EXHIBIT 99.1
CONFORMED COPY
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DATED 16 MARCH 2001
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TELEWEST COMMUNICATIONS NETWORKS LIMITED
FACILITY A BORROWER, FACILITY B BORROWER AND FACILITY C BORROWER
TELEWEST COMMUNICATIONS NETWORKS LIMITED
AND
TELEWEST FINANCE CORPORATION
FACILITY D BORROWERS
BANK OF AMERICA INTERNATIONAL LIMITED
BNY MARKETS LIMITED
BARCLAYS CAPITAL
BAYERISCHE HYPO-UND VEREINSBANK AG
CIBC WORLD MARKETS PLC
CREDIT SUISSE FIRST BOSTON
DEUTSCHE BANK AG LONDON
THE FUJI BANK LIMITED
▇.▇. ▇▇▇▇▇▇ PLC
THE ROYAL BANK OF SCOTLAND PLC
SALOMON BROTHERS INTERNATIONAL LIMITED
TD BANK EUROPE LIMITED
WESTDEUTSCHE LANDESBANK GIROZENTRALE
AND
FORTIS BANK S.A./N.V.
LEAD ARRANGERS
CIBC WORLD MARKETS PLC
AND
CANADIAN IMPERIAL BANK OF COMMERCE
AGENTS
CIBC WORLD MARKETS PLC
SECURITY TRUSTEE
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LOAN AGREEMENT
FOR CREDIT FACILITIES OF
(POUND)2,000,000,000 TOGETHER WITH
AN INSTITUTIONAL FACILITY OF
UP TO (POUND)250,000,000
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CONTENTS
CLAUSE PAGE
1 Purpose and definitions.................................................................................................1
2 The Facilities.........................................................................................................32
3 Conditions.............................................................................................................34
4 Utilisations and Advances..............................................................................................35
5 Currencies in respect of Facility D....................................................................................38
6 Interest and Interest Periods; alternative interest rates..............................................................38
7 Repayment, prepayment and cancellation.................................................................................42
8 Fees and expenses......................................................................................................47
9 Payments and Taxes; accounts and calculations..........................................................................49
10 Representations and warranties.........................................................................................53
11 Positive covenants.....................................................................................................60
12 Negative covenants.....................................................................................................66
13 Financial covenants....................................................................................................70
14 Events of Default......................................................................................................73
15 Indemnities............................................................................................................78
16 Unlawfulness and Increased Costs; Mitigation..........................................................................79
17 Set-off and Pro Rata Payments..........................................................................................81
18 Assignment, Substitution, Lending Offices and Additional Borrowers.....................................................82
19 Lead Arrangers, Agent and Reference Lenders............................................................................85
20 Notices and other matters..............................................................................................91
21 Governing law and jurisdiction.........................................................................................93
Schedule 1 Part A - The Original Charging Subsidiaries of TCN...................................................................94
Part B - The Original Non-Charging Subsidiaries........................................................................97
Part C - The Original Charging Partnerships...........................................................................101
Part D - The Lead Arrangers...........................................................................................103
Part E - The Lenders and their Commitments............................................................................104
Schedule 2 Part A - Form of Drawdown Notice - Facility B Advances..............................................................108
Part A - Form of Drawdown Notice - Facility B Advances................................................................108
Part B - Form of Drawdown Notice - Facility A and D Advances..........................................................109
Part C Form of Rollover Notice........................................................................................110
Schedule 3 Part A - Documents and evidence required as conditions precedent to first drawdown..................................111
Part B Documents and evidence required as conditions subsequent.......................................................115
Schedule 4 Calculation of Additional Cost......................................................................................116
Schedule 5 Form of Substitution Certificate....................................................................................118
Schedule 6 Part A - Form of Compliance Certificate to be issued by an Authorised Officer of TCN................................121
Part B Form of Accountants Report to be issued by the Auditors of the TCN Group.......................................123
Schedule 7 Form of Deed of Subordination.......................................................................................125
Schedule 8 Encumbrances........................................................................................................136
Schedule 9 Facility D Lender Accession Agreement...............................................................................138
THIS AGREEMENT is dated 16 March 2001
BETWEEN:
(1) TELEWEST COMMUNICATIONS NETWORKS LIMITED as Facility A Borrower;
(2) TELEWEST COMMUNICATIONS NETWORKS LIMITED as Facility B Borrower;
(3) TELEWEST COMMUNICATIONS NETWORKS LIMITED as Facility C Borrower;
(4) TELEWEST COMMUNICATIONS NETWORKS LIMITED AND TELEWEST FINANCE
CORPORATION as Facility D Borrowers;
(5) THE SUBSIDIARIES OF TCN set out in part A of schedule 1;
(6) THE ASSOCIATED PARTNERSHIPS OF TCN set out in part C of schedule 1;
(7) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are
set out in part D of schedule 1 as Lead Arrangers;
(8) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are
set out in part E of schedule 1;
(9) CIBC WORLD MARKETS PLC and CANADIAN IMPERIAL BANK OF COMMERCE as the
Agents; and
(10) CIBC WORLD MARKETS PLC as Security Trustee.
IT IS AGREED as follows:
1 PURPOSE AND DEFINITIONS
1.1 PURPOSE
This Agreement sets out the terms and conditions upon and subject to
which the Lenders agree, according to their several obligations, to
make available to the Borrowers credit facilities of
(pound)2,000,000,000 comprising Facility A, Facility B and Facility C
and of up to (pound)250,000,000 comprising Facility D to be used for
the purposes set out below.
Facility A
----------
Facility A shall be used solely for the purpose of refinancing
outstandings under the TCN Loan Agreement and the Flextech Loan
Agreement.
Facility B
----------
Facility B shall be used for the purposes of:
(a) financing the general corporate purposes of the TCN Group
(including making payments to Telewest to finance payments of
interest then due on the Agreed Securities);
(b) the making of any payments not otherwise restricted by the
terms of the Finance Documents (including, for the avoidance
of doubt and without limitation, the repayment of principal on
Agreed Cash Management Loans to the extent not so restricted)
and (to the extent not refinanced by Facility A Advances and
Facility D Advances) the refinancing of outstandings under the
TCN Loan Agreement and the Flextech Loan Agreement;
(c) provided that no Default or Event of Default has occurred and
is continuing, refinancing the UAEH Loan Facilities together
with accrued interest thereon up to a maximum aggregate amount
of (pound)18,000,000; and
(d) subject to an aggregate limit of the principal of Advances
drawn down for such purpose of (pound)300,000,000 and such
acquisition constituting a Permitted Investment, financing of
the acquisition of any interest in the share capital or in the
business or undertaking of any company or other person
(including, without limitation, any partnership or joint
venture) operating a business reasonably related, ancillary or
complementary to the business of the TCN Group.
Facility C
----------
Facility C shall be used solely to finance the working capital
requirements of the TCN Group.
Facility D
----------
Facility D shall be used solely for the purpose of refinancing
outstandings under the TCN Loan Agreement and the Flextech Loan
Agreement, unless, on the relevant Drawdown Date, such outstandings
have already been refinanced in full by Facility A Advances and
Facility B Advances in which event Facility D shall be used solely for
the purposes of refinancing Facility B Advances.
TCN will ensure that the Borrowers use the Facilities exclusively for
the purposes set out above.
1.2 DEFINITIONS
In this Agreement, unless the context otherwise requires:
"ACCEDING FACILITY D LENDER" means any bank or financial institution
which executes a Facility D Lender Accession Agreement in accordance
with clause 18.9;
"ACCOUNTANTS REPORT" means a report substantially in the form set out
in schedule 6B, to be issued by the auditors of the TCN Group and which
is required to be delivered to the Agent pursuant to clause 11.1.9(d);
"ADDITIONAL COST" means in relation to any period and any Lender
lending from an office in the United Kingdom a percentage calculated
for such period at an annual rate determined by the application of the
formula set out in schedule 4;
"ADVANCE" means a Facility A Advance, a Facility B Advance or a
Facility D Advance (as applicable);
"AFFILIATE" means, in respect of any person, any person which is a
Subsidiary or Holding Company of that person or a Subsidiary of a
Holding Company of that person;
"AGENT" means the UK Agent or, in relation to payments, calculations,
notices and novations in respect of Facility D1 only and Relevant
Information given by or to a Facility D Lender who has a Facility D1
Commitment and/or a Facility D1 Contribution, the US Agent;
"AGENT'S SPOT RATE OF EXCHANGE" means the spot rate of exchange as
determined by the UK Agent for the purchase of the relevant euro or
Dollars (as the case may be) with Sterling in the London foreign
exchange market at or about 11 a.m. on the relevant day;
"AGREED CASH MANAGEMENT LOANS" means
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(a) loans of up to a principal aggregate amount
of(pound)130,000,000 made by Telewest to TCN prior to the date
of this Agreement; and
(b) any loans made by Telewest to TCN in cash after the date of
this Agreement from time to time which are so designated by
Telewest at the time that they are made by notification to the
Agent
provided that the aggregate outstanding principal amount thereof does
not exceed(pound)250,000,000;
"AGREED SECURITIES" means the $300,000,000 95/8% senior debentures due
2006 and the $1,536,413,000 11% senior discount debentures due 2007
issued by Telewest on 3 October 1995; the $350,000,000 11 1/4% senior
notes due 2008 issued by Telewest on 9 November 1998; the
(pound)300,000,000 5 1/4% senior convertible notes due 2007 issued by
Telewest on 19 February 1999; the (pound)325,000,000 97/8% senior
discount notes due 2009 and the $500,000,000 9 1/4% senior discount
notes due 2009 issued by Telewest on 15 April 1999; the $450,000,000
11?% senior discount notes due 2010 and the (pound)180,000,000 97/8%
senior notes due 2010; the $350,000,000 97/8% senior notes due 2010,
issued by Telewest on 19 January 2000; the $500,000,000 6% senior
convertible notes due 2005 issued by Telewest Finance (Jersey) Limited
on 7 July 2000; and any debt securities or preference shares issued by
Telewest or Telewest Finance (Jersey) Limited to the extent that the
proceeds thereof are used for the purpose of refinancing any of the
aforementioned issues of debt securities provided that such debt
securities or preference shares shall not be deemed to constitute
"Agreed Securities":
(a) to the extent that the principal amount of such debt
securities or preference shares exceeds the principal amount
of the debt securities and/or preference shares so refinanced;
and
(b) if they would otherwise constitute Agreed Securities under
paragraph (a) above:
(i) if such debt securities or preference shares are
issued on terms which include any change to the
negative covenants of the debt securities so
refinanced which are materially adverse to the
Finance Parties; or
(ii) if such debt securities or preference shares provide
for the repayment of all or any part of the principal
thereof on a date which is earlier than the dates on
which the relevant part of the principal of the
refinanced debt securities would have been payable;
or
(iii) if the total cash interest payments due in respect of
all Agreed Securities (taken together) during any
financial year of the TCN Group falling (in whole or
in part) during the period commencing on the date of
this Agreement and ending on the later of 31 December
2005 and the Relevant Date would be increased
following the issue of such debt securities or
preference shares.
For the purposes of this definition "Relevant Date" means the last day
of the last financial year of the TCN Group during which the most
recent Long Range Plan delivered to the Agent under this Agreement at
the time of issue of the relevant debt securities or preference shares
shows that the ratio of Total TCN Group Debt to Consolidated Annualised
TCN Group Net Operating Cash Flow at any time during such financial
year will be more than 3.5:1;
"ANCILLARY FACILITIES LETTER" means each letter entered into between a
Facility C Lender and the Facility C Borrower setting out the terms and
conditions governing its Facility C Commitment;
"ANNUAL BUDGET" means a budget in respect of the TCN Group for each
financial year containing information of the same type and to the same
level of detail as that for the financial year ending on 31 December
2001 or containing such other information or to such other level of
3
detail as has, at the relevant time, been approved in writing by the
Agent acting on the instructions of the Majority Lenders;
"ASSET SWAP" means any transaction involving the disposal by a TCN
Entity of a Swapped Asset in consideration for the acquisition by any
TCN Entity of an entity or business which is a Cable Operator (and, if
appropriate, payments of cash by or to a TCN Entity provided, however,
that any such transaction including payments of cash by a TCN Entity
which result in such payments exceeding in aggregate (pound)50,000,000
during the Finance Period shall not constitute an "Asset Swap");
"ASSOCIATED COMPANY" has the meaning attributed thereto in section 416
of the Income and Corporation Taxes ▇▇▇ ▇▇▇▇;
"ASSOCIATED PARTNERSHIP" means, in relation to a company, a partnership
that is controlled by that company, or by that company and one or more
of its Associated Companies together, and a company shall be regarded
as having control of a partnership for those purposes if (directly or
indirectly, including through intermediate Associated Partnerships) it
possesses, is entitled to, or is entitled to acquire:
(a) more than 50% of the assets of the partnership; or
(b) more than 50% of the income of the partnership
or if it (directly or indirectly, including through intermediate
Associated Partnerships) is able to direct how the affairs of the
partnership are conducted;
"AT & T" means AT&T Corporation, whose principal place of business is
at 32 Avenue of the Americas, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇;
"AUTHORISED OFFICER" means that officer or officers of Telewest or TCN
authorised to sign any certificates, notices, requests or confirmations
referred to in this Agreement or relating to the Facilities;
"BANKING DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London and, in respect of all
notice periods relating to Facility D1, New York and:
(a) (in relation to any date for payment or purchase of a currency
other than euro) the principal financial centre of the country
of that currency; or
(b) (in relation to any date for payment or purchase of euro) any
TARGET Day;
"BARCLAYS" means Barclays Bank PLC;
"BARCLAYS CAPITAL" means the investment banking division of Barclays
Bank PLC;
"BARCLAYS INDEBTEDNESS" means all indebtedness of Yorkshire Cable
Communications Limited, Sheffield Cable Communications Limited and
Yorkshire Cable Properties Limited under the Barclays Loan Agreements
and/or the Barclays Security together with interest, costs and expenses
payable in accordance with the relevant Barclays Loan Agreement and/or
Barclays Security;
"BARCLAYS INTERCREDITOR AGREEMENT" means the intercreditor agreement
entered into on or about the date of this Agreement between Yorkshire
Cable Communications Limited, Sheffield Cable Communications Limited,
Yorkshire Cable Properties Limited, Barclays and the Security Trustee;
"BARCLAYS LOAN AGREEMENTS" has the meaning given to it in the Barclays
Intercreditor Agreement;
4
"BARCLAYS SECURITY" has the meaning given to it in the Barclays
Intercreditor Agreement;
"BBC" means the British Broadcasting Corporation;
"BBC JOINT VENTURE" means UK Channel Management Limited (company
registration number 3322468) whose registered office is at Woodlands,
▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇;
"BBC JV SECURITY TRUSTEE'S UNDERTAKING" means the agreement entered
into or to be entered into between the Security Trustee, BBC Worldwide
Limited and Cheltrading 283 Limited;
"BBC JOINT VENTURE GROUP" means the BBC Joint Venture and its
Subsidiaries from time to time;
"BCFL" means Birmingham Cable Finance Limited, a company incorporated
in Jersey (No. 60972);
"BENEFICIARIES" means each of the Finance Parties, the Lessors, the
Hedge Counterparties and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
"BOND AND FLOATING CHARGES" means the first ranking bond and floating
charges, in the agreed form, to be entered into by each Original
Charging Subsidiary which is incorporated in Scotland in favour of the
Security Trustee;
"BORROWED MONEY" means Indebtedness (including, for the avoidance of
doubt, but without double counting, any guarantees of such
Indebtedness) in respect of (i) money borrowed or raised and debit
balances at banks, (ii) any bond, note, loan stock, debenture or
similar debt instrument, (iii) acceptance or documentary credit
facilities, (iv) receivables sold or discounted (otherwise than on a
non-recourse basis), (v) payments for assets or services acquired which
are deferred for a period of 150 days or more after the relevant assets
or services were supplied, (vi) hire purchase contracts, (vii) Finance
Leases, (viii) guarantees, bonds, standby letters of credit or other
instruments issued in connection with the performance of contracts to
the extent that the same are treated as borrowings in accordance with
GAAP and (ix) any other transaction (including without limitation
forward sale or purchase agreements and issues of redeemable shares)
having the commercial effect of a borrowing or raising of money entered
into for the purpose of financing a person's operational or capital
requirements provided that in making any calculation of Borrowed Money
under this Agreement no Indebtedness shall be taken into account more
than once;
"BORROWER" means the Facility A Borrower, the Facility B Borrower, the
Facility C Borrower and each of the Facility D Borrowers;
"CABLE OPERATOR" means a person operating a cable telephony and/or a
cable television system pursuant to Telecommunications, Cable and
Broadcasting Laws (and, if applicable, any related business including
without limitation the provision of internet services) or any person in
relation to which such person is a wholly owned (directly or
indirectly) Subsidiary;
"CABLE SYSTEMS" means the telecommunications and television systems
constructed or to be constructed or otherwise operated by the TCN Group
in accordance with applicable Telecommunications, Cable and
Broadcasting Laws and includes any part of any such system and all
modifications, substitutions, replacements, renewals and extensions
made to such systems;
"CHARGING PARTNERSHIPS" means the Original Charging Partnerships and
any other partnership which may from time to time accede to this
Agreement and any relevant Security Documents pursuant to a
Supplemental Deed;
5
"CHARGING SUBSIDIARIES" means the Original Charging Subsidiaries and
any other company which may from time to time accede to this Agreement
and any relevant Security Documents pursuant to a Supplemental Deed;
"CODE" means the United States Internal Revenue Code of 1986, as
amended and any rule or regulation issued thereunder from time to time
is in effect;
"COLLATERAL ACCOUNT AGREEMENTS" has the meaning given to such
expression in the Intercreditor Deed;
"COLLATERAL ACCOUNT SECURITY ASSIGNMENTS" has the meaning given to such
expression in the Intercreditor Deed;
"COMMITMENT" means, in relation to a Lender, the aggregate of its
Facility A Commitment and/or Facility B Commitment and/or Facility C
Commitment and/or Facility D Commitment;
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in schedule 6A in relation to the compliance (or otherwise)
with the undertakings in clause 13 below issued by an Authorised
Officer of TCN in relation to Quarterly Management Accounts;
"CONSOLIDATED ANNUALISED TCN GROUP NET OPERATING CASH FLOW" means, as
at the end of any Quarterly Period, four times the Consolidated TCN
Group Net Operating Cash Flow for such Quarterly Period;
"CONSOLIDATED TCN GROUP NET OPERATING CASH FLOW" means, in respect of
each Quarterly Period, Six Month Period or Twelve Month Period, as the
context requires, the aggregate of (i) the cash amount received by TCN
Group in respect of each Joint Venture during such period to the extent
that this does not exceed the pro rata amount of the Net Operating Cash
Flow of such Joint Venture for such period determined by reference to
the percentage shareholding of the TCN Group in the Joint Venture
provided that, after the occurrence of a JVIPO, this paragraph (i)
shall not apply in respect of any period during or following which
there would have been a breach of clause 12.1.18 had such clause
continued to apply after a JVIPO and (ii) the Net Income of the TCN
Group (plus any depreciation, amortisation, other non-cash expenses and
non-cash taxes and interest or other periodic fees, commissions and
charges in respect of Borrowed Money) but deducting any payments of the
kind referred to in paragraph (b)(i)(aa) of the definition of
"Permitted Payments" made during the relevant period and excluding (to
the extent included in the calculation of Net Income):
(a) all sums constituting Management Fees accrued but not paid in
respect of the relevant period to any member of the TCN Group
by any Restricted Person;
(b) any exceptional income (except to the extent that the same is
used to meet a related exceptional expense), net of any Taxes
paid or payable in respect of such income, of the TCN Group
during the relevant period;
(c) any interest income other than in respect of any JV Loan
Stock, net of any Taxes paid or payable in respect of such
income;
(d) any profits or losses attributable to the interest of the TCN
Group in any undertaking (as defined in section 259 Companies
Act 1985) which is not a subsidiary undertaking (as defined in
section 258 Companies Act 1985) of TCN for the relevant
period;
(e) any costs attributable to the start up of any interactive
businesses established by the TCN Group from time to time up
to a maximum of (pound)10,000,000 in the financial year 2001,
(pound)15,000,000 in the financial year 2002 and
(pound)20,000,000 in each subsequent financial year;
6
all as determined in accordance with GAAP (save that, in the case of
any period which includes all or part of any period ending on or before
31 March 2001, such determination shall be made as if the TCN Group on
the first Drawdown Date had been established as such throughout such
period) as used in the preparation of and as shown in the financial
statements or Quarterly Management Accounts in respect of such
Quarterly Period, Six Month Period or Twelve Month Period prepared and
delivered to the Agent pursuant to clause 11.1.6 below or clause 11.1.7
below (as the case may be);
"CONTRIBUTION" means, in relation to a Lender, the aggregate of such
Lender's Facility A Contribution, Facility B Contribution, Facility C
Contribution and Facility D Contribution at the relevant time;
"▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Limited (No. 2827426);
"DEED OF SUBORDINATION" means a deed of subordination to be entered
into between Telewest and the Security Trustee pursuant to the terms of
this Agreement, substantially in the form of schedule 7 or on terms
having substantially the same commercial effect as the form of schedule
7;
"DEFAULT" means any Event of Default or any event or circumstance which
with (i) the giving of any notice referred to in this Agreement, (ii)
the lapse of any period of time referred to in this Agreement or (iii)
the satisfaction of any other condition referred to in this Agreement
(or any combination of (i), (ii) and (iii) above) would constitute an
Event of Default;
"DOLLARS" and "$" means the lawful currency of the United States of
America;
"DRAWDOWN DATE" means the date, being a Banking Day, on which an
Advance is or is to be drawn down;
"DRAWDOWN NOTICE" means a notice substantially in the form of the
relevant part of schedule 2;
"(EURO)", "EURO" or "EUROS" means the single currency of the
Participating Member States;
"ENCUMBRANCE" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment, assignation, trust arrangement
or security interest of any kind securing any obligation of any person
or any other type of preferential arrangement (including without
limitation title transfer and/or retention arrangements having similar
effect);
"ENVIRONMENTAL CLAIM" means any claim, notice prosecution, demand,
action, official warning, abatement or other order (conditional or
otherwise) relating to Environmental Matters or any notification or
order requiring compliance with the terms of any Environmental Licence
or Environmental Laws;
"ENVIRONMENTAL LAWS" includes all or any applicable laws or regulations
of any governmental authority or agency or any regulatory body in any
jurisdiction relating to Environmental Matters;
"ENVIRONMENTAL LICENCE" includes any permit, licence, authorisation,
consent or other approval required at any time by any Environmental
Laws;
"ENVIRONMENTAL MATTERS" includes (a) nuisance, noise, defective
premises, health and safety at work or elsewhere and (b) the pollution,
conservation or protection of the environment (both natural and built)
or of man or any living organisms supported by the environment or any
other matter whatsoever affecting the environment or any part of it;
"ERISA" means the Employee Retirement Income Security Act of 1974;
7
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the US Borrower or any other
Affiliate, is treated as a single employer under Section 414(b) or (c)
of the Code or, solely for purpose of Section 302 of ERISA and Section
412 of the Code, is treated as a single employer under Section 414 of
the Code;
"ERISA PLAN" means any employee pension benefit plan subject to the
provisions of Title IV of ERISA or Section 412 of the Code or Section
302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such ERISA Plan were terminated, would under
Section 4069 of ERISA be deemed to be ) an "employer" as defined in
Section 3(5) of ERISA;
"EVENT OF DEFAULT" means any of the events or circumstances described
in clause 14.1 below;
"EXCESS CASH FLOW" means the Consolidated TCN Group Net Operating Cash
Flow for the relevant Twelve Month Period, as shown in the relevant
Compliance Certificate less (i) any Total TCN Group Cash Paying Debt
Interest Charges accrued during such Twelve Month Period, (ii) cash
repayments and/or prepayments of any Borrowed Money of the TCN Group
made during such Twelve Month Period, (iii) capital expenditure of the
TCN Group whether or not incurred to the extent that the same is
included in the Annual Budget for such Twelve Month Period as delivered
to the Agent under this Agreement, (iv) any cash amounts set aside to
make repayments of principal at the original scheduled maturity of the
Agreed Securities during the following Twelve Month Period and (v) any
amounts accrued in respect of Taxes which are attributable to such
Twelve Month Period;
"EXISTING FACILITIES" means each of the TCN Loan Agreement and the
Flextech Loan Agreement;
"FACILITIES" means each of Facility A, Facility B, Facility C and
Facility D and (as the context requires) "FACILITY" means any of them;
"FACILITY A" means the term loan facility granted by the Facility A
Lenders to the Facility A Borrower in accordance with clause 2.1.1;
"FACILITY A ADVANCE" means an advance made to a Facility A Borrower
under Facility A;
"FACILITY A AVAILABILITY PERIOD" means the period commencing on the
date of this Agreement and ending on the date of the Facility A Advance
or on the date falling ten Banking Days after the date of this
Agreement whichever is the earlier;
"FACILITY A BORROWER" means TCN;
"FACILITY A COMMITMENT" means, in relation to a Facility A Lender, the
amount set opposite its name in column 1 of part E of schedule 1 or, as
the case may be, in any relevant Substitution Certificate, as amended
by any relevant term of this Agreement;
"FACILITY A CONTRIBUTION" means, in respect of any Facility A Lender,
the principal amount of all Facility A Advances owing to it at the
relevant time;
"FACILITY A LENDERS" means the banks and financial institutions who
have a Facility A Commitment in part E of schedule 1 and includes their
successors in title and Substitutes;
"FACILITY A OUTSTANDINGS" means the aggregate principal amount of all
Facility A Advances which are, at the relevant time, outstanding;
"FACILITY A REPAYMENT DATE" means 31 March 2007;
"FACILITY A TOTAL COMMITMENTS" means the aggregate of the Facility A
Commitments of all the Facility A Lenders;
8
"FACILITY B" means the revolving credit facility granted by the
Facility B Lenders to the Facility B Borrower in accordance with clause
2.1.2;
"FACILITY B ADVANCE" means an advance made to the Facility B Borrower
under Facility B;
"FACILITY B AVAILABILITY PERIOD" means the period commencing on the
date of this Agreement and ending on 31 March 2007;
"FACILITY B BORROWER" means TCN;
"FACILITY B COMMITMENT" means, in relation to a Lender, the amount set
opposite its name in column 2 of part E of schedule 1 or, as the case
may be, in any relevant Substitution Certificate, as amended by any
relevant term of this Agreement;
"FACILITY B CONTRIBUTION" means, in respect of any Facility B Lender,
the principal amount of all Facility B Advances owing to it at the
relevant time;
"FACILITY B FINAL REPAYMENT DATE" means 31 March 2007;
"FACILITY B LENDERS" means the banks and financial institutions who
have a Facility B Commitment in part E of schedule 1 and includes their
successors in title and Substitutes;
"FACILITY B OUTSTANDINGS" means the aggregate principal amount of all
Facility B Advances which are, at the relevant time, outstanding;
"FACILITY B REPAYMENT DATE" means each date referred to in clause 7.2;
"FACILITY B TOTAL COMMITMENTS" means the aggregate of the Facility B
Commitments of all the Facility B Lenders;
"FACILITY C" means the ancillary facility granted by the Facility C
Lenders to the Facility C Borrower in accordance with clause 2.1.3;
"FACILITY C AVAILABILITY PERIOD" means the period commencing on the
date of this Agreement and ending on 31 March 2007;
"FACILITY C BORROWER" means TCN;
"FACILITY C COMMITMENT" means, in relation to a Facility C Lender, the
amount set opposite its name in column 3 of part E of schedule 1 or, as
the case may be, in any relevant Substitution Certificate, as amended
by any relevant term of this Agreement;
"FACILITY C CONTRIBUTION" means, in respect of any Facility C Lender,
the balance at the relevant time standing to the credit of the
ancillary facility account of the Facility C Borrower with such
Facility C Lender maintained pursuant to the relevant Ancillary
Facilities Letter having taken account of any Group pooling
arrangements entered into by members of the TCN Group with such
Facility C Lender;
"FACILITY C LENDERS" means the banks and financial institutions who
have a Facility C Commitment in part E of schedule 1 and includes their
successors in title and Substitutes;
"FACILITY C OUTSTANDINGS" means the aggregate of the Facility C
Contributions of all the Facility C Lenders;
"FACILITY C REPAYMENT DATE" means 31 March 2007;
"FACILITY C TOTAL COMMITMENTS" means the aggregate of the Facility C
Commitments of all the Facility C Lenders;
9
"FACILITY D" means the term loan facility granted by the Facility D
Lenders to the Facility D Borrowers in accordance with clause 2.1.4;
"FACILITY D ADVANCE" means a Facility D1 Advance, a Facility D2 Advance
or a Facility D3 Advance;
"FACILITY D AVAILABILITY PERIOD" means either (i) if on the date of
this Agreement the Facility D Total Commitments are more than zero, the
period commencing on the date of this Agreement and ending on the date
of the first Facility D Advance or the date falling ten Banking Days
after the date of this Agreement (whichever is the earlier) or (ii) if
the Facility D Lender Accession Agreement is entered into, the period
commencing on the date of the Facility D Lender Accession Agreement and
ending on the date of the first Facility D Advance or the date falling
ten Banking Days thereafter (whichever is the earlier);
"FACILITY D BORROWERS" means, in respect of Facility D1 Advances, the
US Borrower and, in respect of Facility D2 and Facility D3 Advances,
TCN;
"FACILITY D COMMITMENT" means, in relation to a Facility D Lender, the
aggregate for the time being of its:
(a) Facility D1 Commitment;
(b) Facility D2 Commitment; and
(c) Facility D3 Commitment;
"FACILITY D CONTRIBUTIONS" means, in respect of any Facility D Lender,
the aggregate of its Facility D1 Contribution, its Facility D2
Contribution and its Facility D3 Contribution;
"FACILITY D FINAL REPAYMENT DATE" means, subject to the proviso to
clause 7.4, 30 June 2008;
"FACILITY D LENDER ACCESSION AGREEMENT" means an agreement
substantially in the form of schedule 9;
"FACILITY D LENDERS" means the banks and financial institutions who
have a Facility D Commitment in part E of schedule 1, together with any
Acceding Facility D Lender and, in each case, includes their successors
in title and Substitutes;
"FACILITY D OUTSTANDINGS" means the aggregate of the Facility D1
Outstandings, the Facility D2 Outstandings and the Facility D3
Outstandings;
"FACILITY D REPAYMENT DATE" means each date referred to in clause 7.4;
"FACILITY D REPAYMENT INSTALMENT" has the meaning given to it in clause
7.4;
"FACILITY D TOTAL COMMITMENTS" means the aggregate of the Facility D1
Total Commitments, the Facility D2 Total Commitments and the Facility
D3 Total Commitments;
"FACILITY D1" means the Dollar denominated term loan facility which
forms a sub-tranche of Facility D;
"FACILITY D1 ADVANCE" means a Dollar denominated advance made to the US
Borrower under Facility D1;
"FACILITY D1 COMMITMENT" means, in relation to a Facility D Lender, the
aggregate of (i) the amount set opposite its name in column 4 of part E
of schedule 1 and (ii) the amount set opposite its name as its Facility
10
D1 Commitment in the Facility D Lender Accession Agreement and (iii)
the amount of any Facility D1 Commitment transferred or assigned to it
pursuant to this Agreement, in each case as amended by any relevant
term of this Agreement;
"FACILITY D1 CONTRIBUTION" means, in respect of any Facility D Lender,
the principal of all Facility D1 Advances owing to it at the relevant
time;
"FACILITY D1 OUTSTANDINGS" means the aggregate principal amount of all
Facility D1 Advances which are, at the relevant time, outstanding;
"FACILITY D1 TOTAL COMMITMENTS" means the aggregate of the Facility D1
Commitments of all the Facility D Lenders;
"FACILITY D2" means the Sterling denominated term loan facility which
forms a sub-tranche of Facility D;
"FACILITY D2 ADVANCE" means a Sterling denominated advance made to TCN
under Facility D2;
"FACILITY D2 COMMITMENT" means, in relation to a Facility D Lender, the
aggregate of (i) the amount set opposite its name in column 5 of part E
of schedule 1 and (ii) the amount set opposite its name in its Facility
D2 Commitment in the Facility D Lender Accession Agreement and (iii)
the amount of any Facility D2 Commitment transferred or assigned to it
pursuant to this Agreement, in each case as amended by any relevant
term of this Agreement;
"FACILITY D2 CONTRIBUTION" means, in respect of any Facility D Lender,
the principal of all Facility D2 Advances owing to it at the relevant
time;
"FACILITY D2 OUTSTANDINGS" means the aggregate principal amount of all
Facility D2 Advances which are, at the relevant time, outstanding;
"FACILITY D2 TOTAL COMMITMENTS" means the aggregate of the Facility D2
Commitments of all the Facility D Lenders;
"FACILITY D3" means the euro denominated term loan facility which forms
a sub-tranche of Facility D;
"FACILITY D3 ADVANCE" means a euro denominated advance made to TCN
under Facility D3;
"FACILITY D3 COMMITMENT" means in relation to a Facility D Lender, the
aggregate of (i) the amount set opposite its name in column 6 of the
part E of schedule 1 and (ii) the amount set opposite its name as its
Facility D3 Commitment in the Facility D Lender Accession Agreement and
(iii) the amount of any Facility D3 Commitment transferred or assigned
to it pursuant to this Agreement, in each case as amended by any
relevant term of this Agreement;
"FACILITY D3 CONTRIBUTION" means, in respect of any Facility D Lender,
the principal of all Facility D3 Advances owing to it at the relevant
time;
"FACILITY D3 OUTSTANDINGS" means the aggregate principal amount of all
Facility D3 Advances which are, at the relevant time, outstanding;
"FACILITY D3 TOTAL COMMITMENTS" means the aggregate of the Facility D3
Commitments of all the Facility D Lenders;
"FACILITY OFFICE" means the office specified in schedule 1, the
Facility D Lender Accession Agreement (if applicable) or in any
relevant Substitution Certificate (as the case may be) or which is
11
notified to the Agent pursuant to clause 18.7, as the office through
which a Lender will perform all or any of its obligations under this
Agreement;
"FINANCE DOCUMENTS" means this Agreement, the Security Documents, the
Ancillary Facilities Letters, any Substitution Certificate, (if
applicable) the Facility D Lender Accession Agreement, any letter
referred to in clause 8.1 or schedule 3 and any other document
designated as such in writing by the Agent and TCN;
"FINANCE LEASE" means a lease treated as a finance lease pursuant to
applicable accounting standards (including at the date of this
Agreement, Statement of Standard Accounting Practice 21);
"FINANCE PARTIES" means the Agents, the Lead Arrangers, the Lenders and
the Security Trustee (as the context requires) and "FINANCE PARTY"
means any one of them;
"FINANCE PERIOD" means the period from the date of this Agreement until
the date on which none of the Finance Parties and the Borrowers has any
actual or contingent liabilities or obligations under the Finance
Documents;
"FLEXTECH AGENT" means the agent under the Flextech Loan Agreement;
"FLEXTECH DIGITAL BROADCASTING" means Flextech Digital Broadcasting
Limited (No. 3298737) of ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"FLEXTECH LOAN AGREEMENT" means the loan agreement dated 25 January
2000 (as amended and restated on 11 April 2000) made between, inter
alia, Flextech Limited (formerly Flextech plc), Toronto Dominion Bank
Europe Limited (now known as TD Bank Europe Limited) as Arranger, and
certain banks and financial institutions set out therein;
"FLEXTECH OUTSTANDINGS" means the aggregate principal amount
outstanding in respect of the Flextech Loan Agreement together with all
unpaid interest thereon and any other amounts payable in relation
thereto;
"GAAP" means generally accepted accounting principles and practices in
the United Kingdom;
"GROSS ASSETS" means, at any time, the aggregate amount of assets (if
appropriate, on a consolidated basis) which would be included as
current assets, investments and fixed assets in a consolidated balance
sheet of the relevant entity drawn up at such time;
"GROUP POOLING ARRANGEMENTS" means arrangements pursuant to which any
Facility C Lender is entitled to pool balances of members of the TCN
Group into one ancillary facility account in the name of TCN maintained
pursuant to the Ancillary Facilities Letter;
"HEDGE COUNTERPARTIES" means those persons who have entered into
hedging arrangements with one or more TCN Entities which arrangements
hedge the interest rate and/or currency exposure of the Borrowers under
this Agreement, provided that that person (i) is or has become a party
to the Intercreditor Deed and (ii) unless such arrangements were
entered into prior to the date of this Agreement is a Lender (or an
Affiliate of a Lender);
"HOLDING COMPANY" in relation to any company or partnership means any
person of which the first mentioned company or partnership is a
Subsidiary;
"IMMATERIAL GROUP ENTITY" means any member of the TCN Group which is
not a Material Group Entity;
"INDEBTEDNESS" means any obligation for the payment or repayment of
money, whether as principal or as surety and whether present or future,
actual or contingent;
12
"INFORMATION MEMORANDUM" means the agreed form documents dated November
2000 and January 2001 distributed to prospective Lenders by The Bank of
New York, Chase Manhattan plc, CIBC World Markets plc and TD Bank
Europe Limited at the request of TCN in connection with this Agreement;
"INITIAL LONG RANGE PLAN" means the operational projections for the TCN
Group contained in the Information Memorandum;
"INTELLECTUAL PROPERTY RIGHTS" means any patent, trade ▇▇▇▇, service
▇▇▇▇, registered design, trade name or copyright required to carry on
the business of the TCN Group which is carried on at the relevant time;
"INTERCOMPANY LOAN AGREEMENT" means the agreement between TCN and the
US Borrower in the agreed form;
"INTERCREDITOR DEED" means the intercreditor deed dated on or about the
date of this Agreement between TCN, the US Borrower, Telewest, the
Original Charging Subsidiaries, the Original Charging Partnerships, the
financial institutions described therein as lenders, CIBC World Markets
plc as agent and security trustee, the Lead Arrangers, the Lessors, TCC
and YCG as lessees, the Lessors' Agent, the Hedge Counterparties and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in the agreed form;
"INTEREST PAYMENT DATE" means the last day of an Interest Period (and,
in the case of an Interest Period of more than six months, the dates
falling at six monthly intervals from the commencement of such Interest
Period);
"INTEREST PERIOD" means, in relation to any Advance, each period for
calculation of interest in respect of such Advance ascertained in
accordance with clauses 6.4 and 6.5;
"IVS" means IVS Cable Holdings Limited (a company incorporated in
Jersey (No. 41688);
"JERSEY SHARE PLEDGES" means the first ranking share pledges to be
entered into by (i) Birmingham Cable Limited (No. 2244565) over its
shares in Birmingham Cable Finance Limited (a company incorporated in
Jersey (No. 60972)) and (ii) Cheltrading 283 Limited and Flextech
(1992) Limited over each of their shares in IVS Cable Holdings Limited,
each in the agreed form;
"JOINT VENTURE" means each of the BBC Joint Venture, the UK Gold Joint
Venture and any other joint ventures between the BBC (or its
Affiliates) and any member of the TCN Group;
"JOINT VENTURE GROUP" means each of the UK Gold Group, the BBC Joint
Venture Group and any other joint venture between the BBC (or its
Affiliates) and any member of the TCN Group and the Subsidiaries of
such joint venture;
"JOINT VENTURE MATERIAL ADVERSE EFFECT" means a material adverse effect
on the value of the TCN Group's interests in the Joint Venture Groups
(taken together);
"JV DOCUMENTATION" means all documentation constituting each Joint
Venture from time to time (including, without limitation, any
subscription and shareholders agreements and any agreements documenting
the JV Loan Stock);
"JVIPO" means an initial public offering of shares in any member of any
Joint Venture Group (or any of its Holding Companies);
"JV LOAN STOCK" means any loan stock issued to any member of the TCN
Group in relation to any Joint Venture;
"LEAD ARRANGERS" means the banks and financial institutions listed in
part D of schedule 1;
13
"LEASES" has the meaning given to such expression in the Intercreditor
Deed;
"LENDERS" means the banks and financial institutions listed in part E
of schedule 1 and includes their successors in title and Substitutes;
"LESSOR COLLATERAL ACCOUNTS" has the meaning given to such expression
in the Intercreditor Deed;
"LESSORS" means Lloyds (Nimrod) Specialist Finance Limited, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Leasing (Number 4) Limited and Lombard Commercial Limited;
"LESSORS' AGENT" has the meaning given to such expression in the
Intercreditor Deed;
"LIBERTY" means Liberty Media Corporation of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America;
"LIBOR" means, in relation to a particular period:
(a) the arithmetic mean (expressed as a percentage rounded upwards
if necessary to the nearest four decimal places) of the
offered quotations for deposits of the relevant currency in an
amount approximately equal to the amount in relation to which
LIBOR is to be determined for a period equivalent to such
period which appears on the relevant page of the Telerate
Service at or about 11.00am on the applicable Rate Fixing Day;
or
(b) if no such offered quotation appears on the relevant page of
the Telerate Service the arithmetic mean (expressed as a
percentage rounded upwards if necessary to the nearest four
decimal places) of the rates respectively quoted to the UK
Agent by each of the Reference Lenders at the request of the
UK Agent as such Reference Lender's offered rate for deposits
of the relevant currency in an amount approximately equal to
the amount in relation to which LIBOR is to be determined for
a period equivalent to such period to prime banks in the
London Interbank Market at or about 11.00 a.m. on the
applicable Rate Fixing Day;
"LICENCES" means such licences as are from time to time issued to any
of the TCN Entities under any Telecommunications, Cable and
Broadcasting Laws;
"LONG RANGE PLAN" means the Initial Long Range Plan or, as the context
requires, any revised operational projections for the TCN Group
required to be produced for the purposes of paragraph (b)(cc) of the
definition of "Permitted Investments" or clause 11.1.9(f);
"MAJORITY BANK LENDERS" means Lenders the aggregate of whose Facility A
Contributions, Facility B Contributions and Facility C Contributions
and undrawn Facility A Commitments, the undrawn Facility B Commitments
and undrawn Facility C Commitments at any relevant time exceed 66 2/3
per cent. of the aggregate of the Facility A Outstandings, the Facility
B Outstandings and the Facility C Outstandings and the undrawn Facility
A Total Commitments, the undrawn Facility B Total Commitments and the
undrawn Facility C Total Commitments;
"MAJORITY INSTITUTIONAL LENDERS" means Lenders the aggregate of the
Sterling Amount of whose Facility D Contributions and undrawn Facility
D Commitments at any relevant time exceed 66 2/3 per cent. of the
aggregate of the Sterling Amount of the Facility D Outstandings and
undrawn Facility D Total Commitments;
"MAJORITY LENDERS" means Lenders the aggregate of the Sterling Amount
of whose Contributions and undrawn Commitments at any relevant time
exceeds 662/3 per cent. of the Sterling Amount of the Outstandings and
undrawn Total Commitments;
14
"MANAGEMENT FEES" means any management, consultancy or similar fees
payable by any TCN Entity to any Restricted Person or by any Restricted
Person to any TCN Entity, as applicable;
"MARGIN" means the rate per annum determined in accordance with clauses
6.2 or 6.3 (as applicable);
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
ability of the TCN Entities (taken as a whole) to perform all or any of
their respective material obligations under this Agreement;
"MATERIAL FINANCIAL ADVERSE EFFECT" means a material adverse effect on
the ability of the TCN Entities (taken as a whole) to perform all or
any of their respective payment obligations under any of the Finance
Documents;
"MATERIAL GROUP ENTITY" means any member of the TCN Group which is:
(i) a Subsidiary or an Associated Partnership which is a Holding
Company of a Material Group Entity or a Joint Venture; or
(ii) a Subsidiary or an Associated Partnership whose Gross Assets
or revenues or Net Operating Cash Flow (consolidated in the
case of a Subsidiary or Associated Partnership which itself
has Subsidiaries) exceed 3% of the Gross Assets or revenues of
the TCN Group or the Consolidated TCN Group Net Operating Cash
Flow, in either case as calculated by reference to the latest
audited accounts (consolidated or unconsolidated, as the case
may be) of the TCN Group and such Subsidiary or Associated
Partnership Provided that:
(a) in the case of a Subsidiary or Associated Partnership
acquired after the end of the financial period to
which the latest relevant audited accounts of the TCN
Group relate, the reference to the latest audited
accounts for the purposes of the calculation above
shall, until audited accounts for the financial
period in which the acquisition is made are
published, be deemed to be a reference to such
first-mentioned accounts as if such Subsidiary or
Associated Partnership had been shown in such
accounts by reference to its own latest audited
accounts adjusted as deemed appropriate by the
auditors of TCN, and a copy of the latest audited
accounts of such Subsidiary or Associated Partnership
shall be delivered to the Agent contemporaneously
with such acquisition; and
(b) if, in the case of any Subsidiary or Associated
Partnership which itself has Subsidiaries, no
consolidated accounts are prepared and audited, its
consolidated Gross Assets, its consolidated revenues
and its Net Operating Cash Flow, shall be determined
on the basis of pro forma consolidated accounts of
the relevant Subsidiary or Associated Partnership and
its Subsidiaries prepared for this purpose by the
auditors of TCN or the auditors for the time being of
the relevant Subsidiary or Associated Partnership and
a copy of such pro forma consolidated accounts of the
relevant Subsidiary or Associated Partnership and its
Subsidiaries shall be delivered to the Agent
contemporaneously with such accounts being issued; or
(iii) a Subsidiary or Associated Partnership not falling within
sub-paragraph (ii) 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 (ii) 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 Entity Provided that such Subsidiary or
Associated Partnership shall only become a Material Group
Entity upon the completion of such transfer or
re-organisation; or
15
(iv) a Subsidiary or an Associated Partnership which holds a
