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Exhibit 10.4
▇ ▇ ▇ ▇ ▇ ▇ ▇ ▇ LIMITED LIABILITY PARTNERSHIP
C H A N C E
CONFORMED COPY
DATED 28 MARCH 2000
NTL INCORPORATED
AS PARENT
NTL CABLECOM HOLDING GmbH
AS SHAREHOLDER
CABLECOM (OSTSCHWEIZ) AG
AS PRINCIPAL BORROWER
CHASE MANHATTAN PLC
AND
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
AS ARRANGERS AND JOINT BOOK MANAGERS
CHASE MANHATTAN INTERNATIONAL LIMITED
AS AGENT
AND
OTHERS
--------------------------------------------------------------
CHF4,100,000,000
CREDIT AGREEMENT
RELATING TO THE
ACQUISITION OF THE CABLECOM BUSINESS
--------------------------------------------------------------
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CONTENTS
CLAUSE PAGE
------ ----
1. Definitions And Interpretation .............................. 1
2. The Facilities .............................................. 34
3. Utilisation Of The Original Term Facility ................... 35
4. Interest Periods For Original Term Advances ................. 36
5. Payment And Calculation Of Interest On Original Term Advances 37
6. Utilisation Of The Revolving Facility ....................... 39
7. Payment And Calculation Of Interest On Revolving Advances ... 41
8. Market Disruption And Alternative Interest Rates ............ 41
9. Notification ................................................ 42
10. Repayment Of The Original Term Facility ..................... 43
11. Repayment Of The Revolving Facility And Term-Out Option ..... 44
12. Cancellation And Prepayment ................................. 46
13. Mandatory Prepayment ........................................ 48
14. Taxes ....................................................... 52
15. Tax Receipts ................................................ 55
16. Increased Costs ............................................. 56
17. Illegality .................................................. 57
18. Mitigation .................................................. 58
19. Representations ............................................. 58
20. Financial Information ....................................... 67
21. Financial Condition ......................................... 71
22. Covenants ................................................... 77
23. Events Of Default ........................................... 86
24. Guarantee And Indemnity ..................................... 92
25. Commitment Commission And Fees .............................. 95
26. Costs And Expenses .......................................... 97
27. Default Interest And Break Costs ............................ 98
28. Borrowers' Indemnities ...................................... 99
29. Currency Of Account And Payment ............................. 99
30. Payments .................................................... 100
31. Set-Off ..................................................... 103
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CLAUSE PAGE
32. Sharing ..................................................... 103
33. The Agent, The Arrangers And The Banks ...................... 107
34. Assignments And Transfers ................................... 113
35. Additional Borrowers ........................................ 116
36. Additional Guarantors ....................................... 117
37. Permitted Facilities Provider ............................... 118
38. Calculations And Evidence Of Debt ........................... 118
39. Remedies And Waivers, Partial Invalidity .................... 119
40. Notices ..................................................... 120
41. Counterparts ................................................ 121
42. Amendments .................................................. 121
43. Governing Law ............................................... 123
44. Jurisdiction ................................................ 123
Schedule 1 THE ORIGINAL PARTIES .................................. 125
Part A The Obligors ......................................... 125
Part B The Operating Companies .............................. 127
Part C The Banks ............................................ 128
Schedule 2 FORM OF TRANSFER CERTIFICATE .......................... 130
Schedule 3 CONDITIONS PRECEDENT .................................. 133
Schedule 4 NOTICE OF DRAWDOWN .................................... 137
Schedule 5 FORM OF COMPLIANCE CERTIFICATE ........................ 139
Schedule 6 FORM OF BORROWER ACCESSION MEMORANDUM ................. 140
Schedule 7 FORM OF GUARANTOR ACCESSION MEMORANDUM ................ 142
Schedule 8 ADDITIONAL CONDITIONS PRECEDENT ....................... 144
Schedule 9 FORM OF RESIGNATION NOTICE ............................ 146
Schedule 10 MANDATORY COSTS ...................................... 147
Schedule 11 CONFIDENTIALITY UNDERTAKING .......................... 149
Schedule 12 EXISTING MORTGAGES ................................... 153
Schedule 13 FORM OF DEED OF ACCESSION ............................ 154
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THIS AGREEMENT is made on 28 March 2000
BETWEEN
(1) NTL INCORPORATED a company registered in Delaware,of ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ (the "PARENT");
(2) NTL CABLECOM HOLDING GmbH (the "SHAREHOLDER");
(3) CABLECOM (OSTSCHWEIZ) AG (the "PRINCIPAL BORROWER");
(4) THE COMPANIES listed in Part A of Schedule 1 as original borrowers (The
Original Parties) in their capacity as borrowers hereunder (together
with the Principal Borrower, the "ORIGINAL BORROWERS");
(5) THE COMPANIES listed in Part A of Schedule 1 as original guarantors
(The Original Parties) in their capacity as guarantors hereunder
(together with the Shareholder and the Principal Borrower, the
"ORIGINAL GUARANTORS");
(6) CHASE MANHATTAN PLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC. as
arrangers of the Facility (the "ARRANGERS");
(7) CHASE MANHATTAN INTERNATIONAL LIMITED as agent for the Banks (the
"AGENT"); and
(8) THE BANKS (as defined below).
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"A DEBT" means the rights and obligations of the lender under the First
Loan Agreement, such rights being subordinated by the Subordination
Deed and pledged by the Subordinated NTL CV1 Debt Pledge.
"ACCESSION MEMORANDUM" means a Borrower Accession Memorandum or a
Guarantor Accession Memorandum.
"ACCOUNTANTS' LETTER" means the letter from Ernst & Young in the agreed
form, addressed to and capable of being relied upon by the Finance
Parties, confirming that based upon projections provided by the Parent,
which have not been audited by Ernst & Young, each Original Borrower
will have:
(a) projected income (including, if relevant, dividend receipts)
sufficient to enable it to service, in full, all its projected
indebtedness under the Facilities; and
(b) sufficient taxable income to ensure full tax deductibility on
all projected interest payments to be made by it under the
Facilities,
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or, to the extent either (a) or (b) above will not be satisfied based
upon such projections, identifying any relevant shortfalls and
indicating how the Original Borrowers intend to address those
shortfalls.
"ACQUISITION" means the purchase by the Parent (or its directly wholly
owned subsidiary) and the Principal Borrower of the Cablecom Business.
"ACQUISITION AGREEMENT" means the transaction agreement dated as of 12
December 1999 between the Parent, the Vendor and the Vendor's
shareholders, setting out the terms of the Acquisition, together with
all schedules, exhibits and attachments to such agreement.
"ACQUISITION AGREEMENT ASSIGNMENT" means the assignment agreement
entered into by the Shareholder and the Principal Borrower, assigning
their respective rights under the Acquisition Documents to the Agent
(on behalf of the Finance Parties) as security for the obligations of
the Obligors under the Finance Documents and/or to the Permitted
Facilities Provider as security for the obligations of any members of
the Group under any documentation relating to the Secured Permitted
Facilities.
"ACQUISITION DATE" means the date on which the Acquisition is completed
in accordance with clause 3.3 of the Acquisition Agreement.
"ACQUISITION DOCUMENTS" means the Acquisition Agreement and all
documents executed pursuant thereto on or before the Acquisition Date,
the assignment agreements between certain members of the NTL Inc.
Holding Group and the Principal Borrower (assigning certain rights of
the Parent under the Acquisition Agreement to the Shareholder and the
Principal Borrower) and each other document (if any) relating to the
transactions contemplated in the Acquisition Agreement and identified
by the Agent and the Principal Borrower in writing as an Acquisition
Document.
"ACQUISITION EVENT OF DEFAULT" means any circumstance constituting an
Event of Default under any of the following Clauses:
(a) Clause 23.1 (Failure to Pay);
(b) Clause 23.2 (Misrepresentation) (to the extent such relates to
an Acquisition Repeated Representation);
(c) Clause 23.7 (Insolvency and Rescheduling) to Clause 23.10
(Failure to Comply with Final Judgment) (inclusive), as if
references therein to "any member of the Restricted Group"
were references to the Parent, each other member of the NTL
Inc. Holding Group, the Principal Borrower and CC AG; or
(d) Clause 23.15 (Illegality).
"ACQUISITION POTENTIAL EVENT OF DEFAULT" means any event which would
become (with the passage of time, the giving of notice, the making of
any determination hereunder or any combination thereof) an Acquisition
Event of Default.
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"ACQUISITION RECOVERY PROCEEDS" means the proceeds of any payment made
by the Vendor, the Vendor's shareholders or the Vendor's (or the
Vendor's shareholders') affiliates, employees, officers or advisers
under or in relation to the Acquisition Documents including (without
limitation) the proceeds of any payment in respect of:
(a) a claim for breach of contract or warranty, misrepresentation
or a claim under an indemnity; or
(b) an adjustment to the Net Purchase Price (as defined in the
Acquisition Agreement) in accordance with either an adjustment
to the net assets of the Cablecom Business and/or the number
of subscribers comprised in the Cablecom Business, in
accordance with clause 2.2.5 and clause 2.2.6 respectively of
the Acquisition Agreement;
(c) clause 6.2.1(b) of the Acquisition Agreement, relating to the
number of subscribers of the Cablecom Business; or
(d) clause 4.7 of the Acquisition Agreement, relating to a payment
out of an escrow amount into which dividends of the Cablecom
Business have been paid.
"ACQUISITION REMEDY" means the application of Acquisition Recovery
Proceeds towards:
(a) the discharge of a liability, charge or claim made upon any
member of the NTL Inc. Holding Group or the Group, where the
Vendor or the Vendor's shareholders are obliged under the
Acquisition Documents to indemnify or otherwise reimburse the
relevant member of the NTL Inc. Holding Group or the Group for
such a liability, charge or claim; or
(b) reimbursing a member of the NTL Inc. Holding Group or the
Group for monies disbursed in connection with discharging any
liability, charge or claim referred to in paragraph (a) above;
or
(c) replacing, reinstating and/or repairing assets of the Cablecom
Business where the loss of, or damage to, such assets gave
rise to a claim for breach of contract or warranty,
misrepresentation or a claim under an indemnity under the
Acquisition Documents.
"ACQUISITION REPEATED REPRESENTATIONS" means each of the
representations set out in Clause 19.1 (Status) to Clause 19.4
(Execution of the Finance Documents), sub-clause 19.16.1 of Clause
19.16 (No NTL Note Defaults), Clause 19.21 (No Material Defaults),
Clause 19.28 (Ownership of the Principal Borrower), Clause 19.30
(Consents and Approvals) (excluding sub-clause 19.30.1 thereof), Clause
19.31 (Security Interest) and Clause 19.33 (Good Title to Assets).
"ADDITIONAL BORROWER" means any company which has become an Additional
Borrower in accordance with Clause 35 (Additional Borrowers).
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"ADDITIONAL GUARANTOR" means any company which has become an Additional
Guarantor in accordance with Clause 36 (Additional Guarantors).
"ADDITIONAL MERGERS" means mergers of the Principal Borrower with other
members of the Restricted Group where, in respect of each such merger:
(a) the Principal Borrower is the surviving entity, having all the
rights and obligations which the merged entity and the
Principal Borrower itself had immediately prior to such a
merger taking effect; and
(b) the merger is effected pursuant to documentation, and in
accordance with any Swiss legal or procedural requirements,
approved or deemed applicable by the Agent's Swiss counsel.
"ADDITIONAL OBLIGOR" means an Additional Borrower or Additional
Guarantor.
"ADDITIONAL SUBORDINATED DEBT" means any loan by the Shareholder or any
member of the NTL Inc. Holding Group to a member of the Restricted
Group, where:
(a) the Agent has been given at least five Business Days prior
written notice that such a loan is to be made;
(b) the lender's rights under such a loan have been subordinated
by an agreement or deed approved by the Agent, such an
agreement or deed permitting repayments of principal, payments
of interest and any other payments to the lender only to the
extent that such payments amount to Permitted Distributions
under paragraph (b) of the definition thereof; and
(c) if either (i) requested by the Agent (acting reasonably) or
(ii) the amount of such a loan, when aggregated with the
amount of all other Additional Subordinated Debt owed by
members of the Restricted Group at the time such a loan is
made and in respect of which the relevant lenders' rights have
not been assigned to the Agent (or the Finance Parties) and/or
the Permitted Facilities Provider is equal to or greater than
CHF25,000,000, the lender's rights under such a loan have been
assigned to the Agent (or the Finance Parties) as security for
the obligations of the Obligors under the Finance Documents
and to the Permitted Facilities Provider as security for the
obligations of any members of the Group under any
documentation relating to the Secured Permitted Facilities by
an agreement or deed approved by the Agent.
"ADVANCE" means a Revolving Advance, an Original Term Advance or a
Term-out Advance.
"ANNUALISED EBITDA" has the meaning given to it in Clause 21 (Financial
Condition).
"AUTHORISED SIGNATORY" means, in relation to the Parent, NTL SPV LLC
(as the general partner of NTL CV1), an Obligor or proposed Obligor,
any person who is duly
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authorised (in such manner as may be reasonably acceptable to the
Agent) to act on behalf of such person and in respect of whom the Agent
has received a certificate signed by a director or another Authorised
Signatory of the Parent, NTL SPV LLC or, as the case may be, such
Obligor or proposed Obligor setting out the name and signature of such
person and confirming such person's authority to act.
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time, the
aggregate of its Available Term Commitment and Available Revolving
Commitment.
"AVAILABLE EXCESS CASH FLOW" means, at any time, the aggregate Excess
Cash Flow generated in respect of each financial year of the Principal
Borrower, commencing with the financial year ended 31 December 2003,
less the amount of such Excess Cash Flow (in respect of each financial
year) which is required to be used (with respect to such financial
year) to prepay the Loan in accordance with Clause 13.1 (Mandatory
Prepayment from Excess Cash Flow) PROVIDED THAT any amount falling
within this definition of Available Excess Cash Flow may not be
distributed or otherwise spent more than once.
"AVAILABLE REVOLVING COMMITMENT" means, in relation to a Bank at any
time and save as otherwise provided herein, its Revolving Commitment at
such time LESS its share of the Revolving Advances which are then
outstanding, PROVIDED THAT such amount shall not be less than zero.
"AVAILABLE REVOLVING FACILITY" means, at any time, the aggregate amount
of the Available Revolving Commitments adjusted, in the case of any
proposed drawdown, so as to take into account:
(a) any reduction in the Revolving Commitment of a Bank pursuant
to the terms hereof;
(b) any Revolving Advance which, pursuant to any other drawdown,
is to be made; and
(c) any Revolving Advance which is due to be repaid,
on or before the proposed drawdown date.
"AVAILABLE TERM COMMITMENT" means, in relation to a Bank at any time
and save as otherwise provided herein, its Term Commitment at such time
LESS the aggregate of its share of the Original Term Advances which are
then outstanding.
"AVAILABLE TERM FACILITY" means, at any time, the aggregate amount of
the Available Term Commitments adjusted, in the case of any proposed
drawdown, so as to take into account any reduction in the Term
Commitment of a Bank on or before the proposed drawdown date pursuant
to the terms hereof.
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"AVERAGE REVENUE CONTRIBUTION" means, in respect of any asset at any
time:
A + B
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where:
A = the revenue generated by, or attributable (whether in whole
or in part) to, such asset during the immediately preceding
financial year of the Principal Borrower, expressed as a
percentage of the total consolidated revenue of the Restricted
Group for such a financial year; and
B = the revenue generated by, or attributable (whether in whole
or in part) to, such asset during the financial year of the
Principal Borrower preceding that referred to in A above,
expressed as a percentage of the total consolidated revenue of
the Restricted Group for such financial year.
"B DEBT" means the rights and obligations of the lender under the
Second Loan Agreement.
"BANK" means any financial institution:
(a) named in Part C of Schedule 1 (The Original Parties); or
(b) which has become a party hereto in accordance with Clause 34.4
(Assignments by Banks) or Clause 34.5 (Transfers by Banks),
and which has not ceased to be a party hereto in accordance with the
terms hereof.
"BORROWERS" means each of the Original Borrowers and each Additional
Borrower, PROVIDED THAT such company has not been released from its
rights and obligations hereunder in accordance with Clause 35.3
(Resignation of a Borrower).
"BORROWER ACCESSION MEMORANDUM" means a memorandum substantially in the
form set out in Schedule 6 (Form of Borrower Accession Memorandum).
"BUDGET" means a budget delivered by the Principal Borrower to the
Agent pursuant to Clause 20.5 (Budgets).
"BUSINESS DAY" means a day (other than a Saturday or Sunday) which is
not a public holiday and on which banks generally are open for business
in London and Zurich.
"BUSINESS PLAN" means the financial model including profit and loss
accounts, balance sheets and cash flow projections, in agreed form,
relating to the Restricted Group (for these purposes assuming
completion of the Acquisition).
"BV1" means Nogenta Swiss Acquisition Holding 1 B.V., a limited
liability company incorporated in The Netherlands and (following the
completion of the Hivedown) being a wholly owned subsidiary of NTL CV1.
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"CABLECOM BUSINESS" means:
(a) the Principal Borrower;
(b) the Cablecom Subsidiaries and the minority interests of the
Cablecom Subsidiaries;
(c) the other assets and liabilities of the Vendor acquired by, or
(as the case may be) transferred to, the Principal Borrower,
CC AG or, as the case may be, the Cablecom Subsidiaries
pursuant to the Acquisition Documents and the Hivedown; and
(d) prior to the completion of the Initial Mergers, CC AG and its
subsidiaries.
"CABLECOM SUBSIDIARIES" means the direct and indirect subsidiaries of
the Vendor acquired by the Principal Borrower pursuant to the
Acquisition Documents and the Hivedown.
"CC AG" means Cablecom AG.
"C DEBT" means the rights and obligations of the lender under the Third
Loan Agreement, such rights being subordinated by the Subordination
Deed and pledged by the Subordinated NTL CV1 Debt Pledge.
"COMMITMENT" means, in relation to a Bank at any time, the aggregate of
its Term Commitment and its Revolving Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 5 (Form of Compliance Certificate).
"CONFIDENTIALITY UNDERTAKING" means the confidentiality undertaking set
out in Schedule 11 (Confidentiality Undertaking) or such other form of
confidentiality undertaking as may be agreed between the Parent, the
Principal Borrower and the Agent.
"CONSOLIDATED PRO-FORMA DEBT SERVICE" has the meaning given to it in
Clause 21 (Financial Condition).
"CONVERSION SUBSIDIARIES" means the members of the Restricted Group
identified in the Reorganisation Summary as being entities who will be
converted into Swiss limited liability companies ("GmbH"s) as part of
the Reorganisation.
"DEED OF ACCESSION" means a deed substantially in the form set out in
Schedule 13 (Form of Deed of Accession).
"DISPUTE" means any dispute referred to in Clause 43 (Jurisdiction).
"DISCLOSURE LETTER" means the letter, in the agreed form, dated on or
before the date of this Agreement from the Principal Borrower to the
Agent (on behalf of the Finance
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Parties) setting out various matters to be excluded from certain
representations and covenants in this Agreement.
"EBITDA" has the meaning given to it in Clause 21 (Financial
Condition).
"EMU" means Economic and Monetary Union as contemplated in the Treaty
on European Union.
"EMU LEGISLATION" means legislative measures of the European Union for
the introduction of, changeover to or operation of the euro in one or
more member states, being in part legislative measures to implement
EMU.
"ENCUMBRANCE" means (a) a mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person, (b) any arrangement
under which money or claims to, or the benefit of, a bank or other
account may be applied, set off or made subject to a combination of
accounts so as to effect discharge of any sum owed or payable to any
person or (c) any other type of preferential arrangement (including any
title transfer and retention arrangement) having a similar effect.
