Exhibit 4.3
PRIMACOM AG
as Borrower
and
PRIMACOM MANAGEMENT GmbH
as Guarantor
and
▇.▇. ▇▇▇▇▇▇ PLC
BARCLAYS CAPITAL
DRESDNER BANK AG, LONDON BRANCH
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
T D BANK EUROPE LIMITED
as Arrangers
and
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED
as Agent and Security Trustee
and
OTHERS
------------------------------------------------
EURO 375,000,000
SECOND SECURED FACILITY AGREEMENT
------------------------------------------------
CONTENTS
CLAUSE PAGE
1. Interpretation 1
2. The Facilities 20
3. Purpose 20
4. Conditions Precedent 20
5. Nature Of Banks' And Borrower's Obligations 21
6. Utilisation Of The Facility 22
7. Interest 22
8. Shareholder Approval And Share Conversion 23
9. Repayment 24
10. Voluntary Prepayment 24
11. Mandatory Prepayment 25
12. Taxes 27
13. Tax Receipts 28
14. Increased Costs 29
15. Illegality 30
16. Mitigation 31
17. Representations 31
18. Information 36
19. Financial Condition 38
20. Covenants 43
21. Events Of ▇▇▇▇▇▇▇ ▇▇
▇▇. Default Interest And Indemnity 57
23. Currency Of Account And Payment 59
24. Payments 60
25. Set-Off 62
26. Redistribution Of Payments 62
27. Fees 63
28. Costs And Expenses 63
29. ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. Preservation Of Rights 65
31. The Agent, The Arrangers And The Banks 67
32. Benefit Of Agreement 71
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33. Assignments And Transfers By The Obligors 71
34. Assignments And Transfers By Banks 71
35. Disclosure Of Information 73
36. Sub-Participation 73
37. Calculations And Evidence Of Debt 73
38. Remedies And Waivers 74
39. Partial Invalidity 74
40. Notices 74
41. Counterparts 75
42. Group Structure Changes And Permissions 76
43. Amendments, Consents 76
44. Law 77
45. Jurisdiction 77
SCHEDULE 1 THE BANKS 79
SCHEDULE 2 FORM OF TRANSFER CERTIFICATE 80
SCHEDULE 3 CONDITION PRECEDENT DOCUMENTS 83
SCHEDULE 4 NOTICE OF DRAWDOWN AND SELECTION NOTICE 85
SCHEDULE 5 FORM OF COMPLIANCE CERTIFICATE 87
SCHEDULE 6 QUARTERLY SUBSCRIBER CERTIFICATE 89
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THIS AGREEMENT is dated 25 March 2002 and made
BETWEEN
(1)
PRIMACOM AG as borrower (the "BORROWER");
(2) PRIMACOM MANAGEMENT GmbH as guarantor (the "GUARANTOR" or "PMG");
(3) ▇.▇. ▇▇▇▇▇▇ PLC, BARCLAYS CAPITAL, DRESDNER BANK AG, LONDON BRANCH,
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE) AND T D BANK EUROPE LIMITED as
arrangers (the "ARRANGERS");
(4) ▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED as agent (the "AGENT") and as security trustee
(the "SECURITY TRUSTEE"); and
(5) THE FINANCIAL INSTITUTIONS named in Schedule 1.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 IN THIS AGREEMENT:
"ACCOUNT PLEDGE" means an account pledge agreement over the Charged
Account;
"ACQUISITION" means any acquisition, whether by way of share or asset
purchase by members of the Group of any entity which engages in, or any
business which relates to, the provision of Broadband Services;
"AMENDMENT DATE" has the meaning given to that term in the Co-ordination
Agreement;
"ANNUALISED EBITDA" means, at any time, Consolidated EBITDA for the most
recently ended Quarterly Period, multiplied by four (as adjusted to
reflect any Acquisitions and Asset Disposals during such Quarterly
Period);
"APPROVED TARGET" means any entity or business which is located in
Germany or the Netherlands or any other jurisdiction acceptable to an
Instructing Group and, in each case, whose principal activities are
related to the provision of Broadband Services;
"ASSET DISPOSAL" means any disposal of any assets by any member of the
Group after the date of this Agreement other than any disposal of assets
permitted in accordance with paragraphs (b), (d) and (e) of sub-clause
20.2.5 of Clause 20.2 (NEGATIVE COVENANTS);
"AVAILABILITY PERIOD" means the period commencing on the date of this
Agreement and ending 14 days thereafter;
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time and, save
as otherwise provided herein, such Bank's Commitment at such time less
the amount of that Bank's participation in the Loan outstanding
hereunder;
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"BANK" means any bank or financial institution:
(a) named in Schedule 1 (THE BANKS); or
(b) which has become a party hereto as a Bank in accordance with
Clause 34.2 (ASSIGNMENTS BY BANKS) or Clause 34.3 (TRANSFERS BY
BANKS),
and which has not ceased to be a party hereto in accordance with the
terms hereof;
"BENEFICIARIES" means the Security Trustee, the Agent, the Arrangers and
the Banks;
"BORROWER DEBT" means any indebtedness for borrowed money of the Borrower
other than indebtedness arising under this Facility or the Senior Notes
but including, without limitation, the Take-out Debt;
"BROADBAND SERVICES" means cable television services, internet and other
broadband telecommunications services (including (without limitation)
voice telephony services);
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks generally are open for business in London and (in relation to any
date for payment or purchase of a sum denominated in EURO) any TARGET
Day;
"BUSINESS PLAN" means the Original Business Plan, or at any time after
the consolidated business plan of the Financial Group is delivered
pursuant to sub-clause 18.1.3 of Clause 18.1 (FINANCIAL STATEMENTS), the
most recent consolidated business plan delivered pursuant thereto;
"CAPITAL EXPENDITURE" means any expenditure (including any obligation in
respect of the capital element of any finance lease or capital lease) for
the acquisition of equipment, fixed assets, real property, intangible
assets and other assets of a capital nature, or for the replacements or
substitutions therefor or additions or improvements thereto, that in any
such case have a useful life of more than one year together with costs
incurred in connection therewith;
"CHARGED ACCOUNT" means an interest bearing account with the Security
Trustee in the name of the Borrower, which is pledged in favour of the
Banks pursuant to an Account Pledge;
"CLOSING DATE" means the date of this Agreement;
"COMMITMENT" means in relation to a Bank at any time and save as
otherwise provided herein, the amount in EURO set opposite its name in
Schedule 1 (THE BANKS);
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 5 (FORM OF COMPLIANCE CERTIFICATE);
"CONSIDERATION" means, at any time, the value of cash or cash equivalent
assets actually paid or to be paid by any member of the Group in respect
of any Acquisition (including any escrow deposits), together with all
indebtedness and liabilities to any person, including any contingent
payments (whether related to future earnings, operations or otherwise)
payable in the future (determined in accordance with the reasonable
estimate
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of the Borrower, which estimate shall be agreed by the Instructing Group
(such agreement not to be unreasonably withheld or delayed)), plus any
incidental or consequential costs (including any redundancy payments,
restructuring expenses or any other rationalisation costs and whether
accounted for as a capitalised expense or through the raising of a
provision) likely to be incurred by the Group arising in connection with
or as a result of the Acquisition as notified to the Agent by the
Borrower (if such costs exceed 1 per cent. of the Consideration);
"CONSOLIDATED EBITDA" means, at any time and in respect of any Quarterly
Period, the EBITDA of the Financial Group;
"CONTINGENT VALUE RIGHT AGREEMENT" means the agreement, in the form of
Exhibit B to the Existing Facility, dated as of September 18, 2000 as
amended and restated from time to time and made between
PrimaCom AG and
Chase Securities INC.
"CO-ORDINATION AGREEMENT" means the agreement dated on or about the date
of this Agreement between
PrimaCom AG, PMG and certain other members of
the Group, the Agent, the Security Trustee, the Arrangers, the Banks, the
Senior Agent, the Senior Security Trustee, the Senior Lead Arrangers, the
Senior Lenders and ▇▇ ▇▇▇▇▇▇ AG as fronting bank and overdraft bank
"CVRS" means the CVRs of the Borrower as defined in the Contingent Value
Right Agreement;
"DEFERRED CONSIDERATION" means any amounts paid or payable or which will
be paid or payable as part of the Consideration for an Acquisition after
the date of completion of the Acquisition;
"DISPOSAL CONSIDERATION" means at any time, the value of cash or cash
equivalent assets received by any member of the Group in respect of any
Asset Disposal, together with all indebtedness and liabilities owing to
any member of the Group which is repaid upon such disposal, any
contingent payments (whether related to future earnings, operations or
otherwise) payable in the future and which are actually receivable in
cash or cash equivalent assets and, in the case of a disposal of shares,
the value of any pre-completion dividends paid to any member of the Group
by any company whose shares are the subject of an Asset Disposal which is
effected as part of an arrangement for, or in contemplation of, a
disposal of that company;
"EBITDA" means, in relation to the Financial Group (or any part thereof),
in respect of any period and as calculated in accordance with U.S. GAAP,
Net Revenues of the Financial Group (or such part thereof) during such
period less all operating expenses incurred during such period before the
deduction of depreciation, amortisation, other non cash charges,
extraordinary items, Interest Expense and taxation (in each case in
respect of such period);
"EMU" means Economic and Monetary Union as contemplated in the Treaty on
European Union;
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"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 Sates, being in part legislative measures to implement EMU;
"ENVIRONMENTAL CLAIM" means any claim, notice of violation, prosecution,
demand, action, official warning or other investigation pursuant to any
Environmental Law;
"ENVIRONMENTAL LAWS" includes all or any laws, statutes, regulations,
treaties, and judgements of any governmental authority or agency or any
regulatory body in any jurisdiction in which any member of the Group is
formed or carries on business or of the European Community, relating to
the pollution or protection of the environment or harm to or the
protection of human health or the health of animals or plants, and
applicable to any member of the Group and/or the construction,
installation and operation of cable television and telecommunications
systems in the areas covered by the Licences and/or any other activities
from time to time carried on by any member of the Group and/or the
occupation or use of any property owned, leased or occupied by any member
of the Group;
"ENVIRONMENTAL LICENCE" means any permit, licence, authorisation, consent
or other approval required at any time by any Environmental Law for the
construction, installation and operation of cable television and
telecommunications systems in the franchise areas and/or for any other
activities from time to time carried on by any member of the Group;
"EQUITY CONVERSION DATE" means 31 December 2004;
"EVENT OF DEFAULT" means any of those events specified in Clause 21
(EVENTS OF DEFAULT);
"EXCESS CASH FLOW" means, in relation to the Financial Group and for any
Quarterly Period or financial year of the Financial Group, EBITDA of the
Financial Group for such period less (a) Fixed Charges for such period
and (b) EURO 1,000,000 (or EURO 250,000 if such period is a Quarterly
Period);
"EXISTING FACILITY AGREEMENT" means the EURO 375,000,000 working capital
facility dated as of September 18, 2000 (as amended) entered into between
PrimaCom AG, Chase Manhattan International Limited as administrative
agent, Chase Manhattan PLC as arranger and the lenders specified therein,
which will be cancelled on drawdown of the Facility as set out in the
Co-ordination Agreement;
"FACILITY" means the EURO 375,000,000 term loan facility granted by the
Banks to the Borrower hereunder;
"FACILITY AMOUNT" means, at any time, the aggregate amount of the
Commitments of the Banks at such time;
"FACILITY DOCUMENTS" means:
(a) this Agreement;
(b) the Second Security Documents;
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(c) the Intercreditor Agreement;
(d) any Fee Letter;
(e) the Co-ordination Agreement;
(f) the Contingent Value Right Agreement;
(g) the Share Option Agreement; and
(h) any other agreement, document, letter, deed, notice or
certificate designated as such by the Agent and the Borrower,
together with all amendments of, and supplements to, any of the
foregoing,
and "FACILITY DOCUMENT" shall be construed accordingly;
"FACILITY OFFICE" means, in relation to the Agent, the office identified
with its signature below 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 each case such other office as it may
from time to time select;
"FEE LETTER" means any letter or letters dated on or about the date of
this Agreement between the Arrangers and the Borrower (or the Agent and
the Borrower) setting out any fees referred to in Clause 27 (FEES);
"FINANCE LEASE" means any lease or hire purchase contract which would, in
accordance with U.S. GAAP, be treated as a finance or capital lease;
"FINANCIAL GROUP" means the Borrower and each of its subsidiaries from
time to time;
"FINAL MATURITY DATE" means 31 March 2010 (or if such day is not a
Business Day, the next succeeding Business Day);
"FINANCE PARTIES" means the Agent, the Arrangers, the Banks and the
Security Trustee;
"FIXED CHARGES" means in respect of any period the sum of Total Cash
Interest Expense and Capital Expenditure, taxes and all scheduled
payments of principal during that period (each calculated on a
consolidated basis);
"GERMANY" means the Federal Republic of Germany;
"GROUP" means PMG and each of its subsidiaries from time to time;
"GROUP STRUCTURE CHARTS" means the group structure charts delivered to
the Agent pursuant to Clause 4 (CONDITIONS PRECEDENT) and described in
paragraph 10 of Schedule 3 (CONDITIONS PRECEDENT DOCUMENTS);
"HEDGE CONTRACT" means a contract between a bank or other financial
institution and any member of the Financial Group relating to interest
rate or currency swaps, caps, floors, collars, forward sale or purchase
contracts, contracts for differences or any option
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transactions or any other treasury transactions or any other transaction
entered into in connection with the management of risk related to
indebtedness of the Financial Group;
"INITIAL LOAN AMOUNT" means the principal amount of EURO 375,000,000;
"INSTRUCTING GROUP" means:
(a) whilst the Loan is not outstanding hereunder, a group of 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 per cent. (60%)
of the aggregate of the Facility Amount; and
(b) thereafter, a group of Banks to whom in aggregate more than
sixty per cent. (60%) of the aggregate amount of the Loan is
(or, immediately prior to repayment of such amounts, was then)
owed;
"INTELLECTUAL PROPERTY RIGHTS" means any patent, trade ▇▇▇▇, service
▇▇▇▇, registered design, trade name or copyright required to carry on the
business of constructing, maintaining, using or operating cable
television and telecommunications systems;
"INTERCREDITOR AGREEMENT" means the intercreditor agreement dated on or
about the date of this Agreement between, amongst others, the Borrower,
PMG, the Agent, the Banks, the Security Trustee, the Senior Security
Trustee, the Senior Agent, the Senior Lenders, the Fronting Bank and the
Overdraft Bank;
"INTEREST EXPENSE" means, in relation to any Quarterly Period, the
aggregate of all interest (excluding capitalised interest) accrued
(whether or not paid or payable) during such Quarterly Period in respect
of indebtedness for borrowed money of members of the Financial Group
(other than indebtedness owed by one member of the Financial Group to
another member of the Financial Group);
"INTEREST PAYMENT DATE" means, in relation to the Loan, the last day of
an Interest Period, and if an Interest Period is more than six months, in
addition, on the expiry of each period of six months during such Interest
Period;
"INTEREST PERIOD" means each period determined in accordance with Clause
7.5 (SELECTION OF INTEREST PERIODS) and, in relation to an Unpaid Sum,
each period determined in accordance with Clause 22.1 (DEFAULT INTEREST
PERIODS);
"KPN CONTRACTS" means each of the broadcasting signal contracts between
KPN Telecom B.V. and each of Multikabel and Communikabel N.V.;
"LICENCES" means any public law permits for operation of Systems from
RegTP or any other comparable national telecommunications regulatory
authority (as applicable) in any relevant townships;
"LOAN" means the loan made or to be made by the Banks under the Facility
or the principal amount outstanding for the time being of that loan
(including, without limitation, any interest that is capitalised pursuant
to the terms of this Agreement);
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"MATERIAL ADVERSE EFFECT" means a material adverse effect:
(a) on the business or financial condition of the Financial Group
taken as a whole; or
(b) on the ability of the Borrower, any Obligor which is a Material
Group Company or the Financial Group taken as a whole to comply
with any of its or their respective obligations under the
Facility Documents;
"MATERIAL COMMERCIAL CONTRACTS" means the Material DT Contracts, the KPN
Contracts and any other commercial agreements entered into by any member
of the Group which are material to the business or prospects of the Group
taken as a whole in terms of strategic commercial importance or revenue
generation;
"MATERIAL DT CONTRACTS" means such co-operation and delivery of signal
contracts between any member of the Financial Group and Deutsche Telekom
which, either individually or taken together, are material to the
business (or the conduct thereof) of the Financial Group as a whole;
"MATERIAL ENVIRONMENTAL CLAIM" means any Environmental Claim which, if
successful, would be likely to have a Material Adverse Effect;
"MATERIAL GROUP COMPANY" means any subsidiary of the Borrower or PMG
which is:
(a) a company, corporation or partnership which is a holding
company of a Material Group Company;
(b) a company, corporation or partnership whose Net Revenues or, in
the case of a company which itself has subsidiaries, whose
consolidated Net Revenues, exceed 5% of the consolidated Net
Revenues of the Financial Group as calculated by reference to
the latest quarterly financial statements (consolidated or
unconsolidated, as the case may be) of such subsidiary and the
Financial Group PROVIDED THAT:
(i) in the case of a subsidiary acquired after the end of the
Quarterly Period to which the most recently delivered
quarterly financial statements relate, the reference to
the latest financial statements of the Financial Group
for the purposes of the calculation above shall, until
the financial statements for the Quarterly Period in
which the acquisition is made are prepared, be deemed to
be a reference to such first-mentioned accounts as if
such subsidiary had been shown in such accounts by
reference to its own latest financial statements,
adjusted as deemed appropriate by the auditors of the
Borrower; and
(ii) if, in the case of any subsidiary which itself has
subsidiaries, no consolidated accounts are prepared, its
consolidated Net Revenues shall be determined on the
basis of PRO FORMA consolidated accounts of the relevant
subsidiary and its subsidiaries prepared for this purpose
by the auditors of the Borrower or the auditors for the
time being of the relevant subsidiary; or
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(iii) a company, corporation or partnership not falling within
sub-paragraph (i) above but which, as a result of any
intra-group transfer or re-organisation would, adopting
any of the tests referred to in sub-paragraph (i) above
and as if the accounts referred to in such sub-paragraph
had been drawn up immediately following such transfer or
re-organisation, be a Material Group Company PROVIDED
THAT such subsidiary shall only become a Material Group
Company upon the completion of such transfer or
re-organisation;
(c) a company, corporation or partnership which provides Broadband
Services to Subscribers constituting 5% or more of the
Subscribers of the Group; or
(d) a company, corporate or partnership whose EBITDA or, in the
case of a company which itself has subsidiaries whose
consolidated EBITDA, constitutes 5% or more of the EBITDA of
the Financial Group as calculated by reference to the latest
quarterly financial statements (consolidated or unconsolidated,
as the case may be) of such subsidiary and the Financial Group
PROVIDED THAT:
(i) in the case of a subsidiary acquired after the end of the
Quarterly Period to which the most recently delivered
quarterly financial statements relate, the reference to
the latest financial statements of the Financial Group
for the purposes of the calculation above shall, until
the financial statements for the Quarterly Period in
which the acquisition is made are prepared, be deemed to
be a reference to such first-mentioned accounts as if
such subsidiary had been shown in such accounts by
reference to its own latest financial statements,
adjusted as deemed appropriate by the auditors of the
Borrower; and
(ii) if, in the case of any subsidiary which itself has
subsidiaries, no consolidated accounts are prepared, its
consolidated EBITDA shall be determined on the basis of
PRO FORMA consolidated accounts of the relevant
subsidiary and its subsidiaries prepared for this purpose
by the auditors of the Borrower or the auditors for the
time being of the relevant subsidiary; or
(iii) a company, corporation or partnership not falling within
sub-paragraph (i) above but which, as a result of any
intra-group transfer or re-organisation would, adopting
any of the tests referred to in sub-paragraph (i) above
and as if the accounts referred to in such sub-paragraph
had been drawn up immediately following such transfer or
re-organisation, be a Material Group Company PROVIDED
THAT such subsidiary shall only become a Material Group
Company upon the completion of such transfer or
re-organisation;
"MULTIKABEL" means N.V. Kabeltelevisie Kop Noord-Holland (a public
company with limited liability incorporated under the laws of The
Netherlands and registered with the Commercial Register in The
Netherlands under number 37026706);
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"NECESSARY AUTHORISATIONS" means all approvals, authorisations,
franchises and licences from, all rights granted by and all filings,
registrations and agreements with any person including, without
limitation, any government or other regulatory authority (including,
without limitation, the Licences necessary or required for the business
of the Financial Group permitted by the terms of this Agreement);
"NET REVENUES" means in relation to the Financial Group (or any part
thereof) or any person which has been acquired by any member of the
Financial Group and for any period, all revenues (including all
installation revenues) from the use of or generated by the Systems
(exclusive of VAT) whatsoever payable to the Financial Group (or such
part thereof) or, as the case may be, such person, which arise during
such period;
"NET SENIOR DEBT" means at any time, Senior Debt at such time less an
amount (if any) equal to the amount of undrawn commitment under the
Facility at such time;
"NOTICE OF DRAWDOWN" means a notice in the form set out in Part A of
Schedule 4 (NOTICE OF DRAWDOWN AND SELECTION NOTICE);
"OBLIGORS" means the Borrower and the Guarantor and "OBLIGOR" means
either of them;
"OPERATING COMPANY" means each member of the Group involved in the
construction, installation and/or operations of Systems;
"ORIGINAL BUSINESS PLAN" means the consolidated business plan of the
Financial Group delivered to the Senior Lenders in the agreed form in
February 2002;
"ORIGINAL FINANCIAL STATEMENTS" means the audited consolidated financial
statements for the year ended 31 December 2000 of the Borrower;
"OVERDRAFT FACILITY" means the overdraft facility in an amount of
EURO 15,000,000 provided pursuant to the terms of the Senior Facility as
at the date of this Agreement;
"PARALLEL DEBT OBLIGATIONS" has the meaning ascribed thereto in Clause
5.3 (OBLIGATIONS OWED TO SECURITY TRUSTEE);
"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 ACQUISITION" means an Acquisition as defined in, and which
satisfies the requirements of, Clause 20.5 (PERMITTED ACQUISITIONS);
"PERMITTED DISPOSAL EXPENSES" means:
(a) all title and registration expenses and expenses of
professional advisers, incidental to, incurred on and fairly
attributable to, any Asset Disposal;
(b) with the prior consent of an Instructing Group, estimated
income tax or trade tax referable to each Asset Disposal; and
(c) with the prior consent of an Instructing Group, any other costs
or expenses;
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"PERMITTED ENCUMBRANCES" means:
(a) any encumbrances created pursuant to the terms of this
Agreement or pursuant to the terms of the Senior Facility;
(b) encumbrances created pursuant to the Second Security Documents
and the Senior Security Documents;
(c) any encumbrance which arises in respect of goods sold to any
Senior Obligor in the ordinary course of its business by virtue
of retention of title provisions contained in the relevant
seller's standard conditions of sale;
(d) any lien (including but not limited to any contractor's lien)
arising by operation of law in the ordinary course of business;
(e) any rights of set-off or netting arrangements under any Hedge
Contract and any rights of set-off or netting arrangements
which may be exercisable in respect of any amounts standing to