Licence which is required by applicable laws for the purposes
of the business of any Material Group Entity falling within
paragraphs (i) to (iii) above ;
"MICROSOFT" means Microsoft Corporation whose principal place of
business is at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇;
"MONTH" means a period beginning in one calendar month and ending in
the next calendar month on the day numerically corresponding to the day
of the calendar month on which it started, provided that (i) if the
period started on the last Banking Day in a calendar month or if there
is no such numerically corresponding day, it shall end on the last
Banking Day in such next calendar month and (ii) if such numerically
corresponding day is not a Banking Day, the period shall end on the
next following Banking Day in the same calendar month but if there is
no such Banking Day it shall end on the preceding Banking Day and
"months" and "monthly" shall be construed accordingly;
"NECESSARY AUTHORISATIONS" means all approvals, authorisations 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 necessary in order to enable
each member of the TCN Group to construct, maintain and operate the
Cable Systems and to carry on such other business as may be permitted
by the terms of this Agreement and which is carried on at the relevant
time;
"NET CASH PROCEEDS" means, with respect to any Asset Swap or other
sale, the aggregate amount of cash received from time to time in
connection with such transaction after deducting therefrom:
(a) any reasonable commissions, fees and expenses attributable to
the Asset Swap or sale;
(b) any reorganisation, restructuring or integration costs
associated with any assets received as part of any Asset Swap
or assets forming part of the relevant disposal or sale
provided that such costs do not exceed (pound)1,000,000 in
relation to any such Asset Swap or sale;
(c) the amount of Taxes payable in connection with or as a direct
result of the Asset Swap or sale;
(d) the amount of any Borrowed Money (and accrued interest
thereon), if any, required to be repaid upon such Asset Swap
or sale other than to a Finance Party pursuant hereto; and
(e) any amount subject to mandatory prepayment obligations
pursuant to an agreement or instrument in respect of Borrowed
Money;
provided that in the case of paragraphs (d) and (e) above, the relevant
asset which is the subject of such Asset Swap or sale was acquired
after the date hereof and was acquired subject to such Borrowed Money
and such Borrowed Money constitutes Permitted Borrowings;
"NET INCOME" means, in respect of any period and any person, the net
profit after Taxes of that person for such period, in the case of the
TCN Group, as determined in accordance with GAAP as used in the
preparation of and as shown in the financial statements or Quarterly
Management Accounts in respect of such period prepared and delivered to
the Agent pursuant to clause 11.1.6 or 11.1.7;
"NET OPERATING CASH FLOW" means the total of the Net Income of that
person but excluding the items referred to at sub-paragraphs (a) to (e)
(inclusive) in Consolidated TCN Group Net Operating Cash Flow for that
person;
16
"NEW FACILITY C BORROWER" means the TCN Entities which have acceded to
this Agreement as Facility C Borrower in accordance with clause 18.8;
"NEW INTEREST PROVISIONS" means the provisions of paragraph 29
(Deduction of tax (payments between companies etc.)) of the proposed
Resolutions of the Ways and Means Committee of the House of Commons
dated 7th March 2001, to be moved by The Chancellor of the Exchequer,
or provisions in the same terms as the provisions of such paragraph 29;
"NON-GUARANTEED LEASE" means any Finance Lease in respect of which no
guarantee has been issued pursuant to this Agreement;
"ORIGINAL CHARGING PARTNERSHIPS" means those partnerships whose names
and principal places of business are set out in part C of schedule 1;
"ORIGINAL CHARGING SUBSIDIARIES" means those companies whose names and
registered numbers are set out in part A of schedule 1;
"ORIGINAL NON-CHARGING SUBSIDIARIES" means those companies whose names
and registered numbers are set out in part B of schedule 1;
"OUTSTANDINGS" means the aggregate of the Facility A Outstandings, the
Facility B Outstandings, the Facility C Outstandings and the Facility D
Outstandings;
"PARENT UNDERTAKING" has the meaning given to such term in Section 258
Companies ▇▇▇ ▇▇▇▇;
"PARTICIPATING MEMBER STATE" means a member state of the European
Community that has adopted or adopts the euro as its currency in
accordance with legislation of the European Union relating to Economic
and Monetary Union;
"PERMITTED BORROWINGS" means:
(a) any Borrowed Money arising under the Finance Documents;
(b) any Borrowed Money included within Permitted Intra-TCN Group
Transactions or Permitted Guarantees;
(c) any Borrowed Money arising under interest rate protection
arrangements entered into by members of the TCN Group which
are not restricted by the terms hereof;
(d) any Borrowed Money (i) arising under Non-Guaranteed Leases in
aggregate not exceeding (pound)400,000,000 (ii) provided or
arranged by a supplier (or its Affiliates) of customer
premises equipment and/or related services to the TCN Group in
aggregate not exceeding (pound)200,000,000, provided that the
aggregate amount of Borrowed Money permitted to subsist
pursuant to this paragraph (d) shall not at any time exceed
(pound)500,000,000;
(e) Subordinated Debt;
(f) the Existing Facilities and provided that such facilities are
repaid or prepaid in full on the first Drawdown Date or
Utilisation Date (as the case may be);
(g) any Borrowed Money of any company acquired after the date
hereof as a Permitted Investment by any TCN Entity provided
(A) such Borrowed Money was not incurred in contemplation of
the acquisition by such TCN Entity of such company, (B) the
amount of such Borrowed Money is not increased beyond that at
the date the company in question was acquired and (C) such
Borrowed Money permitted by this paragraph (g) shall cease to
17
be permitted under this paragraph upon the date falling six
months after the date the relevant company was acquired;
(h) any Borrowed Money arising under a Second Secured Facility;
(i) any Borrowed Money not within paragraphs (a) to (h) above and
not exceeding at any time in aggregate(pound)55,000,000; and
(j) after 31 December 2004, any Borrowed Money not within
paragraphs (a) to (i) above provided that:
(i) such Borrowed Money is incurred after 31 December
2004;
(ii) no Default has occurred and is continuing at the date
of the incurrence of such Borrowed Money; and
(iii) on the two Quarter Days immediately preceding the
incurrence of such Borrowed Money (as shown in the
relevant Compliance Certificates), immediately after
the incurrence of such Borrowed Money and at all
times thereafter Total TCN Group Debt is less than
3.0 times Consolidated Annualised TCN Group Net
Operating Cash Flow;
"PERMITTED DISPOSALS" means:
(a) the application of cash in payments which are not otherwise
restricted by the terms of this Agreement and the Security
Documents (including, for the avoidance of doubt, Permitted
Investments, Permitted Loans and Permitted Payments);
(b) the sale or disposal of property or other assets (but
excluding any ownership interest in any of the TCN Entities)
on bona fide arms length commercial terms in the ordinary
course of business in consideration for, or to the extent that
the net proceeds of sale are applied within 90 days after such
sale in, the acquisition of assets of a similar nature and
approximately equal value to be used in the business;
(c) the disposal, for full market value, of any interest rate or
currency swap or other hedging instrument no longer required
for the purpose for which it was originally entered into;
(d) disposals within Permitted Intra-TCN Group Transactions;
(e) the disposal of assets pursuant to any sale and leaseback
transactions which are permitted by and fall within paragraph
(d) of the definition of Permitted Borrowings;
(f) any disposal by way of an Asset Swap, provided that:
(i) the aggregate relevant percentage value of all
Swapped Assets disposed of in relation to an Asset
Swap shall not exceed 15 per cent. in any financial
year and shall not exceed 25 per cent. in the Finance
Period. For the purpose of this sub-paragraph (i),
the "RELEVANT PERCENTAGE VALUE" of a Swapped Asset
means the percentage of the Consolidated TCN Group
Net Operating Cash Flow attributable to such Swapped
Asset in respect of the financial year ending prior
to the financial year in which the Swapped Asset is
disposed of and for the avoidance of doubt the value
will be calculated on a diminishing percentage basis
such that any percentage amount used at any time will
automatically reduce the remaining percentage
available for Asset Swaps;
18
(ii) any consideration received in cash in respect of the
Asset Swap is applied in or towards prepayment of the
Outstandings and cancellation of the Total
Commitments in accordance with clause 7.8;
(iii) no Default has occurred and is continuing or would
result from the Asset Swap;
(iv) TCN provides to the Agent prior to the completion of
the Asset Swap consolidated financial projections
which show that there will be compliance with the
financial covenants set out in clause 13.1 for the
period of 18 months following such transaction;
(v) an Authorised Officer of Telewest confirms in writing
to the Finance Parties prior to completion of the
Asset Swap that the Board of Directors of Telewest
are satisfied that the value of the asset acquired
plus any cash received is not less than the value of
the Swapped Asset;
(vi) to the extent required by clause 11.1.22, any asset
acquired in relation to the Asset Swap is charged (or
becomes subject to a charge) to the Security Trustee
pursuant to a Security Document contemporaneously
with the acquisition thereof unless the relevant
asset is at the date of the acquisition the subject
of a Permitted Encumbrance;
(vii) to the extent required by clause 11.1.22, any entity
acquired in relation to the Asset Swap accedes to the
TCN Debenture by the execution of a Supplemental Deed
save to the extent that (A) the assets of the entity
are at the date of acquisition the subject of a
Permitted Encumbrance and (B) that such accession is
not in breach of section 151 of the Companies ▇▇▇
▇▇▇▇ (provided, however, that in the case of (A), TCN
shall procure that the relevant Encumbrance is
released no later than the date falling six months
after the date of such Asset Swap and that the
relevant entity executes a Supplemental Deed
contemporaneously with such release and in the case
of (B) TCN shall procure that as soon as practicable
the directors of the relevant entity comply, to the
extent permitted by applicable law, with sections 155
to 158 of the Companies ▇▇▇ ▇▇▇▇ to ensure that there
is no breach of section 151 of the Companies Act
1985) and provides the Agent with such evidence as it
may reasonably request as to the power and authority
of such party to enter into such Supplemental Deed
and the legality, validity and enforceability of the
obligations created thereby. The parties hereto agree
that upon the execution and delivery of such
Supplemental Deed by all parties thereto such entity
shall become a party to this Agreement as a TCN
Entity and a party to each relevant Security Document
as a chargor; and
(viii) the consideration receivable in respect of any
Swapped Asset is received at the same time as the
Swapped Asset is transferred save for post completion
adjustments in respect of which adjustments there is
no more than (pound)10,000,000 outstanding at any
time;
(g) disposals of assets on bona fide arm's length commercial terms
by a member of the TCN Group where such assets are obsolete or
no longer required for the purposes of such member of the TCN
Group's business;
(h) disposals (other than disposals referred to in paragraphs (a)
to (h) above) with a value in aggregate for the TCN Group not
exceeding(pound)2,000,000 in any financial year; and
(i) disposals of any interest in a Joint Venture provided that
such disposal is on bona fide arms length commercial terms and
the proceeds are dealt with in accordance with clause 7.8.5;
19
"PERMITTED ENCUMBRANCES" means:
(a) any Encumbrance arising under the Finance Documents;
(b) any Encumbrance existing at the date hereof and set out in
schedule 8;
(c) any Encumbrance arising pursuant to the terms of the Existing
Facilities provided that all such Encumbrances are discharged
as soon as practicable on or after the date on which all the
respective obligations under each of the Existing Facilities
are discharged pursuant to clause 4.9;
(d) any Encumbrance arising pursuant to the terms of the Second
Secured Facility provided that any such Encumbrance ranks
behind the Encumbrances referred to in paragraph (a);
(e) any Encumbrance arising from any Finance Leases or sale and
leaseback arrangements constituting Permitted Borrowings;
(f) any Encumbrance arising in the ordinary course of business by
operation of law;
(g) any Encumbrance in favour of any Facility C Lender incurred
pursuant to any Group Pooling Arrangements;
(h) any rights of set-off arising in the normal course of
business;
(i) any retention of title of goods supplied to any member of the
TCN Group where such retention is agreed in the ordinary
course of its trading activities and on customary terms
provided that the purchase price relating to such goods is
required to be paid within 150 days of the date on which the
relevant goods are supplied;
(j) any Encumbrance (a "NEW ENCUMBRANCE") created by any member of
the TCN Group in substitution for any Encumbrance referred to
in paragraph (b) above (an "EXISTING ENCUMBRANCE") provided
that (i) such Existing Encumbrance is irrevocably and
unconditionally discharged no later than the time of creation
of the New Encumbrance, (ii) the New Encumbrance relates only
to the same assets as the Existing Encumbrance, (iii) the
Indebtedness secured by the New Encumbrance does not exceed
the Indebtedness secured by the Existing Encumbrance and (iv)
if required by the Agent, before such New Encumbrance is
entered into, the beneficiary thereof enters into a priorities
arrangement with the Agent and all of the Lenders in similar
terms to any existing priorities arrangement and otherwise in
form and substance reasonably satisfactory to the Agent;
(k) any Encumbrance over any assets or company which are acquired
after the date hereof as a Permitted Investment by any TCN
Entity subject to such Encumbrance provided (A) such
Encumbrance was not created in contemplation of the
acquisition by such TCN Entity of such assets or company, (B)
the debt secured by such Encumbrance is not increased beyond
that secured at the date the asset or company in question is
acquired and (C) any Encumbrance permitted by this paragraph
(k) shall cease to be permitted under this paragraph upon the
date falling six months after the date the assets or company
subject to such Encumbrance were acquired;
(l) any retention of title arrangements of customer premises
equipment in favour of a supplier (or its Affiliate) in
respect of Borrowed Money referred to in paragraph (d)(ii) of
the definition of Permitted Borrowings provided that title is
only retained to individual items of customer premises
equipment in respect of which the purchase price has not been
paid in full;
20
(m) any Encumbrance not within paragraphs (a) to (l) above and
securing Indebtedness in aggregate not exceeding
(pound)20,000,000 and where the assets the subject of such
Encumbrance have an aggregate book value not exceeding
(pound)25,000,000;
"PERMITTED FINANCIAL INVESTMENTS" means on any date investments in:
(i) securities which are freely negotiable and marketable:
(a) which mature not more than twelve months from that
date; and
(b) which are rated at least AA by Standard & Poor's
Corporation or Aa2 by ▇▇▇▇▇'▇ Investor Services,
Inc.; or
(ii) certificates of deposits, floating rate notes, acceptances
issued by and deposit and current accounts of and time
deposits with banks which are authorised institutions under
the Banking ▇▇▇ ▇▇▇▇ or by building societies under the
Building Societies ▇▇▇ ▇▇▇▇ or Sterling, Dollar or euro
denominated cash funds managed by any reputable financial
institution so long as such bank or building society's or cash
fund long term senior debt immediately prior to the making of
such an investment is not rated less than A by S&P and not
less than A2 by Moody's; and
(iii) commercial paper rated at least A1 by Standard & Poor's
Corporation or at least P1 by ▇▇▇▇▇'▇ Investor Services, Inc.,
with a maturity of not more than six months;
"PERMITTED GUARANTEES" means:
(a) any guarantees arising under the Finance Documents;
(b) any guarantees included within Permitted Intra-TCN Group
Transactions;
(c) any guarantees included within Permitted Borrowings;
(d) any guarantees granted other than in respect of Borrowed Money
in the ordinary course of trading;
(e) any guarantees not included in paragraphs (a) to (d)
(inclusive) above provided that the maximum liability
thereunder (actual or contingent) when aggregated with amounts
outstanding as Borrowed Money permitted by virtue of paragraph
(i) of the definition of Permitted Borrowings do not exceed in
aggregate (pound)55,000,000;
"PERMITTED INTRA-TCN GROUP TRANSACTIONS" means:
(a) loans made by a member of the TCN Group to a TCN Entity;
(b) any transaction approved as a Permitted Intra-TCN Group
Transaction by the Agent (acting on the instructions of the
Majority Lenders);
(c) the payment or declaration of any dividend, return on capital,
repayment of capital contributions or other distributions (i)
by any TCN Entity to a shareholder which is a TCN Entity or
(ii) by a member of the TCN Group (not being a TCN Entity) to
a member of the TCN Group;
(d) the purchase, acquisition, sale or disposal of assets or
revenues (including, without limitation, the acquisition of
any business or interest therein) (i) by a TCN Entity from or,
as the case may be, to another TCN Entity provided such assets
or revenues remain charged to the Security Trustee pursuant to
a Security Document or (ii) by a member of the TCN Group (not
21
being a TCN Entity) from or, as the case may be, to another
member of the TCN Group (not being a TCN Entity) or to a TCN
Entity;
(e) the purchase, subscription for, or other acquisition of any
share (or other securities or any interest therein) in any TCN
Entity by any other TCN Entity provided such shares are
charged to the Security Trustee pursuant to a Security
Document;
(f) the subscription for shares in any company on its formation or
the purchase of shares in any company which has not at any
time carried on any business (other than that associated with
its formation or any necessary administrative activities)
provided that, if required pursuant to clause 11.1.22, (i)
such shares are charged to the Security Trustee pursuant to a
Security Document and (ii) such company becomes a TCN Entity
pursuant to the provisions of this Agreement;
(g) in relation to the ordinary course of trading, the giving by
any TCN Entity of any guarantee, bond or indemnity in respect
of the liabilities or obligations of any other TCN Entity; and
(h) any transaction forming part of the TCN Group Restructuring;
"PERMITTED INVESTMENTS" means:
(a) any transaction included within Permitted Intra-TCN Group
Transactions;
(b) any acquisition of (i) the entire ownership interest in, or
(ii) any assets of, any person which is not a TCN Entity in
each case by a TCN Entity provided that:
(aa) the extent to which the consideration is funded by
the proceeds of the Advances is limited to monies
representing the proceeds of Facility B Advances up
to a maximum aggregate amount for all such
acquisitions during the Finance Period
of(pound)300,000,000 and any additional consideration
payable for such acquisition is satisfied entirely by
(A) the issue to the vendor of shares in Telewest
and/or (B) the payment of cash to the vendor provided
that, for the purposes of funding such payment,
Subordinated Debt has been lent to TCN or the
relevant TCN Entity and/or Telewest has subscribed in
cash for equity share capital in TCN (which share
capital is charged to the Security Trustee in
accordance with clause 12.1.6) in an aggregate amount
which is not less than the amount of such
consideration and is applied in satisfaction of such
consideration;
(bb) in the case of sub-paragraph (i) above, such person
becomes a TCN Entity contemporaneously with the
making of such acquisition or investment or, in the
case of sub-paragraph (ii) above, such assets are
charged (or become subject to a charge) to the
Security Trustee pursuant to a Security Document
contemporaneously with the acquisition thereof;
(cc) if the consideration payable for such acquisition, or
the aggregate consideration for all such
acquisitions, exceeds (pound)100,000,000, TCN has
delivered to the Agent prior to completion of the
acquisition a revised Long Range Plan which has been
submitted to and approved by the Majority Lenders and
which shows that there will be compliance with the
financial covenants set out in clause 13.1 throughout
the remaining part of the Finance Period; and
(dd) in the case of sub-paragraph (i) above the business
of such person is reasonably related, ancillary or
complementary to the business of the TCN Group or in
the case of sub-paragraph (ii) above such assets
22
consist of all or substantially all of the assets of
a business reasonably related, ancillary or
complementary to the business of the TCN Group;
(c) any acquisition of the entire ownership interest in, or any
acquisition of assets of, any person forming part of an Asset
Swap where the related disposal is a Permitted Disposal;
(d) the making of any Permitted Financial Investments;
(e) the making of any investment from (and including) 1 January
2001 by way of loan to or subscription for share capital in
any of the Joint Ventures up to a total aggregate amount of
(pound)100,000,000; and
(f) any transactions not within paragraphs (a) to (e) (inclusive)
above which would otherwise be prohibited under clause 12.1.8
where the value of the aggregate net consideration (in cash or
otherwise) paid by members of the TCN Group does not exceed
(pound)25,000,000 in aggregate during the Finance Period;
"PERMITTED LOANS" means:
(a) the making of any Permitted Financial Investments;
(b) any loans as a result of a Subscriber being granted, in the
ordinary course of trading, terms whereby it does not have to
pay for the services provided to it for a period after the
provision of such services;
(c) any transaction included within Permitted Intra-TCN Group
Transactions or paragraph (e) of Permitted Investments;
(d) any such transaction the principal amount of which, when
aggregated with the principal outstanding amount of other
transactions falling within this paragraph (d), does not
exceed (pound)5,000,000;
"PERMITTED PAYMENTS" means any payments or transfers of assets
(including Value Added Tax thereon, if applicable):
(a) to any Restricted Person in relation to contractual or other
arrangements (1) on bona fide arm's length commercial terms in
the ordinary course of business (other than any contractual or
other arrangements in relation to Borrowed Money) or (2) those
arrangements which exist at the date hereof and have been
agreed in writing by the UK Agent; or
(b) (i) payments by TCN to Telewest to fund:
(aa) costs and expenses of Telewest incurred in relation
to the TCN Group of up to(pound)5,000,000 in respect
of each financial year;
(bb) the payment by Telewest of cash interest or, at
original stated maturity, principal on the Agreed
Securities then due or which is to become due and
payable within 30 days;
(cc) the repayment of principal in respect of any advances
made by Telewest under Agreed Cash Management Loans;
or
(ii) by TCN to Telewest where such payment is by way of rental
payment under a sub-Finance Lease to fund the payment of
rental due on any Telewest (1996) Lease,
23
provided that (1) no Default has occurred and is continuing or
would result from the making of any payment under this
paragraph (b) and (2) in the case of any rental payment,
Telewest directs that such payment be made to (and such
payment is made to) the lessor under the corresponding
Telewest (1996) Lease to be applied in or towards discharging
Telewest's rental obligations under such Telewest (1996) Lease
and (3) in the case of any payment of principal on the Agreed
Securities, such repayment is contained in the Annual Budget
and such Annual Budget demonstrates no breach of the
undertakings at clause 13.1 after such repayment;
(c) consisting of dividends or other distributions provided that:
(i) on the two Quarter Days immediately preceding the
making of any such payment (adjusted as if such
payment had then been made) and immediately after
such payment the ratio of Total TCN Group Debt to
Consolidated Annualised TCN Group Net Operating Cash
Flow is less than 3.5 times; and
(ii) no Default has occurred and is continuing or would
result from the making of any payment under this
paragraph (c);
(d) payments to Telewest consisting of the proceeds of any release
of cash from the Lessor Collateral Accounts in accordance with
the terms of the Collateral Account Security Assignments,
provided that no Default has occurred and is continuing or
would result from the making of any payment under this
paragraph (d);
"PLEDGE AND SECURITY AGREEMENTS" means each of the first ranking pledge
and security agreements to be entered into in favour of the Security
Trustee by each of the partners in each of the Charging Partnerships
formed in the State of Colorado in substantially the agreed form;
"QUALIFYING LENDER" means, in respect of the relevant Lenders to
Facility A, Facility B, Facility C, Facility D2 and Facility D3:
(a)
(i) at all times after 31 March 2001 when the New
Interest Provisions have the force of law, under
section 1 Provisional Collection of Taxes ▇▇▇ ▇▇▇▇,
or under any other Act of Parliament, a person which
is beneficially entitled to the interest payable to
it under this Agreement, and which is:
(A) a company resident in the United Kingdom; or
(B) a partnership, each member of which is a
company resident in the United Kingdom; or
(C) a company which is not resident in the
United Kingdom which:
1) carries on a trade in the United
Kingdom through a branch or agency;
and
2) for which any payment of such
interest falls to be brought into
account in computing its chargeable
profits, within the meaning of
section 11(2) Income and
Corporation Taxes ▇▇▇ ▇▇▇▇; or
(ii) at all times:
(A) before 1 April 2001, or
24
(B) after 31 March 2001 when the New Interest
Provisions do NOT have the force of law,
a bank or financial institution being a "bank" within
the meaning of section 840A of the Income and
Corporation Taxes ▇▇▇ ▇▇▇▇, which is beneficially
entitled to any principal and interest payable to it
under this Agreement and any Security Document to
which it is a party and which is within the charge to
corporation tax as respects such interest, but so
that if either section 840A or section 349(3)(a) of
such Act is amended or repealed, this paragraph (iv)
of this definition shall be amended in such manner as
the Agent, after consultation with TCN, shall
determine to be necessary in order to define a bank
or financial institution whose circumstances most
closely correspond to a person as defined above; or
(b) a person, being a bank or financial institution or an export
credit agency (whether incorporated in the United Kingdom or
elsewhere), which, by virtue of the provisions of a double
taxation agreement between the United Kingdom and the country
of residence of that person (assuming compliance with any
filing or similar requirements envisaged in connection
therewith) is entitled to exemption from Taxes on interest and
is, subject only to a prior direction given to TCN by the
United Kingdom Inland Revenue pursuant to an application by
that person without the Borrower incurring any additional
expense or suffering any significant additional administrative
burden, eligible to have payments made to it by TCN under this
Agreement and any Security Document to which it is a party
without any deduction or withholding in respect of Taxes, and
for this purpose "double taxation treaty" means any convention
or agreement between the government of the United Kingdom and
any other government for the avoidance of doubt taxation and
the prevention of fiscal evasion with regard to Taxes on
income and capital gains.
"QUARTER DAYS" means 31st March, 30th June, 30th September and 31st
December in any year;
"QUARTERLY MANAGEMENT ACCOUNTS" means the quarterly management accounts
of the TCN Group to be delivered to the Agent pursuant to clause 11.1.7
in the agreed form or containing information of the same type as is
required by such form;
"QUARTERLY PERIOD" means each period of approximately three months
commencing on the day after a Quarter Day and ending on the next
following Quarter Day;
"RATE FIXING DAY" means (i) in the case of Sterling, the first day of
the relevant period, (ii) in the case of Dollars the second Banking Day
before the first day of the relevant period or (iii) in the case of
euro, the second Target Day before the first day of the relevant
period;
"REFERENCE LENDERS" means the principal London offices of The Royal
Bank of Scotland plc, CIBC World Markets plc and Barclays Bank PLC,
and/or any other Lender appointed as such pursuant to clause 19.12;
"REIMBURSEMENT AGREEMENT" means the agreement of such name to be
entered into between each of the Original Charging Partnerships and TCN
in the agreed form;
"RELATED FUND" means, with respect to any Facility D Lender that is a
fund that invests in commercial loans, any other fund that invests in
commercial loans and is administered or managed by (a) that Facility D
Lender, (b) any Affiliate of that Facility D Lender or (c) the same
investment adviser (or an Affiliate of that investment adviser) that
administers or manages that Facility D Lender;
"RELEVANT INFORMATION" means any notice, request, demand or other
communication under this Agreement or any document (including, without
limitation, financial information) required to be delivered under this
Agreement;
25
"RELEVANT SUBSTANCE" means (i) any radioactive emissions, (ii)
electricity and any electrical or electromagnetic emissions and (iii)
any substance whatsoever (whether in a solid or liquid form or in the
form of a gas or vapour and whether alone or in combination with any
other substance) which is capable of causing harm to man or any other
living organism supported by the environment (both natural and built),
or damaging the environment (both natural and built) or public health
or welfare;
"RENTAL" has, in relation to a Lessor, the meaning given to it in the
Lease Agreement to which that Lessor is a party;
"RESTRICTED PAYMENT" means (a) any direct or indirect distribution,
dividend, loan or other payment (whether in cash, property, securities
or otherwise) by any member of the TCN Group (including, without
limitation, any payment on account of the share capital of TCN or
capital stock or other securities of TCN) or any interest thereon, (b)
any transfer of any assets by any member of the TCN Group and (c) any
payment (whether in cash, property, securities or otherwise) of
principal of, or interest on, Subordinated Debt, in each case to any
Restricted Person;
"RESTRICTED PERSON" means any member of the Telewest Group other than
the TCN Entities;
"ROLLOVER NOTICE" means a notice substantially in the form of part C of
schedule 2;
"SCOTTISH SECURITY DOCUMENTS" means the Bond and Floating Charges and
the Share Pledges;
"SECOND SECURED FACILITY" means a facility of up to (pound)250,000,000
to TCN which has the benefit of security ranking second to the security
created by the Security Documents and which is subject to terms and
conditions to be agreed by the Agent acting on the instructions of the
Majority Lenders;
"SECURITY DOCUMENTS" means the TCN Debenture, the Deed of
Subordination, the Pledge and Security Agreements, the Telewest Loan
Assignment, the Reimbursement Agreement, the Scottish Security
Documents, the Share Charge, the Jersey Share Pledges, the BBC JV
Security Trustee's Undertaking, the UK Gold JV Security Trustee's
Undertaking, any Supplemental Deed, the Intercreditor Deed, the
Barclays Intercreditor Agreement, the TINTA Inter-Creditor Deed and all
other mortgages, charges, guarantees, indemnities and other instruments
from time to time entered into in favour of the Agent, the Security
Trustee and/or the Lenders by way of guarantee or other similar
assurance of and/or security for amounts owed to any of the
Beneficiaries;
"SECURITY TRUSTEE" means CIBC World Markets plc and/or such other
person as may be appointed as security trustee pursuant to any Security
Document (as the context requires);
"SENIOR DEBT INTEREST CHARGES" means, in relation to any period, the
total amount of all interest and similar periodic fees and commissions
accruing in respect of Total TCN Group Senior Debt during such period
plus net cash amounts paid or payable by the TCN Group or less net cash
amounts received or receivable by the TCN Group (as the case may be)
under interest rate or currency swaps or other hedging arrangements in
respect of such period;
"SHARE CHARGE" means the first ranking share charge entered into or to
be entered into by Telewest in favour of the Security Trustee over its
shares in TCN;
"SHARE PLEDGES" means the first ranking share pledges to be entered
into by certain Original Charging Subsidiaries over the shares in those
members of the TCN Group incorporated in Scotland (other than those
which are Original Non-Charging Subsidiaries) in the agreed form;
26
"SIX MONTH PERIOD" means each period of six months ending on the last
day of a calendar month;
"SPECIFIED SHAREHOLDERS" means AT&T, Microsoft and Liberty;
"STERLING" and "(POUND)" mean the lawful currency for the time being of
the United Kingdom and in respect of all payments to be made under this
Agreement in Sterling means immediately available, freely transferable
cleared funds;
"STERLING AMOUNT" means:
(a) in respect of Contributions and undrawn Commitments expressed
in Sterling, the amount thereof; and
(b) in respect of Contributions and undrawn Commitments not
expressed in Sterling, the Sterling equivalent thereof
calculated using the Agent's Spot Rate of Exchange on the date
which is two Banking Days before the date of this Agreement
(or if the Contribution or undrawn Commitment in respect of a
Facility D Lender Accession Agreement, the date thereof);
"SUBORDINATED DEBT" means, at any relevant time, all Indebtedness of
the TCN Entities owed to a Restricted Person who has entered into a
Deed of Subordination;
"SUBSCRIBER" means a person who has entered into an agreement (which
has not expired or been terminated) with a TCN Entity to be provided
with services by a TCN Entity through the operation of the Cable
Systems;
"SUBSIDIARY" of a person means (a) any company or entity directly or
indirectly controlled by such person (for which purpose "control" means
either ownership of more than 50 per cent. of the voting share capital
(or equivalent right of ownership) of such company or entity or power
to direct its policies and management whether by contract or otherwise
or the right to receive more than 50 per cent. of any distributions (of
whatever nature) made in respect of the share capital or other
ownership interests of such company or entity) and (b) (for the purpose
only of the preparation of the financial statements and the Quarterly
Management Accounts to be prepared pursuant to clauses 11.1.6 and
11.1.7 and the undertakings in clause 12.1) in the case of a company
incorporated in England and Wales or Scotland, a Subsidiary
Undertaking;
"SUBSIDIARY UNDERTAKING" has the meaning given to such term in section
258 Companies ▇▇▇ ▇▇▇▇;
"SUBSTITUTE" has the meaning ascribed thereto in clause 18.3;
"SUBSTITUTION CERTIFICATE" means a certificate substantially in the
form of schedule 5;
"SUPER MAJORITY LENDERS" means Lenders the aggregate of the Sterling
Amount of whose Contributions and undrawn Commitments at any relevant
time exceeds 95 per cent of the aggregate of the Sterling Amount of the
Outstandings and undrawn Total Commitments;
"SUPPLEMENTAL DEED" means a deed supplemental to this Agreement, the
TCN Debenture and certain of the other Security Documents executed,
inter alias, by a member of the TCN Group in the form of schedule 4 to
the TCN Debenture or in such other form as is agreed between the Agent
and TCN whereby such Subsidiary or Associated Partnership becomes a
party to this Agreement and any relevant Security Document as a
Charging Subsidiary or Charging Partnership, as the case may be;
"SWAPPED ASSET" means shares in, or the entire assets and business of,
any member of the TCN Group (other than TCN) which is a Cable Operator;
27
"TARGET DAY" means a day on which the Trans-european Automated
Real-Time Gross Settlement (TARGET) System is operating;
"TAX ON OVERALL NET INCOME" of a person shall be construed as a
reference to Tax (other than Tax deducted or withheld from any payment)
imposed on that person by any jurisdiction on:
(i) the net income profits or gains of that person worldwide; or
(ii) such of its income, profits or gains as arise in or relate to
the jurisdiction in which it is resident or in which its
principal or lending office is located;
"TAXES" includes all present and future taxes, levies, imposts, duties,
fees or charges of a similar nature together with interest thereon and
penalties in respect thereof and "Taxation" shall be construed
accordingly;
"TCC" means The Cable Corporation Limited (No. 2075227);
"TCN" means Telewest Communications Networks Limited (No. 3071086)
whose registered office is at ▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"TCN AGENT" means CIBC World Markets plc as agent under the TCN Loan
Agreement;
"TCN DEBENTURE" means the first ranking composite guarantee and
debenture (including, inter alia, a charge over the JV Loan Stock and
charges over Cheltrading 283 Limited's shares in the Joint Ventures)
entered into or to be entered into by each TCN Entity in favour of the
Security Trustee in the agreed form;
"TCN ENTITIES" means TCN, the US Borrower, each Original Charging
Subsidiary and each Original Charging Partnership together with any
company or partnership which is or becomes a party to this Agreement
and the relevant Security Documents pursuant to clause 11.1.22;
"TCN FRANCHISES" means those areas in which the TCN Group is permitted
by applicable laws to operate cable television and/or cable
telecommunications systems;
"TCN GROUP" means TCN, all its Subsidiaries and all its Associated
Partnerships from time to time;
"TCN GROUP RESTRUCTURING" means the acquisition or disposal of shares
or partnership interests in members of the TCN Group and Subsidiaries
of Flextech Limited (formerly Flextech plc) on or after the date of
this Agreement, but before or on the first Drawdown Date so that the
TCN Group is in all material respects as set out in the group structure
chart deliver to the Agent pursuant to part A of schedule 3 on the
first Drawdown Date;
"TCN LOAN AGREEMENT" means the Loan Agreement dated 17 May 1999 made
between, inter alia, TCN, certain subsidiaries and partnerships of TCN
set out in part A of schedule 1 therein and The Bank of New York, CIBC
World Markets plc, Chase Investment Bank Limited, NatWest Markets and
The Toronto-Dominion Bank as lead arrangers as amended;
"TCN OUTSTANDINGS" means the aggregate principal amount outstanding in
respect of the TCN Loan Agreement together with all unpaid interest
thereon and any other amounts payable in relation thereto;
"TELECOMMUNICATIONS, CABLE AND BROADCASTING LAWS" means the
Telecommunications ▇▇▇ ▇▇▇▇, the Cable and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the
Broadcasting ▇▇▇ ▇▇▇▇ (together with the Broadcasting Act 1996) and all
other laws, statutes, regulations and judgments relating to
broadcasting or telecommunications or cable television or broadcasting
applicable to any member of the TCN Group, and/or the business carried
28
on by, any member of the TCN Group (for the avoidance of doubt, not
including laws, statutes, regulations or judgments relating solely to
consumer credit, data protection or intellectual property);
"TELEWEST" means Telewest Communications plc (No. 2983307);
"TELEWEST GROUP" means Telewest, all its Subsidiaries and all its
Associated Partnerships;
"TELEWEST (1996) LEASE" means a Finance Lease of tangible and/or
intangible assets by Telewest where such assets are the subject of a
sub-Finance Lease between Telewest and a member of the TCN Group
including without limitation, the Finance Lease dated 28 March 1996
between Telewest and R.B. Leasing (March) Limited (as assigned on 29
March 1999 to Royal Bank of Scotland (Industrial Leasing) Limited;
"TELEWEST LOAN ASSIGNMENT" means the first ranking assignment by way of
security to be entered into by Telewest of Telewest's rights in and to
the Subordinated Debt in the agreed form;
"TERM" means, in relation to a Facility B Advance, the period for which
such Facility B Advance is or is to be made, as specified in the
Drawdown Notice or Rollover Notice for such Facility B Advance, or as
otherwise determined in accordance with the provisions of this
Agreement;
"TERM DATE" means, in relation to a Facility B Advance, the last day of
the Term of such Facility B Advance;
"TINTA" means Tele-Communications International, Inc., a Delaware
Corporation whose principal place of business is at Terrace Tower II,
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇.▇.;
"TINTA INTER-CREDITOR DEED" means the agreement entered into between
TINTA, Flextech Digital Broadcasting Limited, the Security Trustee and
the BBC Joint Venture;
"TOTAL COMMITMENTS" means at any relevant time the aggregate of the
Facility A Total Commitments, the Facility B Total Commitments, the
Facility C Total Commitments and the Facility D Commitments at such
time;
"TOTAL FACILITY A COMMITMENTS" means the aggregate of the Facility A
Commitments of all the Facility A Lenders;
"TOTAL FACILITY B COMMITMENTS" means the aggregate of the Facility B
Commitments of all the Facility B Lenders;
"TOTAL FACILITY C COMMITMENTS" means the aggregate of the Facility C
Commitments of all the Facility C Lenders;
"TOTAL FACILITY D COMMITMENTS" means aggregate of the Facility D
Commitments of all the Facility D Lenders;
"TOTAL TCN GROUP CASH PAYING DEBT" means that part of Total TCN Group
Debt in respect of which interest and any other periodic charges
(except expenses and any one-off fees paid otherwise than in lieu of
interest or discount) is at that time paid or payable in relation
thereto;
"TOTAL TCN GROUP CASH PAYING DEBT INTEREST CHARGES" means, in relation
to any period, the total amount of all interest and periodic fees and
commissions accruing in respect of Total TCN Group Cash Paying Debt
during such period plus net cash amounts paid or payable by Telewest
and its Subsidiary Undertakings or less net cash amounts received or
29
receivable by Telewest and its Subsidiary Undertakings (as the case may
be) under interest rate or currency swaps and other hedging
arrangements, either, in the case of members of the TCN Group, allowed
under this Agreement and relating to Total TCN Group Senior Debt or, in
the case of Telewest or any of its other Subsidiary Undertakings,
relating to Agreed Securities, in each case in respect of such period;
"TOTAL TCN GROUP DEBT" means the aggregate consolidated amount of (a)
Total TCN Group Senior Debt and (b) the amount of the Agreed
Securities;
"TOTAL TCN GROUP SENIOR DEBT" means the aggregate consolidated amount
of all Borrowed Money of the TCN Group which is not Subordinated Debt;
"TREATY" means the Treaty establishing the European Community as
amended by the Treaty on European Union;
"TWELVE MONTH PERIOD" means each period of twelve months ending on the
last day of a calendar month;
"UAEH LOAN FACILITIES" means the loan facility of an initial principal
amount of (pound)10,000,000 and capitalised interest thereon granted to
Flextech Limited (formerly Flextech plc) and its Subsidiaries by United
Artists European Holdings Limited on 1 February 1994;
"UK AGENT" means CIBC World Markets plc of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ in its capacity as agent under or in connection
with Facility A, Facility B, Facility C, Facility D2 and Facility D3 or
such other person as may be appointed as UK Agent pursuant to clause
19.11;
"UK GOLD" means UK Gold Television Limited;
"UK GOLD GROUP" means the UK Gold Joint Venture and its Subsidiaries
from time to time;
"UK GOLD JOINT VENTURE" means UK Gold Holdings Limited (company
registration number 3298738) whose registered office is at ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇;
"UK GOLD SECURITY TRUSTEE'S UNDERTAKING" means the agreement entered or
to be entered into between the Security Trustee, BBC Worldwide Limited
and Cheltrading 283 Limited;
"US AGENT" means Canadian Imperial Bank of Commerce in its capacity as
agent under or in connection with Facility D1 or such other person who
may be appointed as US Agent pursuant to clause 19.11;
"US BORROWER" means Telewest Finance Corporation, a Delaware
Corporation, whose principal office is at Corporation Trust Center,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of New Castle, State of
Delaware;
"UTILISATION" means each utilisation made by the Facility C Borrower
under Facility C;
"UTILISATION DATE" means the date being a Banking Day on which a
Utilisation is to be made;
"WAG NATWEST DEBENTURE" means the mortgage debenture given by The Way
Ahead Group Limited in favour of National Westminster Bank plc dated 15
January 1999; and
"YCG" means The Yorkshire Cable Group Limited (No. 2782818).
30
1.3 HEADINGS
Clause headings and the table of contents are inserted for convenience
of reference only and shall be ignored in the interpretation of this
Agreement.
1.4 CONSTRUCTION OF CERTAIN TERMS
In this Agreement, unless the context otherwise requires:
1.4.1 references to clauses and schedules are to be construed as references
to the clauses of, and schedules to, this Agreement and references to
this Agreement include its schedules;
1.4.2 references to (or to any specified provision of) this Agreement or any
other document shall be construed as references to this Agreement, that
provision or that document as in force for the time being and as from
time to time amended in accordance with the terms thereof, or, as the
case may be, with the agreement of the relevant parties and (where such
consent is, by the terms of this Agreement or the relevant document
required to be obtained as a condition to such amendment being
permitted) the prior written consent of the relevant Agent, all of the
Lenders, the Majority Institutional Lenders, the Super Majority
Lenders, the Majority Bank Lenders or the Majority Lenders (as the case
may be);
1.4.3 reference to a "regulation" include any present or future regulation,
rule, directive, requirement, request or guideline (whether or not
having the force of law) of any agency, authority, central bank or
government department or any self-regulatory or other national or
supra-national authority;
1.4.4 words importing the plural shall include the singular and vice versa;
1.4.5 references to a time of day are to London time;
1.4.6 references to a person shall be construed as including references to an
individual, firm, company, corporation, unincorporated body of persons
or any State or any agency thereof and that person's successors in
title;
1.4.7 reference to a document "in the agreed form" means in the form of a
draft of such document initialled by way of identification by the Agent
and TCN or by their respective lawyers on their behalf or, where no
such draft is so initialled, in the form to be agreed between TCN and
the Agent and both such parties hereby agree to negotiate in good faith
to agree such form;
1.4.8 references to a "guarantee" include references to an indemnity or other
assurance against financial loss including, without limitation, an
obligation to purchase assets or services as a consequence of a default
by any other person to pay any Indebtedness and "guaranteed" shall be
construed accordingly;
1.4.9 reference to "set-off" includes retention, compensation and the
balancing of accounts under Scots law;
1.4.10 references to any enactment shall be deemed to include references to
such enactment as re-enacted, amended or extended;
1.4.11 reference to "business" in relation to any member of the TCN Group mean
any business referred to in clause 11.1.5 which such member of the TCN
Group engages in, and references to "ordinary course of business" in
relation to any member of the TCN Group shall be similarly construed;
1.4.12 unless expressly provided to the contrary in this Agreement, a person
who is not a party to this Agreement may not enforce any of its terms
under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇;▇▇▇
31
1.4.13 For the purposes of the definitions of "Excess Cash Flow" and
"Permitted Payments", references to payments of interest on or
principal of Agreed Securities (or interest accruing in respect of
Agreed Securities) shall be calculated by, inter alia, adding net cash
amounts paid or payable by Telewest and Telewest Finance (Jersey)
Limited and deducting net cash amounts received or receivable by
Telewest and Telewest Finance (Jersey) Limited (as the case may be)
under interest rate and currency swaps or other hedging arrangements
which relate to the relevant Agreed Securities and the relevant payment
or period (as the case may be).
1.5 MAJORITY LENDERS
Where this Agreement provides for any matter to be determined by
reference to the opinion of the Super Majority Lenders, the Majority
Lenders, the Majority Bank Lenders or the Majority Institutional
Lenders or to be subject to the consent or request of the Super
Majority Lenders, the Majority Lenders, the Majority Bank Lenders or
the Majority Institutional Lenders or for any action to be taken on the
instructions of the Super Majority Lenders, Majority Lenders, the
Majority Bank Lenders or the Majority Institutional Lenders, such
opinion, consent, request or instructions shall (as between the
relevant Lenders) only be regarded as having been validly given or
issued by the Super Majority Lenders, the Majority Lenders, the
Majority Bank Lenders or the Majority Institutional Lenders (as the
case may be) if all of the relevant Lenders shall have received
appropriate prior notice of the matter on which such opinion, consent,
request or instructions are required to be obtained and the relevant
majority of Lenders shall have given or issued such opinion, consent,
request or instructions but TCN and each other TCN Entity shall be
entitled (and bound) to assume that such notice shall have been duly
received by each relevant Lender and that the relevant majority, as
determined by the Agent, shall have been obtained to constitute the
Super Majority Lenders, Majority Lenders, Majority Bank Lenders or
Majority Institutional Lenders (as the case may be) whether or not this
is in fact the case.
1.6 AGENT'S OPINION
Where this Agreement provides for the Agent's opinion to determine
whether any matter would have or would be reasonably likely to have a
Material Financial Adverse Effect, a Material Adverse Effect, a Joint
Venture Material Adverse Effect or a material adverse effect, as the
case may be, the Agent shall act in accordance with the instructions of
the Majority Lenders (acting reasonably) in making such determination.