"ENVIRONMENTAL CLAIM" means any claim, proceeding or investigation by
any person pursuant to any Environmental Law.
"ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in
which any member of the Restricted Group conducts business which
relates to the pollution or protection of the environment or harm to or
the protection of human health or the health of animals or plants.
"ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval
and other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of
the business of any member of the Restricted Group conducted on or from
the properties owned or used by the relevant member of the Restricted
Group.
"ESCROW ACCOUNT" means an escrow account, bearing interest at a
commercially reasonable rate in relation to the given circumstances,
held with the Agent (or any financial institution acceptable to the
Agent) in the name of the Shareholder or a member of the Restricted
Group which is opened after the date hereof (as the same may be
redesignated, substituted or replaced from time to time) which is
pledged, charged or assigned to the Agent (or the Finance Parties)
pursuant to a Security Document to secure all amounts due under the
Finance Documents and into which certain monies are paid pursuant to
Clause 13 (Mandatory Prepayment).
"EVENT OF DEFAULT" means any circumstance described as such in Clause
23 (Events of Default).
"EXCESS CASH FLOW" has the meaning given to it in Clause 21 (Financial
Condition).
"EXISTING INDEBTEDNESS" means the indebtedness of the Cablecom Business
outstanding on the Acquisition Date.
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"EXISTING MORTGAGES" means the Swiss law mortgages ("Hypotheken") set
out in Schedule 12 (Existing Mortgages) granted by certain members of
the Restricted Group, subsisting on the date of this Agreement and
relating only to those assets identified in Schedule 12 (Existing
Mortgages).
"FACILITIES" means the Original Term Facility, the Revolving Facility
and the Term-Out Facility.
"FACILITY OFFICE" means, in relation to the Agent, the office
identified with its signature below or such other office as it may
select by notice and, in relation to any Bank, the office notified by
it to the Agent in writing prior to the date hereof (or, in the case of
a Transferee, at the end of the Transfer Certificate to which it is a
party as Transferee) or such other office as it may from time to time
select by notice to the Agent.
"FINANCE DOCUMENTS" means this Agreement, any Borrower Accession
Memorandum, any Guarantor Accession Memorandum, any fee letters
delivered pursuant to Clause 25 (Commitment Commission and Fees), the
Security Documents, the Hedging Agreements, the Subordination Deed (and
any other subordination agreements or deeds executed in relation to any
Additional Subordinated Debt) and any other document designated as such
by agreement between the Agent and the Principal Borrower.
"FINANCE PARTIES" means the Agent, the Arrangers, the Banks and any
Hedge Counterparties.
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) Indebtedness for Borrowed Money;
(b) any documentary or standby letter of credit facility or
performance bond facility;
(c) any interest rate swap, currency swap, forward foreign
exchange transaction, cap, floor, collar or option transaction
or any other treasury transaction or any combination thereof
or any other transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and the amount of the Financial Indebtedness in
relation to any such transaction shall be calculated by
reference to the ▇▇▇▇-to-market valuation of such transaction
at the relevant time); and
(d) (without double counting) any guarantee or indemnity for any
of the items referred to in paragraphs (a) to (c) above.
"FINANCIAL QUARTER" has the meaning given to it in Clause 21 (Financial
Condition).
"FIRST LOAN AGREEMENT" means the loan agreement, in the agreed form,
entered into between NTL SPV Inc. as lender and the Principal Borrower
as borrower, setting out the terms on which the indebtedness owed by
the Principal Borrower in respect of the First Sale and Purchase
Agreement remains outstanding.
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"FIRST SALE AND PURCHASE AGREEMENT" means the share sale and purchase
agreement, in the agreed form, entered into in relation to the
Hivedown, between NTL SPV Inc. as seller and the Principal Borrower as
buyer of Cablecom (Zentralschweiz) AG, Cablecome (Bern) AG, Cablecom
Signal Olten AG and Kilchenmann Holding AG, the consideration payable
by the Principal Borrower being represented by the A Debt.
"GROUP" means the Shareholder and its subsidiaries from time to time.
"GROUP STRUCTURE CHART" means the group structure chart in agreed form:
(a) showing the NTL Inc. Holding Group;
(b) showing all members of the Group;
(c) showing any person in which any Group member has an interest
in the issued share capital or equivalent ownership interest
of such person;
(d) showing the jurisdiction of incorporation or establishment of
each person within paragraph (a), paragraph (b) or paragraph
(c) above;
(e) showing all Intra-Group Loans existing as at the Acquisition
Date and the Subordinated Funding;
(f) confirming that, on the Acquisition Date, all members of the
NTL Inc. Holding Group (other than the Parent) are
wholly-owned subsidiaries of the Parent; and
(g) confirming that all members of the Restricted Group are
wholly-owned subsidiaries of the Principal Borrower (or
specifying the percentage shareholdings of any members of the
Restricted Group which are not such wholly-owned
subsidiaries).
"GUARANTORS" means each of the Original Guarantors and each Additional
Guarantor, PROVIDED THAT such company has not been released from its
rights and obligations hereunder in accordance with Clause 36.3
(Resignation of a Guarantor).
"GUARANTOR ACCESSION MEMORANDUM" means a memorandum substantially in
the form set out in Schedule 7 (Form of Guarantor Accession
Memorandum).
"HEDGE COUNTERPARTY" means a Bank or an affiliate of a Bank who (a) is,
at the time it enters into a Hedging Agreement rated at least A by
Standard and Poor's Rating Corporation and A2 by ▇▇▇▇▇'▇ Investors
Services, Inc. and (b) has agreed to enter into a Hedging Agreement.
"HEDGING AGREEMENTS" means each of the agreements entered into or to be
entered into between certain Borrowers and Hedge Counterparties for the
purpose of hedging interest rate liabilities in accordance with Clause
22.26 (Hedging).
"HEDGING BANK" means a Bank who either is, or becomes, a Hedge
Counterparty or who has an affiliate which is, or becomes, a Hedge
Counterparty.
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"HEDGING LIABILITIES" means all present and future sums and actual or
contingent liabilities and obligations payable, owing, due or incurred
by any Borrower to any Hedge Counterparty pursuant to the terms of any
Hedging Agreement, as determined by the relevant Hedge Counterparty
(acting reasonably) and agreed by the Agent.
"HIVEDOWN" means, in respect of that part of the Cablecom Business
acquired by NTL SPV Inc. the transfer of such in accordance with the
structure chart and step plan set out in schedule 4 to the Accountants'
Letter, so that such part of the Cablecom Business is (at the end of
the series of transactions set out therein) owned by the Shareholder
and the Principal Borrower.
"INDEBTEDNESS FOR BORROWED MONEY" means any indebtedness for or in
respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(d) any amount raised pursuant to any issue of shares which are
expressed to be redeemable (other than shares redeemable after
30 September 2010);
(e) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with generally
accepted accounting principles in the relevant jurisdiction,
be treated as a finance or capital lease;
(f) the amount of any liability in respect of any advance or
deferred purchase agreement if the primary reason for entering
into such agreement is to raise finance;
(g) receivables sold or discounted (other than on a non-recourse
basis);
(h) any agreement or option to re-acquire an asset if the primary
reason for entering into such agreement or option is to raise
finance;
(i) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial
effect of a borrowing; and
(j) (without double counting) the amount of any liability in
respect of any guarantee or indemnity for any of the items
referred to in paragraphs (a) to (i) above.
"INFORMATION MEMORANDUM" means the document concerning the Cablecom
Business and the Parent which, at the request and on behalf of the
Parent, has been prepared in relation to this transaction, approved by
the Parent and distributed by the Arrangers to selected banks during
February 2000 (as the same may be updated on or before the Syndication
Date).
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15
"INITIAL MERGERS" means the mergers of the Principal Borrower with:
(a) Kilchenmann Holding AG after Kilchenmann Kabelfernsehen AG is
merged into it;
(b) Cablecom (Zentralschweiz) AG, Cablecom (Mittelland) AG,
Cablecom (Bern) AG, and Cablecom Signal Olten AG; and
(c) thereafter, with CC AG,
in each case (i) with the Principal Borrower being the surviving
entity, having all the rights and obligations which each of the above
merged entities and the Principal Borrower itself had immediately prior
to such mergers taking effect and (ii) pursuant to documentation, and
in accordance with any Swiss legal or procedural requirements, approved
or deemed applicable by the Agent's Swiss counsel.
"INITIAL SHARE PLEDGES" means the Swiss law pledges over the shares of
certain members of the Restricted Group (as agreed between the Agent
and the Principal Borrower), such pledges being granted in favour of
the Finance Parties as security for the obligations of the Obligors
under the Finance Documents and/or the Permitted Facilities Provider as
security for the obligations of any members of the Group under any
documentation relating to the Secured Permitted Facilities.
"INSTRUCTING GROUP" means:
(a) before any Advances have been made, a Bank or Banks whose
Commitments amount in aggregate to more than sixty-six and two
thirds per cent. of the Total Commitments; and
(b) thereafter, a Bank or Banks to whom in aggregate more than
sixty-six and two thirds per cent. of the Loan is (or,
immediately prior to its repayment, was then) owed.
"INTELLECTUAL PROPERTY" means all patents, trade marks, service marks,
designs, business names, copyrights, design rights, moral rights,
inventions, confidential information, knowhow and other intellectual
property rights and interests, whether registered or unregistered, and
the benefit of all licences, applications and rights to use such
intellectual property now or hereafter belonging to any member of the
Group.
"INTEREST PERIOD" means, save as otherwise provided herein:
(a) any of those periods mentioned in Clause 4.1 (Original Term
Advance Interest Periods) or Clause 11.4 (Term-Out Advance
Interest Periods); and
(b) in relation to an Unpaid Sum, any of those periods mentioned
in Clause 27.1 (Default Interest Periods).
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16
"INTRA-GROUP LOAN ASSIGNMENTS" means the assignment agreements entered
into by:
(a) the Principal Borrower, in respect of the Intra-Group Loan
owed to it by Cablecom Suisse Romande SA and Cablecom
Engineering SA following the completion of paragraph (a) of
the definition of the Reorganisation; and
(b) any Obligor, in respect of an Intra-Group Loan by such an
Obligor to another Obligor,
in each case in favour of the Agent (or the Finance Parties) as
security for the obligations of the Obligors under the Finance
Documents and/or the Permitted Facilities Provider as security for the
obligations of any members of the Group under any documentation
relating to the Secured Permitted Facilities.
"INTRA-GROUP LOANS" means any loan (a) between the Shareholder and
members of the Restricted Group and (b) between members of the
Restricted Group.
"KEY SITES" means the digital master headend sites located at
Zurich-▇▇▇▇▇▇▇▇, Winterthur and St. Gallen.
"LEGAL OPINIONS" means the legal opinions delivered to the Agent
pursuant to Clause 2.3 (Conditions Precedent), Clause 35.2 (Borrower
Conditions Precedent) or, as the case may be, Clause 36.2 (Guarantor
Conditions Precedent).
"LIBOR" means, in relation to any amount to be advanced to or owing by
an Obligor under the Finance Documents on which interest for a given
period is to accrue:
(a) the percentage rate per annum equal to the offered quotation
which appears on the page of the Telerate Screen which
displays the British Bankers Association Interest Settlement
Rate for Swiss Francs (being currently "3750") or the currency
of any Unpaid Sum for such period as of 11.00 a.m. on the
Quotation Date for such period or, if such page or such
service shall cease to be available, such other page or such
other service for the purpose of displaying the British
Bankers Association Interest Settlement Rate for Swiss Francs
(or the currency of such Unpaid Sum) as the Agent, after
consultation with the Banks and the Principal Borrower, shall
select; or
(b) if no quotation for Swiss Francs (or the currency of such
Unpaid Sum) and the relevant period is displayed under (a)
above and the Agent has not selected an alternative service on
which a quotation is displayed, the arithmetic mean (rounded
upwards to five decimal places) of the rates (as notified to
the Agent) at which each of the Reference Banks was offering
to prime banks in the London interbank market deposits in
Swiss Francs (or the currency of such Unpaid Sum) for such
period as of 11.00 a.m. on the Quotation Date for such period.
"LICENCES" means:
(a) telecommunication licences, under the Telecommunication Act;
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17
(b) broadcasting and transmission licences ("Weiterverbreitungs-
Konzessionen"), under the Radio and Television Act; and
(c) Telecommunication Act permits.
"LOAN" means, at any time, the aggregate of the Original Term Loan and
the Revolving Loan (or, after the Revolving Termination Date, the
Term-Out Loan).
"MANDATORY COST RATE" means the rate determined in accordance with
Schedule 10 (Mandatory Costs).
"MARGIN" means, for all Advances, the percentage rate per annum
determined in accordance with Clause 5.3 (Margin Ratchet) to Clause 5.5
(Default Margin).
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of
the Restricted Group taken as a whole or (b) the ability of an Obligor
to perform its material obligations under the Finance Documents to
which it is a party.
"MATERIAL COMMERCIAL CONTRACTS" means any agreements, contracts or
licences entered into or granted to any member of the Restricted Group
which are reasonably likely to be material to the business or prospects
of the Restricted Group taken as a whole.
"MAXIMUM PERMITTED INTRA-GROUP LOANS" has, in relation to an Obligor,
the meaning given to it in sub-clause 20.2.2 of Clause 20.2 (Quarterly
Statements).
"MORTGAGES" means the Swiss law mortgages, in the agreed form, over the
Key Sites, to be granted by certain Obligors in favour of the Finance
Parties as security for the obligations of the Obligors under the
Finance Documents and/or the Permitted Facilities Provider as security
for the obligations of any members of the Group under any documentation
relating to the Secured Permitted Facilities.
"NET AVERAGE REVENUE CONTRIBUTIONS" means, at any time:
(a) the aggregate of the Average Revenue Contributions of all
assets disposed of under paragraph (f) of the definition of
Permitted Disposals,
less
(b) the aggregate of the estimated Average Revenue Contributions
of all assets acquired by members of the Restricted Group
either in exchange for, or out of the proceeds of the disposal
of, assets disposed of under paragraph (f) of the definition
of Permitted Disposals (such estimated Average Revenue
Contributions to be reasonably agreed between the Principal
Borrower and the Agent on the basis of the revenues such
acquired assets could have reasonably been expected to have
generated for the two financial years of the Principal
Borrower immediately preceding the date of their acquisition,
had such assets
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18
been owned by the relevant member of the Restricted Group
throughout those two financial years).
"NOTICE OF DRAWDOWN" means a notice substantially in the form set out
in Schedule 4 (Notice of Drawdown).
"NOTICE PERIOD" means the period commencing ten Business Days before
the last day of the current Interest Period or Term of an existing
Advance and ending 10.00 a.m. three Business Days before the last day
of the current Interest Period or Term of an existing Advance or, as
the case may be, the period commencing ten Business Days before the
proposed date for the making of an Advance and ending 10.00 a.m. three
Business Days before the proposed date for the making of the Advance.
"NOTIFICATION TIME" means 5.30 p.m. on the day three Business Days
before the first day of an Interest Period or Term.
"NTL CV1" means Cable Connect Switzerland 1 C.V., a limited partnership
("Commanditaive Vennoolschap") established under Dutch law between NTL
SPV Inc. as a limited partner and NTL SPV LLC as a general partner.
"NTL HOLDINGS INC." means a newly incorporated company which, as part
of the acquisition by the Parent of the cable business of Cable and
Wireless Communications plc, it is proposed will acquire 100 per cent.
of the issued share capital of the Parent.
"NTL INC. GROUP" means the Parent or, after the acquisition of the
Parent by NTL Holdings Inc., NTL Holdings Inc. and each of the Parent's
or, as the case may be, NTL Holdings Inc.'s subsidiaries (other than
any member of the NTL Inc. Holding Group (other than the Parent) or the
Group).
"NTL INC. HOLDING GROUP" means the Parent (or, after the acquisition of
the Parent by NTL Holdings Inc., NTL Holdings Inc.) and the
Shareholder's other holding companies.
"NTL NOTES" means, to the extent such have been issued in either
domestic or international capital markets, the bonds, notes or similar
public debt instruments issued by members of the NTL Inc. Group or, as
the case may be, members of the NTL Inc. Holding Group (in each case
where such members of the NTL Inc. Group or NTL Inc. Holding Group are
incorporated in any state of the United States of America) and
outstanding at or at any time after the date of this Agreement.
"NTL SPV INC." means NTL Switzerland SPV, Inc., a newly incorporated
Delaware company, being a wholly owned subsidiary of the Parent.
"NTL SPV LLC" means NTL Switzerland Holdings SPV LLC, a newly formed
Delaware limited liability corporation, being a wholly owned subsidiary
of NTL SPV Inc.
"OBLIGORS" means the Borrowers and the Guarantors.
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19
"OPERATING COMPANIES" means the members of the Restricted Group named
in Part B of Schedule 1 (The Original Parties).
"ORIGINAL FINANCIAL STATEMENTS" means:
(a) in relation to the Cablecom Business, the audited pro-forma
combined financial statements of the companies which
constitute the Cablecom Business on the Acquisition Date, for
the financial year ended 31 December 1999 based on the
Vendor's audited consolidated financial statements for its
financial year ended 31 December 1999;
(b) in relation to each Obligor (other than the Shareholder), its
audited financial statements for its financial year ended 31
December 1998;
(c) in relation to each Obligor (other than the Shareholder), its
audited balance sheet as at 31 December 1999; and
(d) in relation to any Additional Obligor, its audited financial
statements delivered pursuant to Schedule 8 (Additional
Conditions Precedent).
"ORIGINAL OBLIGORS" means the Original Borrowers and the Original
Guarantors.
"ORIGINAL TERM ADVANCE" means an advance (as from time to time
consolidated, divided or reduced by repayment) made or to be made by
the Banks under the Original Term Facility.
"ORIGINAL TERM AVAILABILITY PERIOD" means, in relation to the Original
Term Facility, the period from and including the date hereof to and
including the earlier of (a) 31 October 2000 and (b) the first Business
Day on which the Available Term Commitment of each of the Banks is
zero.
"ORIGINAL TERM FACILITY" means the Swiss Franc term loan facility
granted to the Borrowers in this Agreement.
"ORIGINAL TERM LOAN" means, at any time, the aggregate principal amount
of outstanding Original Term Advances at such time.
"ORIGINAL TERM REPAYMENT DATE" means each of the dates specified in
Clause 10.1 (Original Term Loan Repayment Instalments), PROVIDED THAT
if such date is not a Business Day, it shall be deemed to be the next
succeeding Business Day.
"PARTICIPATING MEMBER STATE" means each member state of the European
Union which has adopted the euro as its lawful currency at the relevant
time.