the credit of any bank account held by any Senior Obligor
against any debit balances of any bank account held by itself
or any other Senior Obligor which either arise by operation of
law or are contained in the account holding bank's standard
documentation and, in the case of any bank account held by any
Senior Obligor in the Netherlands, other encumbrances affecting
such account which are granted pursuant to the general terms
and conditions of the relevant bank which provides such
account, PROVIDED THAT such terms and conditions are customary
in the Netherlands;
(f) any encumbrance over or affecting any asset acquired by a
Senior Obligor after the date hereof and subject to which such
asset is acquired PROVIDED THAT:
(i) such encumbrance was not created in contemplation of the
acquisition of such asset by a Senior Obligor;
(ii) the amount thereby secured has not been increased at, in
contemplation of, or since the date of, the acquisition
of such asset by a Senior Obligor; and
(iii) the aggregate amount of indebtedness and the book value
of any asset secured by such encumbrances shall, in each
case, not exceed EURO 1,000,000 for the Group at any
time;
(g) encumbrances which may arise as a result of any title transfer
laws applicable to the cables and other equipment forming part
of a System by which ownership of elements permanently built
into real property may pass to the owner of that real property;
and
(h) any other encumbrance PROVIDED THAT the amount of indebtedness
secured by such encumbrance when aggregated with the amount of
indebtedness secured by all such other encumbrances and all
Finance Leases permitted pursuant to paragraph (f) of Clause
20.2.2 does not exceed EURO 10,000,000;
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"PIK ELEMENT AMOUNT" means the Loan less the Reduced Loan Amount, being
such portion of the Loan that corresponds to interest that has been
capitalised pursuant to this Agreement;
"POTENTIAL EVENT OF DEFAULT" means any event which would become (with the
passage of time, the giving of notice or any combination thereof) an
Event of Default;
"PRO FORMA CASH INTEREST EXPENSE" means, on any Quarter Day, estimated
Total Cash Interest Expense for the period of twelve months immediately
subsequent to such Quarter Day and such Total Cash Interest Expense shall
be estimated by applying the weighted average annual interest rate on
Total Debt on such Quarter Day to Total Debt on such Quarter Day;
"PRO FORMA DEBT SERVICE" means, at any time (but without
double-counting), estimated Total Cash Interest Expense plus Scheduled
Principal Repayments (as defined in the Senior Facility as at the date of
this Agreement) and scheduled repayments of other permitted indebtedness
of any member of the Financial Group for the four Quarterly Periods
subsequent to such time of determination PROVIDED THAT such Total Cash
Interest Expense shall be estimated by applying the weighted average
interest rate on existing indebtedness (excluding the Facility or the
Senior Notes or any Borrower Debt) at such time of determination to the
average outstanding indebtedness for borrowed money of any member of the
Financial Group (excluding the Facility or the Senior Notes or any
Borrower Debt) scheduled to be outstanding over the four Quarterly
Periods in accordance with the provisions of this Agreement and adding
the aggregate amount of interest scheduled to become payable under the
Facility or on any Senior Notes and any other Borrower Debt during such
period (excluding capitalised interest);
"PROPORTION" means, in relation to a Bank:
(a) whilst the Loan is not outstanding hereunder, the proportion
borne by its Commitment to the Facility Amount (or, if the
Facility Amount is then zero, by its Commitment to the Facility
Amount immediately prior to its reduction to zero); or
(b) thereafter, the proportion borne by its share of the Loan to
the total amount of the Loan;
"QUARTER DAYS" means 31 March, 30 June, 30 September and 31 December in
any year;
"QUARTERLY PERIOD" means each successive period of approximately three
months commencing on the day after a Quarter Day and ending on the next
following Quarter Day;
"REDUCED LOAN AMOUNT" means the Initial Loan Amount as the same is
reduced from time to time pursuant to this Agreement;
"REGTP" means the Regulatory Authority for Telecommunications and Post in
Germany (REGULIERUNGSBEHORDE FUR TELEKOMMUNIKATION UND POST);
- 11 -
"RELATED TRANSACTIONS" means any two or more Acquisitions which:
(a) are from the same vendor or from vendors which are affiliates
of each other;
(b) comprise assets relating to a single System; and
(c) are completed within a three month period;
"RELEVANT CONTRACTS" means the Licences and the Material Commercial
Contracts;
"RELEVANT JURISDICTION" means in respect of any person the jurisdiction
of its place of incorporation or, in the case of a partnership, its place
of establishment and, if different, the place in which it has its
principal place of business;
"REPEATED REPRESENTATIONS" means the representations that are deemed to
be repeated pursuant to Clause 17.4 (REPETITION OF REPRESENTATIONS);
"RESTRICTED CASH" means monies held in escrow in an account held with the
Senior Agent (or, as the case may be, with an agent or trustee on terms
acceptable to the Senior Agent) in the name of the Borrower pending
application towards the payment of interest on Senior Notes or Borrower
Debt;
"SECOND DUTCH SHARE PLEDGE" means the share pledge agreement and deed
over the shares of PrimaCom Netherlands Holding BV executed, or to be
executed, by the Guarantor;
"SECOND GmbH SHARE PLEDGE" means the share pledge agreement over the
shares of those members of the Group listed in Schedule 2 of that pledge
executed, or to be executed, by the Guarantor;
"SECOND KG INTEREST PLEDGE" means the interest pledge agreement over the
partnership interests of each of those members of the Group listed in
Schedule 3 of that pledge executed, or to be executed, by the Guarantor;
"SECOND SECURITY TRUST AGREEMENT" means the security trust agreement
entered or to be entered into between the Security Trustee, the Obligors,
the Agent, the Arrangers and the Banks;
"SECOND SECURITY DOCUMENTS" means each of the following:
(a) the Second Security Trust Agreement; and
(b) the Second Share Pledges,
and any other agreement, deed or document from time to time executed in
favour of the Security Trustee for the Finance Parties or in favour of
each of such parties individually (including any Account Pledge) for the
purpose of securing all or any of the obligations of either Obligor under
the Facility Documents or any of them or, in respect of the Second Dutch
Share Pledge, the Parallel Debt Obligations together with all amendments
of, and supplements to any of the foregoing and "SECURITY DOCUMENT" shall
be construed accordingly;
- 12 -
"SECOND SHARE PLEDGES" means each of the Second GmbH Share Pledge, the
Second KG Interest Pledge, and the Second Dutch Share Pledge;
"SELECTION NOTICE" means a notice substantially in the form set out in
Part B of Schedule 4 (NOTICE OF DRAWDOWN AND SELECTION NOTICE) given in
accordance with Clause 7.5 (SELECTION OF INTEREST PERIODS) in relation to
the Facility;
"SENIOR AGENT" means ▇.▇. ▇▇▇▇▇▇ Europe Limited in its capacity as agent
under the Senior Facility or such other agent appointed under the Senior
Facility from time to time;
"SENIOR DEBT" means, at any time, the aggregate at such time of all
indebtedness for borrowed money of the Group excluding (a) any
indebtedness for borrowed money owed by one member of the Group to
another member of the Group, (b) any Subordinated Debt permitted
hereunder, but including the net ▇▇▇▇ to market exposure of the Group as
calculated by the Agent under all derivative transactions of the nature
described in paragraph (h) of the definition of "indebtedness for
borrowed money" and (c) the guarantee obligations of PMG under this
Facility;
"SENIOR DISCHARGE DATE" means the date that the Senior Facility has been
repaid or prepaid and cancelled in full;
"SENIOR FACILITY" means the EURO 1,000,000,000 facility agreement dated
18 September 2000 as amended and restated from time to time between PMG
as borrower, certain guarantors,
PrimaCom AG, the Senior Lead Arrangers,
▇.▇. ▇▇▇▇▇▇ PLC (now replaced by the Senior Agent), ▇.▇. ▇▇▇▇▇▇ AG
(formerly, Chase Manhattan Bank) as fronting bank and overdraft bank, the
Senior Security Trustee and the Senior Lenders;
"SENIOR FACILITY DOCUMENTS" means the Facility Documents as defined in
the Senior Facility;
"SENIOR FINANCE PARTIES" means the Finance Parties as defined in the
Senior Facility;
"SENIOR LEAD ARRANGERS" means Bank of America International Limited,
Barclays Capital, ▇.▇. ▇▇▇▇▇▇ PLC, Dresdner Bank AG, London Branch,
Fortis Bank (Nederland) N.V., ING Bank N.V., The Royal Bank of Scotland
plc and TD Bank Europe Limited;
"SENIOR LENDERS" means the senior lenders from time to time party to the
Senior Facility;
"SENIOR NOTES" means any public issue of senior notes by the Borrower in
accordance with this Agreement;
"SENIOR OBLIGOR" means an Obligor under, and as defined in, the Senior
Facility;
"SENIOR SECURITY DOCUMENTS" means the Security Documents as defined in,
and entered into pursuant to, the Senior Facility;
"SENIOR SECURITY TRUSTEE" means ▇.▇. ▇▇▇▇▇▇ AG in its capacity as
security trustee under the Senior Facility or such other security trustee
appointed under the Senior Facility from time to time;
- 13 -
"SHAREHOLDER APPROVAL" has the meaning given to that term in the
Co-ordination Agreement;
"SHARE OPTION AGREEMENT" means the agreement entered or to be entered
into between the Borrower, PMG, the Agent and the Banks, whereby the
Borrower agrees to sell up to 65% of the shares in PMG to the Banks on
the terms and conditions set out in that agreement;
"SUBORDINATED DEBT" means any loan provided by the Borrower or any other
person to any Senior Obligor which has been subordinated to the Senior
Facility and the Overdraft Facility in accordance with the Intercreditor
Agreement or on terms which are otherwise acceptable to the Senior Agent;
"SUBSCRIBER" means a person who has entered into an agreement with any
member of the Group to be provided with Broadband Services (whether alone
or on the basis of an umbrella agreement);
"SUBSCRIBER AGREEMENT" means an agreement for the provision by any member
of the Group to a Subscriber of Broadband Services by means of a System;
"SUBSCRIBER CERTIFICATE" means a certificate substantially in the form
set out in Schedule 6 (QUARTERLY SUBSCRIBER CERTIFICATE);
"SUCCESSOR" in relation to a party means an assignee or successor in
title to such party or any person who, under the law of its jurisdiction
of incorporation or domicile, has assumed the rights and obligations of
such party hereunder or to which under such laws the same has been
transferred;
"SYSTEM" means each broadband fixed telecommunications network for the
delivery of Broadband Services, operated, managed, administered and,
where necessary, installed by a member or members of the Group PROVIDED
THAT such member (i) shall be a subsidiary of another member of the Group
as defined in paragraph (b) of the definition of subsidiary contained in
this Agreement and (ii) that the cash flows generated by such System
shall be controlled by such other member of the Group;
"SYSTEM ASSETS" means in relation to any System each of the Relevant
Contracts, head ends, cable networks and all other assets whatsoever
relating to that System;
"TAKE-OUT DEBT" means securities or any debt of the Financial Group that
may be issued after the Closing Date to refinance the Facility.
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system;
"TARGET DAY" means any day on which TARGET is operating for the
settlement of payment in EURO;
"TELECOMMUNICATIONS AND CABLE LAWS" means:
(a) in relation to members of the Group incorporated and/or doing
business in Germany the Telecommunication Act
(TELEKOMMUNIKATIONSGESETZ), the
- 14 -
approval rules for reception installations
(GENEHMIGUNGSRECHTLICHE REGELUNG FUR RUNDFUNKSEMPFANGSANLAGEN)
and all other federal and state laws, statutes, regulations and
judgements relating to the building, installation, management
or operation of systems for telecommunications or cable
television applicable to any member of the Group and/or
business carried on by any member of the Group;
(b) in relation to members of the Group incorporated and/or doing
business in The Netherlands the Telecommunications Act
(TELECOMMUNICATIEWET) and all other (including but not limited
to provincial and municipal) laws, statutes, regulations,
decisions and judgements relating to the building,
installation, management or operation of systems for the
provision of telecommunication networks and services, including
but not limited to the provision of Broadband Services and
conditional access networks and services applicable to any
member of the Group and/or business carried on by any member of
the Group; and
(c) the corresponding laws, statutes, regulations and judgements
existing in any other jurisdiction as applicable to any other
member of the Group incorporated, or carrying on business in
such other jurisdiction;
"TOTAL ASSETS" means all the assets held by the Financial Group;
"TOTAL CASH INTEREST EXPENSE" means in relation to any period, the
aggregate of all interest (excluding capitalised interest) paid or
payable during such period in respect of indebtedness for borrowed money
of members of the Financial Group (other than indebtedness for borrowed
money owed by one member of the Financial Group to another member of the
Financial Group) less an amount equal to the amount of such interest paid
or payable during such period which was held as Restricted Cash at the
relevant time;
"TOTAL DEBT" means, at any time (but without double counting and
excluding, for the avoidance of doubt, any indebtedness for borrowed
money owed by one member of the Group to another member of the Group),
the aggregate at such time of:
(a) the aggregate amount of Senior Debt;
(b) the aggregate amount of Subordinated Debt;
(c) the principal amount (including any capitalised interest and
the amount of any accretions thereto relating to accrued
interest) outstanding under the Facility or of any Senior
Notes; and
(d) the aggregate principal amount of all other indebtedness for
borrowed money of the Borrower,
- 15 -
where "principal amount" means the euro equivalent of such principal
amount at the effective exchange rate resulting from any derivative
transaction entered into by any member of the Financial Group in order to
hedge exposure to relevant exchange rate fluctuations and, to the extent
that no such hedging has been entered into, the Agent's spot rate of
exchange for conversion into euros at or about 11.00 a.m. on the relevant
date in relation to such currency
LESS an amount equal to the amount of Restricted Cash at such time;
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 2 (FORM OF TRANSFER CERTIFICATE) signed by a Bank and a
Transferee whereby:
(a) such Bank seeks to procure the transfer to such Transferee of
all or a part of such Bank's rights and obligations hereunder
upon and subject to the terms and conditions set out in Clause
34 (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 is contemplated in Clause 34.3 (TRANSFERS BY BANKS);
"TRANSFER DATE" means, in relation to any Transfer Certificate, the date
for the making of the transfer as specified in the schedule to such
Transfer Certificate;
"TRANSFEREE" means a bank or other financial institution to which a Bank
seeks to transfer all or part of such Bank's rights and obligations
hereunder;
"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).
"UNPAID SUM" means the unpaid balance of any of the sums referred to in
Clause 22.1 (DEFAULT INTEREST PERIODS);
"U.S. GAAP" means generally accepted accounting principles in the United
States of America;
"UTILISATION" means the utilisation of the Facility hereunder by way of
the Loan;
"UTILISATION DATE" means the date of the Utilisation, being the date on
which the Loan is to be or has been made; and
1.2 Any reference in this Agreement to:
an "AFFILIATE" of any person means any subsidiary or holding company of
that person or any subsidiary of any such holding company, or any other
person in which that person or any such person or subsidiary owns at
least 20 per cent. of the equity share capital (or the like);
the "AGENT", any "ARRANGER", any "BANK", any "BENEFICIARY" or the
"SECURITY TRUSTEE" shall be construed so as to include their respective
Successors and any Successor of such Successor in accordance with their
respective interests;
- 16 -
"BARCLAYS CAPITAL" is a reference to Barclays Capital, the investment
banking division of Barclays Bank PLC;
a "CLAUSE" shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
a Potential Event of Default or Event of Default is "CONTINUING" if it
has not been remedied or waived.
"DERIVATIVE TRANSACTION" includes any rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option, interest
rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect thereto and any
combination in respect thereof);
an "ENCUMBRANCE" shall be construed as a reference to a mortgage, charge,
pledge, lien or other encumbrance securing any obligation of any person
or any other type of preferential arrangement (including, without
limitation, title transfer and retention arrangements) having a similar
effect;
the "EQUIVALENT" on any given 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 mean rate of exchange
quoted by the Frankfurt Currency Exchange on such date for the purchase
of the first currency with the second currency;
a "FINANCIAL STATEMENT" shall be construed as a reference to the balance
sheet, profit and loss account and cash flow statement of any person;
a "GUARANTEE" includes a guarantee, an indemnity and any other form of
legally binding assurance against (or other arrangement intended to
prevent or limit) loss in respect of any indebtedness for borrowed money
of any person;
a "HOLDING COMPANY" of a person shall be construed as a reference to any
person of which the first-mentioned person 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;
"INDEBTEDNESS FOR BORROWED MONEY" shall be construed, without double
counting (on either an individual or Financial Group basis), as a
reference to any indebtedness of any person for or in respect of:
(a) moneys borrowed;
(b) liabilities under any standby letter of credit, guarantees,
acceptance credit, bills discounting facility or any
receivables purchase, factoring or discounting arrangements;
- 17 -
(c) amounts raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or similar
instruments;
(d) the amount of any liability in respect of leases or hire
purchase contracts which would, in accordance with U.S. GAAP,
be treated as finance or capital leases;
(e) the amount of any Deferred Consideration;
(f) the amount of any liability in respect of any purchase price
for assets or services (other than in connection with an
Acquisition), the payment of which is deferred for a period in
excess of 120 days;
(g) amounts raised under any other transaction (including, without
limitation, any sale and repurchase agreement or forward sale
or purchase agreement) having the commercial effect of a
borrowing (excluding any derivative transactions of the nature
described in paragraph (h) below); and
(h) (for the purposes of Clause 21.7 (CROSS-DEFAULT) and sub-clause
20.2.2. of Clause 20.2 (NEGATIVE COVENANTS) only) interest rate
or currency swaps, caps, floors, collars, forward sale or
purchase contracts, contracts for differences or any option
transactions, or any other treasury transactions or any other
transaction entered into in connection with the management of
risk related to indebtedness (and the amount of indebtedness
for borrowed money in relation to any such transaction shall be
the net amount not paid by the relevant member of the Financial
Group);
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, where any such period would
otherwise end on a day which is not a Business Day, it shall end on the
next succeeding Business Day, unless that day falls in the calendar month
succeeding that in which it would otherwise have ended, in which case it
shall end on the immediately preceding Business Day PROVIDED THAT, if a
period starts on the last Business Day in a calendar month or if there is
no numerically corresponding day in the month in which that period ends,
that period shall end on the last Business Day in that later month (and
references to "months" shall be construed accordingly);
"OPERATING EXPENSES" shall be construed to include all operating expenses
(including, without limitation, management expenses) incurred in relation
to the operation of the Systems operated by the Group and the servicing
of its Subscribers;
a "PART" shall, subject to any contrary indication, be construed as a
reference to a part hereof;
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;
a "SCHEDULE" shall, subject to any contrary indication, be construed as a
reference to a schedule hereto;
- 18 -
a "SUBSIDIARY" of a company, corporation or partnership shall be
construed as a reference to any company, corporation or partnership:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation or partnership;
(b) more than half the issued share capital or partnership share of
which is beneficially owned, directly or indirectly, by the
first-mentioned company, corporation or partnership; or
(c) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation or partnership,
and, for these purposes, a company, corporation or partnership shall be
treated as being controlled by another if that other company, corporation
or partnership is able to direct its affairs and/or to control the
composition of its board of directors or equivalent body and/or to
appoint or dismiss the general partner thereof;
"TAX" shall be construed so as to include any tax, levy, impost, duty or
other charge of a similar nature (including, without limitation, 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; and
"WHOLLY-OWNED" means a company, corporation or partnership whose issued
share capital or partnership shares are (i) 100 per cent. owned by its
sole shareholder or (ii) in the case of a partnership, (x) 99 per cent.
of its partnership shares are held by a limited partner and one
partnership share is held by
PrimaCom AG as a further limited partner
while no partnership shares are held by the general partner or (y) 98 per
cent. of its partnership shares are held by
PrimaCom AG as a limited
partner and two per cent. of the partnership shares are held by its
general partner;
the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a person shall be
construed so as to include any equivalent or analogous proceedings under
the law of the jurisdiction in which such person is incorporated or
registered or any jurisdiction in which such person carries on business
including the seeking of liquidation, winding-up, reorganisation,
dissolution, administration, arrangement, adjustment, protection or
relief of debtors.
1.3 "EURO" and "EURO" means the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in EMU
Legislation and "DOLLARS" denote the lawful currency of the United States
of America.
1.4 Save where the contrary is indicated, any reference in this Agreement to:
1.4.1 any licence, consent, agreement or document shall be construed
as a reference to such licence, consent, agreement or document
as the same may have been, or may from time to time be,
amended, varied, reissued, replaced, novated or supplemented;
- 19 -
1.4.2 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;
1.4.3 a statute shall be construed as a reference to such statute as
the same may have been, or may from time to time be, amended or
re-enacted; and
1.4.4 a time of day shall unless otherwise specified be construed as
a reference to Frankfurt am Main time.
1.5 Clause and Schedule headings are for ease of reference only.
1.6 Financial terms not specifically defined herein shall be construed in
accordance with U.S. GAAP.
1.7 THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement.
2. THE FACILITIES
2.1 GRANT OF FACILITY
The Banks hereby grant to the Borrower, upon the terms and subject to the
conditions hereof, a term loan facility in euro in an aggregate amount of
EURO 375,000,000.
3. PURPOSE
3.1 PURPOSE OF FACILITY
All of the Facility shall be used by the Borrower through on-lending to
PMG to enable PMG to prepay and permanently cancel an equivalent amount
of advances made under the Senior Facility.
3.2 APPLICATION
The Borrower and PMG hereby request and irrevocably authorise the Agent
to apply on their respective behalves (and without responsibility) all
amounts raised by it hereunder exclusively in or towards satisfaction of
the above purpose and without prejudice to the obligations of the
Borrower under Clause 3.1 (PURPOSE OF FACILITY), none of the Finance
Parties shall be obliged to concern themselves with the application of
amounts raised by the Borrower hereunder.
4. CONDITIONS PRECEDENT
Save as all of the Banks may otherwise agree, the Borrower may not
deliver the Notice of Drawdown to the Agent unless the Agent has
confirmed to the Banks that it has received all of the documents listed
in Schedule 3 (CONDITION PRECEDENT DOCUMENTS) and that such documents are
in form and substance satisfactory to the Agent.
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5. NATURE OF BANKS' AND BORROWER'S OBLIGATIONS
5.1 BANKS' OBLIGATIONS SEVERAL
The obligations of each Bank hereunder are several and not joint and the
failure by a Bank to perform its obligations hereunder shall not affect
the obligations of any Obligor towards any other party hereto nor shall
any other party be liable for the failure by such Bank to perform its
obligations hereunder.
