x) 15.1.96 (ii) Barclays Bank Plc (ii) Deed of assignment of life policies.
(xi) 3.11.97 (iii) Barclays Bank Plc (iii) Debenture.
(xii) 23.11.98 (iv) Barclays Bank Plc (iv) Charge on cash collateral account.
(xiii) 23.11.98 (v) Barclays Bank Plc (v) Charge over shares and securities.
----------------------- ------------------ ------------------------------- ---------------------------------------------------
NTL Kirklees (v) 31.01.97 (i) National Westminster (i) Charge over credit balance.
Plc
(xiv) 06.09.97 (ii) National Westminster (ii) Charges over credit balances.
Plc
----------------------- ------------------ ------------------------------- ---------------------------------------------------
NTL South Wales Limited (vi) 31.01.97 (i) National Westminster (i) Charge over credit balances.
Bank Plc
(xv) 04.06.97 (ii) National Westminster (ii) Charges over credit balances.
Bank Plc
(xvi) 06.08.97 (iii) National Westminster (iii) Charge over credit balances.
Bank Plc
----------------------- ------------------ ------------------------------- ---------------------------------------------------
Cable Tel Surrey 06.08.97 National Westminster Bank Plc Charge over credit balances.
& Hampshire Limited
----------------------- ------------------ ------------------------------- ---------------------------------------------------
Cable Tel Herts. 06.08.97 National Westminster Bank Plc Charge over credit balances.
& Beds Limited
----------------------- ------------------ ------------------------------- ---------------------------------------------------
NTL South Central 14.12.93 Uberior Nominees (Gulliver Deed of deposit.
Limited D.P.U.T.) Limited
----------------------- ------------------ ------------------------------- ---------------------------------------------------
196
-------------------- ------------------ ------------------------------- --------------------------------------------------------
CHARGOR DATE BENEFICIARY SUMMARY
-------------------- ------------------ ------------------------------- --------------------------------------------------------
National Trans- (vii) 10.06.96 (i) Chase Manhattan Bank N.A. (i) Mortgage or charge executed outside the United
communications Kingdom and comprising property situated
Limited outside the United Kingdom.
(xvii) 17.10.97 (ii) Chase Manhattan (ii) Debenture.
International Limited
-------------------- ------------------ ------------------------------- --------------------------------------------------------
CableTel (Northern (viii) 06.08.97 (i) National Westminster Bank (i) Charge over deposit.
Ireland) Limited PLC
(ix) 17.10.97 (ii) Chase Manhattan (ii) Debenture.
International Limited
-------------------- ------------------ ------------------------------- --------------------------------------------------------
197
SCHEDULE 6
FORM OF COMPLIANCE CERTIFICATE
To: Chase Manhattan International Limited
Date:
Dear Sirs,
1. We refer to an agreement dated 30 May 2000 as from time to time amended,
varied, novated, supplemented or restated, and made between, among
others, NTL Business Limited (whose obligations have been novated to NTL
Investment Holdings Limited) as the Post-Novation Borrower, Chase
Manhattan International Limited as agent and the financial institutions
defined therein as Banks (the "CREDIT AGREEMENT").
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. We confirm that:
(a) [The ratio of the Target Group Net Senior Debt on [Quarter Date]
to the Annualised EBITDA of the Target Group for the Relevant
Period ended on [Quarter Date] was [ ]:1.]
(b) [The ratio of the EBITDA of the Target Group for the Relevant
Period ended on [Quarter Date] to the Target Group Net Senior
Finance Charges for that Relevant Period was [ ]:1.]
(c) The ratio of the UK Group Net Senior Debt on [Quarter Date] to
the Annualised EBITDA of the UK Group for the period ended on
[Quarter Date] was [ ]:1.
(d) The ratio of the EBITDA of the UK Group for the Relevant Period
ended on [Quarter Date] to the UK Group Net Senior Finance
Charges for that Relevant Period was [ ]:1.
(e) [The ratio of the EBITDA of the UK Group for the Relevant Period
ended on [Quarter Date] to the Total Net Finance Charges for that
Relevant Period was [ ]:1.]
(f) [The ratio of the Total Net Debt on [Quarter Date] to the
Annualised EBITDA of the UK Group for the Relevant Period ended
on [Quarter Date] was [ ]:1.
The calculations of the above ratios are set out in the Schedule to this
Compliance Certificate.
4. On the basis of above, we confirm that the Revolving Margin in relation
to any Revolving Advance made after your receipt of this Compliance
Certificate will be [ ] per cent. per annum.
5. We also confirm that:
198
(a) The aggregate EBITDA of the Guarantors for the 12 month period
ending on [Quarter Date] equalled or exceeded [90/95] per cent.
of the consolidated EBITDA of the [UK Group / Target Group] for
such 12 month period. [The aggregate EBITDA of the Guarantors for
the [ ] month period ending on [Quarter Date] was in compliance
with Clause 23.32.3]
(b) The amount of Available Excess Cash Flow as at [ ] was [ ].
Signed
..................................... ....................................
Director Director
of of
[Cable & Wireless Communications [Cable & Wireless Communications
(Holdings) plc/NTL Communications (Holdings) plc/NTL Communications
Limited] Limited]
THE SCHEDULE
COMPLIANCE CERTIFICATE CALCULATIONS
(A) Ratio of Target Group Net Senior Debt to Target Group Annualised EBITDA:
1. Target Group Net Senior Debt:
Outstandings under the Facility: ___________________
Other relevant Indebtedness for Borrowed Money: ___________________
Minus
Intercompany Loans: ___________________
Minus
Subordinated Debt: ___________________
Minus
Ending Cash held by members of the Target Group ___________________
199
TARGET GROUP NET SENIOR DEBT
2. Target Group Annualised EBITDA:
(All line items below refer to the Relevant Period)
Target Group net income ___________________
Plus
Any tax provisions ___________________
Plus
Any interest (whether cash or PIK), commissions,
discounts or other fees, and any amounts related
to interest hedging arrangements ___________________
Plus
Any exceptional or extraordinary items ___________________
Plus
Any amortisation and depreciation ___________________
TARGET GROUP EBITDA FOR THE RELEVANT PERIOD ___________________
Multiplied by 2
TARGET GROUP ANNUALISED EBITDA ___________________
3. Ratio: ___________________
(B) RATIO OF TARGET GROUP NET SENIOR INTEREST COVER:
4. Target Group EBITDA for the Relevant Period:
(All line items below refer to the Relevant Period)
Target Group net income ___________________
Plus
Any tax provisions ___________________
Plus
Any interest (whether cash or PIK), commissions,
discounts or other fees, and any amounts related
to interest hedging arrangements ___________________
Plus
Any exceptional or extraordinary items ___________________
Plus
Any amortisation and depreciation ___________________
TARGET GROUP EBITDA FOR THE RELEVANT PERIOD ___________________
200
5. Target Group Net Senior Finance Charges (for the Relevant Period):
Aggregate amount of interest ___________________
on Target Group Net Senior Debt
Plus
Commission, fees, and finance payments payable by
Target Group under interest hedging arrangements ___________________
Minus
Commission, fees, and finance payments receivable
by Target Group ___________________
Minus
Any interest receivable ___________________
TARGET GROUP NET SENIOR FINANCE CHARGES ___________________
6.