"PERMITTED ACQUISITIONS" means any of the following:
(a) acquisitions of (or of any interests in) companies,
partnerships, consortia, joint ventures or other arrangements
made by the Shareholder or a newly incorporated subsidiary of
the Shareholder referred to in paragraph (b) below,
- 16 -
20
where the relevant company, partnership, consortium, joint
venture or other arrangement:
(i) engages in, or the business, licence, revenues or
assets of such a company, partnership, consortium,
joint venture or other arrangement relate to, the
operation of a telecommunications and/or cable and/or
television and/or telephone network or system or the
provision of such services; and
(ii) operates primarily within Switzerland, the European
Union or any other country in Europe;
(b) the purchase, subscription for, or other acquisition of any
shares by:
(i) the Shareholder in a newly incorporated company which
becomes a subsidiary of the Shareholder, where such
subsidiary's primary purpose is to make acquisitions
within paragraph (a) above; or
(ii) any member of the Restricted Group in a newly
incorporated Swiss company which becomes a subsidiary
of that member of the Restricted Group, where such
subsidiary's only activity is to make acquisitions
within paragraph (d) and/or paragraph (e) below;
(c) acquisitions comprising the purchase, subscription for, or
other acquisition of any new shares in:
(i) any Obligor by any other Obligor, where (a) such
acquiring Obligor is and remains the immediate
holding company of the Obligor issuing the new shares
and (b) such shares are made subject to a Share
Pledge; or
(ii) any member of the Restricted Group by another member
of the Restricted Group which is not an Obligor;
(d) acquisitions of (or of any interests in) (A) companies,
partnerships, consortia, joint ventures or other arrangements
or (B) businesses, licences, revenues or assets made by any
member of the Restricted Group, where:
(i) the aggregate consideration for such acquisitions
under this paragraph (d) does not exceed
CHF50,000,000;
(ii) the acquired company, partnership, consortium, joint
venture or other arrangement or the acquired
business, licence, revenues or asset (a) engages in
or, as the case may be, relates to the operation of a
telecommunications and/or cable and/or television
and/or telephone network or system or the provision
of such services and (b) primarily operates or, as
the case may be, is located within Switzerland; and
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21
(iii) the Financial Indebtedness of any acquired company
which becomes a member of the Restricted Group,
outstanding immediately after the acquisition,
comprises only Permitted Financial Indebtedness;
(e) acquisitions made by any member of the Restricted Group,
where:
(i) if such acquisition is an acquisition of a company,
partnership, consortium, joint venture or other
person, the acquired entity has, for its most recent
financial year, positive earnings before interest,
depreciation, amortisation and tax (calculated on the
same basis as EBITDA);
(ii) the consideration for such acquisition is financed
out of Subordinated Funding and/or Available Excess
Cash Flow;
(iii) the acquired company, partnership, consortium, joint
venture or other arrangement or the acquired
business, licence, revenues or asset (a) engages in
or, as the case may be, relates to the operation of a
telecommunications and/or cable and/or television
and/or telephone network or system or the provision
of such services and (b) primarily operates or, as
the case may be, is located within Switzerland; and
(iv) the Financial Indebtedness of any acquired company
which becomes a member of the Restricted Group,
outstanding immediately after the acquisition,
comprises only Permitted Financial Indebtedness;
(f) acquisitions comprising the acquisition of any assets,
revenues or, licences of, or the business or any interest
therein of:
(i) any member of the Restricted Group who is not an
Obligor by another member of the Restricted Group who
is not an Obligor; or
(ii) any Obligor by another Obligor, where the disposal of
such an asset, revenue, licence or business is a
Permitted Disposal under paragraph (e) of the
definition thereof; and
(g) acquisitions of any shares, assets, revenues or licences of,
or the business or any interest therein of, a member of the
Restricted Group by another member of the Restricted Group,
where such an acquisition is made to effect the Reorganisation
or an Additional Merger.
"PERMITTED DISPOSALS" means any disposal:
(a) made in the ordinary and usual course of business;
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22
(b) on arm's length commercial terms of an asset by a member of the
Restricted Group who is not an Obligor;
(c) for cash on arm's length commercial terms of any surplus or obsolete
assets no longer required for the efficient operation of the business
of the Restricted Group;
(d) of cash, where such a disposal is not otherwise prohibited by the
Finance Documents;
(e) by an Obligor to another Obligor, provided that:
(i) if the relevant assets are subject to an Encumbrance pursuant
to a Security Document, they remain so or become subject to a
similar Encumbrance in favour of the Finance Parties in the
hands of the acquiring Obligor; and
(ii) the acquiring Obligor is a Guarantor, and the Principal
Borrower demonstrates (to the reasonable satisfaction of the
Agent) that the freely distributable reserves of the acquiring
Obligor, immediately following such a disposal, will be at
least equal to the freely distributable reserves of the
disposing Obligor;
(f) on (A) arm's length commercial terms for cash consideration or (B) in
exchange for similar assets located in Switzerland (or, in the case of
a disposal by a member of the Restricted Group incorporated in Austria,
located in Austria) which the Agent (acting reasonably) determines to
be of a comparable or superior quality, provided that in each case:
(i) the Net Average Revenue Contributions at no time exceed 15 per
cent; and
(ii) the proceeds of any disposal under (A) of this paragraph (f)
are applied in accordance with Clause 13.2 (Mandatory
Prepayment from Asset Disposals);
(g) of an interest in real property by way of a lease or licence granted by
a member of the Restricted Group to another member of the Restricted
Group on arm's length commercial terms;
(h) by a member of the Restricted Group who is not an Obligor to another
member of the Restricted Group who is not an Obligor; and
(i) necessary to effect the Reorganisation or an Additional Merger.
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23
"PERMITTED DISTRIBUTIONS" means:
(a) the payment or declaration of any dividend, return on capital,
repayment of capital contributions or other distribution or payment in
respect of share capital by any member of the Restricted Group other
than:
(i) by the Principal Borrower and, prior to the Initial Mergers,
CC AG; or
(ii) by a member of the Restricted Group who is an Obligor to
another member of the Restricted Group who is not an Obligor;
and
(b) the payment or declaration of any dividend, return on capital,
repayment of capital contributions or other distribution or payment in
respect of share capital by the Principal Borrower, or the repayment of
principal or payment of interest on Subordinated Funding by the
Principal Borrower or any other member of the Restricted Group, in each
case where:
(i) no Event of Default is continuing; and
(ii) such payment, dividend, distribution or, as the case may be,
repayment is funded out of Available Excess Cash Flow.
"PERMITTED ENCUMBRANCE" means:
(a) any Encumbrance relating to the Existing Mortgages, to the extent such
Encumbrances relate only to the assets identified in Schedule 12
(Existing Mortgages);
(b) any Encumbrance over or affecting any asset acquired by a member of the
Restricted Group after the date hereof and subject to which such asset
is acquired, if:
(i) such Encumbrance was not created in contemplation of the
acquisition of such asset by a member of the Restricted Group;
and
(ii) the Financial Indebtedness secured by such Encumbrance at all
times falls within paragraph (k) of the definition of
Permitted Financial Indebtedness;
(c) any Encumbrance over or affecting any asset of any company which
becomes a member of the Restricted Group after the date hereof, where
such Encumbrance is created prior to the date on which such company
becomes a member of the Restricted Group, if:
(i) such Encumbrance was not created in contemplation of the
acquisition of such company; and
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24
(ii) the Financial Indebtedness secured by such Encumbrance at all
times falls within paragraph (k) of the definition of
Permitted Financial Indebtedness;
(d) any netting or set-off arrangement entered into by any member of the
Restricted Group in the normal course of its banking arrangements for
the purpose of netting its debit and credit balances;
(e) any right of set-off or any title transfer or retention of title
arrangement entered into by any member of the Restricted Group in the
normal course of its trading activities on the counterparty's standard
or usual terms (where such terms reasonably accord with the terms
generally adopted in the market to which such a trading activity
relates);
(f) any lien arising by operation of law or by a contract having a similar
effect and in each case arising or entered into in the normal course of
business, if such lien is discharged within thirty days of arising;
(g) any Encumbrance created pursuant to, arising under or evidenced by the
Security Documents;
(h) any Encumbrance created by any arrangements referred to in paragraph
(e) or paragraph (f) of the definition of Indebtedness for Borrowed
Money;
(i) any Encumbrance arising pursuant to an order of attachment, an
injunction restraining the disposal of assets or any similar legal
process in each case arising in connection with court proceedings being
diligently conducted by the relevant Obligor in good faith;
(j) any Encumbrance over cash deposited as security for the relevant
Obligor's obligations in respect of a performance bond, guarantee,
standby letter of credit or similar facility entered into by such an
Obligor in the ordinary course of business;
(k) any Encumbrance securing Permitted Financial Indebtedness within
paragraph (j) of the definition of Permitted Financial Indebtedness
(other than (save for the assignment of receivables granted by Cablecom
(Bern) AG and referred to in sub-clause 22.11.4 of Clause 22.11
(Security)) an Encumbrance by way of assignment over receivables
assigned by the Receivables and Receivables Account Assignment); and
(l) any Encumbrance over receivables (other than an Encumbrance by way of
an assignment over receivables assigned by the Receivables and
Receivables Account Assignment) entered into by any member of the
Restricted Group in the normal course of its banking arrangements in
favour of any Swiss bank with whom it maintains accounts PROVIDED THAT
(a) such Encumbrance is in existence on the date of this Agreement, (b)
that Encumbrance does not secure any outstanding indebtedness of the
relevant member of the Restricted Group
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25
to the relevant bank, (c) the relevant member of the Group is entitled
to have such Encumbrance discharged by the relevant bank and (d) such
Encumbrance is discharged within 20 Business Days of the date of this
Agreement.
"PERMITTED FACILITIES" means the Secured Permitted Facilities and any other bank
facilities made available to members of the Group (on normal commercial terms)
PROVIDED THAT the aggregate indebtedness of all members of the Group in respect
of the Secured Permitted Facilities and such other bank facilities at no time
exceeds CHF40,000,000 (or its equivalent).
"PERMITTED FACILITIES PROVIDER" means the financial institution (if any) which
has become the Permitted Facilities Provider in accordance with Clause 37
(Permitted Facilities Provider).
"PERMITTED FINANCIAL INDEBTEDNESS" means any Financial Indebtedness:
(a) arising under or permitted pursuant to the Finance Documents;
(b) in respect of the Subordinated NTL ▇▇▇ ▇▇▇▇;
(c) in respect of any Additional Subordinated Debt;
(d) arising under Permitted Treasury Transactions;
(e) of the Shareholder, where:
(i) such Financial Indebtedness does not oblige or permit the
Shareholder to make any interest payments at any time prior to
the date five years after the date hereof (any interest
accruing during such a five year period being capitalised with
the principal amount outstanding);
(ii) such Financial Indebtedness does not have any scheduled
repayments or other amortisations prior to 30 September 2010
and has a final maturity date on or after 30 September 2010;
and
(iii) the proceeds of such Financial Indebtedness are applied by the
Shareholder towards Subordinated Funding;
(f) arising under Permitted Loans and Guarantees;
(g) secured by the Existing Mortgages PROVIDED THAT the amount of Financial
Indebtedness secured by each Existing Mortgage does not exceed the
relevant amount set out in Schedule 12 (Existing Mortgages);
(h) falling within paragraph (e) of the definition of Indebtedness for
Borrowed Money ("FINANCE LEASE DEBT") which, when aggregated with any
other Finance Lease Debt incurred or by each member of the Restricted
Group does not exceed CHF5,000,000 (or its equivalent);
- 22 -
26
(i) arising under Permitted Facilities;
(j) in respect of Existing Indebtedness PROVIDED THAT such Existing
Indebtedness is refinanced by an Original Term Advance within 30 days
of the date of this Agreement; and
(k) not falling within paragraphs (a) to (j) above PROVIDED THAT the
aggregate amount does not exceed CHF10,000,000 (or its equivalent) .
"PERMITTED JOINT VENTURE" means either the disposal of shares in the Shareholder
or any member of the NTL Inc. Holding Group to, or the issue of further shares
by the Shareholder or any member of the NTL Inc. Holding Group to, a company or
a subsidiary of a company:
(a) which engages primarily in the operation of a telecommunications
network; and
(b) rated at least A by Standard and Poor's Rating Corporation and A2 by
▇▇▇▇▇'▇ Investors Services, Inc.
"PERMITTED LOANS AND GUARANTEES" means any of the following:
(a) trade credit or indemnities granted in the ordinary course of business
on usual and customary terms;
(b) Intra-Group Loans made by a member of the Restricted Group who is not
an Obligor to any other member of the Restricted Group who is not an
Obligor;
(c) Intra-Group Loans made by a member of the Restricted Group who is not
an Obligor to a member of the Restricted Group who is an Obligor, where
the rights of the lending member of the Restricted Group have been (a)
subordinated to the rights of the Finance Parties under the Finance
Documents and (b) assigned to the Agent (or the Finance Parties) as
security for the obligations of the Obligors under the Finance
Documents and to the Permitted Facilities Provider as security for the
obligations of any members of the Group under any documentation
relating to the Secured Permitted Facilities, in each case by
agreements or deeds approved by the Agent;
(d) Intra-Group Loans made by one Obligor to another Obligor, where:
(i) in respect of each relevant borrower Obligor, the aggregate
amount of such Intra-Group Loans to that Obligor which are
outstanding, at the time of the delivery by the Principal
Borrower of a certificate in respect of that borrower Obligor
in accordance with sub-clause 20.2.2 of Clause 20.2 (Quarterly
Statements), do not exceed the Maximum Intra-Group Loans for
that borrower Obligor set out in such a certificate or are
(within 10 Business Days of the delivery of such certificate)
reduced to an amount no greater than
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27
the Maximum Intra-Group Loans for that Obligor as set out in
such a certificate;
(ii) the rights of the lending Obligor under such an Intra-Group
Loan have been assigned to the Agent (or the Finance Parties)
as security for the obligations of the Obligors under the
Finance Documents and to the Permitted Facilities Provider as
security for the obligations of any members of the Group under
any documentation relating to the Secured Permitted Facilities
by an agreement or deed approved by the Agent; and
(iii) if such an Intra-Group Loan is made by the Shareholder it
constitutes either Subordinated NTL CV1 Debt or Additional
Subordinated Debt;
(e) the Intra-Group Loans owed by Cablecom Suisse Romande SA and Cablecom
Engineering AG to the Principal Borrower following the completion of
paragraph (a) of the definition of the Reorganisation;
(f) loans made to employees of any members of the Restricted Group, to a
maximum aggregate amount of CHF100,000;
(g) Intra-Group Loans existing at the date hereof which do not fall within
paragraph (d) above and which have been disclosed in the Disclosure
Letter; and
(h) any other Intra-Group Loans approved by the Agent (acting on the
instructions of an Instructing Group, acting reasonably).
"PERMITTED TREASURY TRANSACTIONS" means:
(a) the Treasury Transactions entered into in accordance with Clause 22.26
(Hedging); and
(b) any other foreign exchange transactions for spot or forward delivery
entered into in the ordinary course of business (and not for investment
or speculative purposes) to hedge currency exposures incurred by
members of the Restricted Group.
"POTENTIAL EVENT OF DEFAULT" means any event which would become (with the
passage of time, the giving of notice, the making of any determination hereunder
or any combination thereof) an Event of Default.
"PROPORTION" means, in relation to a Bank:
(a) whilst no Advances are outstanding, the proportion borne by its
Commitment to the Total Commitments (or, if the Total Commitments are
then zero, by its Commitment to the Total Commitments immediately prior
to their reduction to zero); or
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(b) whilst at least one Advance is outstanding, the proportion borne by its
share of the Loan to the Loan.
"QUALIFYING LENDER" means a financial institution which qualifies as a bank
pursuant to the laws of its jurisdiction of incorporation and which carries on a
genuine banking activity as per explanatory note of the Swiss Federal Tax
Administration No. S-02.128 (1.2000).
"QUOTATION DATE" means, in relation to any period for which an interest rate is
to be determined under the Finance Documents, the day on which quotations would
ordinarily be given by prime banks in the London Interbank Market for deposits
in Swiss Francs (or the currency of any Unpaid Sum) for delivery on the first
day of that period, PROVIDED THAT, if, for any such period, quotations would
ordinarily be given on more than one date, the Quotation Date for that period
shall be the last of those dates.
"RADIO AND TELEVISION ACT" means the Swiss Radio and Television Act
("Bundesgesetz uber Radio und Fernsehen", "RTVB") of 21 June 1991 and all of the
ordinances implementing such.
"RECEIVABLE ACCOUNTS" means, with respect of each member of the Restricted
Group, the bank account(s) into which all the receivables (if any) due to such
member of the Restricted Group are paid and such other bank accounts identified
in the Receivables and Receivables Accounts Assignment.
"RECEIVABLES AND RECEIVABLES ACCOUNTS ASSIGNMENT" means the assignment
agreement(s) entered into by the Operating Companies, assigning each Operating
Company's rights to all current and future receivables due to it from its trade
debtors or subscribers, all current and future monetary claims due or owing to
it and its rights in respect of its Receivable Accounts to the Agent (on behalf
of the Finance Parties) as security for the obligations of the Obligors under
the Finance Documents and/or to the Permitted Facilities Provider as security
for the obligations of any members of the Group under any documentation relating
to the Secured Permitted Facilities.
"REFERENCE BANKS" means the principal London offices of Bank of America, N.A.,
Paribas and The Chase Manhattan Bank or such other bank or banks as may from
time to time be agreed between the Principal Borrower and the Agent acting on
the instructions of an Instructing Group.
"RELEVANT PERIOD" has the meaning given to it in Clause 21 (Financial
Condition).
"REORGANISATION" means:
(a) the transfers, for deferred consideration, by the Principal Borrower of
the entire issued share capital of (i) Coditel SA to Cablecom Suisse
Romande SA and (ii) Cablecom Media AG to Cablecom Engineering SA;
(b) the Initial Mergers; and
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(c) thereafter, the conversion of the Conversion Subsidiaries from joint
stock companies ("AG"s) to limited liability companies ("GmbH"s) and
the granting of the Reorganisation Share Pledges,
in each case in accordance with the Reorganisation Summary.
"REORGANISATION SHARE PLEDGES" means:
(a) an Austrian law pledge over the shares in Cablecom KabelKommunication
GmbH; and
(b) Swiss law pledges in the agreed form over the shares in the Conversion
Subsidiaries,
such pledges being granted in favour of the Finance Parties and the Permitted
Facilities Provider as security for the obligations of the Obligors under the
Finance Documents and the documentation relating to the Secured Permitted
Facilities.
"REORGANISATION SUMMARY" means the step plan, in the agreed form, setting out
the consents, authorisations and approvals and steps to be taken by the
Shareholder and certain members of the Restricted Group to implement the
Reorganisation.
"REPAYMENT DATE" means, in relation to any Revolving Advance, the last day of
the Term thereof.
"REPEATED REPRESENTATIONS" means each of the representations set out in Clause
19.1 (Status) to Clause 19.6 (Audited Financial Statements), Clause 19.8 (No
Material Adverse Change), Clause 19.11 (Legal and Beneficial Owner), sub-clause
19.16.1 of Clause 19.16 (No NTL Note Defaults), Clause 19.21 (No Material
Defaults), Clause 19.23 (Budgets), Clause 19.24 (Other Information) (excluding
sub-clause 19.24.1 thereof), Clause 19.27 (Encumbrances and Financial
Indebtedness) and Clause 19.30 (Consents and Approvals) (excluding sub-clause
19.30.1 thereof) to Clause 19.33 (Good Title to Assets).
"RESERVATIONS" means:
(a) the principle that equitable remedies are remedies which may be granted
or refused at the discretion of the court, the limitation of
enforcement by laws relating to bankruptcy, insolvency, liquidation,
reorganisation, court schemes, moratoria, administration and other laws
generally affecting the rights of creditors, the time barring of claims
under any applicable law, the possibility that an undertaking to assume
liability for or to indemnify against nonpayment of any stamp duty or
other tax may be void, defences of set-off or counterclaim and similar
principles;
(b) anything analogous to any of the matters set out in paragraph (a) above
under any laws of any applicable jurisdiction; and
(c) anything disclosed by any of the Legal Opinions.
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"RESIGNATION NOTICE" means a notice substantially in the form set out in
Schedule 9 (Form of Resignation Notice).
"RESTRICTED GROUP" means the Principal Borrower, the Principal Borrower's
subsidiaries from time to time and, prior to the completion of the Initial
Mergers, CC AG.