2 THE FACILITIES
2.1 AMOUNT
The relevant Lenders, relying upon each of the representations and
warranties in clause 10 and in the Security Documents, agree to make
available, in each case subject to the terms and conditions of this
Agreement, to:
2.1.1 the Facility A Borrower, a term loan facility in the principal sum
of(pound)500,000,000;
2.1.2 the Facility B Borrower, a reducing revolving credit facility in the
principal sum of(pound)1,450,000,000;
2.1.3 the Facility C Borrower, committed ancillary facilities in the
principal sum of(pound)50,000,000; and
2.1.4 the Facility D Borrowers, a term loan facility in the principal sum of
(pound)250,000,000, comprising a dollar sub-tranche, a Sterling
sub-tranche and a euro sub-tranche.
The obligation of each Facility A Lender, each Facility B Lender and
each Facility D Lender under this Agreement shall be to contribute that
proportion of each Facility A Advance, Facility B Advance, Facility D1
32
Advance, Facility D2 Advance or Facility D3 Advance which, as at the
Drawdown Date of such Advance, its Facility A Commitment, Facility B
Commitment, Facility D1 Commitment, Facility D2 Commitment or Facility
D3 Commitment (as the case may be) bears to the Facility A Total
Commitments, the Facility B Total Commitments, the Facility D1 Total
Commitments, the Facility D2 Total Commitments or the Facility D3 Total
Commitments (as the case may be). The obligation of each Facility C
Lender shall be governed by the terms of its Ancillary Facilities
Letter, save that in the event of any conflict between this Agreement
and the relevant Ancillary Facilities Letter (insofar as they relate to
matters specifically set out in this Agreement in relation to Facility
C), the terms of this Agreement shall prevail.
2.2 FACILITY LIMITS
2.2.1 The Facility A Outstandings shall not at any time exceed the Total
Facility A Commitments;
2.2.2 The Facility B Outstandings shall not at any time exceed the Total
Facility B Commitments;
2.2.3 The Facility C Outstandings shall not at any time exceed the Total
Facility C Commitments;
2.2.4 The Facility D1 Outstandings shall not at any time exceed the Facility
D1 Total Commitments;
2.2.5 The Facility D2 Outstandings shall not at any time exceed the Facility
D2 Total Commitments;
2.2.6 The Facility D3 Outstandings shall not at any time exceed the Facility
D3 Total Commitments.
2.3 DRAWDOWN AVAILABILITY
2.3.1 Save for a Facility B Advance to be rolled over pursuant to clauses 4.3
or 4.4 below or to be made following the assumption of a Facility B
Commitment by a Facility C Lender, pursuant its clauses 7.3 no Facility
A Advance, Facility B Advance, Facility D Advance or Utilisation shall
be made to the extent that Total TCN Group Senior Debt on such day
(adjusted to take into account the principal amount of any proposed
Advance or Utilisation or other Borrowed Money to be made or repaid on
such day) divided by Consolidated Annualised TCN Group Net Operating
Cash Flow (determined as at the end of the most recently ended
Quarterly Period in respect of which Quarterly Management Accounts have
been delivered to the Agent under this Agreement) exceeds the number
set out in column (2) below against the period in column (1) below in
which the relevant Drawdown Date or Utilisation Date falls:
33
(1) (2)
PERIOD MAXIMUM TOTAL TCN GROUP SENIOR DEBT DIVIDED BY
CONSOLIDATED ANNUALISED TCN GROUP NET OPERATING CASH FLOW
from the date of this Agreement to (and including) 31 6.50
March 2002
From (and including) 1 April 2002 to (and including) 30 6.00
September 2002
From (and including) 1 October 2002 to (and including) 5.75
31 March 2003
From (and including) 1 April 2003 to (and including) 30 5.00
September 2003
From (and including) 1 October 2003 to (and including) 4.50
31 March 2004
From (and including) 1 April 2004 to (and including) 30 3.50
September 2004
From (and including) 1 October 2004 and thereafter 3.00
2.4 OBLIGATIONS SEVERAL
The obligations of each Lender under this Agreement are several; the
failure of any Lender to perform such obligations shall not relieve any
other Finance Party or any TCN Entity of any of their respective
obligations or liabilities under this Agreement nor shall the Agent,
the Arrangers or the Security Trustee be responsible for the
obligations of any Lender (except for its own obligations, if any, as a
Lender) nor shall any Lender be responsible for the obligations of any
other Lender under this Agreement.
2.5 INTERESTS SEVERAL
Notwithstanding any other term of this Agreement (but without prejudice
to the provisions of this Agreement relating to or requiring action by
the Super Majority Lenders, Majority Lenders, the Majority Bank Lenders
or the Majority Institutional Lenders) the interests of the Finance
Parties are several and the amount due to each Finance Party is a
separate and independent debt. Each Finance Party shall have the right
to protect and enforce its rights arising out of this Agreement and it
shall not be necessary for any Finance Party to be joined as an
additional party in any proceedings for this purpose.
3 CONDITIONS
3.1 DOCUMENTS AND EVIDENCE
The obligations of each Lender to make its Commitment available shall
be subject to the condition that the Agent, or its duly authorised
representative, shall have received the documents and evidence
specified in part A of schedule 3 in form and substance reasonably
satisfactory to the Agent prior to the Drawdown Notice in respect of
the first Advance being given or, if earlier, the first Utilisation
being requested.
34
3.2 GENERAL CONDITIONS PRECEDENT
The obligation of each Lender to contribute to any Advance (except any
Facility B Advance to be rolled over pursuant to clauses 4.3 or 4.4
below or to be made following the assumption of a Facility B Commitment
by a Facility C Lender pursuant to clause 7.3) is subject to the
further conditions that at the time of the giving of a Drawdown Notice
for, and at the time of the making of, such Advance:
3.2.1 the representations and warranties deemed to be made pursuant to clause
10.3, being (subject as provided therein) true and correct as of each
such time as if each was made with respect to the facts and
circumstances existing at such time; and
3.2.2 no Default shall have occurred and be continuing which has not been
remedied or expressly waived or would result from the making of such
Advance.
3.3 WAIVER OF CONDITIONS PRECEDENT
The conditions specified in this clause 3 are inserted solely for the
benefit of the Lenders and may be waived on their behalf in whole or in
part and with or without conditions by the Agent acting on the
instructions of all of the Lenders in respect of the first Advance and
on the instructions of the Majority Lenders, in respect of subsequent
Facility A Advances or Facility B Advances, or the Majority
Institutional Lenders, in respect of subsequent Facility D Advances,
without prejudicing the right of the Agent acting on such instructions
to require fulfilment of such conditions in whole or in part in respect
of any other Advance.
3.4 CONDITIONS SUBSEQUENT
TCN undertakes no later than the date falling 7 days after the date of
this Agreement to deliver the documents and evidence specified in part
B of schedule 3 in form and substance reasonably satisfactory to the
Agent.
4 UTILISATIONS AND ADVANCES
4.1 FACILITY C
Facility C shall be governed by the terms of the relevant Ancillary
Facilities Letter and this Agreement, save that in the event of any
conflict between this Agreement and the relevant Ancillary Facilities
Letter (insofar as they relate to matters specifically set out in this
Agreement in relation to Facility C) the terms of this Agreement shall
prevail. Utilisations may be requested by the Facility C Borrower and
shall be made by the relevant Facility C Lender in accordance with the
terms of the relevant Ancillary Facilities Letter. Reference to "this
Agreement" shall, insofar as they relate to Facility C, be deemed to
include the relevant Ancillary Facilities Letter.
4.2 DRAWDOWN
Subject to the terms and conditions of this Agreement, an Advance will
be made to the relevant Borrower following receipt by the Agent from
such Borrower of a Drawdown Notice signed by an Authorised Officer not
later than 11 a.m. on the third Banking Day (in the case of a Facility
D Advance) or 11 a.m. on the second Banking Day (in the case of any
other Advance) before the proposed Drawdown Date. A Drawdown Notice
shall be effective on actual receipt by the Agent and, once given,
shall, subject as provided in clause 6.11.1, be irrevocable. No
Drawdown Notice may be given in respect of an amount which is the
subject of a notice received by the Agent under clause 7.6.
35
4.3 ROLLOVER
Subject to the terms and conditions of this Agreement, if the Facility
B Borrower wishes to draw a Facility B Advance on any day (the
"RELEVANT DAY") of an amount of not more than the amount of a Facility
B Advance which is due to be repaid on the Relevant Day in accordance
with clause 7.2, the Facility B Borrower shall not be obliged to serve
a Drawdown Notice in relation to such new Facility B Advance but may
serve a Rollover Notice signed by an Authorised Officer specifying the
amount of the new Facility B Advance and the Term thereof and when such
new Facility B Advance is to be made. A Rollover Notice shall be
effective on actual receipt by the Agent (which must be no later than
11 a.m. on the second Banking Day before the Relevant Day) and, once
given, shall, subject as provided in clause 6.11.1, be irrevocable. No
Rollover Notice may be given in respect of an amount which is the
subject of a notice received by the Agent under clause 7.6.
4.4 NO ROLLOVER NOTICE
If the Agent does not receive a Rollover Notice from the Facility B
Borrower in accordance with clause 4.3 in respect of a new Facility B
Advance to be made on the Term Date of a Facility B Advance outstanding
to the Facility B Borrower then, subject to the terms and conditions of
this Agreement (including without limitation clause 2.2), a Facility B
Advance of an amount equal to the amount of the Facility B Advance due
to be repaid shall be made to the Facility B Borrower if the Facility B
Advance due to be repaid was outstanding on such Term Date, for a Term
of one month or such other period as shall comply with clause 6.4
unless the amount of such Facility B Advance is the subject of a notice
received by the Agent under clause 7.6.
4.5 DETAILS OF ADVANCES
4.5.1 Each Advance may be made only on Banking Days falling within, in the
case of Facility A Advances, the Facility A Availability Period or, in
the case of Facility B Advances, the Facility B Availability Period or,
in the case of Facility D Advances, the Facility D Availability Period.
4.5.2 Each Facility B Advance shall be of either (pound)10,000,000 or any
larger sum which is an integral multiple of (pound)5,000,000. The
amount of the Facility A Advance and each Facility D Advance shall be
determined in accordance with clause 4.9.
4.5.3 No more than 10 Facility B Advances may be outstanding at any time.
4.6 NOTIFICATION TO LENDERS
On the date of receipt of a Drawdown Notice or a Rollover Notice
complying with the terms of this Agreement or if a Facility B Advance
is otherwise to be made in accordance with clause 4.4 the Agent shall
notify each relevant Lender thereof, of the date on which such Advance
is to be made, the initial Interest Period for such Advance and the
amount of such Lender's participation in such Advance. Subject to the
provisions of clauses 3 and 4.8, on the date for the making of the
relevant Advance each of the relevant Lenders shall (subject to clause
4.8) make available to the Agent its portion of such Advance in
accordance with clause 9.2.
4.7 TERMINATION OF COMMITMENTS
Any part of the Facility A Commitment of each Facility A Lender undrawn
and uncancelled at the end of the Facility A Availability Period, any
part of the Facility C Commitment of each Facility C Lender undrawn and
uncancelled at the end of the Facility C Availability Period shall
thereupon be automatically reduced to zero and any part of the Facility
D1 Commitment and/or the Facility D2 Commitment and/or the Facility D3
Commitment of each Facility D Lender undrawn and uncancelled at the end
36
of the Facility D Availability Period shall thereupon be automatically
reduced to zero. The Facility B Commitment of each Facility B Lender
shall be cancelled in accordance with clause 7.2.
4.8 NETTING OF FACILITY B ADVANCES
If a Facility B Advance (the "NEW FACILITY B ADVANCE") is to be made to
the Facility B Borrower on a day on which another Facility B Advance
made to the Facility B Borrower (the "MATURING FACILITY B ADVANCE") is
due to be repaid then, subject to the terms of this Agreement and so
long as the conditions referred to in clause 3.2, if applicable shall
have been satisfied in relation to the new Facility B Advance, (i) the
maturing Facility B Advance shall be deemed to have been repaid on its
Term Date either in whole (if the new Facility B Advance is equal to or
greater than the maturing Facility B Advance) or in part (if the new
Facility B Advance is less than the maturing Facility B Advance) and
the Facility B Borrower shall only be obliged to repay the principal
amount by which the Facility B Advance exceeds the new Facility B
Advance and (ii) to the extent that the maturing Facility B Advance is
so deemed to have been repaid, the principal amount of the new Facility
B Advance to be made on such date shall be deemed to have been credited
to the account of the Facility B Borrower by the Agent on behalf of the
Facility B Lenders in accordance with the terms of this Agreement and
the Facility B Lenders shall only be obliged to make available to the
Facility B Borrower pursuant to clause 4.6 a principal amount (if any)
equal to the amount by which the new Facility B Advance exceeds the
maturing Facility B Advance.
4.9 EXISTING FACILITIES
4.9.1 The Facility A Borrower agrees to comply with the terms of clause 4 so
as to ensure that it draws down a single Facility A Advance on such
Drawdown Date in an amount equal to the Facility A Total Commitments.
If, on such date, the Facility D Total Commitments are more than zero
the Facility D Borrowers agree to comply with the terms of clause 4 so
as to ensure that the US Borrower draws down a Facility D1 Advance
equal to the Facility D1 Total Commitments and TCN draws down a
Facility D2 Advance equal to the Facility D2 Total Commitments and a
Facility D3 Advance equal to a Facility D3 Total Commitment. The US
Borrower undertakes to on-lend the proceeds of such Facility D1 Advance
to TCN on such Drawdown Date by directing the Agent to pay the same to
an account of TCN and TCN undertakes to convert such proceeds and the
proceeds of the Facility D3 Advance into Sterling on such Drawdown Date
and to pay the same to the Agent on such Drawdown Date for application
in accordance with clause 4.9.3 or clause 4.9.4 (as applicable).
4.9.2 TCN agrees to comply with the terms of clause 4 so as to ensure that it
draws down a Facility B Advance on the first Drawdown Date in an
amount, which when aggregated with the proceeds of the Facility A
Advance made pursuant to clause 4.9.1 and (if applicable) the Facility
D Advances made on such Drawdown Date pursuant to clause 4.9.1
(following, where applicable, their conversion into Sterling in
accordance with clause 4.9.1) is not less than the aggregate of the TCN
Outstandings and the Flextech Outstandings.
4.9.3 TCN irrevocably authorises the Agent, and the Agent agrees, to apply
the proceeds of the Facility A Advance made pursuant to clause 4.9.1,
(if applicable) the Facility D Advances made or on-lent to it on the
first Drawdown Date pursuant to clause 4.9.1 (following, where
applicable, their conversion into Sterling pursuant to clause 4.9.1)
and the relevant part of a Facility B Advance made pursuant to this
clause 4.9.2 on the first Drawdown Date in payment to the Flextech
Agent and the TCN Agent for application in payment/and or repayment
and/or prepayment of the TCN Outstandings and the Flextech
Outstandings. The Agent's obligations under clause 9.2 in respect of
such Facility B Advance shall be to remit the balance following such
discharge (if any) to TCN forthwith.
4.9.4 If the Facility D Lender Accession Agreement is entered into, the
Facility D Borrowers agree to comply with the terms of clause 4 so as
to ensure that the US Borrower draws down a Facility D1 Advance equal
to the Facility D1 Total Commitments and TCN draws down a Facility D2
37
Advance equal to the Facility D2 Total Commitments and a Facility D3
Advance equal to the Facility D3 Total Commitments. The US Borrower
undertakes to on-lend the proceeds of such Facility D1 Advance to TCN
on the Drawdown Date of such Facility D1 Advance and TCN undertakes to
convert such proceeds into Sterling on such Drawdown Date and the
proceeds of the Facility D3 Advance into Sterling on the Drawdown Date
of such Facility D3 Advance. TCN undertakes to apply the proceeds of
the Facility D Advances made or on-lent to it pursuant to this clause
4.9.3 (following, where applicable, their conversion into Sterling
pursuant to this clause 4.9.3) immediately upon receipt thereof in or
towards the repayment or prepayment of the Facility B Outstandings.
5 CURRENCIES IN RESPECT OF FACILITY D
5.1 SELECTION OF CURRENCY
5.1.1 Each Facility D1 Advance shall be made and remain outstanding in
Dollars.
5.1.2 Each Facility D2 Advance shall be made and remain outstanding in
Sterling.
5.1.3 Each Facility D3 Advance shall be made and remain outstanding in euros.
In each case notwithstanding any currency fluctuations.
6 INTEREST AND INTEREST PERIODS; ALTERNATIVE INTEREST RATES
6.1 NORMAL INTEREST RATES
The Facility A Borrower, the Facility B Borrower and each Facility D
Borrower agrees to pay interest on each Advance made to it in respect
of each Interest Period relating thereto on each Interest Payment Date
at the rate per annum determined by the Agent to be the aggregate of
(a) the applicable Margin, (b) the Additional Cost and (c) LIBOR. Each
Facility C Borrower agrees to pay interest or commission in respect of
each Utilisation made by it in accordance with the terms of the
relevant Ancillary Facilities Letter.
6.2 MARGIN FOR FACILITY A AND FACILITY B
6.2.1 The Margin in respect of each Interest Period for a Facility A Advance
or a Facility B Advance commencing before 30 June 2002 shall be 2.25
per cent.
6.2.2 The Margin in relation to each Facility A Advance and each Facility B
Advance shall in respect of each Interest Period commencing on or after
30 June 2002 (subject to the proviso below) be the rate set out in
column (1) below against the ratio of Total TCN Group Cash Paying Debt
on the first day of the relevant Interest Period to Consolidated
Annualised TCN Group Net Operating Cash Flow set out in column (2)
below determined from the most recently delivered Quarterly Management
Accounts of the TCN Group delivered to the Agent under this Agreement
prior to the first day of the relevant Interest Period:
38
(1) (2)
RATE (PER CENT. PER ANNUM) RATIO OF TOTAL TCN GROUP CASH PAYING DEBT TO CONSOLIDATED
ANNUALISED TCN GROUP NET OPERATING CASH FLOW
2.00% greater than or equal to 7.0
1.75% less than 7.0 but greater than or equal to 6.0
1.50% less than 6.0 but greater than or equal to 5.0
1.25% less than 5.0 but greater than or equal to 4.0
1.00% less than 4.0 but greater than or equal to 3.0
0.75% Less than 3.0
provided that in respect of each Interest Period commencing on or after
30 June 2002 (i) if on the first day of the relevant Interest Period
for a Facility A Advance or Facility B Advance TCN has failed to
deliver any relevant financial statements then due under this Agreement
within the time period for TCN so to deliver such financial statements,
then the Margin for such Facility A Advance or Facility B Advance (as
the case may be) during such Interest Period shall from (and including)
the last day upon which such financial statements were due to (but
excluding) the date of delivery of such financial statements be 2.00
per cent. per annum, (ii) if on the first day of the relevant Interest
Period for a Facility A Advance or a Facility B Advance the ratio of
Consolidated TCN Group Net Operating Cash Flow in respect of the Six
Month Period ending on the most recent Quarter Day in respect of which
Quarterly Management Accounts have been delivered to the Agent under
this Agreement to Total TCN Group Cash Paying Debt Interest Charges
during such Six Month Period is greater than or equal to 1.25:1 the
Margin determined pursuant to this clause 6.2.2 (unless paragraph (i)
of this proviso applies) shall be reduced by 0.25 per cent. per annum.
6.3 MARGIN FOR FACILITY D
The Margin in respect of each Facility D Advance shall be the rate per
annum set out in the Facility D Lender Accession Agreement provided
that such rate does not exceed 4 per cent. per annum.
6.4 INTEREST PERIODS FOR FACILITY B ADVANCES
Each Facility B Advance may be borrowed only for a Term of one month or
two, three or six months or, with the prior agreement of all the
Facility B Lenders, any other period. The Interest Period in relation
to each Facility B Advance shall be of a duration equal to the Term of
such Facility B Advance.
6.5 INTEREST PERIODS FOR FACILITY A ADVANCES AND FACILITY D ADVANCES
6.5.1 TCN may by notice in writing received by the Agent not later than 11
a.m. on the third Banking Day (in the case of a Facility D Advance) or
11 a.m. on the second Banking Day (in the case of a Facility A Advance)
before the beginning of each Interest Period in respect of a Facility A
Advance and Facility D Advance specify whether such Interest Period
shall have a duration of one month or two, three or six months or, with
the prior agreement of all of the Facility A Lenders or Facility D
Lenders, as the case may be, any other period provided that:
39
6.5.2 the initial Interest Period in respect of each Facility A Advance and
Facility D Advance shall commence on the Drawdown Date of such Advance,
each subsequent Interest Period in respect of such Advance will
commence forthwith upon the expiry of the previous Interest Period in
respect of such Advance;
6.5.3 Interest Periods in respect of Facility D Advances of an aggregate
amount at least equal to the amount of the Facility D Outstandings to
be repaid on any Facility D Repayment Date shall end on such date; and
6.5.4 if TCN fails to specify the duration of an Interest Period in
accordance with the provisions of this clause, such Interest Period
shall, subject to the provisions of clauses 6.5.2 and 6.5.3, have a
duration of one month.
6.6 NON-BANKING DAYS
If an Interest Period would otherwise end on a day which is not a
Banking Day, that Interest Period shall instead end on the next Banking
Day in that calendar month (if there is one) or the preceding Banking
Day (if there is not).
6.7 FURTHER ADJUSTMENTS TO INTEREST PERIODS
If Term and/or Interest Period:
(a) for a Facility A Advance would otherwise overrun the Facility
A Repayment Date, it shall be shortened so that it ends on the
Facility A Repayment Date;
(b) for a Facility B Advance would otherwise overrun the Facility
B Final Repayment Date, it shall be shortened so that it ends
on the Facility B Final Repayment Date; and
(c) for a Facility D Advance would otherwise overrun the Facility
D Final Repayment Date, it shall be shortened so that it ends
on the Facility D Final Repayment Date.
6.8 OTHER ADJUSTMENTS
The Agent and TCN may enter into such other arrangements as they may
agree for the adjustment of Interest Periods and the consolidation
and/or splitting of Advances.
6.9 DEFAULT INTEREST
6.9.1 If the relevant Borrower fails to pay any sum (including, without
limitation, any sum payable pursuant to this clause 6.9) on its due
date for payment under this Agreement other than in respect of Facility
C such Borrower agrees to pay interest on such sum from the due date up
to the date of actual payment (as well after as before judgment) at a
rate determined by the Agent pursuant to this clause 6.9. The period
beginning on such due date and ending on such date of payment shall be
divided into successive periods of not more than three months as
selected by the Agent (after consultation with the relevant Lenders)
each of which (other than the first, which shall commence on such due
date) shall commence on the last day of the preceding such period. The
rate of interest applicable to each such period shall be the aggregate
(as determined by the Agent) of (a) one per cent. per annum, (b) the
Margin determined pursuant to clause 6.2, if the unpaid sum is other
than in respect of Facility D, or clause 6.3, if the unpaid sum is in
respect of Facility D, (c) the Additional Cost and (d) LIBOR, provided
that:
(a) if such unpaid sum is all or part of an Advance which shall
have become due and payable prior to the last day of the then
current Interest Period relating thereto, the first such
period selected by the Agent shall end on the last day of such
Interest Period and interest shall be payable on such unpaid
sum during such period at a rate one per cent. above the rate
applicable thereto immediately before it became due; and
40
(b) if, for the reasons specified in clause 6.11.1(a) or
6.11.1(b), the Agent is unable to determine a rate in
accordance with the foregoing provisions of this clause 6.9,
each relevant Lender shall promptly notify the Agent of the
cost of funds to such Lender and interest on any sum not paid
on its due date for payment shall be calculated for each
relevant Lender at a rate determined by the Agent to be one
per cent. per annum above the aggregate of the Margin
determined pursuant to clause 6.2, if the unpaid sum is other
than in respect of Facility D, or clause 6.3 if the unpaid sum
is in respect of Facility D and the cost of funds (including
Additional Cost) to such Lender.
6.9.2 Default interest under this clause 6.9 shall be due and payable on the
last day of each period determined by the Agent pursuant to this clause
6.9 or, if earlier, on the date on which the sum in respect of which
such default interest is accruing shall actually be paid.
6.10 NOTIFICATION OF INTEREST PERIODS AND INTEREST RATE
The Agent shall notify TCN and the relevant Lenders promptly of, the
duration of each Interest Period or other period for the calculation of
interest (or, as the case may be, default interest) and of each rate of
interest determined by it under this clause 6.
6.11 MARKET DISRUPTION; NON-AVAILABILITY
6.11.1 If and whenever, at any time prior to the commencement of any Interest
Period in respect of any Advance:
(a) the Agent shall have determined (acting reasonably) that
adequate and fair means do not exist for ascertaining LIBOR
during such Interest Period; or
(b) in circumstances where LIBOR is calculated by reference to
Reference Lenders, the Agent requests a quotation from the
Reference Lenders and none or only one of the Reference
Lenders supplies the Agent with a quotation for calculating
LIBOR; or
(c) the Agent shall have received notification from Lenders whose
participations in the relevant Advance aggregate not less than
one-third of that Advance that deposits in the currency of the
relevant Advance are not available to such Lenders (or, in the
case of a Facility D Lender, financial institutions providing
funding in respect of that Advance to such Facility D Lender
through the London Interbank Market) in the London Interbank
Market in the ordinary course of business in sufficient
amounts to fund their contributions to the relevant Advance
for such Interest Period or that LIBOR does not accurately
reflect the cost to such Lenders of obtaining such deposits;
the Agent shall forthwith give notice (a "DETERMINATION NOTICE")
thereof to the relevant Borrower and to each of the Lenders
participating in that Advance containing particulars of the relevant
circumstances giving rise to its issue. After the giving of any
Determination Notice the undrawn amount of the Facility A Commitments,
the Facility B Commitments, the Facility D1 Commitments, the Facility
D2 Commitments or the Facility D3 Commitments (as the case may be)
shall not be borrowed until notice to the contrary is given to TCN by
the Agent.
6.11.2 During the period of 10 days after any Determination Notice has been
given by the Agent under clause 6.11.1, (i) if TCN so requires, TCN and
the Agent and each Facility A Lender, Facility B Lender or relevant
Facility D Lender shall enter into negotiations with a view to agreeing
a substitute basis for determining the rates of interest from time to
time applicable to Facility A Advances, Facility B Advances, Facility
D1 Advances, Facility D2 Advances or Facility D3 Advances (as the case
may be) thereafter and any such substitute basis that is agreed shall
take effect in accordance with its terms; and (ii) if no substitute
basis has been agreed between TCN, the Agent and each relevant Lender
pursuant to paragraph (i) above, each relevant Lender shall certify a
substitute basis for funding its contribution to the relevant Advance
41
reflecting its costs of funds from whatever sources it may reasonably
select. Such substitute basis may (without limitation) include
alternative interest periods, alternative currencies or alternative
rates of interest but shall include a margin above the cost of funds
including Additional Cost, if any, to such Lender equivalent to the
Margin for the relevant Interest Period determined in accordance with
clause 6.2 or clause 6.3 (as the case may be).
Each substitute basis so agreed in accordance with (i) or, failing such
agreement, certified in accordance with (ii) shall be binding upon the
relevant Borrower, the Agent and each relevant Lender and shall take
effect in accordance with its terms from the date specified in the
Determination Notice.
6.12 REFERENCE LENDER QUOTATIONS
If any Reference Lender is unable or otherwise fails to furnish a
quotation for the purpose of calculating LIBOR the interest rate shall
be determined, subject to clause 6.11, on the basis of the quotations
furnished by the remaining Reference Lenders.
7 REPAYMENT, PREPAYMENT AND CANCELLATION
7.1 FACILITY A
The Facility A Borrower shall repay the Facility A Outstandings
borrowed by it in full on the Facility A Repayment Date.
7.2 FACILITY B
The Total Facility B Commitments shall be reduced on each of the dates
set out in column (1) below to the amount set against the relevant date
in column (2) below and the Facility B Commitment of each Facility B
Lender shall be reduced pro rata.
(1) (2)
DATE AMOUNT ((POUND))
31 December 2004 1,350,000,000
31 March 2005 1,250,000,000
30 June 2005 1,150,000,000
30 September 2005 1,050,000,000
31 December 2005 950,000,000
31 March 2006 800,000,000
30 June 2006 650,000,000
30 September 2006 500,000,000
31 December 2006 350,000,000
31 March 2007 NIL
The Facility B Borrower shall repay each Facility B Advance on the last
day of its Term and shall ensure that as from each date set out in
column (1) above the Facility B Outstandings do not exceed the amount
set out in column (2) above against such date.
7.3 FACILITY C
Prior to the Facility C Repayment Date, in circumstances where the
Agent has not served a notice under clause 14.2.2, each Facility C
Lender agrees that, notwithstanding the terms of the relevant Ancillary
Facilities Letter, it will not cancel its Facility C Commitment, allow
its Facility C Commitment to expire (without renewing it) or demand
repayment of its Facility C Contribution (in either case in whole or in
part) unless either (A) a successor Facility C Lender with a Facility C
Commitment equal to the Facility C Contribution and/or the undrawn
Facility C Commitment of the resigning Facility C Lender being repaid
42
and/or cancelled is appointed contemporaneously with such repayment
and/or cancellation pursuant to clause 18.8 or (B):
(i) not less than three Banking days notice are given by the
Facility C Lender to TCN and the UK Agent of the repayment;
(ii) the whole of its Facility C Contribution is to be repaid in
full;
(iii) the date of repayment is the last day of an Interest Period in
respect of any Facility B Advance; and
(iv) contemporaneously, with such repayment its Facility C
Commitment is cancelled in full.
In the case of paragraph (B) above, the relevant Facility C Lender
agrees that contemporaneously with such repayment it will automatically
assume an additional Facility B Commitment equal to its Facility C
Commitment immediately prior to such reduction, less the amount of the
Facility C Commitment of any new Facility C Lender which
contemporaneously with such repayment becomes a Facility C Lender
pursuant to clause 18.8.
7.4 FACILITY D
TCN shall procure that the Facility D Outstandings are repaid in full
by payment of semi-annual instalments (each a "FACILITY D REPAYMENT
INSTALMENT") on each date specified in column (1) below (each date for
repayment being a "FACILITY D REPAYMENT DATE") up to and including the
Facility D Final Repayment Date. Each Facility D Repayment Instalment
(other than the last) shall being an amount in the Sterling Amount
equal as nearly as possible (rounded upwards if necessary) to the
percentage, set out in column (2) below opposite the relevant Facility
D Repayment Date, of the Sterling Amount of the Facility D Outstandings
on the last day of the Facility D Availability Period. The Final
Facility D Repayment Instalment shall comprise all Facility D Advances
outstanding on the Facility D Final Repayment Date.
(1) (2)
FACILITY D REPAYMENT DATE PERCENTAGE OF THE STERLING AMOUNT
OF THE FACILITY D OUTSTANDINGS
31 December 2004 0.5 per cent.
30 June 2005 0.5 per cent.
31 December 2005 0.5 per cent.
30 June 2006 0.5 per cent.
31 December 2006 0.5 per cent.
30 June 2007 0.5 per cent.
31 December 2007 0.5 per cent.
30 June 2008 The Facility D Outstandings
Each such Facility D Repayment Instalment shall be applied pro rata
against the outstanding Sterling Amount of Facility D1 Advances,
Facility D2 Advances and Facility D3 Advances. For the avoidance of
doubt, any amounts paid under this clause 7.4 to a Facility D Lender in
respect of Facility D1 Advance shall be paid in Dollars and any amount
paid pursuant to this clause 7.4 to a Facility D Lender in respect of a
Facility D3 Advance shall be paid in euro.
Provided that, notwithstanding the foregoing provisions of this clause
7.4 if the 11 per cent. senior discount debentures issued by Telewest
on 3 October 1995 and due on 1 October 2007 have not been refinanced by
30 May 2007 on terms which provide for at least the same level of
subordination to amounts due under the Finance Documents and with no
scheduled payment of principal prior to 1 July 2008 the Facility D
Outstandings will be repayable in full on 30 June 2007.
43
7.5 VOLUNTARY PREPAYMENT
The relevant Borrower may prepay the Outstandings in whole or in part
(being (pound)10,000,000 or any larger sum which is an integral
multiple of (pound)5,000,000) at any time in accordance with clauses
7.8.6 and 7.11.
7.6 VOLUNTARY CANCELLATION OF COMMITMENTS
TCN may at any time by notice to the Agent (effective only on actual
receipt) cancel with effect from a date not less than three Banking
Days after the receipt by the Agent of such notice the whole or any
part (being (pound)10,000,000 or any larger sum which is an integral
multiple of (pound)5,000,000) of the Facility B Total Commitments which
is not then outstanding or requested in a Drawdown Notice and in
respect of which an Advance has not then been made. Any such notice of
cancellation, once given, shall be irrevocable and upon such
cancellation taking effect the Commitment of each of the Lenders in
respect of the relevant Facility shall be reduced proportionately.
7.7 ADDITIONAL VOLUNTARY PREPAYMENT
Each Borrower may also prepay or procure the prepayment (in whole but
not in part only), without premium or penalty, but without prejudice to
its obligations under clauses 6.11, 9.7 and 16.2:
7.7.1 the Contribution of any Lender to which any Borrower shall have become
obliged to pay additional amounts under clause 9.7 or 16.2;
7.7.2 any Lender's Contribution to which a substitute basis applies by virtue
of clause 6.11.2; or
7.7.3 the Contribution of any Lender if it is or becomes contrary to any law
or regulation for that Lender to contribute to Advances or to maintain
its Commitment or fund or maintain its Contribution.
Upon any notice of such prepayment being given, the Facility A
Commitment, the Facility B Commitment, the Facility C Commitment, the
Facility D1 Commitment, the Facility D2 Commitment and the Facility D3
Commitment of the relevant Lender shall be reduced to zero.
7.8 MANDATORY PREPAYMENT
7.8.1 Unless the Agent (acting on the instructions of all of the Lenders)
otherwise agrees, until such time (if any) when the obligations set out
within this clause cease to apply pursuant to clause 7.8.2 below, TCN
shall apply, or procure the application of, 50 per cent. of Excess Cash
Flow (if any) in respect of each of the Twelve Month Periods of TCN
ending on 31 December in each year (commencing with the Twelve Month
Period ending 31 December 2004) in mandatory prepayment of the Facility
A Outstandings, the Facility B Outstandings and the Facility D
Outstandings in accordance with clause 7.8.6 on Interest Payment Dates
falling on or after the date falling 30 days after the date upon which
the Quarterly Management Accounts in respect of the Quarterly Period
ending on the last day of the relevant Twelve Months are delivered to
the Agent pursuant to clause 11.1.7.
7.8.2 TCN's obligations under clause 7.8.1 shall cease in respect of the
relevant Twelve Month Period and all future Twelve Month Periods if, in
respect of any such Twelve Month Period Total TCN Group Debt on the
last day of such Twelve Month Period is less than 3.5 times
Consolidated Annualised TCN Group Net Operating Cashflow, as
demonstrated in the Quarterly Management Accounts for the Quarterly
Period ending on the last day of the relevant Twelve Month Period.
7.8.3 Unless the Agent (acting on the instructions of all of the Lenders)
otherwise agrees, TCN shall apply, or procure the application of, the
Net Cash Proceeds (if any) of any Asset Swap made after the date hereof
44
in prepayment of the Facility A Outstandings, the Facility B
Outstandings and the Facility D Outstandings in accordance with clause
7.8.6 on the Interest Payment Dates falling after receipt of the Net
Cash Proceeds.
7.8.4 Unless the Agent (acting on the instructions of the Majority Lenders)
otherwise agrees, if at any time:
(a)
(i) any person, other than any of the Specified
Shareholders (or any Subsidiary Undertaking of a
Specified Shareholder); or
(ii) any persons acting in concert, other than any of the
Specified Shareholders (or any Subsidiary Undertaking
of a Specified Shareholder) acting in concert with
each other,
holds either:
(A) thirty per cent. or more of both the voting and
economic interest in Telewest; or
(B) fifty per cent. or more of the voting and/or economic
interest in Telewest, or becomes a Parent Undertaking
of Telewest; or
(b) Notwithstanding clause 7.8.4(a), (i) United Global Com Inc.
and/or Subsidiary Undertakings (taken together), (ii) NTL
Incorporated and/or its Subsidiary Undertakings (taken
together) or (iii) United Pan-Europe Communications N.V.
and/or its Subsidiary Undertakings (taken together), becomes a
Parent Undertaking of Telewest, or hold a majority of the
economic interest in Telewest,
the Borrowers shall prepay, or procure the discharge of, in full the
Facility A Outstandings, the Facility B Outstandings, the Facility C
Outstandings and the Facility D Outstandings on the next Interest
Payment Date (regardless of which Advance such Interest Payment Date
relates to) falling after the relevant event. For the purposes of this
clause 7.8.4, in calculating the percentage ownership interest in
Telewest held by any persons acting in concert, the percentage
ownership interest in Telewest held by a Specified Shareholder or its
Subsidiary Undertaking in respect of which it is acting in concert
shall be excluded.
In this clause 7.8.4:
(a) "acting in concert" shall have the meaning given to it in the
City Code on Takeovers and Mergers; and
(b) "percentage ownership interest" means voting and/or economic
interest (as applicable).
7.8.5 Unless the Agent (acting on the instructions of all of the Super
Majority Lenders) otherwise agrees, TCN shall apply or procure the
application of 50 per cent. of the net cash (or equivalent) aggregate
proceeds in excess of(pound)100,000,000 received by the TCN Group in
connection with any JVIPO and/or the disposal of any interest in a
Joint Venture to a person other than a TCN Entity in prepayment of the
Facility A Outstandings, the Facility B Outstandings and the Facility D
Outstandings in accordance with clause 7.8.6 on Interest Payment Dates
falling after receipt of the net proceeds. Subject to TCN complying
with its obligations under this clause 7.8.5, the Finance Parties agree
to release the charges created by the Security Documents over the
shares owned by the TCN Group in the relevant Joint Venture to the
extent that, following such initial public offering or disposal, such
shares will no longer be owned by the TCN Group.
7.8.6 Each prepayment to be made under clauses 7.5, 7.8.1, 7.8.3 or 7.8.5
above shall:
45
(a) be made on Interest Payment Dates in respect of Facility A
Advances and/or Facility B Advances and/or Facility D1
Advances and/or Facility D2 Advances and/or Facility D3
Advances (as applicable) falling after the date on which the
relevant prepayment is expressed to fall due, beginning with
the first such date and continuing until the prepayment
obligation under clauses 7.8.1, 7.8.3 or 7.8.5 has been
satisfied;
(b) if on any Interest Payment Date in respect of Facility A
Advances and/or Facility B Advances and/or Facility D1
Advances and/or Facility D2 Advances and/or Facility D3
Advances (as applicable) upon which an amount is to be applied
in prepayment pursuant to clauses 7.8.1, 7.8.3 or 7.8.5 of the
Facility A Outstandings and/or the Facility B Outstandings
and/or the Facility D1 Outstandings and/or Facility D2
Outstandings and/or Facility D3 Outstandings:
(i) such amount is less than the amount of the Facility A
Advances, Facility B Advances, Facility D1 Advances,
Facility D2 Advances or Facility D3 Advances (as
applicable) whose Interest Period ends on such date,
TCN may select against which Facility A Advances,
Facility B Advances, Facility D1 Advances, Facility
D2 Advances or Facility D3 Advances (as applicable)
the prepayment is to be made and the proportion of
the relevant amount to be prepaid on each Facility A
Advance, Facility B Advance, Facility D1 Advance,
Facility D2 Advance or Facility D3 Advance (as
applicable) but shall ensure that the full amount
required to be applied in prepayment of the Facility
A Outstandings and/or the Facility B Outstandings
and/or the Facility D1 Outstandings and/or Facility
D2 Outstandings and/or Facility D3 Outstandings is so
applied; or
(ii) such amount is equal to or greater than the amount of
the Facility A Advances, Facility B Advances,
Facility D1 Advances, Facility D2 Advances or
Facility D3 Advances (as applicable) whose Interest
Period ends on such date, TCN shall prepay or procure
the prepayment of each such Advance on such date; and
(c) be in a minimum amount of (pound)10,000,000, so that any
amount which is less than (pound)10,000,000 which would
otherwise be required to be prepaid under paragraphs 7.8.1,
7.8.3 or 7.8.5 above shall not be required to be so prepaid
until, when aggregated with future amounts required to be
prepaid thereunder, it exceeds (pound)10,000,000.
7.9 AMOUNTS PAYABLE ON PREPAYMENT
Any prepayment under this Agreement shall be made together with:
(a) accrued interest on the amount prepaid to the date of
prepayment;
(b) any additional amount payable under clause 9.7 or 16.2 to the
extent it relates to the amount prepaid; and
(c) all other sums payable by the relevant Borrower to the
relevant Lender or the Lenders (as the case may be) under this
Agreement referable to the amount prepaid (including, without
limitation, any accrued commitment commission payable under
clause 8.1.3 and any amounts payable under clause 15).
7.10 NOTICE OF PREPAYMENT
No prepayment may be effected unless TCN shall have given the Agent at
least two Banking Days' notice of its intention to make such
prepayment. Every notice of prepayment shall be effective only on
actual receipt by the Agent, shall be irrevocable and shall oblige the
relevant Borrower to make such prepayment on the date specified.
46
7.11 ORDER OF APPLICATION
Subject to clause 7.13.2, the amount of each prepayment of the Facility
A Outstandings, the Facility B Outstandings and the Facility D
Outstandings made under clauses 7.5 and 7.8 shall be applied:
7.11.1 first, pro rata between outstanding Facility A Outstandings and
Facility D Outstandings; and
7.11.2 secondly, against outstanding Facility B Outstandings.
7.12 EFFECT OF PREPAYMENTS
7.12.1 FACILITY A
No amounts prepaid in respect of Facility A may be reborrowed.
7.12.2 FACILITY B
No amounts prepaid in respect of Facility B may be reborrowed, other
than Facility B Outstandings prepaid prior to the end of the Facility B
Availability Period pursuant to clause 7.5. During the Facility B
Availability Period, the Total Facility B Commitments shall be
automatically reduced by the amount of any other prepayment made under
clause 7 and the Facility B Commitment of each Facility B Lender shall
be reduced pro rata. Each amount set out in column 2 of clause 7.2
shall be reduced by each amount by which the Total Facility B
Commitments are reduced pursuant to this clause 7.12.
7.12.3 FACILITY D
No amounts prepaid in respect of Facility D may be reborrowed. Any
amount prepaid in respect of the Facility D Outstandings shall reduce
each outstanding Facility D Repayment Instalment pro rata. Any
cancellation or prepayment in relation to Facility D shall be applied
pro rata between the Facility D1 Commitments, the Facility D2
Commitments and the Facility D3 Commitments or (as the case may be)
Facility D1 Outstandings, Facility D2 Outstandings and Facility D3
Outstandings according to their respective Sterling Amounts.
7.13 FACILITY D CALL PROTECTION
7.13.1 Upon any prepayment of Facility D Advances under this clause 7, the
Facility D Borrower shall pay to the Agent for distribution to Facility
D Lenders who do not elect not to accept the relevant prepayment
pursuant to clause 7.13.2, a prepayment fee (if any) in the amounts and
at the times set out in the Facility D Lender Accession Agreement
7.13.2 Prior to the repayment or prepayment in full of all Facility A
Outstandings and Facility B Outstandings, any of the Facility A Lenders
and/or the Facility D Lenders may elect not to accept prepayments of
Facility A Advances or Facility D Advances (as the case may be) under
clauses 7.5 or 7.8 unless the Outstandings are being prepaid in full
and the Commitments reduced to zero. In the event of such election, any
amounts which would otherwise have been applied in prepayment of
Facility A Outstandings or the Facility D Outstandings shall be applied
in prepayment of the Facility B Outstandings in accordance with clause
7.8.6.
8 FEES AND EXPENSES
8.1 FEES
TCN agrees to pay to the Agent whether or not any part of the
Commitments is ever advanced:
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8.1.1 ARRANGEMENT FEE
for the account of the Lead Arrangers, an up-front fee of an amount
agreed between TCN and the Lead Arrangers and set out in the
arrangement and underwriting letter dated 15 January 2001;
8.1.2 AGENCY FEE
for the account of each Agent, an agency fee of an amount agreed
between TCN and such Agent and set out in a letter dated the date of
this Agreement; and
8.1.3 COMMITMENT COMMISSION
for the account of each Facility C Lender, commitment commission in
accordance with the relevant Ancillary Facilities Letter and for the
account of each Facility B Lender, commitment commission in respect of
that Lender's Facility B Commitment computed on a daily basis from the
date of this Agreement and payable quarterly in arrears five Banking
Days after each Quarter Day falling after the date of this Agreement
and on the last day of the Facility B Availability Period at the rate
of 0.50 per cent. per annum, or, if lower, the percentage per annum
which is 50 per cent. of the then applicable Margin in respect of the
Facility B on the daily undrawn and uncancelled amount of such Lender's
Facility B Commitment provided that commitment commission shall cease
to be payable to any Lender which shall be in breach of its obligation
to make Advances under this Agreement with effect from the date of such
breach and for so long as such breach is continuing.
8.2 EXPENSES
TCN agrees to pay to the Agent within 30 days from the date on which
the Agent makes demand on TCN for payment of the same:
8.2.1 all reasonable out-of-pocket expenses (including legal, other
professional, printing and out-of-pocket expenses) incurred by the
Agent, the Lead Arrangers and the Security Trustee in connection with
the negotiation, preparation (including reasonable due diligence),
syndication and execution of the Finance Documents and of any amendment
or extension of or the granting of any waiver or consent under any
Finance Document together with interest at the rate referred to in
clause 6.9 from the date falling 30 days after the date of demand for
payment of such expenses to the date of payment (as well after as
before judgment); and
8.2.2 all expenses (including legal and out-of-pocket expenses) incurred by
the Finance Parties or any of them in contemplation of, or otherwise in
connection with, the enforcement of, or preservation of any rights
under, any Finance Document, or otherwise in respect of the moneys
owing under this Agreement, together with interest at the rate referred
to in clause 6.9 from the date falling 30 days after the date of demand
for payment of such expenses to the date of payment (as well after as
before judgment).