7. Ratio: ___________________
(C) UK Group Net Senior Debt to Annualised EBITDA:
1. UK Group Net Senior Debt:
Outstandings under the Facility: ___________________
Other relevant Indebtedness for Borrower Money: ___________________
Minus
Intercompany loans ___________________
Minus
Subordinated Debt ___________________
Minus
Ending Cash held by members of the UK Group ___________________
UK GROUP NET SENIOR DEBT ___________________
2. UK Group Annualised EBITDA:
(All line items below refer to the Relevant Period)
UK Group net income ___________________
Plus
Any tax provisions ___________________
Plus
Any interest, commissions, discounts or other
fees, and any amounts related to
interest hedging arrangements ___________________
Plus
Any exceptional or extraordinary items ___________________
Plus
201
Any amortisation and depreciation ___________________
UK GROUP EBITDA FOR THE RELEVANT PERIOD ___________________
Multiplied by 2
UK GROUP ANNUALISED EBITDA ___________________
3. Ratio: ___________________
(D) Ratio of UK Group Net Senior Interest Cover Ratio:
4. UK Group EBITDA for the Relevant Period:
(All line items below refer to the Relevant Period)
UK Group net income ___________________
Plus
Any tax provisions ___________________
Plus
Any interest, commissions, discounts or other fees,
and any amounts related to
interest hedging arrangements ___________________
Plus
Any exceptional or extraordinary items ___________________
Plus
Any amortisation and depreciation ___________________
UK GROUP EBITDA FOR THE RELEVANT PERIOD ___________________
5. UK Group Net Senior Finance Charges (for the Relevant Period):
Aggregate amount of senior interest ___________________
on UK Group Net Senior Debt
Plus
Commission, fees, and finance payments payable by
UK Group under interest hedging arrangements ___________________
Minus
Commission, fees, and finance payments receivable
by UK Group ___________________
Minus
Any interest receivable ___________________
UK GROUP NET SENIOR FINANCE CHARGES ___________________
202
6. Ratio: ___________________
(E) RATIO OF TOTAL NET DEBT TO ANNUALISED EBITDA:
1. UK Group Net Total Debt:
UK Group Net Senior Debt: ___________________
Plus
Covenant Group Net Debt ___________________
Minus
Ending Cash held by members of the UK Group ___________________
Minus
Ending Cash held by member of the Covenant Group: ___________________
TOTAL NET DEBT ___________________
2. UK Group Annualised EBITDA:
(All line items below refer to the Relevant Period)
UK Group net income ___________________
Plus
Any tax provisions ___________________
Plus
Any interest, commissions, discounts or other fees,
and any amounts related to
interest hedging arrangements ___________________
Plus
Any exceptional or extraordinary items ___________________
Plus
Any amortisation and depreciation ___________________
UK GROUP EBITDA FOR THE RELEVANT PERIOD ___________________
Multiplied by 2
UK GROUP ANNUALISED EBITDA ___________________
3. Ratio: ___________________
(F) TOTAL INTEREST COVER RATIO:
1. UK Group EBITDA for the Relevant Period:
(All line items below refer to the Relevant Period)
UK Group net income ___________________
Plus
Any tax provisions ___________________
Plus
203
Any interest, commissions, discounts or other fees,
and any amounts related to
interest hedging arrangements ___________________
Plus
Any exceptional or extraordinary items ___________________
Plus
Any amortisation and depreciation ___________________
UK GROUP EBITDA FOR THE RELEVANT PERIOD ___________________
2. Total Net Finance Charges (for the Relevant Period):
Aggregate amount of interest ___________________
on Total Net Debt
Plus
Commission, fees, and finance payments
payable by Target Group
under interest hedging arrangements ___________________
Minus
Commission, fees, and finance payments
receivable by Target Group ___________________
Minus
Any interest receivable ___________________
TOTAL NET FINANCE CHARGES ___________________
3. Ratio: ___________________
204
SCHEDULE 7
FORM OF BORROWER ACCESSION MEMORANDUM
To: Chase Manhattan International Limited
From: [Subsidiary]
and
[Cable & Wireless Communications (Holdings) plc (the "CWC PARENT")/
NTL Communications Limited (the "PARENT").]
Dated:
Dear Sirs,
1. We refer to an agreement dated 30 May 2000 as from time to time amended,
varied, novated, supplemented or restated, and made between, among
others, NTL Business Limited (whose obligations have been novated to NTL
Investment Holdings Limited) as the Post-Novation Borrower, Chase
Manhattan International Limited as agent and the financial institutions
defined therein as Banks (the "CREDIT AGREEMENT").
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. The [CWC] Parent requests that [Subsidiary] become an Additional Borrower
pursuant to Clause 37.1 (Request for Additional Borrower) of the Credit
Agreement.
4. [Subsidiary] is duly organised under the laws of [name of relevant
jurisdiction].
5. [Subsidiary] confirms that it has received from the [CWC] Parent 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 originally been party thereto as a Borrower.
7. [The [CWC] Parent confirms that, if [Subsidiary] is accepted as an
Additional Borrower, its guarantee obligations 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 [CWC] Parent:
(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 referred to in
sub-clause 20.1.1 of Clause 20.1 (Representing Parties).
10. [Subsidiary's] administrative details are as follows:
205
Address:
Fax No.:
11. [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. [Notwithstanding any other provision of the Finance Documents, the
Additional Borrower shall not, prior to the Pushdown Date, be liable for
or in respect of, or to procure the performance of, any obligations of
NTL Business Limited or any member of the Target Group nor, prior to the
Pushdown Date, shall there be any recourse to the Additional Borrower for
any representation, warranty or certification made in respect of NTL
Business Limited or any member of the Target Group or any document,
circumstances or matter pertaining to any member of the Target Group or
NTL Business Limited nor prior to the Pushdown Date, shall any member of
the Group (other than NTL Business Limited and any members of the Target
Group) be liable for any commitment commission or costs, expenses or
taxes arising in connection with the availability of the Revolving
Facility or the utilisation of the Revolving Facility by NTL Business
Limited or any member of the Target Group nor, prior to the Pushdown Date
shall any of the Finance Parties exercise any right to consolidate or
set-off credit balances maintained by any member of the Group (other than
NTL Business Limited or any member of the Target Group) against any
obligations or liabilities of NTL Business Limited or any member of the
Target Group.](1)
--------------------------------------------------------------------------------
(1) Include only for members of the UK Group acceding as Borrowers pre-Pushdown.
206
13. This Memorandum shall be governed by English law.
[CABLE & WIRELESS COMMUNICATIONS [Subsidiary]
(HOLDINGS) PLC/NTL COMMUNICATIONS
LIMITED]
By: ........................ By: ........................
207
SCHEDULE 8
FORM OF GUARANTOR ACCESSION MEMORANDUM
To: Chase Manhattan International Limited
From: [Subsidiary] (the "ADDITIONAL GUARANTOR")
and
[Cable & Wireless Communications (Holdings) plc (the "CWC PARENT")/
NTL Communications Limited (the "PARENT")]
Dated:
Dear Sirs,
1. We refer to an agreement dated 30 May 2000 as from time to time amended,
varied, novated, supplemented or restated, and made between, among
others, NTL Business Limited (whose obligations have been novated to NTL
Investment Limited) as the Post-Novation Borrower, Chase Manhattan
International Limited as agent and the financial institutions defined
therein as Banks (the "CREDIT AGREEMENT").
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. The [CWC] Parent requests that the Additional Guarantor become a
Guarantor pursuant to Clause 38.1 (Request for Guarantor) of the Credit
Agreement.
4. The Additional Guarantor is duly organised under the laws of [name of
relevant jurisdiction].
5. The Additional Guarantor confirms that it has received from the [CWC]
Parent a true and up-to-date copy of the Credit Agreement and a list of
the Borrowers as at the date hereof.
6. The Additional Guarantor 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
a Guarantor.
7. The [CWC] Parent:
(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 the Additional
Guarantor becoming a Guarantor.
8. The Additional Guarantor makes the representations and warranties
referred to in sub-clause 20.1.1 of Clause 20.1 (Representing Parties)
insofar as such representations and warranties are Repeated
Representations.