5.2 BANKS' RIGHTS SEVERAL
The amounts outstanding at any time hereunder from each of the Obligors
to any of the other parties hereto shall be a separate and independent
debt and each such party shall be entitled to protect and enforce its
individual rights arising out of this Agreement independently of any
other party and it shall not be necessary for any party hereto to be
joined as an additional party in any proceedings for this purpose.
5.3 OBLIGATIONS OWED TO SECURITY TRUSTEE
For the purposes of ensuring and preserving the validity and continuity
of security rights to be granted under the laws of the Netherlands:
5.3.1 the Guarantor irrevocably and unconditionally undertakes to pay
to the Security Trustee in its capacity as security trustee for
the Beneficiaries all amounts whatsoever, without any
limitation, owing by each Obligor to the Finance Parties or any
of them, whether actually or contingently under and in
accordance with the terms of this Agreement and the other
Facility Documents upon such amounts becoming due and payable
(such obligation and undertaking being hereinafter referred to
as the "PARALLEL DEBT OBLIGATIONS");
5.3.2 the Guarantor and the Security Trustee acknowledge that the
Parallel Debt Obligations are obligations and liabilities of
each Obligor to the Security Trustee in its capacity as
security trustee under the Facility Documents separate and
independent from, and without prejudice to, the identical
obligations which an Obligor has to the other Finance Parties
or any of them under this Agreement or any other Facility
Document, provided that the total amount due and payable under
or in respect of the Parallel Debt Obligations shall be
decreased to the extent that an Obligor shall have paid any
amounts to such other Finance Parties or any of them under this
Agreement or any other Facility Document and VICE-VERSA, it
being agreed that any amount received by the Security Trustee
in its capacity as security trustee will be applied towards
satisfaction of the obligations of the Obligors towards the
Finance Parties in accordance with the terms of this Agreement
and the Security Trust Agreement;
5.3.3 every payment by an Obligor of monies due by that Obligor, and
made to the Security Trustee in its capacity as security
trustee for the Beneficiaries shall (conditionally upon such
payment not subsequently being avoided or reduced by virtue of
any provisions or enactments relating to bankruptcy,
insolvency, liquidation or similar laws of general application)
be in satisfaction PRO TANTO of the covenant by the Guarantor
contained in sub-clause 5.3.1, PROVIDED THAT if any such
payment as is mentioned above is subsequently avoided or
reduced by virtue of any provisions or enactments relating to
bankruptcy, liquidation or
- 21 -
similar laws of general application the Security Trustee shall
be entitled to receive the amount of such payment from the
Guarantor and the Guarantor shall remain liable to perform the
relevant obligation and the relevant liability shall be deemed
not to have been discharged; and
5.3.4 nothing in this Clause 5.3 shall in any way negate or affect
the obligations which the Guarantor may have under or in
respect of this Agreement or any other Facility Document to the
Finance Parties or any of them.
6. UTILISATION OF THE FACILITY
6.1 UTILISATION OF THE LOAN
Save as otherwise provided herein, if the Agent has, on or by 26 March
2002, confirmed to the Banks as specified in Clause 4 (CONDITIONS
PRECEDENT), the Facility shall be automatically drawn down in a single
drawing for the maximum amount of the Facility on 26 March 2002. The
Agent shall be deemed to have received from the Borrower the Notice of
Drawdown therefor, which shall oblige the Borrower to proceed with the
Utilisation therein requested on 26 March 2002 upon the terms and subject
to the conditions contained herein.
6.2 BANKS' PARTICIPATION IN THE LOAN
Each Bank will participate through its Facility Office in the Loan made
pursuant to Clause 6.1 (UTILISATION OF THE LOAN) in the proportion borne
by its Available Commitment to the Facility Amount immediately prior to
the making of the Loan.
7. INTEREST
7.1 ACCRUAL OF INTEREST
Interest shall accrue on the Loan in the manner specified in Clause 7.2
(RATE OF INTEREST) and Clause 7.3 (PAYMENT OF CASH).
7.2 RATE OF INTEREST
The rate of interest applicable to the Loan from time to time for each
Interest Period shall be the rate per annum indicated in the table below:
(a) in respect of the period to 30 September 2002, 18 per cent. per
annum;
(b) in respect of the period 1 October 2002 to 30 June 2003, 19 per
cent. per annum; and
(c) in respect of the period 1 July 2003 to the repayment of the
Facility in full, 20 per cent. per annum.
7.3 PAYMENT OF CASH
On each Interest Payment Date or, in respect of Interest Periods of
longer than six months, on each date following at six monthly intervals
after the first day of the Interest Period, the Borrower shall pay, in
cash, accrued interest on an amount equal to the lesser of the Initial
Loan Amount and the Reduced Loan Amount, at the rate per annum indicated
in the table below:
(a) in respect of the period to 30 September 2002, 8.00% per annum;
- 22 -
(b) in respect of the period from 1 October 2002 to 31 December
2002, 8.50% per annum;
(c) in respect of the period from 1 January 2003 to 31 March 2003,
9.50% per annum;
(d) in respect of the period from 1 April 2003 to 30 June 2003,
10.50% per annum;
(e) in respect of the period from 1 July 2003 to 30 September 2003,
11.50%; and
(f) in respect of the period from 1 October 2003 to the repayment
of the Facility in full, 12.00% per annum.
7.4 CAPITALISATION OF INTEREST
On each Interest Payment Date any interest accrued on the Loan that is
not payable in cash on such date pursuant to Clause 7.3 (PAYMENT OF CASH)
shall be capitalised and added to the Loan.
7.5 SELECTION OF INTEREST PERIODS
7.5.1 The Borrower may select an Interest Period for the Loan in the
Notice of Drawdown or (if the Loan has already been borrowed)
in a Selection Notice.
7.5.2 Each Selection Notice is irrevocable and must be delivered to
the Agent by the Borrower not later than 11:00a.m. three
Business Days before the first day of the relevant Interest
Period.
7.5.3 If the Borrower fails to deliver a Selection Notice to the
Agent in accordance with Clause 7.5.2 above, the relevant
Interest Period will be three months.
7.5.4 Subject to this Clause 7.5, the Borrower may select an Interest
Period of three months or any other period agreed between the
Borrower and the Agent (acting on the instructions of all the
Banks).
7.5.5 An Interest Period for the Loan shall not extend beyond the
Final Maturity Date.
7.5.6 Each Interest Period for the Loan shall start on the
Utilisation Date or (if already made) on the last day of its
preceding Interest Period.
8. SHAREHOLDER APPROVAL AND SHARE CONVERSION
8.1 FAILURE TO OBTAIN SHAREHOLDER APPROVAL
If the Shareholder Approval has not been received by 30 June 2002 and the
Amendment Date occurs in accordance with Clause 9 (NO SHAREHOLDER
APPROVAL) of the Co-ordination Agreement, the Facility shall be amended
and restated on the terms, and in the manner, set out in the
Co-ordination Agreement and to the form set out in Schedule 6 (AMENDED
AND RESTATED SECOND FACILITY AGREEMENT) of the Co-ordination Agreement
and the other matters specified in Clause 10 (AMENDMENT DATE) of the
Co-ordination Agreement shall also be completed.
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8.2 EQUITY CONVERSION
On the date of unconditional completion of a transfer of shares(s) in
PMG pursuant to and in accordance with an exercise of the Share Option
(as defined in the Share Option Agreement) the amounts owing by the
Borrower under this Agreement to each Bank identified in a Trigger
Notice (as defined in the Share Option Agreement) given in respect of
that exercise of the Share Option shall be reduced (and the Commitment
of that Bank shall be reduced accordingly), and deemed repaid by the
Borrower, in an aggregate amount equal to the Converted Loan Amount
(as defined in the Share Option Agreement) calculated in respect of
that exercise of the Share Option. Any such reduction specified in
this Clause 8.2 shall be applied pro rata between the relevant Bank's
participation in the Reduced Loan Amount and the PIK Element Amount at
the time of reduction.
9. REPAYMENT
9.1 The Borrower shall repay the Loan in full on the Final Maturity Date.
The Borrower shall not repay or prepay all or any part of the Loan
outstanding hereunder except at the times and in the manner expressly
provided herein.
9.2 If the Loan is to be repaid in full, together with any accrued
interest and any other amounts payable to the Finance Parties under
the Finance Documents prior to the Equity Conversion Date the Agent
shall calculate how much the Loan would be on the date of the proposed
prepayment had the rate of interest applicable thereto from time to
time during its term been 18 per cent. per annum (for the avoidance of
doubt taking into account the amount of cash paid pursuant to Clause
7.3 (PAYMENT OF CASH)) during such period (the "ADJUSTED LOAN
AMOUNT").
9.3 The Borrower shall discharge its obligation to repay the Loan under
the Finance Documents if, prior to the Equity Conversion Date, it pays
to the Agent an amount equal to the Adjusted Loan Amount on the date
in respect of which such amount is determined pursuant to Clause 9.2.
9.4 If the Borrower makes a payment of the nature referred to in Clause
9.2 other than on the date in respect of which such amount was so
determined, to the extent necessary, the Agent shall determine whether
a balancing payment is required and, if so, the Borrower or, as the
case may be, the Banks shall, within 3 Business Days of a notification
to that effect, make the appropriate balancing payment.
10. VOLUNTARY PREPAYMENT
10.1 PREPAYMENT
Subject to compliance with the terms of the Intercreditor Agreement
and Clause 10.2 (PREPAYMENT FEE), the Borrower may, if it has given to
the Agent not less than 10 Business Days' prior written notice to that
effect, prepay the whole or any part (being, if in part, an amount of
EURO 5,000,000 or any larger sum) of the Loan in accordance with
Clause 11.4 (ORDER OF PAYMENT) without, other than as set out in
Clause 10.2 (PREPAYMENT FEE), premium or penalty.
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Any amount prepaid may not be re-borrowed by the Borrower. At the same
time as all or part of the Loan is prepaid the Borrower shall at the
same time pay any accrued but unpaid interest in respect of the whole
or part of the Loan being prepaid.
10.2 PREPAYMENT FEE
In respect of a prepayment made pursuant to Clause 10.1 (PREPAYMENT)
to any Bank which was not a party to this Agreement at the Closing
Date (other than an affiliate of any Bank that was a party at the
Closing Date), the Borrower agrees to pay a prepayment fee to the
Agent (for the account of that Bank) equal to:
(a) in respect of a prepayment made during the period from the date
of this Agreement until the date of the first anniversary of
this Agreement, 3% of that Bank's Proportion of the amount
prepaid;
(b) in respect of a prepayment made during the period from the date
of the first anniversary of this Agreement until the date of
the second anniversary of this Agreement, 2% of that Bank's
Proportion of the amount prepaid; and
(c) in respect of a prepayment made during the period from the date
of the second anniversary of this Agreement until the date of
the third anniversary of this Agreement, 1% of that Bank's
Proportion of the amount prepaid.
10.3 NOTICE
Any notice of prepayment given by the Borrower pursuant to Clause 10.1
(PREPAYMENT) shall be irrevocable, shall specify the date upon which
prepayment is to be made and the amount of such prepayment and shall
oblige the Borrower to make such prepayment on such date.
11. MANDATORY PREPAYMENT
11.1 EXCESS CASH FLOW
Following the Senior Discharge Date, if in respect of the financial year
ending 31 December 2002 or any financial year thereafter the Financial
Group achieves any Excess Cash Flow (calculated by reference to the
audited consolidated financial statements of the Financial Group for the
relevant financial year), the Borrower shall, within one hundred and
twenty (120) days of the end of such financial year notify the Agent of
the amount of such Excess Cash Flow and an amount equal to 75% of such
Excess Cash Flow shall, upon such notification, be applied in prepayment
and cancellation of the Facility in accordance with Clause 11.4 (ORDER
OF PAYMENT) immediately or, if the Borrower so decides, on the next
following Interest Payment Date, PROVIDED THAT if, in respect of any
financial year, the ratio of Total Debt (calculated on the last day of
such financial year) to Annualised EBITDA is less than 2.5:1.00, then no
such prepayment and cancellation of the Facility shall be made in
respect of such financial year.
11.2 DISPOSALS
Subject to the terms of the Intercreditor Agreement, an amount equal to:
(a) any Disposal Consideration received by any member of the Group
from any Asset Disposal less any Permitted Disposal Expenses;
and
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(b) any excess of estimated corporation tax or trade tax referable
to an Asset Disposal over the amounts of such tax actually
payable,
shall:
(i) in relation to the disposal of a revenue generating asset
(which shall include any System and System Assets and
shares of Material Group Companies, Subscriber Agreements
and other revenue generating assets), on the first
Business Day falling 120 days after receipt thereof; and
(ii) in relation to the disposal of an asset (other than a
revenue generating asset described in (i) above), to the
extent the aggregate of Disposal Consideration received
for any such Asset Disposals in any financial year
exceeds EURO 250,000, on receipt,
be applied in prepayment and cancellation of the Facility in accordance
with Clause 11.4 (ORDER OF PAYMENT) unless, in the case of (i) above,
such amounts are reinvested in the Group in equivalent revenue
generating assets and for equivalent or better value within 120 days of
the receipt thereof.
The Borrower shall notify the Agent promptly upon receipt of any amounts
referred to in (a) or (b) above.
11.3 ADDITIONAL FUNDING
If the Borrower or any other member of the Financial Group:
(a) issues or raises any indebtedness for borrowed money after the
date of this Agreement including the Senior Notes and the
Take-out Debt (other than drawings under the Senior Facility);
or
(b) issues in the international capital markets or elsewhere
(whether by way of public offer, private placement or
otherwise) any share or stock or any other instrument
convertible into any share or stock,
an amount equal to the cash proceeds therefrom (net of reasonable
transaction costs and expenses) received by the Borrower shall be applied
in prepayment and cancellation of the Facility in accordance with Clause
11.4 (ORDER OF PAYMENT). The Borrower shall notify the Agent promptly
upon receipt of any such amount.
11.4 ORDER OF PAYMENT
11.4.1 Any amount to be applied in payment and cancellation of the
Facility, following the Senior Discharge Date, pursuant to
Clause 11.1 (EXCESS CASH FLOW), Clause 11.2 (DISPOSALS) or
Clause 11.3 (ADDITIONAL FUNDING) shall be applied in the
following order:
FIRSTLY, against any outstanding fees;
SECONDLY, against accrued but unpaid interest that has not been
capitalised;
THIRDLY, against the PIK Element Amount, and
FOURTHLY, against the Reduced Loan Amount.
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11.4.2 Any amount received pursuant to Clause 11.3 (ADDITIONAL
FUNDING) prior to the Senior Discharge Date shall be applied in
the following order:
FIRSTLY, against any outstanding fees;
SECONDLY, against the Loan such that:
(a) the Reduced Loan Amount is reduced by an amount equal to:
A X B / C
where: A = the amount received pursuant to Clause 11.3
(ADDITIONAL FUNDING) less outstanding fees
paid out in priority
B = the Reduced Loan Amount immediately prior to
the prepayment; and
C = the Loan;
(b) the PIK Element Amount is reduced by an amount equal to:
A X D / C
where: A = the amount received pursuant to Clause 11.3
(ADDITIONAL FUNDING) less outstanding fees
paid out in priority
C = the Loan; and
D = the PIK Element of the Loan immediately prior
to the prepayment;
THIRDLY, against accrued but unpaid and uncapitalised interest;
and
FOURTHLY, against the Loan (to the extent not repaid pursuant
to paragraph (b) above).
11.5 CHARGED ACCOUNT
11.5.1 All amounts falling within paragraph (i) of Clause 11.2
(DISPOSALS) shall, subject to the Intercreditor Agreement, be
paid into the Charged Account pending any withdrawal for
application as permitted in Clause 11.2 (DISPOSALS).
11.5.2 Amounts to be prepaid on the next following Interest Payment
Date in accordance with Clause 11.1 (EXCESS CASH FLOW) shall be
paid into the Charged Account pending prepayment on that next
following Interest Payment Date.
12. TAXES
12.1 TAX GROSS-UP
All payments to be made by either Obligor to any person under any
Facility Document shall be made free and clear of and without deduction
for or on account of tax unless such Obligor is required to make such a
payment subject to the deduction or withholding
- 27 -
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 be increased
to the extent necessary to ensure that, after the making of the required
deduction or withholding, such person receives and retains (free from any
liability in respect of any such deduction or withholding) a net sum
equal to the sum which it would have received and so retained had no such
deduction or withholding been made or required to be made.
12.2 TAX INDEMNITY
Without prejudice to Clause 12.1 (TAX GROSS-UP), if any Finance Party or
the Agent on its behalf is required to make any payment of or on account
of tax on or in relation to any sum received or receivable hereunder
(including any sum deemed for purposes of tax to be received or
receivable by such person whether or not actually received or receivable)
or if any liability in respect of any such payment is asserted, imposed,
levied or assessed against any Finance Party or the Agent on its behalf,
the Borrower shall, upon demand of the Agent, promptly indemnify the
Finance Party 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 12.2 shall not apply to:
12.2.1 any tax imposed and calculated by reference to the net income
actually received or receivable by such Finance Party (but, for
the avoidance of doubt, not including any sum deemed for
purposes of tax to be received or receivable by such Finance
Party but not actually receivable) by the jurisdiction in which
such Finance Party is incorporated; or
12.2.2 any tax imposed on and calculated by reference to the net
income of the Facility Office of such Finance Party actually
received or receivable by such Finance Party (but, for the
avoidance of doubt, not including any sum deemed for purposes
of tax to be received or receivable by such Finance Party but
not actually receivable) by the jurisdiction in which its
Facility Office is located.
13. TAX RECEIPTS
13.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX
If, at any time, either Obligor is required by law to make any deduction
or withholding from any sum payable by it under any Facility Document (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 shall
promptly notify the Agent.
13.2 EVIDENCE OF PAYMENT OF TAX
If either Obligor makes any payment under any Facility Document 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 deliver to the Agent for each
Finance Party, within thirty days after it has made such payment to the
applicable authority, an original receipt (or a certified copy thereof)
issued by such authority or, if the applicable authority does not issue
such a receipt, by the Borrower evidencing the payment to such authority
of all amounts so required to be deducted or withheld in respect of that
Finance Party's share of such payment.
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13.3 TAX CREDIT PAYMENT
If either Obligor makes a payment under Clause 12 (TAXES) for account of
any person and such person, in its sole opinion, determines that it has
received or been granted a credit against or relief or remission for, or
repayment of tax paid or payable by it in respect of or calculated with
reference to the deduction or withholding giving rise to such payment,
such person shall, to the extent that it can in its sole discretion 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
person shall, in its sole opinion, have calculated to be attributable to
such tax. If an Event of Default or Potential Event of Default has
occurred and is continuing, any such payment may be paid to such interest
bearing account as the Agent may in its absolute discretion select and be
held as security for the performance of the obligations of such Obligor
under the Facility Documents. Nothing herein contained shall interfere
with the right of a person to arrange its tax affairs in whatever manner
it thinks fit and, in particular, no person shall be under any obligation
to claim credit, relief, remission or repayment from or against its
corporate profits or similar tax liability in respect of the amount of
such deduction or withholding or payment on account of tax in priority to
any other claims, reliefs, credits or deductions available to it, nor
oblige any person to disclose any information relating to its tax affairs
or any of its tax computations.
13.4 TAX CREDIT CLAWBACK
If any Finance Party makes any payment to an Obligor pursuant to Clause
13.3 (TAX CREDIT PAYMENT) and such Finance Party subsequently determines,
in its sole opinion acting in good faith, 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 acting in good faith, 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.
14. INCREASED COSTS
14.1 INCREASED COSTS
Subject to Clause 14.4 (EXCLUSIONS) the Borrower shall, within three
Business Days of a demand by the Agent, pay for the account of a Finance
Party the amount of any Increased Costs incurred by that Finance Party or
its holding company as a result of (i) the introduction of or any change
in (or in the interpretation or application of) any law or regulation or
(ii) compliance with any law or regulation made after the date of this
Agreement.
In this Agreement "INCREASED COSTS" means:
14.1.1 a reduction in the rate of return from the Facility or on a
Finance Party's (or its holding company's) overall capital;
14.1.2 an additional or increased cost; or
14.1.3 a reduction of any amount due and payable under any Facility
Document,
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which is incurred or suffered by a Finance Party or its holding company
to the extent that it is attributable to that Finance Party having
entered into its Commitment or funding or performing its obligations
under any Facility Document.
14.2 NOTIFICATION
A Finance Party intending to make a claim pursuant to Clause 14.1
(INCREASED COSTS) shall notify the Agent of the event by reason of which
it is entitled to do so within 60 days of the date upon which such
Finance Party's Facility Office became aware of its entitlement to make
such a claim and the amount thereof, whereupon the Agent shall notify the
Borrower thereof (giving reasonable details of how such cost, reduction
in rate of return, increased cost or liability has been calculated)
PROVIDED THAT nothing herein shall require such Finance Party to disclose
any confidential information relating to the organisation of its affairs.
14.3 NO LIABILITY FOR DELAY
The Borrower shall not be obliged to indemnify any person for any part of
any cost, reduction in rate of return, increased cost or liability under
Clause 14.1 (INCREASED COSTS) which would otherwise be payable if such
amount was incurred solely by reason of an unreasonable delay in the
relevant Finance Party notifying the Agent of the event by which it is
entitled to be so indemnified after the relevant person has become aware
of the occurrence of such event and can compute a reasonable estimate of
the amount of such cost, reduction in rate of return, increased cost or
liability.
14.4 EXCLUSIONS
Notwithstanding Clause 14.1 (INCREASED COSTS) above, the Borrower shall
not be obliged to make any payment pursuant thereto to the extent that
the relevant cost, reduction in rate of return, increased cost or
liability:
14.4.1 results from compliance with a relevant request or requirement
not having the force of law unless compliance therewith is
customary on the part of financial institutions in the position
of the Finance Party concerned;
14.4.2 to the extent that such cost, reduction in rate of return,
increased cost or liability is compensated under any other
provision of this Agreement;
14.4.3 results from the relevant Finance Party having exceeded a
limit, or failed to comply with an obligation, in effect at the
date hereof, by reason of having agreed to the terms hereof; or
14.4.4 attributable to the wilful breach by the relevant Finance Party
or its affiliates of any law or regulation.
15. ILLEGALITY
If, at any time, it is unlawful for a Bank to make, fund, issue,
participate in or allow to remain outstanding all or any of the Loan,
then that Bank shall, promptly after becoming aware of the same, deliver
to the Borrower through the Agent a certificate to that effect and,
unless such illegality is avoided in accordance with Clause 16
(MITIGATION):
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15.1.1 such Bank shall not thereafter be obliged to make the Loan
hereunder and the amount of its Available Commitment shall be
immediately reduced to zero; and
15.1.2 if the Agent on behalf of such Bank so requires, the Borrower
shall on the latest date as is, in the Bank's sole opinion, the
latest date permitted by law or, if such date cannot be
ascertained by the Bank, upon such date as the Agent shall have
reasonably specified on the instructions of such Bank repay
such Bank's share of the outstanding Loan together with accrued
interest thereon and all other amounts owing to such Bank
hereunder.