"RESTRICTED OBLIGATIONS" means any obligations of a Swiss Obligor under (a)
Clause 24 (Guarantee and Indemnity) and/or the Security Documents and (b) Clause
14 (Taxes), in each case in respect of:
(a) a holding company of that Swiss Obligor; and/or
(b) a subsidiary of a holding company of that Swiss Obligor, who is not
that Swiss Obligor or a subsidiary of that Swiss Obligor.
"REVOLVING ADVANCE" means an advance made or to be made by the Banks under the
Revolving Facility.
"REVOLVING COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set opposite its name under the heading
"REVOLVING COMMITMENT" in Part C of Schedule 1 (The Original Parties).
"REVOLVING FACILITY" means the Swiss Franc revolving loan facility granted to
the Borrowers in this Agreement.
"REVOLVING LOAN" means, at any time, the aggregate principal amount of the
outstanding Revolving Advances at such time.
"REVOLVING TERMINATION DATE" means 30 June 2003.
"ROLLOVER ADVANCE" means a Revolving Advance which is used to refinance a
maturing Revolving Advance and which is the same amount as such maturing
Revolving Advance and is to be drawn on the day such maturing Revolving Advance
is to be repaid.
"SECOND LOAN AGREEMENT" means the loan agreement, in the agreed form, entered
into between NTL SPV Inc. as lender and BV1 as borrower, setting out the terms
on which the indebtedness owed by BV1 in respect of the Second Sale and Purchase
Agreement remains outstanding.
"SECOND SALE AND PURCHASE AGREEMENT" means the share sale and purchase
agreement, in the agreed form, entered into in relation to the Hivedown, between
NTL SPV Inc. as seller and BV1 as buyer of part of NTL SPV Inc.'s interest in CC
AG and its entire interest in the Principal Borrower, the consideration payable
by BV1 being represented by the B Debt.
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"SECURED PERMITTED FACILITIES" means any bank facilities (if any) made available
by the Permitted Facilities Provider to members of the Restricted Group pursuant
to documentation in the agreed form.
"SECURITY" means the security from time to time constituted by or pursuant to
the Security Documents and the guarantees provided hereunder.
"SECURITY DOCUMENTS" means each of the following documents in agreed form
delivered to the Agent in accordance with either Clause 2.3 (Conditions
Precedent) or Clause 22.30 (The Reorganisation and Mortgages):
(a) the Share Pledges;
(b) the Receivables and Receivables Accounts Assignment;
(c) the Subordinated NTL CV1 Debt Pledge;
(d) the Acquisition Agreement Assignment;
(e) the Mortgages; and
(f) the Intra-Group Loan Assignments,
together with any other document entered into by any member of the Group
creating or evidencing an Encumbrance granted in favour of the Agent or, as the
case may be, the Finance Parties for all or any part of the obligations of the
Obligors or any of them under any of the Finance Documents and/or granted in
favour of the Permitted Facilities Provider for all or any part of the
obligations of any members of the Group under any documentation relating to the
Secured Permitted Facilities.
"SECURITY PARTIES" means the Finance Parties and the Permitted Facilities
Provider.
"SECURITY PROCEEDS" means all receipts or recoveries by the Agent (or by any of
the Finance Parties or by the Permitted Facilities Provider) pursuant to, or
upon enforcement of, the Security and all other monies which are by the terms of
any of the Finance Documents to be applied in accordance with Clause 30.7
(Application of Security Proceeds), after deducting (to the extent not already
deducted or retained prior to such receipt or recovery by the Agent or, as the
case may be, any other Security Party):
(a) all sums which are by law or contract payable to any receiver of the
assets subject to the Security;
(b) all sums which the Agent is required by the terms of any of the
Security Documents to pay to any other person before distributing any
such receipts or recoveries to any of the Security Parties and/or
discharging any of the obligations secured by the Security Documents;
and
(c) all sums which the Agent is by law required to pay to any person in
priority to the Security Parties.
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"SENIOR DEBT" has the meaning given to it in Clause 21 (Financial Condition).
"SHARE PLEDGES" means the Initial Share Pledges and, following the
Reorganisation, the Reorganisation Share Pledges.
"SUBORDINATED NTL CV1 DEBT" means the indebtedness owed by the Principal
Borrower to NTL CV1 in respect of the A Debt and the C Debt, such indebtedness
being subordinated by the Subordination Deed and pledged by the Subordinated NTL
CV1 Debt Pledge.
"SUBORDINATED NTL CV1 DEBT PLEDGE" means the pledge agreement in the agreed form
between NTL SPV LLC (as the general partner of NTL CV1) and the Agent (on behalf
of the Finance Parties), pursuant to which NTL CV1 pledges its rights in respect
of the Subordinated NTL CV1 Debt to the Finance Parties as security for the
obligations of the Obligors under the Finance Documents.
"SUBORDINATED FUNDING" means:
(a) the subscription by the Shareholder or any member of the NTL Inc.
Holding Group, for new equity capital of either the Principal Borrower
or, prior to the completion of the Initial Mergers, CC AG;
(b) the Subordinated NTL ▇▇▇ ▇▇▇▇; and
(c) any Additional Subordinated Debt.
"SUBORDINATION DEED" means the subordination deed in the agreed form between the
Agent (for itself and for and on behalf of the other Finance Parties) and NTL
SPV LLC (as the general partner of NTL CV1), pursuant to which the Subordinated
NTL CV1 Debt is subordinated to the Principal Borrower's obligations under the
Finance Documents and any documentation relating to the Secured Permitted
Facilities.
"SWISS OBLIGOR" means an Obligor incorporated under the laws of Switzerland.
"SYNDICATION DATE" means the earlier of (i) the day specified by the Arrangers,
after having given five Business Days' prior notice to the Shareholder, as the
day on which primary syndication of the Facilities is completed and (ii) 30 June
2000.
"TELECOMMUNICATION ACT" means the Swiss Telecommunications Act
("Fernmeldegesetz FMG") of 30 April 1997, together with all of the ordinances
implementing such.
"TERM" means, save as otherwise provided herein, in relation to any Revolving
Advance, the period for which such Revolving Advance is borrowed, as specified
in the Notice of Drawdown relating thereto.
"TERM ADVANCE" means an Original Term Advance or a Term-Out Advance.
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"TERM COMMITMENT" means, in relation to a Bank at any time and save as otherwise
provided herein, the amount set opposite its name under the heading "TERM
COMMITMENT" in Part C of Schedule 1 (The Original Parties).
"TERM FACILITIES" means the Original Term Facility and the Term-Out Facility.
"TERM-OUT ADVANCE" means an advance (as from time to time reduced by repayment)
under the Term-Out Facility arising from the conversion of Revolving Advances
outstanding on the Revolving Termination Date.
"TERM-OUT FACILITY" means the Revolving Facility as converted into a Swiss Franc
term loan facility in accordance with Clause 11 (Repayment of the Revolving
Facility and Term-Out Option).
"TERM-OUT LOAN" means, at any time, the aggregate principal amount of
outstanding Term-Out Advances at such time.
"TERM-OUT REPAYMENT DATE" means each of the dates specified in Clause 11.10
(Term-Out Loan Repayment Instalments) PROVIDED THAT if such date is not a
Business Day it shall be deemed to be the next succeeding Business Day.
"THIRD LOAN AGREEMENT" means the loan agreement, in the agreed form, entered
into between BV1 as lender and the Principal Borrower as borrower, setting out
the terms on which the indebtedness owed by the Principal Borrower in respect of
the Third Sale and Purchase Agreement remains outstanding.
"THIRD SALE AND PURCHASE AGREEMENT" means the share sale and purchase agreement,
in the agreed form, entered into in relation to the Hivedown, between BV1 as
seller and the Principal Borrower as buyer of Cablecom (Mittelland) AG, the
consideration payable by the Principal Borrower being represented by the C Debt.
"TOTAL COMMITMENTS" means, at any time, the aggregate of the Banks'
Commitments.
"TRANSFER CERTIFICATE" means a certificate substantially in the form set out in
Schedule 2 (Form of Transfer Certificate) or in such other form as may be agreed
between the Principal Borrower and the Agent signed by a Bank and a Transferee
under which:
(a) such Bank seeks to procure the transfer to such Transferee of all or a
part of such Bank's rights, benefits and obligations under the Finance
Documents upon and subject to the terms and conditions set out in
Clause 34.3 (Assignments and Transfers by Banks); and
(b) such Transferee undertakes to perform the obligations it will assume as
a result of delivery of such certificate to the Agent as contemplated
in Clause 34.5 (Transfers by Banks).
"TRANSFER DATE" means, in relation to any Transfer Certificate, the date for the
making of the transfer as specified in such Transfer Certificate.
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"TRANSFEREE" means a person to which a Bank seeks to transfer by
novation all or part of such Bank's rights, benefits and obligations
under the Finance Documents.
"TREASURY TRANSACTION" means any currency or interest purchase, cap or
collar agreement, forward rate agreements, interest rate or currency
future or option contract, foreign exchange or currency purchase or
sale agreement, interest rate swap, currency swap or combined interest
rate and currency swap agreement and any other similar agreement.
"UNPAID SUM" means the unpaid balance of any of the sums referred to in
Clause 27.1 (Default Interest Periods).
"VENDOR" means Cablecom Holding AG.
1.2 INTERPRETATION Any reference in this Agreement to:
the "AGENT", an "ARRANGER", any "HEDGE COUNTERPARTY", the "PERMITTED
FACILITIES PROVIDER" or any "BANK" shall be construed so as to include
it and any subsequent successors and permitted transferees in
accordance with their respective interests;
an "AFFILIATE" of a person shall be construed as a reference to a
subsidiary of that person or a holding company of that person or any
other subsidiary or holding company of that holding company;
"AGREED FORM" in relation to any document means a form which is
initialled by each of the Agent and the Principal Borrower for the
purposes of identification (as such form may be amended from time to
time by agreement between such parties) or a document executed on or
before the Acquisition Date by the Principal Borrower and the Agent or,
if not so executed or initialled, is in form and substance reasonably
satisfactory to the Agent;
"ASSETS" includes present and future properties, revenues and rights of
every description;
"CONTINUING", in relation to an Event of Default, shall be construed as
a reference to an Event of Default which has not been waived in writing
or remedied and, in relation to a Potential Event of Default, one which
has not been remedied within the relevant grace period or waived in
accordance with the terms hereof;
"DISPOSAL" includes any sale, lease, transfer or other disposal;
the "EQUIVALENT" on any date in one currency (the "FIRST CURRENCY") of
an amount denominated in another currency (the "SECOND CURRENCY") is a
reference to the amount of the first currency which could be purchased
with the amount of the second currency at the spot rate of exchange
quoted by the Agent at or about 11.00 a.m. on such date for the
purchase of the first currency with the second currency;
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a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned company or
corporation is a subsidiary;
"INDEBTEDNESS" shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
a "LAW" shall be construed as any law (including common or customary law),
statute, constitution, decree, judgment, treaty, regulation, directive, bye-law,
order or any other legislative measure of any government, supranational, local
government, statutory or regulatory body or court;
a "MONTH" is a reference to a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next succeeding calendar
month save that:
(a) if any such numerically corresponding day is not a Business Day, such
period shall end on the immediately succeeding Business Day to occur in
that next succeeding calendar month or, if none, it shall end on the
immediately preceding Business Day; and
(b) if there is no numerically corresponding day in that next succeeding
calendar month, that period shall end on the last Business Day in that
next succeeding calendar month,
(and references to "MONTHS" shall be construed accordingly);
a "PERSON" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or more of
the foregoing;
"REPAY" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "PREPAY" (or, as the case may be, the
corresponding derivative form thereof) and vice versa;
a "SUBSIDIARY" of a company or corporation shall be construed as a reference to
any company or corporation:
(a) which is controlled, directly or indirectly, by the first-mentioned
company or corporation;
(b) more than half the issued share capital of which is beneficially owned,
directly or indirectly, by the first-mentioned company or corporation;
or
(c) which is a subsidiary of another subsidiary of the first-mentioned
company or corporation
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and, for these purposes, a company or corporation shall be treated as
being controlled by another if that other company or corporation is
able to direct its affairs and/or to control the composition of its
board of directors or equivalent body;
a "SUCCESSOR" shall be construed so as to include an assignee or
successor in title of such party and any person who under the laws of
its jurisdiction of incorporation or domicile has assumed the rights
and obligations of such party under this Agreement or to which, under
such laws, such rights and obligations have been transferred;
"TAX" shall be construed so as to include any tax, levy, impost, duty
or other charge or withholding of a similar nature (including any
penalty or interest payable in connection with any failure to pay or
any delay in paying any of the same);
"VAT" shall be construed as a reference to value added tax including
any similar tax which may be imposed in place thereof from time to
time;
a "WHOLLY-OWNED SUBSIDIARY" of a company or corporation shall be
construed as a reference to any company or corporation which has no
other members except that other company or corporation and that other
company's or corporation's wholly-owned subsidiaries or persons acting
on behalf of that other company or corporation or its wholly-owned
subsidiaries; and
the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a company or
corporation shall be construed so as to include any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company or corporation is incorporated or any jurisdiction in which
such company or corporation carries on business including the seeking
of liquidation, winding-up, reorganisation, dissolution,
administration, arrangement, adjustment, protection or relief of
debtors.
1.3 CURRENCY SYMBOLS
1.3.1 "CHF" and "SWISS FRANCS" denote lawful currency of
Switzerland.
1.3.2 "EURO" means the single currency of the European Union as
constituted by the treaty on European Union and as referred to
in EMU Legislation and "EURO UNIT" means the currency unit of
the euro as defined in the EMU Legislation.
1.4 AGREEMENTS AND STATUTES Any reference in this Agreement to:
1.4.1 this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may
be, such other agreement or document as the same may have
been, or may from time to time be, amended, varied, novated or
supplemented; and
1.4.2 a statute or treaty shall be construed as a reference to such
statute or treaty as the same may have been, or may from time
to time be, amended or, in the case of a statute, re-enacted.
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1.5 HEADINGS
Clause and Schedule headings are for ease of reference only.
1.6 TIME
Any reference in this Agreement to a time of day shall, unless a
contrary indication appears, be a reference to London time.
1.7 THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Agreement.
2. THE FACILITIES
2.1 GRANT OF THE FACILITIES
The ▇▇▇▇▇ ▇▇▇▇▇ to the Borrowers, upon the terms and subject to the
conditions hereof:
2.1.1 a Swiss Franc term loan facility in an aggregate amount of
CHF2,700,000,000; and
2.1.2 a Swiss Franc revolving loan facility in an aggregate amount
of CHF1,400,000,000 (such facility being convertible into the
Term-Out Facility).
2.2 PURPOSE AND APPLICATION
The Facilities are intended for the following purposes:
2.2.1 the Original Term Facility is intended (a) to finance the
acquisition by the Principal Borrower of that part of the
Cablecom Business not acquired by NTL SPV Inc. and transferred
to the Shareholder and the Principal Borrower pursuant to the
Hivedown, (b) to refinance the existing indebtedness (other
than Permitted Financial Indebtedness) of the Borrowers and
(c) to finance, in an amount of up to CHF30,000,000, working
capital of the Borrowers;
2.2.2 the Revolving Facility is intended to finance operating
expenses, working capital and other capital expenditure of the
Borrowers and for the Borrowers' general corporate financing
requirements; and
2.2.3 the Term-Out Facility is intended to refinance Revolving
Advances outstanding on the Revolving Termination Date,
and, accordingly, each Borrower shall apply all amounts raised by it
hereunder in or towards satisfaction of the consideration for such
acquisition, refinancings, operating expenses, working capital
requirements, capital expenditure or (as the case may be) its general
corporate financing requirements and none of the Finance Parties shall
be obliged to concern themselves with such application.
2.3 CONDITIONS PRECEDENT
Save as the Banks may otherwise agree, none of the Borrowers may
deliver any Notice of Drawdown unless the Agent has confirmed to the
Principal Borrower and the Banks
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that it has received all of the documents and other evidence listed in
Schedule 3 (Conditions Precedent) and that each is, in form and
substance, satisfactory to the Agent. The Agent shall notify the
Principal Borrower and the Banks promptly upon being so satisfied.
2.4 BANKS' OBLIGATIONS SEVERAL
The obligations of each Bank are several and the failure by a Bank to
perform its obligations hereunder shall not affect the obligations of
an Obligor towards any other party hereto nor shall any other party be
liable for the failure by such Bank to perform its obligations
hereunder.
2.5 BANKS' RIGHTS SEVERAL
The rights of each Bank are several and any debt arising hereunder at
any time from an Obligor to any of the other parties hereto shall be a
separate and independent debt. Each such party shall be entitled to
protect and enforce its individual rights arising out of this Agreement
independently of any other party (so that it shall not be necessary for
any party hereto to be joined as an additional party in any proceedings
for this purpose).
3. UTILISATION OF THE ORIGINAL TERM FACILITY
3.1 DRAWDOWN CONDITIONS FOR ORIGINAL TERM ADVANCES
An Original Term Advance will be made by the Banks to a Borrower if:
3.1.1 during the Notice Period, or such other period as the Agent
(acting on the instructions of all of the Banks) may agree,
the Agent has received a completed Notice of Drawdown from
such Borrower;
3.1.2 the proposed date for the making of such Original Term Advance
is a Business Day within the Original Term Availability
Period;
3.1.3 the proposed amount of such Original Term Advance is (a) (if
less than the Available Term Facility) an amount equal to or
greater than CHF50,000,000 (or such lesser amount as the
Principal Borrower and the Agent may agree in respect of an
Original Term Advance to be utilised to refinance Existing
Indebtedness) or (b) equal to the amount of the Available Term
Facility;
3.1.4 excluding Original Term Advances utilised to refinance
Existing Indebtedness (the maximum number of which shall be
agreed between the Principal Borrower and the Agent), there
would not, immediately after the making of such Original Term
Advance, be more than four Original Term Advances outstanding;
3.1.5 neither of the events mentioned in sub-clauses 8.1.1 and 8.1.2
of Clause 8.1 (Market Disruption) shall have occurred; and
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3.1.6 on and as of the proposed date for the making of such Original
Term Advance:
(a) in the case of Original Term Advances made on the
Acquisition Date, (i) no Acquisition Event of Default
or Acquisition Potential Event of Default is
continuing and (ii) the Acquisition Repeated
Representations are true in all material respects; or
(b) in all other cases, (i) no Event of Default or
Potential Event of Default is continuing and (ii) the
Repeated Representations are true in all material
respects.
3.2 EACH BANK'S PARTICIPATION IN ORIGINAL TERM ADVANCES
Each Bank will participate through its Facility Office in each Original
Term Advance made pursuant to Clause 3.1 (Drawdown Conditions for
Original Term Advances) in the proportion borne by its Available Term
Commitment to the Available Term Facility immediately prior to the
making of that Original Term Advance.
3.3 REDUCTION OF AVAILABLE TERM COMMITMENT
If a Bank's Available Term Commitment is reduced in accordance with the
terms hereof after the Agent has received the Notice of Drawdown for an
Original Term Advance and such reduction was not taken into account in
the Available Term Facility, then the amount of that Original Term
Advance shall be reduced accordingly.
4. INTEREST PERIODS FOR ORIGINAL TERM ADVANCES
4.1 ORIGINAL TERM ADVANCE INTEREST PERIODS
The period for which an Original Term Advance is outstanding shall be
divided into successive periods each of which (other than the first,
which shall begin on the day such Original Term Advance is made) shall
start on the last day of the preceding such period.