8.3 VALUE ADDED TAX
All fees and expenses payable pursuant to this clause 8 shall be paid
together with Value Added Tax (if any) properly chargeable thereon.
8.4 STAMP AND OTHER DUTIES
TCN agrees (i) to pay all stamp, documentary, registration or other
like duties or taxes (including any such duties or taxes payable by the
Finance Parties) imposed on or in connection with, any Finance Document
or the Outstandings and (ii) to indemnify the Finance Parties against
any liability arising by reason of any delay or omission by TCN to pay
such duties or taxes.
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9 PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS
9.1 NO SET-OFF OR COUNTERCLAIM; DISTRIBUTION TO THE BANKS
All payments to be made by each Borrower under this Agreement shall be
made in full, without any set-off or counterclaim whatsoever and,
subject as provided in clause 9.7, free and clear of any deductions or
withholdings, in Sterling or, in the case of payments under Facility D
only, Dollars or euros or Sterling (as applicable), on the due date to
the account of the UK Agent at such bank in London as the UK Agent may
from time to time specify for this purpose or, in the case of Dollars,
to the account of the US Agent at such bank in New York as the US Agent
may from time to time specify for this purpose, save that payments in
respect of Facility C shall be made to the relevant Facility C Lender
direct to such account of such Facility C Lender in London as it may
from time to time specify for this purpose. Save as otherwise expressly
provided by this Agreement (in which case the relevant Agent shall
distribute the payment to the relevant Finance Party concerned) such
payments shall be for the account of the relevant Lenders and the
relevant Agent shall forthwith distribute such payments in like funds
as are received by the relevant Agent to the relevant Lenders rateably
in accordance with the relevant part of their Commitments or the
relevant part of their Contributions, as the case may be.
9.2 PAYMENTS BY THE BANKS
All sums to be advanced by the Lenders to the Borrowers under this
Agreement shall be remitted in Sterling or, in the case of Facility D
only, euros, Sterling or Dollars, on the date of the relevant Advance
to the account of the UK Agent at such bank in London as the UK Agent
may have notified to the relevant Lenders or to the account of the US
Agent as such bank in New York as the US Agent may have notified to the
relevant Lenders and shall be paid by the relevant Agent on such date
in like funds as are received by the relevant Agent to the account of
the relevant Borrower specified in the relevant Drawdown Notice, save
that all sums to be advanced by a Facility C Lender shall be advanced
to the Facility C Borrower, direct to such account of the Facility C
Borrower as it may from time to time specify for this purpose.
9.3 AGENT MAY ASSUME RECEIPT
Where any sum is to be paid under this Agreement to either Agent for
the account of another person, such Agent may assume that the payment
will be made when due and may (but shall not be obliged to) make such
sum available to the person so entitled. If it proves to be the case
that such payment was not made to the relevant Agent, then the person
to whom such sum was so made available shall on request refund such sum
to such Agent together with interest thereon sufficient to compensate
such Agent for the cost of making available such sum up to the date of
such repayment and the person by whom such sum was payable shall
indemnify such Agent for any and all loss or expense which such Agent
may sustain or incur as a consequence of such sum not having been paid
on its due date.
9.4 NON-BANKING DAYS
When any payment under this Agreement would otherwise be due on a day
which is not a Banking Day, the due date for payment shall be extended
to the next following Banking Day unless such Banking Day falls in the
next calendar month in which case payment shall be made on the
immediately preceding Banking Day.
9.5 CALCULATIONS
All interest and other payments of an annual nature under this
Agreement or to be calculated on an annual basis shall accrue from day
to day and be calculated on the basis of actual days elapsed and (in
the case of Sterling) a 365 day year or (in the case of euros or
Dollars) a 360 day year.
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9.6 CERTIFICATES CONCLUSIVE
Any certificate or determination of any Finance Party as to any rate of
interest or any amount payable under this Agreement shall, in the
absence of manifest error, be conclusive and binding on each TCN Entity
and (in the case of a certificate or determination by the Agent) on the
Lenders.
9.7 GROSSING-UP FOR TAXES
If at any time any Borrower is required to make any deduction or
withholding in respect of Taxes from any payment due under this
Agreement or any of the Security Documents for the account of any
Finance Party (or if either Agent, or as the case may be, the Security
Trustee, is required to make any such deduction or withholding from a
payment to a Finance Party), the sum due from the relevant Borrower in
respect of such payment shall, subject to clauses 9.8 and 9.9, be
increased to the extent necessary to ensure that, after the making of
such deduction or withholding, each Finance Party receives on the due
date for such payment (and retains, free from any liability in respect
of such deduction or withholding other than any Tax on the Overall Net
Income of such Finance Party) a net sum equal to the sum which it would
have received had no such deduction or withholding been required to be
made and such Borrower shall indemnify each Finance Party against any
losses or costs incurred by any of them by reason of any failure of
such Borrower to make any such deduction or withholding or by reason of
any increased payment not being made on the due date for such payment.
TCN shall promptly deliver or procure that there are delivered to the
relevant Agent (or, in the case of a deduction or withholding in
respect of Facility C, the relevant Facility C Lender) copies of (or,
where required, originals of) any receipts, certificates or other proof
evidencing the amounts (if any) paid or payable in respect of any
deduction or withholding as aforesaid.
9.8 EXEMPTION
9.8.1 No Borrower is obliged to pay any additional amount pursuant to clause
9.7 above in respect of any deduction or withholding which would not
have been required if the relevant Lender had secured any exemption
(including, for the avoidance of doubt, any exemption under a double
tax agreement) which it is able to or capable of obtaining. Each
Borrower shall use reasonable endeavours to expedite any application
for exemption made by the relevant Lender.
9.8.2 The US Borrower shall not be required to pay any additional amount
pursuant to clause 9.7 in respect of United States Taxes (including,
without limitation, federal, state, local or other income Taxes),
branch profits or franchise Taxes with respect to a sum payable by it
pursuant to this Agreement to a Lender if:
(a) on the date such Lender becomes a party to this Agreement or
has designated a new Facility Office either:
(i) in the case of a Lender which is not a United States
person (as such term is defined in Section
7701(a)(30) of the Code), such Lender is not:
(A) entitled to submit a properly completed Form
W-8EC1 or W-8BEN (relating to such Lender
claiming a complete exemption from
withholding on interest payable pursuant to
this Agreement) or a successor form; and
(B) beneficially entitled to any principal or
interest payable to it under this Agreement;
or
(ii) such Lender is subject to such tax by reason of any
connection between the jurisdiction imposing such tax
and the Lender or its Facility Office other than a
connection arising solely from this Agreement or any
transaction contemplated hereby; or
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(b) such Lender has (unless the US Borrower failed to complete any
procedural formalities or provide any information), failed to
submit any form, certificate or other information with respect
to such sum payable that it was required and is entitled to
file under applicable law in order to avoid the payment of the
relevant Taxes.
9.9 QUALIFYING LENDERS
(A) If any Facility A Lender, Facility B Lender or Facility C
Lender is not or ceases to be a Qualifying Lender, then (save
in circumstances where such Lender has ceased to be a
Qualifying Lender by reason of any change in any law,
directive or regulation or in its application or
interpretation, in each case taking effect after the date of
this Agreement) no Borrower shall be liable to pay to that
Lender under clause 9.7 any sum in excess of the sum it would
have been obliged to pay if that Lender had been, or had not
ceased to be, a Qualifying Lender.
(B) Save in circumstances where such Lender in respect of Facility
D2 or Lender in respect of Facility D3 has ceased to be a
Qualifying Lender by reason of any change in law, directive or
in its interpretation or application, in each case taking
effect after the date of the Agreement, TCN shall not be
liable to pay to any Lender in respect of Facility D2 or
Lender in respect of Facility D3 under clause 9.7 any sum in
excess of the sum it would have been obliged to pay if that
Lender had been or had not ceased to be a Qualifying Lender.
(C) Each Lender will notify TCN and the UK Agent on or before the
date it becomes a party to this Agreement whether or not it is
a Qualifying Lender or satisfies the requirements of clause
9.8.2 (as the case may be) and will promptly notify TCN and
the UK Agent if this ceases to be the case. If a Lender has
notified TCN that it is a Qualifying Lender and has not
subsequently notified TCN that it has ceased to be a
Qualifying Lender, then that Lender shall provide to TCN such
evidence as TCN shall reasonably require that such Lender is a
Qualifying Lender, including any such evidence which the
Inland Revenue in any published guidance, has stated is
acceptable as evidence of whether that Lender is entitled to
receive interest under this Agreement without any amount being
withheld on account of UK income tax.
9.10 CLAW-BACK OF TAX BENEFIT
If following any such deduction or withholding as is referred to in
clause 9.7 from any payment by a Borrower, any Finance Party shall
receive or be granted a credit against or remission for any taxes
payable by it, such Finance Party shall, subject to the relevant
Borrower having made any increased payment in accordance with clause
9.7 and to the extent that such Finance Party can do so without
prejudicing the retention of the amount of such credit or remission and
without prejudice to the right of such Finance Party to obtain any
other relief or allowance which may be available to it, reimburse the
relevant Borrower with such amount as such Finance Party shall in its
absolute discretion certify to be the proportion of such credit or
remission as will leave such Finance Party (after such reimbursement)
in no worse position than it would have been in had there been no such
deduction or withholding from the payment by the relevant Borrower as
aforesaid. Such reimbursement shall be made forthwith upon such Finance
Party certifying that the amount of such credit or remission has been
received by it provided that such Finance Party shall not unreasonably
delay before so certifying. Nothing contained in this Agreement shall
oblige any Finance Party to disclose to any TCN Entity or any other
person any information regarding its tax affairs or tax computations or
interfere with the right of the Finance Party to arrange its tax
affairs in whatever manner it thinks fit and, in particular, none of
the Finance Parties shall be under any obligation to claim relief from
its corporate profits, tax liability or similar tax liabilities in
respect of such tax in priority to any other claims, reliefs, credits
or deductions available to it. Without prejudice to the generality of
the foregoing, no Borrower or any other TCN Entity shall by virtue of
this clause 9.10, be entitled to enquire about any Finance Party's tax
affairs.
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9.11 LENDER ACCOUNTS
Each Lender shall maintain, in accordance with its usual practices, an
account or accounts evidencing the amounts from time to time lent by,
owing to and paid to it under this Agreement. The Agent shall maintain
a control account showing the Facility A Outstandings, the Facility B
Outstandings and the Facility D Outstandings and other sums owing by
the Borrowers under this Agreement (other than in respect of Facility
C) and all payments in respect thereof made by the Borrowers from time
to time. The control account shall be prima facie evidence as to the
amount from time to time owing by the Borrowers under this Agreement
(other than in respect of Facility C).
9.12 PARTIAL PAYMENTS
If, on any date on which a payment is due to be made by a Borrower
under this Agreement, the amount received by the Agent from such
Borrower falls short of the total amount of the payment due to be made
by such Borrower on such date then, without prejudice to any rights or
remedies available to the Agent and the Lenders under this Agreement,
the Agent shall apply the amount actually received from the relevant
Borrower in or towards discharge of the obligations of such Borrower
under this Agreement in the following order, notwithstanding any
appropriation made, or purported to be made, by such Borrower:
9.12.1 first, in or towards payment to the Lead Arrangers, of any portion of
the front end fee payable under clause 8.1.1 which shall have become
due but remains unpaid;
9.12.2 secondly, in or towards payment to the Finance Parties, on a pro rata
basis, of any unpaid fees, costs and expenses of the Finance Parties
under this Agreement and any portion of the agency fee payable under
clause 8.1.2 which shall have become due but remains unpaid;
9.12.3 thirdly, in or towards payment to the Lenders, on a pro rata basis, of
any accrued commitment commission payable under clause 8.1.3 which
shall have become due but remains unpaid;
9.12.4 fourthly, in or towards payment to the Lenders, on a pro rata basis, of
any accrued interest and fees which shall have become due but remains
unpaid;
9.12.5 fifthly, in or towards payment to the Lenders, on a pro rata basis, of
any principal which shall have become due but remains unpaid;
9.12.6 sixthly, in or towards payment of any other sum which shall have become
due but remains unpaid (and, if more than one such sum so remains
unpaid, on a pro rata basis).
The order of application set out in this clause 9.12 may be varied by
the Agent if all Lenders so direct.
9.13 EFFECT OF MONETARY UNION
If the United Kingdom participates in Economic and Monetary Union in
accordance with Article 109j of the Treaty, then:
9.13.1 if, and at any time while, Sterling and the euro are at the same time
recognised by the Lender of England as the lawful currency of the
United Kingdom, any amount expressed to be payable under this Agreement
in Sterling shall be payable in Sterling or in euro as the Agent (in
the case of any amount payable by the Lenders, other than the Facility
C Lenders) or the relevant Facility C Lender (in the case of an amount
payable by such Facility C Lender) or the relevant Borrower (in the
case of any amount payable by a Borrower) may, by not less than three
Banking Days' notice to the relevant Borrower or the Agent (as the case
may be) and (through the Agent) to the relevant Lenders to that effect,
elect;
52
9.13.2 any amount so elected to be paid in euro shall be converted from
Sterling at the rate stipulated pursuant to Article 109l(4) of the
Treaty and payment of the amount in euro derived from such conversion
shall discharge the obligation of the relevant party to pay such
Sterling amount;
9.13.3 the Agent, TCN and the Lenders shall consult to consider what (if any)
changes are required to be made to this Agreement to (i) take account
of the participation of the United Kingdom in monetary union and/or
(ii) reflect any consequential changes in market practice (including
without limitation, the settlement of or rounding of obligations and
the calculation of interest). If, after such consultation, the Agent
(acting on the instructions of the Majority Lenders) reasonably and in
good faith considers that any such amendments are required, the Agent
shall notify TCN and the Lenders of the amendments which it considers
to be necessary and, notwithstanding clause 19.2, shall be entitled to
make such amendments to this Agreement. So far as possible such
amendments shall be such as to put the parties in the same position as
if such participation had not occurred.
Any amendment so made to this Agreement by the Agent shall be promptly
notified to the other parties hereto and shall be binding on all the
parties hereto.
10 REPRESENTATIONS AND WARRANTIES
10.1 REPEATED REPRESENTATIONS AND WARRANTIES
Each TCN Entity (other than TCN) in respect of itself and TCN in
respect of itself and (as the case may be) each Joint Venture Group
represents and warrants to each of the Finance Parties that:
10.1.1 DUE INCORPORATION OF EACH BORROWER AND THE CHARGING SUBSIDIARIES
(a) (in the case of any TCN Entity which is a Borrower (other than
the US Borrower) or a Charging Subsidiary) it is duly
incorporated and validly existing under the laws of its
country of incorporation as a limited liability company and
has power to carry on its business as it is now being and
hereafter is proposed to be conducted and to own its assets;
(b) (in the case of the US Borrower) it is a Delaware company,
duly formed and validly existing and in good standing under
the laws of the state of Delaware and has the power and
authority to own its properties and to carry out its business
as it is now being and is hereafter proposed to be conducted;
10.1.2 CORPORATE POWER OF EACH BORROWER AND EACH CHARGING SUBSIDIARY
(in the case of any TCN Entity which is a Borrower or a Charging
Subsidiary) it has all requisite power to execute, deliver and perform
its obligations under the Finance Documents to which it is party
(including, in the case of each Borrower, to borrow the Commitments);
compliance has been made with all necessary requirements and all
necessary corporate, shareholder or other action has been taken by each
Borrower and each Charging Subsidiary to authorise the execution,
delivery and performance of the Finance Documents to which it is a
party;
10.1.3 DUE FORMATION OF CHARGING PARTNERSHIPS
(in the case of any TCN Entity which is a Charging Partnership) each
Charging Partnership:
(a) is a general or limited partnership duly formed, validly
existing and in good standing under the laws of the State of
Colorado or England;
53
(b) has other TCN Entities (being in the case of the Charging
Partnerships formed in the State of Colorado, the TCN Entities
that have executed or are expected to execute the Pledge and
Security Agreements) as its only partners (there being no
outstanding rights to acquire further interests therein);
(c) has the power and authority to own its properties and to carry
out its business as it is now being and is hereafter proposed
to be conducted; and
(d) is duly qualified, validly existing and in good standing and
authorised to do business in each jurisdiction in which the
character of its properties or the nature of its business
requires such qualification or authorisation;
10.1.4 POWER OF THE CHARGING PARTNERSHIPS
(in the case of any TCN Entity which is a Charging Partnership) it has
all requisite power to execute, deliver and perform its obligations
under this Agreement and the Security Documents to which it is a party,
compliance has been made with all necessary requirements and all
necessary action has been taken to authorise its execution, delivery
and performance of this Agreement and the Security Documents to which
it is a party; no resolution (other than resolutions that have already
been adopted) is required pursuant to the terms of any partnership
agreement forming it to authorise the execution, delivery and
performance by it of this Agreement and the Security Documents to which
it is a party;
10.1.5 BINDING OBLIGATIONS
the Finance Documents to which it is a party constitutes its valid and
legally binding obligations enforceable in accordance with its terms
subject to the qualifications contained in the legal opinions referred
to in part A of schedule 3 which relate thereto;
10.1.6 NO CONFLICT WITH OTHER OBLIGATIONS
the execution and delivery by it of, the performance of its obligations
under, and compliance with the provisions of, the Finance Documents to
which it is a party will not:
(a) contravene in any material respect any existing applicable
law, statue, rule or regulation or any judgment, decree or
permit to which it is subject;
(b) (in the case of each Borrower and each Charging Subsidiary)
contravene or conflict with any provision of its Memorandum
and Articles of Association;
(c) (in the case of each Charging Partnership) contravene or
conflict with any provision of its partnership agreement;
(d) breach in any material respect any term of the Licences or the
Necessary Authorisations;
(e) (in the case of TCN only) conflict with in any material
respect, or result in any material breach of any of the terms
of, or constitute a default under any agreement constituting
or evidencing Borrowed Money to which Telewest or any of its
Subsidiaries is a party or is subject or by which it or any of
its property is bound; or
(f) result in the creation or imposition of or oblige it to create
any Encumbrance (other than those created by the Security
Documents) on any of its undertakings, assets, rights or
revenues;
10.1.7 NO LITIGATION
(in the case of any TCN Entity) no litigation, arbitration or
administrative proceeding is taking place or, to the knowledge of its
officers, pending or threatened against it or (in the case of the
representation given by TCN only) Telewest which is reasonably likely
54
to be adversely determined and, if so determined, would have, or would
be reasonably likely, in the opinion of the Agent, to have, a Material
Adverse Effect;
10.1.8 FINANCIAL STATEMENTS
(in the case of TCN only):
(a) the audited financial statements of the Telewest Group, TCN
and its Subsidiaries and Flextech Limited (formerly Flextech
plc) and its Subsidiaries in respect of the financial year
ended on 31 December 1999 as delivered to the Agent have been
prepared in accordance with GAAP which principles have been
consistently applied and present fairly and accurately the
financial position of each such entity as at such date and the
results of the operations of each such entity respectively for
the financial year ended on such date and, as at such date, no
such entity had any significant liabilities (contingent or
otherwise) nor any significant unrealised or anticipated
losses, which, in any such case, are not disclosed by, or
reserved against in, such financial statements;
(b) the unaudited Quarterly Management Accounts of TCN and its
Subsidiaries in respect of the Quarterly Period ended 31
December 2000 as delivered to the Agent have been prepared in
accordance with GAAP which principles have been consistently
applied and present fairly and accurately the financial
position of TCN and its Subsidiaries as at such date and the
results of the operations of TCN and its Subsidiaries for such
Quarterly Period;
(c) the pro forma consolidated financial projections for the
financial years ending 31 December 2001 to 31 December 2010
inclusive for the TCN Group and the Initial Long Range Plan
have been prepared based upon historical financial information
and upon the assumptions set forth therein, which assumptions
were reasonable when made;
10.1.9 NO FILING REQUIRED
it is not necessary to ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement or any of the Security
Documents to which it is a party that any of them or any other
instrument be notarised, filed, recorded, registered or enrolled in any
court or public office (save for (i) the registration of the TCN
Debenture, the Pledge and Security Agreements, the Share Charge, the
Telewest Loan Assignment and the Scottish Security Documents pursuant
to Section 395 or 410 Companies ▇▇▇ ▇▇▇▇ or other similar regulations,
to the extent required thereunder and (ii) the filing of UCC-1
Financing Statements and continuation statements with respect to the
Pledge and Security Agreements and the Share Charge in respect pursuant
to the applicable Uniform Commercial Code);
10.1.10 CHOICE OF LAW
its choice of English law to govern this Agreement and the Security
Documents to which it is a party (other than (a) the Pledge and
Security Agreements and the Reimbursement Agreement, under which
Colorado law is to govern, (b) the Scottish Security Documents, under
which Scots law is to govern and (c) the Jersey Share Pledge, under
which Jersey law is to govern) and its submission to the jurisdiction
of the English courts, is valid and binding subject to the
qualifications contained in the legal opinions referred to in Part A of
schedule 3 which relate thereto;
10.1.11 TITLE TO ASSETS
(in the case of TCN Entities) it is the legal and/or beneficial owner
of and has valid title to, or has valid leases of, all its material
assets which are the subject of the security created by the Security
Documents free and clear of any Encumbrance (other than Permitted
Encumbrances) in respect of its interest in such assets;
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10.1.12 SOLVENCY
(a) (in the case of TCN only) after giving effect to the
transactions contemplated hereby, the Advances to be made
hereunder and the application of the proceeds thereof, and
taking into account the execution, delivery and effectiveness
of the Reimbursement Agreement, (i) on a pro forma basis, the
fair value and the present fair saleable value of each
Associated Partnership's assets will exceed that Associated
Partnership's stated liabilities and identified contingent
liabilities, (ii) each Associated Partnership will have the
ability to pay its debts as they become absolute or mature,
and (iii) the capital or assets remaining in each Associated
Partnership after consummation of the transactions
contemplated hereby will not be unreasonably small to conduct
that Associated Partnership's business as it is now conducted
and is proposed to be conducted during the term hereof;
(b) (in the case of the US Borrower only), immediately following
the making of the Facility D1 Advance, and after giving effect
to the application of the proceeds of such Advance, (i) the
fair value of the assets of the US Borrower on such date will
exceed its debts and liabilities, subordinated, contingent or
otherwise on such date (ii) the present fair saleable value of
the property of the US Borrower will be greater than the
amount that will be required to pay the probable liability of
its debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute
and matured; (iii) the US Borrower will be able to pay its
debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured; and
(iv) the US Borrower will not have unreasonably small capital
with which to conduct the business in which it is engaged as
such business is now conducted and is proposed to be conducted
following such date;
10.1.13 COMPLIANCE WITH ENVIRONMENTAL LAWS AND LICENCES
(in the case of TCN Entities) it:
(a) complies and has at all times complied with all Environmental
Laws and Environmental Licences the breach of which would have
or would be reasonably likely to have a Material Financial
Adverse Effect; and
(b) has obtained and maintains in full force and effect all
Environmental Licences, and there are no facts or
circumstances entitling any such Environmental Licences to be
revoked, suspended, amended, varied, withdrawn or not renewed,
in each case where such failure to have an Environmental
License, revocation, suspension, amendment, variation,
withdrawal or non-renewal, would have or would be reasonably
likely to have a Material Financial Adverse Effect;
10.1.14 ENVIRONMENTAL CLAIM
(in the case of TCN Entities) no Environmental Claim is pending or has
been made or threatened against it or any of its respective officers or
any occupier of any property owned or leased by it and it has no reason
to believe that it or, in the case of TCN, any of its Subsidiaries or
Associated Partnerships has or is likely to have any liability in
relation to Environmental Matters which would have or would be
reasonably likely to have a Material Financial Adverse Effect;
10.1.15 DEPOSIT OF RELEVANT SUBSTANCE
(in the case of TCN Entities) to the best of its knowledge and belief,
no Relevant Substance has been deposited, disposed of, kept, treated,
imported, exported, transported, processed, manufactured, used,
collected, sorted or produced at any time, or is present in the
environment (whether or not on property owned, leased, occupied or
controlled by it) in circumstances which are likely to result in an
Environmental Claim against it which would, or is reasonably likely to
have a Material Financial Adverse Effect;
56
10.1.16 INTELLECTUAL PROPERTY RIGHTS
(in the case of TCN Entities):
(a) the Intellectual Property Rights owned by it are free from any
Encumbrance (save for those created or to be created by or
pursuant to the Security Documents or otherwise permitted
hereunder) and any other rights or interests in favour of
third parties;
(b) the Intellectual Property Rights owned by it are all the
Intellectual Property Rights required by them in order to
carry on, maintain and operate in all material respects their
respective businesses, properties and assets and in carrying
on its business it does not infringe any Intellectual Property
Rights of any third party where any action taken by such third
party in respect of any such infringement would have or would
be reasonably likely to have a Material Financial Adverse
Effect; and
(c) no Intellectual Property Rights owned by it are being
infringed, nor, to the knowledge of its officers, is there any
threatened infringement of any such Intellectual Property
Rights which, in either case would have or would be reasonably
likely to have a Material Financial Adverse Effect;
10.1.17 COPYRIGHT MATTERS
(in the case of TCN Entities) it has obtained all consents and taken
all other material action required in connection with the secondary
transmission by it of any broadcast television signals; it has no
knowledge, nor is it aware of any claim, that it is or may be liable to
any person for any copyright infringement of any nature whatsoever as a
result of the operation of its business which liability in the opinion
of the Agent would have or would be reasonably likely to have a
Material Financial Adverse Effect.
10.1.18 INVESTMENT COMPANY ACT
(in the case of the US Borrower only) it is not an "investment company"
or a company "controlled" by an "investment company", within the
meaning of the United States Investment Company Act of 1940, as
amended;
10.1.19 PUBLIC UTILITY HOLDING COMPANY ACT AND FEDERAL POWER ACT
(in the case of the US Borrower only) it is not a "holding company", or
an "affiliate" of a "holding company" or a "subsidiary company" of a
"holding company", within the meaning of, or otherwise subject to
regulation under, the United States Public Utility Holding Company Act
of 1935, as amended. It is not a "public utility" within the meaning
of, or otherwise subject to regulation under, the United States Federal
Power Act; and
10.1.20 MARGIN STOCK
(a) (in the case of TCN Entities) the proceeds of the Advances
have been and will be used only for the relevant purposes
described in clause 1.1;
(b) (in the case of the US Borrower only) it is not engaged
principally in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the
meaning of Regulations U and X of the Board of Governors of
the United States Federal Reserve System), and no portion of
any Facility D Advance has been or will be used, directly or
indirectly, to purchase or carry margin stock or to extend
credit to others for the purpose of purchasing or carrying
margin stock.
57
10.2 FURTHER REPRESENTATIONS AND WARRANTIES
Each TCN Entity (other than TCN) in respect of itself and TCN in
respect of itself and (as the case may be) each Joint Venture Group
further represents and warrants to each of the Finance Parties that:
10.2.1 LICENCES AND NECESSARY AUTHORISATIONS
(in the case of TCN Entities) the Licences owned by it are in full
force and effect and it is in compliance with all provisions thereof in
all respects which are material in the context of the TCN Group taken
as a whole. (In the case of TCN Entities) it has secured all the
Necessary Authorisations, all such Necessary Authorisations are in full
force and effect and it is in compliance in all material respects with
all provisions thereof. (In the case of TCN Entities) to the best of
its knowledge, neither such Licences nor any such Necessary
Authorisations are the subject of any pending or threatened attack or
revocation which (in the case of such Necessary Authorisations only)
would have or would be reasonably likely to have a Material Adverse
Effect;
10.2.2 CONSENTS OBTAINED
(in the case of TCN Entities) every consent, authorisation, licence or
approval of, or registration with or declaration to, governmental or
public bodies or authorities or courts required by it to authorise, or
required by it in connection with, the execution, delivery, validity,
enforceability or admissibility in evidence of this Agreement and the
Security Documents to which it is a party or the performance by it of
its obligations under this Agreement and the Security Documents to
which it is a party has been obtained or made and is in full force and
effect (other than those registrations and filings referred to in
clause 10.1.9) and there has been no material default in the observance
of the conditions or restrictions (if any) imposed in, or in connection
with, any of the same;
10.2.3 NO WITHHOLDING TAXES
(in the case of TCN Entities) as at the date of this Agreement, on the
basis that all of the Lenders in connection with Facility A, Facility B
and Facility C are Qualifying Lenders, no Taxes are imposed by
withholding or otherwise on any payment to be made in respect of
Facility A, Facility B or Facility C to the Finance Parties by it under
this Agreement or any Security Document to which it is a party or are
imposed on it or by virtue of the execution or delivery by it of this
Agreement or any Security Document to which it is a party or any
document or instrument to be executed or delivered under this Agreement
or any such Security Document (other than stamp duty payable on any
Security Document);
10.2.4 TELECOMMUNICATIONS, CABLE AND BROADCASTING LAWS
it and each member of each Joint Venture Group complies and has at all
times complied in all material respects with all Telecommunications,
Cable and Broadcasting Laws (but excluding, for these purposes only,
breaches of Telecommunications, Cable and Broadcasting Laws which have
been expressly waived by the relevant regulatory authority);
10.2.5 NO DEFAULT
(in the case of TCN only) no Default has occurred and is continuing
which has not been expressly waived;
10.2.6 INFORMATION MEMORANDUM
(in the case of TCN only), as at the date of each Information
Memorandum (a) all written factual information made available by
Telewest or any member of the TCN Group and contained in the
Information Memorandum is true, complete and accurate in all material
respects and does not omit any material fact the omission of which
58
would make any such factual information misleading and (b) all
forecasts, estimates, opinions and financial projections contained in
the Initial Long Range Plan have been prepared in good faith, based
upon reasonable assumptions.
No warranty or representation is made in respect of (i) any opinions,
projections, forecasts or circumstances relating to the cable and
telecommunications industry as a whole ("INFORMATION"), (ii) any person
other than Telewest, TCN and members of the TCN Group or (iii) any
Information which is in the public domain or which is identified in the
Information Memorandum as having been obtained from or made by a
source, or being those of a person, other than TCN, any other member of
the TCN Group or Telewest;
10.2.7 CARRY ON BUSINESS SOLELY IN UK
(in the case of TCN only) each of the TCN Entities:
(a) (other than the US Borrower) does not employ any employees in
the State of Colorado or elsewhere in the United States of
America; and
(b) carries on business solely in, and its principal places of
business, books and records and the property subject to the
Security Documents are located in, the United Kingdom (except
that (i) any Charging Partnership formed in the State of
Colorado maintains an office in the State of Colorado and does
not maintain an office in any other state of the United States
of America, (ii) the ownership interests in the Original
Charging Partnerships, the US Borrower, BCFL and IVS are
located in the country of formation of such entities, (iii)
the rights of the US Borrower under the Intercompany Loan
Agreement, the books and records of the US Borrower and the
other assets of the US Borrower necessary to carry out the
business referred to in clause 12.1.19, are located in
Delaware,) and (iv) the US Borrower undertakes the business
referred to in clause 12.1.19, and
control and management of each of the TCN Entities (other than the US
Borrower where control takes place in Delaware) takes place outside the
United States of America;
10.2.8 US BORROWER
(in the case of US Borrower only) it has not traded or carried on
business since the date it was formed except for the business of
borrowing the Facility D1 Advance, making and maintaining the on-loan
of such borrowing pursuant to the Intercompany Loan Agreement and other
activities directly relating thereto. The US Borrower neither sponsors
nor contributes to any ERISA Plan;
10.2.9 IMMATERIAL GROUP ENTITIES
(in the case of TCN only), each member of the TCN Group which is a
Material Group Entity is a party to this Agreement and each Original
Non-Charging Subsidiary is an Immaterial Group Entity;
10.2.10 BROADCASTING ▇▇▇ ▇▇▇▇
neither it nor any member of any Joint Venture Group is (other than
being a body corporate which is controlled by a person or persons
falling within paragraph 1(1)(b) of Part 11 of Schedule 2 to the
Broadcasting Act 1990 (the "ACT")) a "disqualified person" for the
purposes of Schedule 2 of the Act;
10.2.11 JV DOCUMENTATION
the JV Documentation entered into by it are in full force and effect
and constitute valid and legally binding obligations of all members of
the TCN Group or any Joint Venture Group party thereto in all material
respects. To the best of its knowledge and belief after due enquiry, no
59
party to any JV Documentation is in material breach of the terms
thereof and there is no material dispute subsisting between the parties
thereto;
10.2.12 GROUP STRUCTURE CHART
(in the case of TCN only) the group structure chart delivered to the
Agent pursuant to Part A of schedule 3 will be true, complete and
accurate in all material respects as at the date of the first Advance;
10.2.13 TRANSFER OF FLEXTECH ASSETS
(in the case of TCN only) as at the date of the first Advance entities
and/or assets representing not less than 90 per cent. in aggregate of
(i) the Gross Assets of Flextech Limited (formerly Flextech plc) and
its Subsidiaries, (ii) the consolidated net operating cash flow of
Flextech Limited (formerly Flextech plc) and its Subsidiaries
(calculated on the same basis as Consolidated TCN Group Net Operating
Cash Flow) and (iii) the revenues of Flextech Limited (formerly
Flextech plc) and its Subsidiaries, all as determined by reference to
the latest consolidated audited financial statements of Flextech
Limited (formerly Flextech plc) and its Subsidiaries will be, and/or
will be owned by, TCN Entities; and
10.2.14 NO MATERIAL ADVERSE CHANGE
(in the case of TCN only) there has been no material adverse change in
the financial position of (i) TCN and its Subsidiaries, (ii) the
Telewest Group and (iii) Flextech Limited (formerly Flextech plc) and
its Subsidiaries from that set forth in the financial statements
referred to in clause 10.1.8(a) and 10.1.8(b) and there has been no
material adverse change in the operations or business prospects of TCN
and its Subsidiaries, the Telewest Group or Flextech Limited (formerly
Flextech plc) and its Subsidiaries (as applicable) from that set forth
in such financial statements.
10.3 REPETITION
The representations and warranties in clause 10.1 shall be deemed to be
repeated by each TCN Entity in respect of itself on and as of each
Interest Payment Date and the date on which each Advance is made under
this Agreement (but so that (i) the representation and warranty in
clause 10.1.8(a) shall for this purpose refer to the latest
consolidated financial statements of the TCN Group and the Telewest
Group only (as applicable) verified by the auditors of the TCN Group or
the Telewest Group (as the case may be) delivered to the Agent under
clause 11.1 and (ii) the representation and warranty contained in
clause 10.1.8(c) shall for this purpose refer to the then latest pro
forma consolidated financial projections of the TCN Group and shall not
include a representation or warranty as to the Initial Long Range
Plan).
11 POSITIVE COVENANTS
11.1 COVENANTS
Each TCN Entity undertakes with each of the Finance Parties that it
will from the date of this Agreement and so long as any monies are
owing under this Agreement or any part of the Commitments remains
outstanding:
11.1.1 NOTICE OF DEFAULT, ETC.
(in the case of TCN only) promptly inform the Agent of any Default and
any likely breach of any of the undertakings set out in clause 13
forthwith upon becoming aware thereof and will from time to time, if so
requested by the Agent, confirm to the Agent in writing that, save as
otherwise stated in such confirmation, no Default has occurred and is
continuing;
60
11.1.2 CONSENTS AND AUTHORISATIONS
obtain or cause to be obtained (i) every consent, authorisation,
licence or approval of, or registration with or declaration to,
governmental or public bodies or authorities or courts and (ii) every
notarisation, filing, recording, registration or enrolment in any court
or public office in the United Kingdom and the United States of America
(in any such case) required by it to authorise the execution, delivery,
validity, enforceability or admissibility in evidence of the Finance
Documents to which it is a party or the performance by it of its
respective obligations under Finance Documents to which it is a party;
11.1.3 LICENCES
(a) obtain or cause to be obtained every Licence and ensure that:
(i) no Licence issued to it is revoked, cancelled,
suspended, withdrawn, terminated, expires or
otherwise ceases to be in full force and effect
unless the same is, prior to or contemporaneously
with such event, renewed or replaced or such Licence
is no longer required by applicable laws for the
purposes of the business of the TCN Group;
(ii) none of the DTI, ITC, OFTEL nor any other relevant
authority issues any notice in respect of any TCN
Franchise informing Telewest or any TCN Entity that
it has or will (whether or not following the failure
to satisfy certain conditions) revoke, cancel,
suspend, withdraw, terminate or not permit the
renewal of such Licence (whether or not such notice
gives Telewest or any TCN Entity a period within
which to remedy the matter which gave rise to such
notice); and
(iii) no Licence is modified and it does not commit any
breach of the terms or conditions thereof (including,
without limitation, any failure to meet the
milestones referred to therein)
where any such action or event referred to above would have or would be
reasonably likely, in the opinion of the Agent, to have a Material
Adverse Effect; and
(b) ensure that at all times during the Finance Period there are
sufficient Licences held by TCN Entities to enable the TCN
Group properly to conduct its business;
11.1.4 NECESSARY AUTHORISATIONS
obtain or maintain or cause to be obtained and maintained every
Necessary Authorisation and ensure that:
(a) none of the Necessary Authorisations is revoked, cancelled,
suspended, withdrawn, terminated, expires and is not renewed
or otherwise ceases to be in full force and effect; and
(b) no Necessary Authorisation is modified and it does not commit
any breach of the terms or conditions of any Necessary
Authorisation
which, in the case of any of the actions or events referred to above,
would have or would be reasonably likely, in the opinion of the Agent,
to have a Material Adverse Effect;
11.1.5 BUSINESS OF THE BORROWERS AND THE CHARGING SUBSIDIARIES
(a) (in the case of all TCN Entities other than the US Borrower)
engage in the business of acting as the holder of shares
and/or partnership interests in other TCN Entities and/or the
business of constructing, installing, operating and utilising
cable television and/or telecommunications systems and/or the
business of broadcasting and no other activities save for
directly related businesses;
61
(b) (in the case of the US Borrower) engage solely in the business
of borrowing the Facility D1 Advance and making and
maintaining the on-loan of such borrowing and other activities
directly relating, thereto;
11.1.6 FINANCIAL STATEMENTS
(in the case of TCN only) prepare consolidated financial statements of
the Telewest Group and the TCN Group in accordance with GAAP and cause
such financial statements to be reported on by their respective
auditors and deliver to the Agent sufficient copies of the same for
distribution to all of the Lenders, as soon as practicable but not
later than 180 days after the end of the financial year to which they
relate;
11.1.7 QUARTERLY MANAGEMENT ACCOUNTS
(in the case of TCN only) in respect of each Quarterly Period, prepare
unaudited consolidated Quarterly Management Accounts for the TCN Group
containing information of the same type and to the same level of detail
as in the format agreed with the Lead Arrangers (including, without
limitation, a profit and loss account, balance sheet and cash flow
statement and, in the case of the last Quarterly Period of each
financial year, a profit and loss account, balance sheet and cash flow
statement for that financial year in the agreed form) (or omitting any
such information or detail or containing such other information or to
such other level of detail as may, from time to time, be approved by
the Agent (acting on the instructions of the Majority Lenders) in
writing); TCN shall deliver a copy of the same to the Agent for
distribution to all of the Lenders at the same time as the same are
publicly announced, but in any event not later than 45 days (or, in the
case of the last Quarterly Period of each financial year in which a
Facility D Advance has been drawn, 75 days or if no Facility D Advance
has been drawn in such financial year, 60 days) after the Quarterly
Period to which they relate;
11.1.8 CHANGE IN BASIS OF ACCOUNTS
(in the case of TCN only) ensure that all financial statements
delivered under clause 11.1.6 are prepared in accordance with GAAP and
in accordance with the accounting principles and practices used in the
preparation of the financial statements referred to in clause 10.1.8(a)
and the Annual Budget for the financial year ended 31 December 2001
(the "ORIGINAL BASIS") consistently applied in respect of each
financial year save to the extent that TCN notifies the Agent in
writing of the relevant change and (at the option of TCN) either
prepares and delivers to the Agent audited financial statements on both
the Original Basis and financial statements prepared on the new basis
(the "NEW BASIS") or on the New Basis only with an audited
reconciliation statement (a "RECONCILIATION STATEMENT") showing those
adjustments necessary in order to reconcile the financial statements
produced on the New Basis to the Original Basis.
Where TCN elects to deliver financial statements under clause 11.1.6 on
both the Original Basis and the New Basis (or on the New Basis but
accompanied by a Reconciliation Statement), Quarterly Management
Accounts shall also be delivered on a similar basis.
All financial statements, Quarterly Management Accounts and
Reconciliation Statements delivered pursuant to this clause 11.1.8
shall be delivered within the relevant time period set out in clause
11.1.
The provisions of this clause 11.1.8 shall also apply, mutatis
mutandis, to the preparation and delivery of the Annual Budget under
clause 11.1.9(e);
11.1.9 DELIVERY OF REPORTS
(in the case of TCN only) deliver to the Agent, for distribution to the
Lenders (in the case of an Accountants Report as referred to in clause
11.1.9(d) below and the documents or announcements referred to in
clause 11.1.9(g) below, in sufficient copies for all of the Lenders):
62
(a) every document issued by any TCN Entity to its creditors
generally;
(b) every document received or issued by any TCN Entity which
evidences any default under, or the crystallisation of, any
obligations owing by a TCN Entity to a Lessor or to ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇;
(c) a Compliance Certificate, stating that TCN was in compliance
with the relevant covenants and undertakings in clause 11.1.21
and clause 13 (or if it was not in compliance indicating the
extent of the breach) as at the last day of the financial
period to which the financial statements or Quarterly
Management Accounts delivered pursuant to clauses 11.1.6 and
11.1.7 above relate;
(d) an Accountants Report confirming the amounts set out in the
Compliance Certificate issued in respect of the Quarterly
Period ending as at the end of the financial year of the TCN
Group;
(e) an Annual Budget for each financial year for the TCN Group
commencing on or after 1 January 2002 no later than 60 days
after the beginning of such financial year;
(f) no later than 90 days after the end of each financial year
commencing after the date of this Agreement, revised financial
projections and revised projections for operating statistics
in relation to the TCN Group containing information of the
same type and to the same level of detail as the operational
statistics projections contained in the Initial Long Range
Plan, such projections to extend to at least 31 December 2010
and to contain details of the assumptions on the basis of
which such projections have been prepared and an explanation
of any discrepancies from the projections most recently
delivered under this sub-paragraph (f) (or, in the case of the
first such projections, from the base case projections
contained in the Initial Long Range Plan); and
(g) every document or announcement issued by Telewest to its
shareholders generally or made available by Telewest to the
public where any such document or announcement relates to the
financial position or prospects of Telewest (including,
without limitation, reports on forms 10-Q and 10-K as and when
delivered to the United States Securities and Exchange
Commission)
in each case, at the time of issue thereof or within the
period referred to in this clause 11.1.9 or (i) in the case of
the Compliance Certificates referred to in (c) above) together
with the financial statements to be delivered to the Agent
pursuant to clauses 11.1.6 and 11.1.7 above and (ii) (in the
case of the Accountants Reports referred to in (d) above)
together with the financial statements to be delivered to the
Agent pursuant to clause 11.1.6 above.