16. MITIGATION
If, in respect of any Bank, circumstances arise which would or would upon
the giving of notice result in:
16.1.1 the reduction of its Available Commitment to zero pursuant to
sub-clause 15.1.1 of Clause 15 (ILLEGALITY); or
16.1.2 a requirement to make an additional payment under Clause 12.1
(TAX GROSS-UP) or a claim for indemnification pursuant to
Clause 12.2 (TAX INDEMNITY) or Clause 14 (INCREASED COSTS),
then, without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the obligations of the Borrower under any of the
Clauses referred to in sub-clauses 16.1.1 and 16.1.2 such Bank shall
promptly upon its Facility Office becoming aware of the same notify the
Agent thereof and, take such steps as such Bank considers at its sole
discretion appropriate to mitigate the effects of such circumstances
including the transfer of its Facility Office to another jurisdiction or
the transfer of its rights and obligations hereunder to another financial
institution willing to participate in the Facility PROVIDED THAT such
Bank shall be under no obligation to take any such action if, in the
opinion of such Bank in its sole discretion, to do so might have any
adverse effect upon its business, operations, financial condition or tax
affairs.
17. REPRESENTATIONS
17.1 Each Obligor acknowledges that each Finance Party has entered into this
Agreement and participated in the Facility in full reliance on the
representations in this Clause 17.
17.2 REPRESENTATIONS
Each Obligor represents that (in respect of itself and each Senior
Obligor):
17.2.1 STATUS it is a limited company, a stock corporation, a limited
partnership or, as the case may be, a corporation duly formed,
registered and validly existing under the laws of its Relevant
Jurisdiction;
17.2.2 CAPACITY it has the capacity, power and authority to own its
own property and to conduct its business as it is now being
conducted and to enter into the Facility Documents and the
Relevant Contracts to which it is a party and to exercise its
rights and perform its obligations thereunder;
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17.2.3 AUTHORISATION all action required to authorise the execution,
delivery and performance of the Facility Documents and the
Relevant Contracts to which it is party has been duly taken;
17.2.4 NO DEDUCTION OR WITHHOLDING under the laws of its Relevant
Jurisdiction 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 of the Facility Documents;
17.2.5 PARI PASSU under the laws of its Relevant Jurisdiction in force
at the date hereof, the claims of each Finance Party against it
under:
(a) the Facility Documents (other than the Second Security
Documents) to which it is a party will rank at least PARI
PASSU with the claims of all its other unsecured creditors
save those whose claims are preferred solely by any
bankruptcy, insolvency, liquidation or other similar laws
of general application (and subject to the terms of the
Intercreditor Agreement); and
(b) subject to the terms of the Intercreditor Agreement, the
Second Security Documents to which it is a party rank
ahead of the claims of all its other creditors (save those
whose claims are preferred solely by any bankruptcy,
insolvency, liquidation or other similar laws of general
application and 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 Second Security Documents;
17.2.6 NO IMMUNITY in any proceedings taken in its Relevant
Jurisdiction in relation to any of the Facility Documents, it
will not be entitled to claim for itself or any of its assets
immunity from suit, execution, attachment or other legal
process;
17.2.7 GOVERNING LAW AND JUDGEMENTS in any proceedings taken in its
Relevant Jurisdiction in relation to any of the Facility
Documents, the choice of English law or, as the case may be,
German law or Dutch law as the governing law of the Facility
Documents and any judgement obtained in England or, as the case
may be, Germany or The Netherlands will be recognised and
enforced, in such Relevant Jurisdiction subject to any
qualifications as to matters of law in the legal opinions to be
delivered in connection herewith;
17.2.8 VALIDITY AND ADMISSIBILITY IN EVIDENCE all acts, conditions and
things required to be done, fulfilled, performed and obtained
(including, without limitation, the obtaining of any necessary
consents) in order (a) to enable it lawfully to enter into,
exercise its rights under and perform and comply with the
obligations expressed to be assumed by it in the Facility
Documents and the Relevant Contracts to which it is a party,
(b) to ensure that the obligations expressed to be assumed by
it in the Facility Documents and the Relevant Contracts to
which it is a party are legal, valid and binding and (c) to
make the Facility Documents and the Relevant Contracts to which
it is a party admissible in evidence in the forum selected in
the relevant document have been done, fulfilled, performed and
obtained;
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17.2.9 NO FILING OR STAMP TAXES under the laws of its Relevant
Jurisdiction in force at the date hereof, it is not necessary
that any of the Facility Documents or the Relevant Contracts 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 of the Facility Documents
or Relevant Contracts, save for (i) the notarisation in Germany
or Basel, Switzerland of the appropriate Share Pledges, (ii)
the notarisation of the instruments constituting the Second
Dutch Share Pledge in the Netherlands and (iii) the
notarisation in Germany or, as the case may be, Basel,
Switzerland of the Share Option Agreement;
17.2.10 BINDING OBLIGATIONS the obligations expressed to be assumed by
it in the Facility Documents and the Relevant Contracts to
which it is a party are legal and valid obligations binding on
it and enforceable in accordance with the terms thereof,
subject to any qualifications as to matters of law in the legal
opinions delivered or to be delivered in connection herewith or
therewith; and
17.2.11 INFORMATION SYSTEMS the computer and management information
systems of the Group are sufficient to permit the Group to
conduct its business without Material Adverse Effect.
17.3 FURTHER REPRESENTATIONS
The Borrower (with respect to itself and each member of the Group) and
PMG (with respect to itself and each of its subsidiaries only) further
represent (in the case of sub-clauses 17.3.11, 17.3.12 and 17.3.13, in
all such cases to the best of its knowledge and belief having made all
reasonable enquiries) that:
17.3.1 NO WINDING-UP no member of the Financial Group has taken any
corporate action nor have any other formal steps been taken or
legal proceedings been started or, to the best of its knowledge
and belief, threatened against it for its winding-up,
dissolution, administration or re-organisation, as the case may
be, or for the appointment of a receiver, preliminary receiver,
trustee or similar officer of it or them or of any or all of
its or their assets or revenues (other than a solvent
reorganisation on terms and conditions approved by the
Instructing Group);
17.3.2 NO MATERIAL DEFAULTS no member of the Financial Group is in
breach of or in default under any agreement to which it is a
party or which is binding on it or any of its assets to an
extent or in a manner which would be likely to have a Material
Adverse Effect;
17.3.3 NO MATERIAL PROCEEDINGS no action, arbitration proceeding or
administrative proceeding of or before any court or agency has
been started or, to the best of its knowledge and belief,
threatened which has a reasonable prospect of success and
which, if it succeeded, would be likely to have a Material
Adverse Effect;
17.3.4 ORIGINAL FINANCIAL STATEMENTS the Original Financial Statements
were prepared in accordance with U.S. GAAP consistently applied
and (in conjunction with the notes thereto) fairly represent in
accordance with U.S. GAAP the financial
- 33 -
condition and operations of the Financial Group during the
financial year then ended;
17.3.5 NO MATERIAL ADVERSE CHANGE since publication of the Original
Financial Statements there has been no material adverse change
in the business or financial condition of the Financial Group
taken as a whole;
17.3.6 WRITTEN INFORMATION (a) all of the written information supplied
by or on behalf of any member of the Financial Group and its
advisers to the Finance Parties or any of them or their
advisers in connection with any Facility Document on or prior
to the date hereof and relating to any member of the Financial
Group is true, complete and accurate in all material respects
and (b) it is not aware of any material facts or circumstances
that have not been disclosed to the Finance Parties or any of
them;
17.3.7 ENCUMBRANCES save for Permitted Encumbrances (i) no encumbrance
exists over all or any of the assets of the Financial Group and
(ii) the execution by each Obligor of the Facility Documents
and by each Obligor and Senior Obligor of the Relevant
Contracts to which it is a party and the exercise by such
Obligor and by each Senior Obligor of its rights and
performance of its obligations thereunder will not result in
the existence of nor oblige any member of the Financial Group
to create any encumbrance over all or any of its present or
future revenues or assets;
17.3.8 EXECUTION OF FACILITY DOCUMENTS AND RELEVANT CONTRACTS the
execution by each of the Obligors of the Facility Documents and
by each member of the Group of the Relevant Contracts to which
it is a party and its exercise of its rights and performance of
its obligations thereunder do not and will not:
(a) conflict with any agreement, mortgage, bond or other
instrument or treaty to which any member of the Financial
Group is a party or which is binding upon them or any of
their assets;
(b) conflict with the constitutive documents and rules and
regulations of any member of the Financial Group; or
(c) conflict with any applicable law, regulation or official
or judicial order;
17.3.9 PRIVATE AND COMMERCIAL ACTS the execution by each Obligor of
the Facility Documents and by each member of the Group of the
Relevant Contracts to which it is a party constitutes, and its
exercise of its rights and performance of its obligations
hereunder or thereunder will constitute, private and commercial
acts done and performed for private and commercial purposes;
17.3.10 ENVIRONMENTAL COMPLIANCE each member of the Group has (a) at
all times complied with all Environmental Laws and
Environmental Licences and (b) obtained and maintained in full
force and effect all Environmental Licences, save to the extent
in each case that failure so to do would not be likely to have
a Material Adverse Effect, and there are no facts or
circumstances entitling any such Environmental Licences to be
revoked, suspended, amended, varied,
- 34 -
withdrawn or not renewed in circumstances which would be likely
to give rise to a Material Adverse Effect;
17.3.11 ENVIRONMENTAL CLAIMS no Material Environmental Claim is pending
or has been made or, to the best of its knowledge and belief,
threatened against any member of the Group;
17.3.12 SUFFICIENCY OF INTELLECTUAL PROPERTY RIGHTS the Intellectual
Property Rights owned by or licensed to the members of the
Group are all the Intellectual Property Rights required by them
in order to carry out, maintain and operate their respective
businesses, properties and assets and no member of the Group in
carrying on its respective businesses, infringes any
Intellectual Property Rights of any third party to any extent
which would be likely to have a Material Adverse Effect;
17.3.13 NO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS no Intellectual
Property Rights owned by the members of the Group are, to the
best of its knowledge and belief, being infringed, nor, to the
best of its knowledge and belief, is there any threatened
infringement of any such Intellectual Property Rights in each
case which would be likely to have a Material Adverse Effect;
17.3.14 RELEVANT CONTRACTS IN FORCE save to an extent which is not
likely to have a Material Adverse Effect, the Relevant
Contracts are in full force and effect;
17.3.15 NO BREACH OF RELEVANT CONTRACTS no Obligor nor any Senior
Obligor is in breach of the terms of any of the Relevant
Contracts to which it is a party, nor is there any material
dispute subsisting between the parties thereto, which in either
case would be likely to have a Material Adverse Effect;
17.3.16 NECESSARY AUTHORISATIONS none of the Necessary Authorisations
are the subject of any pending or, to the best of its knowledge
and belief, threatened challenge, revocation, suspension or
withdrawal nor are any sanctions pending or, to the best of its
knowledge and belief, threatened thereunder in each case to an
extent which would be likely to have a Material Adverse Effect
and each such Necessary Authorisation is in full force and
effect save to the extent that any failure to be in full force
and effect would not be likely to have a Material Adverse
Effect;
17.3.17 NO EVENT OF DEFAULT no (a) Event of Default or (b) Potential
Event of Default has occurred and is continuing;
17.3.18 TELECOMMUNICATIONS AND CABLE LAWS each member of the Group
complies and at all times has complied with all
Telecommunications and Cable Laws save to the extent that any
non-compliance would not be likely to have a Material Adverse
Effect;
17.3.19 OWNERSHIP OF PMG in the case of PMG only, and in respect of
itself only, that it is a direct wholly owned subsidiary of the
Borrower;
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17.3.20 GROUP STRUCTURE the Group structure at the date hereof is as
set out in the Group Structure Charts;
17.3.21 ASSETS OF PMG in the case of PMG only and in respect of itself
only, that its assets comprise solely (a) the shares which it
beneficially owns directly or indirectly in its subsidiaries;
(b) the loans made by it to any of its subsidiaries in
accordance with the terms of the Senior Facility in the form
existing as at the date of this Agreement; (c) receivables from
management services provided on arms' length terms to members
of the Group; (d) account balances on current accounts
maintained in the ordinary course of its business; (e) assets
not included in the operation of and the day to day running of
the Broadband Services network and (f) assets required for the
administration or management of the other assets described in
this sub-clause;
17.3.22 ASSETS OF THE BORROWER in the case of the Borrower only and in
respect of itself only, that its assets comprise solely (a) the
shares which it owns directly in PMG; (b) the limited
partnership interests which it owns in the direct and indirect
subsidiaries of PMG, (which subsidiaries in (a) and (b) shall
include the subsidiaries named in the Group Structure Charts
and any future subsidiaries acquired by a member of the Group
pursuant to sub-clause 20.4.2 of Clause 20.4 (COVENANTS OF
PMG)) and (c) the loans made by it to any Senior Obligor by way
of Subordinated Debt;
17.4 REPETITION OF REPRESENTATIONS
Each of the representations referred to in Clause 17.2 (REPRESENTATIONS)
and Clause 17.3 (FURTHER REPRESENTATIONS) (other than those contained in
sub-clauses 17.2.3, 17.2.4, 17.2.5 and 17.2.9 and sub-clauses 17.3.1,
17.3.5, 17.3.6, 17.3.14 and 17.3.20) shall be deemed to be repeated by
the relevant Obligors on the date of any Notice of Drawdown hereunder, or
the Utilisation Date and on the first day of each Interest Period, by
reference to the facts and circumstances then existing but as if
references to the Original Financial Statements were references to the
audited (and consolidated) financial statements of the Borrower most
recently delivered to the Agent pursuant hereto.
18. INFORMATION
18.1 FINANCIAL STATEMENTS
The Borrower and PMG shall:
18.1.1 ANNUAL STATEMENTS 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 the audited annual
consolidated financial statements of the Financial Group
prepared in accordance with U.S. GAAP PROVIDED THAT if in
accordance with the German Commercial Code (HGB) either Obligor
is required to prepare unaudited or, as the case may be,
audited financial statements or if in accordance with the
German Banking Act (KWG) requirements the Banks are required to
receive the unaudited or, as the case may be, audited financial
statements of either Obligor, such audited or, as the case may
be, unaudited financial statements shall be provided to the
Banks immediately;
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18.1.2 QUARTERLY STATEMENTS deliver to the Agent as soon as
practicable but in any event within 45 days after the end of
each Quarterly Period, the consolidated quarterly financial
statements of the Financial Group prepared in accordance with
U.S. GAAP together with a Compliance Certificate and a
Subscriber Certificate in each case certified by the managing
director of the Borrower;
18.1.3 BUSINESS PLAN AND STATEMENTS as soon as practicable but in any
event within 60 days of the end of each of its financial years,
deliver to the Agent (a) a revised consolidated business plan
(in a format acceptable to the Banks) for the Financial Group
including projected profit and loss accounts and cash flow
statements for the Financial Group for each calendar month
during the period of 12 calendar months commencing immediately
after the end of each such financial year, and (b) for each
financial year (until the Final Maturity Date), projected
profit and loss accounts, balance sheets and cash flow
statements for the Financial Group consolidated in accordance
with U.S. GAAP, projected Capital Expenditure of the Group
(detailing the date(s) on which such Capital Expenditure is
projected to be incurred, when it is to be paid and the member
of the Financial Group that is to incur such Capital
Expenditure and a description of the item(s) to which that
Capital Expenditure relates) together with a reconciliation
statement reconciling the performance of the Financial Group
during the previous financial year with the business plan
delivered in respect of the Financial Group for such previous
financial year and an explanation (in reasonable detail) of
such reconciliation; and
18.1.4 OTHER INFORMATION from time to time on the request of the
Agent, furnish the Agent for distribution to the Banks, with
such other information concerning the Borrower or any member of
the Financial Group as the Agent may reasonably require.
18.2 REQUIREMENTS AS TO FINANCIAL STATEMENTS
The Borrower and PMG shall ensure that:
18.2.1 each set of financial statements delivered by it pursuant to
sub-clause 18.1.1 of Clause 18.1 (FINANCIAL STATEMENTS) is
prepared on the same basis as was used in the preparation of
the Original Financial Statements and in accordance with U.S.
GAAP and consistently applied;
18.2.2 each set of financial statements delivered by it pursuant to
sub-clause 18.1.1 of Clause 18.1 (FINANCIAL STATEMENTS) is
certified by a duly authorised officer of the relevant Obligor
as giving a true and fair view of the financial condition of
such Obligor, or, in the case of the consolidated accounts of
the Borrower of the Financial Group in each case as at the end
of the period to which those financial statements relate and of
the results of the operations of such Obligor, or, as
appropriate, the Financial Group during such period;
18.2.3 each set of financial statements delivered by it pursuant to
sub-clause 18.1.1 of Clause 18.1 (FINANCIAL STATEMENTS) has
been audited by a generally recognised international firm of
auditors acceptable to the Agent;
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18.2.4 each set of financial statements delivered under each of
sub-clauses 18.1.1, 18.1.2 and 18.1.3 of Clause 18.1 (FINANCIAL
STATEMENTS) is prepared on a consistent basis to the financial
statements previously delivered thereunder, save to the extent
good practice or law requires otherwise; and
18.2.5 the managing director of the Borrower certifies that it is not
unable to meet its debts as they fall due at the same time that
the Compliance Certificate is delivered to the Agent pursuant
to sub-clause 18.1.2 of Clause 18.1 (FINANCIAL STATEMENTS).
18.3 ACCURACY OF INFORMATION
The Borrower and PMG shall ensure that all written information supplied
by or on behalf of any member of the Financial Group and its advisers to
the Finance Parties or any of them or their advisers in connection
herewith after the date hereof which relates to any member of the
Financial Group is true, complete and accurate in all material respects
at the time it is delivered.
18.4 ACCOUNTING POLICIES
The Borrower shall ensure that in the event that any financial statements
are delivered which are not prepared on a consistent basis to financial
statements previously delivered hereunder, such financial statements are
accompanied by an explanation of any changes to accounting bases used
with a reconciliation of any of the covenants in Clause 19 (FINANCIAL
CONDITION) to the extent reasonably requested by an Instructing Group.
18.5 OTHER INFORMATION
Each Obligor shall from time to time, on the request of the Agent,
furnish the Agent with such information about its, or, in the case of the
Borrower, its or any Senior Obligor's or the Financial Group's business
condition (financial and otherwise), operations, performance, assets or
prospects as the Agent or any Finance Party through the Agent may
reasonably require and, in particular, all information and documents as
may be required under Sections 13, 13(a) and 18 of the German Banking Act
(GESETZ UBER DAS KREDITWESEN).
18.6 ABILITY TO PAY DEBTS
Each Obligor shall, and the Borrower shall ensure that each Senior
Obligor and each Material Group Company shall, provide the auditors (as
referred to in Clause 21.8 (INSOLVENCY AND RESCHEDULING)) with all
information required by them in order to determine such Obligor's, or, as
the case may be, such Senior Obligor's or such Material Group Company's
ability to pay its debts as they fall due in accordance with and as
contemplated in Clause 21.8 (INSOLVENCY AND RESCHEDULING).
19. FINANCIAL CONDITION
The consolidated financial condition of the Financial Group as evidenced
by the then most recent consolidated financial statements delivered
pursuant to sub-clauses 18.1.1, 18.1.2 and 18.1.3 of Clause 18.1
(FINANCIAL STATEMENTS) (adjusted as an Instructing Group may reasonably
consider appropriate (or in the event of a dispute between the Borrower
and an Instructing Group as to what is appropriate, as determined by the
auditors of the Borrower), to take account of any changes in the basis on
which such
- 38 -
statements were prepared or in generally accepted applicable accounting
principles) shall be such that:
19.1 TOTAL LEVERAGE RATIO
As at each Quarter Day specified below the ratio of Total Debt to
Annualised EBITDA (determined in respect of the Quarterly Period which
ends on such Quarter Day) shall not exceed the ratio set alongside such
Quarter Day:
QUARTER DAY RATIO
31 March 2002 13.75:1.00
30 June 2002 13.20:1.00
30 September 2002 13.20:1.00
31 December 2002 12.10:1.00
31 March 2003 12.10:1.00
30 June 2003 11.82:1.00
30 September 2003 11.82:1.00
31 December 2003 11.00:1.00
31 March 2004 11.00:1.00
30 June 2004 10.72:1.00
30 September 2004 10.72:1.00
31 December 2004 09.90:1.00
31 March 2005 09.90:1.00
30 June 2005 09.62:1.00
30 September 2005 09.62:1.00
31 December 2005 and on each Quarter Day thereafter 08.80:1.00
19.2 NET SENIOR LEVERAGE RATIO
As at each Quarter Day specified below the ratio of Net Senior Debt to
Annualised EBITDA (determined in respect of the Quarterly Period which
ends on such Quarter Day) shall not exceed the ratio set alongside such
Quarter Day:
QUARTER DAY RATIO
31 March 2002 8.25:1.00
30 June 2002 8.08:1.00
30 September 2002 8.08:1.00
31 December 2002 7.70:1.00
31 March 2003 7.70:1.00
30 June 2003 7.42:1.00
30 September 2003 7.42:1.00
31 December 2003 6.60:1.00
31 March 2004 6.60:1.00
30 June 2004 6.32:1.00
30 September 2004 6.32:1.00
31 December 2004 5.50:1.00
31 March 2005 5.50:1.00
30 June 2005 5.22:1.00
30 September 2005 5.22:1.00
31 December 2005 4.40:1.00
- 39 -
QUARTER DAY RATIO
31 March 2006 4.40:1.00
30 June 2006 4.12:1.00
30 September 2006 4.12:1.00
31 December 2006 3.57:1.00
31 March 2007 3.57:1.00
30 June 2007 3.57:1.00
30 September 2007 3.57:1.00
31 December 2007 and on each Quarter Day thereafter 3.30:1.00
19.3 TOTAL INTEREST RATIO
As at each Quarter Day set out below, the ratio of Consolidated EBITDA to
Total Cash Interest Expense (determined in respect of the Quarterly
Period which ends on such Quarter Day) shall not be less than the ratio
set alongside such Quarter Day:
QUARTER DAY RATIO
31 March 2002 0.90:1.00
30 June 2002 0.90:1.00
30 September 2002 0.90:1.00
31 December 2002 0.90:1.00
31 March 2003 0.90:1.00
30 June 2003 0.95:1.00
30 September 2003 0.95:1.00
31 December 2003 0.99:1.00
31 March 2004 0.99:1.00
30 June 2004 1.08:1.00
30 September 2004 1.08:1.00
31 December 2004 1.22:1.00
31 March 2005 1.22:1.00
30 June 2005 1.31:1.00
30 September 2005 1.31:1.00
31 December 2005 1.49:1.00
31 March 2006 1.49:1.00
30 June 2006 1.58:1.00
30 September 2006 1.58:1.00
31 December 2006 1.80:1.00
31 March 2007 1.80:1.00
30 June 2007 1.94:1.00
30 September 2007 1.94:1.00
31 December 2007 2.21:1.00
31 March 2008 2.21:1.00
30 June 2008 2.30:1.00
30 September 2008 2.30:1.00
31 December 2008 and on each Quarter Day thereafter 2.57:1.00
- 40 -
19.4 PRO FORMA DEBT SERVICE RATIO
In respect of the Quarterly Period ending 31 December 2002 and each
Quarterly Period thereafter, and tested by reference to the consolidated
financial statements of the Financial Group for such Quarterly Period,
the ratio of Annualised EBITDA of the Financial Group to Pro Forma Debt
Service shall not be less than 0.90:1.00 on the last day of such
Quarterly Period.