4.2 ORIGINAL TERM ADVANCE INTEREST PERIOD DURATION
The duration of each Interest Period in respect of an Original Term
Advance shall, save as otherwise provided herein, be one, two, three or
six months or such other period as the Agent (acting on the
instructions of all of the Banks) may agree, in each case as the
Borrower to which such Original Term Advance is made may during the
Notice Period, or such other period as the Agent may agree, by written
notice to the Agent select (or, as the case may be, request and agree),
PROVIDED THAT:
4.2.1 if such Borrower fails to give such notice of its selection in
relation to an Interest Period, the duration of that Interest
Period shall, subject to subclauses 4.2.2 , 4.2.3 and 4.2.4,
be three months;
4.2.2 any Interest Period in respect of an Original Term Advance
which begins at the same time as any other Interest Period in
respect of an Original Term Advance borrowed by the same
Borrower shall end at the same time as that other Interest
Period;
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4.2.3 any Interest Period which would otherwise end during the month
preceding, or extend beyond, an Original Term Repayment Date
shall, if necessary to ensure that sufficient Original Term
Advances mature on that Original Term Repayment Date to allow
the relevant scheduled repayment of the Original Term Loan to
be made, be of such duration that it shall end on that
Original Term Repayment Date; and
4.2.4 prior to the Syndication Date, Interest Periods shall be one
month or, if less, such duration necessary to end on the
Syndication Date or such other period as the Arrangers and the
Principal Borrower may agree.
4.3 CONSOLIDATION OF ORIGINAL TERM ADVANCES
If two Interest Periods relating to Original Term Advances end at the
same time and such Original Term Advances have been made to the same
Borrower then, on the last day of those Interest Periods, the Original
Term Advances to which they relate shall be consolidated into and
treated as a single Original Term Advance.
4.4 DIVISION OF ORIGINAL TERM ADVANCES
The Borrower to which an Original Term Advance is made may, by not less
than five Business Days' prior written notice to the Agent, direct that
such Original Term Advance shall, at the beginning of any Interest
Period relating thereto, be divided into (and thereafter, save as
otherwise provided herein, treated in all respects as) two or more
Original Term Advances in such amounts (in aggregate, equalling the
amount of the Original Term Advance being so divided) as shall be
specified by such Borrower in such notice, PROVIDED THAT such Borrower
shall not be entitled to make such a direction if:
4.4.1 as a result of so doing, there would, excluding Original Term
Advances utilised to refinance Existing Indebtedness, be more
than four outstanding Original Term Advances; or
4.4.2 any Original Term Advance thereby coming into existence would
be of an amount less than CHF50,000,000.
5. PAYMENT AND CALCULATION OF INTEREST ON ORIGINAL TERM ADVANCES
5.1 PAYMENT OF INTEREST
On the last day of each Interest Period of an Original Term Advance
(and, if the duration of an Interest Period exceeds six months, on the
expiry of each period of six months during such Interest Period) the
Borrower to whom such Original Term Advance has been made shall pay
accrued interest on such Original Term Advance.
5.2 CALCULATION OF INTEREST
The rate of interest applicable to an Original Term Advance from time
to time during an Interest Period relating thereto shall be the rate
per annum which is the sum of:
5.2.1 the Margin at such time;
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5.2.2 the Mandatory Cost Rate; and
5.2.3 LIBOR.
5.3 MARGIN RATCHET
From the date of this Agreement until the date 12 months after the
Acquisition Date, the Margin will be 2.50 per cent. per annum.
Thereafter, in accordance with the provisions of Clause 5.4 (Margin
Changes) and subject to Clause 5.5 (Default Margin), the Margin shall
be the percentage rate per annum determined by the ratio of Senior Debt
to Annualised EBITDA in respect of the most recent Financial Quarter in
accordance with the table set out below.
RATIO OF SENIOR DEBT TO ANNUALISED MARGIN
EBITDA (PER CENT. PER ANNUM)
---------------------------------- ---------------------
Greater than 6.0:1 2.50
Equal to or less than 6.0:1 but greater than 5.0:1 2.00
Equal to or less than 5.0:1 but greater than 4.0:1 1.75
Equal to or less than 4.0:1 but greater than 3.0:1 1.25
Equal to or less than 3.0:1 0.75
5.4 MARGIN CHANGES
Any reduction or increase to the Margin provided for by Clause 5.3
(Margin Ratchet) shall take effect in relation to all existing Advances
and future Advances, in each case with effect from the date the Agent
receives the Principal Borrower's Compliance Certificate in accordance
with Clause 20.4 (Compliance Certificates) for its most recent
Financial Quarter. Any change in the Margin applicable to an existing
Advance shall only relate to the remainder of the current Interest
Period or Term of such an Advance.
5.5 DEFAULT MARGIN
The Margin shall be 2.50 per cent. per annum from the date determined
by the Agent (acting reasonably) (in writing) as being the date on
which an Event of Default or Potential Event of Default has occurred or
come into existence until the date specified by the Agent (in writing)
as being the date on which it has been demonstrated to its satisfaction
(acting reasonably) that such Event of Default or Potential Event of
Default is no longer continuing. The Agent shall promptly notify the
other parties hereto of any determination that an Event of Default or
Potential Event of Default has occurred or exists or, as the case may
be, that it has been demonstrated to its reasonable satisfaction that
such is no longer continuing.
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6. UTILISATION OF THE REVOLVING FACILITY
6.1 DRAWDOWN CONDITIONS FOR REVOLVING ADVANCES
A Revolving Advance will be made by the Banks to a Borrower if:
6.1.1 the Available Term Facility is or will be, at the proposed
date for the making of such Revolving Advance, zero;
6.1.2 during the Notice Period the Agent has received a completed
Notice of Drawdown from such Borrower;
6.1.3 the proposed date for the making of such Revolving Advance is
a Business Day falling one month or more before the Revolving
Termination Date;
6.1.4 the proposed date for the making of such Revolving Advance is
not less than five Business Days after the date upon which the
previous Revolving Advance (if any) was made;
6.1.5 the proposed amount of such Revolving Advance is (a) if less
than the Available Revolving Facility an amount equal to or
greater than CHF50,000,000 or (b) equal to the amount of the
Available Revolving Facility;
6.1.6 there would not, immediately after the making of such
Revolving Advance, be more than six Revolving Advances
outstanding;
6.1.7 (save in relation to a Rollover Advance) the Principal
Borrower provides the Agent with a certificate signed by an
Authorised Signatory of the Principal Borrower, confirming
(and setting out the calculations enabling such a confirmation
to be given) that:
(a) in respect of such a proposed Revolving Advance to be
made before the consolidated financial statements of
the Restricted Group for the Financial Quarter ended
on 30 June 2000 have been delivered to the Agent, the
ratio of Senior Debt of the Restricted Group to
Annualised EBITDA of the Restricted Group will be no
greater than 20.00:1 (where Senior Debt is calculated
as at the Acquisition Date, immediately following the
completion of the Acquisition and adjusted to take
any outstanding Advances and the proposed Revolving
Advance into account, and Annualised EBITDA is
calculated in accordance with paragraph (a) of the
definition thereof);
(b) in respect of a proposed Revolving Advance to be made
after the consolidated financial statements of the
Restricted Group for the Financial Quarter ended on
30 June 2000 have been delivered to the Agent, having
adjusted the last consolidated financial statements
of the Restricted Group delivered to the Agent
pursuant to Clause 20.2 (Quarterly Statements) to
take the proposed Revolving Advance into account, the
ratio of Senior Debt of the Restricted Group to
Annualised
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EBITDA of the Restricted Group applicable at the
immediately preceding Quarter Date (as specified in
sub-clause 21.1.1 of Clause 21 (Financial Condition))
will continue to be satisfied;
(c) in respect of a proposed Revolving Advance to be made
on or after 30 June 2001, having adjusted the
Consolidated Finance Charges of the Restricted Group
for the Relevant Period ended on the last Quarter
Date to include the interest that would have been
payable on the proposed Revolving Advance had it been
outstanding throughout such a Relevant Period, the
ratio of the Consolidated Finance Charges of the
Restricted Group to EBITDA applicable at the
immediately preceding Quarter Date (as specified in
sub-clause 21.1.2 of Clause 21 (Financial Condition))
will continue to be satisfied; and
(d) in respect of such a Revolving Advance to be made on
or after 31 March 2003, having made the adjustment to
the Consolidated Finance Charges of the Restricted
Group referred to in paragraph (c) above for the
Relevant Period ended on the last Quarter Date, the
ratio of Annualised EBITDA to Consolidated Pro Forma
Debt Service applicable at the immediately preceding
Quarter Date (as specified in sub-clause 21.1.3 of
Clause 21 (Financial Condition)) will continue to be
satisfied;
6.1.8 the proposed Term of the Revolving Advance requested is a
period of one, two, three or six months or such other period
as the Agent (acting on the instructions of all of the Banks)
may agree in each case ending on or before the Revolving
Termination Date PROVIDED THAT prior to the Syndication Date
only periods of one month (or, if less, such duration
necessary to ensure that such Term shall end on the
Syndication Date) or such other period specified by the
Arrangers may be requested;
6.1.9 (save in relation to a Rollover Advance) neither of the events
mentioned in sub-clauses 8.1.1 and 8.1.2 of Clause 8.1
(Market Disruption) shall have occurred; and
6.1.10 on and as of the proposed date for the making of such
Revolving Advance:
(a) (save in relation to a Rollover Advance) no Event of
Default or Potential Event of Default is continuing;
and
(b) the Repeated Representations are true in all material
respects.
6.2 EACH BANK'S PARTICIPATION IN REVOLVING ADVANCES
Each Bank will participate through its Facility Office in each
Revolving Advance made pursuant to this Clause 6 in the proportion
borne by its Available Revolving Commitment to the Available Revolving
Facility immediately prior to the making of that Revolving Advance.
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6.3 REDUCTION OF AVAILABLE REVOLVING COMMITMENT
If a Bank's Revolving Commitment is reduced in accordance with the
terms hereof after the Agent has received the Notice of Drawdown for a
Revolving Advance and such reduction was not taken into account in the
Available Revolving Facility, then the amount of that Revolving Advance
shall be reduced accordingly.
7. PAYMENT AND CALCULATION OF INTEREST ON REVOLVING ADVANCES
7.1 PAYMENT OF INTEREST
On the Repayment Date relating to each Revolving Advance and, if the
Term of such Revolving Advance exceeds six months, on the expiry of
each period of six months during such Term, the Borrower to whom such
Revolving Advance has been made shall pay accrued interest on that
Revolving Advance.
7.2 CALCULATION OF INTEREST
The rate of interest applicable to a Revolving Advance from time to
time during its Term shall be the rate per annum which is the sum of:
7.2.1 the Margin at such time;
7.2.2 the Mandatory Cost Rate; and
7.2.3 LIBOR.
7.3 MARGIN
The Margin for Revolving Advances shall be determined in accordance
with Clause 5.3 (Margin Ratchet) to Clause 5.5 (Default Margin).
8. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
8.1 MARKET DISRUPTION
If, in relation to any Advance:
8.1.1 LIBOR is to be determined by reference to Reference Banks and
at or about 11.00 a.m. on the Quotation Date for the relevant
Interest Period or Term none or only one of the Reference
Banks supplies a rate for the purpose of determining LIBOR for
the relevant Interest Period or Term; or
8.1.2 before the close of business in London on the Quotation Date
for such Advance the Agent has been notified by a Bank or each
of a group of Banks to whom in aggregate fifty per cent. or
more of such Advance is owed (or, in the case of an undrawn
Advance, if made, would be owed) that the LIBOR rate does not
accurately reflect the cost of funding its participation in
such Advance,
then, the Agent shall notify the Principal Borrower, the relevant
Borrower and the Banks of such event and, notwithstanding anything to
the contrary in this Agreement, Clause 8.2 (Substitute Interest Period
and Interest Rate) shall apply to such Advance (if it is a Term Advance
which is already outstanding or a Rollover Advance). If sub-
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clause 8.1.1 or 8.1.2 applies to a proposed Advance (other than a
Rollover Advance), such Advance shall not be made.
8.2 SUBSTITUTE INTEREST PERIOD AND INTEREST RATE
If sub-clause 8.1.1 of Clause 8.1 (Market Disruption) applies to an
Advance, the duration of the relevant Interest Period or Term shall be
one month or, if less, such that it shall end on the next succeeding
Original Term Repayment Date (in the case of an Original Term Advance),
the next succeeding Term-Out Repayment Date (in the case of a Term-Out
Advance) or the Revolving Termination Date (in the case of a Rollover
Advance). If either sub-clause 8.1.1 or 8.1.2 of Clause 8.1 (Market
Disruption) applies to an Advance, the rate of interest applicable to
each Bank's portion of such Advance during the relevant Interest Period
or Term shall (subject to any agreement reached pursuant to Clause 8.3
(Alternative Rate)) be the rate per annum which is the sum of:
8.2.1 the Margin at such time;
8.2.2 the Mandatory Cost Rate; and
8.2.3 the rate per annum notified to the Agent by such Bank before
the last day of such Interest Period or Term to be that which
expresses as a percentage rate per annum the cost to such Bank
of funding from whatever sources it may reasonably select its
portion of such Advance during such Interest Period or Term.
8.3 ALTERNATIVE RATE
If either of those events mentioned in sub-clauses 8.1.1 and 8.1.2 of
Clause 8.1 (Market Disruption) occurs in relation to an Advance, then
if the Agent or the Principal Borrower so requires, the Agent and the
Principal Borrower shall enter into negotiations with a view to
agreeing a substitute basis (i) for determining the rates of interest
from time to time applicable to the Advances and/or (ii) upon which the
Advances may be maintained (whether in Swiss Francs or some other
currency) thereafter and any such substitute basis that is agreed shall
take effect in accordance with its terms and be binding on each party
hereto, PROVIDED THAT the Agent may not agree any such substitute basis
without the prior consent of each Bank (which is not to be unreasonably
withheld).
9. NOTIFICATION
9.1 ADVANCES
The Agent shall, no later than the Notification Time before the first
day of an Interest Period or Term (or, in respect of Original Term
Advances to be made on the Acquisition Date, no later than the
Acquisition Date) notify each Bank of:
9.1.1 the Facility that is to be utilised and the name of the
Borrower;
9.1.2 the proposed amount of the relevant Advance;
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9.1.3 the proposed length of the relevant Interest Period or Term;
and
9.1.4 the aggregate principal amount of the relevant Advance
allocated to such Bank pursuant to Clause 3.2 (Each Bank's
Participation in Original Term Advances), Clause 6.2 (Each
Bank's Participation in Revolving Advances) or Clause 11.3
(Each Bank's Participation in Term-Out Advances).
9.2 INTEREST RATE DETERMINATION
The Agent shall promptly notify the relevant Borrower and the Banks of
each determination of LIBOR, the Mandatory Cost Rate and the Margin.
9.3 CHANGES TO ADVANCES OR INTEREST RATES
The Agent shall promptly notify the relevant Borrower and the Banks of
any change to (a) the proposed length of an Interest Period or Term or
(b) any interest rate occasioned by the operation of Clause 8 (Market
Disruption and Alternative Interest Rates).
10. REPAYMENT OF THE ORIGINAL TERM FACILITY
10.1 ORIGINAL TERM LOAN REPAYMENT INSTALMENTS
The Principal Borrower shall procure (and each Borrower which has drawn
an Original Term Advance shall repay its share of the Original Term
Loan in order to ensure) that the Original Term Loan is repaid in
instalments on each Original Term Repayment Date set out in the table
below. The amount to be repaid shall be equal to the percentage of the
Original Term Loan as at the close of business in London on the last
day of the Original Term Availability Period as set out in the table
below.
ORIGINAL TERM PERCENTAGE OF ORIGINAL ORIGINAL TERM PERCENTAGE OF ORIGINAL
REPAYMENT DATE TERM LOAN (%) REPAYMENT DATE TERM LOAN (%)
-------------- ---------------------- --------------- ----------------------
31 March 2004 1.0 30 September 2007 4.5
30 June 2004 1.0 31 December 2007 4.5
30 September 2004 1.0 31 March 2008 5.5
31 December 2004 1.0 30 June 2008 5.5
31 March 2005 1.75 30 September 2008 5.5
30 June 2005 1.75 31 December 2008 5.5
30 September 2005 1.75 31 March 2009 6.25
31 December 2005 1.75 30 June 2009 6.25
31 March 2006 3.75 30 September 2009 6.25
30 June 2006 3.75 31 December 2009 6.25
30 September 2006 3.75 31 March 2010 9.0
31 December 2006 3.75
31 March 2007 4.5
30 June 2007 4.5 Total 100%
10.2 SELECTION OF ORIGINAL TERM ADVANCES
If, in relation to an Original Term Repayment Date, the aggregate
amount of the Original Term Advances exceeds the amount of the Original
Term Loan to be repaid, the Principal Borrower (on its own behalf and
on behalf of each other Borrower to whom an Original Term Advance has
been made) may, by not less than three Business
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Days' prior notice to the Agent, select which of those Original Term
Advances will be wholly or partially repaid, PROVIDED THAT:
10.2.1 the Principal Borrower may not make any such selection if, as
a result, more than one such Original Term Advance would fall
to be partially repaid; and
10.2.2 if the Principal Borrower fails to give such notice, the Agent
shall select the Original Term Advances to be wholly or
partially repaid
11. REPAYMENT OF THE REVOLVING FACILITY AND TERM-OUT OPTION
11.1 REPAYMENT OF REVOLVING ADVANCES
Each Borrower to which a Revolving Advance has been made shall repay
the Revolving Advance made to it in full on the Repayment Date relating
thereto.
11.2 CONVERSION OF REVOLVING ADVANCES
Each Revolving Advance which is not repaid on the Revolving Termination
Date shall automatically be converted into a Term-Out Advance under the
Term-Out Facility repayable in accordance with Clause 11.10 (Term-Out
Loan Repayment Instalments). On the Revolving Termination Date the
Available Revolving Commitment of each Bank shall be cancelled and
reduced to zero.
11.3 EACH BANK'S PARTICIPATION IN TERM-OUT ADVANCES
Each Bank will participate through its Facility Office in each Term-Out
Advance in an amount equal to its participation in the Revolving
Advance(s) so converted.
11.4 TERM-OUT ADVANCE INTEREST PERIODS
The period for which a Term-Out Advance is outstanding shall be divided
into successive periods each of which (other than the first, which
shall begin on the Revolving Termination Date) shall start on the last
day of the preceding such period.
11.5 TERM-OUT ADVANCE INTEREST PERIOD DURATION
The duration of each Interest Period in respect of a Term-Out Advance
shall, save as otherwise provided herein, be one, two, three or six
months or such other period as the Agent (acting on the instructions of
all of the Banks) may agree, in each case as the Borrower to which such
Term-Out Advance is made may during the Notice Period by written notice
to the Agent select (or, as the case may be, request and agree)
PROVIDED THAT:
11.5.1 if such Borrower fails to give such notice of its selection in
relation to an Interest Period, the duration of that Interest
Period shall, subject to subclauses 11.5.2 and 11.5.3, be
three months;
11.5.2 any Interest Period which begins at the same time as any other
Interest Period and relates to a Term-Out Advance borrowed by
the same Borrower shall end at the same time as that other
Interest Period; and
11.5.3 any Interest Period which would otherwise end during the month
preceding, or extend beyond, a Term-Out Repayment Date shall,
if necessary to ensure that
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sufficient Term-Out Advances mature on that Term-Out Repayment
Date to allow the relevant scheduled repayment of the Term-Out
Loan to be made, be of such duration that it shall end on that
Term-Out Repayment Date.
11.6 CONSOLIDATION OF TERM-OUT ADVANCES
If two or more Interest Periods relating to Term-Out Advances end at
the same time and are made to the same Borrower, then, on the last day
of those Interest Periods, the Term-Out Advances to which they relate
shall be consolidated into and treated as a single Term-Out Advance.