11.1.10 FINANCIAL YEAR END
maintain a financial year end of 31 December;
11.1.11 AUTHORISED OFFICERS
ensure that any new or replacement Authorised Officer has provided the
Agent with evidence satisfactory to it of such new officer's authority
and a specimen of his or their signature(s) prior to signing any
certificates, notices, requests or confirmations referred to in this
Agreement or relating to the Facilities;
11.1.12 AUDITORS
ensure that KPMG Audit Limited or another major firm of recognised
international standing and repute are its auditors;
63
11.1.13 PROVISION OF FURTHER INFORMATION
(in the case of TCN only) supply to the Agent:
(a) promptly upon becoming aware of them, details of any
litigation, arbitration or administrative proceedings
(excluding any such litigation, arbitration or administrative
proceedings arising from a breach of any Environmental Law
which do not require notification under clause 11.1.16)
whether current, threatened or pending against any TCN Entity
which has or might reasonably be expected to have a Material
Adverse Effect;
(b) promptly on receipt, all notices or other communications
received from the DTI, OFTEL or the ITC (or in each case the
relevant successor regulatory body) which allege or claim that
a TCN Entity is in any breach of any provision of any of the
Licences in any manner which has or is likely to have a
Material Adverse Effect or which might reasonably be expected
to give rise to the revocation, termination, suspension or
withdrawal of any of the Licences; and
(c) such further financial information concerning each TCN Entity
or, to the extent available to any member of the TCN Group,
any member of any Joint Venture Group as the Agent or any
Lender (acting through the Agent) may from time to time
reasonably require provided that TCN shall not be obliged to
disclose any such information (A) which would cause the
relevant TCN Entity or, in the case of any information
relating to any member of a Joint Venture Group, such entity
to be in breach of any undertaking or obligation of
confidentiality owed to a third party and where TCN has taken
all reasonable steps available to it to secure the release of
any such confidentiality undertaking or obligation or (B)
where the relevant TCN Entity or, in the case of any
information relating to any member of a Joint Venture Group,
such entity is precluded from such disclosure by law or
regulation or any agreement entered into with any government
or governmental agency;
11.1.14 INSURANCE
(in the case of TCN only) maintain policies of insurance in relation to
the business and assets of the TCN Group for all risks normally insured
by prudent companies carrying on a similar business;
11.1.15 INSPECTION
where required by the Agent (acting on the instructions of the Majority
Lenders), permit representatives of the Agent and any of the Lenders
upon three Banking Days' prior written notice to TCN and after having
made arrangements with TCN so to do to:
(a) visit and inspect its properties during normal business hours;
(b) inspect and make extracts from and copies of its books and
records provided that it shall not be obliged to disclose any
such information (A) which would cause it to be in breach of
any undertaking or obligation of confidentiality owed to a
third party and where it has taken all reasonable steps to
secure the release of any such confidentiality undertaking or
obligation or (B) where it is precluded from such disclosure
by law or regulation or any agreement entered into with any
government or governmental agency; and
(c) discuss with its principal officers and auditors, its
business, assets, liabilities, financial position, results of
operations and business prospects;
11.1.16 NOTIFICATION OF ENVIRONMENTAL CLAIM AND EXPENDITURE
(in the case of TCN only) promptly on becoming aware of it notify the
Agent of any Environmental Claim which has been made or threatened
against any member of the TCN Group or any occupier of any property
64
owned or leased by any member of the TCN Group or any requirement by
any Environmental Licence or applicable Environmental Laws for any
member of the TCN Group to make any investment or incur any expenditure
in excess of (pound)10,000,000 in aggregate in any calendar year or to
take or desist from taking any action which would have or would be
reasonably likely, if substantiated, to have a Material Financial
Adverse Effect;
11.1.17 DELIVERY OF ENVIRONMENTAL LICENCES AND OTHER INFORMATION
promptly following request by the Agent provide the Agent with copies
of all material Environmental Licences and the terms and conditions
thereof and any material amendments thereto;
11.1.18 COMPLIANCE WITH LAWS AND REGULATIONS
comply with the terms and conditions of all laws (other than
Telecommunications, Cable and Broadcasting Laws, the Licences and the
Necessary Authorisations including any milestone requirements in
respect thereof), regulations, judgments, agreements, licences and
concessions including, without limitation, all Environmental Laws and
all Environmental Licences if the failure to comply therewith, would
have or would be reasonably likely, in the opinion of the Agent, to
have a Material Financial Adverse Effect;
11.1.19 RELEVANT SUBSTANCE
notify the Agent forthwith upon becoming aware of any Relevant
Substance at or brought on to any property owned, leased or occupied by
it which is likely to give rise to an Environmental Claim which would
have or would be reasonably likely to have a Material Financial Adverse
Effect and take or procure the taking of all necessary action to deal
with, remedy or remove from such property or prevent the incursion of
(as the case may be) that Relevant Substance in order to prevent such
an Environmental Claim and in a manner that complies with all
applicable requirements of Environmental Law;
11.1.20 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 is
otherwise subject to Taxation and will pay all Taxes shown to be due
and payable on such returns or any assessments made against it within
the period stipulated for such payment (other than those being
contested in good faith and where such payment may be lawfully
withheld);
11.1.21 MATERIAL GROUP ENTITIES
(in the case of TCN only) it will ensure that at all times during the
period from (and including) the date of the first Advance to the end of
the Finance Period, TCN Entities account for not less than 90 per cent.
in aggregate of (i) the Gross Assets of the TCN Group, (ii) the
Consolidated TCN Group Net Operating Cash Flow and (iii) the revenues
of the TCN Group, determined by reference to the latest audited
accounts;
11.1.22 NEW TCN ENTITIES
(in the case of TCN only) it will and will procure that each Subsidiary
or Associated Partnership that is or becomes a member of the TCN Group
(other than an Immaterial Group Entity unless such Immaterial Group
Entity no longer complies with the definition of Immaterial Group
Entity) and which is not already a party to this Agreement promptly
upon such Subsidiary or Associated Partnership becoming a member of the
TCN Group and which is a Material Group Entity, executes and delivers a
Supplemental Deed (to the extent that such accession is not in breach
of (a) section 151 of the Companies ▇▇▇ ▇▇▇▇ or (b) the provisions of
any Encumbrance permitted by paragraph (i) of the definition of
Permitted Encumbrances for so long as such Encumbrance is permitted to
subsist pursuant to the terms of such paragraph) and provides the Agent
65
with such evidence as it may reasonably request as to the power and
authority of such party to enter into such Supplemental Deed and the
legality, validity and enforceability of the obligations created
thereby. Each TCN Entity further agrees to procure that as soon as
practicable the directors of the relevant Subsidiary comply, (to the
extent permitted by applicable law, with (a) sections 155 to 158 of the
Companies ▇▇▇ ▇▇▇▇ or (b) the provisions of any Encumbrance permitted
by paragraph (i) of the definition of Permitted Encumbrances for so
long as such Encumbrance is permitted to subsist pursuant to the terms
of such paragraph) to ensure that there is no breach of section 151 of
the Companies ▇▇▇ ▇▇▇▇ as aforesaid. The parties hereto agree that upon
the execution and delivery of such Supplemental Deed by all parties
thereto such Subsidiary or Associated Partnership shall become a party
to this Agreement as a TCN Entity and a party to each relevant Security
Document as a chargor;
11.1.23 REIMBURSEMENT AGREEMENT
(in the case of any TCN Entity party to the Reimbursement Agreement)
comply with its obligations under the Reimbursement Agreement and not
assign or transfer all or any part of their respective rights and/or
obligations under the Reimbursement Agreement or amend, vary or waive
all or any of the provisions of the Reimbursement Agreement; and
11.1.24 HEDGING
(in the case of TCN only) maintain a reasonable and prudent policy for
the management of its interest rate and foreign exchange exposures.
12 NEGATIVE COVENANTS
12.1 COVENANTS
Each TCN Entity undertakes with each of the Finance Parties from the
date of this Agreement and so long as any monies are owing under this
Agreement or any of the Commitments remain outstanding that, without
the prior written consent of the Agent acting on the instructions of
the Majority Lenders:
12.1.1 NEGATIVE PLEDGE
it will not permit any Encumbrance (other than Permitted Encumbrances)
to subsist, arise or be created or extended over all or any part of its
present or future undertakings, assets, rights or revenues to secure or
prefer any present or future Indebtedness of any person;
12.1.2 NO MERGER
it will not merge or consolidate with any other company or person save
for mergers between any TCN Entity (excluding TCN) with another TCN
Entity (excluding TCN) ("ORIGINAL ENTITIES") into one or more entities
(each a "MERGED ENTITY") provided that:
(a) such Merged Entity is a member of the TCN Group and is liable
for the obligations of the relevant Original Entities under
this Agreement and the Security Documents which remain
unaffected thereby and entitled to the benefit of all the
rights of such Original Entities;
(b) if required by the Agent (acting on the instructions of the
Majority Lenders), such Merged Entity has entered into
Security Documents which provide security over the same assets
of at least an equivalent nature and ranking to the security
provided by the relevant Original Entities pursuant to any
Security Documents entered into by them and any possibility of
the Security Documents referred to in this paragraph or
paragraph (iii) below being challenged or set aside is not
greater than any such possibility in relation to the Security
66
Documents entered into by or in respect of the share capital
of any relevant Original Entity;
(c) (if all or any part of the share capital of any of the
relevant Original Entities was charged pursuant to a Security
Document) the equivalent part of the issued share capital of
such Merged Entity is charged pursuant to a Security Document
on terms of at least an equivalent nature and ranking as the
Security Document relating to the shares in each relevant
Original Entity; and
(d) the Agent is satisfied (acting reasonably) that all the
property and other assets of the relevant Original Entities
are vested in the Merged Entity and that the Merged Entity has
assumed all the rights and obligations of the relevant
Original Entities under all material Necessary Authorisations;
12.1.3 DISPOSALS
it will not sell, transfer, lease, lend or otherwise dispose of or
cease to exercise control over the whole or any part of its present or
future undertakings, assets, rights or revenues (whether by one or a
series of transactions related or not) other than by way of a Permitted
Disposal, provided that in the case of any Permitted Intra-TCN Group
Transaction which involves any asset of any nature being transferred by
any means whatsoever (directly or indirectly) by any Borrower, an
Original Charging Subsidiary or an Original Charging Partnership to
another TCN Entity (not being a Borrower, an Original Charging
Subsidiary or an Original Charging Partnership), the relevant transfer
must be either made expressly subject to the Encumbrances granted by
the transferor under the Security Documents or the asset concerned must
become subject to a fully enforceable, legally binding Encumbrance from
the transferee in favour of the Security Trustee and the other Finance
Parties substantially equivalent to or better than any existing
Encumbrance over such asset created by the transferor;
12.1.4 BORROWED MONEY
it will not create, assume, incur or otherwise permit to be outstanding
any Borrowed Money other than Permitted Borrowings;
12.1.5 GUARANTEES
it will not incur any obligations or assume any liability under any
guarantee other than Permitted Guarantees;
12.1.6 ISSUE OF SHARES
it will not issue any shares of any class provided that TCN may issue
shares to Telewest and any member of the TCN Group may issue shares to
any TCN Entity provided that such shares are charged in favour of the
Security Trustee pursuant to the terms of a Security Document and there
are delivered to the Security Trustee at the same time, the relevant
share certificates and blank stock transfer forms in respect thereof;
12.1.7 LOANS
it will not make any loan or advance to, or enter into any transaction
having the effect of lending money with, any person (including the
acquisition of any document evidencing Borrowed Money, loan stock or
other debt securities) save for Permitted Loans;
12.1.8 ACQUISITIONS
it will not make any investment in any Joint Venture or acquire all or
any substantial part of the assets, property or business of any other
person or any assets that constitute a division or operating unit of
the business of any other person or create or acquire any Subsidiary or
67
Associated Partnership or other equity share capital other than
Permitted Investments;
12.1.9 SWAPS AND HEDGING
it will not enter into any interest rate or currency swaps or other
hedging arrangements other than (i) directly relating to the risk
management of any Borrowed Money of the TCN Group (other than any
proceeds of the Agreed Securities on-lent to any member of the TCN
Group and which may only be borrowed by any member of the TCN Group in
Sterling) permitted to subsist or not otherwise restricted by the terms
of this Agreement or (ii) forward foreign exchange contracts entered
into in the normal course of business of the TCN Group;
12.1.10 CHANGE OF BUSINESS
(in the case of TCN only) it will procure that the TCN Group (taken as
a whole) does not change the nature of the business carried on by it in
any material respect from that carried on at the date of this Agreement
and that it does not cease to carry on a business where any such change
or cessation would have or would be reasonably likely to have a
Material Adverse Effect;
12.1.11 MEMORANDA AND ARTICLES OF ASSOCIATION; PARTNERSHIP AGREEMENTS
it will not amend its Memorandum or Articles of Association or
partnership agreement (as applicable) in any way which would restrict
the ability of the Security Trustee to exercise its rights under the
Security Documents in respect of its shares or partnership interests
(as applicable);
12.1.12 RESTRICTED PAYMENTS
it will not make and it will procure that no other member of the TCN
Group makes any Restricted Payment other than Permitted Payments;
12.1.13 SERVICES TO RESTRICTED PERSONS
it will not enter into any contractual or other arrangements with a
Restricted Person or any of their Subsidiaries or Associated
Partnerships or any other shareholders other than (i) on bona fide arms
length commercial terms and (ii) those arrangements which exist at the
date hereof and have been agreed in writing by the UK Agent;
12.1.14 LIABILITIES OF RESTRICTED PERSONS
it will procure that, save to the extent otherwise permitted by this
Agreement, no Restricted Person has outstanding any liabilities to any
TCN Entity which are not satisfied within 60 days of the occurrence of
the matter in respect of which such liability arose.
In this clause 12.1.14 "LIABILITIES" of a Restricted Person to a TCN
Entity shall mean liabilities incurred after the date hereof and shall
include, without limitation, (i) any liabilities of that TCN Entity to
a third party entered into on behalf of that Restricted Person and (ii)
any payments made by that TCN Entity on behalf of that Restricted
Person, in either case where such liabilities or payments have not been
discharged or reimbursed but shall exclude any liabilities of a
Restricted Person to a TCN Entity which are a Permitted Investment by
that TCN Entity in that Restricted Person;
12.1.15 NO CARRYING ON BUSINESS IN UNITED STATES
it shall not and it shall procure that each other member of the TCN
Group shall not (i) (other than the US Borrower) employ any employees
in the State of Colorado or elsewhere in the United States of America
and (ii) carry on any business or maintain its principal places of
business, books and records and the property subject to the Security
68
Documents in the United States of America (except that (i) any Charging
Partnership formed in the State of Colorado maintains an office in the
State of Colorado, but does not maintain an office in any other state
of the United States of America, (ii) the ownership interests in the
Original Charging Partnerships, the US Borrower, BCFL and IVS are
located in the country of formation of such entities, (iii) the rights
of the US Borrower under the Intercompany Loan Agreement, the books and
records of the US Borrower and the other assets of the US Borrower
necessary to carry out the business referred to in clause 12.1.19 are
located in Delaware and (iv) the US Borrower undertakes the business
referred to in clause 12.1.19). Control and management of each of the
TCN Entities (other than the US Borrower where control and management
takes place in Delaware) shall take place outside the United States of
America;
12.1.16 REDUCTION OF CAPITAL
(in the case of TCN only) it will not redeem or purchase or otherwise
reduce its equity or any other share capital or any uncalled or unpaid
liability in respect thereof or reduce the amount (if any) for the time
being standing to the credit of its share premium account or capital
redemption or other undistributable reserve in any manner save for such
a redemption, purchase or reduction as constitutes a Permitted Payment;
12.1.17 TCN GROUP INTERESTS IN JOINT VENTURES
(in the case of TCN only) it will not, and will procure that no other
member of the TCN Group will and no member of the TCN Group which is a
shareholder in any Joint Venture will, other than (in the case of
(a)(ii), (b) and (c) below) in connection with a JVIPO
(a) vote, or permit any director appointed by it to the board of
any Joint Venture to vote, either (i) to allow such Joint
Venture or any of its Subsidiaries to terminate or (ii) to
amend or vary or grant any waiver under any JV Documentation
if such event referred to above would have or would be
reasonably likely, in the opinion of the Agent, to have a
Joint Venture Material Adverse Effect;
(b) save for Permitted Disposals, sell, transfer or otherwise
dispose of or cease to exercise direct control over any part
of its rights, title and interest in and to any of the Joint
Ventures other than in accordance with the provisions of the
relevant joint venture agreement for such Joint Venture and in
any event will not sell, transfer or otherwise dispose of the
same to an Associate (as defined therein) unless such
Associate is also a TCN Entity;
(c) convene any meeting with a view to, or vote in favour of any
resolution to, alter any provision of the JV Articles of
Association which would create any new class of share or any
securities convertible into or carrying rights to subscribe
for shares of any class or which would alter the rights of any
class of shares otherwise than in accordance with the JV
Articles of Association in their form as at the date hereof
unless both a JVIPO has occurred and such resolution would not
have or would not be reasonably likely to have a Material
Adverse Effect;
12.1.18 ACTIONS TAKEN BY THE JOINT VENTURES
Except after a JVIPO
(a) Borrowed Money by the Joint Ventures
notwithstanding clause 12.1.4, in the case of TCN it will
procure that no member of any Joint Venture Group will create,
assume, incur or otherwise permit to be outstanding any
Borrowed Money in an aggregate amount of more than
(pound)250,000 other than in respect of the JV Loan Stock and
the (pound)5,000,000 revolving credit facility to be made
available to it by TCN Entities;
69
(b) Encumbrances by the Joint Venture Group
notwithstanding clause 12.1.1, in the case of TCN only, it
will procure that no member of the Joint Venture Group permits
any Encumbrance (other than liens arising in the ordinary
course of trading) to subsist, arise or be created or extended
over all or any part of its present or future undertakings,
assets, rights or revenues to secure or prefer any present or
future Indebtedness of any person other than the WAG NatWest
Debenture provided that the amount secured does not exceed
(pound)1,000,000;
(c) Loans by the Joint Venture Groups
notwithstanding clause 12.1.7 in the case of TCN, it will
procure that no member of any Joint Venture Group makes any
loans or grants any credit (save for normal trade credit in
the ordinary course of business) or gives or permits to remain
outstanding any guarantee to or for the benefit of any other
person other than, in any such case, in favour of any TCN
Entity; or
(d) Disposals by the Joint Venture Groups
notwithstanding clause 12.1.3, in the case of TCN only it will
procure that no member of any Joint Venture Group will sell,
transfer, lend or otherwise dispose of or cease to exercise
direct control over any part of its present or future
undertakings, assets, rights or revenues (other than by
transfers, sales or disposals for full consideration in the
ordinary course of trading);
12.1.19 US BORROWER
(a) (in the case of the US Borrower only) it will ensure that the
proceeds of any Facility D Advance made by the US Borrower
shall be on-lent by way of intercompany loan to TCN in
accordance with clause 4.9;
(b) (in the case of the US Borrower only) it will ensure that the
intercompany loan referred to in clause 4.9 is made on the
terms of the Intercompany Loan Agreement and will comply in
all material respects with and not vary or amend the
Intercompany Loan Agreement in any material respect and, in
addition, the US Borrower will ensure that neither it nor any
Subsidiary of it will sponsor or contribute to an ERISA Plan.
13 FINANCIAL COVENANTS
13.1 COVENANTS
TCN undertakes with each of the Finance Parties:
13.1.1 TOTAL TCN GROUP SENIOR DEBT/CONSOLIDATED ANNUALISED TCN GROUP NET
OPERATING CASH FLOW
that on each Quarter Day falling within the period set out in column
(1) below the ratio of Total TCN Group Senior Debt on that day to
Consolidated Annualised TCN Group Net Operating Cash Flow calculated by
reference to the Quarterly Period ending on such day (as shown in the
relevant Compliance Certificate) shall not exceed the number set out
against such period in column (2) below:
70
(1) (2)
PERIOD RATIO
from the date of this Agreement to (and including) 31 6.5
December 2001
from 1 January 2002 to (and including) 30 June 2002 6.0
from 1 July 2002 to (and including) 31 December 2002 5.75
from 1 January 2003 to (and including) 30 June 2003 5.0
from 1 July 2003 to (and including) 31 December 2003 4.5
from 1 January 2004 to (and including) 30 June 2004 3.5
from 1 July 2004 and thereafter 3.0
13.1.2 TOTAL TCN GROUP SENIOR DEBT INTEREST COVER
that on each Quarter Day falling within the period set out in column
(1) below the ratio of Consolidated TCN Group Net Operating Cash Flow
in respect of the Six Month Period ending on such day to Senior Debt
Interest Charges for such Six Month Period shall not be less than the
number set out against such period in column (2) below:
(1) (2)
PERIOD RATIO
from the date of this Agreement to (and including) 31 1.75:1
December 2002
from 1 January 2003 to (and including) 31 March 2003 2.00:1
from 1 April 2003 to (and including) 30 June 2003 2.25:1
from 1 July 2003 to (and including) 30 September 2003 2.50:1
from 1 October 2003 to (and including) 31 December 2.75:1
2003
from 1 January 2004 to (and including) 31 March 2004 3.00:1
from 1 April 2004 to (and including) 30 June 2004 3.50:1
from 1 July 2004 to (and including) 31 December 2004 4.00:1
from 1 January 2005 onwards 5.00:1
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13.1.3 TCN GROUP CASH PAYING DEBT INTEREST COVER
that on each Quarter Day falling within the period set out in column
(1) below the ratio of Consolidated TCN Group Net Operating Cash Flow
in respect of the Six Month Period ending on such day to Total TCN
Group Cash Paying Debt Interest Charges during such Six Month Period
shall not be less than the number set out against such period in column
(2) below:
(1) (2)
PERIOD RATIO
from 1 July 2002 to (and including) 31 December 2002 0.90:1
from 1 January 2003 to (and including) 31 March 2003 1.00:1
from 1 April 2003 to (and including) 31 December 2003 1.35:1
from 1 January 2004 to (and including) 31 March 2004 1.50:1
from 1 April 2004 to (and including) 30 September 2004 1.75:1
from 1 October 2004 to (and including) 31 December 2.25:1
2004
from 1 January 2005 to (and including) 31 March 2006 2.50:1
from 1 April 2006 onwards 3.00:1
13.1.4 AUDITORS CERTIFICATE
If at any time the Majority Lenders do not consider (acting reasonably)
that any figure set out in any Compliance Certificate issued by any
Authorised Officer is correct and they believe in good faith that an
adjustment to such figure would be likely to lead to a breach of any of
the covenants set out in clause 13.1, they shall be entitled within 30
days of the date of the delivery of such Compliance Certificate to the
Agent pursuant to clause 11.1 to call for a certificate from TCN's
auditors as to such figure if the Agent (on their behalf) provides TCN
with an explanation of the reasons for the belief that the figure is
incorrect. For such purposes TCN's auditors shall act as independent
experts and not as arbiters and every such certificate shall be
addressed to the Agent (on behalf of the Lenders) and be at the expense
of TCN. The Majority Lenders may only call for one such certificate in
any calendar year. If the Majority Lenders call for such a certificate
all calculations under this Agreement by reference to the relevant
figure shall (i) until TCN's auditors deliver the relevant certificate
under this clause 13.1 be made by reference to the figure set out in
the relevant Compliance Certificate delivered to the Agent under this
Agreement and (ii) following the delivery by the TCN's auditors of a
certificate under this clause 13.1 be made by reference to such
certificate. TCN undertakes forthwith to take all action including,
without limitation, prepaying all or part of the Loan so as to procure
that any Advance permitted or other action taken or omitted to be taken
on the basis of the relevant Compliance Certificate which on the basis
of such auditors certificate would not have been permitted by the terms
of this Agreement is reversed or would have been required to have been
taken is taken.
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13.2 CURE PROVISIONS
13.2.1 The Finance Parties agree that TCN may at any time, within 15 Banking
Days of the delivery of a Compliance Certificate identifying a breach
of the financial covenants set out in clauses 13.1.1, 13.1.2 or 13.1.3
above, cure such breach in accordance with this clause 13.2 so that the
Event of Default which would otherwise have arisen from any such breach
is deemed not to have arisen.
13.2.2 Subject to paragraphs 13.2.3 and 13.2.4 below, a breach of clauses
13.1.1, 13.1.2 or 13.1.3 may be cured by the making available by
Telewest to TCN of a sufficient amount of Subordinated Debt and/or cash
injections in the nature of equity (each a "SHAREHOLDER CONTRIBUTION")
such that:
(a) in the case of breaches of clauses 13.1.2 or 13.1.3, when such
amount is added to the amount of the Consolidated TCN Group
Net Operating Cash Flow used in the calculation of the
relevant financial covenant the Consolidated TCN Group Net
Operating Cash Flow as so adjusted would be increased to such
an amount that TCN would comply with such financial covenants
as if such financial covenants were tested against the ratio
that was breached on the date of the receipt by TCN of such
Shareholder Contributions; and
(b) in the case of breaches of clause 13.1.1, when such amount as
is used by TCN to prepay Total TCN Group Senior Debt is
deducted from the amount of Total TCN Group Senior Debt used
in the calculation of such financial covenant the Total TCN
Group Senior Debt as so adjusted would be reduced to such an
amount that TCN would comply with the financial covenant set
out in such clause as if such financial covenant was tested
against the ratio that was breached on the date of prepayment
by TCN of the amount of such Shareholder Contributions.
For the avoidance of doubt such amounts shall be available for TCN (in
case of any breaches of clauses 13.1.2 and 13.1.3) to use for its
general corporate purposes or (in the case of breaches of clause
13.1.1) to prepay the Loan in accordance with this Agreement. In the
case of breaches of clauses 13.1.2 and 13.1.3, such amounts shall be
added to the amount of Consolidated TCN Group Net Operating Cash Flow
for the purposes of determining compliance with the financial covenants
with respect to the date for testing such financial covenants
immediately preceding the date of receipt of such Shareholder
Contributions only and shall not be taken into account in making any
subsequent calculations of Consolidated TCN Group Net Operating Cash
Flow for the purposes of assessing compliance (or otherwise) with
13.1.2 or 13.1.3.
13.2.3 The financial covenants contained in clauses 13.1.1, 13.1.2 or 13.1.3
may only be cured in accordance with this clause 13.2 on not more than
four separate occasions and may not be cured in respect of any two
consecutive Quarterly Periods.
13.2.4 Any Shareholder Contribution to be utilised for the purposes of clause
13.2.2(b) above shall be in a minimum amount on any occasion of
(pound)20,000,000.
13.2.5 The amount of any Shareholder Contributions made pursuant to this
clause 13.2 shall not be added to Consolidated Annualised TCN Group Net
Operating Cash Flow for the purposes of clauses 2.3.1 or 6.2.
14 EVENTS OF DEFAULT
14.1 EVENTS OF DEFAULT
Each of the following events and circumstances is an Event of Default
(whether or not caused by any reason outside the control of any TCN
Entity):
73
14.1.1 NON-PAYMENT
(i) any principal amount due and payable under this Agreement is not
paid on the due date or (ii) an amount of interest due and payable
under this Agreement is not paid within 3 Banking Days of the due date
or (iii) any other sum due and payable under this Agreement is not paid
within 5 Banking Days of the due date, and, in each such case, in the
manner stipulated in this Agreement; or
14.1.2 BREACH OF CERTAIN OBLIGATIONS
(a) any TCN Entity commits any breach of the undertakings
contained in clauses 3.4, 11.1.1, 12.1.1, 12.1.2, 12.1.3,
12.1.6, 12.1.7, 12.1.8, 12.1.9, 12.1.11 and 12.1.18 and 13.1;
or
(b) any TCN Entity commits any breach of the undertakings
contained in clauses 12.1.4 and 12.1.5 and, in respect of any
such breach where the principal amount of the relevant
Borrowed Money or guarantee does not exceed (pound)1,000,000,
such breach is not remedied within five Banking Days of such
breach; or
14.1.3 BREACH OF OTHER OBLIGATIONS
any TCN Entity or Telewest commits any breach of or omits to observe
any of the obligations or undertakings expressed to be assumed by them
under this Agreement (other than failure to pay any sum when due or any
breach of the undertakings referred to in clause 14.1.2 above) or any
of the Security Documents and, in respect of any such breach or
omission which in the opinion of the Majority Lenders is capable of
remedy, such remedial action as the Majority Lenders shall require is
not carried out within 28 days of the Agent notifying the relevant
Borrower of such default and of such remedial action; or
14.1.4 MISREPRESENTATION
any representation or warranty made or deemed to be made or repeated by
or in respect of any TCN Entity or Telewest in or pursuant to this
Agreement or the Security Documents or in any notice, certificate or
statement referred to in or delivered under this Agreement or the
Security Documents is or proves to have been incorrect or misleading in
any material respect on the date on which it was made or deemed to be
made or repeated; or
14.1.5 CHALLENGE TO SECURITY
any Security Document is not or ceases to be effective (unless by
reason of the Lenders' or the Security Trustee's failure to file any
required UCC Statements in the United States) or any TCN Entity or
Telewest shall in any way challenge, or any proceedings shall in any
way be brought to challenge (and in the case of a proceeding brought by
someone other than any TCN Entity or Telewest shall continue unstayed
for 30 days) the prior status of the charges created by the Security
Documents or the validity or enforceability of the Security Documents
(save for any prior ranking Permitted Encumbrances); or
14.1.6 CROSS-DEFAULT
(i) Borrowed Money of any TCN Entity or Telewest (which, in aggregate
and including for these purposes any Borrowed Money referred to in
clause 14.1.6(ii) below, exceeds (pound)35,000,000) is not paid when
due (or within any applicable grace period expressly contained in the
agreement relating to such Borrowed Money in its original terms) or
becomes due and payable prior to the date when it would otherwise have
become due or (ii) any creditor of any TCN Entity or Telewest becomes
entitled to declare any such Borrowed Money in excess of
(pound)35,000,000 (in aggregate) due and payable prior to the date when
it would otherwise have become due; or
74
14.1.7 HEDGING DEFAULT
an event entitling the relevant counterparty to terminate any
arrangements in relation to interest rate hedging permitted pursuant to
clause 12.1.9 or any other interest rate or currency swap or other
hedging arrangements entered into by any TCN Entity or Telewest occurs
(whether or not such counterparty exercises such right to terminate)
and the amount of the liabilities of the relevant TCN Entity or
Telewest due to such termination exceeds (pound)35,000,000; or
14.1.8 APPOINTMENT OF RECEIVERS AND MANAGERS
(i) any administrative or other receiver is appointed of any TCN Entity
or Telewest or any member of any Joint Venture Group or any part of
their respective assets and/or undertakings or (ii) any other legal
proceedings are taken which are not irrevocably discharged or withdrawn
within 28 days of the commencement thereof to enforce any Encumbrance
over all or any part of the assets of any TCN Entity or Telewest or any
member of the Joint Venture Group; or
14.1.9 INSOLVENCY
any TCN Entity or Telewest or any member of any Joint Venture Group is
deemed unable to pay its debts within the meaning of sections 123(1)(e)
or (2) of the Insolvency ▇▇▇ ▇▇▇▇ or any TCN Entity or Telewest
otherwise becomes insolvent or stops or suspends making payments
(whether of principal or interest) with respect to all or any class of
its debts or is unable or announces an intention so to do or admits
inability to pay its debts as they fall due; or
14.1.10 LEGAL PROCESS
any judgment or order made against any TCN Entity or Telewest or any
member of any Joint Venture Group for an amount in excess of
(pound)100,000 is not stayed or complied with within 28 days or a
creditor attaches or takes possession of, or a distress, execution,
sequestration, diligence (other than on the dependence of an action) or
other process is levied or enforced upon or sued out against, any
material part of the undertaking, assets, rights or revenues of any TCN
Entity or Telewest and is not discharged within 28 days; or
14.1.11 COMPOSITIONS
any steps are taken or negotiations commenced, by any TCN Entity or
Telewest or any member of any Joint Venture Group or by their
respective creditors with a view to proposing any kind of composition,
compromise or arrangement involving such company and any group or class
of its creditors generally; or
14.1.12 WINDING-UP
(a) any TCN Entity or Telewest or any member of any Joint Venture
Group takes any action or any legal proceedings are started
(not being action or proceedings which can be demonstrated to
the satisfaction of the Agent by providing an opinion of a
leading firm of London solicitors to that effect, is
frivolous, vexatious or an abuse of the process of the court
or relates to a claim to which such person has a good defence
and which is being vigorously contested by such body) for any
TCN Entity or Telewest or any member of any Joint Venture
Group to be adjudicated or found bankrupt or insolvent (other
than for the purpose of an amalgamation or reconstruction
previously approved in writing by the Agent acting on the
instructions of the Majority Lenders); or
(b) an order is made or resolution passed for the winding-up of
any TCN Entity or Telewest or a notice is issued convening a
meeting for the purpose of passing any such resolution; or
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14.1.13 ADMINISTRATION
any petition is presented or other step is taken for the purpose of the
appointment of an administrator of any TCN Entity or Telewest or any
member of any Joint Venture Group or an administration order is made in
relation to any TCN Entity or Telewest or any member of any Joint
Venture Group; or
14.1.14 ANALOGOUS PROCEEDINGS
there occurs, in relation to any TCN Entity or Telewest or any member
of any Joint Venture Group in any country or territory in which any of
them carries on business or to the jurisdiction of which courts any
part of their respective assets is subject, any event which, in the
reasonable opinion of the Agent, appears in that country or territory
to correspond with, or have an effect equivalent or similar to, any of
those mentioned in clauses 14.1.8 to 14.1.13 inclusive (including,
without limitation, if any application is made for the declaration of
the assets of BCFL or IVS en desastre); or
14.1.15 CHANGE OF CONTROL OF TCN OR ANY CHARGING SUBSIDIARY OR CHARGING
PARTNERSHIPS
(a) any Charging Subsidiary (other than an Immaterial Group
Entity) ceases to be a wholly owned and controlled Subsidiary
of TCN (or, prior to the TCN Group Restructuring Flextech
Limited (formerly Flextech plc)) or any Charging Partnership
ceases to have as its sole partners members of the TCN Group;
or
(b) TCN ceases to be a wholly owned Subsidiary of Telewest or the
US Borrower ceases to be a wholly owned Subsidiary of TCN; or
14.1.16 UNLAWFULNESS
it becomes unlawful at any time for any Borrower, any TCN Entity or
Telewest to perform any of its obligations under this Agreement or the
Security Documents which are considered by the Majority Lenders to be
material or any such obligations become unenforceable in any way or
there ceases to be a first priority charge over the relevant property
or assets of each Borrower, any TCN Entity or Telewest as intended and
created by the Security Documents save for Permitted Encumbrances; or
14.1.17 TELECOMMUNICATIONS, CABLE AND BROADCASTING LAWS
any TCN Entity fails to comply with any term or condition of any
Telecommunications, Cable and Broadcasting Law where such
non-compliance would have or would be reasonably likely to have a
Material Adverse Effect, in the opinion of the Agent; or
14.1.18 REPUDIATION
any TCN Entity or Telewest repudiates this Agreement or any Security
Document to which it is a party or does or causes or permits to be done
any act or thing evidencing an intention to repudiate this Agreement or
any such Security Document; or
14.1.19 SEIZURE
all or a material part of the undertakings, assets, rights or revenues
of or shares or other ownership interests in the TCN Group (taken as a
whole) or Telewest are seized, nationalised, expropriated or
compulsorily acquired by or under the authority of any government; or
14.1.20 MATERIAL EVENTS
any other event occurs or circumstances arise which in the reasonable
opinion of the Majority Lenders has or is reasonably likely to have a
Material Adverse Effect; or
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14.1.21 JOINT VENTURE MATERIAL EVENTS
any event occurs or circumstances arise which permit any party to any
JV Documentation who is not a TCN Entity to terminate such JV
Documentation or any event occurs in relation to any member of the
Joint Venture Group which, in the reasonable opinion of the Majority
Lenders, has or is reasonably likely to have prior to a JVIPO, a Joint
Venture Material Adverse Effect or after a JVIPO, a Material Adverse
Effect.
Provided that, at any time after a JVIPO, if any of the events
described in clauses 14.1.8 to 14.1.14 (inclusive) occurs in relation
to any member of a Joint Venture Group, such event shall not constitute
an Event of Default.
14.2 ACCELERATION
14.2.1 If at any time or during any period:
(a) Telewest or any TCN Entity shall reside or have a domicile, a
place of business or a property in the United States (to the
extent that such residence, domicile, place of business or
property is sufficient for a person to become a "debtor" under
section 109(a) of the U.S. Federal Bankruptcy Code); and
(b) an Event of Default specified in clauses 14.1.8 to 14.1.14
shall have occurred and be continuing in respect of Telewest
or any such TCN Entity, in furtherance of which Event of
Default an order for relief with respect to Telewest or such
TCN Entity shall actually be (or shall be deemed to have been)
entered under the U.S. Federal Bankruptcy Code,
then the obligation of each Lender to make its Commitment available
shall be automatically terminated and the Loan and all interest and
commitment commission accrued and all other sums payable under this
Agreement immediately shall become due and payable.
14.2.2 At any time after the happening of any Event of Default (other than in
the circumstances set out in sub-clause (a) above), so long as the same
is continuing the Agent may, and if so requested by the Majority
Lenders shall, without prejudice to any other rights of the Lenders, by
notice to each Borrower declare that:
(a) the obligation of each Lender to make its Commitment available
shall be terminated, whereupon the Total Commitments shall be
reduced to zero forthwith; and/or
(b) the Outstandings and all interest and commitment commission
accrued and all other sums payable under this Agreement or any
Ancillary Facilities Letter have become due and payable,
whereupon the same shall, immediately, or on demand or
otherwise in accordance with the terms of such notice, become
due and payable or (as applicable) due for discharge.
14.2.3 At any time after the happening of any Event of Default, so long as the
same is continuing the Agent may, and if so requested by the Majority
Lenders shall, without prejudice to any other rights of the Lenders, by
notice to each Borrower declare that it and/or the Security Trustee
shall exercise any of the rights granted to the Agent, the Security
Trustee or the Lenders under the Security Documents.
14.3 ON DEMAND
If, pursuant to clause 14.2.2(b), the Agent declares the Outstandings
to be due and payable on demand then, at any time thereafter, the Agent
may (and, if so instructed by the Majority Lenders, shall) by written
notice to each Borrower: (a) call for repayment of the Outstandings on
such date as may be specified in such notice whereupon the Outstandings
shall become due and payable on the date so specified together with all
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interest and commitment commission accrued and all other sums payable
under this Agreement and the Ancillary Facilities Letters or (b)
withdraw such declaration with effect from the date specified in such
notice.
15 INDEMNITIES
15.1 MISCELLANEOUS INDEMNITIES
TCN shall on demand indemnify each Finance Party (other than the
Facility C Lenders), without prejudice to any of their other rights
under this Agreement, against any loss (excluding in the case of 15.1.3
or 15.1.4 below loss of Margin except where an Event of Default has
arisen in which case loss of Margin shall be included) or expense which
such Finance Party shall sustain or incur by it as a consequence of:
15.1.1 any default in payment by any Borrower of any sum under this Agreement
when due; or
15.1.2 the occurrence of any other Event of Default; or
15.1.3 any repayment or prepayment of the Outstandings or part thereof being
made under clause 7 or 16.1 otherwise than on the last day of an
Interest Period relating to the part of at Outstanding repaid or
prepaid; or
15.1.4 any Advance not being made for any reason (excluding any default by the
Agent or any Lender) after a Drawdown Notice has been given,
including, but not limited to, any loss or expense sustained or
incurred by such Lender in maintaining or funding its Contribution or
any part thereof or in liquidating or re-employing deposits from third
parties acquired or contracted for to fund its Contribution or any part
thereof or any other amount owing to such Lender.
15.2 CURRENCY INDEMNITY
If any sum due from any Borrower under this Agreement or any order or
judgment given or made in relation hereto has to be converted from the
currency (the "FIRST CURRENCY") in which the same is payable under this
Agreement or under such order or judgment into another currency (the
"SECOND CURRENCY") for the purpose of (a) making or filing a claim or
proof against a Borrower, (b) obtaining an order or judgment in any
court or other tribunal or (c) enforcing any order or judgment given or
made in relation to this Agreement, each Borrower agrees to indemnify
and hold harmless the Agent, each Arranger, the Security Trustee, and
each Lender from and against any loss suffered as a result of any
difference 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 the Agent,
such Arranger, the Security Trustee or such Lender 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, judgment, claim or proof. Any amount due from any
Borrower under this clause 15.2 shall be due as a separate debt and
shall not be affected by judgment being obtained for any other sums due
under or in respect of this Agreement and the term "rate of exchange"
includes any premium and costs of exchange payable in connection with
the purchase of the first currency with the second currency.
15.3 ENVIRONMENTAL INDEMNITY
TCN agrees to indemnify on demand each Lender, each Arranger, the
Security Trustee and the Agent, and their respective officers,
employees, agents and delegates (together the "INDEMNIFIED PARTIES") in
respect of which each Lender, each Arranger, the Security Trustee and
the Agent holds this indemnity on trust, 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, delict or otherwise and whether arising at
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common law, in equity or by statute which the relevant Indemnified
Party shall certify as sustained or incurred by it at any time as a
consequence of, or relating to, or arising directly or indirectly out
of, an Environmental Claim made or asserted against such Indemnified
Party which would not have arisen if this Agreement had not been
executed and which was not caused by the negligence or wilful default
of the relevant Indemnified Party.
16 UNLAWFULNESS AND INCREASED COSTS; MITIGATION
16.1 UNLAWFULNESS
If it is or becomes contrary to any law or regulation for any Lender to
contribute to Advances or to maintain its Commitment or fund or
maintain its Contribution, such Lender shall promptly, either through
the Agent or, in the case of a Facility C Lender, direct, notify the
Borrowers whereupon (a) such Lender's Commitment shall be reduced to
zero and (b) the Borrowers shall be obliged to prepay the Contribution
of such Lender on the earlier of (i) the date falling 30 days after the
date of receipt by the Borrowers of the relevant notice pursuant to
this clause or (ii) the latest date permitted by the relevant law or
regulation. Without prejudice to the reduction of such Lender's
Commitment to zero or the obligations of the Borrowers to make such
repayment, the Borrowers, the Agent and such Lender shall negotiate for
a period not exceeding 14 days with a view to such Lender making
available its Commitment and/or funding or maintaining its Contribution
in whole or in part in a manner which is not unlawful.
16.2 INCREASED COSTS
If the result of the reserve requirements of the European System of
Central Banks or of any change in, or in the interpretation or
application of, or the introduction of, any law or regulation, request
or requirement (whether or not having the force of law, but, if not
having the force of law, with which the relevant Finance Party or, as
the case may be, its holding company habitually complies) including,
without limitation, those relating to Taxation, capital adequacy,
liquidity, reserve assets, cash ratio deposits and special deposits is
to:
16.2.1 subject any Finance Party to Taxes or change the basis of Taxation of
any Finance Party with respect to any payment under this Agreement
(other than Taxes or Taxation on the overall net income, profits or
gains of such Finance Party imposed in the jurisdiction in which its
principal office or Facility Office is located and other than Taxes
currently payable by such Finance Party on amounts received by it under
this Agreement but only to the extent so payable at the date hereof);
and/or
16.2.2 increase the cost to, or impose an additional cost on, any Finance
Party or its holding company in making or keeping available all or part
of such Finance Party's Commitment or maintaining or funding such
Finance Party's Contribution; and/or
16.2.3 reduce the amount payable or the effective return to any Finance Party
under this Agreement; and/or
16.2.4 reduce any Finance Party's or its holding company's rate of return on
its overall capital by reason of a change in the manner in which it is
required to allocate capital resources to such Finance Party's
obligations under this Agreement; and/or
16.2.5 require any Finance Party or its holding company to make any additional
payment or forego (to a greater extent than at the date hereof) a
return calculated by reference to or on any amount received or
receivable by such Finance Party under this Agreement; and/or
16.2.6 require any Finance Party or its holding company to incur or sustain a
loss (including a loss of future potential profits) additional to that
incurred or sustained at the date hereof by reason of being obliged to
deduct a greater part of such Finance Party's Commitment or
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Contribution from its capital for regulatory purposes, than is required
to be deducted at the date hereof
then and in each such case (but subject to clauses 16.3 and 16.4):
(a) such Finance Party shall notify TCN either through the Agent
or, in the case of a Facility C Lender, direct, in writing of
such event promptly upon its becoming aware of the same; and
(b) TCN agrees to pay on demand, made at any time, whether or not
such Finance Party's Contribution has been repaid, either to
the Agent for the account of such Finance Party or, in the
case of a Facility C Lender, direct, the amount which such
Finance Party specifies (in a certificate setting forth the
basis of the computation of such amount but not including any
matters which such Finance Party or its holding company
regards as confidential) is required to compensate such
Finance Party and/or (if and to the extent that, such holding
company has passed the cost of the same on to such Finance
Party) its holding company for such liability to Taxes,
increased or additional cost, reduction, payment or foregone
return.
16.3 EXCEPTIONS
Nothing in this clause shall entitle any Lender to compensation for any
such increased cost, reduction, payment or foregone return:
16.3.1 to the extent that the same is taken into account in calculating the
Additional Cost or, in the case of a Facility C Lender, the equivalent
provision of the relevant Ancillary Facilities Letter; or
16.3.2 to the extent that the same is the subject of an additional payment
under clause 9.7 (or would have been so subject but for an exemption or
exception thereto); or
16.3.3 occurring as a result of any gross negligence or wilful default of any
Lender or its holding company (including, without limitation, a breach
of any fiscal, monetary or capital adequacy limit imposed by any law or
regulation).
16.4 FURTHER EXCEPTION
Nothing in this clause shall entitle any Lender to compensation for any
such increased cost, reduction, payment or foregone return which arises
as a consequence of (or of any law or regulation implementing) (i) the
proposals for international convergence of capital measurement and
capital standards published by the Basle Committee on Banking
Regulations and Supervisory Practices in July 1988 and/or (ii) any
applicable directive of the European Union (in each case) unless it
results from any change in, or in the interpretation or application of,
such proposals or any such applicable directive (or any law or
regulation implementing the same) occurring after the date of this
Agreement.
For the purposes of clause 16.4 the term "applicable directive" means
(exclusively) each of the Own Funds Directive (89/299/EEC of 17 April
1989) and the Solvency Ratio Directive (89/647/EEC of 18 December
1989).
16.5 MITIGATION
If, in respect of any Lender, circumstances arise which would, or would
upon the giving of notice, result in:
16.5.1 any Borrower being required to make an increased payment to such Lender
pursuant to clause 9.7;
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16.5.2 the reduction of such Lender's Commitment to zero or any Borrower being
required to prepay such Lender's Contribution pursuant to clause16.1;
or
16.5.3 any Borrower being required to make a payment to such Lender to
compensate such Lender for an increased cost, reduction, payment or
foregone return pursuant to clause 16.2,
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrowers under clauses 9 and 16, such Lender shall,
(other than in the case of a Facility C Lender) in consultation with
the Agent, endeavour to take such reasonable steps as may be open to it
to mitigate or remove such circumstances including (without limitation)
the transfer of its rights and obligations under this Agreement to
another bank or financial institution acceptable to the relevant
Borrower or a change of lending office of such Lender to one acceptable
to the Borrower unless, in either case, to do so might (in the opinion
of such Lender) be prejudicial to such Lender or be in conflict with
such Lender's general banking policies or involve such Lender in
expense or an increased administration burden.
17 SET-OFF AND PRO RATA PAYMENTS
17.1 SET-OFF
Each Borrower authorises each Lender to apply any credit balance to
which such Borrower is then entitled on any account of the Borrower
with such Lender at any of its branches in or towards satisfaction of
any sum then due and payable from such Borrower to such Lender under
this Agreement whilst any Event of Default has occurred and is
continuing. For this purpose each Lender is authorised to purchase with
the moneys standing to the credit of such account such other currencies
as may be necessary to effect such application. No Lender shall be
obliged to exercise any right given to it by this clause. Each Lender
shall notify the Agent and the relevant Borrower forthwith upon the
exercise or purported exercise of any right of set-off giving full
details in relation thereto and the Agent shall inform the other
Lenders.