19.5 MINIMUM EBITDA
19.5.1 As at each Quarter Day specified below the Consolidated EBITDA
of the Financial Group, determined on a rolling 12 month basis,
shall not fall below the amount set alongside such Quarter Day:
QUARTER DAY MINIMUM CONSOLIDATED
EBITDA (EURO,000)
31 March 2002 60,091
30 June 2002 61,610
30 September 2002 63,885
31 December 2002 66,501
31 March 2003 66,304
30 June 2003 69,919
30 September 2003 72,937
31 December 2003 76,649
31 March 2004 80,177
30 June 2004 83,725
30 September 2004 87,285
31 December 2004 90,888
31 March 2005 94,757
30 June 2005 98,793
30 September 2005 102,927
31 December 2005 107,264
31 March 2006 111,641
30 June 2006 116,142
30 September 2006 120,727
31 December 2006 125,483
31 March 2007 130,357
30 June 2007 135,374
30 September 2007 140,486
31 December 2007 145,794
31 March 2008 151,157
30 June 2008 156,649
30 September 2008 162,224
31 December 2008 167,975
31 March 2009 172,988
30 June 2009 177,761
30 September 2009 182,376
31 December 2009 and on each Quarter day thereafter 186,664
- 41 -
A "rolling 12 month basis" shall be construed as the period of
four consecutive Quarterly Periods ending on the relevant
Quarter Day.
19.5.2 The covenant contained in sub-clause 22.5.1 shall be reset upon
completion of each Permitted Acquisition to include 80% of the
pro forma net income of the company or assets acquired. The pro
forma net income of such company or assets acquired shall be
calculated by reference to (a) 40% of the pro forma net income
of such company or assets for the period from January to June
inclusive and (b) 60% of the pro forma net income of such
company or assets for the period from July to December
inclusive.
19.6 PRO FORMA INTEREST RATIO
As at each Quarter Day set out below, the ratio of Annualised EBITDA
(determined in respect of the Quarterly Period which ends on such Quarter
Day) to Pro Forma Cash Interest Expense (determined on such Quarter Day)
shall not be less than the ratio set alongside such Quarter Day:
QUARTER DAY RATIO
31 March 2002 0.9:1.00
30 June 2002 0.9:1.00
30 September 2002 0.9:1.00
31 December 2002 0.9:1.00
19.7 CAPITAL EXPENDITURE
As at each Quarter Day specified below, Capital Expenditure of the
Financial Group, determined on a rolling 12 month basis, shall not exceed
the amount set alongside such Quarter Day:
QUARTER DAY MAXIMUM CAPITAL
EXPENDITURE (EURO,000)
31 March 2002 71,500
30 June 2002 68,475
30 September 2002 60,225
31 December 2002 55,825
31 March 2003 50,843
30 June 2003 51,443
30 September 2003 51,862
31 December 2003 51,678
31 March 2004 51,602
30 June 2004 51,314
30 September 2004 50,888
31 December 2004 50,173
31 March 2005 49,696
30 June 2005 49,174
30 September 2005 48,621
31 December 2005 48,007
- 42 -
QUARTER DAY MAXIMUM CAPITAL
EXPENDITURE (EURO,000)
31 March 2006 47,652
30 June 2006 47,381
30 September 2006 47,166
31 December 2006 47,065
31 March 2007 46,360
30 June 2007 45,445
30 September 2007 44,391
31 December 2007 43,050
31 March 2008 42,625
30 June 2008 42,460
30 September 2008 42,466
31 December 2008 42,828
31 March 2009 42,870
30 June 2009 42,955
30 September 2009 43,070
31 December 2009 43,243
A "rolling 12 month basis" shall be construed as the period of
four consecutive Quarterly Periods ending on the relevant
Quarter Day.
20. COVENANTS
20.1 POSITIVE COVENANTS
Each of the Borrower and PMG undertakes that it shall, and shall procure
that its subsidiaries shall:
20.1.1 MAINTENANCE OF LEGAL VALIDITY 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 the Relevant
Jurisdiction to enable it lawfully to enter into and perform
its obligations under the Facility Documents to which it is a
party and to ensure the legality, validity, enforceability or
admissibility in evidence in the Relevant Jurisdiction of the
Facility Documents to which it is a party subject to any
matters of law contained in the legal opinions delivered or to
be delivered in connection herewith or therewith;
20.1.2 INSURANCE maintain insurances on and in relation to its
business and assets with reputable underwriters or insurance
companies against such risks and to such extent as is usual for
companies and partnerships carrying on a business such as that
carried on by it;
20.1.3 NOTIFICATION OF EVENT OF DEFAULT (in the case of PMG and the
Borrower only, it being understood that notification by one
party will be sufficient to satisfy both parties' obligations
in respect of this Clause 20.1.3) 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
- 43 -
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;
20.1.4 PARI PASSU ensure that at all times the claims of the Finance
Parties against it under:
(a) the Facility Documents (other than the Second Security
Documents) to which it is a party rank at least PARI PASSU
with the claims of all their other unsecured creditors
save those whose claims are preferred by any bankruptcy,
insolvency, liquidation or other similar laws of general
application (subject to the terms of the Intercreditor
Agreement); and
(b) subject to the terms of the Intercreditor Agreement, the
Second Security Documents to which it is a party rank
ahead of the claims of all its other creditors (other
than, if and to the extent applicable, creditors with the
benefit of Permitted Encumbrances) against the assets the
subject of the encumbrances created by such Second
Security Documents;
20.1.5 MATERIAL COMMERCIAL CONTRACTS comply with the terms of the
Material Commercial Contracts and do all that is necessary to
maintain all Material Commercial Contracts in full force and
effect save to the extent that any such non-compliance or
failure to maintain a Material Commercial Contract in full
force and effect would not be likely to have a Material Adverse
Effect;
20.1.6 PRESERVATION OF ASSETS maintain and preserve all of its assets
that are necessary and material in the conduct of its business
as conducted at the date hereof in good working order and
condition (ordinary wear and tear excepted) and repair (with
reasonable promptness) any damage to such assets or replace
such assets with equivalent assets save to the extent a failure
so to do would not be likely to have a Material Adverse Effect.
20.1.7 ACCESS TO INFORMATION to the extent requested by the Agent, at
any time whilst an Event of Default is continuing, procure that
any representative or professional adviser to the Agent may
have access to and be provided with copies of books, records,
accounts, documents, computer programmes, data or other
information in the possession of or available to it, save to
the extent that the provision of such copies would either
result in a breach of any applicable law or would be contrary
to any agreement which the member of the Group concerned has at
the date of this Agreement entered into with any third party
(in which case the Borrower and the Agent will enter into
discussion concerning the extent of the disclosure which is
allowable in the circumstances);
20.1.8 MAINTENANCE OF LICENCES AND OTHER AUTHORISATIONS save to the
extent a failure so to do would not be likely to have a
Material Adverse Effect maintain and protect its rights and
interests in the Relevant Contracts and shall:
(a) promptly pay all and any registration, renewal and licence
fees and any fees and other additional payments payable
under the Licences and/or the Environmental Licences;
- 44 -
(b) procure that all notices and registrations necessary for
the protection by them of their respective rights and
interests therein are promptly given and/or made in the
appropriate forms; and
(c) promptly take such action as may be reasonably required to
protect the same from infringement;
20.1.9 BUSINESS PLAN conduct its business in all material respects in
accordance with the general parameters specified in the
Business Plan PROVIDED THAT:
(a) this sub-clause 20.1.9 shall not of itself oblige either
Obligor to comply with any particular financial targets or
projections which may be included in that Business Plan;
and
(b) this sub-clause 20.1.9 shall not of itself restrict either
Obligor from making any acquisition or disposal of any
asset or expanding or altering any System or system;
20.1.10 COMPLIANCE WITH LAWS comply with the terms and conditions of
all laws, directives, regulations, agreements, licences and
concessions including, without limitation, all Environmental
Laws and all Environmental Licences, all Telecommunications and
Cable Laws and all Licences, save to the extent that any
non-compliance therewith would not be likely to have a Material
Adverse Effect;
20.1.11 PAYMENT OF TAXES file or cause to be filed all tax returns
required to be filed in all jurisdictions in which it is
situated or carries on business or otherwise subject to pay tax
and will promptly pay all taxes shown to be due and payable on
such returns or any assessment made against it (other than
where (a) the same is being contested in good faith and where
payment thereof can lawfully be withheld and (b) either (i)
would not result in an encumbrance with priority to the
security created or evidenced by the Second Security Documents
or (ii) against which it is maintaining adequate reserves);
20.1.12 NOTICES notify the Agent forthwith upon receipt by it of any
notice from any government, court or regulatory authority or
agency which is likely to give rise to the enforcement,
revocation, termination, material amendment, suspension or
withdrawal of any Relevant Contract where the same would be
likely to have a Material Adverse Effect;
20.1.13 NECESSARY AUTHORISATIONS ensure that none of the Necessary
Authorisations are subject to a pending or threatened
challenge, revocation, suspension or withdrawal to any extent
which would be likely to have a Material Adverse Effect;
20.1.14 INTEREST ON SUBORDINATED DEBT ensure that each member of the
Group which has borrowed Subordinated Debt maintains a
shareholders' debt to equity ratio such that any interest paid
to the Borrower or any shareholder in relation to any
Subordinated Debt is not recharacterised as dividends for tax
purposes in the Relevant Jurisdiction;
- 45 -
20.1.15 HEDGING ARRANGEMENTS ensure that the Borrower or PMG has
entered into such interest rate hedging arrangements as are
necessary to hedge, for a period of at least 3 years from the
date of implementation of such arrangements, the Financial
Group's exposure to interest rate fluctuations in relation to a
notional principal amount of no less than an amount equal to
fifty per cent. (50%) of the aggregate indebtedness for
borrowed money of the Financial Group from time to time and for
these purposes indebtedness for borrowed money which carries a
fixed rate of interest shall be considered as so hedged in
respect of the principal amount thereof;
20.1.16 CVRS in the case of the Borrower only:
(a) use its best efforts to ensure that the CVRs which have
been released from escrow prior to the Closing Date
("RELEASED CVRs") are converted into warrants of the
Borrower by 15 August 2002;
(b) if a challenge is made by a shareholder of PAG in relation
to the conversion of Released CVRs into warrants, ensure
that the Borrower uses its best efforts to remove and
defeat that challenge by all reasonable means as soon as
possible after it arises;
(c) following the removal and defeat of a challenge as
specified in paragraph (b) above, the Company shall ensure
that the Released CVRs are converted into warrants within
90 days of the date of that removal and defeat; and
20.1.17 RATIFICATION OF SENIOR OBLIGORS in the case of the Borrower and
PMG only:
(a) ensure that each Senior Obligor (other than PMG) shall by
16 April 2002 ratify the execution by PMG on their behalf
of the Co-ordination Agreement and the Intercreditor
Agreement and shall deliver to the Agent evidence of each
such ratification in form and substance satisfactory to
the Agent; and
(b) ensure that ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Frankfurt, German counsel to
the Obligors, has delivered to the Agent by 16 April 2002
a legal opinion relating to the execution by the Senior
Obligors (other than PMG) of the Co-ordination Agreement
and the Intercreditor Agreement in form and substance
satisfactory to the Agent.
20.2 NEGATIVE COVENANTS
The Borrower and PMG shall ensure that no member of the Group shall:
20.2.1 RELEVANT CONTRACTS permit or agree to any amendment, waiver,
termination or assignment to or of any of the terms and
conditions of any Relevant Contract if such amendment, waiver,
termination or assignment would be likely to have a Material
Adverse Effect;
20.2.2 INDEBTEDNESS create, assume, incur or otherwise permit to be
outstanding any indebtedness for borrowed money other than:
- 46 -
(a) any indebtedness for borrowed money created under the
Senior Facility (in the form existing as at the date of
this Agreement) or as permitted pursuant to the
Intercreditor Agreement or any refinancing of the Senior
Facility on terms no more prejudicial to the Banks
(including the intercreditor arrangements);
(b) any Subordinated Debt;
(c) any indebtedness for borrowed money outstanding between
the Borrower and any Senior Obligor;
(d) any Deferred Consideration relating to any Permitted
Acquisition PROVIDED THAT the amount of such Deferred
Consideration does not exceed the amount that is, at that
time, undrawn and able to be utilised by a member of the
Financial Group under the Senior Facility at such time;
(e) any indebtedness for borrowed money arising under a
derivative transaction entered into in accordance with
sub-clause 20.1.15 of Clause 20.1 (POSITIVE COVENANTS) or
any currency exchange derivative transactions entered into
in relation to the Senior Facility and the Senior Notes
with a notional principal amount of up to an amount equal
to fifty per cent. (50%) of the aggregate indebtedness
under this Facility and the Senior Notes;
(f) any indebtedness for borrowed money existing under the
Finance Leases PROVIDED THAT the maximum aggregate amount
of such indebtedness of the Group when aggregated with the
amount of the indebtedness for borrowed money of the
Borrower under any Finance Leases held by the Borrower
does not exceed EURO 10,000,000;
(g) any Take-Out Debt which shall be used in or towards
prepayment of the Facility as specified in Clause 11.3
(ADDITIONAL FUNDING); and
(h) any other indebtedness for borrowed money of the Group up
to a maximum aggregate amount which, when added to the
indebtedness for borrowed money permitted pursuant to
paragraph (f) above, does not exceed EURO 10,000,000.
20.2.3 NEGATIVE PLEDGE create or permit to subsist any encumbrance
over all or any of its present or future revenues or assets
other than Permitted Encumbrances provided that, in the case of
PMG, the provisions of Clause 20.7.1(e) (FURTHER COVENANTS OF
PMG) shall apply;
20.2.4 LOANS AND GUARANTEES make any loans, grant any credit or give
any guarantee or indemnity (except as required or permitted
hereby (including pursuant to Clause 20.6 (RESTRICTIONS ON
PAYMENTS)) or permitted or required pursuant to the Senior
Facility Documents (in the form existing as at the date of this
Agreement)) to or for the benefit of any person or otherwise
voluntarily assume any liability, whether actual or contingent,
in respect of any obligation of any other person other than:
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(a) loans made, or credit granted, by a Senior Obligor to
another Senior Obligor;
(b) credit granted by any Operating Company in the ordinary
course of its business consistent with good practice in
the cable television industry;
(c) investments made in the ordinary course of business of the
Group by way of loan and which exist at the Closing Date;
(d) any guarantee or indemnity granted by a member of the
Group in respect of obligations permitted by the terms
hereof of a Senior Obligor or any guarantee or indemnity
granted by a member of the Group who is not a Senior
Obligor in respect of obligations permitted by the terms
hereof of another member of the Group who is not a Senior
Obligor;
(e) loans made by a member of the Group to its employees in
the ordinary course of its employees' employment up to an
aggregate amount in respect of the Group as a whole of
EURO 100,000 or credit in respect of employee share
schemes which have no cash impact;
(f) loans made or credit granted by a member of the Group who
is not a Senior Obligor to another member of the Group who
is not a Senior Obligor; and
(g) subordinated debt lent by a member of the Group which is
not a Senior Obligor to a Senior Obligor,
provided that, in the case of PMG, it shall not do any of the
above other than as permitted by paragraphs (a), (c) and (e).
20.2.5 DISPOSALS subject to Clause 11.2 (DISPOSALS) hereof,
(disregarding sales of stock in trade in the ordinary course of
business) without the prior written approval of an Instructing
Group, 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:
(a) the disposal on arms length terms for full market value of
any asset where (i) the value (which shall either be its
net book value or the amount of proceeds from such
disposal, whichever is the higher) of such asset (when
aggregated with the value of all other assets of the
Group, calculated on a similar basis, disposed of during
the then current financial year) does not exceed an amount
equal to five per cent. (5%) of the total assets of the
Financial Group (as at the date of such determination) and
(ii) the Net Revenues generated by such assets (when
aggregated with the Net Revenues generated by all other
assets of the Financial Group, calculated on a similar
basis, disposed of during the then current financial year)
does not exceed five per cent. (5%) of the consolidated
Net Revenues of the Financial Group taken as a whole for
such period provided that, notwithstanding the provisions
of this paragraph (a) no disposal of any
- 48 -
shareholding in Mediakabel B.V. may take place without the
prior written approval of an Instructing Group;
(b) the disposal of any System Asset to any other person in
exchange for equivalent or similar System Assets of such
person located in the same jurisdiction PROVIDED THAT ten
Business Days prior to the proposed exchange of System
Assets, the Borrower has delivered to the Agent a
certificate from its finance director certifying and
demonstrating in a form satisfactory to the Agent, that
after the occurrence of such exchange the Financial Group
shall remain in compliance with the terms of this
Agreement, (including without limitation, Clause 19
(FINANCIAL CONDITION) hereof), from the date of such
exchange until the Final Maturity Date through the
provision of PRO FORMA accounts and projections for the
Financial Group prepared on an annual basis for each
financial year until the Final Maturity Date and on a
monthly basis in relation to the first twelve months
following the date of the exchange. Such projections will
be based upon reasonable assumptions prepared on a
consistent basis to the projections delivered under
sub-clause 18.1.3 of Clause 18.1 (FINANCIAL STATEMENTS)
hereof;
(c) any disposal for cash on arm's length commercial terms of
any surplus or obsolete assets no longer required for the
efficient operation of the business of the Group;
(d) any disposal by a member of the Group to a Senior Obligor;
and
(e) any disposal permitted pursuant to sub-clause 23.7.3. of
Clause 23.7 (RESTRICTIONS ON PAYMENTS) of the Senior
Facility as it exists at the date of this Agreement (to
the extent the arrangements set out in that sub-clause
could be considered as a disposal).
20.2.6 BUSINESS OF PMG (in the case of PMG only) trade or undertake
any activity other than those activities specified in
sub-clause 17.3.21 of Clause 17.3 (FURTHER REPRESENTATIONS) or
acquire any business or part of a business (save for Permitted
Acquisitions), hold any assets (other than rights relating to
intercompany loans made by PMG to other Senior Obligors and the
proceeds of any drawing hereunder) or incur any obligations
other than as contemplated or permitted by the Senior Facility
Documents as at the date of this Agreement;
20.2.7 SHARE CAPITAL OF OPERATING COMPANIES (in the case of PMG only)
increase the share capital which it owns in any of the
Operating Companies out of the retained earnings (in the case
of Operating Companies established or incorporated in Germany,
KAPITALERHOHUNG AUS GESELLSCHAFTSMITTELN) of such Operating
Companies without the prior written consent of an Instructing
Group;
20.2.8 CONDUCT OF BUSINESS no member of the Group shall carry on its
business other than in accordance with the terms of all
applicable Relevant Contracts and the Business Plan in each
case to the extent that a failure so to do would be likely to
have a Material Adverse Effect and the terms of the Facility
Documents;
- 49 -
20.2.9 DIVIDENDS pay, make or declare any dividend or make any other
payment or distribution to its shareholders (or, if it is a
partnership, its general or limited partner) or set aside for
such payment, dividend or distribution unless (i) such
shareholder is a member of the Financial Group and (ii) in the
case of any such dividend, payment or distribution to be made
to the Borrower the same is permitted under Clause 20.6
(RESTRICTIONS ON PAYMENTS) hereof PROVIDED THAT any member of
the Group may pay, make or declare any dividend or make any
other payment or distribution to a third party minority
interest shareholder as long as the aggregate of all such
payments made by members of the Group does not exceed
EURO 10,000 in any financial year; or
20.2.10 ACQUISITIONS make any Acquisitions save for Permitted
Acquisitions.
20.3 NEGATIVE COVENANTS OF THE BORROWER
The Borrower shall not:
20.3.1 NEGATIVE PLEDGE create or permit to subsist any encumbrance
over the whole or any part of its assets including, without
limitation, its shareholding in PMG other than the security it
has already granted to the Senior Security Trustee prior to the
Closing Date or pursuant to any further assurance clause under
any Senior Facility Document in the form existing at the
Closing Date;
20.3.2 INDEBTEDNESS create, assume, incur or otherwise permit to be
outstanding any indebtedness for borrowed money other than any
indebtedness for borrowed money:
(a) arising under the Facility;
(b) resulting from any issuance of Senior Notes or Borrower
Debt to be used towards prepayment of the Facility under
Clause 11.3 (ADDITIONAL FUNDING); or
(c) arising from an upstream loan permitted pursuant to Clause
20.6 (RESTRICTION ON PAYMENTS);
20.3.3 BUSINESS conduct or otherwise engage in any business or
operations other than (and only to the extent otherwise
permitted under the terms of this Agreement) relating to:
(i) the ownership of the share capital or other
interests of its respective subsidiaries, the sale
and transfer of such ownership interests, and the
exercise of rights and performance of obligations in
connection therewith but, for the avoidance of
doubt, it shall be prohibited for the Borrower to
incorporate or hold or enter into any reorganisation
whereby an intermediate holding or other company or
entity shall exist between itself and PMG;
(ii) compliance with applicable reporting and other
obligations under any applicable laws;
- 50 -
(iii) making loans in an aggregate amount of up to EURO
375,000,000 to PMG by way of Subordinated Debt;
(iv) entry into of Hedging Contracts in relation to the
Senior Notes or Borrower Debt;
(v) other activities incidental or related to the
foregoing; and
(vi) its obligations under the Finance Documents,
provided that, in no event, shall the Borrower have
liabilities to trade creditors, in excess of, in
aggregate, EURO 500,000 excluding any hedge counter-party
pursuant to paragraph (iv) above;
20.3.4 DISPOSALS dispose of or transfer any of its assets other than
shares in PMG pursuant to the Share Option Agreement or
pursuant to sub-clause 23.7.3 of Clause 23.7 (RESTRICTIONS ON
PAYMENTS) of the Senior Facility as it exists at the date of
this Agreement (to the extent the arrangements set out in that
sub-clause could be considered as a disposal);
20.3.5 ACQUISITIONS create or acquire any new direct subsidiaries,
enter into any partnership or acquire any business or merge or
consolidate with any other company or person or enter into any
reorganisation without the consent of an Instructing Group;
20.3.6 DIVIDENDS: pay, make or declare any dividend or make any other
payment or distribution to its shareholders or set aside for
such payment, dividend or distribution.