11.7 DIVISION OF TERM-OUT ADVANCES
The Borrower to which a Term-Out Advance is made may, by not less than
three Business Day's prior notice to the Agent, direct that such
Term-Out Advance shall, at the beginning of any Interest Period
relating thereto, be divided into (and thereafter, save as otherwise
provided herein, treated in all respects as) two or more Term-Out
Advances in such amounts (in aggregate, equalling the amount of the
Term-Out Advance being so divided) as shall be specified by such
Borrower in such notice, PROVIDED THAT such Borrower shall not be
entitled to make such a direction if:
11.7.1 as a result of so doing, there would be more than six
outstanding Term-Out Advances; or
11.7.2 any Term-Out Advance thereby coming into existence would be of
an amount of less than CHF50,000,000.
11.8 PAYMENT OF INTEREST
On the last day of each Interest Period of a Term-Out Advance (and, if
the duration of an Interest Period exceeds six months, on the expiry of
each period of six months during such Interest Period) the Borrower to
whom such Term-Out Advance has been made shall pay accrued interest on
such Term-Out Advance.
11.9 CALCULATION OF INTEREST
The rate of interest applicable to a Term-Out Advance from time to time
during an Interest Period relating thereto shall be the rate per annum
which is the sum of:
11.9.1 the Margin at such time;
11.9.2 the Mandatory Cost Rate; and
11.9.3 LIBOR.
The Margin for Term-Out Advances shall be determined in accordance with
Clause 5.3 (Margin Ratchet) to Clause 5.5 (Default Margin).
11.10 TERM-OUT LOAN REPAYMENT INSTALMENTS
The Principal Borrower shall procure (and each Borrower which has drawn
a Term-Out Advance shall repay its share of the Term-Out Loan in order
to ensure) that the Term-Out Loan is repaid in instalments on each
Term-Out Repayment Date set out in the table below. The amount to be
repaid shall be equal to the percentage of the Term-
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Out Loan as at the close of business in London on the Revolving
Termination Date as set out in the table below.
TERM-OUT REPAYMENT PERCENTAGE OF TERM-OUT TERM-OUT REPAYMENT PERCENTAGE OF TERM-OUT
DATE LOAN (%) DATE LOAN (%)
------------------ ---------------------- ------------------ ----------------------
31 March 2004 1.0 30 September 2007 4.5
30 June 2004 1.0 31 December 2007 4.5
30 September 2004 1.0 31 March 2008 5.5
31 December 2004 1.0 30 June 2008 5.5
31 March 2005 1.75 30 September 2008 5.5
30 June 2005 1.75 31 December 2008 5.5
30 September 2005 1.75 31 March 2009 6.25
31 December 2005 1.75 30 June 2009 6.25
31 March 2006 3.75 30 September 2009 6.25
30 June 2006 3.75 31 December 2009 6.25
30 September 2006 3.75 31 March 2010 9.0
31 December 2006 3.75
31 March 2007 4.5
30 June 2007 4.5 Total 100%
11.11 SELECTION OF TERM-OUT ADVANCES
If, in relation to a Term-Out Repayment Date, the aggregate amount of
the Term-Out Advances exceeds the amount of the Term-Out Loan to be
repaid, the Principal Borrower (on its own behalf and on behalf of each
other Borrower to whom a Term-Out Advance has been made) may, by not
less than three Business Days' prior notice to the Agent, select which
of those Term-Out Advances will be wholly or partially repaid, provided
that:
11.11.1 the Principal Borrower may not make any such selection if, as
a result, more than one such Term-Out Advance would fall to be
partially repaid; and
11.11.2 if the Principal Borrower fails to give such notice, the Agent
shall select the Term-Out Advance to be wholly or partially
repaid.
12. CANCELLATION AND PREPAYMENT
12.1 CANCELLATION OF THE ORIGINAL TERM FACILITY
The Principal Borrower may, by giving to the Agent not less than five
Business Days' prior written notice to that effect, cancel the whole or
any part (being an amount equal to or greater than CHF50,000,000) of
the Available Term Facility. Any such cancellation shall reduce the
Term Commitments of the Banks rateably.
12.2 PREPAYMENT OF THE ORIGINAL TERM LOAN
Subject to the provisions of Clause 27.4 (Break Costs), the Borrower to
which an Original Term Advance has been made may, if it has given to
the Agent not less than five Business Days' prior written notice to
that effect, prepay the whole of any Original Term Advance or any part
of any Original Term Advance (being an amount equal to or greater than
CHF50,000,000) at any time after the last day of the Original Term
Availability Period. Any prepayment so made after the last day of the
Original Term Availability Period shall reduce pro rata the remaining
Original Term Loan repayment
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instalments the Borrowers are obliged to make in accordance with Clause
10.1 (Original Term Loan Repayment Instalments).
12.3 PREPAYMENT OF THE TERM-OUT LOAN
Subject to the provisions of Clause 27.4 (Break Costs), the Borrower to
which a Term-Out Advance has been made may, if it has given to the
Agent not less than five Business Days' prior written notice to that
effect, prepay the whole of any Term-Out Advance or any part of any
Term-Out Advance (being an amount equal to or greater than
CHF50,000,000). Any prepayment so made shall reduce pro rata the
remaining Term-Out Loan repayment instalments the Borrowers are obliged
to make in accordance with Clause 11.10 (Term-Out Loan Repayment
Instalments).
12.4 CANCELLATION OF THE REVOLVING FACILITY
The Principal Borrower may, by giving to the Agent not less than five
Business Days' prior written notice to that effect, cancel the whole or
any part (being an amount equal to or greater than CHF50,000,000) of
the Available Revolving Facility. Any such cancellation shall reduce
the Available Revolving Commitment and the Revolving Commitment of each
Bank rateably.
12.5 PREPAYMENT OF THE REVOLVING LOAN
Subject to the provisions of Clause 27.4 (Break Costs), the Borrower to
which a Revolving Advance has been made may, by giving to the Agent not
less than five Business Days prior written notice to that effect,
prepay the whole or any part of a Revolving Advance (being an amount
such that such Revolving Advance will be reduced by an amount equal to
or greater than CHF50,000,000).
12.6 NOTICE OF CANCELLATION OR PREPAYMENT
Any notice of cancellation or prepayment given by a Borrower pursuant
to this Clause 12 shall be irrevocable, shall specify the date upon
which such cancellation or prepayment is to be made and the amount of
such cancellation or prepayment and, in the case of a notice of
prepayment, shall oblige the relevant Borrower to make such prepayment
on such date.
12.7 REPAYMENT OF A BANK'S SHARE OF THE LOAN
If:
12.7.1 any sum payable to any Bank by an Obligor is required to be
increased pursuant to Clause 14.1 (Tax Gross-up); or
12.7.2 any Bank claims indemnification from the Obligors under Clause
14.2 (Tax Indemnity), the Agent claims indemnification from
the Obligors under Clause 14.2 (Tax Indemnity) in respect of
payment received by it and paid by it to a Bank under the
Finance Documents or any Bank claims indemnification from the
Principal Borrower under Clause 16.1 (Increased Costs); or
12.7.3 any Bank gives notice to the Principal Borrower in accordance
with the provisions of Clause 14.6 (Bank Notification),
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the Principal Borrower may, whilst such circumstance continues, give
the Agent at least five Business Days' prior written notice (which
notice shall be irrevocable) of its intention to procure the repayment
of such Bank's share of the Loan. On the last day of each then current
Interest Period or Term, or at any other time subject to the provisions
of Clause 27.4 (Break Costs), each Borrower to which an Advance has
been made shall repay such Bank's portion of the Advance to which such
Interest Period or Term relates. Any repayment of an Original Term
Advance so made after the last day of the Original Term Availability
Period shall reduce pro rata the remaining obligations under Clause
10.1 (Original Term Loan Repayment Instalments). Any repayment of a
Term-Out Advance shall reduce pro rata the remaining obligations under
Clause 11.10 (Term-Out Loan Repayment Instalments).
12.8 NO FURTHER ADVANCES
A Bank for whose account a repayment is to be made under Clause 12.7
(Repayment of a Bank's Share of the Loan) shall not be obliged to
participate in the making of Advances on or after the date upon which
the Agent receives the Principal Borrower's notice of its intention to
procure the repayment of such Bank's share of the Loan, and such Bank's
Available Term Commitment and Available Revolving Commitment shall be
reduced to zero.
12.9 NO OTHER REPAYMENTS
The Borrowers shall not repay all or any part of the Loan except at the
times and in the manner expressly provided for in this Agreement.
12.10 NO REBORROWING OF THE TERM FACILITIES
None of the Borrowers shall be entitled to reborrow any amount of a
Term Facility which is repaid.
13. MANDATORY PREPAYMENT
13.1 MANDATORY PREPAYMENT FROM EXCESS CASH FLOW
The Principal Borrower shall ensure that, within ten Business Days of
delivery of the most recent annual consolidated financial statements of
the Restricted Group pursuant to Clause 20.1 (Annual Statements) (and
commencing with the financial statements delivered in respect of the
financial year ended 31 December 2003), 50 per cent. of Excess Cash
Flow for the financial year to which such financial statements relate
is paid to the Agent and applied in repayment of the Loan in accordance
with Clause 13.5 (Application of Proceeds), unless the ratio of Senior
Debt to EBITDA for that financial year is less than 3.0:1.
13.2 MANDATORY PREPAYMENT FROM ASSET DISPOSALS
The Principal Borrower shall ensure that the net proceeds of any
disposal of any asset by any member of the Restricted Group, where such
a disposal falls within paragraph (f)(A) of the definition of
"Permitted Disposals", are paid to the Agent and applied in repayment
of the Loan in accordance with Clause 13.5 (Application of Proceeds)
unless the Principal Borrower can show to the satisfaction of the Agent
(acting reasonably) that:
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13.2.1 such disposal was on arms' length terms and the net proceeds
are to be reinvested in similar assets of a comparable or
superior quality located in Switzerland or applied towards the
Restricted Group's capital expenditure within a period of 365
days from the date of receipt of such net disposal proceeds by
the relevant member of the Restricted Group; or
13.2.2 such net disposal proceeds, when aggregated with the net
disposal proceeds received by members of the Restricted Group
in respect of disposals falling within paragraph f(A) of the
definition of "Permitted Disposals" made in the immediately
preceding twelve month period (other than (i) disposals in
respect of which the net proceeds have been or are to be
applied in repayment of the Loan in accordance with Clause
13.5 (Application of Proceeds) or of which the net proceeds
have otherwise been applied in repayment of the Loan in
accordance with this Agreement and (ii) disposals in respect
of which the net proceeds have been applied or are to be
applied in accordance with subclause 13.2.1), do not exceed
CHF15,000,000 or its equivalent.
The Principal Borrower shall procure that, where the aggregate of the
net proceeds from disposals falling within sub-clause 13.2.1 exceed
CHF15,000,000, the net proceeds in excess thereof are deposited in the
Escrow Account. The member of the Restricted Group that disposed of the
relevant assets shall be entitled, during the 365 day period commencing
with the receipt of such proceeds of disposal into the Escrow Account,
to withdraw sums from the Escrow Account only to the extent that it is
reasonably able to demonstrate that such sums will be reinvested or
applied in accordance with the provisions of sub-clause 13.2.1. Any
sums not so withdrawn during such 365 day period shall thereafter be
paid to the Agent and applied in repayment of the Loan in accordance
with Clause 13.5 (Application of Proceeds).
13.3 MANDATORY PREPAYMENT FROM ACQUISITION RECOVERY PROCEEDS
The Principal Borrower and Shareholder shall ensure that Acquisition
Recovery Proceeds received by the Shareholder or any member of the
Restricted Group, above an aggregate minimum threshold of Acquisition
Recovery Proceeds of CHF20,000,000 (the "MINIMUM THRESHOLD"), are paid
to the Agent and applied in repayment of the Loan in accordance with
Clause 13.5 (Application of Proceeds) unless the Principal Borrower can
show to the satisfaction of the Agent (acting reasonably) that:
13.3.1 the first CHF130,000,000 aggregate amount of Acquisition
Recovery Proceeds received above the Minimum Threshold have
been, or will promptly upon receipt be, deposited in the
Escrow Account in accordance with the provisions of Clause
13.4 (Payment of Acquisition Recovery Proceeds into Escrow
Account); and
13.3.2 all Acquisition Recovery Proceeds falling within sub-clause
13.3.1 are to be applied towards an Acquisition Remedy within
a period of 365 days from the date of receipt of such
Acquisition Recovery Proceeds by the Shareholder or the
relevant member of the Restricted Group.
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Any Acquisition Recovery Proceeds received above the first
CHF150,000,000 aggregate amount of Acquisition Recovery Proceeds shall
be paid to the Agent and applied in repayment of the Loan in accordance
with Clause 13.5 (Application of Proceeds).
13.4 PAYMENT OF ACQUISITION RECOVERY PROCEEDS INTO ESCROW ACCOUNT
The Principal Borrower and Shareholder shall ensure that any
Acquisition Recovery Proceeds to be applied towards an Acquisition
Remedy in accordance with sub-clause 13.3.2 of Clause 13.3 (Mandatory
Prepayment from Acquisition Recovery Proceeds) are deposited in the
Escrow Account. The Shareholder or the relevant member of the
Restricted Group that received the Acquisition Recovery Proceeds shall
be entitled, during the aforementioned 365 day period, to withdraw sums
from the Escrow Account only to the extent that it is reasonably able
to demonstrate that such sums will be applied towards an Acquisition
Remedy. Any sums not so withdrawn during such 365 day period shall
thereafter be paid to the Agent and applied in repayment of the Loan in
accordance with Clause 13.5 (Application of Proceeds).
13.5 APPLICATION OF PROCEEDS
13.5.1 Any amounts paid to the Agent in accordance with Clause 13.1
(Mandatory Prepayment from Excess Cash Flow) to Clause 13.4
(Payment of Acquisition Recovery Proceeds into Escrow Account)
shall be retained in the Escrow Account for application on one
or more Repayment Dates or the last day of Interest Periods in
respect of Original Term Advances or Term-Out Advances, as the
case may be, until such time as such amounts have been applied
in full in repayment of the Loan in accordance with this
Clause 13.5.
13.5.2 Subject to sub-clause 13.5.3 below, any amounts paid to the
Agent in accordance with Clause 13.1 (Mandatory Prepayment
from Excess Cash Flow) to Clause 13.4 (Payment of Acquisition
Recovery Proceeds into Escrow Account) shall, on the dates
indicated in sub-clause 13.5.1 above, be applied as follows:
(a) prior to the Revolving Termination Date, (i) first,
in prepayment of the Original Term Loan (satisfying
pro rata the obligations under Clause 10.1 (Original
Term Loan Repayment Instalments)) and, if such a
prepayment is made prior to the last day of the
Original Term Availability Period, together with a
corresponding cancellation of the Available Term
Facility, (ii) secondly, in prepayment of the
Revolving Loan (and a corresponding cancellation of
the Available Revolving Facility), in an amount equal
to the balance not applied in accordance with (i)
above and (iii) thirdly, if any excess remains
thereafter, in payment of such excess to the relevant
member of the Group and in cancellation of the
remaining Available Revolving Facility by an equal
amount, in each case in accordance with the
provisions of Clause 12 (Cancellation and
Prepayment); and
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(b) after the Revolving Termination Date, (i) first, in
prepayment of the Original Term Loan (satisfying pro
rata the obligations under Clause 10.1 (Original Term
Loan Repayment Instalments)), (ii) secondly, in
prepayment of the Term-Out Loan (satisfying pro rata
the obligations under Clause 11.10 (Term-Out Loan
Repayment Instalments)) and (iii) thirdly, if any
excess remains thereafter, in payment of such excess
to the relevant member of the Group.
13.5.3 If the application of such amounts received by the Agent would
at any time amount to an unlawful distribution by a member of
the Restricted Group to its shareholders and such amounts
cannot otherwise be lent by the member of the Restricted Group
entitled to such amounts to sufficient Borrowers to allow the
requirements of this Clause 13 to be satisfied, then the Agent
will retain any monies which cannot be applied in accordance
with this Clause 13 in the Escrow Account until such time that
those monies can be so applied or all amounts outstanding
under the Finance Documents have been repaid in full.
13.6 MANDATORY PREPAYMENT DUE TO CHANGE IN CONTROL
13.6.1 If any person, or group of persons acting in concert, which does not at
the date hereof have control of the Parent or, after the acquisition of
the Parent by NTL Holdings Inc., of NTL Holdings Inc. acquires control
of the Parent or, after the aforementioned acquisition, of NTL Holdings
Inc.:
(a) the Principal Borrower shall give notice of that
event to the Agent promptly upon becoming aware
thereof;
(b) if the Agent (acting on the instructions of an
Instructing Group) gives notice to such effect, the
Available Term Commitment (if any) and the Available
Revolving Commitment (if any) of each Bank shall
immediately be cancelled and reduced to zero; and
(c) if the Agent (acting on the instructions of an
Instructing Group) gives notice to such effect, the
Loan shall become immediately due and payable and
shall be repaid by the relevant Borrowers together
with accrued interest and all other amounts payable
by the Borrowers under the Finance Documents within
seven days of the date of such notice.
13.6.2 For the purpose of this Clause 13.6:
"CONTROL" means:
(a) the power (whether by way of ownership of shares,
proxy, contract, agency or otherwise) to:
(i) cast, or control the casting of, more than
one-half of the maximum number of votes that
might be cast at a general meeting of the
Parent or, as the case may be, NTL Holdings
Inc.; or
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(ii) appoint or remove all, or the majority, of
the directors or other equivalent officers
of the Parent or, as the case may be, NTL
Holdings Inc.; or
(iii) give directions with respect to the
operating and financial policies of the
Parent or, as the case may be, NTL Holdings
Inc. which the directors or other equivalent
officers of the Parent or, as the case may
be, NTL Holdings Inc. are obliged to comply
with; or
(b) the holding of more than one-half of the issued share
capital of the Parent or, as the case may be, NTL
Holdings Inc. (excluding any part of that issued
share capital that carries no voting rights or right
to participate beyond a specified amount in a
distribution of either profits or capital).
"ACTING IN CONCERT" means, a group of persons who, pursuant to
an agreement or understanding (whether formal or informal),
actively co-operate, through the acquisition by any of them,
either directly or indirectly, of shares in the Parent or NTL
Holdings Inc., to obtain or consolidate control of the Parent
or, as the case may be, NTL Holdings Inc.
13.6.3 This Clause 13.6 will not apply, and the Available Commitments
will not be cancelled and the Loan will not become due and
payable, in the event that France Telecom S.A. or any of its
affiliates acquires control of either the Parent or, after the
acquisition of the Parent by NTL Holdings Inc., of NTL
Holdings Inc.
14. TAXES
14.1 TAX GROSS-UP
All payments to be made by an Obligor to any Bank under the Finance
Documents shall be made free and clear of and without deduction for or
on account of tax unless such Obligor is required to make such a
payment subject to the deduction or withholding of tax, in which case
the sum payable by such Obligor (in respect of which such deduction or
withholding is required to be made) shall, subject to Clause 24.10
(Swiss Withholding Tax) and Clause 14.5 (Excluded Claims), be increased
to the extent necessary to ensure that such Bank receives a sum net of
any deduction or withholding equal to the sum which it would have
received had no such deduction or withholding been made or required to
be made.