9. The Additional Guarantor's administrative details are as follows:
208
Address:
Fax No.:
10. The Additional Guarantor 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 the Additional
Guarantor ceases to have a place of business in Great Britain]/[ the
appointment of the person mentioned above ceases to be effective], the
Additional Guarantor 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. [Notwithstanding any other provision of the Finance Documents, the
Additional Guarantor shall not, prior to the Pushdown Date, be liable for
or in respect of, or to procure the performance of, any obligations of
NTL Business Limited or any member of the Target Group nor, prior to the
Pushdown Date, shall there be any recourse to the Additional Guarantor
for any representation, warranty or certification made in respect of NTL
Business Limited or any member of the Target Group or any document,
circumstances or matter pertaining to any member of the Target Group or
NTL Business Limited nor prior to the Pushdown Date, shall any member of
the Group (other than NTL Business Limited and any member of the Target
Group) be liable for any commitment commission or costs, expenses or
taxes arising in connection with the availability of the Revolving
Facility or the utilisation of the Revolving Facility by NTL Business
Limited or any member of the Target Group nor, prior to the Pushdown Date
shall any of the Finance Parties exercise any right to consolidate or
set-off credit balances maintained by any member of the Group (other than
NTL Business Limited or any member of the Target Group) against any
obligations or liabilities of NTL Business Limited or any member of the
Target Group.](2)
12. This Memorandum shall be governed by English law.
13. This Memorandum is executed and delivered as a deed by [the Additional
Guarantor].
.....................................................
[Director of [Subsidiary]
.....................................................
Director/Secretary of [Subsidiary]]
or
--------------------------------------------------------------------------------
(2) Include only for members of the UK Group acceding as Guarantors
pre-Pushdown.
209
[The Common Seal of [Subsidiary]
was affixed to this deed in the presence of
.........................................
Director of [Subsidiary]
.........................................
Director/Secretary of [Subsidiary]]**
[CABLE & WIRELESS COMMUNICATIONS (HOLDINGS) PLC/
NTL COMMUNICATIONS LIMITED]
By: .......................................
--------------------------------------------------------------------------------
** Delete as appropriate. If the company is not incorporated in England or
Wales, alternate form of execution may be more appropriate.
210
SCHEDULE 9
CWC ACCESSION MEMORANDUM
To: Chase Manhattan International Limited
From: Cable & Wireless Communications (Holdings) plc ("CWC HOLDINGS")
and
NTL Business Limited
Dated: [ ]
Dear Sirs,
1. We refer to an agreement dated 30 May 2000 as from time to time amended,
varied, novated, supplemented or restated and made between, among others,
NTL Business Limited (whose obligations have been novated to NTL
Investment Holdings Limited) as the Post-Novation Borrower, Chase
Manhattan International Limited as agent and the financial institutions
defined therein as Banks (the "CREDIT AGREEMENT").
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. The Pre-Novation Borrower requests that CWC Holdings becomes:
(a) a Guarantor; and
(b) the CWC Parent,
in each case pursuant to Clause 38 (Accession of Guarantors and the CWC
Parent) of the Credit Agreement.
4. CWC Holdings is a company duly incorporated under English law (company
number 3922682).
5. CWC Holdings confirms that it has received from NTL Business Limited a
true and up-to-date copy of the Credit Agreement and a list of the
Borrowers as at the date hereof.
6. CWC Holdings undertakes:
(a) upon its becoming a Guarantor, to perform all the obligations
expressed to be undertaken under the Credit Agreement by a
Guarantor; and
(b) upon its becoming the CWC Parent, to perform all the obligations
expressed to be undertaken under the Credit Agreement by the CWC
Parent,
and agrees that it shall be bound by the Credit Agreement in all respects
as if it had been an original party thereto as a Guarantor and the CWC
Parent.
7. Pre-Novation Borrower:
(a) repeats the Repeated Representations; and
211
(b) confirms that no Event of Default or Potential Event of Default
is continuing or would occur as a result of CWC Holdings becoming
a Guarantor and the CWC Parent.
8. CWC Holdings makes the representations and warranties referred to in
sub-clause 20.1.2 and 20.1.3 of Clause 20.1 (Representing Parties).
9. CWC Holdings' administrative details are as follows:
Address:
Fax No.:
10. This Memorandum shall be governed by English law.
11. This Memorandum is executed and delivered as a deed by CWC Holdings.
CABLE & WIRELESS COMMUNICATIONS (HOLDINGS) PLC
Executed as a Deed for it and on its behalf
By: ____________________________________
Director
____________________________________
Director/Secretary
NTL BUSINESS LIMITED
By:
212
SCHEDULE 10
ADDITIONAL CONDITIONS PRECEDENT
PART A
ACCESSION CONDITIONS PRECEDENT
1. Copies, certified as at the date of the relevant Accession Memorandum a
true and up-to-date copies by an Authorised Signatory of the proposed
Additional Obligor, of:
(a) if such a proposed Additional Obligor is incorporated in a state
of the United States of America, the certificate of
incorporation, by laws and a certificate of good standing of such
a proposed Additional Obligor; or
(b) in all other cases, 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. 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
(including, without limitation, a Debenture and the other Security
Documents to be delivered pursuant to Part B (Security Documentation) of
this Schedule) and the deed of accession referred to in paragraph 11 of
this Schedule.
4. A certificate of an Authorised Signatory of the proposed Additional
Obligor confirming that the utilisation of the Revolving Facility and
guarantee of the Facilities would not breach any restriction of its
borrowing and/or guaranteeing powers.
5. If the proposed Additional Obligor is (a) to become an Additional
Borrower and (b) organised under the laws of any state of the United
States of America a certificate from NTL Holdings providing NTL Holding's
consent to such a proposed Additional Obligor borrowing under the
Revolving Facility.
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
reasonable 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
213
incorporation and to enable the proposed Additional Obligor to perform
its obligations thereunder and under the other Finance Documents.
7. If requested by the Agent, a copy, certified a true copy by an Authorised
Signatory of the proposed Additional Obligor, of its latest financial
statements.
8. An opinion of the Banks' counsel in the jurisdiction in which the
proposed Additional Obligor is incorporated in form and substance
reasonably satisfactory to the Agent.
9. If the proposed Additional Obligor is to become a Guarantor and is
incorporated in England and Wales, a letter from the CWC Parent to the
Agent (attaching supporting advice from the CWC Parent's English
solicitors) confirming that such proposed Additional Obligor is not
prohibited by section 151 of the Companies ▇▇▇ ▇▇▇▇ from entering into
the Finance Documents and performing its obligations thereunder.
10. If the proposed Additional Obligor is incorporated in a jurisdiction
other than England and Wales, 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.
11. A deed of accession to the Security Trust Agreement executed by the
proposed Additional Obligor, substantially in the form set out in
schedule 1 (Form of Obligor Deed of Accession) to the Security Trust
Agreement.
12. Where the proposed Additional Obligor is to become an Additional
Borrower, a Guarantor Accession Memorandum executed by such a proposed
Additional Obligor PROVIDED THAT the liability of any member of the UK
Group under such a Guarantor Accession Memorandum delivered prior to the
Pushdown Date shall be limited to the obligations of other members of the
UK Group under the Finance Documents.
13. Other than in respect of the accession of the members of the Target Group
specified in Schedule 13 (Members of the Target Group Providing
Guarantees and Security) in accordance with Clause 23.17
(Post-Acquisition Date Security), the documents and evidence specified in
Part B (Security Documentation) of this Schedule.
214
PART B
SECURITY DOCUMENTATION
1. If the relevant Additional Obligor is incorporated in England and Wales,
Northern Ireland or Scotland a Debenture and, if relevant, standard
securities and Northern Irish supplemental mortgages, executed by the
proposed Additional Obligor.
2. If the relevant Additional Obligor is incorporated in a state of the
United States of America:
(a) a general security agreement executed by such an Additional
Obligor granting the Security Trustee a security interest in all
of its assets;
(b) if applicable, a pledge agreement executed by such an Additional
Obligor pledging to the Security Trustee all of the shares and
other securities held by it; and
(c) UCC Financing Statements filed against such an Additional
Obligor.
3. If the relevant Additional Obligor is incorporated in a jurisdiction
other than those mentioned in paragraphs 1 and 2 above, such duly
executed Security Documents as the Agent may reasonably require to secure
substantially all of the assets of such an Additional Obligor.