20.4 COVENANTS OF PMG
PMG shall not and shall ensure that no other member of the Group shall:
20.4.1 merge or consolidate with any other company or person or enter
into any reorganisation unless the resulting entity will assume
all the obligations of the relevant member of the Group
concerned under the Facility Documents and Relevant Contracts
to which it is a party, and will be of at least an equivalent
creditworthiness to the relevant member of the Group (in each
case as demonstrated to the reasonable satisfaction of the
Agent) and the Banks have determined that they shall not be
materially or adversely affected by such merger or
consolidation;
20.4.2 create or acquire any new subsidiaries, enter into any
partnerships or acquire any business other than as permitted
under this Agreement;
20.4.3 issue any further shares (save for issues of shares in
compliance with the Share Option Agreement by any member of the
Group to its holding company, which in the case of PMG shall be
the Borrower directly) or alter any rights attaching to its
issued shares in existence at the date hereof;
20.4.4 open or permit to subsist any bank account with any person
other than a Senior Lender up to the Senior Discharge Date and
thereafter with a Bank, except for
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any bank accounts held by any person whose share capital or
limited partnership interest (as appropriate) is acquired by
any member of the Group after the date hereof and in relation
to which it shall use its reasonable efforts to transfer such
accounts to a Senior Lender up to the Senior Discharge Date and
thereafter to a Bank within 3 months of the date of such
acquisition, failing which PMG shall ensure that the relevant
member of the Group shall, following the Senior Discharge Date,
grant an Account Pledge over such accounts in favour of the
Beneficiaries in form and substance satisfactory to the Agent
as soon as reasonably practicable subject always to the
requirements and application of any applicable law; or
20.4.5 change its financial year end from 31 December.
20.5 PERMITTED ACQUISITIONS
For the purposes of this Clause 20.5 a "PERMITTED ACQUISITION" is an
Acquisition whereby:
(a) the proposed Acquisition is of an Approved Target;
(b) the Consideration for such Acquisition (whether in a
single transaction or Related Transactions) does not
exceed EURO 1,000,000; and
(c) the Consideration for such Acquisition (whether in a
single transaction or Related Transactions) does not
exceed EURO 3,000,000 when aggregated with the
Consideration paid for all other Acquisitions made since
the date of this Agreement or, if such aggregate amount
exceeds EURO 3,000,000, then such Acquisition has been
approved by an Instructing Group.
In relation to each Permitted Acquisition:
20.5.1 PMG shall give to the Agent written notice of:
(a) any Permitted Acquisition within ten (10) Business Days of
the date of the Permitted Acquisition (such date (the
"ACQUISITION DATE") being the date of the relevant
agreement evidencing the Permitted Acquisition); and
(b) any subsequent merger or consolidation of an acquired
subsidiary or partnership with a Senior Obligor within ten
(10) Business Days of the date of registration of the
merger or consolidation.
20.5.2 If:
(a) the Acquisition Dates of six other Permitted Acquisitions
have occurred within the twelve months preceding the
Acquisition Date; or
(b) any new subsidiary or partnership has not been merged or
consolidated with a Senior Obligor within 90 days (the
"RELEVANT DATE") of the Acquisition Date of the Permitted
Acquisition,
20.5.3 then PMG shall procure that, if it has made the Permitted
Acquisition, within 21 days (but, prior to the Senior Discharge
Date, after it has executed a similar
- 52 -
share pledge in favour of the Senior Lenders) of the Relevant
Date it shall execute a share pledge on substantially the same
terms as the appropriate Second Share Pledges in accordance
with sub-clause 42.1.1 of Clause 42.1 (ADDITIONAL SECURITY).
20.6 RESTRICTIONS ON PAYMENTS
Other than pursuant to the Senior Facility (in its form existing as at
the date of this Agreement), the Intercreditor Agreement and the Share
Option Agreement, PMG shall ensure that it has not and no other member of
the Group restricts upstream distributions or loans or payments save to
the extent that such distribution or loan would cause a breach of
applicable law.
20.7 FURTHER COVENANTS OF PMG
20.7.1 PMG shall ensure that, unless it is agreed otherwise by an
Instructing Group:
(a) no System Assets are transferred by any member of the
Group to any person (whether by intra-group transfer,
change in legal status or otherwise) unless all System
Assets forming part of the System concerned are
transferred on arms' length terms for cash (excluding
intra-group transfers) to the same transferee at the same
time;
(b) all System Assets relating to each System are owned and
operated by the same person which is a subsidiary of
another member of the Group (as defined in paragraph (b)
of the definition of subsidiary contained in this
Agreement whose cash flows are controlled by such member
of the Group); and
(c) each member of the Group which is a company is a wholly
owned subsidiary of its direct holding company (other than
third party minority interests as set out in the Group
Structure Charts) and each member of the Group which is a
limited partnership has PMG as its sole limited partner
and a directly owned subsidiary of PMG, which has no
assets other than its general partnership interest in the
limited partnership as its general partner, save for (i)
those limited partnerships which have 1% of their shares
held by the Borrower and for those members of the Group
which have such minority shareholders as are indicated in
the Group Structure Charts and (ii) any entity which
becomes a member of the Group after the date hereof as a
result of a Permitted Acquisition made in accordance with
this Agreement which is a subsidiary of another member of
the Group as defined in paragraph (b) of the definition of
subsidiary contained in this Agreement whose cash flows
are controlled by such other member of the Group;
(d) it does not have liabilities to trade creditors of more
than EURO 2,000,000 in aggregate; and
(e) it shall not create or permit to subsist any encumbrance
over the whole or any part of its assets other than the
Second Security Documents and the
- 53 -
Senior Security Documents permitted to be entered into or
required by the Senior Facility.
21. EVENTS OF DEFAULT
Each of Clause 21.1 (FAILURE TO PAY) to Clause 21.22 (MATERIAL ADVERSE
CHANGE) describes circumstances which constitute an Event of Default for
the purposes of this Agreement.
21.1 FAILURE TO PAY
Any Obligor fails to pay any sum due from it under any of the Facility
Documents within two Business Days of the due date therefor, in the
currency and in the manner specified-herein.
21.2 MISREPRESENTATION
Any representation, warranty or statement other than those made in
sub-clause 17.3.17 of Clause 17.3 (FURTHER REPRESENTATIONS) made by the
Borrower or any Obligor in any Facility Document or in any notice or
other document, certificate or statement 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 repeated 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 would be correct and not misleading if repeated 15 days
after the earlier of (a) it being notified by the Agent to the Borrower
as having been made inaccurately and (b) the Borrower or the relevant
Obligor becoming aware of such inaccuracy.
21.3 COVENANTS
Any Obligor fails duly to perform or comply with any of the obligations
expressed to be assumed by it in Clause 18 (INFORMATION), Clause 20
(COVENANTS) or Clause 42 (GROUP STRUCTURE CHANGES AND PERMISSIONS) (other
than in sub-clauses 18.1.2 or 18.1.3 of Clause 18.1 (FINANCIAL
STATEMENTS) or in sub-clauses 20.1.1, 20.1.2, 20.1.4, 20.1.5, 20.1.9,
20.1.10, 20.1.11 and 20.1.13 of Clause 20.1 (POSITIVE COVENANTS)).
21.4 SPECIFIC COVENANTS
The Borrower fails to comply with sub-clauses 18.1.2 and 18.1.3 of Clause
18.1 (FINANCIAL STATEMENTS) and such failure is not remedied within
fifteen days after the due date for delivery thereunder.
21.5 FINANCIAL COVENANTS
The financial covenants set out in Clause 19 (FINANCIAL CONDITION) are
not complied with.
21.6 OTHER OBLIGATIONS
Any Obligor or Senior Obligor fails duly to perform or comply with any
other obligation (for the avoidance of doubt, including those obligations
referred to in the sub-clauses contained within the brackets in Clause
21.3 (COVENANTS) (except for sub-clauses 18.1.2 and 18.1.3)) expressed to
be assumed by it in any Facility Document and such failure is not
remedied within twenty one days after the Agent has given notice thereof
to the relevant defaulting party.
- 54 -
21.7 CROSS DEFAULT
Any indebtedness for borrowed money of the Group or of the Borrower
exceeding EURO 2,000,000 in aggregate is not paid when due, is declared
to be or otherwise becomes due and payable prior to its specified
maturity or any creditor or creditors of any member of the Group or of
the Borrower becomes entitled to declare any such indebtedness for
borrowed money due and payable prior to its specified maturity.
21.8 INSOLVENCY AND RESCHEDULING
Any Material Group Company or the Borrower is unable or deemed unable to
pay its debts as they fall due (ZAHLUNGSUNFAHIG ODER DROHENDE
ZAHLUNGSUNFAHIGKEIT) or is over-indebted (UBERSCHULDET) or commences
negotiations with any one or more of its creditors with a view to any
arrangement for the general readjustment or rescheduling of its
indebtedness; or a general assignment for the benefit of or a composition
with its creditors or a moratorium in respect of all or any class of
debts of any Material Group Company or the Borrower is applied for,
ordered or declared. For the purpose of this Clause 21.8 a person shall
be deemed to be unable to pay its debts as they fall due (DROHENDE
ZAHLUNGSUNFAHIGKEIT) if so determined by such person's auditors or any
other generally recognised international firm of auditors.
21.9 WINDING-UP
Any Material Group Company or the Borrower takes any action or other
steps are taken or legal proceedings are started for its winding-up,
dissolution or re-organisation or for the appointment of a receiver,
preliminary receiver, administrator, administrative receiver, trustee or
similar officer of it or of any or all of its revenues and assets (other
than a solvent re-organisation on terms and conditions approved by an
Instructing Group).
21.10 RELEVANT CONTRACTS
Any event shall occur which gives grounds for belief, in the reasonable
opinion of an Instructing Group, (or any notice is given) that any of the
Relevant Contracts may be amended, suspended, cancelled, revoked,
surrendered or terminated (whether in whole or in part) and that such
event is likely to give rise to a Material Adverse Effect.
21.11 ANALOGOUS PROCEEDINGS
There occurs, in relation to any Material Group Company or the Borrower,
in any country or territory in which any of them carries on business or
in the jurisdiction of whose courts any part of their respective assets
is subject, any event which, in the opinion of an Instructing Group
appears in that country or territory to be equivalent or similar to, any
of those events or circumstances mentioned in Clause 21.8 (INSOLVENCY AND
RESCHEDULING) or Clause 21.9 (WINDING-UP) or any Material Group Company
otherwise becomes subject in any such country or territory, to the
operation of any law relating to insolvency, bankruptcy or liquidation.
21.12 EXECUTION OR DISTRESS
Any execution, distress, attachment or legal process is levied, made or
taken against, or an encumbrancer takes possession of, the whole or any
part of, the property, undertaking or assets of any Material Group
Company where the value of such assets is at least EURO 2,000,000 and is
not discharged within 10 days or any event occurs which under the laws of
any jurisdiction would have an analogous effect.
- 55 -
21.13 GOVERNMENTAL INTERVENTION
By or under the authority of any government the management of any
Material Group Company is wholly or substantially displaced or the
authority of the management of any Material Group Company in the conduct
of the business of such Material Group Company is wholly or substantially
curtailed.
21.14 SIMILAR EVENTS
Any of the events set out in Clause 21.8 (INSOLVENCY AND RESCHEDULING),
Clause 21.9 (WINDING-UP) or Clause 21.11 (ANALOGOUS PROCEEDINGS) to
Clause 21.13 (GOVERNMENTAL INTERVENTION) shall occur in relation to any
member of the Financial Group which is not a Material Group Company where
such event would be likely to have a Material Adverse Effect.
21.15 ILLEGALITY
At any time it is or becomes unlawful for (i) any Obligor or Senior
Obligor to perform or comply with any or all of its obligations under the
Facility Documents or (ii) for any Obligor or Senior Obligor to comply
with any or all of its obligations under the Relevant Contracts to which
it is a party or any such Facility Documents or Relevant Contracts, any
of the obligations of any Obligor or Senior Obligor thereunder or any
security interests created thereby or pursuant thereto are not or cease
to be legal, valid and binding and the result would be likely to have a
Material Adverse Effect.
21.16 OWNERSHIP OF THE BORROWER
Any person or persons being affiliates acquires directly or indirectly
50% or more of the share capital or of the voting rights of the Borrower.
21.17 OWNERSHIP OF PMG
The Borrower ceases to directly own the entire issued share capital of
PMG other than pursuant to the Share Option Agreement.
21.18 THE GROUP'S BUSINESS
Any member of the Group ceases to carry on the business it carries on at
the date hereof or enters into any unrelated business (other than as a
result of a Permitted Acquisition).
21.19 REPUDIATION
Any Obligor or Senior Obligor repudiates any of the Facility Documents or
any Obligor or Senior Obligor repudiates any of the Relevant Contracts to
which it is party.
21.20 CHANGE IN REGULATION OR POLICY
Any change occurs in the regulatory environment relating to, or in stated
government policy towards, the cable television and/or telecommunications
industry in (a) Germany (excluding any changes in the public domain at
the date hereof) or (b) in any other country where any member of the
Financial Group carries on its business and which, in the reasonable
opinion of an Instructing Group, might have a Material Adverse Effect.
21.21 AMENDMENT OF SENIOR FACILITY
Any amendment is made to the Senior Facility which is not permitted under
the terms of the Intercreditor Agreement.
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21.22 MATERIAL ADVERSE CHANGE
Any other event occurs or circumstance arises which is likely to affect
materially and adversely the ability of (i) any Obligor to perform any of
its obligations under or otherwise to comply with the terms of any of the
Facility Documents or (ii) any Obligor or Senior Obligor to perform any
of its material obligations under or otherwise to comply with the
material terms of any of the Relevant Contracts to which it is party.
21.23 AG STATUS
The Borrower ceases to be a stock corporation (AKTIENGESELLSCHAFT) or PMG
changes its legal form.
21.24 ACCELERATION AND CANCELLATION
Subject to the terms of the Intercreditor Agreement, upon the occurrence
of an Event of Default and at any time thereafter whilst it is
continuing, the Agent may (and, if so instructed by an Instructing Group,
shall) by written notice to the Borrower:
21.24.1 declare all or any part of the Loan to be immediately due and
payable (whereupon the same shall become so payable together
with accrued interest and any other sums then owed by the
Borrower under the Facility Documents) or declare all or any
part of the Loan to be due and payable on demand of the Agent;
and/or
21.24.2 declare that the Facility shall be cancelled, whereupon the
same shall be cancelled and the Commitment of each Bank shall
be reduced to zero.
21.25 LOAN DUE ON DEMAND
If, pursuant to Clause 21.24 (ACCELERATION AND CANCELLATION), the Agent
declares all or any part of the Loan to be due and payable on demand of
the Agent, then, and at any time thereafter, the Agent may (and, if so
instructed by an Instructing Group, shall) by written notice to the
Borrower:
21.25.1 require repayment of all or such part of the Loan 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 and any other sums then owed by the Borrower under the
Facility Documents) or withdraw its declaration with effect
from such date as it may specify in such notice; and/or
21.25.2 select as the duration of any Interest Period which begins
whilst such declaration remains in effect a period of six
months or less; and/or
21.25.3 the Interest Period in respect of the Loan shall, if the Agent
subsequently demands payment before the scheduled Interest
Payment Date in respect of the Loan, be deemed (except for the
purposes of Clause 22.4 (BREAK COSTS)) to be of such length
that it ends on the date that such demand is made.
22. DEFAULT INTEREST AND INDEMNITY
22.1 DEFAULT INTEREST PERIODS
If any cash sum due and payable by an Obligor hereunder is not paid on
the due date therefor in accordance with the provisions of Clause 23
(CURRENCY OF ACCOUNT AND
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PAYMENT) or if any cash sum due and payable by an Obligor under any
judgement of any court in connection herewith is not paid on the date of
such judgement, the period beginning on such due date or, as the case may
be, the date of such judgement and ending on the date upon which the
obligation of such Obligor to pay such sum (the balance thereof for the
time being unpaid being herein referred to as an "UNPAID SUM") is
discharged shall be divided into successive periods, each of which (other
than the first) shall start on the last day of the preceding such period
and the duration of each of which shall (except as otherwise provided in
this Clause 22) be selected by the Agent.
22.2 DEFAULT INTEREST
An Unpaid Sum shall bear interest during each Interest Period in respect
thereof at the rate per annum which is the sum from time to time of 2%,
the rate applicable thereto pursuant to Clause 7.2 (RATE OF INTEREST)
provided that if such Unpaid Sum is all or part of the Loan which became
due and payable on a day other than the last day of the Interest Period
relating thereto, the first such period applicable thereto shall be of a
duration equal to the unexpired portion of that Interest Period and the
rate of interest applicable thereto from time to time during such period
shall be that which exceeds by 2% the rate which would have been
applicable to it had it not so fallen due. For the avoidance of doubt,
any interest due to be paid on an Unpaid Sum under this Clause shall be
cash interest payable as stated in Clause 22.3 (PAYMENT OF DEFAULT
INTEREST) and shall not be capitalised.
22.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under Clause 22.2 (DEFAULT
INTEREST) in respect of an Unpaid Sum shall be due and payable and shall
be paid by the relevant Obligor at the end of the period by reference to
which it is calculated or on such other date or dates as the Agent may
specify by written notice to such Obligor.
22.4 BREAK COSTS
If any Bank or the Agent on its behalf receives or recovers all or any
part of such Bank's share of the Loan or Unpaid Sum otherwise than on the
last day of the Interest Period relating thereto, the Borrower 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 Interest Period thereof 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 Interest Period in respect
of a euro deposit equal to the amount so received or recovered placed by
it with a leading bank in the London interbank market for a period
starting on the third Business Day following the date of such receipt or
recovery and ending on the last day of that Interest Period.
22.5 BORROWER'S INDEMNITY
The Borrower undertakes to indemnify:
22.5.1 each Finance Party against any cost, claim, loss, expense
(including, without limitation, legal fees) or liability
together with any VAT thereon, which any of them may sustain or
incur as a consequence of the occurrence of any Event of
Default or any default by either Obligor, in the performance of
any of its
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obligations expressed to be assumed by it in any of the
Facility Documents to which it is party;
22.5.2 each Finance Party and their respective officers, employees,
agents and delegates (together the "INDEMNIFIED PARTIES"),
without prejudice to any of their other rights under this
Agreement, against any loss, liability, action, claim, demand,
cost, expense, fine or other outgoing whatsoever whether in
contract, tort or otherwise and whether arising at common law,
in equity or by statute which the Indemnified Party may sustain
or incur as a consequence of, or relating to, or arising
directly or indirectly out of (i) entering into the Facility
Documents or any matter associated with or contemplated by the
Facility Documents (whether or not those matters proceed) or
(ii) an Environmental Claim, in each case, made or asserted
against such Indemnified Party; and
22.5.3 each Bank against any loss it may suffer as a result of its
funding or making arrangements to fund its portion of the Loan
hereunder but not made or issued by reason of the operation of
any one or more of the provisions hereof other than due to the
gross negligence of or wilful default by the Bank in the
performance of its obligations hereunder.
22.6 Any Unpaid Sum shall (for the purposes of this Clause 22 and Clause 14.1
(INCREASED COSTS)) be treated as forming part of the Loan and accordingly
in this Clause 22 and Clause 14 (INCREASED COSTS) the term "Loan"
includes any Unpaid Sum.
23. CURRENCY OF ACCOUNT AND PAYMENT
23.1 The euro is the currency of account and payment for each and every sum at
any time due from each Obligor hereunder PROVIDED THAT:
23.1.1 each repayment of an Unpaid Sum or a part thereof shall be made
in the currency in which such Unpaid Sum is denominated at the
time of that repayment;
23.1.2 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred;
23.1.3 each payment pursuant to Clause 12.2 (TAX INDEMNITY), Clause
14.1 (INCREASED COSTS) or Clause 22.5 (BORROWER'S INDEMNITY)
shall be made in the currency specified by the party claiming
thereunder;
23.1.4 each payment of interest shall be made in the currency in which
the sum in respect of which such interest is payable is
denominated; and
23.1.5 any amount expressed to be payable in a currency other than
euro shall be paid in that other currency.
23.2 CURRENCY INDEMNITY
If any sum due from either Obligor under any of the Facility Documents or
any order or judgement given or made in relation hereto has to be
converted from the currency (the "FIRST CURRENCY") in which the same is
payable hereunder or under such order or judgement into another currency
(the "SECOND CURRENCY") for the purpose of (a) making
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or filing a claim or proof against such Obligor, (b) obtaining an order
or judgement in any court or other tribunal or (c) enforcing any order or
judgement given or made in relation hereto, the Borrower shall indemnify
and hold harmless each of the persons to whom such sum is due from and
against any loss suffered as a result of any discrepancy between (i) the
rate of exchange used for such purpose to convert the sum in question
from the first currency into the second currency and (ii) the rate or
rates of exchange at which such person may in the ordinary course of
business purchase the first currency with the second currency upon
receipt of a sum paid to it in satisfaction, in whole or in part, of any
such order, judgement, claim or proof.
24. PAYMENTS
24.1 PAYMENTS TO THE AGENT
On each date on which this Agreement requires an amount to be paid by
either of the Obligors or any of the Banks hereunder, such Obligor or, as
the case may be, such Bank shall make the same available to the Agent
where such amount is denominated in euros, by payment in euros and in
immediately available, freely transferable, cleared funds to the Agent's
account number 6001600037 in favour of ▇.▇. ▇▇▇▇▇▇ AG with Landerzentral
Bank, Frankfurt, attention R ▇▇▇▇▇ re PrimaCom
Second Secured Facility
Agreement (or such other account or bank as the Agent may have specified
for this purpose).
24.2 ALTERNATIVE ARRANGEMENTS
If, at any time, it shall become impracticable (by reason of any action
of any governmental authority or any change in law, exchange control
regulations or any similar event) for either of the Obligors to make any
payments hereunder in the manner specified in Clause 24.1 (PAYMENTS TO
THE AGENT), then such Obligor may agree with each or any of the Banks
alternative arrangements for the payment direct to such Bank of amounts
due to such Bank hereunder PROVIDED THAT, in the absence of any such
agreement with any Bank, such Obligor shall be obliged to make all
payments due to such Bank in the manner specified herein. Upon reaching
such agreement such Obligor and such Bank shall immediately notify the
Agent thereof and shall thereafter promptly notify the Agent of all
payments made direct to such Bank.
24.3 PAYMENTS BY THE AGENT
Save as otherwise provided herein, each payment received by the Agent for
the account of another person pursuant to Clause 24.1 (PAYMENTS TO THE
AGENT) shall:
24.3.1 in the case of a payment received for the account of the
Borrower, be made available by the Agent to the Borrower by
application:
(a) first, in or towards payment the same day of any amount
then due from the Borrower hereunder to the person from
whom the amount was so received; and
(b) secondly, in or towards payment the same day to the
account of the Borrower with such Bank in Frankfurt as the
Borrower shall have previously notified to the Agent for
this purpose; and
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24.3.2 in the case of any other payment, be made available by the
Agent to the person for whose account such payment was received
(in the case of a Bank, for the account of the Facility Office)
for value the same day by transfer to such account of such
person with such bank in Frankfurt as such person shall have
previously notified to the Agent.