14.2 TAX INDEMNITY
Without prejudice to Clause 14.1 (Tax Gross-up) but subject to Clause
24.10 (Swiss Withholding Tax), if the Agent or (as a result of the
introduction of, or change in or in the interpretation, administration
or application of, any law or regulation or order or governmental rule
or double taxation agreement or any published practice or concession of
any relevant taxing authority after the date hereof) an Obligor or any
Bank (a) is required to make any payment of or on account of tax on or
in relation to
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any sum received or receivable under the Finance Documents (including
any sum deemed for purposes of tax to be received or receivable by the
Agent or such Bank whether or not actually received or receivable) or
(b) has any liability in respect of any such payment asserted, imposed,
levied or assessed against it, the Obligors (jointly and severally)
shall, within five Business Days of demand by the Agent, promptly
indemnify the Agent or Bank which suffers a loss or liability as a
result against such payment or liability, together with any interest,
penalties, costs and expenses payable or incurred in connection
therewith, PROVIDED THAT this Clause 14.2 shall not apply to:
14.2.1 any tax imposed on and calculated by reference to the net
income, profits or gains actually received or receivable by
the Agent or such Bank (but, for the avoidance of doubt, not
including any sum deemed for purposes of tax to be received or
receivable by the Agent or such Bank but not actually
receivable) by the jurisdiction in which the Agent or such
Bank is incorporated or, if different, the jurisdiction (or
jurisdictions) in which the Agent or such Bank is treated as
resident for tax purposes; or
14.2.2 any tax imposed on and calculated by reference to the net
income, profits or gains of the Facility Office of the Agent
or such Bank actually received or receivable by the Agent or
such Bank (but, for the avoidance of doubt, not including any
sum deemed for purposes of tax to be received or receivable by
the Agent or such Bank but not actually receivable) by the
jurisdiction in which its Facility Office is located; or
14.2.3 any tax imposed on the Agent, as a result of the failure by a
Bank to satisfy on the due date of a payment of interest
either of the conditions set out in subclauses 14.3.1 and
14.3.2 of Clause 14.3 (Banks' Tax Status Confirmation); or
14.2.4 any tax imposed on a Bank which would not have arisen but for
a payment by such Bank, with reference to this Agreement and
in respect of sums received or receivable under the Finance
Documents.
14.3 BANKS' TAX STATUS CONFIRMATION
Each Bank confirms in favour of the Agent (on the date hereof or, in
the case of a Bank which becomes a party hereto pursuant to a transfer
or assignment, on the date on which the relevant transfer or assignment
becomes effective) that either:
14.3.1 it is not resident for tax purposes in the United Kingdom and
is beneficially entitled to its share of the Loan and the
interest thereon; or
14.3.2 it is a bank as defined for the purposes of Section 349 of the
Income and Corporation Taxes Act 1988 and is beneficially
entitled to its share of the Loan and the interest thereon,
and each Bank shall promptly notify the Agent if there is any change in
its position from that set out above.
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14.4 CLAIMS BY BANKS AND THE AGENT
A Bank intending to make a claim pursuant to Clause 14.2 (Tax
Indemnity) shall notify the Agent of the event giving rise to the
claim, whereupon the Agent shall notify the Principal Borrower and the
other Borrowers thereof. If the Agent intends to make a claim pursuant
to Clause 14.2 (Tax Indemnity) it shall notify the Principal Borrower
and the other Borrowers of the event giving rise to the claim.
14.5 EXCLUDED CLAIMS
If any Bank is not or ceases to be a Qualifying Lender, no Obligor
shall be liable to pay to that Bank under Clause 14.1 (Tax Gross-Up)
any amount in respect of taxes levied or imposed in excess of the
amount it would have been obliged to pay if that Bank had been or had
not ceased to be a Qualifying Lender PROVIDED THAT this Clause 14.5
shall not apply (and each Obligor shall be obliged to comply with its
obligations under Clause 14.1 (Tax Gross-Up)) if:
14.5.1 after the date hereof, there shall have been any introduction
of, or change in or in the interpretation, administration or
application of, any law or regulation or order or governmental
rule or double taxation agreement or any published practice or
concession of any relevant taxing authority and as a result
thereof such Bank ceases to be a Qualifying Lender; or
14.5.2 such Bank is not or ceases to be a Qualifying Lender as a
result of the actions of or omission to act by any Obligor; or
14.5.3 the relevant Obligor would be required to make a deduction or
withholding in respect of tax irrespective of whether the Bank
is or is not a Qualifying Lender.
14.6 BANK NOTIFICATION
Each Bank (other than a Bank which became a Bank in accordance with
sub-clause 34.7.2 of Clause 34.7 (Qualifying Lenders)) shall, as soon
as reasonably practicable after becoming aware that it will cease to be
a Qualifying Lender, other than in the circumstances contemplated by
Clauses 14.5.1 or 14.5.2 of Clause 14.5 (Excluded Claims) or if the
circumstances contemplated by Clause 14.5.3 of Clause 14.5 (Excluded
Claims) apply, notify the Principal Borrower thereof. If a Bank gives
notice in accordance with this Clause 14.6 and at any time thereafter
while the relevant circumstances are continuing the Principal Borrower
notifies it (in writing) that it has identified a financial institution
acceptable to it and willing to participate in the Facilities, then
such Bank shall (as requested in such notice) transfer all of its
rights, benefits and obligations under the Finance Documents to such
financial institution PROVIDED THAT, save in the case of a Bank which
will cease to be a Qualifying Lender as a result of a decision by such
Bank or any holding company thereof (or any deliberate omission which
has the same consequence) to cease to carry on the business it carries
on and in respect of which it is a Qualifying Lender, the Principal
Borrower shall reimburse such Bank for all reasonable costs and
expenses incurred in connection
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with such transfer (including any costs payable under Clause 27.4
(Break Costs)), other than any minor costs and expenses of an
administrative nature.
15. TAX RECEIPTS
15.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX
If, at any time, an Obligor is required by law to make any deduction or
withholding from any sum payable by it under the Finance Documents (or
if thereafter there is any change in the rates at which or the manner
in which such deductions or withholdings are calculated), the Principal
Borrower and the Bank to which sum is payable shall promptly upon
becoming aware of such a requirement notify the Agent accordingly. If
the Agent receives such a notification from a Bank it shall notify the
Principal Borrower and the relevant Obligor.
15.2 EVIDENCE OF PAYMENT OF TAX
If an Obligor makes any payment under the Finance Documents in respect
of which it is required to make any deduction or withholding, it shall
pay the full amount required to be deducted or withheld to the relevant
taxation or other authority within the time allowed for such payment
under applicable law and shall request and, within thirty days of it
receiving the same, deliver to the Agent for each Bank an original
receipt (or a certified copy thereof) issued by such authority
evidencing the payment to such authority of all amounts so required to
be deducted or withheld in respect of that Bank's share of such
payment.
15.3 TAX CREDIT PAYMENT
If an additional payment is made under Clause 14 (Taxes) by an Obligor
for the benefit of the Agent or any Bank and the Agent or such Bank, in
its sole discretion, determines that it has obtained (and has derived
full use and benefit from) a credit against, a relief or remission for,
or repayment of, any tax, then, if and to the extent that the Agent or
such Bank, in its sole opinion, determines that:
15.3.1 such credit, relief, remission or repayment is in respect of,
calculated with reference to or otherwise relates to the
additional payment made pursuant to Clause 14 (Taxes); and
15.3.2 its tax affairs for its tax year in respect of which such
credit, relief, remission or repayment was obtained have been
finally settled,
the Agent or such Bank shall, to the extent that it can do so without
prejudice to the retention of the amount of such credit, relief,
remission or repayment, pay to such Obligor such amount as the Agent or
such Bank shall, in its sole opinion, determine to be the amount which
will leave the Agent or such Bank (after such payment) in no worse
after-tax position than it would have been in had the additional
payment in question not been required to be made by such Obligor.
15.4 TAX CREDIT CLAWBACK
If the Agent or any Bank makes any payment to an Obligor pursuant to
Clause 15.3 (Tax Credit Payment) and the Agent or such Bank
subsequently determines in its sole
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opinion that the credit, relief, remission or repayment in respect of
which such payment was made was not available or has been withdrawn or
that it was unable to use such credit, relief, remission or repayment
in full, such Obligor shall reimburse the Agent or such Bank such
amount as the Agent or such Bank determines in its sole opinion is
necessary to place it in the same after-tax position as it would have
been in if such credit, relief, remission or repayment had been
obtained and fully used and retained by the Agent or such Bank.
15.5 TAX AND OTHER AFFAIRS
No provision of this Agreement shall interfere with the right of any
Finance Party to arrange its tax or any other affairs in whatever
manner it thinks fit, oblige any Finance Party to claim any credit,
relief, remission or repayment in respect of any payment under Clause
14 (Taxes) in priority to any other credit, relief, remission or
repayment available to it nor oblige any Finance Party to disclose any
information relating to its tax or other affairs or any computations in
respect thereof.
16. INCREASED COSTS
16.1 INCREASED COSTS
If, by reason of the occurrence, in each case after the date hereof, of
(a) any change in law or in its interpretation or administration and/or
(b) compliance with any such new law or with any request or requirement
relating to the maintenance of capital or any other request from or
requirement of any central bank or other fiscal, monetary or other
authority (in each case, where a request or requirement that does not
have the force of law is a request or requirement with which financial
institutions subject to such request or requirement are generally
accustomed to comply):
16.1.1 a Bank or any holding company of such Bank is unable to obtain
the rate of return on its capital which it would have been
able to obtain but for such Bank's entering into or assuming
or maintaining a commitment or performing its obligations
under the Finance Documents;
16.1.2 a Bank or any holding company of such Bank incurs a cost as a
result of such Bank's entering into or assuming or maintaining
a commitment or performing its obligations under the Finance
Documents; or
16.1.3 there is any increase in the cost to a Bank or any holding
company of such Bank of funding or maintaining such Bank's
share of the Advances or any Unpaid Sum,
then the Principal Borrower shall, within three Business Days of a
demand of the Agent, pay to the Agent for the account of that Bank
amounts sufficient to indemnify that Bank or to enable that Bank to
indemnify its holding company from and against, as the case may be, (i)
such reduction in the rate of return on capital, (ii) such cost or
(iii) such increased cost.
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16.2 INCREASED COSTS CLAIMS
A Bank intending to make a claim pursuant to Clause 16.1 (Increased
Costs) shall notify the Agent of the event giving rise to such claim,
whereupon the Agent shall notify the Principal Borrower thereof.
16.3 EXCLUSIONS
Notwithstanding the foregoing provisions of this Clause 16, no Bank
shall be entitled to make any claim under this Clause 16 in respect of
any reduction in the rate of return on its capital, cost, increased
cost or liability:
16.3.1 attributable to a deduction or withholding for or on account
of tax from a payment under a Finance Document required by law
to be made by an Obligor and compensated for pursuant to the
provisions of Clause 14.1 (Tax Gross-Up) (or would have been
compensated for under Clause 14.1 (Tax Gross-Up) but was not
so compensated solely because of Clause 14.5 (Excluded Claims)
or Clause 24.10 (Swiss Withholding Tax));
16.3.2 compensated by Clause 14.2 (Tax Indemnity) (or would have been
compensated for under Clause 14.2 (Tax Indemnity) but was not
so compensated solely because of one of the exclusions set out
in sub-clauses 14.2.1 to 14.2.4 of Clause 14.2 (Tax Indemnity)
or Clause 24.10 (Swiss Withholding Tax));
16.3.3 compensated by the Mandatory Cost Rate; or
16.3.4 attributable to the wilful breach by the relevant Finance
Party or its affiliates of any law or regulation.
17. ILLEGALITY
If, at any time, it is or will become unlawful for a Bank to make, fund
or allow to remain outstanding all or part of its share of the
Advances, then that Bank shall, promptly after becoming aware of the
same, deliver to the Principal Borrower through the Agent a notice to
that effect and:
17.1.1 such Bank shall not thereafter be obliged to participate in
the making of any Advances and the amount of its Available
Term Commitment (if any) and Available Revolving Commitment
(if any) shall be immediately reduced to zero;
17.1.2 if the Agent on behalf of such Bank so requires, each Borrower
which has drawn an Advance shall on the last day of the
current Interest Period or, as the case may be, Term of each
Advance or, if earlier, on the date specified by such Bank
(being no earlier than the last day of any applicable grace
period permitted by law) repay such Bank's share of any
outstanding Advances together with accrued interest thereon
and all other amounts owing to such Bank under the Finance
Documents; and
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17.1.3 any repayment of Original Term Advances so made after the last
day of the Original Term Availability Period shall reduce
rateably the remaining obligations under Clause 10.1 (Original
Term Loan Repayment Instalments) and any repayment of Term-Out
Advances shall reduce rateably the remaining obligations under
Clause 11.10 (Term-Out Loan Repayment Instalments).
18. MITIGATION
If any Bank gives notice to the Principal Borrower under Clause 14.6
(Bank Notification) or if, in respect of any Bank, circumstances arise
which would or would upon the giving of notice result in:
18.1.1 an increase in any sum payable to it or for its account
pursuant to Clause 14.1 (Tax Gross-up);
18.1.2 a claim for indemnification pursuant to Clause 14.2 (Tax
Indemnity) or Clause 16.1 (Increased Costs); or
18.1.3 the reduction of its Available Commitment to zero or any
repayment being required to be made pursuant to Clause 17
(Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the obligations of the Obligors under any of the
Clauses referred to above, such Bank shall (in the case of the
circumstances referred to in sub-clauses 18.1.1, 18.1.2 and 18.1.3)
promptly upon becoming aware of such circumstances notify the Agent
thereof and, in all cases (but without prejudice to the obligations of
such Bank under Clause 14.6 (Bank Notification)), in consultation with
the Agent and the Principal Borrower and to the extent that it can do
so lawfully, take reasonable steps (including a change of location of
its Facility Office or the transfer of its rights, benefits and
obligations under the Finance Documents to another financial
institution acceptable to the Principal Borrower and willing to
participate in the Facility) to mitigate the effects of such
circumstances, PROVIDED THAT such Bank shall be under no obligation to
take any such action if, in the opinion of such Bank, to do so might
have any adverse effect upon its business, operations or financial
condition (other than any minor costs and expenses of an administrative
nature).
19. REPRESENTATIONS
Each Obligor (other than the Shareholder) makes the representations and
warranties set out in Clause 19.1 (Status) to Clause 19.11 (Legal and
Beneficial Owner) and, in addition, the Principal Borrower makes the
representations set out in Clause 19.20 (No Winding Up) to Clause 19.33
(Good Title to Assets). The Shareholder makes the representations set
out in Clause 19.1 (Status) to Clause 19.4 (Execution of Finance
Documents), Clause 19.6 (Audited Financial Statements), Clause 19.7
(Original Financial Statements), Clause 19.9 (Validity and
Admissibility in Evidence) to Clause 19.12 (Business Plan), Clause
19.18 (No Trading), Clause 19.22 (Information Memorandum) and Clause
19.27 (Encumbrances and Financial Indebtedness). The Parent makes the
representations and warranties set out in Clause 19.1 (Status) to
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Clause 19.4 (Execution of the Finance Documents), Clause 19.8 (Validity
and Admissibility in Evidence), Clause 19.13 (Initial Parent
Information) to Clause 19.19 (Ownership of the Shareholder), sub-clause
19.24.1 of Clause 19.24 (Other Information) and Clause 19.30 (Consents
and Approvals). The Original Obligors and the Parent acknowledge that
the Finance Parties have entered into this Agreement in reliance on
those representations and warranties.
The Finance Parties agree that the representations on the Information
Memorandum set out in Clause 19.22 (Information Memorandum) and
provided by the Shareholder supersede and replace any representations
relating to the Information Memorandum made by the Parent prior to the
date of this Agreement.
19.1 STATUS
It is a corporation duly organised under the laws of its jurisdiction
of incorporation and has the power and all necessary governmental and
other consents, approvals, licences and authorisations under any
applicable jurisdiction to own its property and assets and to carry on
its business as currently conducted, save where the failure to have
such consents, approvals, licences and authorisations could not
reasonably be expected to have a Material Adverse Effect.
19.2 GOVERNING LAW AND JUDGMENTS
In any proceedings taken in its jurisdiction of incorporation in
relation to the Finance Documents to which it is a party, the choice of
English law as the governing law of this Agreement and the choice of
English, Swiss, Dutch or, as the case may be, Austrian law as the
governing law of certain other of the Finance Documents to which it is
a party and any judgment obtained in England, Switzerland, The
Netherlands or, as the case may be, Austria will (subject to the
Reservations) be recognised and enforced.
19.3 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in the Finance Documents
to which it is a party are legal and valid obligations and (subject to
the Reservations) binding on it and enforceable against it in
accordance with the terms thereof.
19.4 EXECUTION OF THE FINANCE DOCUMENTS
Its execution of the Finance Documents to which it is a party and, if
applicable, the Acquisition Documents to which it is a party and its
exercise of its rights and performance of its obligations thereunder do
not and will not:
19.4.1 conflict with any agreement, mortgage, bond or other
instrument or treaty to which it is a party or which is
binding upon it or any of its assets in a manner that could
reasonably be expected to have a Material Adverse Effect;
19.4.2 conflict with its constitutive documents; or
19.4.3 conflict with any applicable law.
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It has the power to enter into and perform its obligations under the
Finance Documents to which it is a party and, if applicable, the
Acquisition Documents to which it is a party and all corporate and
other action required to authorise the execution of such Finance
Documents and Acquisition Documents and the performance of its
obligations thereunder has been duly taken. No limit on its powers will
be exceeded as a result of the borrowings, granting of security or
giving of guarantees contemplated by the Finance Documents to which it
is a party.
19.5 NO MATERIAL PROCEEDINGS
No action or administrative proceeding of or before any court,
arbitrator or agency (including, but not limited to, investigative
proceedings) which could reasonably be expected to have a Material
Adverse Effect has been started or threatened against it or its assets.
19.6 AUDITED FINANCIAL STATEMENTS
Its most recent audited financial statements (consolidated in the case
of the Shareholder and the Principal Borrower) delivered to the Agent
in accordance with Clause 20 (Financial Information):
19.6.1 were prepared in accordance with accounting principles
generally accepted in its jurisdiction of incorporation and
consistently applied;
19.6.2 disclose all material liabilities (contingent or otherwise)
and all material unrealised or anticipated losses of such
Obligor, any member of the Restricted Group or, as the case
may be, any member of the Group; and
19.6.3 save as disclosed therein, give a true and fair view of the
financial condition and operations of such Obligor, the
Restricted Group or, as the case may be, the Group during the
relevant financial year.
19.7 ORIGINAL FINANCIAL STATEMENTS
Its financial statements (referred to in paragraphs (b) and (c) of the
definition of Original Financial Statements) and, in the case of the
Shareholder, the financial statements of the Cablecom Business
(referred to in paragraph (a) of the definition of Original Financial
Statements), to the best of its knowledge and belief (having made all
reasonable efforts to make due and careful enquiry):
19.7.1 were prepared in accordance with accounting principles
generally accepted in Switzerland and consistently applied;
19.7.2 disclose all material liabilities (contingent or otherwise)
and all material unrealised or anticipated losses of it and,
in the case of the Shareholder, the Cablecom Business; and
19.7.3 save as disclosed therein, give a true and fair view of the
financial condition and operations of it and, in the case of
the Shareholder, the Cablecom Business during the period to
which such financial statements relate.
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64
19.8 NO MATERIAL ADVERSE CHANGE
Since the date as at which its most recent audited financial statements
(consolidated, in the case of the Principal Borrower) were stated to be
prepared, there has been no change in its business or financial
condition or, in the case of the Principal Borrower, in the business or
financial condition of any member of the Restricted Group or of the
Restricted Group taken as a whole which, in each case, could reasonably
be expected to have a Material Adverse Effect.