4. Where the relevant Additional Obligor is granting a mortgage, standard
security or an analogous security interest over real or heritable
property:
(a) a Report on Title relating to that property;
(b) delivery of all title deeds and documents relating to that
property as set out in the agreed form schedule;
(c) if that property is situated in England and Wales and is
registered at HM Land Registry, official priority searches in
favour of the Agent of the registers of title of each of the
registered titles comprising such property which confirm a period
of priority of no less than 14 days;
(d) if that property is situated in England and Wales and is
unregistered, official priority searches in favour of the Agent
in respect of each of the Land Charges Registers against all
relevant estate owners since the date of the root conveyance;
(e) if that property is situated in Northern Ireland, a priority
search issued by the Land Registry in Northern Ireland which is
valid and in force which confirms a sufficient period of
priority;
(f) if that property is situated in Scotland and its title is
registered in the Land Register of Scotland, a Form 13 Report;
215
(g) if that property is situated in Scotland and its title is
recorded in the General Register of Sasines, appropriate property
and personal searches;
(h) if that property is situated in Scotland, letters of obligation
in a form which reflects current professional practice in
Scotland;
(i) if that property is situated in a state of the United States of
America, a mortgage executed by such an Additional Obligor over
that property (together with title, insurance and such other
documents as the Agent may reasonably require);
(j) notices of charge in duplicate to each of the landlords and
licensors or other third parties interested in respect of that
property, and cheques for any relevant registration fees;
(k) if that property is located in England and Wales, such Land
Registry forms in relation to that property, including Forms AP1
(if necessary) Forms FR1 or the equivalent and other forms as the
Agent may reasonably require, duly completed by and on behalf of
the proposed Additional Obligor, together with cheques for the
payment of all Land Registry fees (including fees for expedition)
or, if the property is situated in Scotland, such Land Register
or Sasine Register forms in relation to that property and other
forms as the Agent may reasonably require, duly completed by or
on behalf of the proposed Additional Obligor, together with
cheques for the payment of all recording/registration dues
payable in connection with the registration or recording of the
security created over that property by or pursuant to the terms
of any Debenture, or if that property is situated in Northern
Ireland, such Land Registry Forms in relation to that property or
Registry Deeds Memorial and Form 2 as the Agent may reasonably
require, duly completed by or on behalf of the proposed
Additional Obligor, together with cheques for the payment of all
Land Registry or Registry of Deeds fees payable;
(l) any other document, form or fee reasonably required to enable
security to be registrable and effective in any relevant
jurisdiction and all third party consents necessary for the
creation or perfection of any security; and
(m) an undertaking from a solicitor satisfactory to the Agent to use
all reasonable endeavours to satisfy any requisitions raised by
HM Land Registry or other analogous bodies in connection with the
application to register any security over such a property.
216
SCHEDULE 11
FORM OF RESIGNATION NOTICE
To: Chase Manhattan International Limited
From: [NTL Incorporated ("NTL HOLDINGS")/
NTL Communications Limited (the "PARENT")]
Dated:
Dear Sirs,
1. We refer to an agreement dated 30 May 2000 as from time to time amended,
varied, novated, supplemented or restated and made between, among others,
NTL Business Limited (whose obligations have been novated to NTL
Investment Holdings Limited) as the Post-Novation Borrower, Chase
Manhattan International Limited as agent and the financial institutions
defined therein as Banks (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 [37.3 (Resignation of a Borrower)]/[38.3 (Resignation
of a Guarantor)] we hereby request that [name of Obligor] shall cease to
be a [Borrower]/[Guarantor] under the Credit Agreement.
5. The aggregate EBITDA of the remaining Guarantors for the last financial
year of [Cable & Wireless Communications (UK) Holdings plc/the Parent]
equalled or exceeded [90/95] per cent. of the consolidated EBITDA of the
[Target Group/UK Group] for such a financial year.]** [The aggregate
EBITDA of the remaining Guarantors for the [ ] month period ending on
[Quarter Date] was such as to satisfy Clause 23.32.3]**
Yours faithfully
[NTL INCORPORATED/
NTL COMMUNICATIONS LIMITED]
--------------------------------------------------------------------------------
* Delete if notice is for a Guarantor.
** Delete if notice is for a Borrower.
217
SCHEDULE 12
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 Bank of
England and/or the Financial Services Authority (or, in either case, 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 Term or Interest Period (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 applicable to the relevant Advance
will be calculated by the Agent as a weighted average of that Bank's
additional costs rate 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 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:
AB+C(B-D)+E x 0.01/100-(A+C) per cent. per annum.
Where:
A is the percentage of Eligible Liabilities (assuming these to be
in excess of any stated minimum) which that Bank is from time to
time required to maintain as an interest free cash ratio deposit
with the Bank of England to comply with cash ratio requirements.
B is the percentage rate of interest (excluding the Revolving
Margin or, as the case may be, the Term Margin and the Mandatory
Cost Rate) payable for the relevant Term on the Revolving Loan
or, as the case may be, the relevant Interest Period on the Term
Loan.
C is the percentage (if any) of Eligible Liabilities which that
Bank is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England
to the Agent on interest bearing Special Deposits.
E is the rate of charge payable by that Bank to the Financial
Services Authority pursuant to the Fees Regulations (but, for
this purpose, ignoring any minimum fee required pursuant to the
Fees Regulations) and expressed in pounds per Pound
Sterling1,000,000 of the Fee Base of that Bank.
218
5. For the purposes of this Schedule:
(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings
given to them from time to time under or pursuant to the Bank of
England Act 1998 or (as may be appropriate) by the Bank of
England;
(b) "FEES REGULATIONS" means the Banking Supervision (Fees)
Regulations 1999 or such other law or regulation as may be in
force from time to time in respect of the payment of fees for
banking supervision; and
(c) "FEE BASE" has the meaning given to it, and will be calculated in
accordance with, the Fees Regulations.
6. In application of the above formula, A, B, C and D will be included in
the formula as percentages (i.e. 5 per cent. will be included in the
formula as 5 and not as 0.05). A negative result obtained by subtracting
D from B shall be taken as zero.
7. 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.
8. The percentages or rates of charge of each Bank for the purpose of A, C
and E above shall be determined by the Agent based upon the information
supplied to it pursuant to paragraph 7 above and on the assumption that
unless a Bank notifies the Agent to the contrary, each Bank's obligations
in relation to cash ratio deposits, Special Deposits and 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 paragraphs 3 and 7 above is true and correct in all
respects.
9. The Agent shall distribute the additional amounts received pursuant to
the Mandatory Cost Rate to the relevant Banks on the 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 paragraphs 3 and 7 above.
10. 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.
219
11. The Agent may from time to time, after consultation with the Parent (on
behalf of the 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 change in law, regulation or
any requirements from time to time imposed by the Bank of England, the
Financial Services Authority or the European Central Bank (or, in either
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.
220
SCHEDULE 13
MEMBERS OF THE TARGET GROUP GRANTING SECURITY
In the table set out below, "Crown" means either CWC or Cable & Wireless
Communications, as the case may be.