24.4 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.
24.5 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.
24.6 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 the Obligors under
this Agreement in the following order, subject to any provisions in this
Agreement to the contrary:
24.6.1 FIRST, in or towards payment of any unpaid costs and expenses
of the Agent due hereunder;
24.6.2 SECONDLY, in or towards payment PRO RATA of any accrued
commission or fee payable to any Bank due but unpaid;
24.6.3 THIRDLY, in or towards payment PRO RATA of any accrued interest
due but unpaid;
24.6.4 FOURTHLY, in or towards payment PRO RATA of any principal due
but unpaid; and
24.6.5 FIFTHLY, in or towards payment PRO RATA of any other sum due
but unpaid.
24.7 VARIATION OF PARTIAL PAYMENTS
The order of partial payments set out in Clause 24.6 (PARTIAL PAYMENTS)
shall override any appropriation made by the Obligor to which the partial
payment relates but the order set out in sub-clauses 24.6.2, 24.6.3,
24.6.4 and 24.6.5 of Clause 24.6 (PARTIAL PAYMENTS) may be varied if
agreed by all the Banks.
24.8 BUSINESS DAYS
24.8.1 Any payment hereunder 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).
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24.8.2 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.
25. SET-OFF
Each Obligor authorises each Bank to apply, subject to Clause 26
(REDISTRIBUTION OF PAYMENTS), any credit balance to which such Obligor is
entitled on any account held by such Obligor with that Bank in
satisfaction of any sum due and payable from that Obligor to such Bank
but unpaid; for this purpose, each Bank is authorised to purchase at
prevailing rates of exchange with the moneys standing to the credit of
any such account such other currencies as may be necessary to effect such
application. No Bank shall be obliged to exercise any right given to it
by this Clause 25. Any Bank which exercises such rights will promptly
notify the relevant Obligor of such application.
26. REDISTRIBUTION OF PAYMENTS
26.1 PAYMENTS TO BANKS
If, at any time, any Bank (a "RECOVERING BANK") applies any receipt or
recovery (whether by payment, the exercise of a right of set-off or
combination of accounts or otherwise) from an Obligor to a payment due
under this Agreement and such amount is received or recovered other than
in accordance with Clause 24 (PAYMENTS), then such Recovering Bank shall:
26.1.1 notify the Agent of such receipt or recovery;
26.1.2 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 24.6 (PARTIAL PAYMENTS).
26.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if such amount had been
received by it from such Obligor and shall distribute it between the
Finance Parties (other than the Recovering Bank) in accordance with
Clause 24.6 (PARTIAL PAYMENTS).
26.3 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 26.2
(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).
26.4 REPAYABLE RECOVERIES
If any sum (a "relevant sum") received or recovered by a Recovering Bank
becomes repayable and is repaid by such Recovering Bank, then:
26.4.1 each Bank which has received a share of such relevant sum by
reason of the implementation of Clause 26.1 (PAYMENTS TO BANKS)
shall, upon request of the Agent, pay to the Agent for account
of such Recovering Bank an amount equal to its share of such
relevant sum; and
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26.4.2 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.
26.5 EXCEPTIONS
This Clause 26 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.
26.6 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.
27. FEES
27.1 WORK FEE
The Borrower shall pay to the Agent for the account of each Arranger the
work fees in the amount and at the time agreed in a Fee Letter.
27.2 AGENCY FEE
The Borrower shall pay to the Agent the agency fee in the amount and at
the times agreed in a Fee Letter.
28. COSTS AND EXPENSES
28.1 TRANSACTION EXPENSES
The Borrower shall, from time to time on demand of the Agent, reimburse
each of the Agent and the Arrangers for all reasonable costs and expenses
(including, without limitation, legal fees as agreed and notary's fees)
together with any VAT thereon incurred by it in connection with the
negotiation, syndication, preparation and execution of the Facility
Documents (including, without limiting the generality of the foregoing,
in connection with any amendments, supplements, waivers and consents
requested by any party thereto) and the completion of the transactions
therein contemplated. Any claims by the Agent or the Arrangers made upon
the Borrower pursuant to this Clause 28.1 shall be accompanied by
appropriate invoices.
28.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Borrower shall, from time to time on demand of the Agent, reimburse
the Finance Parties for all costs and expenses (including, without
limitation, legal fees) 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 Facility Documents including, without
limitation any such costs and expenses incurred as a result of the
implementation or operation of Clause 42 (GROUP STRUCTURE CHANGES AND
PERMISSIONS).
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28.3 STAMP TAXES AND NOTARISATION
28.3.1 The Borrower shall pay all stamp, registration and other taxes
to which the Facility Documents or any judgement 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.
28.3.2 In relation to the notarisation of the Facility Documents on or
around the Closing Date, the Borrower shall be entitled to use
a notary in Basel, Switzerland to perform that notarisation to
the extent the same is cost effective to do so. In relation to
any required notarisation of a Facility Document (or assignment
or transfer of the same) following the Closing Date, a notary
in Basel, Switzerland may also perform that notarisation if the
Finance Parties (in their absolute discretion) confirm that
they are not, and shall not be, adversely affected by that
notarisation provided that the Finance Parties shall be deemed
to have consented to that notarisation if there has been no
change of law or regulation since the Closing Date which may
affect the same.
28.4 BANKS' LIABILITIES FOR COSTS
If the Borrower fails to perform any of its obligations under this Clause
28, 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 and the Borrower shall forthwith reimburse each Bank for any
payment made by it pursuant to this Clause 28.4.
29. GUARANTEE
29.1 GUARANTEE AND INDEMNITY
Subject to the terms of the Intercreditor Agreement, the Guarantor hereby
irrevocably and unconditionally:
29.1.1 guarantees to each Finance Party the due and punctual
observance and performance of all the terms, conditions and
covenants on the part of the Borrower contained in the Facility
Documents and agrees to pay to the Agent from time to time upon
first written demand any and every sum or sums of money which
the Borrower shall at any time be liable to pay to each Finance
Party under or pursuant to the Facility Documents and which has
become due and payable but the Agent confirms have not been
paid at the time such demand is made; and
29.1.2 agrees as a primary obligation to indemnify each Finance Party
from time to time on demand by the Agent from and against any
loss incurred by each Finance Party as a result of any of the
obligations of the Borrower under or pursuant to the Facility
Documents being or becoming void, voidable, unenforceable or
ineffective as against the Borrower for any reason whatsoever,
whether or not known to the Finance Parties or any of them 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 the Borrower.
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30. PRESERVATION OF RIGHTS
30.1 ADDITIONAL SECURITY
The obligations of the Guarantor herein contained shall be in addition to
and independent of every other security which the Finance Parties or any
of them may at any time hold in respect of any of the Borrower's
obligations under the Facility Documents.
30.2 CONTINUING OBLIGATIONS
The obligations of the Guarantor herein contained shall constitute and be
continuing obligations notwithstanding any settlement of account or other
matter or thing whatsoever, and in particular but without limitation,
shall not be considered satisfied by any intermediate payment or
satisfaction of all or any of the obligations of the Borrower under the
Facility Documents and shall continue in full force and effect until
final payment in full of all amounts owing by the Borrower thereunder and
total satisfaction of all the Borrower's actual and contingent
obligations thereunder.
30.3 OBLIGATIONS NOT DISCHARGED
Neither the obligations of the Guarantor herein contained nor the rights,
powers and remedies conferred in respect of the Guarantor upon the
Finance Parties or any of them by the Facility Documents or by law shall
be discharged, impaired or otherwise affected by:
30.3.1 the winding-up, dissolution, administration or re-organisation
of the B rrower or any other person or any change in its
status, function, control or ownership;
30.3.2 any of the obligations of the Borrower under the Facility
Documents or under any other security taken in respect of any
of its obligations thereunder being or becoming illegal,
invalid, unenforceable or ineffective in any respect;
30.3.3 time or other indulgence being granted or agreed to be granted
to the Borrower in respect of its obligations under any
Facility Document;
30.3.4 any amendment to, or any variation, waiver or release of, any
obligation of the Borrower or any other person under any
Facility Document;
30.3.5 any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken in respect
of any of the Borrower's obligations under any Facility
Document;
30.3.6 any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any
encumbrance taken in respect of any of the Borrower's
obligations under any Facility Document; or
30.3.7 any other act, event or omission which, but for this Clause
30.3, might operate to discharge, impair or otherwise affect
any of the obligations of the Guarantor herein contained or any
of the rights, powers or remedies conferred upon the Finance
Parties or any of them by the Facility Documents or any of them
or by law.
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30.4 SETTLEMENT CONDITIONAL
Any settlement or discharge between either Obligor and the Finance
Parties or any of them shall be conditional upon no security or payment
to the Finance Parties or any of them by any such Obligor or any other
person on behalf of any such Obligor being avoided or reduced by virtue
of any laws relating to bankruptcy, insolvency, liquidation or similar
laws of general application for the time being in force and, if any such
security or payment is so avoided or reduced, the Finance Parties shall
each be entitled to recover the value or amount of such security or
payment from any such Obligor subsequently as if such settlement or
discharge had not occurred.
30.5 EXERCISE OF RIGHTS
No Finance Party shall be obliged before exercising any of the rights,
powers or remedies conferred upon them in respect of the Guarantor or any
of them by any of the Facility Documents or by law:
30.5.1 to make any demand of the Borrower;
30.5.2 to take any action or obtain judgement in any court against the
Borrower;
30.5.3 to make or file any claim or proof in a winding-up or
dissolution of the Borrower; or
30.5.4 to enforce or seek to enforce any other security taken in
respect of any of the obligations of the Borrower under any
Facility Document.
30.6 DEFERRAL OF GUARANTOR'S RIGHTS
The Guarantor agrees that, so long as any amounts are or may be owed by
the Borrower under any Facility Document or the Borrower is under any
actual or contingent obligations under any Facility Document it shall not
exercise any rights which it may at any time have by reason of the
performance by it of its obligations under the Facility Documents:
30.6.1 to be indemnified by the Borrower; and/or
30.6.2 to claim any contribution from any other guarantor of the
Borrower's obligations thereunder; and/or
30.6.3 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 Facility Documents or any of them or of any other
security taken pursuant to, or in connection with the Facility
Documents or any of them by all or any of the Finance Parties.
30.7 SUSPENSE ACCOUNTS
All moneys received, recovered or realised by a Finance Party by virtue
of Clause 29.1 (GUARANTEE AND INDEMNITY) may, in that Finance Party's
discretion, be credited to an interest bearing suspense or impersonal
account and may be held in such account for so long as such Finance Party
thinks fit pending the application from time to time (as such Finance
Party may think fit) of such moneys in or towards the payment and
discharge of any amounts owing by the Guarantor to such Bank hereunder
until the amount held in
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such account would be sufficient to discharge all amounts due and payable
under the Facility Documents.
31. THE AGENT, THE ARRANGERS AND THE BANKS
31.1 APPOINTMENT OF THE AGENT
The Arrangers and each of the Banks hereby appoint the Agent to act as
its agent in connection with the Facility Documents and hereby
acknowledges that the Security Trustee will act for it and on its behalf
in connection with the Security Documents in accordance with the terms of
the Security Trust Agreement 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.
The Agent and the Security Trustee shall be released from the
restrictions set out in Section 181 of the German Civil Code. The Agent
and the Security Trustee may grant such substitute powers of attorney and
release any sub-agent from such restriction and revoke that substitute
power of attorney.
31.2 AGENT'S DISCRETIONS
The Agent may:
31.2.1 assume that:
(a) any representation made by any Obligor in connection with
any of the Facility Documents is true;
(b) no Event of Default or Potential Event of Default has
occurred;
(c) no Obligor is in breach of or default under its
obligations under any of the Facility Documents or
Relevant Contracts; 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,
unless it has, in its capacity as agent for the Banks, received
notice to the contrary from any other party hereto;
31.2.2 assume that the Facility Office of each Bank is that identified
with its signature below (or, in the case of a Transferee, at
the end of the Transfer Certificate to which it is a party as
Transferee) until it has received from such Bank a notice
designating some other office of such Bank to replace its
Facility Office and act upon any such notice until the same is
superseded by a further such notice;
31.2.3 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;
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31.2.4 rely as to any matters of fact which might reasonably be
expected to be within the knowledge of either of the Obligors
upon a certificate signed by or on behalf of such Obligor;
31.2.5 rely upon any communication or document believed by it to be
genuine;
31.2.6 refrain from exercising any right, power or discretion vested
in it as agent under any of the Facility Documents unless and
until instructed by an Instructing Group as to whether or not
such right, power or discretion is to be exercised and, if it
is to be exercised, as to the manner in which it should be
exercised; and
31.2.7 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 any of the Facility
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, without
limitation, legal fees) and liabilities together with any VAT
thereon which it will or may expend or incur in complying with
such instructions.
31.3 AGENT'S OBLIGATIONS
The Agent shall:
31.3.1 promptly inform each Bank and the Security Trustee of the
contents of any notice or document received by it in its
capacity as Agent from any member of the Group under any of the
Facility Documents;
31.3.2 promptly notify each Bank and the Security Trustee of the
occurrence of any Event of Default or any default by either of
the Obligors in the due performance of or compliance with its
obligations under any of the Facility Documents of which the
Agent has notice from any other party hereto;
31.3.3 save as otherwise provided herein, act as agent under the
Facility Documents in accordance with any instructions given to
it by an Instructing Group, which instructions shall be binding
on the Arrangers and all of the Banks; and
31.3.4 if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it as agent
under the Facility Documents.
The Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
31.4 EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent nor the Arrangers shall:
31.4.1 be bound to enquire as to:
(a) whether or not any representation made by either of the
Obligors in connection with any of the Facility Documents
is true;
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(b) the occurrence or otherwise of any Event of Default or
Potential Event of Default;
(c) the performance by either Obligor its obligations under
any of the Facility Documents; or
(d) any breach of or default by either Obligor of its
obligations under any of the Facility Documents;
31.4.2 be bound to account to any Bank for any sum or the profit
element of any sum received by it for its own account;
31.4.3 be bound to disclose to any other person any information
relating to any member of the Group if (i) (save where such
information relates to an Event of Default or Potential Event
of Default) such person, on providing such information,
expressly stated to the Agent or as the case may be, the
Arrangers, that such information was confidential, or (ii) such
disclosure would or might in its opinion constitute a breach of
any law or regulation or be otherwise actionable at the suit of
any person;
31.4.4 be under any obligations other than those for which express
provision is made in the Facility Documents to which it is
party; or
31.4.5 be or be deemed to be a fiduciary to any other party, to any
Facility Document.
31.5 INDEMNIFICATION
Each Bank shall, in its Proportion, from time to time on demand by the
Agent, indemnify the Agent and each of the Arrangers against any and all
costs, claims, losses, expenses (including, without limitation, legal
fees) and liabilities (save to the extent that such costs, claims,
losses, expenses or liabilities are recovered to the satisfaction of the
Agent from the Borrower) together with any VAT thereon which any of them
may incur, otherwise than by reason of its own gross negligence or wilful
misconduct, in acting in their respective capacities as agent, or joint
arrangers under any of the Facility Documents.
31.6 EXCLUSION OF LIABILITIES
Neither the Agent nor the Arrangers nor any of them accepts any
responsibility for the accuracy and/or completeness of any information
supplied by the Agent or the Arrangers or any member of the Group in
connection with the Facility Documents or the Relevant Contracts or for
the legality, validity, effectiveness, adequacy or enforceability of any
of the Facility Documents or the Relevant Contracts and neither the Agent
nor the Arrangers nor any of them shall be under any liability as a
result of taking or omitting to take any action in relation to any of the
Facility Documents, save in the case of gross negligence or wilful
misconduct.
31.7 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 any of the
Arrangers any claim it might have against any of them in respect of the
matters referred to in Clause 31.6 (EXCLUSION OF LIABILITIES).
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31.8 BUSINESS WITH THE FINANCIAL GROUP
The Agent and each of 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 Financial Group.
31.9 REMOVAL OR RESIGNATION OF AGENT
An Instructing Group may remove the Agent from its appointment hereunder
as agent at any time by giving not less than thirty days prior written
notice to that effect to each of the other parties hereto, or the Agent
may resign its appointment hereunder at any time without assigning any
reason therefor by giving not less than thirty days' prior written notice
to that effect to each of the other parties hereto PROVIDED THAT no such
removal or resignation shall be effective until a successor for the Agent
is appointed in accordance with the succeeding provisions of this Clause
31.
31.10 SUCCESSOR AGENT
If an Instructing Group removes the Agent as agent or the Agent gives
notice of its resignation in either case pursuant to Clause 31.9 (REMOVAL
OR RESIGNATION OF AGENT), then any reputable and experienced bank or
other financial institution may be appointed as a successor to the Agent
by an Instructing Group with the consent of the Borrower (such consent
not to be unreasonably withheld or delayed) during the period of such
notice but, if no such successor is so appointed, the Agent may appoint
such a successor itself.
31.11 RIGHTS AND OBLIGATIONS
If a successor to the Agent is appointed under the provisions of Clause
31.10 (SUCCESSOR AGENT), then (a) the retiring Agent shall be discharged
from any further obligation under the Facility Documents but shall remain
entitled to the benefit of the provisions of this Clause 31 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 an original party to the Facility Documents.
31.12 OWN RESPONSIBILITY
It is understood and agreed by each Bank that it has itself been, and
will continue to be, solely responsible for making its own independent
appraisal of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of each member of
the Financial Group and each proposed Acquisition and, accordingly, each
Bank warrants to the Agent and the Arrangers that it has not relied on
and will not hereafter rely on the Agent and the Arrangers nor any of
them:
31.12.1 to check or enquire on its behalf into the adequacy, accuracy
or completeness of any information provided by any member of
the Financial Group in connection with the Facility Documents
or the transactions therein contemplated (whether or not such
information has been or is hereafter circulated to such Bank by
the Agent and the Arrangers or any of them) or in connection
with any proposed Acquisition; or
31.12.2 to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or
nature of any member of the Financial Group.
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31.13 AGENCY DIVISION SEPARATE
In acting as Agent for the Arrangers and the Banks, the agency division
of the Agent shall be treated as a separate entity from any other of its
divisions or departments and, notwithstanding the foregoing provisions of
this Clause 31, in the event that the Agent should act for any member of
the Financial Group in any capacity in relation to any other matter, any
information given by any member of the Financial Group to the Agent in
such other capacity may be treated as confidential by the Agent.
31.14 DELEGATION
The Agent may delegate to any subsidiary of ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ or its
successor from time to time all or any of the rights, powers, authorities
and discretions vested in it hereunder and the performance of its duties
in accordance with, and such delegation 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 any reference
in Clause 22.5 (BORROWER'S INDEMNITY), 26 (REDISTRIBUTION OF PAYMENTS),
27 (FEES), 28 (COSTS AND EXPENSES) or 29 (GUARANTEE) to the Agent shall
be deemed also to refer to any such subsidiary or its successor.
32. BENEFIT OF AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its or any subsequent successors, Transferees and
permitted assigns.
33. ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS
No Obligor shall be entitled to assign or transfer all or any of its
rights, benefits and obligations under the Facility Documents.
34. ASSIGNMENTS AND TRANSFERS BY BANKS
34.1 ASSIGNMENTS AND TRANSFERS BY BANKS
Any Bank may, at any time, assign all or any of its rights and benefits
under the Facility Documents or transfer in accordance with Clause 34.3
(TRANSFERS BY BANKS) all or any of its rights, benefits and obligations
under the Facility Documents, PROVIDED THAT any such assignment or
transfer shall be in a minimum amount of EURO 3,000,000 or, if less, the
whole amount of such Bank's Commitment.
34.2 ASSIGNMENTS BY BANKS
If any Bank assigns all or any of its rights and benefits under the
Facility Documents in accordance with Clause 34.1 (ASSIGNMENTS AND
TRANSFERS BY BANKS), then, unless and until the assignee has agreed with
each other Finance Party 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 thereto as a Bank, the Finance Parties 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 thereto.
34.3 TRANSFERS BY BANKS
If any Bank wishes to transfer all or any of its rights, benefits and/or
obligations under the Facility Documents as contemplated in Clause 34.1
(ASSIGNMENTS AND TRANSFERS BY BANKS), then such transfer may be effected
by the delivery to the Agent of a duly
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completed and duly executed Transfer Certificate 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:
34.3.1 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its rights under the Facility
Documents to the Transferee they shall be so assigned;
34.3.2 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its obligations under or in respect
of the Facility Documents, each Obligor and such Bank shall be
released from further obligations to each other under or in
respect of the Facility Documents (such obligations being
referred to in this Clause 34 as "discharged obligations");
34.3.3 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 Obligors and such
Transferee have assumed and/or acquired the same in place of
the Obligors, and such Bank; and
34.3.4 such Transferee and the other Finance Parties 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 to any of the Facility
Documents as a Bank or as a beneficiary thereof with the rights
assigned to it and/or obligations assumed by it as a result of
such assignment and transfer including, by the execution of
such Transfer Certificate, the Security Trust Agreement and the
Second Security Documents.
34.4 TRANSFER FEES
On the date upon which a transfer takes effect pursuant to Clause 34.3
(TRANSFERS BY BANKS), the Transferee in respect of such transfer shall
pay to the Agent for its own account a transfer fee of EURO 1500.
34.5 CONDITIONS
The rights conferred on the Banks by this Clause 34 shall be subject to
the following provisos:
34.5.1 any assignee or Transferee shall be a bank or other financial
institution;
34.5.2 any assignee or Transferee shall have executed and delivered
(i) an Accession Deed (as defined in and pursuant to the
Co-ordination Agreement), (ii) an Accession Agreement (as
defined in and pursuant to the Intercreditor Agreement) and
(iii) a Transfer Certificate (as defined in and pursuant to the
Share Option Agreement);
34.5.3 no Obligor shall be obliged by reason of any such assignment or
transfer to make any payment hereunder otherwise than in
accordance with Clause 24.1 (PAYMENTS TO THE AGENT); and
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34.5.4 an assignee or Transferee shall not be entitled to receive any
payment under Clause 12 (TAXES) or Clause 14.1 (INCREASED
COSTS) save to the extent that, at the time of such assignment
or transfer, an amount would have been payable hereunder to the
relevant assignor or Transferor in respect of that part of its
rights and benefits assigned or transferred.
35. DISCLOSURE OF INFORMATION
Any Bank may disclose to any actual or potential assignee or Transferee
or to any person who may otherwise enter into contractual relations with
such Bank in relation to this Agreement such information about members of
the Financial Group as such Bank shall consider appropriate subject to,
where such information is confidential or of a proprietary nature,
obtaining confirmation, by obtaining an appropriate written
confidentiality undertaking from such person, that such person will hold,
subject to the provisions hereof, such information on a confidential
basis.