17.2 PRO RATA PAYMENTS
17.2.1 If at any time any Finance Party (the "RECOVERING FINANCE PARTY")
receives or recovers any amount owing to it by any Borrower under this
Agreement by direct payment, set-off or in any manner other than by
payment through the Agent pursuant to clause 9.1 or 9.12 (not being a
payment received from an Assignee, a Substitute or a Sub-Participant),
the Recovering Finance Party shall, within two Banking Days of such
receipt or recovery (a "RELEVANT RECEIPT") notify the Agent of the
amount of the Relevant Receipt. If the Relevant Receipt exceeds the
amount which the Recovering Finance Party would have received if the
Relevant Receipt had been received by the Agent and distributed
pursuant to clause 9.1 or 9.12 (as the case may be) then:
(a) within two Banking Days of demand by the Agent, the Recovering
Finance Party shall pay to the Agent an amount equal to the
excess;
(b) the Agent shall treat the excess amount so paid by the
Recovering Finance Party as if it were a payment made by the
relevant Borrower and shall distribute the same to the Finance
Parties (other than the Recovering Finance Party) in
accordance with clause 9.12, and
(c) as between the relevant Borrower and the Recovering Finance
Party the excess amount so re-distributed shall be treated as
not having been paid but the obligations of the relevant
Borrower to the other Finance Parties shall, to the extent of
the amounts so re-distributed to them, be treated as
discharged.
17.2.2 If any part of the Relevant Receipt subsequently has to be wholly or
partly refunded by the Recovering Finance Party (whether to a
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liquidator or otherwise) each Finance Party to which any part of such
Relevant Receipt was so re-distributed shall on request from the
Recovering Finance Party repay to the Recovering Finance Party such
Finance Party's pro rata share of the amount which has to be refunded
by the Recovering Finance Party.
17.2.3 Each Finance Party shall on request supply to the Agent such
information as the Agent may from time to time request for the purpose
of this clause 17.2.
17.2.4 Notwithstanding the foregoing provisions of this clause 17.2 no
Recovering Finance Party shall be obliged to share any Relevant Receipt
which it receives or recovers pursuant to legal proceedings taken by it
to recover any sums owing to it under this Agreement with any other
party which has a legal right to, but does not, either join in such
proceedings or commence and diligently pursue separate proceedings to
enforce its rights in the same or another court (unless the proceedings
instituted by the Recovering Finance Party are instituted by it without
prior notice having been given to such party through the Agent).
Monies received or recovered by a Facility C Lender by virtue of any
Group Pooling Arrangements shall not be brought into account under
clause 17.2.
17.3 NO RELEASE
For the avoidance of doubt it is hereby declared that failure by any
Recovering Finance Party to comply with the provisions of clause 17.2
shall not release any other Recovering Finance Party from any of its
obligations or liabilities under clause 17.2.
17.4 NO CHARGE
The provisions of this clause 17 shall not, and shall not be construed
so as to, constitute a charge by a Lender over all or any part of a sum
received or recovered by it in the circumstances mentioned in clause
17.2.
18 ASSIGNMENT, SUBSTITUTION, LENDING OFFICES AND ADDITIONAL BORROWERS
18.1 BENEFIT AND BURDEN
This Agreement shall be binding upon, and enure for the benefit of, the
Finance Parties, the TCN Entities and their respective successors.
18.2 NO ASSIGNMENT BY BORROWERS
None of the TCN Entities may assign or transfer any of their respective
rights or obligations under this Agreement.
18.3 NOVATION
Each Lender (a "TRANSFEROR LENDER") may transfer, by way of novation:
18.3.1 in respect of Facility A, all or any part of its rights and/or
obligations under the Finance Documents in relation to its undrawn
Facility A Commitment and Facility A Contribution, being in relation to
its undrawn Facility A Commitment and its Facility A Contribution
(taken together) at least (pound)5,000,000,
18.3.2 in respect of Facility B, all or any part of its rights and/or
obligations under the Finance Documents in relation to its undrawn
Facility B Commitment and its Facility B Contribution, being in
relation to its undrawn Facility B Commitment and its Facility B
Contribution (taken together) at least (pound)5,000,000,
18.3.3 in respect of Facility D, all or any part of its rights and/or
obligations under the Finance Documents in relation to its undrawn
Facility D Commitment and its Facility D Contribution, being in
relation to its undrawn Facility D1 Commitment and its Facility D2
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Contribution (taken together) at least $1,000,000 or, in relation to
its undrawn Facility D2 Commitment and Facility D2 Contribution (taken
together) at least (pound)1,000,000 or, in relation to its undrawn
Facility D3 Commitment and Facility D3 Contribution (taken together) at
least (euro)1,000,000,
and/or in each case of its rights, benefits and/or obligations under
this Agreement and the Intercreditor Deed to any person (a
"SUBSTITUTE") with (in each case) other than if there is an outstanding
Default the prior written consent of TCN (which shall not be
unreasonably withheld or delayed). Provided that (a) in the case of
Facility B only, the Transferor Lender must novate equal fractions of
its Facility B Commitment and its Facility B Contribution (if any) and,
if at the time when such novation takes effect more than one Facility B
Advance is outstanding, the novation of its Facility B Contribution
shall take effect in respect of the same fraction of each Facility B
Advance and (b) in the case of clauses 18.3.1, 18.3.2 and 18.3.3 no
such consent is necessary if such Substitute is an Affiliate of such
Transferor Lender. Any such novation shall be effected upon five
Banking Days' prior notice by delivery to the Agent of a duly completed
Substitution Certificate duly executed by the relevant Lender, the
Substitute and the Agent (for itself, the Lead Arrangers, the Security
Trustee, each Borrower, the Charging Subsidiaries and the other
Lenders). On the effective date specified in a Substitution Certificate
so executed and delivered, to the extent that they are expressed in
such Substitution Certificate to be the subject of the novation
effected pursuant to this clause18.3:
(a) the existing parties to this Agreement and the Lender party to
the relevant Substitution Certificate shall be released from
their respective obligations towards one another under this
Agreement and the Intercreditor Deed ("DISCHARGED
OBLIGATIONS") and their respective rights against one another
under this Agreement ("DISCHARGED RIGHTS") shall be cancelled;
(b) the Substitute party to the relevant Substitution Certificate
and the existing parties to this Agreement and the
Intercreditor Deed (other than the Lender party to such
Substitution Certificate) shall assume obligations towards
each other which differ from the discharged obligations only
insofar as they are owed to or assumed by such Substitute
instead of to or by such Lender;
(c) the Substitute party to the relevant Substitution Certificate
and the existing parties to this Agreement and the
Intercreditor Deed (other than the Lender party to such
Substitution Certificate) shall acquire rights against each
other which differ from the discharged rights only insofar as
they are exercisable by or against such Substitute instead of
by or against such Lender
and, on the date upon which such novation takes effect the Substitute
shall pay to the UK Agent for its own account (in relation to Facility
A, Facility B, Facility D2 and Facility D3) a fee of (pound)2,000 or to
the US Agent for its own account (in relation to Facility D1) a fee of
US$3,500 provided that (i) no such fee shall be payable if the
Substitute is a wholly-owned Subsidiary of the Transferor Lender or is
a person of whom such Transferor Lender is a wholly-owned Subsidiary or
is a Subsidiary of the same holding company as such Transferor Lender
and (ii) in the case of contemporaneous novations by a Lender under
Facility D1 in respect of its Facility D1 Commitment and/or Facility D1
Contribution by a Lender under Facility D2 in respect of its Facility
D2 Commitment and/or Facility D2 Contribution or by a Lender under
Facility D3 in respect of its Facility D3 Commitment and/or Facility D3
Contribution, in any such case, to more than one fund managed by the
same investment adviser (which funds are not then Lenders hereunder),
only a single US$3,500 fee shall be payable for all such
contemporaneous novations. The Agent shall promptly notify TCN of the
receipt by it of any Substitution Certificate and deliver a copy
thereof to TCN.
18.4 RELIANCE ON SUBSTITUTION CERTIFICATE
The Finance Parties and each TCN Entity shall be fully entitled to rely
on any Substitution Certificate delivered to the Agent in accordance
with the foregoing provisions of this clause 18 which is complete and
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regular on its face as regards its contents and purportedly signed on
behalf of the relevant Lender and the Substitute and none of the
Finance Parties or each TCN Entity shall have any liability or
responsibility to any party as a consequence of placing reliance on and
acting in accordance with any such Substitute Certificate if it proves
to be the case that the same was not authentic or duly authorised.
18.5 AUTHORISATION OF AGENT
Each TCN Entity, each Arranger, the Security Trustee and each Lender
irrevocably authorises the Agent to counter-sign each Substitution
Certificate and each Facility D Lender Accession Agreement on its
behalf without any further consent of, or consultation with such TCN
Entity, such Arranger, the Security Trustee or such Lender except in
respect of the Substitution Certificate only, in the case of the
Borrowers, the consent required pursuant to clause 18.3.
18.6 CONSTRUCTION OF CERTAIN REFERENCES
If any Lender novates all or any part of its rights, benefits and
obligations as provided in clause 18.3 all relevant references in this
Agreement to such Lender shall thereafter be construed as a reference
to such Lender and/or its Substitute (as the case may be) to the extent
of their respective interests.
18.7 LENDING OFFICES
Each Lender shall lend through its office at the address specified in
schedule 1 or, as the case may be, in any relevant Substitution
Certificate or Facility D Accession Agreement or through any other
office located in the United Kingdom, or in the case of Facility D1,
the United States of America, of such Lender selected from time to time
by such Lender through which such Lender wishes to lend for the
purposes of this Agreement. If the office through which a Lender is
lending is changed pursuant to this clause 18.7, such Lender shall
notify the Agent promptly of such change.
18.8 FACILITY C LENDERS
Any Facility C Lender may resign from its appointment as a Facility C
Lender under the Agreement and the relevant Ancillary Facilities Letter
provided that no such retirement shall take effect unless either (i) a
successor Facility C Lender has been appointed by TCN and has entered
into an Ancillary Facilities Letter and such arrangements as the UK
Agent may require so that such successor Facility C Lender required
becomes a party to the relevant Finance Documents as a Facility C
Lender and assumes rights and obligations thereunder as a Facility C
Lender or (ii) such resignation is in accordance with the provisions of
clause 7.3.
18.9 FACILITY D LENDERS
18.9.1 If on the date of this Agreement the Facility D Commitments are zero,
the Agent may by notice in writing to TCN notify TCN that certain
financial institutions are to become additional parties to this
Agreement as Facility D Lenders (the "Acceding Facility D Lenders").
18.9.2 Such accession shall be effected by delivery to the Agent as a Facility
D Lender Accession Agreement duly executed by the Acceding Facility D
Lenders. On the Accession Date (as defined therein) the Acceding
Facility D Lenders shall become Facility D Lenders with a Facility D1
Commitment and/or Facility D2 Commitment and/or Facility D3 Commitment
as set out in the Facility D Lender Accession Agreement by virtue of
the counter-signature by the Facility D Accession Agreement by the UK
Agent (or as the case may be) the US Agent or (as the case may be) each
Agent for the Finance Parties and the TCN Entities.
84
18.10 DISCLOSURE OF INFORMATION
Save as permitted pursuant to the terms of this Agreement or the
relevant Security Document, any information furnished pursuant to this
Agreement or any Security Document to the Finance Parties shall be kept
confidential by the recipient and the Agents, the Lead Arrangers, the
Security Trustee and the Lenders, save that the provisions of this
clause 18.10 shall not apply:
18.10.1 to any information already known to the recipient;
18.10.2 to any information subsequently received by the recipient which it
would otherwise be free to disclose;
18.10.3 to any information which is or becomes public knowledge otherwise than
as a result of a breach by any person of this clause 18.10 or of any
confidentiality undertaking entered into pursuant to clause 18.12; and
18.10.4 to any extent that the recipient is required to disclose the same
pursuant to any law or order of any court or order or request of any
governmental agency with whose instructions the recipient habitually
complies.
18.11 SUB-PARTICIPATION
No Lender may assign, or enter into any sub-participation arrangements
in relation to, all or any part of its rights and obligations under
this Agreement with any person without the consent of TCN (other than
if there is a Default) and the Agent (such consents not to be
unreasonably withheld or delayed).
18.12 CONFIDENTIALITY UNDERTAKING
Any Finance Party may disclose to an Affiliate, a prospective
Substitute or to any other person who may propose entering into
contractual relations with such Finance Party in relation to this
Agreement or any Security Document any confidential information
referred to in clause 18.10 subject to such Affiliate, the prospective
Substitute or other person first entering into a confidentiality
undertaking with the Borrowers and the other TCN Entities in
substantially the same terms as clause 18.10 and this clause 18.12.
18.13 GROSS-UP AND INCREASED COSTS FOLLOWING NOVATION OR CHANGE IN LENDING
OFFICE
If:
18.13.1 a Lender novates any of its rights or obligations under this Agreement
or changes its lending office pursuant to clause 18.7; and
18.13.2 as a result of circumstances existing at the date the novation or
change occurs, a Borrower would be obliged to make a payment to the
Substitute or Lender acting through its new lending office under clause
9.7 or clause 16.2,
then the Substitute or Lender acting through its new lending office is
only entitled to receive payment under those clauses to the same extent
as the Transferor Lender or Lender acting through its previous lending
office would have been if the novation or change had not occurred.
19 LEAD ARRANGERS, AGENT AND REFERENCE LENDERS
19.1 APPOINTMENT OF AGENT
Each Lender irrevocably appoints each Agent as its agents for the
purposes of this Agreement and any relevant Security Document and
authorises each Agent (whether or not by or through employees or
85
agents) to take such action on such Lender's behalf and to exercise
such rights, remedies, powers and discretions as are specifically
delegated to the relevant Agent by this Agreement and/or any relevant
Security Document, together with such powers and discretions as are
reasonably incidental thereto. None of the Agents, the Lead Arrangers
or the Security Trustee shall, however, have any duties, obligations or
liabilities to the Lenders beyond those expressly stated in this
Agreement and/or the Security Documents.
19.2 AMENDMENTS TO THIS AGREEMENT
19.2.1 Subject to clause 19.2.2, 19.2.3, 19.2.4 and 19.2.5 save where
otherwise provided in this Agreement, the Agent may, with the consent
of the Majority Lenders (or if and to the extent expressly authorised
by the other provisions of this Agreement), amend, modify or otherwise
vary or waive breaches of, or defaults under, or otherwise excuse
performance of, any provision of the Finance Documents. An Ancillary
Facilities Letter may only be amended with the agreement of the parties
to it, but, for the avoidance of doubt, the consent of no other party
to the Finance Documents shall be required for such amendments.
19.2.2 With the prior written consent of all the Facility A Lenders, the
Facility B Lenders and Facility C Lenders, the Agent may agree with any
TCN Entity any amendment to this Agreement or to grant waivers in
respect of breaches of or defaults under this Agreement or excuse
performance of this Agreement which would:
(i) reduce the Margin in respect of Facility A or
Facility B;
(ii) extend the due date or reduce the amount of any
payment of principal, interest or other amount
payable under this Agreement in respect of Facility A
or Facility B or Facility C (except where such
extension or reduction relates to payments to be made
under clause 7.7 in relation to which clause 19.2.1
shall apply);
(iii) change the definition of "Majority Bank Lenders";
(iv) change this clause 19.2.2.
For the avoidance of doubt no consent shall be required under this
clause 19.2.2 for the renewal or extension of an Ancillary Facilities
Letter.
19.2.3 With the prior written consent of all of the Facility D Lenders, the
Agent may agree with any TCN Entity any amendment to this Agreement or
to grant waivers in respect of breaches of or defaults under this
Agreement or excuse performance of this Agreement which would:
(i) reduce the Margin in respect of Facility D;
(ii) extend the due date or reduce the amount of any
payment of principal, interest or other amount
payable under this Agreement in respect of Facility D
(except where such extension or reduction relates to
payments to be made under clause 7.7 in relation to
which clause 19.2.1 shall apply);
(iii) change the definition of "Majority Institutional
Lenders";
(iv) change clause 7.13 or this clause 19.2.3.
19.2.4 With the prior written consent of all of the Lenders, the Agent may
agree with any TCN Entity any amendment to this Agreement or to grant
waivers in respect of breaches of or defaults under this Agreement or
to excuse performance of this Agreement which would:
(i) increase the Margin for Facility A, Facility B or
Facility D;
86
(ii) bring forward the due date or increase the amount of
any payment of principal, interest or other amount
payable under this Agreement;
(iii) change the currency in which any amount is payable
under this Agreement;
(iv) increase any Lender's Facility A Commitment and/or
its Facility B Commitment and/or its Facility C
Commitment and/or its Facility D Commitment (except
under the Accession Agreement);
(v) change clauses 2.2, 2.3, 3.3 (in respect of the first
Advance only) 16.2, 17.2 or 18.2;
(vi) change the definition of "Super Majority Lenders";
and
(vii) change this clause 19.2.4.
For the avoidance of doubt no consent shall be required under this
clause 19.2.4 for the renewal or extension of an Ancillary Facilities
Letter.
19.2.5 With the prior written consent of the Super Majority Lenders, the Agent
may:
(a) subject to clause 19.3, release any asset of whatever nature
that is subject to a Security Document unless such release is
to permit the disposal or other dealing with such asset where
such disposal or dealing is not restricted by the terms of
this Agreement or the relevant Security Document;
(b) release any TCN Entity (other than an Immaterial Group Entity)
from all of its obligations under this Agreement and the
Security Documents;
(c) change clause 7.8.5 or this clause 19.2.5.
19.2.6 Any action authorised and effected by the Agent pursuant to clause
19.2.1, 19.2.2, 19.2.3, 19.2.4 or 19.2.5 shall be promptly notified to
the Lenders and shall be binding on all the Lenders.
19.2.7 Each TCN Entity (other than TCN) irrevocably appoints TCN to act on its
behalf as its agent in relation to this Agreement, any Supplemental
Deed, the Facility D Lender Accession Agreement and any amendment
agreement relating to this Agreement and irrevocably authorises (i) TCN
on its behalf to supply all information concerning itself contemplated
by the Finance Documents to the Finance Parties and to give all notices
and instructions (including, in the case of the US Borrower, Drawdown
Notices) under the Finance Documents without further reference to, or
the consent of, such TCN Entity and such TCN Entity shall be bound as
though it had itself given such notices and instructions, (ii) each
Finance Party to give any notice, demand or other communication to such
TCN Entity pursuant to the Finance Documents to TCN on its behalf and
such TCN Entity shall be bound as it had received such notice, demand
or other communication itself and (iii) TCN to execute on its behalf
(a) any amendments to the Finance Documents and (b) any Supplemental
Deed or Facility D Lender Accession Agreement without further reference
to, or the consent of, such TCN Entity and to give any waivers,
consents in relation to the Finance Documents and any amendment
agreement relating thereto and to take any other action in relation to
the Finance Documents and any amendment agreement relating thereto
without further reference to or the consent of such TCN Entity. The US
Borrower confirms its agreement to TCN giving the notices and taking
the other action referred to in clause 6 in relation to the Facility D1
Advance without the consent of, or further reference to, the US
Borrower.
19.2.8 Every act, omission, agreement, undertaking, settlement, waiver, notice
or other communication given or made by TCN or given to TCN under the
Finance Documents, or in connection with the Finance Documents (whether
or not known to any other TCN Entity and whether occurring before or
after such other TCN Entities became a TCN Entity under the Finance
87
Documents) shall be binding for all purposes on all other TCN Entities
as if the other TCN Entities had expressly made, given or concurred
with the same. In the event of any conflict between any notices or
other communications of TCN and any other TCN Entity those of TCN shall
prevail.
19.3 RIGHTS OF AGENT, SECURITY TRUSTEE AND EACH LEAD ARRANGER AS LENDER; NO
PARTNERSHIP
With respect to its own Commitment and Contribution (if any) each
Agent, the Security Trustee and each Lead Arranger shall have the same
rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not performing the duties and
functions delegated to it under this Agreement and/or the Security
Documents and the term "Lenders" shall, unless the context clearly
otherwise indicates, include each Agent, the Security Trustee, each
Lead Arranger, in its individual capacity as a Facility A Lender,
Facility B Lender, Facility C Lender or Facility D Lender (as the case
may be). This Agreement shall not and shall not be construed so as to
constitute a partnership between the parties or any of them.
19.4 NO LIABILITY OF THE LEAD ARRANGERS, THE SECURITY TRUSTEE AND AGENTS
None of the Lead Arrangers, the Security Trustee, or the Agents shall:
19.4.1 be obliged to request any certificate or opinion under clause 11 or 13
or to make any enquiry as to the use of the proceeds of the Loan unless
(in the case of the Agent) so required in writing by any Lender, in
which case the Agent shall promptly make the appropriate request of the
Borrowers, or be obliged to make any enquiry as to any default by the
Borrowers in the performance or observance of any of the provisions of
this Agreement or as to the existence of a Default unless (in the case
of the Agent) the Agent has actual knowledge thereof or has been
notified in writing thereof by a Lender, in which case the Agent shall
promptly notify the Lenders of the relevant event or circumstance; or
19.4.2 be liable to any Lender for any action taken or omitted under or in
connection with this Agreement or the Facilities unless caused by their
or its gross negligence or wilful misconduct.
For the purpose of this clause 19 neither Agents nor the Security
Trustee shall be treated as having actual knowledge of any matter of
which the corporate finance or any other division outside the corporate
lending or loan administration departments of the person for the time
being acting as the Agent or the Security Trustee, as the case may be,
may become aware in the context of corporate finance or advisory
activities from time to time undertaken by the Agent or the Security
Trustee, as the case may be, for any TCN Entity, Telewest or any of
their respective Subsidiaries or Associated Partnerships.
19.5 AGENTS' DUTY TO NOTIFY AND TAKE ACTION
Each Agent shall:
19.5.1 promptly notify each Lender of the contents of each notice, certificate
or other document received by the Agent from the Borrowers under or
pursuant to clause 12 and provide each Lender with a copy of each set
of financial statements, Quarterly Management Accounts or other
financial information delivered to the Agent under clause 11.1.6,
11.1.7 or 11.1.9 unless, in the case of a Facility D Lender only, such
Facility D Lender has previously notified the relevant Agent in writing
that it does not want to receive all or certain specified documents and
has not subsequently revoked or amended such notification in writing;
and
19.5.2 (subject to its being indemnified to its satisfaction) take such action
or, as the case may be, refrain from taking such action with respect to
any Default of which the Agent has actual knowledge as the Majority
Lenders or the Super Majority Lenders or the Majority Institutional
88
Lenders or the Majority Bank Lenders or all the Lenders (as the case
may be) may reasonably direct.
Each Facility D Lender who is a party to this Agreement on the date
hereof confirms that it wishes to receive details of each notice,
certificate or other communication and copies of the financial
information referred to in this clause 19.5.1, save as set out in part
E of schedule 1.
19.6 IDENTITY OF THE LENDERS
The Agents may deem and treat (a) each Lender as the person entitled to
the benefit of the Contribution of such Lender for all purposes of this
Agreement unless and until a Substitution Certificate shall have been
filed with the Agent, and (b) the office set opposite the name of each
Lender in part E of schedule 1 or, as the case may be, in any relevant
Substitution Certificate as such Lender's Facility Office unless and
until a written notice of change of Facility Office shall have been
received by the UK Agent (or as the case may be) the US Agent; and the
relevant Agent may act upon any such notice unless and until the same
is superseded by a further such notice.
19.7 NON-RELIANCE ON THE LEAD ARRANGERS, THE SECURITY TRUSTEE OR THE AGENTS
Each Lender acknowledges that it has not relied on any statement,
opinion, forecast or other representation made by the Lead Arrangers,
the Security Trustee or the Agents to induce it to enter into this
Agreement and that it has made and will continue to make, without
reliance on the Agents, the Lead Arrangers, or the Security Trustee and
based on such documents as it considers appropriate, its own appraisal
of the creditworthiness of each TCN Entity and Telewest and its own
independent investigation of the financial condition and affairs of
each TCN Entity and Telewest in connection with the making and
continuation of the Advances and Utilisation under this Agreement. None
of the Lead Arrangers, the Security Trustee or the Agents shall have
any duty or responsibility, either initially or on a continuing basis,
to provide any Lender with any credit or other information with respect
to any TCN Entity or Telewest, whether coming into their or its
possession before the making of any Advance or at any time or times
thereafter, other than (in the case of the Agents) as provided in
clause 19.5.1.
19.8 NO RESPONSIBILITY ON LEAD ARRANGERS, SECURITY TRUSTEE OR AGENT FOR
BORROWERS, ETC. PERFORMANCE
None of the Lead Arrangers, the Security Trustee or the Agents shall
have any responsibility to any Lender on account of the failure of any
TCN Entity or Telewest to perform their respective obligations under
this Agreement or the Security Documents or for the financial condition
of any TCN Entity or Telewest, or for the completeness or accuracy of
any statements, representations or warranties in this Agreement, the
Security Documents or any document delivered under this Agreement, the
Security Documents or for the execution, effectiveness, adequacy,
genuineness, validity, enforceability or admissibility in evidence of
this Agreement or the Security Documents or of any certificate, report
or other document executed or delivered under this Agreement or the
Security Documents or otherwise in connection with the Loan or its
negotiation or for acting (or, as the case may be, refraining from
acting) in accordance with the instructions of the Majority Lenders,
the Majority Institutional Lenders, the Majority Bank Lenders, the
Super Majority Lenders or all of the Lenders (as the case may be). The
Lead Arrangers, the Security Trustee and the Agents shall be entitled
to rely on any communication, instrument or document believed by them
or it to be genuine and correct and to have been signed or sent by the
proper person and shall be entitled to rely as to legal or other
professional matters on opinions and statements of any legal or other
professional advisers selected or approved by them or it.
89
19.9 OTHER DEALINGS
The Lead Arrangers, the Security Trustee and the Agents may, without
any liability to account to the Lenders, accept deposits from, lend
money to, and generally engage in any kind of banking or trust business
with, each TCN Entity, Telewest or any of their respective Subsidiaries
or Associated Partnerships or any of the Lenders as if they or it were
not a Lead Arranger, the Security Trustee or an Agent (as the case may
be).
19.10 REIMBURSEMENT AND INDEMNITY BY LENDERS
Each Lender shall reimburse the Lead Arrangers, the Security Trustee
and the Agents (rateably in accordance with such Lender's Commitment,
at any time before the making of the first Advance or if no Advance is
then outstanding, or Contribution, at any other time) to the extent
that such Lead Arranger, the Security Trustee or such Agent is not
reimbursed by any Borrower, for the charges and expenses incurred by
such Arranger, the Security Trustee and such Agent in connection with
the negotiation, preparation, syndication and execution of this
Agreement and/or in contemplation of, or otherwise in connection with,
the enforcement of, or the preservation of any rights under, or in
carrying out its duties under, this Agreement and/or the Security
Documents including (in each case) the fees and expenses of legal or
other professional advisers. Each Lender shall indemnify the Agents and
the Security Trustee (rateably in accordance with such Lender's
Commitment, at any time before the making of the first Advance or if no
Advance is then outstanding, or Contribution, at any other time)
against all liabilities, damages, costs and claims whatsoever incurred
by the Agents or the Security Trustee (as the case may be) in
connection with this Agreement and/or the Security Documents or any
document or report referred to in this Agreement or the performance of
its duties under this Agreement and/or the Security Documents or any
action taken or omitted by the Agents or the Security Trustee (as the
case may be) under this Agreement and/or the Security Documents, unless
such liabilities, damages, costs or claims arise from the UK Agent or
(as the case may be) the US Agent or the Security Trustee's (as the
case may be) own gross negligence or wilful misconduct.
19.11 RETIREMENT AND REMOVAL OF AGENT
19.11.1 Each Agent may retire from its appointment as Agent under this
Agreement and/or the relevant Security Documents having given to TCN
and, in respect of the US Agent, each of the Lenders to Facility D1,
and in respect of the UK Agent, each of the Lenders other than the
Lenders to Facility D1, not less than 30 days' notice of its intention
to do so, provided that no such retirement shall take effect unless
there has been appointed by, in respect of the US Agent, all the
Lenders to Facility D1 or in respect of the UK Agent, all the Lenders
other than the Lenders to Facility D1 (in each case, after consultation
with TCN) as a successor agent:
(a) (in respect of the UK Agent) a Lender and (in respect of the
US Agent) a Lender to Facility D1; or
(b) any other reputable and experienced financial institution
with, in respect of the UK Agent, offices in London nominated
and accepted by the Majority Lenders, or in respect of the US
Agent, offices in New York and accepted by all the Lenders
under Facility D1 and, in each case, to which TCN has given
its consent (such consent not to be unreasonably withheld or
delayed);
(c) or, failing such nomination in paragraph (b) above, any
reputable and experienced bank or financial institution with
offices in London (or as the case may be) New York nominated
by the relevant Agent and to which TCN has given its consent
(such consent not to be unreasonably withheld or delayed).
19.11.2 In the case of the UK Agent, all of the Lenders (other than the Lenders
to Facility D1) or, in the case of the US Agent, all of the Lenders to
Facility D1 (in each case, other than the relevant Agents, in its
capacity as a Lender) may, having given to the relevant Agent not less
90
than 30 days' notice of the intention to do so, remove either Agent
from its appointment as such under the Agreement. The removal shall
automatically be of effect on the expiry of the notice save, where the
relevant Lenders (other than the relevant Agent, in its capacity as a
Lender) shall have failed to appoint a successor agent falling within
the requirements of clause 19.11.1(a) or 19.11.1(b), in which case the
removal shall be deferred until such appointment is made. The relevant
Lenders (other than the relevant Agent, in its capacity as a Lender)
shall immediately notify the relevant Agent in writing of their making
such appointment.
19.11.3 Upon any such successor as aforesaid being appointed, the relevant
retiring Agent shall be discharged from any further obligation under
this Agreement and/or the relevant Security Documents and its successor
and each of the other parties to this Agreement and/or the relevant
Security Documents shall have the same rights and obligations among
themselves as they would have had if such successor had been a party to
this Agreement and/or the relevant Security Documents in place of the
retiring Agent.
19.12 CHANGE OF REFERENCE LENDERS
If (a) the whole of the Contribution (if any) of any Reference Lender
is prepaid, (b) the Commitment (if any) of any Reference Lender is
reduced to zero in accordance with clause 7.7 or 16.1, (b) a Reference
Lender assigns and/or novates the whole of its rights and obligations
(if any) as a Lender under this Agreement or (d) any Reference Lender
ceases to provide quotations to the Agent for the purposes of
determining LIBOR, the Agent may, acting on the instructions of the
Majority Lenders, terminate the appointment of such Reference Lender
and after consultation with the Borrowers appoint another Lender to
replace such Reference Lender.
20 NOTICES AND OTHER MATTERS
20.1 NOTICES
All Relevant Information shall:
20.1.1 be in writing delivered personally or by first-class prepaid letter
(airmail if applicable and available) or telefax (confirmed in the case
of a telefax, by first-class prepaid letter (airmail if available));
20.1.2 be deemed to have been received, subject as otherwise provided in this
Agreement, in the case of a letter, when delivered personally or 3 days
(7 days in the case of a letter posted from one country to another)
after it has been put into the post and, in the case of a telefax, at
the time of despatch with confirmation by the sender's facsimile
machine that the message has been received at the correct facsimile
number (provided that if the date of delivery or despatch is not a
business day in the country of the addressee or if the time of despatch
of any telefax is after the close of business in the country of the
addressee it shall be deemed to have been received at the opening of
business on the next such business day); and
20.1.3 be sent:
(a) to the Borrowers and each other TCN Entity at:
c/o Telewest Communications plc
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Telefax: 0207 299 6400
Attention: ▇▇▇▇▇ ▇▇▇▇▇
91
(b) to the UK Agent and the Security Trustee at:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telefax: 0207 234 6433
Attention: Supervisor, Corporate Lending
Middle Office
to the US Agent at:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefax: ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Agency Services
(c) to each Arranger and each Lender at its address or telefax
number specified in part E of schedule 1, the Facility D
Lender Accession Agreement or in any relevant Substitution
Certificate
or to such other address or telefax number as is notified by the
Borrowers, a TCN Entity, an Agent, an Arranger, the Security Trustee or
a Lender (as the case may be) to the other parties to this Agreement,
save that a Lender or Arranger need not notify any other Lenders or
Arrangers.
20.2 NOTICES THROUGH THE AGENT
All Relevant Information to be given (i) by any TCN Entity or Telewest
to any Finance Party shall be given to the UK Agent for onward
transmission as appropriate, (ii) to any TCN Entity shall (except as
otherwise provided in this Agreement) be given to TCN on behalf of such
TCN Entity by the UK Agent (all Relevant Information addressed to any
TCN Entity shall be copied to Telewest), (iii) to Telewest shall be
given by the UK Agent and (iv) by or to a Finance Party shall be given
to or by (as applicable) the UK Agent for onward transmission as
appropriate other than Relevant Information to be given by or to a
Facility D Lender who has a Facility D1 Commitment and/or a Facility D1
Contribution which shall be given to or by (as applicable) the US Agent
for onward transmission as appropriate). The UK Agent shall promptly
notify the US Agent and the US Agent, shall promptly notify the UK
Agent of any Relevant Information received by it pursuant to this
clause 20.2.
20.3 INTRALINKS SITE
In the event that TCN and the Agent agree that they wish to deliver
Relevant Information to each other and to the other parties to the
Finance Documents by posting the same to a web site at secure hosting
facilities the parties to this Agreement agree that they will
co-operate with TCN and the Agent in order to agree such changes to the
Finance Documents as may be required in order for Relevant Information
to be delivered in such manner.
20.4 NO IMPLIED WAIVERS, REMEDIES CUMULATIVE
No failure or delay on the part of the Finance Parties or any of them
to exercise any power, right or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise
by the Finance Parties or any of them of any power, right or remedy
preclude any other or further exercise thereof or the exercise of any
other power, right or remedy. The remedies provided in this Agreement
are cumulative and are not exclusive of any remedies provided by law.
92
20.5 COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all counterparts shall
together constitute one and the same instrument.
21 GOVERNING LAW AND JURISDICTION
21.1 LAW
This Agreement is governed by and shall be construed in accordance with
English law.
21.2 SUBMISSION TO JURISDICTION
Each TCN Entity agrees for the benefit of the Finance Parties that any
legal action or proceedings in connection with this Agreement against
any TCN Entity or any of their respective assets may be brought in the
English courts. Each TCN Entity irrevocably and unconditionally submit
to the jurisdiction of such courts and in the case of TCN Entities
which are not incorporated or organised under the laws of England,
irrevocably designate, appoint and empower Telewest at present of ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ to receive for them and on their
behalf, service of process issued out of the English courts in any
legal action or proceedings arising out of or in connection with this
Agreement. The submission to such jurisdiction shall not (and shall not
be construed so as to) limit the right of the Finance Parties to take
proceedings against any TCN Entity to enforce any judgment obtained in
any court referred to in this clause 21.2 in any jurisdiction in which
any of the assets of any TCN Entity are situated, nor shall the taking
of proceedings in any one or more jurisdiction referred to in this
clause 21.2 preclude the taking of proceedings in any other such
jurisdiction, whether concurrently or not.