----------------------------------------------- ------------------ -------------------
NAME OF MEMBER OF THE TARGET GROUP JURISDICTION OF COMPANY NUMBER
INCORPORATION (IF APPLICABLE)
----------------------------------------------- ------------------ -------------------
Cable & Wireless Communications Limited England 3288998
----------------------------------------------- ------------------ -------------------
Crown Programming Limited England 3403986
----------------------------------------------- ------------------ -------------------
Crown Services Limited England 3403985
----------------------------------------------- ------------------ -------------------
Crown (Chichester) Limited England 3056817
----------------------------------------------- ------------------ -------------------
Crown (N) UK England 2463427
----------------------------------------------- ------------------ -------------------
Crown Acquisition Company Limited England 2270117
----------------------------------------------- ------------------ -------------------
Crown Holdings (East London) Limited England 2032186
----------------------------------------------- ------------------ -------------------
Crown (South East) Limited England 1870928
----------------------------------------------- ------------------ -------------------
Crown Equipment No 1 Limited England 2794518
----------------------------------------------- ------------------ -------------------
Crown (Kent) Limited England 2456153
----------------------------------------------- ------------------ -------------------
Crown (Aylesbury and Chiltern) Limited England 2416084
----------------------------------------------- ------------------ -------------------
Crown (County Durham) Limited England 3128449
----------------------------------------------- ------------------ -------------------
Crown (Eastbourne and Hastings) Limited England 3074517
----------------------------------------------- ------------------ -------------------
Crown Holdings (Broadland) Limited England 2427172
----------------------------------------------- ------------------ -------------------
Crown (Broadland) Limited England 2443741
----------------------------------------------- ------------------ -------------------
Crown Holdings (Fenland) Limited England 2427199
----------------------------------------------- ------------------ -------------------
Crown (Fenland) Limited England 2459153
----------------------------------------------- ------------------ -------------------
Crown Holdings (Leeds) Limited England 2766909
----------------------------------------------- ------------------ -------------------
Crown (Leeds) Limited England 2400103
----------------------------------------------- ------------------ -------------------
Crown Holdings (Norwich) Limited England 2412962
----------------------------------------------- ------------------ -------------------
Crown (Norwich) Limited England 2332233
----------------------------------------------- ------------------ -------------------
Crown Holdings (Peterborough) Limited England 2888397
----------------------------------------------- ------------------ -------------------
Crown (Peterborough) Limited England 2332232
----------------------------------------------- ------------------ -------------------
Crown Management Limited England 2924200
----------------------------------------------- ------------------ -------------------
Crown (Wearside) Limited England 2475099
----------------------------------------------- ------------------ -------------------
Crown (Sunderland) Limited England 2402393
----------------------------------------------- ------------------ -------------------
Crown (Yorcan) Limited England 2371785
----------------------------------------------- ------------------ -------------------
Crown (Harrogate) Limited England 2404019
----------------------------------------------- ------------------ -------------------
Crown (York) Limited England 2406267
----------------------------------------------- ------------------ -------------------
Crown (CRUK) Limited England 2329254
----------------------------------------------- ------------------ -------------------
Crown (V) Holdings Plc England 2719474
----------------------------------------------- ------------------ -------------------
Crown (City and Westminster) Limited England 2809080
----------------------------------------------- ------------------ -------------------
Crown Corporation Limited England 2719477
----------------------------------------------- ------------------ -------------------
Crown (Ealing) Limited England 1721894
----------------------------------------------- ------------------ -------------------
Crown Equipment No 2 Limited England 2071491
----------------------------------------------- ------------------ -------------------
Crown (Hampshire) Limited England 2351070
----------------------------------------------- ------------------ -------------------
Crown No 4 Limited England 2351068
----------------------------------------------- ------------------ -------------------
221
----------------------------------------------- ------------------ -------------------
NAME OF MEMBER OF THE TARGET GROUP JURISDICTION OF COMPANY NUMBER
INCORPORATION (IF APPLICABLE)
----------------------------------------------- ------------------ -------------------
England 2459179
Crown (Harrow) Limited
----------------------------------------------- ------------------ -------------------
Crown No 2 Limited England 2441766
----------------------------------------------- ------------------ -------------------
Crown No 3 Limited England 2441768
----------------------------------------------- ------------------ -------------------
Crown (Southampton and Eastleigh) Limited England 1866504
----------------------------------------------- ------------------ -------------------
Crown (South London) Limited England 657093
----------------------------------------------- ------------------ -------------------
Crown (Greenwich and Lewisham) Limited England 2254009
----------------------------------------------- ------------------ -------------------
Crown (Lambeth and Southwark) Limited England 2277986
----------------------------------------------- ------------------ -------------------
Crown (Wandsworth) Limited England 1866178
----------------------------------------------- ------------------ -------------------
Crown (Thamesmead) Limited England 2461140
----------------------------------------------- ------------------ -------------------
Crown (West London) Limited England 1735664
----------------------------------------------- ------------------ -------------------
Crown Chartwell Holdings Limited England 3290823
----------------------------------------------- ------------------ -------------------
Crown Winston Holdings Limited England 3290821
----------------------------------------------- ------------------ -------------------
Crown CableComms Group PLC England 3024703
----------------------------------------------- ------------------ -------------------
North CableComms Holdings, Inc. Delaware
----------------------------------------------- ------------------ -------------------
North CableComms Management, Inc. Delaware
----------------------------------------------- ------------------ -------------------
North CableComms LLC Delaware
----------------------------------------------- ------------------ -------------------
NYNEX CableComms Group, Inc Delaware
----------------------------------------------- ------------------ -------------------
NYNEX Chartwell Holdings, Inc Delaware
----------------------------------------------- ------------------ -------------------
Crown (N) UK Telephone and Cable TV Holdings England 2511877
Company Limited
----------------------------------------------- ------------------ -------------------
Crown CableComms Lancashire No 1 England 2453249
----------------------------------------------- ------------------ -------------------
Crown CableComms Lancashire No 2 England 2453059
----------------------------------------------- ------------------ -------------------
Crown CableComms Limited England 2664006
----------------------------------------------- ------------------ -------------------
Crown CableComms Manchester Limited England 2511868
----------------------------------------------- ------------------ -------------------
Crown CableComms West Surrey Limited England 2512757
----------------------------------------------- ------------------ -------------------
Crown (N) Microclock Services Limited England 2861856
----------------------------------------------- ------------------ -------------------
Crown (N) Partcheer Company Limited England 2861817
----------------------------------------------- ------------------ -------------------
Crown (N) Sideoffer Limited England 2927099
----------------------------------------------- ------------------ -------------------
Crown (N) Solent Telephone and Cable TV England 2511653
Company Limited
----------------------------------------------- ------------------ -------------------
Crown (N) Streetunique Projects Limited England 2851203
----------------------------------------------- ------------------ -------------------
Crown (N) Streetunit Projects Limited England 2851201
----------------------------------------------- ------------------ -------------------
Crown (N) Streetusual Services Limited England 2851019
----------------------------------------------- ------------------ -------------------
Crown (N) Streetvision Services Limited England 2851020
----------------------------------------------- ------------------ -------------------
Crown (N) Streetvital Services Limited England 2851021
----------------------------------------------- ------------------ -------------------
Crown (N) Streetwarm Services Limited England 2851011
----------------------------------------------- ------------------ -------------------
Crown (N) Streetwide Services Limited England 2851013
----------------------------------------------- ------------------ -------------------
Crown (N) Stikeagent Trading Limited England 2851014
----------------------------------------------- ------------------ -------------------
Crown (N) Strikeamount Trading Limited England 2851015
----------------------------------------------- ------------------ -------------------
Crown (N) Strikeapart Trading Limited England 2851018
----------------------------------------------- ------------------ -------------------
Crown (N) Technical Support Company Limited England 2512756
----------------------------------------------- ------------------ -------------------
NNS UK Holdings 1, Inc Delaware
----------------------------------------------- ------------------ -------------------
222
----------------------------------------------- ------------------ -------------------
NAME OF MEMBER OF THE TARGET GROUP JURISDICTION OF COMPANY NUMBER
INCORPORATION (IF APPLICABLE)
----------------------------------------------- ------------------ -------------------
Delaware
NNS UK Holdings 2, Inc
----------------------------------------------- ------------------ -------------------
NYNEX Bromley Company Delaware
----------------------------------------------- ------------------ -------------------
NYNEX North CableComms Holdings, Inc Delaware
----------------------------------------------- ------------------ -------------------
NYNEX North CableComms Management, Inc Delaware
----------------------------------------------- ------------------ -------------------
Crown CableComms Holdings No 1 Limited England 3709869
----------------------------------------------- ------------------ -------------------
Crown CableComms Bury and Rochdale England 2446183
----------------------------------------------- ------------------ -------------------
Crown CableComms Cheshire England 2379804
----------------------------------------------- ------------------ -------------------
Crown CableComms East Lancashire England 2114543
----------------------------------------------- ------------------ -------------------
Crown (N) Wirral Telephone and Cable TV England 2511873
Company
----------------------------------------------- ------------------ -------------------
Crown CableComms Macclesfield England 2459067
----------------------------------------------- ------------------ -------------------