36. SUB-PARTICIPATION
Each Bank may enter into sub-participation arrangements in relation to
all or any part of its rights and obligations under the Facility
Documents or any of them with any person (a "SUB-PARTICIPANT") without
the consent of any party PROVIDED THAT following the entering into of
such sub-participation arrangements such Bank continues to exercise its
rights and obligations under the Facility Documents without reference to
the Sub-Participant save in the case of:
36.1.1 any proposed waiver of an Event of Default arising as a result
of the late payment of any sum under this Agreement;
36.1.2 any proposed extension of the due date for payment of any sum
under this Agreement;
36.1.3 any proposed reduction in the commitment fee; and
36.1.4 any proposed release of any encumbrance created pursuant to any
Security Document.
37. CALCULATIONS AND EVIDENCE OF DEBT
37.1 BASIS OF ACCRUAL
Interest and commitment commission shall accrue from day to day and shall
be calculated on the basis of a year of 360 days and the actual number of
days elapsed.
37.2 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.
37.3 CONTROL ACCOUNTS
The Agent shall maintain on its books a control account or accounts in
which shall be recorded (a) the amount of the Loan made or arising
hereunder and each Bank's share therein, (b) the amount of all principal,
interest and other sums due or to become due from each of the Obligors to
any of the Banks hereunder and each Bank's share therein
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and (c) the amount of any sum received or recovered by the Agent
hereunder and each Bank's share therein.
37.4 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 37.2 (EVIDENCE OF DEBT) and Clause 37.3 (CONTROL ACCOUNTS) shall
be PRIMA FACIE evidence of the existence and amounts of the obligations
of the Obligors therein recorded.
37.5 CERTIFICATE 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 12.1 (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 12.2 (TAX INDEMNITY),
Clause 14.1 (INCREASED COSTS) or Clause 22.5 (BORROWER'S INDEMNITY) or
(c) the amount of any credit, relief, remission or repayment as is
mentioned in Clause 13.3 (TAX CREDIT PAYMENT) or Clause 13.4 (TAX CREDIT
CLAWBACK) shall be PRIMA FACIE evidence for the purposes of this
Agreement.
37.6 AGENT'S CERTIFICATES
A certificate of the Agent as to the amount at any time due from an
Obligor hereunder or the amount which, but for any of the obligations of
such Obligor hereunder being or becoming void, voidable, unenforceable or
ineffective, at any time would have been due from such Obligor hereunder
shall, in the absence of manifest error, be PRIMA FACIE evidence for the
purposes of Clause 29 (GUARANTEE).
38. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Finance Parties or any of them, any right or remedy hereunder 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.
39. PARTIAL INVALIDITY
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, (i)
neither the legality, validity or enforceability of the remaining
provisions hereof 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 and (ii) the relevant provision shall be
deemed replaced with a new provision which reflects as closely as
possible the purpose of the parties and which is legal, valid and
enforceable under the law of the relevant jurisdiction.
40. NOTICES
40.1 COMMUNICATIONS IN WRITING
Each communication to be made hereunder shall, unless otherwise stated,
be made in writing by telefax, letter or electronic mail.
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40.2 DELIVERY
Any communication or document be made or to the extent practicable
delivered by one person to another pursuant to this Agreement shall
(unless that other person has by fifteen days' written notice to the
Agent specified another address) be made or delivered to that other
person at the address identified to the Agent prior to the date of this
Agreement (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 the
Obligors as notified in writing to the Agent and shall be deemed to have
been made or delivered when despatched (in the case of any communication
made by telefax or electronic mail with appropriate acknowledgement of
message transfer received by the sender) or (in the case of any
communication made by letter) when left at that address or (as the case
may be) ten days after being deposited in the post postage prepaid in an
envelope addressed to it at that address PROVIDED THAT any communication
or document to be made or delivered to the Agent shall be effective only
when received by the Agent and then only if the same is expressly marked
for the attention of the department or officer identified with the
Agent's signature below (or such other department or officer as the Agent
shall from time to time specify for this purpose).
40.3 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to another
pursuant to this Agreement 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.
40.4 ADDRESSES
Any communication or document to be made or delivered pursuant to this
Agreement shall (unless the recipient of such communication or document
has, by fifteen days' written notice to the Agent, specified another
address or fax number) be made or delivered to the address or fax number:
40.4.1 in the case of each Obligor, of the Borrower;
40.4.2 in the case of the Agent, identified with its name below; and
40.4.3 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),
PROVIDED THAT not more than one address may be specified by each party
pursuant to this Clause 43.4 at any time.
41. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts each of which, when
executed and delivered, shall constitute an original, but all the
counterparts shall together constitute but one and the same instrument.
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42. GROUP STRUCTURE CHANGES AND PERMISSIONS
42.1 ADDITIONAL SECURITY
Without prejudice to the requirements of any other provision of any
Facility Document but subject always to the requirements and application
of any applicable law (and subject to Clause 20.5 (PERMITTED
ACQUISITIONS):
42.1.1 if PMG acquires (whether pursuant to a Permitted Acquisition or
an intra-Group transfer) any shares or a partnership interest
in any person or any assets then it shall (and the Borrower
shall procure that it shall to the extent permitted by
applicable law) execute an appropriate Second Share Pledge (on
substantially the same terms as the appropriate existing Second
Share Pledge) and provide the Agent with such documents and
evidence (including legal opinions) as it may require that such
Second Share Pledge has been duly executed and delivered by PMG
and is legal, valid, binding and enforceable in accordance with
its terms; and
42.1.2 the Borrower shall ensure that all Relevant Contracts and
Necessary Authorisations are, as the case may be, obtained by
the new Group member or remain in full force and effect in
respect of all relevant assets (save, in relation to the
Relevant Contracts, to any extent which is not likely to have a
Material Adverse Effect) and the relevant transferee, successor
or assignee of any shares, partnership interest or asset shall
provide such evidence regarding such matters to the Agent as
the Agent may reasonably require.
42.2 FURTHER ASSURANCE
Each Obligor shall from time to time, at the request of the Security
Trustee, do any act or execute in favour of the Security Trustee or as
the Security Trustee may direct such further or other documents as the
Security Trustee shall stipulate, in such form as the Security Trustee
may require, for the perfection of the security contemplated by this
Clause 43.
43. AMENDMENTS, CONSENTS
Subject to the proviso below, the Agent (acting on the instructions of an
Instructing Group) may grant waivers or consents or, subject to the
agreement of the Borrower, amend or vary the terms of this Agreement. Any
such waiver, consent, variation or amendment shall be made in writing and
shall be binding on all the parties hereto and the Agent shall be under
no liability whatsoever in respect of any such waiver, consent, variation
or amendment PROVIDED THAT:
43.1.1 except with the prior written consent of all the Banks, no
waiver may be granted in respect of and the Agent may not vary
or amend the terms of this Agreement so as to:
(a) alter the date on which any repayment is to be made
hereunder; or
(b) alter the amount or currency of the Loan or any Bank's
Commitment or any payment;
(c) alter the rate of interest or its method of calculation;
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(d) alter this Clause 43 or Clause 11.4 (ORDER OF PAYMENT);
(e) alter the definition of "Instructing Group";
(f) alter any provision of this Agreement referring to a
requirement for the agreement or consent of all the Banks;
(g) alter the form of guarantee given by the Guarantor;
(h) release any Second Security Document other than pursuant
to the Co-ordination Agreement or as a result of an action
which is permitted under this Agreement; or
(i) waive the delivery, in satisfactory form and substance, of
any of the documents listed in Schedule 3 (CONDITION
PRECEDENT DOCUMENTS) hereto prior to the first Notice of
Drawdown;
43.1.2 any waiver, consent, variation or amendment which directly
affects the rights and/or obligations of the Agent, the
Arrangers or the Security Trustee (or any of them) shall
require its agreement also.
Any waiver, consent or variation authorised and effected by the Agent
pursuant to sub-clause 43.1.1 shall be binding on each Obligor and each
Finance Party upon written notification thereof to such persons and the
Agent shall be under no liability whatsoever in respect of any such
waiver, consent or variation.
44. LAW
44.1 GOVERNING LAW
This Agreement shall be governed by, and shall be construed in accordance
with, English law.
45. JURISDICTION
45.1 ENGLISH COURTS
The courts of England have exclusive jurisdiction to hear and determine
any suit, action or proceeding, and to settle any dispute (a "DISPUTE"),
which may arise 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 convenient and
appropriate courts to settle Disputes between them and accordingly they
will not agree to the contrary.
45.3 NON-EXCLUSIVE JURISDICTION
The submission to the jurisdiction of the courts referred to in Clause
45.1 (ENGLISH COURTS) is for the benefit of the Finance Parties only. As
a result and notwithstanding Clause 45.1 (ENGLISH COURTS) it does not
prevent the Finance Parties or any of them from taking proceedings
relating to a Dispute ("PROCEEDINGS") in any other court of competent
jurisdiction nor shall the taking of proceedings in any one or more
jurisdictions preclude
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the taking of proceedings in any other jurisdiction (whether concurrently
or not) if and to the extent permitted by applicable law.
45.4 SERVICE OF PROCESS
Each of the Obligors 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 on ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ marked for the attention of "Partner in charge of
litigation", or if different, its registered office. If the appointment
of the person mentioned in this Clause 45.4 ceases to be effective, the
Borrower or, as the case may be, the relevant Obligor 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 to the Borrower or, as the case may be,
the relevant Obligor. 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.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
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SCHEDULE 1
THE BANKS
BANK COMMITMENT (EURO)
▇▇ ▇▇▇▇▇▇ Chase Bank 150,000,000
Barclays Bank plc 56,250,000
Dresdner Bank AG London Branch. 56,250,000
▇▇▇▇▇▇ Commercial Paper Inc 56,250,000
The Toronto-Dominion Bank 56,250,000
TOTAL EURO 375,000,000
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SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
To: ▇.▇. ▇▇▇▇▇▇ Europe Limited
TRANSFER CERTIFICATE
[REQUIRES NOTARISATION BEFORE A GERMAN NOTARY OR A NOTARY IN BASEL,
SWITZERLAND IF TRANSFER IS CONNECTED WITH TRANSFER OF RIGHTS UNDER THE
SHARE OPTION AGREEMENT]
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Facility Agreement") dated 25 March 2002 whereby a
EURO 375,000,000 term loan was made available to the Borrower (as defined
therein) by a group of banks on whose behalf ▇.▇. ▇▇▇▇▇▇ Europe Limited acted as
agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms "BANK" and
"TRANSFEREE" are defined in the schedule hereto.
2. The Bank (i) confirms that the details in the schedule hereto under the
heading "BANK'S COMMITMENT" accurately summarises its participation in,
and Interest Period and Interest Payment Date of the Loan, and (ii)
requests the Transferee to accept and procure the assignment and transfer
to the Transferee of the portion specified in the schedule hereto to be
the portion transferred of its Commitment, its participation in the Loan
by counter-signing and delivering this Transfer Certificate to the Agent
at its address for the service of notices specified in the Facility
Agreement.
3. The Transferee hereby requests the Agent (on behalf of itself and all
other parties to the Agreement) to accept this Transfer Certificate as
being delivered to the Agent pursuant to and for the purposes of Clause
34.3 (TRANSFERS BY BANKS) of the Facility 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 warrants that it has received a copy of each of the
Facility Documents 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 any member of the Group.
5. The Transferee hereby undertakes and agrees with the Bank and each of the
other parties to the Facility Documents that it will perform in
accordance with their terms all those obligations which by the terms of
the Facility Documents will be assumed by it and that it will be bound by
the terms of the Facility Documents as if it were an original party
thereto after delivery of this Transfer Certificate to the Agent and
satisfaction of the conditions (if any) subject to which this Transfer
Certificate is expressed to take effect.
6. The Transferee confirms that it has received a copy of each of the Second
Security Documents governed by German law in the form of pledges, is
aware of their contents
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and hereby expressly consents to the declarations of the Security Trustee
made on behalf of the Transferee as future pledgee under such Second
Security Documents.
7. The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Facility Documents and assumes no
responsibility for the financial condition of any member of the Group or
for the performance and observance by either Obligor of any of its
obligations under the Facility Documents and any and all such conditions
and warranties, whether express or implied by law or otherwise, are
hereby excluded.
8. The Bank hereby gives notice that nothing in the Facility Documents shall
oblige the Bank to (i) accept a re-transfer or re-assignment from the
Transferee of the whole or any part of its rights, benefits and/or
obligations under the Facility Documents transferred or assigned pursuant
hereto or (ii) support any losses directly or indirectly sustained or
incurred by the Transferee for any reason whatsoever including, without
limitation, the non-performance by either of the Obligors of its
obligations under any of the Facility Documents. The Transferee hereby
acknowledges the absence of any such obligation as is referred to in (i)
or (ii) above.
9. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English
law.
THE SCHEDULE
10. Bank:
11. Transferee:
12. Transfer Date:
13. Commitment:
Bank's Commitment Portion Transferred
14. Loan:
Amount of Interest Period and
Bank's Participation Interest Payment Date Portion Transferred
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
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ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments:
Telex:
Telephone:
- 82 -
SCHEDULE 3
CONDITION PRECEDENT DOCUMENTS
1. A certified copy of the constitutional documents (extract from Commercial
Register and Articles of Association) of each Obligor together with
certification by a duly authorised officer that such documents at the
Closing Date remain up to date and have not been changed and including
any shareholder resolutions previously passed but not registered.
2. A copy, certified at the date hereof a true copy by a duly authorised
officer or managing director of each Obligor, of the shareholder
resolution and/or an excerpt from the resolution of the Supervisory Board
(as the case may be) approving the execution, delivery and performance of
each of the Facility Documents (other than the Contingent Value Right
Agreement which has previously been entered into) to which it is party,
and the terms and conditions thereof.
3. A duly executed original of each of the Facility Documents (other than
the Contingent Value Right Agreement which has previously been entered
into), together with any agreements, documents or notices required to be
delivered pursuant thereto.
4. (a) A legal opinion of Linklaters Oppenhoff and ▇▇▇▇▇▇, German
counsel to the Agent.
(b) A legal opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Frankfurt, German counsel to
the Obligors.
5. A legal opinion of Linklaters, English counsel to the Agent.
6. A legal opinion of De Brauw Blackstone Westbroek N.V., Dutch counsel to
the Agent.
7. A legal opinion of Linklaters New York, United States counsel to the
Agent.
8. Duly executed originals of each of the fee letters referred to in Clauses
27.1 (WORK FEE) and 27.2 (AGENCY FEE) of this Agreement and evidence that
the fees specified therein and any other costs and expenses (including
legal fees) then due from the Borrower, pursuant to this Agreement,
although earned on the date of this Agreement shall be paid within 5
Business Days of that date.
9. A certified copy of the Original Financial Statements and the latest
audited financial statements of PMG.
10. Certificates from the Chief Financial Officer of the Borrower dated the
date hereof and the date upon which the Second Security Documents are
executed that to the best of his knowledge such member of the Group is
not insolvent on a balance sheet test (UBERSCHULDET) and is not unable to
meet its debts as they fall due (ZAHLUNGSUNFAHIG).
11. Group structure charts certified by the Borrower in relation to the
Financial Group as at the Closing Date.
12. Evidence that the process agent referred to in Clause 45.4 (SERVICE OF
PROCESS) has accepted its appointment.
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13. A copy of the inter-company loan facility between the Borrower and PMG
relating to the on-lending of the Loan by the Borrower to PMG.
14. A duly executed certified copy of the amendment agreement showing agreed
amendments to the Senior Facility.
15. A report from Deloitte & Touche, as reporting accountants.
16. A certified copy of the resolutions evidencing the Management Board's and
the Supervisory Board's approval of the financing structure in the
context of the key financial elements of the ten year business plan.
17. Copies of the Supervisory Board's resolution evidencing unanimous
approval of the financial restructuring.
18. Details of key management incentive and retention contracts.
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SCHEDULE 4
NOTICE OF DRAWDOWN AND SELECTION NOTICE
PART A
NOTICE OF DRAWDOWN
From:
PrimaCom AG
To: ▇.▇. ▇▇▇▇▇▇ Europe Limited
Dated: [ ]
Dear Sirs
1. We refer to the agreement (as from time to time amended, varied, novated
or supplemented, the "FACILITY AGREEMENT") dated 25 March 2002 and made
between, inter alia,
PrimaCom AG as borrower, PrimaCom Management GmbH as
guarantor, ▇.▇. ▇▇▇▇▇▇ Europe Limited as agent and the financial
institutions named therein as banks. Terms defined in the Facility
Agreement shall have the same meaning in this notice.
2. We hereby give you notice that, pursuant to the Facility Agreement and
upon the terms and subject to the conditions contained therein, we wish
the Loan to be made to us under the Facility as follows:
(a) Amount: EURO 375,000,000
(b) Drawdown Date/Issue Date: 26 March 2002
(c) Interest Period: 3 months
(d) Purpose: To be on-lent to PMG and applied by PMG in repayment
and permanent cancellation by PMG of an equivalent amount under
the Senior Facility.
3. The proceeds of this drawdown should be credited to:
Pay to - ▇.▇. ▇▇▇▇▇▇ AG, Frankfurt - SWIFT ▇▇▇▇▇▇▇▇
Favour - ▇.▇. ▇▇▇▇▇▇ Europe Limited, London - SWIFT ▇▇▇▇▇▇▇▇
Account number - 6001600037
Attn - Gez Jordan/Agency
Yours faithfully
--------------------------------------------
BY PRIMACOM AG
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PART B
SELECTION NOTICE
From: PrimaCom AG
To: ▇.▇. ▇▇▇▇▇▇ Europe Limited
Dated: [ ]
Dear Sirs
1. We refer to the agreement (as from time to time amended, varied, novated
or supplemented, the "FACILITY AGREEMENT") dated 25 March 2002 and made
between, inter alia, PrimaCom AG as borrower, PrimaCom Management GmbH as
guarantor, ▇.▇. ▇▇▇▇▇▇ Europe Limited as agent and the financial
institutions named therein as banks. Terms defined in the Facility
Agreement shall have the same meaning in this Selection Notice.
2. We refer to the Loan with an Interest Period ending on [ ].
3. We request that the next Interest Period for the Loan is [ ].
4. This Selection Notice is irrevocable.
Yours faithfully
--------------------------------------------
BY PRIMACOM AG
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SCHEDULE 5
FORM OF COMPLIANCE CERTIFICATE
To: ▇.▇. ▇▇▇▇▇▇ Europe Limited
RE: FACILITY AGREEMENT (THE "FACILITY AGREEMENT") DATED 25 MARCH 2002
BETWEEN, INTER ALIA, (1) PRIMACOM AG AS BORROWER, (2) PRIMACOM MANAGEMENT
GmbH AS GUARANTOR, (3) ▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED AS SECURITY TRUSTEE AND
AGENT AND (4) THE FINANCIAL INSTITUTIONS DEFINED THEREIN AS BANKS.
----------------------------------------------
1. Terms defined in the Facility Agreement have the same meaning when used
in this certificate.
2. [I/We], managing director(s) of PrimaCom AG, hereby certify that in
respect of the Quarterly Period ending on [ ]:
(a) As at the end of such Quarterly Period Total Debt was
EURO[ ].
As at the end of such Quarterly Period Annualised EBITDA was
EURO[ ].
As at the end of such Quarterly Period the ratio of Total Debt
to Annualised EBITDA was [ ].
Required Covenant:
Compliance: Yes/No
(b) As at the end of such Quarterly Period Net Senior Debt
was EURO[ ].
As at the end of such Quarterly Period Annualised EBITDA was
EURO[ ].
As at the end of such Quarterly Period the ratio of Net Senior
Debt to Annualised EBITDA was [ ].
Required Covenant:
Compliance: Yes/No
(c) Consolidated EBITDA for such Quarterly Period was EURO[ ].
Total Cash Interest Expense for such Quarterly Period was
[EURO].
As at the end of such Quarterly Period the ratio of
Consolidated EBITDA to Total Cash Interest Expense was [ ].
Required Covenant:
Compliance: Yes/No
(d) As at the end of such Quarterly Period Annualised EBITDA
was EURO[ ].
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As at the end of such Quarterly Period Pro Forma Debt Service
was EURO[ ].
As at the end of such Quarterly Period the ratio of Annualised
EBITDA to Pro Forma Debt Service was [ ].
Required Covenant:
Compliance: Yes/No
(e) As at the end of such Quarterly Period Annualised EBITDA
was EURO[ ].
As at the end of such Quarterly Period Pro Forma Cash Interest
Expense was EURO[ ].
As at the end of such Quarterly Period the ratio of Annualised
EBITDA to Pro Forma Cash Interest Expense was [ ].
Required Covenant:
Compliance: Yes/No
(f) As at the end of such Quarterly Period Capital Expenditure
was EURO[ ].
Required Covenant:
Compliance: Yes/No
Detailed calculations of Total Debt, Net Senior Debt, Annualised EBITDA,
Consolidated EBITDA, Total Cash Interest Expense, Pro Forma Debt Service, Pro
Forma Cash Interest Expense and Capital Expenditure are attached.
[I/We] confirm that having made due enquiry that no Event of Default or
Potential Event of Default has occurred, the Borrower was in compliance with the
covenants contained in sub-clauses 19.1, 19.2, 19.3, 19.4, 19.5, 19.6 and 19.7
of Clause 19 (FINANCIAL CONDITION) of the Facility Agreement as at [ ].
Yours faithfully,
---------------------
Managing Director of
PRIMACOM AG
- 88 -
SCHEDULE 6
QUARTERLY SUBSCRIBER CERTIFICATE
REGION Homes Passed Subscribers Penetration
Leipzig
Berlin
Osnabruck/Aachen
Wiesbaden/Mainz
Other
Internet Subscribers
Digital Subscribers
-------------------------------------------------------------------------------------------------------------
TOTAL EXISTING GROUP 0 0 0.00%
-------------------------------------------------------------------------------------------------------------
Acquisitions During Period
-------------------------------------------------------------------------------------------------------------
TOTAL GROUP 0 0 0.00%
-------------------------------------------------------------------------------------------------------------
- 89 -
THE BORROWER
PRIMACOM AG
By:
THE GUARANTOR
PRIMACOM MANAGEMENT GmbH
By:
THE ARRANGERS
▇.▇. ▇▇▇▇▇▇ PLC
By:
BARCLAYS CAPITAL
By:
DRESDNER BANK AG, LONDON BRANCH
By:
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
By:
TD BANK EUROPE LIMITED
By:
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THE BANKS
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ BANK
By:
BARCLAYS BANK PLC
By:
DRESDNER BANK AG LONDON BRANCH
By:
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By:
THE TORONTO DOMINION BANK
By:
THE AGENT
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax No: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
By:
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THE SECURITY TRUSTEE
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax No: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
By:
- 92 -