21.3 INCONVENIENT FORUM
Each TCN Entity irrevocably waives any objection they may have now or
hereafter to the laying of venue of any action or proceeding in any
court or jurisdiction referred to in clause 21.2 and any claim they may
have now or hereafter that any action or proceeding brought in such
courts or jurisdiction has been brought in an inconvenient forum.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
93
SCHEDULE 1
PART A - THE ORIGINAL CHARGING SUBSIDIARIES OF TCN
================================================================================== ==========================================
(1) (2)
COMPANY NAME COMPANY NUMBER
---------------------------------------------------------------------------------- ------------------------------------------
Birmingham Cable Corporation Limited 2170379
---------------------------------------------------------------------------------- ------------------------------------------
Birmingham Cable Finance Limited 60972
---------------------------------------------------------------------------------- ------------------------------------------
Birmingham Cable Limited 2244565
---------------------------------------------------------------------------------- ------------------------------------------
Bravo TV Limited 02342064
---------------------------------------------------------------------------------- ------------------------------------------
Cable Camden Limited 01795642
---------------------------------------------------------------------------------- ------------------------------------------
Cable Enfield Limited 02466511
---------------------------------------------------------------------------------- ------------------------------------------
Cable ▇▇▇▇▇▇▇ & Islington Limited 01795641
---------------------------------------------------------------------------------- ------------------------------------------
Cable Haringey Limited 01808589
---------------------------------------------------------------------------------- ------------------------------------------
Cable London Limited 01794264
---------------------------------------------------------------------------------- ------------------------------------------
Central Cable Holdings Limited 3008567
---------------------------------------------------------------------------------- ------------------------------------------
Cheltrading 283 Limited 04125315
---------------------------------------------------------------------------------- ------------------------------------------
Cheltrading 284 Limited 04125325
---------------------------------------------------------------------------------- ------------------------------------------
Crystal Palace Radio Limited 01459745
---------------------------------------------------------------------------------- ------------------------------------------
Filegale Limited 2804553
---------------------------------------------------------------------------------- ------------------------------------------
Flextech (1992) Limited 01190025
---------------------------------------------------------------------------------- ------------------------------------------
Flextech (Travel Channel) Limited 03427763
---------------------------------------------------------------------------------- ------------------------------------------
Flextech Children's Channel Limited 02678881
---------------------------------------------------------------------------------- ------------------------------------------
Flextech Communications Limited 02588902
---------------------------------------------------------------------------------- ------------------------------------------
Flextech Digital Broadcasting Limited 03298737
---------------------------------------------------------------------------------- ------------------------------------------
Flextech Family Channel Limited 02856303
---------------------------------------------------------------------------------- ------------------------------------------
Flextech Interactive Limited 03184754
---------------------------------------------------------------------------------- ------------------------------------------
Flextech IVS Limited 02678882
---------------------------------------------------------------------------------- ------------------------------------------
Flextech Media Holdings Limited 02678886
---------------------------------------------------------------------------------- ------------------------------------------
Flextech Rights Limited 02981104
---------------------------------------------------------------------------------- ------------------------------------------
Flextech Television Limited 02294553
---------------------------------------------------------------------------------- ------------------------------------------
94
================================================================================== ==========================================
(1) (2)
COMPANY NAME COMPANY NUMBER
---------------------------------------------------------------------------------- ------------------------------------------
Flextech Video Games Limited 02670821
---------------------------------------------------------------------------------- ------------------------------------------
General Cable Group Limited 2872852
---------------------------------------------------------------------------------- ------------------------------------------
General Cable Holdings Limited 2798236
---------------------------------------------------------------------------------- ------------------------------------------
General Cable Limited 2369824
---------------------------------------------------------------------------------- ------------------------------------------
Imminus Limited 1785381
---------------------------------------------------------------------------------- ------------------------------------------
IVS Cable Holdings Limited 41688
---------------------------------------------------------------------------------- ------------------------------------------
Maidstone Broadcasting 02721189
---------------------------------------------------------------------------------- ------------------------------------------
Middlesex Cable Limited 2460325
---------------------------------------------------------------------------------- ------------------------------------------
Sheffield Cable Communications Limited 2465953
---------------------------------------------------------------------------------- ------------------------------------------
Southwestern ▇▇▇▇ International Holdings Limited 2378768
---------------------------------------------------------------------------------- ------------------------------------------
Starstream Limited 01733724
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Central Lancashire) Limited 1737862
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Cotswolds) Limited 1743081
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Dundee & Perth) Limited SC096816
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Liverpool) Limited 1615567
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (London South) Limited 1697437
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Midlands and North West) Limited 2795350
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Midlands) Limited 1882074
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Motherwell) Limited SC121617
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (North East) Limited 2378214
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (North West) Limited 2321124
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Scotland Holdings) Limited SC150058
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Scotland) Limited SC80891
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (South East) Limited 2270764
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (South Thames Estuary) Limited 2270763
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (South West) Limited 2271287
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (St. Helens & Knowsley) Limited 2466599
---------------------------------------------------------------------------------- ------------------------------------------
95
================================================================================== ==========================================
(1) (2)
COMPANY NAME COMPANY NUMBER
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Tyneside) Limited 2407676
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Wigan) Limited 2451112
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications Cable Limited 2883742
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications Group Limited 2514287
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Communications Holdings Limited 2982404
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Limited 03291383
---------------------------------------------------------------------------------- ------------------------------------------
Telewest Parliamentary Holdings Limited 2514316
---------------------------------------------------------------------------------- ------------------------------------------
The Cable Corporation Limited 2075227
---------------------------------------------------------------------------------- ------------------------------------------
Theseus No. 1 Limited 2994027
---------------------------------------------------------------------------------- ------------------------------------------
Theseus No. 2 Limited 2994061
---------------------------------------------------------------------------------- ------------------------------------------
UK Living Limited 02802598
---------------------------------------------------------------------------------- ------------------------------------------
United Artists Investments Limited 02761569
---------------------------------------------------------------------------------- ------------------------------------------
Windsor Television Limited 1745542
---------------------------------------------------------------------------------- ------------------------------------------
Yorkshire Cable Communications Limited 2490136
---------------------------------------------------------------------------------- ------------------------------------------
The Yorkshire Cable Group Limited 2782818
---------------------------------------------------------------------------------- ------------------------------------------
96
PART B - THE ORIGINAL NON-CHARGING SUBSIDIARIES
============================================================================ ==========================================
(1) (2)
COMPANY NAME COMPANY NUMBER
---------------------------------------------------------------------------- ------------------------------------------
Avon Cable Investments Limited 02487110
---------------------------------------------------------------------------- ------------------------------------------
Avon Cable Investments Limited 02487110
---------------------------------------------------------------------------- ------------------------------------------
Barnsley Cable Communications Limited 2466594
---------------------------------------------------------------------------- ------------------------------------------
Bradford Cable Communications Limited 2664803
---------------------------------------------------------------------------- ------------------------------------------
Cable Adnet Limited 3283202
---------------------------------------------------------------------------- ------------------------------------------
Cable Communications (Telecom) Limited 02423585
---------------------------------------------------------------------------- ------------------------------------------
Cable Communications Limited 01860121
---------------------------------------------------------------------------- ------------------------------------------
Cable Finance Limited FC018511
---------------------------------------------------------------------------- ------------------------------------------
Cable Interactive Limited 03006851
---------------------------------------------------------------------------- ------------------------------------------
Cable Internet Limited 3085918
---------------------------------------------------------------------------- ------------------------------------------
Cable on Demand Limited 03039816
---------------------------------------------------------------------------- ------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------------------------------- ------------------------------------------
Central Cable Limited 3008681
---------------------------------------------------------------------------- ------------------------------------------
Central Cable Sales Limited 2985669
---------------------------------------------------------------------------- ------------------------------------------
Chariot Collection Services Limited 3155349
---------------------------------------------------------------------------- ------------------------------------------
Continental Shelf 16 Limited 03005499
---------------------------------------------------------------------------- ------------------------------------------
Crystalvision Productions Limited 01947225
---------------------------------------------------------------------------- ------------------------------------------
Digital Mind Games Limited 03968752
---------------------------------------------------------------------------- ------------------------------------------
Doncaster Cable Communications Limited 2407940
---------------------------------------------------------------------------- ------------------------------------------
Dundee Cable and Satellite Limited SC093114
---------------------------------------------------------------------------- ------------------------------------------
Edinburgh Cablevision Limited SC078895
---------------------------------------------------------------------------- ------------------------------------------
European Business Network Limited 2146363
---------------------------------------------------------------------------- ------------------------------------------
Fastrak Limited 1804294
---------------------------------------------------------------------------- ------------------------------------------
Flextech (Kindernet Investment) Limited 1260228
---------------------------------------------------------------------------- ------------------------------------------
Flextech Business News Limited 02954531
---------------------------------------------------------------------------- ------------------------------------------
Flextech Distribution Limited 2678883
---------------------------------------------------------------------------- ------------------------------------------
97
============================================================================ ==========================================
(1) (2)
COMPANY NAME COMPANY NUMBER
---------------------------------------------------------------------------- ------------------------------------------
Flextech Flexinvest Limited 01192945
---------------------------------------------------------------------------- ------------------------------------------
Flextech Living Health Limited 03673915
---------------------------------------------------------------------------- ------------------------------------------
Flextech Satellite Investment Limited 02710978
---------------------------------------------------------------------------- ------------------------------------------
General Cable Investments Limited 2885920
---------------------------------------------------------------------------- ------------------------------------------
General Cable Programming Limited 2924232
---------------------------------------------------------------------------- ------------------------------------------
Halifax Cable Communications Limited 2459173
---------------------------------------------------------------------------- ------------------------------------------
Hieronymous Limited SC80135
---------------------------------------------------------------------------- ------------------------------------------
Imminus (Ireland) Limited 267096
---------------------------------------------------------------------------- ------------------------------------------
▇▇▇▇▇ ▇▇▇▇ Debt Recovery Limited 3008683
---------------------------------------------------------------------------- ------------------------------------------
London Interconnect Limited 02777628
---------------------------------------------------------------------------- ------------------------------------------
Maidstone Studios Limited 01471172
---------------------------------------------------------------------------- ------------------------------------------
Mayfair Way Management Limited 2681702
---------------------------------------------------------------------------- ------------------------------------------
Minotaur International Limited 03059563
---------------------------------------------------------------------------- ------------------------------------------
Multimedia Mapping Limited 03121505
---------------------------------------------------------------------------- ------------------------------------------
Northern Credit Limited 2743896
---------------------------------------------------------------------------- ------------------------------------------
Perth Cable Television Limited SC032627
---------------------------------------------------------------------------- ------------------------------------------
Recommend Limited 03692064
---------------------------------------------------------------------------- ------------------------------------------
Rotherham Cable Communications Limited 2455726
---------------------------------------------------------------------------- ------------------------------------------
Screenshop Limited 03529106
---------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Cumbernauld) Limited SC121614
---------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Dumbarton) Limited SC121700
---------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (East Lothian & Fife) Limited SC150057
---------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Falkirk) Limited SC122481
---------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Fylde & Wyre) Limited 02935056
---------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Glenrothes) Limited SC119523
---------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Internet) Limited 03141035
---------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Nominees) Limited 2318746
---------------------------------------------------------------------------- ------------------------------------------
98
============================================================================ ==========================================
(1) (2)
COMPANY NAME COMPANY NUMBER
---------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Publications) Limited 03860829
---------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Southport) Limited 03085912
---------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Taunton & Bridgwater) Limited 3184760
---------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Telford) Limited 2389377
---------------------------------------------------------------------------- ------------------------------------------
Telewest Communications (Worcester) Limited 02475098
---------------------------------------------------------------------------- ------------------------------------------
Telewest Communications Services Limited 2415291
---------------------------------------------------------------------------- ------------------------------------------
Telewest Share Trust Limited 02472760
---------------------------------------------------------------------------- ------------------------------------------
Telewest Trustees Limited 03071066
---------------------------------------------------------------------------- ------------------------------------------
Telso Communications Limited 02067186
---------------------------------------------------------------------------- ------------------------------------------
The Cable Corporation Equipment Limited 2116958
---------------------------------------------------------------------------- ------------------------------------------
The Cable Equipment Store Limited 2693805
---------------------------------------------------------------------------- ------------------------------------------
The North London Channel Limited 02527764
---------------------------------------------------------------------------- ------------------------------------------
The Parliamentary Channel Limited 02670380
---------------------------------------------------------------------------- ------------------------------------------
The Way Ahead Group Limited 03554468
---------------------------------------------------------------------------- ------------------------------------------
TVS Pension Fund Trustees Limited 01539051
---------------------------------------------------------------------------- ------------------------------------------
TVS Television Limited 00591652
---------------------------------------------------------------------------- ------------------------------------------
UK Channel Management Limited 03322468
---------------------------------------------------------------------------- ------------------------------------------
UK Gold Broadcasting Limited 0202650
---------------------------------------------------------------------------- ------------------------------------------
UK Gold Holdings Limited 03298738
---------------------------------------------------------------------------- ------------------------------------------
UK Programme Distribution Limited 03323782
---------------------------------------------------------------------------- ------------------------------------------
VIS ITV Limited 04000147
---------------------------------------------------------------------------- ------------------------------------------
Wakefield Cable Communications Limited 2400909
---------------------------------------------------------------------------- ------------------------------------------
West Midlands Credit Limited 2989858
---------------------------------------------------------------------------- ------------------------------------------
▇▇▇▇▇▇.▇▇▇ Limited 03840990
---------------------------------------------------------------------------- ------------------------------------------
Yorkshire Cable Finance Limited 2993376
---------------------------------------------------------------------------- ------------------------------------------
Yorkshire Cable Limited 02792601
---------------------------------------------------------------------------- ------------------------------------------
Yorkshire Cable Properties Limited 02951884
---------------------------------------------------------------------------- ------------------------------------------
99
============================================================================ ==========================================
(1) (2)
COMPANY NAME COMPANY NUMBER
---------------------------------------------------------------------------- ------------------------------------------
Yorkshire Cable Telecom Limited 2743897
---------------------------------------------------------------------------- ------------------------------------------
100
PART C - THE ORIGINAL CHARGING PARTNERSHIPS
=============================================================== ===============================================================
(1) (2)
PARTNERSHIP NAME PRINCIPAL PLACE OF BUSINESS
--------------------------------------------------------------- ---------------------------------------------------------------
Avon Cable Joint Venture ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ West
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
--------------------------------------------------------------- ---------------------------------------------------------------
Avon Cable Limited Partnership ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ West
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
--------------------------------------------------------------- ---------------------------------------------------------------
Cotswolds Cable Limited Partnership Concord House,
Staverton Technology Park,
Staverton,
Cheltenham,
Gloucestershire GL51 6TQ
--------------------------------------------------------------- ---------------------------------------------------------------
Edinburgh Cable Limited Partnership ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
--------------------------------------------------------------- ---------------------------------------------------------------
Estuaries Cable Limited Partnership ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇
--------------------------------------------------------------- ---------------------------------------------------------------
London South Cable Partnership Communications Centre
▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
--------------------------------------------------------------- ---------------------------------------------------------------
TCI/US WEST Cable Communications Group ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
--------------------------------------------------------------- ---------------------------------------------------------------
Telewest Communications (London South) Joint Venture Communications Centre
▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
--------------------------------------------------------------- ---------------------------------------------------------------
Telewest Communications (Cotswolds) Venture Network Centre
Staverton Technology Park
Staverton
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
--------------------------------------------------------------- ---------------------------------------------------------------
101
=============================================================== ===============================================================
(1) (2)
PARTNERSHIP NAME PRINCIPAL PLACE OF BUSINESS
--------------------------------------------------------------- ---------------------------------------------------------------
Telewest Communications (North East) Partnership Communications House,
1 Duke's Way West,
Team Valley,
Gateshead,
County ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
--------------------------------------------------------------- ---------------------------------------------------------------
Telewest Communications (Scotland) Venture ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
--------------------------------------------------------------- ---------------------------------------------------------------
Telewest Communications (South East) Partnership Communications House,
▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇
--------------------------------------------------------------- ---------------------------------------------------------------
Tyneside Cable Limited Partnership Communications House,
1 Duke's Way West,
Team Valley,
Gateshead,
County ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
--------------------------------------------------------------- ---------------------------------------------------------------
United Cable (London South) Limited Partnership Communications Centre
▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
=============================================================== ===============================================================
102
PART D - THE LEAD ARRANGERS
============================================================ =================================================================
(1) (2)
PARTNERSHIP NAME PRINCIPAL PLACE OF BUSINESS
------------------------------------------------------------ -----------------------------------------------------------------
Bank of America International Limited ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇
------------------------------------------------------------ -----------------------------------------------------------------
Barclays Capital 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
------------------------------------------------------------ -----------------------------------------------------------------
Bayerische Hypo-und Vereinsbank AG Vintners Place, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
------------------------------------------------------------ -----------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
------------------------------------------------------------ -----------------------------------------------------------------
CIBC World Markets Plc ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
------------------------------------------------------------ -----------------------------------------------------------------
Credit Suisse First Boston ▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
------------------------------------------------------------ -----------------------------------------------------------------
Deutsche Bank AG, London Winchester House, 1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
------------------------------------------------------------ -----------------------------------------------------------------
Fortis Bank ▇.▇./▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
------------------------------------------------------------ -----------------------------------------------------------------
▇.▇. ▇▇▇▇▇▇ Plc ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
------------------------------------------------------------ -----------------------------------------------------------------
The Royal Bank of Scotland plc Corporate and Institutional Banking (Technology, Media &
Telecom) ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
------------------------------------------------------------ -----------------------------------------------------------------
Salomon Brothers International Limited ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
------------------------------------------------------------ -----------------------------------------------------------------
TD Bank Europe Limited Triton Court, ▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
------------------------------------------------------------ -----------------------------------------------------------------
The Fuji Bank, Limited ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
------------------------------------------------------------ -----------------------------------------------------------------
Westdeutsche Landesbank Girozentrale ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
============================================================ =================================================================
103
PART E - THE LENDERS AND THEIR COMMITMENTS
---------------------------------------------- ------------- ------------------- --------------- ----------- ----------- -----------
NAME, ADDRESS AND CONTACT DETAILS COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4 COLUMN 5 COLUMN 6
FACILITY A FACILITY B FACILITY C FACILITY D1 FACILITY D2 FACILITY D3
COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
Abbey National Abbey House 6,250,000 18,750,000 Nil Nil Nil Nil
Treasury Services plc ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Contact: Han Nong
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 6,250,000 18,750,000 Nil Nil Nil Nil
Italiana S.p.A. - ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Contact: Alessia Picci
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
Bankgesellschaft ▇ ▇▇▇▇▇ ▇▇▇▇▇ 8,750,000 26,250,000 Nil Nil Nil Nil
Berlin AG, London Cheapside
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Contact:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ /
▇▇▇▇▇▇▇▇ Sarafjan
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
Bank of America, N.A. ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ 27,767,857.14 83,303,571.43 ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
▇▇ ▇▇▇
Contact: ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
The Bank of New York One Canada Square, 27,767,857.14 83,303,571.43 ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Contact:
▇▇▇▇▇ ▇▇▇▇▇▇▇, Loans
Administration
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
Barclays Bank PLC 5 The North 27,767,857.14 58,303,571.43 25,000,000.00 Nil ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Contact: ▇▇▇ ▇▇▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
Bayerische Bavaria House 12,500,000 37,500,000 Nil Nil Nil Nil
Landesbank ▇▇/▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Branch
Contact: ▇▇▇▇▇
▇▇▇▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
Bayerische Hypo-und Vintners Place 27,767,857.14 83,303,571.43 Nil Nil Nil Nil
Vereinsbank AG ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Contact: ▇▇▇▇▇▇ Self
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
The Chase Manhattan 125 London Wall, 27,767,857.14 83,303,571.43 ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Contact: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
104
---------------------------------------------- ------------- ------------------- --------------- ----------- ----------- -----------
NAME, ADDRESS AND CONTACT DETAILS COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4 COLUMN 5 COLUMN 6
FACILITY A FACILITY B FACILITY C FACILITY D1 FACILITY D2 FACILITY D3
COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
CIBC World Markets Cottons Centre, 27,767,857.14 83,303,571.43 Nil Nil ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Contact: Supervisor,
Corporate Lending
Middle Office
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
Citibank, N.A. 33 Canada Square, 27,767,857.14 83,303,571.43 ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Contact: ▇▇▇▇▇▇
▇▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
Credit Suisse First 1-5 Cabot Square, 27,767,857.14 83,303,571.43 Nil ▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Contact: Team 1/Loan
Services
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
Deutsche Bank AG, Winchester House, 1 27,767,857.14 83,303,571.43 Nil Nil Nil Nil
London Great ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇
Contact: N J
▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
Dresdner Bank AG Riverbank House 18,750,000 56,250,000 Nil Nil Nil Nil
London Branch ▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Contact: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇/▇▇▇▇▇ ▇'▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
Fleet National Bank ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 3,750,000 11,250,000 ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Contact: ▇▇▇▇
▇▇▇▇▇▇▇/▇▇▇▇▇ Onions
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
Fortis Bank ▇.▇./▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ 27,767,857.14 83,303,571.43 Nil Nil ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Contact:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
General Electric ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 8,750,000 26,250,000 Nil Nil Nil Nil
Capital Corporation ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇▇▇
▇▇▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
ING Bank ▇.▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ Wall 6,250,000 18,750,000 Nil `Nil ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Contact: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
105
---------------------------------------------- ------------- ------------------- --------------- ----------- ----------- -----------
NAME, ADDRESS AND CONTACT DETAILS COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4 COLUMN 5 COLUMN 6
FACILITY A FACILITY B FACILITY C FACILITY D1 FACILITY D2 FACILITY D3
COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
▇▇▇▇▇▇▇ ▇▇▇▇▇ 4 World Financial 12,500,000 37,500,000 Nil Nil Nil Nil
Capital Corporation Centre
7th Floor
New York
NY 10080
Contact: Eve Larn/
▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
National Westminster Corporate & Nil Nil (pound)10,000,000 Nil Nil Nil
Bank plc Institutional Banking
(Technology, Media &
Telecom)
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
The Royal Bank of Corporate & 27,767,857.14 58,303,571.43 (pound)15,000,000 Nil Nil Nil
Scotland plc Institutional Banking
(Technology, Media &
Telecom)
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
Scotiabank Europe plc Scotia House 6,250,000 18,750,000 Nil Nil Nil Nil
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Contact: ▇▇▇▇▇▇
▇▇▇▇▇▇/▇▇▇▇▇▇▇ Caller
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇ 6,250,000 18,750,000 Nil Nil Nil Nil
Enskilda Banken ▇▇▇-▇▇ ▇▇▇▇▇▇▇▇▇
(▇▇▇▇) ▇▇▇▇▇▇
Contact:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
The Governor and Project & Specialised 15,000,000 45,000,000 Nil Nil Nil Nil
Company of The Bank Industries Finance
of Scotland Orchard Brae House
Level 2
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Contact:
▇▇▇▇ ▇▇▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
The Fuji Bank, Riverplate House, 27,767,857.14 83,303,571.43 Nil Nil Nil Nil
Limited ▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Contact: ▇▇▇▇▇▇▇
Miscock
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
The Toronto- Triton Court, 14/18 27,767,857.14 83,303,571.43 Nil Nil Nil Nil
Dominion Bank ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Contact: ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
106
---------------------------------------------- ------------- ------------------- --------------- ----------- ----------- -----------
NAME, ADDRESS AND CONTACT DETAILS COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4 COLUMN 5 COLUMN 6
FACILITY A FACILITY B FACILITY C FACILITY D1 FACILITY D2 FACILITY D3
COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
Westdeutsche ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ 27,767,857.14 83,303,571.43 ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Girozentrale
Contact: ▇▇▇▇▇
▇▇▇▇▇/▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
(▇▇▇▇▇)▇ (▇▇▇▇▇)▇ (▇▇▇▇▇)▇
------------- ------------------ ---------------
(pound)500,000,000 (pound)1,450,000,000 (pound)50,000,000
---------------------- ----------------------- ------------- ------------------- --------------- ----------- ----------- -----------
107
SCHEDULE 2
PART A - FORM OF DRAWDOWN NOTICE - FACILITY B ADVANCES
To: CIBC World Markets plc
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Supervisor, Corporate Lending Middle Office [Date]
LOAN AGREEMENT DATED O, 2001 FOR CREDIT FACILITIES OF (POUND)2,000,000,000
TOGETHER WITH AN INSTITUTIONAL FACILITY OF UP TO (POUND)250,000,000 (AS FROM
TIME TO TIME AMENDED, VARIED, EXTENDED, RESTATED OR REPLACED, THE "LOAN
AGREEMENT")
1 We refer to the above Loan Agreement and hereby give you notice that we
wish to draw a Facility B Advance of (pound)[ ] ON [ ] and select a
Term for such Facility B Advance of [ ] month[s]. The funds should be
credited to [NAME AND NUMBER OF ACCOUNT] with [BANK IN LONDON].
2 We confirm that:
(a) no event or circumstance has occurred and is continuing which
constitutes a Default;
(b) the representations and warranties referred to in clause 10.3
deemed to be made by the Borrower pursuant to such clause are
(subject as provided therein) true and correct at the date
hereof as if each was made with respect to the facts and
circumstances existing at the date hereof; and
(c) the borrowing to be effected by such Facility B Advance will
be within our powers, has been validly authorised by
appropriate action and will not cause any limit on our
borrowings (whether imposed by statute, regulation, agreement
or otherwise) to be exceeded.
3 We confirm that Consolidated Annualised TCN Group Net Operating Cash
Flow in the most recently delivered Quarterly Management Accounts was
(pound)[ ] and on the date hereof Total TCN Group Senior Debt is
(pound)[ ].
4 We further confirm that the ratio of the Total TCN Group Senior Debt on
the date hereof (including, for these purposes, the amount of the
Advance the subject of this notice) to Consolidated Annualised TCN
Group Net Operating Cash Flow as calculated from the most recently
delivered Quarterly Management Accounts delivered to the Agent under
this Agreement was [ ].
Words and expressions defined in the Loan Agreement shall have the same meanings
where used herein.
For and on behalf of
TELEWEST COMMUNICATIONS NETWORK LIMITED
..................................................
Authorised Officer
108
PART B
FORM OF DRAWDOWN NOTICE - FACILITY A AND D ADVANCES
To: CIBC World Markets plc
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Supervisor, Corporate Lending Middle Office [Date]
and To: Canadian Imperial Bank of Commerce*
LOAN AGREEMENT DATED O, 2001 FOR CREDIT FACILITIES OF (POUND)2,000,000,000
TOGETHER WITH AN INSTITUTIONAL FACILITY OF UP TO (POUND)250,000,000 (AS FROM
TIME TO TIME AMENDED, VARIED, EXTENDED, RESTATED OR REPLACED, THE "LOAN
AGREEMENT")
1. We refer to the above Loan Agreement and hereby give you notice that we
wish to draw a [Facility A Advance] [Facility D Advance] in [Sterling]
[Dollars] [euro] of [(pound)o] [(euro)o] [$o].
2. We confirm that:
(i) no event or circumstance has occurred and is continuing which
constitutes a Default;
(ii) the representations and warranties referred to in clause 10.3
deemed to be made by the Borrower pursuant to such clause are
(subject as provided therein) true and correct at the date
hereof as if each was made with respect to the facts and
circumstances existing at the date hereof; and
(iii) the borrowing to be effected by such [Facility A Advance]
[Facility D Advance] will be within our powers, has been
validly authorised by appropriate action and will not cause
any limit on our borrowings (whether imposed by statute,
regulation, agreement or otherwise) to be exceeded.
3. We confirm that Consolidated Annualised TCN Group Net Operating Cash
Flow in the most recently delivered Quarterly Management Accounts was
(pound)[ ] and on the date hereof Total TCN Group Senior Debt is
(pound)[ ].
4. We further confirm that the ratio of the Total TCN Group Senior Debt on
the date hereof (including, for these purposes, the amount of the
Advance the subject of this notice) to Consolidated Annualised TCN
Group Net Operating Cash Flow as calculated from the most recently
delivered Quarterly Management Accounts delivered to the Agent under
this Agreement was [ ].
Words and expressions defined in the Loan Agreement shall have the same meanings
where used herein.
For and on behalf of
[NAME OF BORROWER]
..................................................
Authorised Officer
109
PART C
FORM OF ROLLOVER NOTICE
To: CIBC World Markets plc
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Supervisor, Corporate Lending Middle Office [Date]
LOAN AGREEMENT DATED O 2001 FOR CREDIT FACILITIES OF (POUND)2,000,000,000
TOGETHER WITH AN INSTITUTIONAL FACILITY OF UP TO (POUND)250,000,000 (AS FROM
TIME AMENDED, VARIED, EXTENDED, RESTATED OR REPLACED, THE "LOAN AGREEMENT")
We refer to the above Loan Agreement and hereby give you notice that we wish to
draw a Facility B Advance of (pound)[ ] ON [ ] and select a Term for such
Facility B Advance of [ ] months. The funds should be applied in repayment [in
part] of the Facility B Advance of (pound)[ ] which falls due to be repaid on
the same day in accordance with clause 4.8 of the LOAN Agreement.
Words and expressions defined in the Loan Agreement shall have the same meanings
when used herein.
For and on behalf of
TELEWEST COMMUNICATIONS NETWORKS LIMITED
...........................
Authorised Officer
110
SCHEDULE 3
PART A - DOCUMENTS AND EVIDENCE REQUIRED AS CONDITIONS PRECEDENT TO FIRST
DRAWDOWN
1 Copies, certified as true, complete and up-to-date copies by an
Authorised Officer of TCN, of the Certificate of Incorporation, the
Memorandum and Articles of Association of TCN.
2 Copies, certified as true, complete and up-to-date copies by an
Authorised Officer, of (i) the Certificate of Incorporation, Memorandum
and Articles of Association (or equivalent constitutional documents) of
Telewest, the US Borrower, each Joint Venture and of each Original
Charging Subsidiary and the Partnership Agreement of each Original
Charging Partnership and (ii) resolutions of the members of each
Original Charging Subsidiary whose Articles of Association need to be
amended to include an Article restricting the right of the directors to
refuse to register transfers of shares.
3 Certificates of valid existence by the appropriate State in relation to
each of the Original Charging Partnerships that is a limited
partnership and is organised under the laws of one of the states of the
United States of America and the US Borrower.
4 A copy, certified as a true copy by an Authorised Officer of TCN, of
resolutions of the Board of Directors of TCN evidencing approval of
this Agreement and any Security Document to which it is a party and
authorising its appropriate officers to execute and deliver this
Agreement, each Security Document to which it is a party and to give
all notices (including drawdown notices) and take all other action
required by TCN under this Agreement, the Ancillary Facilities Letters
and each Security Document to which it is a party.
5 A copy, certified as a true copy by an Authorised Officer of Telewest,
of resolutions of the Board of Directors of Telewest evidencing
approval of the Share Charge, the Deed of Subordination, the Telewest
Loan Assignment and authorising its appropriate officers to execute and
deliver such documents and to give all notices and to take all action
required by Telewest under the Share Charge, the Deed of Subordination
and the Telewest Loan Assignment.
6 A copy, certified as a true copy by an Authorised Officer of TCN, of
resolutions of the Board of Directors of the US Borrower, each Original
Charging Subsidiary and the BBC Joint Venture and a copy, certified as
a true copy by an Authorised Officer of TCN, of resolutions of the
Partners of each Original Charging Partnership evidencing:
(a) approval of this Agreement and any Security Document to which
it is a party;
(b) authorising its appropriate officers to execute and deliver
this Agreement and the Security Documents to which it is a
party; and
(c) to give all notices and take all other action required by each
such Original Charging Subsidiary or, as the case may be, such
Original Charging Partnership under this Agreement and each
Security Document to which it is a party
together with a copy of the resolutions of the authorised
representative of each General Partner of each Charging Partnership
evidencing approval of this Agreement and any Security Document to
which it is a party (certified as a true copy by a responsible officer
of such General Partner and certifying as to the authority of such
authorised representative) and in the case of also Cable London and its
Subsidiaries and Filegale Limited and Imminus Limited a copy of all
board resolutions, shareholder written resolutions, declarations and
other documents required to ensure compliance with sections 151-158 of
the Companies ▇▇▇ ▇▇▇▇ including the necessary auditor's reports
111
addressed to the directors Cable London and its Subsidiaries and
Filegale Limited and Imminus Limited together with a letter from TCN
confirming they will register the relevant documents at Companies House
and a copy of the letter from KPMG Audit Plc to the Lenders in the
agreed form.
7 Specimen signatures, authenticated by the relevant Authorised Officer,
of the persons authorised in the resolutions of the Board of Directors
or Partners referred to in paragraphs 4, 5 and 6 above.
8 Certificate of the Assistant Secretary of TINTA evidencing authority of
its relevant officers to sign the TINTA Intercreditor Deed, together
with specimen signatures of such persons duly authorised.
9 Copies, certified as true copies by the relevant Authorised Officer of
Telewest as agents for receipt of service of process referred to in
this Agreement and/or the Security Documents of acknowledgement of its
appointment as such.
10 The Deed of Subordination, the Share Charge and the Telewest Loan
Assignment having been duly executed and delivered by Telewest.
11 The Security Documents (other than those referred to in Schedule 3 part
B and paragraph 10 above and paragraph 20 below) having been duly
executed and delivered by all parties thereto (other than the Finance
Parties).
12 The Intercompany Loan Agreement having been duly executed and delivered
by TCN and the US Borrower.
13 An opinion of ▇▇▇▇▇▇ ▇▇▇▇, solicitors to the Agent, dated no earlier
than 15 days prior to the date of this Agreement.
14 Opinions of (i) legal counsel to the Agent in the jurisdiction of
incorporation or formation of each Original Charging Subsidiary and
each Original Charging Partnership (to the extent not incorporated or
formed in England and Wales); and (ii) legal counsel to TCN in the
jurisdiction of incorporation of the US Borrower and each Original
Charging Partnership (to the extent not incorporated or formed in
England and Wales), in each case dated no earlier than 15 days prior to
the date hereof.
15 A letter, addressed to the UK Agent and the Lenders, from KPMG Audit
Plc stating that in KPMG Audit Plc's opinion the financial projections
and underlying accounting assumptions of the Initial Long Range Plan
delivered to the Lead Arrangers prior to the date of this Agreement are
reasonable.
16 A copy of the Annual Budget of the TCN Group for the period commencing
on 1 January 2001 and ending on 31 December 2001.
17 A copy, certified as a true copy by an Authorised Officer of TCN, of
the Quarterly Management Accounts of the TCN Group in respect of the
Quarterly Period ending on 31 December 2000.
18 A copy, certified as a true copy by an Authorised Officer of TCN, of
the Initial Long Range Plan and the group structure chart as at the
first Drawdown Date.
19 A letter from an Authorised Officer of Telewest confirming that as of
the first Drawdown Date any borrowing limit set out in Telewest's
Articles of Association will not be exceeded by the borrowing by TCN of
all the Commitments.
20 A Pledge and Security Agreement with respect to each of the Original
Charging Partnerships organised under the laws of one of the states of
the United States of America in each case duly executed and delivered
by each and every of the partners in such Original Charging
Partnership.
112
21 Confirmation from an Authorised Officer of Telewest that neither
Telewest nor the Telewest Group is in default under any existing
financing arrangements including the Agreed Securities.
22 A UCC-1 financing statement executed by each of the partners in each of
the Original Charging Partnerships that is organised under the laws of
one of the states of the United States of America with respect to their
respective pledges under the Pledge and Security Agreements and a UCC-1
financing statement in relation to the US Borrower's charges under the
Debenture duly executed.
23 Copies, certified as true copies by an Authorised Officer of TCN, of
those Encumbrances detailed in schedule 8 and underlying loan
documentation, together with a notice to each party secured by an
existing Encumbrance, such notice to be in a form agreed between TCN
and the UK Agent, and any acknowledgements of such notices which TCN
has, using its reasonable endeavours, been able to procure.
24 Copies, certified as true copies by an Authorised Officer of Telewest,
of the Agreed Cash Management Loans which have been entered into as at
the date of this Agreement and all other agreements which evidence the
"Telewest Loans" (as defined in the Telewest Loan Assignment).
25 Confirmation from the Company Secretary of TCN that there are no
outstanding Encumbrances and there is no outstanding Borrowed Money of
TCN Entities other than Permitted Encumbrances and Permitted
Borrowings.
26 All share certificates and all other documents of title representing
100% of the issued share capital of TCN, the US Borrower (to be kept in
New York) and each Original Charging Subsidiary (other than Telewest
Communications (Scotland Holdings) Limited) and each Joint Venture
together with share transfer forms executed in blank to enable the
Security Trustee or its nominees to become registered as the owner of
the same.
27 All stock certificates in respect of the JV Loan Stock.
28 Deeds of release in relation to each Encumbrance created by a member of
the TCN Group in connection with the Existing Facilities executed in
escrow and to become effective upon the making of the first Advance or
Utilisation hereunder.
29 Share transfer forms executed by (i) CIBC International Trust Limited
in relation to each Encumbrance over shares created by an Original
Charging Subsidiary incorporated in Scotland in connection with the TCN
Loan Agreement and (ii) each shareholder of each Original Charging
Subsidiary incorporated in Scotland (other than Telewest Limited in
respect of the shares of Telewest Communications (Scotland Holdings)
Limited, in connection with the Facilities in favour of the Security
Trustee, together with all statutory declarations required in relation
to the TCN Group Restructuring.
30 A copy certified as a true copy by an Authorised Officer of TCN, of
each of:
(a) the Barclays Loan Agreements;
(b) the Lease Documents.
31 Ancillary Facilities Letters duly executed by TCN and each Facility C
Lender together with confirmation that the same have been unconditional
in all respects (save for any condition which relates solely to this
Agreement becoming unconditional);
32 A certificate of the Flextech Agent as to the Flextech Outstandings and
a certificate of the TCN Agent as to the TCN Outstandings.
33 All notices and acknowledgements required to be delivered under the
Debenture, duly executed by the relevant TCN Entity.
113
34 A collateral account security assignment having been duly executed and
delivered by The Yorkshire Cable Group Limited in favour of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Leasing (Number 4) Limited together with all notices and
assignments required thereunder.
114
SCHEDULE 3
PART B - DOCUMENTS AND EVIDENCE REQUIRED AS CONDITIONS SUBSEQUENT
1 Share transfer forms executed by Telewest Limited in respect of the
shares of Telewest Communications (Scotland Holdings) Limited in favour
of the Security Trustee.
2 A first ranking Scottish law share pledge duly executed and delivered
by Telewest Limited over the shares of Telewest Communications
(Scotland Holdings) Limited in favour of the Security Trustee (the
"TCSHL PLEDGE").
3 An opinion of legal counsel to the Agent in Scotland in relation to the
TCSHL Pledge.
115
SCHEDULE 4
CALCULATION OF ADDITIONAL COST
1 The Additional Cost shall be calculated by the Agent in respect of each
period for which it falls to be calculated in accordance with the
following formulae:
In relation to each amount in Sterling:
CL+S(L-Z)+0.01F
--------------- = per cent.per annum
100-(C+S)
0.01F
Y------ = per cent.per annum
100
In relation to each other amount:
Where:
C = The amount required to be held as a non-interest bearing cash
ratio deposit with the Bank of England expressed as a
percentage of an eligible institution's eligible liabilities
(above any stated minimum).
F = The amount of Sterling per (pound)1,000,000 of the fee base of
an authorised institution payable to the FinaNCIAL Services
Authority per annum (disregarding any minimum fee payable
under the Fees Regulations).
L = The rate of interest per annum at which Sterling deposits are
offered by the Agent to leading banks in the London Interbank
Market at or about 11.00 a.m. on the date of calculation for a
period comparable to the period for which the Additional Cost
is to be calculated.
S = The amount required to be placed as special deposits with the
Bank of England, expressed as a percentage of an eligible
institution's eligible liabilities (above any stated minimum).
Y = The fraction of foreign currency liabilities taken into
account under the Fees Regulations in calculating the fee base
(disregarding any offset for claims on non-resident offices).
Z = The lower of L and the rate of interest per annum paid by the
Bank of England on special deposits at or about 11.00 a.m. on
the date of calculation.
2 For the purposes of calculating the Additional Cost:
(i) C, L, S and Z are included in the formula as numbers
and not as percentages, e.g. if C = 0.15 per cent.
and L = 7 per cent. CL is calculated as 0.15 x 7;
(ii) the formula is applied on the first day of each
period for which it falls to be calculated (and the
result shall apply for the duration of such period);
(iii) each amount is rounded up to the nearest four decimal
places; and
(iv) if the formula produces a negative percentage, the
percentage shall be taken as zero.
3 If alternative or additional financial requirements are imposed by the
Bank of England, the Financial Services Authority or any other United
Kingdom governmental authority or agency which in the Agent's opinion
116
(after consultation with the Banks) make the formulae (or either of
them) no longer appropriate, the Agent shall be entitled by notice to
the Original Borrower to stipulate such other formulae as shall be
suitable to apply in substitution for the formulae. Any such other
formulae so stipulated shall take effect in accordance with the terms
of such notice.
4 In this schedule 4:
"AUTHORISED" and "INSTITUTION" have the meanings given to those terms
in the Banking ▇▇▇ ▇▇▇▇;
"BANK OF ENGLAND ACT" means the Bank of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇;
"ELIGIBLE INSTITUTION" has the meaning given to that term in schedule 2
to the Bank of England Act;
"ELIGIBLE LIABILITIES" has the meaning given to that term in the Cash
Ratio Deposits (Eligible Liabilities) Order 1998 or the applicable
substitute order made under the Bank of England Act as is in force on
the date of application of the formulae;
"FEE BASE" has the meaning given to that term in the Fees Regulations;
"FEES REGULATIONS" means the Banking Supervision (Fees) Regulations
2000 or the applicable substitute regulations made under the Bank of
England Act as are in force on the date of application of the formulae;
and
"SPECIAL DEPOSITS" has the meaning given to that term by the Bank of
England on the date of application of the formulae.
117
SCHEDULE 5
FORM OF SUBSTITUTION CERTIFICATE
NB: CONSENT OF SHEARMAN AND ▇▇▇▇▇▇ MUST BE OBTAINED BEFORE SUBSTITUTE CAN
RELY ON THEIR OPINION
LENDERS ARE ADVISED NOT TO EMPLOY SUBSTITUTION CERTIFICATES OR OTHERWISE TO
ASSIGN OR TRANSFER INTERESTS IN THE AGREEMENT WITHOUT FIRST ENSURING THAT THE
TRANSACTION COMPLIES WITH ALL APPLICABLE LAWS AND REGULATIONS, INCLUDING THE
FINANCIAL SERVICES ▇▇▇ ▇▇▇▇ AND REGULATIONS MADE THEREUNDER.
[To: CIBC World Markets plc
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇]
[To: Canadian Imperial Bank of Commerce
[Address]
[in respect of D1 Advances only]]
Attention: Supervisor, Corporate Lending Middle Office
[Date]
SUBSTITUTION CERTIFICATE
This Substitution Certificate relates to a Loan Agreement (as from time to time
amended, varied, extended, restated or replaced (the "AGREEMENT") dated o 2001
between Telewest Communications Networks Limited as Facility A Borrower (1),
Telewest Communications Networks Limited as Facility B Borrower (2), Telewest
Communications Networks Limited as Facility C Borrower (3), Telewest
Communications Networks Limited and Telewest Finance Corporation as Facility D
Borrowers (4), the Subsidiaries of Telewest Communications Networks Limited
whose respective names and registered numbers are set out in part B of schedule
1 thereto, (5), the Associated Partnerships whose respective names and principal
places of business are set out in part C of schedule 1 thereto (6), the banks
and financial institutions whose respective names and addresses are set out in
part D of schedule 1 thereto as Lead Arrangers (7), the banks and financial
institutions whose respective names and addresses are set out in part E of
schedule 1 thereto as Lenders (8), the Agents (9) and the Security Trustee (10).
Terms defined in the Agreement shall have the same meaning in this Substitution
Certificate.
1 [Existing Lender] (the "EXISTING LENDER") (a) confirms the accuracy of
the summary of its participation in the Agreement to be novated set out
in the schedule hereto; and (b) requests [Substitute Lender] (the
"SUBSTITUTE") to accept by way of novation the portion of such
participation specified in the schedule hereto by countersigning and
delivering this Substitution Certificate to the Agent at its address
for the service of notices specified in the Agreement.
2 The Substitute hereby requests the Agent (on behalf of itself and the
other parties to the Agreement and the Intercreditor Deed) to accept
this Substitution Certificate as being delivered to the Agent pursuant
to and for the purposes of clause 18.3 of the Agreement, so as to take
effect in accordance with the respective terms thereof on [date of
transfer] (the "EFFECTIVE DATE") or on such later date as may be
determined in accordance with the terms thereof.
3 The Agent (on behalf of itself and the other parties to this Agreement
and the Intercreditor Deed) confirms the novation effected by this
Substitution Certificate pursuant to and for the purposes of clause
18.3 of the Agreement so as to take effect in accordance with the terms
thereof.
118
4 The Substitute confirms:
(a) that it has received a copy of the Agreement, the Security
Documents and all other documentation and information required
by it in connection with the transactions contemplated by this
Substitution Certificate;
(b) that it has made and will continue to make its own assessment
of the validity, enforceability and sufficiency of this
Agreement and the Security Documents and the Substitution
Certificate and has not relied and will not rely on the
Existing Lender, any Arranger, the Security Trustee, any other
Lender or any Agent or any statements made by any of them in
that respect;
(c) that it has made and will continue to make its own credit
assessment of each Borrower, each other TCN Entity and
Telewest and has not relied and will not rely on the Existing
Lender, any Arranger, the Security Trustee, any other Lender
or any statements made by any of them in that respect;
(d) accordingly, none of the Existing Lender, any Arranger, the
Security Trustee, any other Lender or any Agent shall have any
liability or responsibility to the Substitute in respect of
any of the foregoing matters; and
(e) [in the case of a Facility D Lender only] that it wishes to
receive details of each notice, certificate or other document
and copies of the financial information referred to in clause
19.5.1 of the Agreement [other than o].
5 Execution of this Substitution Certificate by the Substitute
constitutes its representation to the Existing Lender and all other
parties to the Agreement and the Intercreditor Deed that it has power
to become party to the Agreement and the Intercreditor Deed as a Lender
on the terms herein and therein set out and has taken all necessary
steps to authorise execution and delivery of this Substitution
Certificate.
6 The Existing Lender makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Agreement or the Security Documents
or any document relating thereto and assumes no responsibility for the
financial condition of each Borrower, each other TCN Entity and
Telewest or any other party to the Agreement or the Security Documents
or for the performance and observance by each Borrower, each other TCN
Entity and Telewest or any other such party of any of its obligations
under the Agreement or the Security Documents or any document relating
thereto and any and all such conditions and warranties, whether express
or implied by law or otherwise, are hereby excluded.
7 The Substitute hereby undertakes to the Existing Lender, each Borrower,
the other TCN Entities, the Lead Arrangers, the Security Trustee, the
other Lenders and the Agents that it will perform in accordance with
their terms all those obligations which by the respective terms of the
Agreement and the Security Documents will be assumed by it after
acceptance of this Substitution Certificate by the Agent.
8 This Substitution Certificate and the rights and obligations of the
parties hereunder are governed by and shall be construed in accordance
with English law.
NOTE: This Substitution Certificate is not a security, bond, note, debenture,
investment or similar instrument.
AS WITNESS the hands of the authorised signatories of the parties hereto on the
date appearing below.
119
THE SCHEDULE
AMOUNT OF FACILITY A CONTRIBUTION NEXT INTEREST PAYMENT DATE(S) PORTION NOVATED
((POUND))
AMOUNT OF FACILITY B CONTRIBUTION NEXT INTEREST PAYMENT DATE(S) PORTION NOVATED
((POUND))
AMOUNT OF FACILITY D CONTRIBUTION NEXT INTEREST PAYMENT DATE(S) PORTION NOVATED
[((POUND))] [$] [(EURO)]
AMOUNT OF FACILITY A COMMITMENT PORTION NOVATED ((POUND))
AMOUNT OF FACILITY B COMMITMENT PORTION NOVATED ((POUND))
AMOUNT OF FACILITY D COMMITMENT PORTION NOVATED [((POUND))] [$] [(EURO)]
ADMINISTRATIVE DETAILS OF SUBSTITUTE
Lending office:
Account for payments:
Telephone:
Fax:
Attention:
[Existing Lender] [Substitute]
By: By:
Date: Date:
The Agent
By:
Date:
on its own behalf
and on behalf of the other parties to the Agreement and the Intercreditor Deed.
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SCHEDULE 6
PART A - FORM OF COMPLIANCE CERTIFICATE TO BE ISSUED BY AN AUTHORISED
OFFICER OF TCN
To: CIBC World Markets plc
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Supervisor, Corporate Lending Middle Office
[Date]
Dear Sirs
TELEWEST COMMUNICATIONS NETWORKS LIMITED LOAN AGREEMENT DATED O 2001 FOR CREDIT
FACILITIES OF (POUND)2,000,000,000 TOGETHER WITH AN INSTITUTIONAL FACILITY OF UP
TO (POUND)250,000,000 (AS FROM TIME TO TIME AMENDED, VARIED, EXTENDED, RESTATED
OR REPLACED (THE "LOAN AGREEMENT")
We refer to the Loan Agreement and deliver this Certificate in respect of the
Quarterly Period ended [ ] pursuant to clause 11.1.9(c) thereof. Terms
defined in the Loan Agreement shall have the same meaning when used in this
Certificate. Net Operating Cashflow shall herein be defined as "NOCF".
1 We confirm that on or as of the last day of the Quarterly Period ending [ ]:
(a) *Total TCN Group Senior Debt for the Quarterly Period ended [ ] was [ ].
(b) *Consolidated Annualised TCN Group NOCF for the Quarterly Period ended [ ], was [ ].
(c) *Consolidated TCN Group NOCF for the Six Month Period ended [ ] was [ ].
(d) *Senior Debt Interest Charges for the Six Month Period ended [ ] was [ ].
(e) **Total TCN Group Cash Paying Debt Interest Charges for the Six Month Period ended [ ] was [ ].
2 Based on the above, we confirm that on [ ]:
(a) *The ratio of Total TCN Group Senior Debt to Consolidated Annualised TCN Group NOCF was
[ : ], against a covenant of [ : ].
(b) * The ratio of Consolidated TCN Group NOCF to Senior Debt Interest Charges was [ : ],
against a covenant of [ : ].
(c) **The ratio of Consolidated TCN Group NOCF to Total TCN Group Cash Paying Debt Interest Charges
was [ : ], against a covenant of [ : ].
3 Based on the above, we confirm that TCN was in compliance with the undertakings set out in clause 12.1.1
to 12.1.3 as at [ ].
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4 We confirm that, as determined by reference to the latest audited
accounts of the TCN Group, on or as of the last day of the Quarterly
Period ending [ ] TCN Entities accounted for not less than 90 per cent.
in aggregate of (i) the Gross Assets of the TCN Group, (ii)
Consolidated Annualised TCN Group NOCF and (iii) the revenues of the
TCN Group for such Quarterly Period, and therefore that TCN was in
compliance with the undertaking set out in clause 11.1.21 as at [ ].
FOR AND ON BEHALF OF
TELEWEST COMMUNICATIONS
NETWORKS LIMITED
..........................................................
Authorised Officer
* To be reported with effect from the date hereof
** To be reported with effect from 1 July 2002
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PART B
FORM OF ACCOUNTANTS REPORT TO BE ISSUED BY THE
AUDITORS OF THE TCN GROUP
To: CIBC World Markets plc
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Supervisor, Corporate Lending Middle Office
[Date]
Dear Sirs
TELEWEST COMMUNICATIONS NETWORKS LIMITED (THE "COMPANY") LOAN AGREEMENT DATED O
2001 FOR CREDIT FACILITIES OF (POUND)2,000,000,000 TOGETHER WITH AN
INSTITUTIONAL FACILITY OF UP TO (POUND)250,000,000 AS FROM TIME TO TIME AMENDED,
VARIED, EXTENDED, RESTATED OR REPLACED (THE "LOAN AGREEMENT")
We refer to the Loan Agreement. Terms defined in the Loan Agreement shall have
the same meaning when used in this report.
In accordance with the terms of our engagement letter to the Company and the
Agents dated o 2001 and further to the requirements of the Loan Agreement, we
have examined the attached schedule [schedule 7A of the Loan Agreement]
delivered in respect of the Quarterly Period ending o which details the
calculation of the financial ratios set out in clause 13 of the Agreement (the
"FINANCIAL RATIOS") for the Quarterly Period ended [ ]. The schedule has been
prepared by, and is the sole responsibility of, the directors of the Company
(the "DIRECTORS"). Our responsibility, under the terms of our engagement letter,
is to form an opinion, on the basis of the work performed, and report our
opinion to the Company.
Our duties in relation to this report are owed solely to the Company, and
accordingly we do not accept any responsibility for loss occasioned to any third
party acting or refraining from action as a result of this report.
Under the terms of our engagement we are not required, nor have we, audited or
otherwise attempted to verify the underlying accuracy or completeness of the
information in the statement or the management accounts and accounting records
from which the directors have calculated the financial ratios.
On the basis of the work performed, in our opinion the definitions of the
financial ratios contained in the Loan Agreement, when applied to the balance
sheet contained within the relevant unaudited management accounts as at the
Quarterly Period ended [ ], produce the amounts set out in respect of this term
on the schedule.
On the basis of the work performed, in our opinion the definitions of the
financial ratios contained in the Loan Agreement, when applied to the unaudited
management accounts covering the Quarterly Period from [ ] to [ ], produce the
amounts set out in respect of this term on the schedule.
This report is provided on the basis that it is for your information, and that
of CIBC World Markets plc acting as Agents on behalf of the Lenders, only and
that it will not be copied or disclosed to any third party or otherwise quoted
or referred to, in whole or in part, without our prior written consent.
123
FOR AND ON BEHALF OF
.................................................
Chartered Accountants
124
SCHEDULE 7
FORM OF DEED OF SUBORDINATION
DATED 2001
-----------------------------
TELEWEST COMMUNICATIONS PLC (1)
AND
CIBC WORLD MARKETS PLC
AS SECURITY TRUSTEE (2)
-----------------------------
DEED OF SUBORDINATION
-----------------------------
▇▇▇▇▇▇ ▇▇▇▇
125
THIS DEED OF SUBORDINATION is dated o, 2001 and made
BETWEEN:
(1) TELEWEST COMMUNICATIONS PLC (Company No. 2983307) whose registered
office is at ▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ Drive, Woking,
Surrey ▇▇▇▇ ▇▇▇ (the "CREDITOR"); and
(2) CIBC WORLD MARKETS PLC of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
in its capacity as Security Trustee for the Beneficiaries (as defined
below) (in this capacity, the "SECURITY TRUSTEE").
WHEREAS
(A) By an agreement dated o, 2001 (as from time amended, varied, extended,
restated or replaced the "LOAN AGREEMENT") and made between Telewest
Communications Networks Limited as Facility A Borrower (1), Telewest
Communications Networks Limited as Facility B Borrower (2), Telewest
Communications Networks Limited as Facility C Borrower (3), Telewest
Communications Networks Limited and Telewest Finance Corporation as
Facility D Borrowers (4), the subsidiaries of Telewest Communications
Networks Limited whose respective names and registered numbers are set
out in part A of schedule 1 thereto, (5), the partnerships whose
respective names and principal places of business are set out in part D
of schedule 1 thereto (6), the banks and financial institutions whose
names and addresses are set out in part D of schedule 1 thereto as Lead
Arrangers (7), the banks and financial institutions whose respective
names and addresses are set out in part E of schedule 1 thereto as
Lenders (8), the Agents (9) and the Security Trustee (10), the Lenders
agreed to make available to the Borrower credit facilities
of(pound)2,000,000,000 comprising Facility A, Facility B and Facility
C, together with an institutional facilitY OF up to(pound)250,000,000.
(B) The execution of this Deed is one of the conditions precedent to the
obligation of each Lender to make its Commitment available under the
Loan Agreement.