Crown CableComms Oldham and Tameside England 2446185
----------------------------------------------- ------------------ -------------------
Crown CableComms Staffordshire England 2379800
----------------------------------------------- ------------------ -------------------
Crown CableComms Stockport England 2443484
----------------------------------------------- ------------------ -------------------
Crown CableComms Wirral England 2531604
----------------------------------------------- ------------------ -------------------
Crown (N) Bolton Cablevision Holdings Company England 2422198
----------------------------------------------- ------------------ -------------------
Crown Cablecomms Bolton England 1883383
----------------------------------------------- ------------------ -------------------
Crown Derby Cablevision Holdings Company England 2422310
----------------------------------------------- ------------------ -------------------
Crown CableComms Derby England 2387713
----------------------------------------------- ------------------ -------------------
Crown (N) Manchester Cablevision Holding England 2455631
Company
----------------------------------------------- ------------------ -------------------
Crown CableComms Greater Manchester England 2407924
----------------------------------------------- ------------------ -------------------
NYNEX Programming Subsidiary Company Delaware
----------------------------------------------- ------------------ -------------------
NYNEX South CableComms Holdings, Inc Delaware
----------------------------------------------- ------------------ -------------------
NYNEX South CableComms Management, Inc Delaware
----------------------------------------------- ------------------ -------------------
Crown CableComms Holdings No 2 Limited England 3709840
----------------------------------------------- ------------------ -------------------
Crown CableComms Bromley England 2422195
----------------------------------------------- ------------------ -------------------
Crown CableComms Solent England 2422654
----------------------------------------------- ------------------ -------------------
Crown CableComms Surrey England 2531586
----------------------------------------------- ------------------ -------------------
Crown CableComms Sussex England 2266092
----------------------------------------------- ------------------ -------------------
Crown CableComms Wessex England 2410378
----------------------------------------------- ------------------ -------------------
NYNEX Winston Holdings, Inc Delaware
----------------------------------------------- ------------------ -------------------
Winston Investors LLC Delaware
----------------------------------------------- ------------------ -------------------
South CableComms Holdings, Inc Delaware
----------------------------------------------- ------------------ -------------------
South CableComms Management, Inc Delaware
----------------------------------------------- ------------------ -------------------
South CableComms LLC Delaware
----------------------------------------------- ------------------ -------------------
NYNEX Chartwell Holdings 2, Inc. Delaware
----------------------------------------------- ------------------ -------------------
NYNEX Solent Company Delaware
----------------------------------------------- ------------------ -------------------
NYNEX Surrey Company Delaware
----------------------------------------------- ------------------ -------------------
NYNEX Sussex Company Delaware
----------------------------------------------- ------------------ -------------------
NYNEX UK Cablecomms Holdings, Inc. Delaware
----------------------------------------------- ------------------ -------------------
NYNEX Wessex Company Delaware
----------------------------------------------- ------------------ -------------------
223
----------------------------------------------- ------------------ -------------------
NAME OF MEMBER OF THE TARGET GROUP JURISDICTION OF COMPANY NUMBER
INCORPORATION (IF APPLICABLE)
----------------------------------------------- ------------------ -------------------
Delaware
NYNEX Wirral Company
----------------------------------------------- ------------------ -------------------
224
SCHEDULE 14
MEMBERS OF THE UK GROUP
----------------------------------------------- ------------------ -------------------
NAME JURISDICTION OF COMPANY NUMBER
INCORPORATION (IF APPLICABLE)
----------------------------------------------- ------------------ -------------------
NTL Communications Limited England 3521915
----------------------------------------------- ------------------ -------------------
NTL Kirklees England 2495460
----------------------------------------------- ------------------ -------------------
CableTel West Riding Limited England 2372564
----------------------------------------------- ------------------ -------------------
NTL Investment Holdings Limited England 3173552
----------------------------------------------- ------------------ -------------------
CableTel Scotland Limited Scotland SC119938
----------------------------------------------- ------------------ -------------------
NTL Glasgow Scotland SC075177
----------------------------------------------- ------------------ -------------------
CableTel Newport England 2478879
----------------------------------------------- ------------------ -------------------
NTL South Wales Limited England 2857050
----------------------------------------------- ------------------ -------------------
CableTel Cardiff Limited England 2740659
----------------------------------------------- ------------------ -------------------
CableTel West Glamorgan Limited England 623197
----------------------------------------------- ------------------ -------------------
Metro South Wales Limited England 3092897
----------------------------------------------- ------------------ -------------------
NTL Group Limited England 2591237
----------------------------------------------- ------------------ -------------------
National Transcommunications Limited England 2487597
----------------------------------------------- ------------------ -------------------
CableTel Surrey and Hampshire Limited England 2740651
----------------------------------------------- ------------------ -------------------
CableTel Northern Ireland Limited Northern Ireland NI029131
----------------------------------------------- ------------------ -------------------
NTL Internet Limited England 2985161
----------------------------------------------- ------------------ -------------------
NTL Telecom Services Limited England 2937788
----------------------------------------------- ------------------ -------------------
Enablis Limited England 3144815
----------------------------------------------- ------------------ -------------------
CableTel Hertfordshire Limited England 2381354
----------------------------------------------- ------------------ -------------------
CableTel Telecom Supplies Limited England 2919285
----------------------------------------------- ------------------ -------------------
Columbia Management Limited England 2361163
----------------------------------------------- ------------------ -------------------
Secure Backup Systems Limited England 3130333
----------------------------------------------- ------------------ -------------------
NTL Networks Limited England 3045209
----------------------------------------------- ------------------ -------------------
DTELS Limited England 2834403
----------------------------------------------- ------------------ -------------------
CableTel Central Hertfordshire Limited England 2347168
----------------------------------------------- ------------------ -------------------
CableTel Herts and Beds Limited England 1785533
----------------------------------------------- ------------------ -------------------
CableTel North Bedfordshire Limited England 2455397
----------------------------------------------- ------------------ -------------------
Digital Television Network Limited England 3288768
----------------------------------------------- ------------------ -------------------
Prospectre Limited Scotland SC145280
----------------------------------------------- ------------------ -------------------
Metro Hertfordshire Limited England 3092899
----------------------------------------------- ------------------ -------------------
NTL Systems Limited England 3217975
----------------------------------------------- ------------------ -------------------
Andover Cablevision Limited England 1932254
----------------------------------------------- ------------------ -------------------
ComTel Coventry Limited England 277802
----------------------------------------------- ------------------ -------------------
Tamworth Cable Communications Limited England 3016602
----------------------------------------------- ------------------ -------------------
CableTel (UK) Limited England 2835551
----------------------------------------------- ------------------ -------------------
Lichfield Cable Communications Limited England 3016595
----------------------------------------------- ------------------ -------------------
Vision Networks Services UK Limited England 3135501
----------------------------------------------- ------------------ -------------------
Wessex Cable Limited England 2433185
----------------------------------------------- ------------------ -------------------
Oxford Cable Limited England 2450228
----------------------------------------------- ------------------ -------------------
225
----------------------------------------------- ------------------ -------------------
NAME JURISDICTION OF COMPANY NUMBER
INCORPORATION (IF APPLICABLE)
----------------------------------------------- ------------------ -------------------
England 2265315
ComTel Cable Services Limited
----------------------------------------------- ------------------ -------------------
NTL Limited England 2586701
----------------------------------------------- ------------------ -------------------
Heartland Cablevision (UK) Limited England 2415170
----------------------------------------------- ------------------ -------------------
CableTel Investments Limited England 3157216
----------------------------------------------- ------------------ -------------------
▇▇▇▇▇▇▇▇ Communications Limited England 2381842
----------------------------------------------- ------------------ -------------------
Heartland Cablevision II (UK) Limited England 2443617
----------------------------------------------- ------------------ -------------------
CableTel Limited England 2857052
----------------------------------------------- ------------------ -------------------
NTL ▇▇▇▇▇▇ Keynes Limited England 2410808
----------------------------------------------- ------------------ -------------------
NTL Westminster Limited England 1735641
----------------------------------------------- ------------------ -------------------
Swindon Cable Limited England 318216
----------------------------------------------- ------------------ -------------------
Bracknell Cable TV Limited England 2499321
----------------------------------------------- ------------------ -------------------
Cable Thames Valley Limited England 2254089
----------------------------------------------- ------------------ -------------------
Cable Television Limited England 683065
----------------------------------------------- ------------------ -------------------
NTL South Central Limited England 2387692
----------------------------------------------- ------------------ -------------------
Maza Limited England 2785299
----------------------------------------------- ------------------ -------------------
Berkhamsted Properties & Building Contractors England 958564
Limited
----------------------------------------------- ------------------ -------------------
South Yorkshire Cablevision (UK) Limited England 2420981
----------------------------------------------- ------------------ -------------------
226
SCHEDULE 15
UK GROUP PRINCIPAL PROPERTIES
OFFICES
1. Crawley Court
SWITCH STATIONS/HEADENDS
1. Guildford.
2. Huddersfield.
3. Cardiff.
4. Renfrew.
5. Luton.
6. Belfast.
7. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (freehold).
8. ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
9. Unit K2 Gildersom Spur Distribution Centre Leeds.
10. ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
11. ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
12. ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
13. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇.
TRANSMISSION SITES
1. Croydon.
2. St. Hilary.
3. Black Hill.
4. Emley Moor.
5. Lichfield.
6. Moel Y Parc.
7. Ridge Hill.
8. Winter Hill.
9. Stockland Hill.
227
10. Black Mountain.
OTHER
1. Morne Hill, Winchester.
2. ▇▇▇▇▇▇ Street, London.
3. ▇▇▇▇ ▇, ▇▇▇▇▇▇▇.
4. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇.
228
SCHEDULE 16
FORM OF REPORT ON TITLE
1. Property name and address:
2. Owner:
(a) Legal
(b) Beneficial
3. Tenure:
4. If leasehold:
(a) term
(b) is charging permitted?
(c) is assignment permitted?
(d) any unduly onerous lease
covenants
(e) permitted use
(f) forfeiture only on breach of
covenant and non-payment of rent
5. If registered, title number and quality
of title:
6. Restrictions or impediments on sale
(other than mentioned above):
7. Other material comments:
229
SCHEDULE 17
THE ADDITIONAL FINANCE PROVIDERS
Cisco Systems Finance International
Export Development Corporation
230
SCHEDULE 18
FORM OF ADDITIONAL FINANCE PROVIDER ACCESSION UNDERTAKING
To: Chase Manhattan International Limited, for itself and each of the other
parties to the Credit Agreement referred to below.
THIS UNDERTAKING is made on [ ] by [ ] (the "ACCEDING ADDITIONAL FINANCE
PROVIDER") in relation to the Credit Agreement dated 30 May 2000, as amended,
varied, novated, supplemented or restated from time to time (the "CREDIT
AGREEMENT") between NTL Communications Limited as Parent, NTL Investment
Holdings Limited as Borrower, NTL Communications Corp. as NTL CC, Chase
Manhattan International Limited as agent and security trustee, the Banks named
therein and the Obligors.
1. Terms defined in the Credit Agreement shall bear the same meanings when
used in this Undertaking.
2. In consideration of the Acceding Additional Finance Provider being
accepted as an Additional Finance Provider for the purposes of the Credit
Agreement, the Acceding Additional Finance Provider hereby confirms that,
as from the Additional Finance Provider Accession Date (being [ ]), it
intends to be party to the Credit Agreement as an Additional Finance
Provider, undertakes to perform all the obligations expressed in the
Credit Agreement to be assumed by an Additional Finance Provider and
agrees that it shall be bound by all the provisions of the Credit
Agreement, as if it had been an original party to the Credit Agreement.
3. The Acceding Additional Finance Provider hereby requests the Agent to
accept this Additional Finance Provider Accession Undertaking as being
delivered to the Agent pursuant to and for the purposes of Clause 5.5
(Accession of the Additional Finance Providers) of the Credit Agreement
so as to take effect in accordance with the terms thereof on the
Additional Finance Provider Accession Date.
4. The Acceding Additional Finance Provider 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 any Finance Party 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 any Finance Party to
assess or keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of the Parent, the
NTL Holding Group or the Obligors.
5. The Acceding Additional Finance Provider hereby undertakes with each of
the 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 Additional Finance
Provider Accession Undertaking to the Agent and satisfaction of the
conditions (if any) subject to which this Additional Finance Provider
Accession Undertaking is expressed to take effect.
231
6. No Finance Party makes any 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 financial
condition of the Obligors or for the performance and observance by the
Obligors of any of its 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 Acceding Additional Finance Provider's Commitment shall be Pound
Sterling[ ].
8. The Acceding Additional Finance Provider's address for notices is [ ].
This Undertaking shall be governed by and construed in accordance with English
law.
THIS UNDERTAKING has been entered into on the date stated above.
Acceding Additional Finance Provider
[ ]
By:
Address for Notices:
Fax:
For the attention of:
Accepted by the Agent: Accepted by the Relevant Obligor:
............................... ..................................
[NAME OF AGENT] [NAME OF RELEVANT OBLIGOR]
For and on behalf of itself For and on behalf of itself, NTL CC and
and each other Finance Party each other Obligor
Date: Date:
3
--------------------------------------------------------------------------------
(3) Note that it will also be necessary for the Additional Finance Provider
to deliver a duly completed accession certificate in respect of the
Security Trust Agreement and the Intercreditor Agreement, in each case,
in the form specified therein.
232
SCHEDULE 19
CERTAIN ADDRESSES
----------------------- ------------------------ -------------------- --------------------
PARTY ADDRESS FAX ATTENTION
----------------------- ------------------------ -------------------- --------------------
Parent NTL House ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ Company Secretary
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
----------------------- ------------------------ -------------------- --------------------
Post-Novation Borrower NTL House ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ Company Secretary
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
----------------------- ------------------------ -------------------- --------------------
NTL CC ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
New York ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
▇▇▇
----------------------- ------------------------ -------------------- --------------------
Security Trustee and Trinity Tower ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Second Security 9 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
----------------------- ------------------------ -------------------- --------------------
Agent Trinity Tower ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Loans Agency Dept
▇▇▇▇▇▇ ▇▇ ▇▇▇
----------------------- ------------------------ -------------------- --------------------
233
SCHEDULE 20
THE GUARANTORS
ANDOVER CABLEVISION LIMITED
BERKHAMSTED PROPERTIES & BUILDING CONTRACTORS LIMITED
BRACKNELL CABLE TV LIMITED
CABLE TELEVISION LIMITED
CABLE THAMES VALLEY LIMITED
CABLETEL (UK) LIMITED
CABLETEL CARDIFF LIMITED
CABLETEL CENTRAL HERTFORDSHIRE LIMITED
CABLETEL HERTFORDSHIRE LIMITED
CABLETEL HERTS AND BEDS LIMITED
CABLETEL INVESTMENTS LIMITED
CABLETEL LIMITED
CABLETEL NEWPORT
CABLETEL NORTH BEDFORDSHIRE LIMITED
CABLETEL NORTHERN IRELAND LIMITED
CABLETEL SCOTLAND LIMITED
CABLETEL SURREY AND HAMPSHIRE LIMITED
CABLETEL TELECOM SUPPLIES LIMITED
CABLETEL WEST GLAMORGAN LIMITED
CABLETEL WEST RIDING LIMITED
COLUMBIA MANAGEMENT LIMITED
COMTEL CABLE SERVICES LIMITED
COMTEL COVENTRY LIMITED
DIGITAL TELEVISION NETWORK LIMITED
DTELS LIMITED
ENABLIS LIMITED
HEARTLAND CABLEVISION (UK) LIMITED
HEARTLAND CABLEVISION II (UK) LIMITED
LANBASE EUROPEAN HOLDINGS LIMITED
LANBASE LIMITED
LICHFIELD CABLE COMMUNICATIONS LIMITED
MAZA LIMITED
METRO HERTFORDSHIRE LIMITED
METRO SOUTH WALES LIMITED
NATIONAL TRANSCOMMUNICATIONS LIMITED
NTL (AYLESBURY AND CHILTERN) LIMITED
NTL (B) LIMITED
NTL (BROADLAND) LIMITED
NTL (CHICHESTER) LIMITED
NTL (CITY & WESTMINSTER) LIMITED
NTL (COUNTY DURHAM) LIMITED
NTL (CRUK) LIMITED
NTL (CWC HOLDINGS)
234
NTL (CWC) CORPORATION LIMITED
NTL (CWC) LIMITED
NTL (CWC) MANAGEMENT LIMITED
NTL (CWC) NO. 2 LIMITED
NTL (CWC) NO. 3 LIMITED
NTL (CWC) NO. 4 LIMITED
NTL (CWC) PROGRAMMING LIMITED
NTL (CWC) UK
NTL (EALING) LIMITED
NTL (EASTBOURNE AND HASTINGS) LIMITED
NTL (FENLAND) LIMITED
NTL (GREENWICH AND LEWISHAM) LIMITED
NTL (HAMPSHIRE) LIMITED
NTL (HARROGATE) LIMITED
NTL (HARROW) LIMITED
NTL (KENT) LIMITED
NTL (LAMBETH AND SOUTHWARK) LIMITED
NTL (LEEDS) LIMITED
NTL (NORWICH) LIMITED
NTL (PETERBOROUGH) LIMITED
NTL (SOUTH EAST) LIMITED
NTL (SOUTH LONDON) LIMITED
NTL (SOUTHAMPTON AND EASTLEIGH) LIMITED
NTL (SUNDERLAND) LIMITED
NTL (THAMESMEAD) LIMITED
NTL (V) PLC
NTL (WANDSWORTH) LIMITED
NTL (WEARSIDE) LIMITED
NTL (WEST LONDON) LIMITED
NTL (YORCAN) LIMITED
NTL (YORK) LIMITED
NTL ACQUISITION COMPANY LIMITED
NTL ▇▇▇▇▇▇ CABLEVISION HOLDING COMPANY
NTL BUSINESS (IRELAND) LIMITED
NTL BUSINESS LIMITED
NTL CABLECOMMS ▇▇▇▇▇▇
NTL CABLECOMMS BROMLEY
NTL CABLECOMMS BURY AND ROCHDALE
NTL CABLECOMMS CHESHIRE
NTL CABLECOMMS DERBY
NTL CABLECOMMS EAST LANCASHIRE
NTL CABLECOMMS GREATER MANCHESTER
NTL CABLECOMMS GROUP PLC
NTL CABLECOMMS HOLDINGS NO. 1 LIMITED
NTL CABLECOMMS HOLDINGS NO. 2 LIMITED
NTL CABLECOMMS LANCASHIRE NO. 1
235
NTL CABLECOMMS LANCASHIRE NO. 2
NTL CABLECOMMS LIMITED
NTL CABLECOMMS MACCLESFIELD
NTL CABLECOMMS MANCHESTER LIMITED
NTL CABLECOMMS OLDHAM AND TAMESIDE
NTL CABLECOMMS SOLENT
NTL CABLECOMMS STAFFORDSHIRE
NTL CABLECOMMS STOCKPORT
NTL CABLECOMMS SURREY
NTL CABLECOMMS SUSSEX
NTL CABLECOMMS WESSEX
NTL CABLECOMMS WEST SURREY LIMITED
NTL CABLECOMMS WIRRAL
NTL CHARTWELL HOLDINGS LIMITED
NTL COMMUNICATIONS LIMITED
NTL COMMUNICATIONS SERVICES LIMITED
NTL DERBY CABLEVISION HOLDING COMPANY
NTL EQUIPMENT NO. 1 LIMITED
NTL EQUIPMENT NO. 2 LIMITED
NTL GLASGOW
NTL GLASGOW HOLDINGS LIMITED
NTL GROUP LIMITED
NTL HOLDINGS (BROADLAND) LIMITED
NTL HOLDINGS (EAST LONDON) LIMITED
NTL HOLDINGS (FENLAND) LIMITED
NTL HOLDINGS (LEEDS) LIMITED
NTL HOLDINGS (NORWICH) LIMITED
NTL HOLDINGS (PETERBOROUGH) LIMITED
NTL INTERNET LIMITED
NTL INVESTMENT HOLDINGS LIMITED
NTL KIRKLEES
NTL KIRKLEES HOLDINGS LIMITED
NTL LIMITED
NTL MANCHESTER CABLEVISION HOLDING COMPANY
NTL MICROCLOCK SERVICES LIMITED
NTL ▇▇▇▇▇▇ KEYNES LIMITED
NTL NETWORKS LIMITED
NTL PARTCHEER COMPANY LIMITED
NTL SIDEOFFER LIMITED
NTL SOLENT TELEPHONE AND CABLE TV COMPANY LIMITED
NTL SOUTH CENTRAL LIMITED
NTL SOUTH WALES LIMITED
NTL STREETUNIQUE PROJECTS LIMITED
NTL STREETUNIT PROJECTS LIMITED
NTL STREETUSUAL SERVICES LIMITED
NTL STREETVISION SERVICES LIMITED
236
NTL STREETVITAL SERVICES LIMITED
NTL STREETWARM SERVICES LIMITED
NTL STREETWIDE SERVICES LIMITED
NTL STRIKEAGENT TRADING LIMITED
NTL STRIKEAMOUNT TRADING LIMITED
NTL STRIKEAPART TRADING LIMITED
NTL SYSTEMS LIMITED
NTL TECHNICAL SUPPORT COMPANY LIMITED
NTL TELECOM SERVICES LIMITED
NTL UK TELEPHONE AND CABLE TV HOLDING COMPANY LIMITED
NTL WESTMINSTER LIMITED
NTL WINSTON HOLDINGS LIMITED
NTL WIRRAL TELEPHONE AND CABLE TV COMPANY
OXFORD CABLE LIMITED
PROSPECTRE LIMITED
SCANNERS (EUROPE) LIMITED
SCANNERS TELEVISION OUTSIDE BROADCASTS LIMITED
SECURE BACKUP SYSTEMS LIMITED
▇▇▇▇▇▇▇▇ COMMUNICATIONS LIMITED
SWINDON CABLE LIMITED
TAMWORTH CABLE COMMUNICATIONS LIMITED
VISION NETWORKS SERVICES UK LIMITED
WESSEX CABLE LIMITED
X-TANT LIMITED
CHARTWELL INVESTORS LP
NNS UK HOLDINGS 1, INC.
NNS UK HOLDINGS 2, INC.
NORTH CABLECOMMS LLC
NORTH CABLECOMMS HOLDINGS, INC.
NORTH CABLECOMMS MANAGEMENT, INC.
NTL BROMLEY COMPANY
NTL CABLECOMMS GROUP, INC.
NTL CHARTWELL HOLDINGS, INC.
NTL CHARTWELL HOLDINGS 2, INC.
NTL NORTH CABLECOMMS HOLDINGS, INC.
NTL NORTH CABLECOMMS MANAGEMENT, INC.
NTL PROGRAMMING SUBSIDIARY COMPANY
NTL SOLENT COMPANY
NTL SOUTH CABLECOMMS HOLDINGS, INC.
NTL SOUTH CABLECOMMS MANAGEMENT, INC.
NTL SURREY COMPANY
NTL SUSSEX COMPANY
NTL UK CABLECOMMS HOLDINGS, INC.
NTL WESSEX COMPANY
NTL WINSTON HOLDINGS, INC.
NTL WIRRAL COMPANY
237
SOUTH CABLECOMMS HOLDINGS, INC.
SOUTH CABLECOMMS LLC
SOUTH CABLECOMMS MANAGEMENT, INC.
WINSTON INVESTORS LLC
* * * * * * * * * *
238