NOW IT IS AGREED as follows:
1 INTERPRETATION
1.1 DEFINITIONS
In this Deed, unless the context otherwise requires:
"COLLATERAL INSTRUMENTS" means the Security Documents, any guarantees
and any other documents or instruments (including, without limitation,
any other document or instrument creating or evidencing an Encumbrance
which contain or evidence an obligation (with or without security) to
pay, discharge or be responsible directly or indirectly for any of the
Secured Liabilities under or pursuant to the Loan Agreement;
"INCAPACITY" means in relation to a person the death, bankruptcy,
insolvency, liquidation, dissolution, winding-up, administration,
receivership, amalgamation, reconstruction or other incapacity of that
person whatsoever (and, in the case of a partnership, includes the
termination or change in the composition of such partnership);
"INSOLVENCY EVENT" means, in relation to any member of the TCN Group,
any of the events or circumstances described in clause 14.1.8 to
14.1.14 inclusive of the Loan Agreement as if references therein to
"any TCN Entity" were to "any member of the TCN Group";
"INSOLVENCY PROCEEDINGS" means winding-up, dissolution, liquidation,
receivership, administration, voluntary arrangements, proceedings under
Title 11 of the United States Bankruptcy Code or any proceedings in any
126
jurisdiction which correspond with or have an effect equivalent to any
of the same;
"LIABILITIES" means all obligations and liabilities whatsoever, whether
express or implied, whether as principal or surety, whether present or
future, actual or contingent, whether joint or several, in whatever
style, name or form and in whatever currency denominated;
"PERMITTED AMOUNTS" means all amounts which the Borrower or any of its
Subsidiaries are permitted to pay pursuant to clause 12.1.12 of the
Loan Agreement and, to the extent that the relevant payment constitutes
a Permitted Payment, pursuant to clauses 12.1.13 and 12.1.14 of the
Loan Agreement;
"SECURED LIABILITIES" means all obligations, present, future or
contingent, joint or several, of any TCN Entity pursuant to the Finance
Documents; and
"SECURITY PROVIDER" means any person who has or may at any time
hereafter enter into a Collateral Instrument.
1.2 DEFINED EXPRESSIONS
Unless the context requires or unless otherwise defined in this Deed,
words and expressions defined in the Loan Agreement shall have the same
meaning when used in this Deed (including its Recitals).
1.3 HEADINGS
Clause headings are inserted for convenience of reference only and
shall be ignored in the interpretation of this Deed.
1.4 CONSTRUCTION OF CERTAIN TERMS
In this Deed, unless the context otherwise requires:
1.4.1 references to clauses are to be construed as references to the clauses
of this Deed;
1.4.2 reference to (or to any specified provision of) this Deed or any other
document shall be construed as references to this Deed, that provision
or that document as in force for the time being and as amended in
accordance with the terms thereof or, as the case may be, with the
agreement of the relevant parties and (where such consent is, by the
terms of this Deed or the relevant document, required to be obtained as
a condition to such amendment being permitted) the prior written
consent of the Agent, the Security Trustee, all of the Lenders, the
Majority Lenders, the Majority Bank Lenders, the Majority Institutional
Lenders, the Super Majority Lenders or all or any of the other
Beneficiaries (as the case may be);
1.4.3 references to a "regulation" include any present or future regulation,
rule, directive, requirement, request or guideline (whether or not
having the force of law) of any agency, authority, central bank or
government department or any self-regulatory or other national or
supra-national authority;
1.4.4 words importing the plural shall include the singular and vice versa;
1.4.5 references to a time of day are to London time;
1.4.6 references to a person shall be construed as including references to an
individual, firm, company, corporation, unincorporated body of persons
or any State or any agency thereof;
127
1.4.7 reference to "set-off" includes retention, compensation and balancing
of accounts under Scots law;
1.4.8 references to a "guarantee" include references to an indemnity or other
assurance against financial loss including, without limitation, an
obligation to purchase assets as a consequence of default by any other
person to pay any Indebtedness and "guaranteed" shall be construed
accordingly; and
1.4.9 references to any enactment shall be deemed to include references to
such enactment as replaced, amended or re-enacted from time to time.
1.5 EFFECT AS A DEED
This Deed is intended to take effect as a deed notwithstanding that the
Security Trustee and/or the Creditor may have executed it under hand
only.
1.6 SUCCESSORS AND ASSIGNS
The expressions "BENEFICIARY", "SECURITY TRUSTEE", "BORROWER", "TCN
ENTITY", "AGENTS", "ARRANGER", "LENDER", "SECURITY PROVIDER" and
"CREDITOR" include, where the context admits, their respective
successors, permitted assigns, in the case of the Lenders, their
Assignees and Substitutes, in the case of the Security Trustee such
other person as may from time to time be appointed as Security Trustee
for the Beneficiaries pursuant to the terms of the Intercreditor Deed
and, in the case of each Agent, such other person as may from time to
time be appointed as UK Agent or US Agent (as the case may be) pursuant
to clause 19.11 of the Loan Agreement.
2 RESTRICTED PAYMENTS
The Creditor undertakes with the Security Trustee that so long as any
of the Secured Liabilities remain outstanding:
2.1.1 it will not, and will procure that none of its Subsidiaries or
Associated Partnerships (which are not TCN Entities) demand, take,
accept or receive, by set-off or in any other manner, any Restricted
Payment other than a Permitted Amount;
2.1.2 it will not, and will procure that none of its Subsidiaries or
Associated Partnerships (which are not TCN Entities) take, accept,
receive or permit to exist any Encumbrance over all or any part of the
present or future undertakings, assets, rights or revenues of any
member of the TCN Group to secure any Restricted Payment;
2.1.3 it will not, and will procure that none of its Subsidiaries, or
Associated Partnerships assign, transfer, create any Encumbrance over
or otherwise dispose of any Restricted Payment save where the relevant
assignee, transferee or beneficiary of Encumbrance becomes a party
hereto as a Creditor and provides the Security Trustee with such
evidence as it may reasonably require as to the legality, validity and
enforceability of the relevant assignment, transfer or Encumbrance; and
2.1.4 it will not, and will procure that none of its Subsidiaries or
Associated Partnerships (which are not TCN Entities) commence any
proceedings against any member of the TCN Group in respect of any
Restricted Payment (including, without limitation, any action or step
with a view to winding-up any member of the TCN Group).
3 SUBORDINATION
3.1 INSOLVENCY EVENTS
Upon an Insolvency Event occurring in respect of any member of the TCN
Group:
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3.1.1 the claims of the Creditor in respect of any Restricted Payment owed by
that member of the TCN Group other than any Permitted Amounts shall be
postponed in all respects to the Secured Liabilities;
3.1.2
(a) the Creditor shall not, unless otherwise directed by the
Security Trustee, prove in any Insolvency Proceedings for any
Restricted Payment, other than the Permitted Amounts, until
the Secured Liabilities have first been irrevocably paid or
discharged in full (and for all purposes any payment or
distribution of assets (whether in cash, property, securities
or otherwise) received by the Security Trustee or any of the
Beneficiaries shall only be taken to discharge the Secured
Liabilities to the extent of the actual amount received);
(b) if the Creditor is directed by the Security Trustee to prove
in any Insolvency Proceedings for all or any part of any
Restricted Payment, other than any Permitted Amounts, then it
shall act in accordance with such directions and shall procure
that any resultant payment or distribution of assets (whether
in cash, property, securities or otherwise) shall be made by
the liquidator of any member of the TCN Group or, as the case
may be, any other person making the payment or distribution of
assets (whether in cash, property, securities or otherwise) to
the Security Trustee to the extent necessary to repay all the
Secured Liabilities in full; and
(c) the Creditor hereby irrevocably authorises and directs the
Security Trustee to submit any proof and/or to instruct the
relevant liquidator or other person to make any payment or
distribution of assets (whether in cash, property, securities
or otherwise) in accordance with the foregoing.
3.2 PAYMENTS CONTRARY TO THIS DEED
In the event of:
3.2.1 any payment or distribution of assets (whether in cash, property,
securities or otherwise) being made to or right of set-off being
exercised by the Creditor contrary to the provisions of this Deed; or
3.2.2 any payment or distribution of assets (whether in cash, property,
securities or otherwise) being made by a liquidator or any other person
to the Creditor rather than to the Security Trustee as required by
clause 3.1,
the Creditor shall forthwith pay to the Security Trustee an amount
equal to the payment or distribution of assets (whether in cash,
property, securities or otherwise) which shall have been so received by
it up to an aggregate amount equal to the Secured Liabilities or, as
the case may be, in the case of set-off, an amount equal to the sum
set-off up to an aggregate amount equal to the Secured Liabilities and,
until such payment to the Security Trustee, the Creditor will hold such
sums on trust for the Security Trustee (provided that, for the
avoidance of doubt, this clause 3.2 shall not oblige the Creditor to
create any Encumbrance in favour of the Security Trustee over such
money or other property) and any sums so paid to the Security Trustee
shall be applied in accordance with the terms of the Intercreditor
Deed.
3.3 SUBROGATION
If the Secured Liabilities are partially paid out of any proceeds
received in respect of or on account of any Restricted Payment, the
Creditor will not be subrogated to the Secured Liabilities so paid (or
any Collateral Instrument) until the Secured Liabilities have been
irrevocably paid in full.
129
4 CONTINUING OBLIGATIONS
4.1 CONTINUING OBLIGATIONS
The obligations of the Creditor hereunder shall be continuing
obligations and shall be and remain fully effective until this Deed is
formally released following the discharge in full of the Secured
Liabilities notwithstanding any intermediate reduction or settlement of
the Secured Liabilities or any part thereof and notwithstanding any
increase in or variation of the Secured Liabilities or any variation,
extension or supplement to the Loan Agreement or any Security
Documents.
4.2 STATEMENTS OF ACCOUNTS
Any statement of account of any member of the TCN Group, signed as
correct by an officer of the Security Trustee, showing the amount of
the Secured Liabilities shall be prima facie evidence of the amount of
the Secured Liabilities.
4.3 CONTINUING SECURITY AND OTHER MATTERS
This Deed shall:
4.3.1 secure the ultimate balance from time to time of the Secured
Liabilities and shall be a continuing security, notwithstanding any
settlement of account or other matter whatsoever;
4.3.2 be in addition to any present or future Collateral Instrument, right or
remedy held by or available to the Security Trustee, the Beneficiaries
or any of them; and
4.3.3 not be in any way prejudiced by the existence of any such Collateral
Instrument, rights or remedies or by the same becoming wholly or in
part void, voidable or unenforceable on any ground whatsoever or by the
Security Trustee, the Beneficiaries or any of them dealing with,
exchanging, varying or failing to perfect or enforce any of the same or
giving time for payment or indulgence or compounding with the Borrower
or any Security Provider.
4.4 LIABILITY UNCONDITIONAL
The liability of the Creditor shall not be affected, discharged or
reduced by reason of:
4.4.1 the Incapacity or any change in the name, style or constitution of the
Borrower or any other Security Provider;
4.4.2 the Security Trustee, the Beneficiaries or any of them granting any
time, indulgence or concession to, or compounding with, discharging,
releasing or varying the liability of, the Borrower or any other
Security Provider or renewing, determining, varying or increasing any
accommodation, facility or transaction or otherwise dealing with the
same in any manner whatsoever or concurring in, accepting or varying
any compromise, arrangement or settlement or omitting to claim or
enforce payment from the Borrower or any other Security Provider; or
4.4.3 any act or omission which but for this provision might operate to
exonerate the Creditor.
4.5 COLLATERAL INSTRUMENTS
None of the Beneficiaries or the Security Trustee shall be obliged to
make any claim or demand on the Borrower or any other Security Provider
or to resort to any Collateral Instrument or other means of payment now
or hereafter held by or available to them or it before enforcing this
Deed and no action taken or omitted by the Security Trustee or any
Beneficiary in connection with any such Collateral Instrument or other
means of payment shall discharge, reduce, prejudice or affect the
130
liability of the Creditor under this Deed nor shall the Security
Trustee or any Beneficiary be obliged to account for any money or other
property received or recovered in consequence of any enforcement or
realisation of any such Collateral Instrument or other means of
payment.
4.6 SUSPENSE ACCOUNTS
Any money received in connection with this Deed (whether before or
after any Incapacity of the Borrower, any other Security Provider or
the Creditor) may be placed to the credit of an interest bearing
suspense account with a view to preserving the rights of the Security
Trustee and each Beneficiary to prove for the whole of their respective
claims against the Borrower or any other person liable or may be
applied in or towards satisfaction of such of the Secured Liabilities
as the Security Trustee may from time to time determine in accordance
with the terms of the Intercreditor Deed (which determination shall,
save in the case of manifest error, be conclusive). Interest shall
accrue on monies from time to time standing to the credit of any
suspense account at the rate agreed between the Security Trustee and
the Creditor at the relevant time or, failing such agreement, the
Security Trustee's overnight deposit rate from time to time and shall
be credited to such suspense account or may be applied in or towards
satisfaction of such of the Secured Liabilities as the Security Trustee
may from time to time determine in accordance with the terms of the
Intercreditor Deed (which determination shall, save in the case of
manifest error, be conclusive).
4.7 SETTLEMENTS CONDITIONAL
Any release, discharge or settlement between the Creditor and the
Security Trustee or any of the Beneficiaries shall be conditional upon
no security, disposition or payment to the Security Trustee, or any of
the Beneficiaries by the Borrower or any other person liable being
void, set aside or ordered to be refunded pursuant to any enactment or
law relating to bankruptcy, liquidation, administration or insolvency
or for any other reason whatsoever and if such condition shall not be
fulfilled the Security Trustee shall be entitled to enforce this Deed
subsequently as if such release, discharge or settlement had not
occurred and any such payment had not been made.
4.8 RETENTION OF THIS DEED
Notwithstanding any other provision of this Deed, this Deed shall not
be released, the Security Trustee shall be entitled to retain this Deed
and all the provisions of this Deed shall remain in full force and
effect until the irrevocable payment or discharge in full of all the
Secured Liabilities. Following the irrevocable payment or discharge in
full of all the Secured Liabilities, the Security Trustee shall
forthwith release this Deed (and to effect or evidence such release
shall execute such documents (at the cost of the Creditor) as the
Creditor may reasonably require) and deliver this Deed, together with
such documents, to the Creditor.
5 REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATION AND WARRANTIES
The Creditor represents and warrants to the Security Trustee that:
5.1.1 DUE INCORPORATION
it is duly incorporated, validly existing as a limited liability
company and has all requisite corporate power and authority to own its
property and other assets and to carry on its business as it is now
being conducted and is authorised to do business in each jurisdiction
where such qualification or authorisation is required, except where the
failure to so qualify, to be so authorised or to be in good standing
would not have a material adverse effect on the ability of the Creditor
to perform any of its obligations under this Deed;
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5.1.2 POWER OF THE CREDITOR
the Creditor has all requisite power to execute, deliver and perform
its obligations under this Deed and compliance has been made with all
necessary requirements and all necessary action has been taken to
authorise the execution, delivery and performance of the same;
5.1.3 BINDING OBLIGATIONS
this Deed constitutes valid and legally binding obligations of the
Creditor enforceable in accordance with its terms subject to the
qualifications contained in the legal opinions referred to in schedule
3 to the Loan Agreement which relate to this Deed;
5.1.4 NO CONFLICT WITH OTHER OBLIGATIONS
the execution and delivery of, the performance of its obligations
under, and compliance with the provisions of, this Deed by the
Creditor, will not:
(a) contravene any existing applicable law, statute, rule or
regulation or any judgment, decree or permit to which the
Creditor is subject except where such contravention would not
or would not be likely to have a material adverse effect on
the ability of the Creditor to perform any of its obligations
under or otherwise to comply with the terms of this Deed;
(b) contravene or conflict with any provision of the Memorandum
and Articles of Association of the Creditor;
(c) breach in any material respect any term of the Licences or the
Necessary Authorisations;
(d) conflict with, or result in any breach of any of the terms of,
or constitute a default under, any agreement constituting or
evidencing Borrowed Money of the Creditor to which the
Creditor is a party or is subject or by which it or any of its
property is bound except where such breach or default would
not or would not be likely to have a material adverse effect
on the ability of the Creditor to perform any of its
obligations under or otherwise to comply with the terms of
this Deed; or
(e) result in the creation or imposition of or oblige the Creditor
to create any Encumbrance (other than those created by the
Security Documents) on any of the Creditor's material
undertakings, assets, rights or revenues;
5.1.5 NO LITIGATION
no litigation, arbitration or administrative proceeding is taking
place, or, to the knowledge of the officers of the Creditor, pending or
threatened against the Creditor which is reasonably likely to be
adversely determined and, if so determined, would have or would be
reasonably likely to have a material adverse effect on the ability of
the Creditor to fulfil its obligations under this Deed;
5.1.6 NO FILING REQUIRED
it is not necessary to ensure the legality, validity, enforceability or
admissibility in evidence of this Deed that this Deed or any other
instrument be notarised, filed, recorded, registered or enrolled in any
court or public office in the United Kingdom or that any stamp,
registration or similar tax or charge be paid in the United Kingdom on
or in relation to this Deed;
5.1.7 CHOICE OF LAW
the choice by the Creditor of English law to govern this Deed is valid
and binding;
132
5.1.8 CONSENTS OBTAINED
every consent, authorisation, licence or approval of, or registration
with or declaration to, governmental or public bodies or authorities or
courts required by the Creditor (i) to authorise the execution and
delivery of this Deed or the performance by the Creditor of its
obligations under this Deed or (ii) to ensure the validity,
enforceability or admissibility in evidence of this Deed or the
performance by the Creditor of its obligations under this Deed has been
obtained or made and is in full force and effect and there has been no
material default in the observance of the conditions or restrictions
(if any) imposed in, or in connection with, any of the same which
would, in any such case, adversely affect the execution, delivery,
validity, enforceability or admissibility in evidence of this Deed or
the performance by the Creditor of its obligations under this Deed.
5.2 REPETITION
The representations and warranties in clause 5.1 (excluding that
contained in Clause 5.1.8) shall be deemed to be repeated by the
Creditor in respect of itself and its Subsidiaries on and as of each
Interest Payment Date and the date on which each Advance is made under
the Loan Agreement.
6 COVENANTS
6.1 COVENANTS BY TELEWEST
The Creditor hereby undertakes with the Security Trustee that from the
date of this Deed and so long as any of the Secured Obligations remain
outstanding or any Beneficiary remains under any commitment to any TCN
Entity:
6.1.1 CHANGE TO AGREED SECURITIES
to ensure that there is no change to the terms and conditions of the
Agreed Securities containing payment obligations, termination events or
negative covenants affecting Telewest or any TCN Entity which could
reasonably be considered by the Agent (acting on the instructions of
the Majority Lenders) to be materially adverse to the Finance Parties;
6.1.2 FINANCIAL INFORMATION
to provide to the Agent copies of all circulars, statements and other
information about the Creditor at the time that the same is made
generally available by the Creditor to the public or to the
shareholders of the Creditor, including, without limitation, any
periodic reports containing annual or quarterly financial reports filed
with the United States Securities and Exchange Commission; and
6.1.3 TCN TO BE WHOLLY-OWNED
to ensure that TCN remains its directly or indirectly wholly-owned and
controlled Subsidiary.
7 BENEFIT OF THIS DEED
7.1 BENEFIT AND BURDEN
This Deed shall be binding upon the Creditor and its successors in
title and shall enure for the benefit of the Security Trustee (and any
successor Security Trustee appointed pursuant to the provisions of the
Intercreditor Deed) and their respective successors for the benefit of
the Beneficiaries in accordance with the provisions of the
Intercreditor Deed.
133
7.2 CHANGES IN CONSTITUTION OR REORGANISATION OF LENDERS
For the avoidance of doubt and without prejudice to the provisions of
clause 7.1, this Deed shall remain binding on the Creditor
notwithstanding any change in the constitution of the Security Trustee
or any of the Beneficiaries or their or its absorption in, or
amalgamation with, or the acquisition of all or part of their or its
undertaking or assets by, any other person, or any reconstruction or
reorganisation of any kind, to the intent that this Deed shall remain
valid and effective in all respects in favour of the Security Trustee
(and any successor Security Trustee appointed pursuant to the
provisions of the Intercreditor Deed and their respective successors in
title) as trustee for the Beneficiaries and any assignee, transferee or
other successor in title of a Beneficiary.
7.3 NO ASSIGNMENT BY THE CREDITOR
The Creditor may not assign or transfer any of its rights or
obligations under this Deed.
7.4 THE INTERCREDITOR DEED
The Creditor and the Security Trustee hereby acknowledge that the
covenants of the Creditor contained in this Deed and the rights
constituted by this Deed and all moneys, property and assets paid to,
or held, received or recovered by the Security Trustee pursuant to or
in connection with this Deed are held by the Security Trustee subject
to and on the terms of the trusts declared in the Intercreditor Deed.
8 NOTICES AND OTHER MATTERS
8.1 NOTICES
Every notice, request, demand or other communication under this Deed
shall be given in accordance with clause 20.1.1 and 20.1.2 of the Loan
Agreement and shall be sent to the Creditor at its address set out
above (facsimile number: 0207 299 6400) or to the Security Trustee at
its address or telex or facsimile number set out in clause 20.1.3(b) of
the Loan Agreement or to such other address or such telex or facsimile
number as is notified by one party to this Deed to the other.
8.2 NO IMPLIED WAIVERS, REMEDIES CUMULATIVE
No failure or delay on the part of the Security Trustee or the
Beneficiaries (or any of them) to exercise any power, right or remedy
under this Deed shall operate as a waiver thereof, nor shall any single
or partial exercise by the Security Trustee or the Beneficiaries (or
any of them) of any power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or
remedy. The remedies provided in this Deed are cumulative and are not
exclusive of any remedies provided by law.
8.3 OTHER COLLATERAL INSTRUMENTS
The Creditor agrees to be bound by this Deed notwithstanding that any
other person intended to execute or to be bound by any Collateral
Instrument may not do so or may not be effectively bound and
notwithstanding that such other Collateral Instrument may be determined
or be or become invalid or unenforceable against any other person,
whether or not the deficiency is known to the Security Trustee or any
of the Beneficiaries.
8.4 SEVERABILITY
Each of the provisions of this Deed is severable and distinct from one
another and if at any time one or more of such provisions is or becomes
illegal, invalid or unenforceable under any applicable law the
validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
134
9 LAW AND JURISDICTION
9.1 GOVERNING LAW
This Deed is governed by and shall be construed in accordance with
English law.
IN WITNESS whereof the parties to this Deed have caused this Deed to be duly
executed on the date first above written.
EXECUTED and DELIVERED as a DEED )
for and on behalf of )
TELEWEST COMMUNICATIONS PLC )
By: )
...........................
Director
...........................
Director/Secretary
Signed for and on behalf of )
CIBC WORLD MARKETS PLC )
by: )
135
SCHEDULE 8
ENCUMBRANCES
COMPANY/PARTNERSHIP ENCUMBRANCE
(A) Telewest Communications (South (a) Mortgage of deposited moneys dated 21st January,
East) Limited 1994 with Electricity Supply Nominees
Limited.
(b) Deed of Variation and Further Charge dated 26th
June, 1995 with Electricity Supply
Nominees Limited.
(B) Telewest Communications Standard Security dated 31 May 1996 granted or to be granted
(Motherwell) Limited over premises at ▇▇▇▇▇▇▇▇ Park Industrial Estate, Uddingston
in favour of The British Linen Bank Limited.
(C) Sheffield Cable Communications Legal Charge dated (i) 24 December 1996 granted over ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and (ii) 12 November 1999
granted over leasehold property known as 1.62 acres of land at
Sheffield Technology Park, Chippingham Street, each in favour
of Barclays Bank PLC.
(D) Yorkshire Cable Communications Legal Charge dated 16 June 1992 granted over Units 8, 9, 10
Limited and adjoining land, Mayfair Business Park, Sticker Lane,
Bradford, West Yorkshire in favour of Barclays Bank PLC.
(E) Yorkshire Cable Communications Legal Charge dated 24 December 1996 granted over Units 4 and
Limited ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ in favour of
Barclays Bank PLC.
(F) Yorkshire Cable Communications Legal Charge dated 24 December 1996 granted over Units 8, 9,
Limited 10 and adjoining land, Mayfair Business Park, Broad ▇▇▇▇,
▇▇▇▇▇▇▇▇ in favour of Barclays Bank PLC.
(G) Yorkshire Cable Communications Legal Charge dated 24 December 1996 granted over Units 6 and
Limited ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ in favour of
Barclays Bank PLC.
(H) Yorkshire Cable Properties Legal Charge dated 24 December 1996 granted over Units 8, 9,
Limited 10 and adjoining land, Mayfair Business Park, Broad ▇▇▇▇,
▇▇▇▇▇▇▇▇ in favour of Barclays Bank PLC.
(I) Maidstone Broadcasting Charge in favour of the Secretary of State for the Environment
dated 10 August 1995.
(J) The Way Ahead Group Limited Mortgage Debenture dated 15 January 1999 in favour of
National Westminster Bank plc provided that the amount
secured does not exceed(pound)1,000,000.
(K) The Cable Corporation Limited Collateral Account Security Assignment dated 18 May 1999 in
favour of Lloyds (Nimrod) Specialist Finance Limited.
136
(A) The Yorkshire Cable Group Limited Collateral Account Security Assignment dated 18 May 1999 in
favour of Lloyds (Nimrod) Specialist Finance Limited.
(B) The Yorkshire Cable Group Limited Collateral Account Security Assignment dated 18 May 1999 in
favour of Lombard Commercial Limited.
(C) The Yorkshire Cable Group Collateral Account Security Assignment dated on or about the
Limited date hereof in favour of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Leasing (Number 4)
Limited.
137
SCHEDULE 9
FACILITY D LENDER ACCESSION AGREEMENT
NB: CONSENT OF SHEARMAN AND ▇▇▇▇▇▇ NECESSARY BEFORE ACCEEDING FACILITY D
LENDER CAN RELY ON THEIR OPINION
THIS ACCESSION AGREEMENT is dated [ ] and made BETWEEN:
(1) o, o and o of o (the "ACCEDING FACILITY D LENDERS");
(2) TELEWEST COMMUNICATIONS NETWORKS LIMITED (No. 3071086) whose registered
office is at ▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ Drive, Woking,
Surrey ▇▇▇▇ ▇▇▇ ("TCN") for and on behalf of itself and in accordance
with clause 19.2.8 of the Agreement, the TCN Entities; and
(3) [CIBC WORLD MARKETS PLC] [CANADIAN IMPERIAL BANK OF COMMERCE] of
[Cottons ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇] [o] of [o] (the "AGENT")
WHEREAS:
(A) By an Agreement dated o, 2001 and made between Telewest Communications
Networks Limited as Facility A Borrower (1) Telewest Communications
Networks Limited as Facility B Borrower (2), Telewest Communications
Networks Limited as Facility C Borrower (3) Telewest Communications
Networks Limited and Telewest Finance Corporation as Facility D
Borrowers (4), the companies whose names and registered numbers are set
out in part B of schedule 1 thereto (5) the Associated Partnerships
whose names are set out in part C of schedule 1 thereto (6) the banks
and financial institutions whose names and addresses are set out in
part D of schedule 1 thereto as Lead Arrangers (7), the banks and
financial institutions whose names and addresses are set out in part E
of schedule 1 thereto (8) CIBC World Markets plc and Canadian Imperial
Bank of Commerce as agents (9) and CIBC World Markets plc as security
trustee (10) (as from time to time amended, varied, extended, restated
or replaced, the "AGREEMENT"), the Lenders agreed to make available to
the Borrowers credit facilities.
(B) The Acceding Facility D Lenders wish to become parties to the Agreement
and the Intercreditor Deed as Facility D Lenders.
NOW THIS DEED WITNESSES as follows:
1 AGREEMENT DEFINITIONS
Unless the context otherwise requires or unless otherwise defined in
this Facility D Lender Accession Agreement, words and expressions
defined in the Agreement or the Intercreditor Deed shall have the same
meaning when used in this Facility D Lender Accession Agreement or the
Recitals hereto. Clauses 1.3 and 1.4 of the Agreement and clause 1.4
and 1.5 of the Intercreditor Deed shall apply to this Facility D Lender
Accession Agreement, mutatis mutandis, as if expressly set out herein.
2 ACCESSION TO THE AGREEMENT
With effect from the date of this Facility D Lender Accession
Agreement, the Acceding Facility D Lenders shall become parties to the
Agreement each as a Facility D Lender thereunder as if named therein in
part E of schedule 1 thereto with a Facility D1 Commitment or (as the
case may be) Facility D2 Commitment or (as the case may be) Facility D3
Commitment specified in the Schedule and with effect from such date
shall assume obligations towards and rights against the Borrower, the
Agents, the Lead Arrangers, the other Lenders, the Security Trustee and
the TCN Entities as if so named therein.
138
3 ACCESSION TO THE INTERCREDITOR DEED
With effect from the date of this Facility D Lender Accession
Agreement, the Acceding Facility D Lenders shall become parties to the
Intercreditor Deed each as a Facility D Lender thereunder as if named
therein in schedule 4 thereto with a Facility D1 Commitment or (as the
case may be) Facility D2 Commitment or (as the case may be) Facility D3
Commitment and with effect from such date shall assume obligations
towards and rights against TCN, the Agents, the Lead Arrangers, the
other Lenders, the Security Trustee, the Charging Entities, the
Lessors, ▇▇▇▇▇▇, the Lessees and the Hedge Counterparties as if so
named therein.
4 CONTINUANCE OF THE AGREEMENT AND THE INTERCREDITOR DEED
Notwithstanding this Facility D Lender Accession Agreement, the
provisions of the Agreement and the Intercreditor Deed shall continue
in full force and effect and, with effect from the date of this
Facility D Lender Accession Agreement, the Agreement and this Facility
D Lender Accession Agreement shall be read and construed as one
instrument as if references in the Agreement to "this Agreement" were
to the Agreement and this Facility D Lender Accession Agreement taken
together and the Intercreditor Deed and this Facility D Lender
Accession Agreement shall be read and construed as one instrument as if
references in the Intercreditor Deed to this "Deed" were to the
Intercreditor Deed and this Accession Agreement taken together.
5 CONSENT
The Agent (on behalf of itself and the other Finance Parties to the
Agreement and the other parties to the Intercreditor Deed) consents to
the Acceding Facility D Lenders becoming Facility D Lenders as set out
in clauses 2 and 3.
TCN (on behalf of itself and the other TCN Entities party to the
Agreement) consents to the Acceding Facility D Lenders becoming
Facility D Lenders as set out in clause 2.
6 MARGIN
The Margin in respect of each Facility D Advance shall be o per cent.
per annum.
The call protection for the purposes of clause 7.13.1 of the Agreement
shall be o.
7 CONFIRMATION
Each Acceding Facility D Lender confirms:
(a) that it has received a copy of the Agreement, the Security
Documents and all other documentation and information required
by it in connection with the transactions contemplated by this
Facility D Lender Accession Agreement;
(b) that it has made and will continue to make its own assessment
of the validity, enforceability and sufficiency of the
Agreement, the Security Documents and this Facility D Lender
Accession Agreement and has not relied and will not rely on
any existing Lender, the Arrangers, the Security Trustee or
any Agent or any statements made by any of them in that
respect;
(c) that it has made and will continue to make its own credit
assessment of each Borrower, each other TCN Entity and
Telewest and has not relied and will not rely on any existing
Lender, the Arrangers, the Security Trustee or any Agent or
any statements made by any of them in that respect;
139
(d) accordingly, none of the existing Lenders, the Arrangers, the
Security Trustee or the Agents shall have any liability or
responsibility to the Acceding Lender in respect of any of the
foregoing matters;
(e) its administrative details are as set out in the schedule
hereto; and
(f) that it wishes to receive details of each notice, certificate
or other document and copies of the financial information
referred to in clause 19.5.1 of the Agreement, save as set out
in the schedule hereto.
8 REPRESENTATION AND WARRANTY
Execution of this Facility D Lender Accession Agreement by each
Acceding Facility D Lender constitutes its representation to all the
other parties to the Agreement that it has power to become party to the
Agreement and the Intercreditor Deed as a Facility D Lender on the
terms herein and therein set out and has taken all necessary steps to
authorise execution and delivery of this Facility D Lender Accession
Agreement.
9 LAW
This Facility D Lender Accession Agreement shall be governed by and
construed in accordance with English law.
[SUBMISSION TO JURISDICTION CLAUSE, IF REQUIRED]
IN WITNESS whereof this Accession Agreement has been entered into the day and
year first above written.
140
ADMINISTRATIVE DETAILS OF THE ACCEDING FACILITY D LENDERS
--------------------------------------------------------------------------------------------------------------------------------
Facility D Lenders Facility D1 Commitment Facility D2 Commitment Facility D3 Commitment
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
Lending office:
Account for payments:
Telephone:
Telefax:
Attention:
e-mail:
141
THE BORROWERS
-------------
SIGNED for and on behalf of )
TELEWEST COMMUNICATIONS )
NETWORKS LIMITED )
By: ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of )
TELEWEST FINANCE CORPORATION )
By: ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
THE ORIGINAL CHARGING SUBSIDIARIES
----------------------------------
SIGNED for and on behalf of each of
BIRMINGHAM CABLE CORPORATION LIMITED
BIRMINGHAM CABLE FINANCE LIMITED
BIRMINGHAM CABLE LIMITED
BRAVO TV LIMITED
CABLE CAMDEN LIMITED
CABLE ENFIELD LIMITED
CABLE ▇▇▇▇▇▇▇ & ISLINGTON LIMITED
CABLE HARINGEY LIMITED
CABLE LONDON LIMITED
CENTRAL CABLE HOLDINGS LIMITED
CHELTRADING 283 LIMITED
CHELTRADING 284 LIMITED
CRYSTAL PALACE RADIO LIMITED
FILEGALE LIMITED
FLEXIMEDI LIMITED
FLEXTECH (1992) LIMITED
FLEXTECH (TRAVEL CHANNEL) LIMITED
FLEXTECH CHILDREN'S CHANNEL LIMITED
FLEXTECH COMMUNICATIONS LIMITED
142
FLEXTECH DIGITAL BROADCASTING LIMITED
FLEXTECH FAMILY CHANNEL LIMITED
FLEXTECH HOMESHOPPING LIMITED
FLEXTECH INTERACTIVE LIMITED
FLEXTECH IVS LIMITED
FLEXTECH MEDIA HOLDING LIMITED
FLEXTECH RIGHTS LIMITED
FLEXTECH SATELLITE INVESTMENTS LIMITED
FLEXTECH TELEVISION LIMITED
FLEXTECH VIDEO GAMES LIMITED
GENERAL CABLE GROUP LIMITED
GENERAL CABLE HOLDINGS LIMITED
GENERAL CABLE LIMITED
HSN DIRECT INTERNATIQONAL LIMITED
IMMINUS LIMITED
IVS CABLE HOLDINGS LIMITED
MAIDSTONE BROADCASTING
MIDDLESEX CABLE LIMITED
SHEFFIELD CABLE COMMUNICATIONS LIMITED
SOUTHWESTERN ▇▇▇▇ INTERNATIONAL HOLDINGS LIMITED
STARSTREAM LIMITED
TELEWEST COMMUNICATIONS (CENTRAL LANCASHIRE) LIMITED
TELEWEST COMMUNICATIONS (COTSWOLDS) LIMITED
TELEWEST COMMUNICATIONS (DUNDEE & PERTH) LIMITED
TELEWEST COMMUNICATIONS (LIVERPOOL) LIMITED
TELEWEST COMMUNICATIONS (LONDON SOUTH) LIMITED
143
TELEWEST COMMUNICATIONS (MIDLANDS AND NORTH WEST) LIMITED
TELEWEST COMMUNICATIONS (MIDLANDS) LIMITED
TELEWEST COMMUNICATIONS (MOTHERWELL) LIMITED
TELEWEST COMMUNICATIONS (NORTH EAST) LIMITED
TELEWEST COMMUNICATIONS (NORTH WEST) LIMITED
TELEWEST COMMUNICATIONS (SCOTLAND) LIMITED
TELEWEST COMMUNICATIONS (SOUTH EAST) LIMITED
TELEWEST COMMUNICATIONS (SCOTLAND HOLDINGS) LIMITED
TELEWEST COMMUNICATIONS (SOUTH THAMES ESTUARY) LIMITED
TELEWEST COMMUNICATIONS (SOUTH WEST) LIMITED
TELEWEST COMMUNICATIONS (ST. HELENS & KNOWSLEY) LIMITED
TELEWEST COMMUNICATIONS (TYNESIDE) LIMITED
TELEWEST COMMUNICATIONS (WIGAN) LIMITED
TELEWEST COMMUNICATIONS CABLE LIMITED
TELEWEST COMMUNICATIONS GROUP LIMITED
TELEWEST COMMUNICATIONS HOLDINGS LIMITED
TELEWEST LIMITED
TELEWEST PARLIAMENTARY HOLDINGS LIMITED
THE CABLE CORPORATION LIMITED
THESEUS NO 1 LIMITED
THESEUS NO 2 LIMITED
UK LIVING LIMITED
UNITED ARTISTS INVESTMENTS LIMITED
WINDSOR TELEVISION LIMITED
THE YORKSHIRE CABLE GROUP LIMITED
144
YORKSHIRE CABLE COMMUNICATIONS LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: (and ▇▇▇▇ ▇▇▇▇
for IVS CABLE
THE ORIGINAL CHARGING PARTNERSHIPS HOLDINGS LIMITED)
----------------------------------
SIGNED for and on behalf of each of
AVON CABLE LIMITED PARTNERSHIP
COTSWOLDS CABLE LIMITED PARTNERSHIP
EDINBURGH CABLE LIMITED PARTNERSHIP
ESTUARIES CABLE LIMITED PARTNERSHIP
TCI/US WEST CABLE COMMUNICATIONS GROUP
TYNESIDE CABLE LIMITED PARTNERSHIP
UNITED CABLE (LONDON SOUTH) LIMITED PARTNERSHIP
by their general partner
THESEUS NO. 1 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and by their general partner
THESEUS NO. 2 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of the partners of
AVON CABLE JOINT VENTURE by the following:
Signed for and on behalf of
AVON CABLE LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and by its general partner
THESEUS NO. 2 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
145
Signed by
TELEWEST COMMUNICATIONS
(SOUTH WEST) LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of the partners of
LONDON SOUTH CABLE PARTNERSHIP by the
following:
Signed by
CRYSTAL PALACE RADIO LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Signed for and on behalf of its managing partner
UNITED CABLE (LONDON SOUTH) LIMITED PARTNERSHIP
by its general partner
THESEUS NO.1 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and by its general partner
THESEUS NO.2 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of the partners of
TELEWEST COMMUNICATIONS (COTSWOLDS) VENTURE
by the following:
Signed for and on behalf of
COTSWOLDS CABLE LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and by its general partner
THESEUS NO. 2 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Signed by
TELEWEST COMMUNICATIONS
(COTSWOLDS) LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of the partners of
TELEWEST COMMUNICATIONS (NORTH EAST)
PARTNERSHIP by the following:
Signed by
TELEWEST COMMUNICATIONS
(NORTH EAST) LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Signed by
TELEWEST COMMUNICATIONS
146
(TYNESIDE) LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Signed for and on behalf of
TYNESIDE CABLE LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and by its general partner
THESEUS NO. 2 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of TELEWEST
COMMUNICATIONS (SCOTLAND) VENTURE by the
following:
Signed for and on behalf of
EDINBURGH CABLE LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and by its general partner
THESEUS NO. 2 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Signed for and on behalf of
TELEWEST COMMUNICATIONS
(SCOTLAND) LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of the partners of
TELEWEST COMMUNICATIONS (SOUTH EAST)
PARTNERSHIP by the following:
147
Signed for and on behalf of
ESTUARIES CABLE LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and by its general partner
THESEUS NO. 2 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Signed by
TELEWEST COMMUNICATIONS
(SOUTH EAST) LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Signed by
TELEWEST COMMUNICATIONS
(SOUTH THAMES ESTUARY) LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of the partners of
TELEWEST COMMUNICATIONS (LONDON SOUTH) JOINT
VENTURE by the following:
Signed for and on behalf of
LONDON SOUTH CABLE PARTNERSHIP
by its managing partner
UNITED CABLE (LONDON SOUTH)
LIMITED PARTNERSHIP ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
by its general partner
THESEUS NO. 1 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and by its general partner
THESEUS NO. 2 LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Signed for and on behalf of
TELEWEST COMMUNICATIONS
(LONDON SOUTH) LIMITED ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
148
THE LEAD ARRANGERS
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SIGNED for and on behalf of )
BNY MARKETS LIMITED )
by: ) ▇. ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of )
CIBC WORLD MARKETS PLC )
by: ) ▇▇▇▇▇▇ ▇▇▇▇
SIGNED for and on behalf of )
TD BANK EUROPE LIMITED )
by: ) ▇▇▇▇▇▇ ▇▇▇▇▇
SIGNED for and on behalf of )
BANK OF AMERICA INTERNATIONAL )
LIMITED )
by: ) ▇▇▇▇▇▇▇ ▇▇▇▇▇
SIGNED for and on behalf of )
BARCLAYS CAPITAL )
by: ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SIGNED for and on behalf of )
BAYERISCHE HYPO-UND )
VEREINSBANK AG ) ▇▇▇▇ ▇▇▇▇
by: ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of )
CREDIT SUISSE FIRST BOSTON ) ▇▇▇▇▇▇▇ VYLE
by: ) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SIGNED for and on behalf of )
DEUTSCHE BANK AG, LONDON ) ▇▇▇▇▇▇▇ ▇▇▇▇▇
by: ) ▇▇▇▇▇▇ ▇▇▇▇
SIGNED for and on behalf of )
FORTIS BANK S.A./N.V. )
by: ) ▇▇▇▇ ▇▇▇▇▇▇
149
SIGNED for and on behalf of )
▇.▇. ▇▇▇▇▇▇ PLC )
by: ) ▇▇▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of )
THE ROYAL BANK OF SCOTLAND PLC )
by: ) ▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of )
SALOMON BROTHERS INTERNATIONAL )
LIMITED )
by: ) ▇▇▇▇▇▇▇ ▇▇▇▇
SIGNED for and on behalf of )
THE FUJI BANK, LIMITED )
by: ) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of )
WESTDEUTSCHE LANDESBANK )
GIROZENTRALE )
by: ) ▇▇▇▇▇▇ ▇▇▇▇▇
150
THE LENDERS AND FINANCIAL INSTITUTIONS
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SIGNED for and on behalf of )
ABBEY NATIONAL TREASURY )
SERVICES PLC )
by: ) ▇▇▇▇▇ ▇▇▇▇▇▇
SIGNED for and on behalf of )
BANCA COMMERCIALE ITALIANA S.P.A. )
- LONDON BRANCH by: ) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SIGNED for and on behalf of )
BANKGESELLSCHAFT BERLIN AG, ) ▇▇▇▇▇▇▇▇ SARAFJAN
LONDON by: ) ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
SIGNED for and on behalf of )
BANK OF AMERICA, N.A. )
by: ) ▇▇▇▇▇▇▇ ▇▇▇▇▇
SIGNED for and on behalf of )
THE BANK OF NEW YORK )
by: ) ▇▇▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of )
BARCLAYS BANK PLC )
by: ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SIGNED for and on behalf of )
BAYERISCHE HYPO-UND )
VEREINSBANK AG ) ▇▇▇▇ ▇▇▇▇
by: ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of )
BAYERISCHE LANDESBANK )
GIROZENTRALE, LONDON BRANCH )
by: ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SIGNED for and on behalf of )
THE CHASE MANHATTAN BANK )
by: ) ▇▇▇▇▇▇ ▇▇▇▇▇▇
SIGNED for and on behalf of )
CIBC WORLD MARKETS PLC )
by: ) ▇▇▇▇▇▇ ▇▇▇▇
SIGNED for and on behalf of )
CITIBANK, N.A. )
by: ) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
151
SIGNED for and on behalf of )
CREDIT SUISSE FIRST BOSTON ) ▇▇▇▇▇▇▇ VYLE
by: ) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SIGNED for and on behalf of )
DEUTSCHE BANK AG, LONDON ) ▇▇▇▇▇▇▇ ▇▇▇▇▇
by: ) ▇▇▇▇▇▇ ▇▇▇▇
SIGNED for and on behalf of )
DRESDNER BANK AG LONDON BRANCH ) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
by: ) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of )
FLEET NATIONAL BANK )
by: ) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of )
FORTIS BANK S.A./N.V. )
by: ) ▇▇▇▇ ▇▇▇▇▇▇
SIGNED for and on behalf of )
GENERAL ELECTRIC CAPITAL )
CORPORATION )
by: ) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of )
THE GOVERNOR AND COMPANY OF )
THE BANK OF SCOTLAND )
by: ) ▇▇▇▇▇▇ ▇▇▇▇▇▇
SIGNED for and on behalf of )
ING BANK N.V. LONDON BRANCH )
by: ) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
SIGNED for and on behalf of )
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL )
CORPORATION by: ) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
152
SIGNED by )
THE ROYAL BANK OF SCOTLAND PLC )
as agent for and on behalf of )
NATIONAL WESTMINSTER BANK PLC )
by: ) ▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of )
THE ROYAL BANK OF SCOTLAND PLC )
by: ) ▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of )
SKANDINAVISKA ENSKILDA BANKEN )
(PUBL) by: ) ▇▇▇▇▇▇ ▇▇▇▇
SIGNED for and on behalf of )
SCOTIABANK EUROPE PLC )
by: ) ▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of )
THE FUJI BANK, LIMITED )
by: ) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of )
THE TORONTO-DOMINION BANK )
by: ) ▇▇▇▇▇ ▇▇▇▇▇
SIGNED for and on behalf of )
WESTDEUTSCHE LANDESBANK )
GIROZENTRALE )
by: ) ▇▇▇▇▇▇ ▇▇▇▇▇
153
THE AGENTS
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SIGNED for and on behalf of )
CIBC WORLD MARKETS PLC )
by: ) ▇▇▇▇▇▇ ▇▇▇▇
SIGNED for and on behalf of )
CANADIAN IMPERIAL BANK )
OF COMMERCE )
by: ) ▇▇▇▇▇▇ ▇▇▇▇
THE SECURITY TRUSTEE
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SIGNED for and on behalf of )
CIBC WORLD MARKETS PLC )
by: ) ▇▇▇▇▇▇ ▇▇▇▇