19.9 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All acts, conditions and things required to be done, fulfilled and
performed in order:
19.9.1 to enable it lawfully to enter into, exercise its rights under
and perform and comply with the obligations expressed to be
assumed by it in the Finance Documents to which it is a party;
19.9.2 to ensure that the obligations expressed to be assumed by it
in the Finance Documents to which it is a party are legal,
valid and (subject to the Reservations) binding and
enforceable; and
19.9.3 subject to the Reservations, to make the Finance Documents
admissible in evidence in its jurisdiction of incorporation,
have been (or will be, no later than the latest time allowed by
applicable law or procedure) done, fulfilled and performed.
19.10 NO FILING OR STAMP TAXES
Under the laws of its jurisdiction of incorporation in force at the
date hereof, it is not necessary that the Finance Documents to which it
is a party be filed, recorded or enrolled with any court or other
authority in such jurisdiction or that any stamp, registration or
similar tax be paid on or in relation to such Finance Documents, other
than fees and duties relating to public deeds and entries in public
registries which may be required to be made or paid in respect of the
Security Documents.
19.11 LEGAL AND BENEFICIAL OWNER
Subject to (a) any Permitted Encumbrances, (b) any security granted
under the Security Documents to which it is a party and (c) any
disclosures in the Disclosure Letter, it is the absolute legal and,
where applicable, beneficial owner of all its material assets, which
are subject to any such Security and/or are employed in and necessary
for the operation of its business in accordance with the Business Plan.
19.12 BUSINESS PLAN
The Business Plan has been prepared using accounting policies,
practices and procedures consistent, in all material respects, with
those applied in the preparation of the Original Financial Statements.
After due and careful consideration, the Shareholder, having made all
reasonable efforts to make due and careful enquiries in connection with
the Acquisition:
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65
19.12.1 is not aware of any material inaccuracy as to factual matters
relating to the Cablecom Business contained in the Business
Plan;
19.12.2 does not (as at the date hereof) regard as unreasonable, or to
any material extent, unattainable, any of the forecasts or
projections set out in the Business Plan;
19.12.3 believes (having made all reasonable enquiries) the
assumptions, upon which the forecasts and projections in
relation to the Cablecom Business contained in the Business
Plan are based, to be fair and reasonable in all material
respects;
19.12.4 is not aware of any facts or matters omitted from the Business
Plan or the Original Financial Statements, the omission of
which make any statements contained therein misleading in any
material respect; and
19.12.5 has made full disclosure of all material facts relating to the
Cablecom Business to all the persons responsible for the
preparing of the Business Plan.
19.13 INITIAL PARENT INFORMATION
19.13.1 All of the written information (other than the Information
Memorandum) supplied by any member of the NTL Inc. Group, any
member of the NTL Inc. Holding Group or any of their advisers
to the Agent, the Banks or their advisers in connection with
the Finance Documents was, to the best of its knowledge and
belief (having made all reasonable efforts to make due and
careful enquiry), true, complete and accurate in all material
respects as at the date such information was supplied (or at
such subsequent date, prior to the date of this Agreement, on
which such information was revised, replaced or corrected) and
is not misleading in any material respect.
19.13.2 The Parent has not knowingly failed to disclose to the
Arrangers or the Agent any material facts or circumstances
which would be reasonably likely, if disclosed, to affect
adversely the decision of a person considering whether or not
to provide finance (or finance on the terms hereof) to the
Borrowers.
19.14 GROUP STRUCTURE
19.14.1 The Group Structure Chart delivered to the Agent pursuant to
Clause 2.3 (Conditions Precedent) and any revised Group
Structure Chart delivered to the Agent pursuant to Clause
22.31 (Revised Group Structure) is (in the case all of the
information set out therein, other than that relating to
paragraph (e) of the definition thereof) true, complete and
accurate and (in the case of the information set out therein
relating to paragraph (e) of the definition thereof) true,
complete and accurate in all material respects, in each case
as at the date of its delivery to the Agent.
19.14.2 The Hivedown and all necessary inter-company loans, share
transfers, share exchanges and other steps resulting in the
final structure set out in the Group Structure Chart have been
taken in compliance with all relevant laws and regulations and
all requirements of relevant regulatory authorities.
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19.15 NO NTL INC. HOLDING GROUP WINDING-UP
No member of the NTL Inc. Holding Group has taken any corporate action
nor have any other steps been taken or legal proceedings been started
or (to the best of its knowledge and belief) threatened against any
member of the NTL Inc. Holding Group for its winding-up, dissolution,
administration or re-organisation (whether by voluntary arrangement,
scheme of arrangement or otherwise) or for the appointment of a
receiver, administrator, administrative receiver, conservator,
custodian, trustee or similar officer of it or of any or all of its
assets or revenues.
19.16 NO NTL NOTE DEFAULTS
19.16.1 No NTL Note issued by any member of the NTL Inc. Holding Group
(a) remains as to its principal, capital or nominal amount
(including capitalised interest) unpaid when due or within any
grace period provided for or otherwise allowed in relation
thereto or (b) has been declared to be or has otherwise become
due and payable prior to its specified maturity (on account of
an event of default (howsoever described)).
19.16.2 No breach of or default under any NTL Note issued by any
member of the NTL Inc. Holding Group will occur as a result of
the completion of the Acquisition, the Hivedown and the
Parent's and the Obligors' entry into the Finance Documents
and performance of their obligations thereunder.
19.17 ACQUISITION DOCUMENTS
19.17.1 Save for (a) minor or technical amendments, variations or
waivers, (b) amendments, variations or waivers approved in
writing by the Agent and (c) disclosures made in the
Disclosure Letter, there has been no amendment to, or
variation or waiver of, the terms of the Acquisition
Documents.
19.17.2 Subject to any disclosures in the Disclosure Letter, it is not
aware of any event, fact or circumstance which would
constitute a material breach of warranty or misrepresentation
or material breach of contract in respect of an Acquisition
Document, or otherwise allow it to make any other claim (other
than minor claims of a non material nature) against either the
Vendor or the Vendor's shareholders.
19.18 NO TRADING
Save as contemplated by, or otherwise in connection with, the Finance
Documents, the Hivedown and the Acquisition Documents and the
transactions contemplated hereby or thereby, the Shareholder has not
traded or undertaken any commercial activities of any kind and has no
liabilities or obligations (actual or contingent).
19.19 OWNERSHIP OF THE SHAREHOLDER
The Shareholder is, on the date hereof, a wholly owned indirect
subsidiary of the Parent.
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19.20 NO WINDING-UP
Save for a solvent liquidation of a dormant member of the Restricted
Group which is not an Obligor, neither the Shareholder nor any member
of the Restricted Group has taken any corporate action nor have any
other steps been taken or legal proceedings been started or (to the
best of its knowledge and belief) threatened against the Shareholder or
any member of the Restricted Group for its winding-up, dissolution,
administration or re-organisation (whether by voluntary arrangement,
scheme of arrangement or otherwise) or for the appointment of a
receiver, administrator, administrative receiver, conservator,
custodian, trustee or similar officer of it or of any or all of its
assets or revenues.
19.21 NO MATERIAL DEFAULTS
No member of the Restricted Group is in breach of or in default under
any agreement to which it is a party or which is binding on it or any
of its assets to an extent or in a manner which could reasonably be
expected to have a Material Adverse Effect.
19.22 INFORMATION MEMORANDUM
The factual information contained in the Information Memorandum is, to
the best of its knowledge and belief (having made all reasonable
efforts to make due and careful enquiry), correct in all material
respects and does not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements contained therein not materially misleading in light of the
circumstances under which such statements were made. The financial
projections contained therein have been made in good faith and on the
basis of assumptions believed by the Shareholder to be reasonable and
nothing has occurred since the date of the Information Memorandum that
renders the information contained in the Information Memorandum untrue
or misleading in any material respect.
19.23 BUDGETS
It:
19.23.1 regards (as at the date each Budget is delivered to the Agent)
as neither unreasonable, nor to any material extent
unattainable, any of the forecasts or projections set out in
the latest Budget delivered under Clause 20.5 (Budgets);
19.23.2 believes (having made all reasonable enquiries) the
assumptions, upon which the forecasts and projections in
relation to the Cablecom Business contained in the latest
Budget delivered under Clause 20.5 (Budgets) are based, to be
fair and reasonable; and
19.23.3 has, to the best of its knowledge and belief (having made all
reasonable efforts to make due and careful enquiry), made full
disclosure of all material facts relating to the Cablecom
Business to all the persons responsible for the preparing of
the latest Budget delivered under Clause 20.5 (Budgets).
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19.24 OTHER INFORMATION
All written information (other than the Information Memorandum)
supplied:
19.24.1 in the case of the Parent, by the Parent prior to the date of
this Agreement; or
19.24.2 in the case of the Principal Borrower, by any member of the
Restricted Group,
is true, complete and accurate in all material respects as at the date
it was given and is not misleading in any material respect.
19.25 ENVIRONMENTAL COMPLIANCE
Each member of the Restricted Group has complied in all material
respects with all Environmental Law and obtained and maintained any
Environmental Permits breach of which or, as the case may be, failure
to obtain or maintain which, could reasonably be expected to have a
Material Adverse Effect.
19.26 ENVIRONMENTAL CLAIMS
No Environmental Claim has been commenced or (to the best of the
Principal Borrower's knowledge and belief) is threatened against any
member of the Restricted Group where such claim would be reasonably
likely, if determined against such member of the Restricted Group, to
have a Material Adverse Effect.
19.27 ENCUMBRANCES AND FINANCIAL INDEBTEDNESS
19.27.1 Save (in each case) for Permitted Encumbrances, no Encumbrance
exists over all or any of the present or future revenues or
assets of it and, in the case of the Principal Borrower, any
member of the Restricted Group.
19.27.2 Save (in each case) for Permitted Financial Indebtedness, it
has no Financial Indebtedness and, in the case of the
Principal Borrower, no member of the Restricted Group has any
Financial Indebtedness.
19.28 OWNERSHIP OF THE PRINCIPAL BORROWER
The Principal Borrower and, prior to the completion of the Initial
Mergers, CC AG are wholly-owned subsidiaries of the Shareholder.
19.29 ORIGINAL GUARANTORS
The aggregate EBITDA of the Original Guarantors for the financial year
ended 31 December 1999 equals or exceeds 95% of the aggregate EBITDA of
the Cablecom Business for that financial year.
19.30 CONSENTS AND APPROVALS
19.30.1 All necessary consents, licences, authorisations and approvals
in relation to the transactions constituted by the Acquisition
Documents and the Finance Documents have been obtained and,
save in each case where failure to obtain the same could not
reasonably be expected to have a Material Adverse Effect, all
consents, licences (including, without limitation, the
Licences), authorisations and other approvals necessary for
the conduct of the business of
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the Restricted Group as carried on immediately prior to the
Acquisition have been, or when required will be obtained and,
to the best of its knowledge and belief, their terms and
conditions have been complied with and they have not been and
will not be revoked or otherwise terminated.
19.30.2 All Swiss tax consents, tax rulings, authorisations,
clearances and approvals either have been or will, to the best
of its knowledge and belief, be obtained:
(a) to allow the equity contribution of the Principal
Borrower and CC AG to the Shareholder to be made
without incurring capital duty tax;
(b) to allow the income and interest expenses of the
members of the Restricted Group to be treated in
accordance with the Business Plan;
(c) to allow the Initial Mergers to be completed; and
(d) confirming compliance with the Swiss thin
capitalisation rules
19.31 SECURITY INTEREST
19.31.1 Subject (in each case) to the Reservations, each Security
Document creates the security interest which that Security
Document purports to create or, if that Security Document
purports to evidence a security interest, accurately evidences
a security interest which has been validly created and each
security interest ranks in priority as specified in the
Security Document creating or evidencing that interest.
19.31.2 Subject to the disclosures in the Disclosure Letter, the
shares of any Restricted Group member which are subject to an
Encumbrance under the Security Documents are fully paid and
not subject to any option to purchase or similar rights and
the constitutional documents of any such Restricted Group
member do not and could not restrict or inhibit (whether
absolutely, partly, under a discretionary power or otherwise)
any transfer of such shares pursuant to enforcement of the
Security Documents.
19.32 INTELLECTUAL PROPERTY
It is not aware of any adverse circumstance relating to validity,
subsistence or use of any of its or any member of the Restricted
Group's Intellectual Property which could reasonably be expected to
have a Material Adverse Effect.
19.33 GOOD TITLE TO ASSETS
Subject to the disclosures in the Disclosure Letter, each member of the
Restricted Group has good title to or valid leases of or other
appropriate licence, authorisation or consent to use its assets
necessary to carry on its business as presently conducted (including,
without limitation and subject to Permitted Disposals, the fibre-optic
backbone network, headends, switches and hybrid fibre coax networks
identified in the Information Memorandum).
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19.34 REPETITION OF REPRESENTATIONS
The Repeated Representations shall be deemed to be repeated by the
Parent or, as the case may be, the relevant Obligor by reference to the
facts and circumstances then existing on the first day of each Interest
Period, on each date on which an Advance is or is to be made and on
each date on which a company becomes (or it is proposed that a company
becomes) an Additional Obligor, and Clause 19.22 (Information
Memorandum) shall be deemed to be made on the date that the Information
Memorandum is approved by the Shareholder and (save as otherwise
disclosed by the Shareholder, in writing to the Agent, prior to the
Syndication Date) on the Syndication Date.
20. FINANCIAL INFORMATION
20.1 ANNUAL STATEMENTS
Each Obligor shall as soon as the same become available, but in any
event within 120 days after the end of each of its financial years,
deliver to the Agent in sufficient copies for the Banks its
unconsolidated financial statements (and, in the case of the Principal
Borrower, the consolidated financial statements of the Restricted Group
and, in the case of the Shareholder, the consolidated financial
statements of the Group) for such financial year, audited by an
internationally recognised firm of independent auditors licensed to
practise in its jurisdiction of incorporation.
20.2 QUARTERLY STATEMENTS
20.2.1 The Principal Borrower shall as soon as the same become
available but in any event within 45 days after the end of
each Financial Quarter deliver to the Agent in sufficient
copies for the Banks the consolidated financial statements of
the Restricted Group for such period.
20.2.2 The Principal Borrower shall, together with each set of
financial statements delivered under sub-clause 20.2.1 above,
deliver to the Agent a certificate signed by an Authorised
Signatory of the Principal Borrower identifying, in relation
to each Obligor that has (or requires to have) any Intra-Group
Loan(s) from other Obligor(s), the maximum aggregate principal
amount of such Intra-Group Loans that the relevant borrower
Obligor can have outstanding (in relation to a relevant
borrower Obligor, its "MAXIMUM INTRA-GROUP LOANS") if (a) that
borrower Obligor, together with its direct and indirect
holding companies which are Guarantors, are to be able to
service in full all of the relevant borrower Obligor's
indebtedness under the Facilities and all relevant Intra-Group
Loans payable prior to 30 September 2010 out of the projected
income (including, if relevant, dividend receipts) of the
relevant borrower Obligor and such holding companies and (b)
such borrower Obligor is to have sufficient taxable income to
ensure full tax deductibility of all interest payable by it
under the Facilities.
20.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
Each Obligor shall ensure that each set of financial statements
delivered by it pursuant to this Clause 20 is certified by an
Authorised Signatory of such Obligor as giving a
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true and fair view of its financial condition (and in the case of the
Principal Borrower, the consolidated financial condition of the
Restricted Group and, in the case of the Shareholder, the consolidated
financial condition of the Group) as at the end of the period to which
those financial statements relate and of the results of its (or, as the
case may be, the Restricted Group's or the Group's) operations during
such period.
20.4 COMPLIANCE CERTIFICATES
The Principal Borrower shall ensure that each set of consolidated
financial statements delivered by it pursuant to Clause 20.1 (Annual
Statements) and Clause 20.2 (Quarterly Statements) is accompanied by a
Compliance Certificate signed by two of its Authorised Signatories.
20.5 BUDGETS
The Principal Borrower shall, as soon as the same become available, and
in any event no later than 30 days prior to the beginning of each of
its financial years, deliver to the Agent in sufficient copies for the
Banks an annual budget (in a form agreed with the Agent) prepared by
reference to each Financial Quarter in respect of such financial year
of the Restricted Group including:
20.5.1 forecasts of projected disposals (including timing and amount
thereof) on a consolidated basis of the Restricted Group for
such financial year;
20.5.2 projected annual profit and loss accounts (including projected
turnover and operating costs) and projected balance sheets and
cash flow statements, together with the main operating
assumptions relating thereto, on a quarterly basis, for such
financial year on a consolidated basis for the Restricted
Group;
20.5.3 revisions to the projections set out in the Business Plan,
together with the main operating assumptions relating thereto,
for such financial year until 31 March 2010, based on the
financial condition and performance and prospects of the
Restricted Group at such time;
20.5.4 projected capital expenditure to be incurred on a quarterly
basis for such financial year on a consolidated basis for the
Restricted Group;
20.5.5 projected EBIT and EBITDA as at the end of each Financial
Quarter in such financial year; and
20.5.6 a qualitative analysis and commentary from the management on
its proposed activities for such financial year.
The Principal Borrower shall provide the Agent with details of any
material changes in the projections delivered under this Clause 20.5 as
soon as reasonably practicable after it becomes aware of any such
change.
20.6 ACCOUNTANTS' LETTER
The Principal Borrower shall, together with each Budget delivered under
Clause 20.5 (Budgets), deliver to the Agent a letter from its
accountants substantially similar to the
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Accountants' Letter confirming that, based upon the projections set out
in such Budget, each Borrower as at the date of such a letter will
have:
20.6.1 projected income (including, if relevant, dividend receipts)
sufficient to enable it to service, in full, all its
indebtedness under the Facilities and any other Permitted
Financial Indebtedness of that Borrower; and
20.6.2 sufficient taxable income to ensure full tax deductibility on
all interest payments to be made by it under the Facilities,
or, to the extent either sub-clause 20.6.1 or 20.6.2 will not be
satisfied based upon such projections, identifying any relevant
shortfalls and indicating how the Borrowers intend to address those
shortfalls.
20.7 OTHER FINANCIAL INFORMATION
Each Obligor shall from time to time on the request of the Agent,
furnish the Agent with such information about the business, condition
(financial or otherwise), operations, performance, properties or
prospects of the Restricted Group as the Agent or any Bank (through the
Agent) may reasonably require PROVIDED THAT no Obligor shall be under
any obligation to supply any information the supply of which it can
demonstrate would be contrary to any confidentiality obligation binding
on it.
20.8 ACCOUNTING POLICIES
Each Obligor shall ensure that each set of financial statements
delivered pursuant to this Clause 20 is prepared using accounting
policies, practices, procedures and reference period consistent with
those applied in the preparation of the Original Financial Statements
unless, in relation to any such set of financial statements, the
relevant Obligor notifies the Agent that there have been one or more
changes in any such accounting policies, practices, procedures or
reference period and:
20.8.1 the auditors of such Obligor provide:
(a) a description of the changes and the adjustments
which would be required to be made to those financial
statements in order to cause them to use the
accounting policies, practices, procedures and
reference period upon which the Original Financial
Statements of such Obligor were prepared; and
(b) sufficient information, in such detail and format as
may be reasonably required by the Agent, to enable
the Banks to make an accurate comparison between the
financial position indicated by those financial
statements and the Original Financial Statements of
such Obligor,
in which case any reference in this Agreement to those
financial statements shall be construed as a reference to
those financial statements as adjusted to reflect the basis
upon which the Original Financial Statements were prepared; or
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20.8.2 the Principal Borrower also notifies the Agent that it is no
longer practicable to test compliance with the financial
condition set out in Clause 21.1 (Financial Condition) against
the financial statements received in which case:
(a) the Agent and the Principal Borrower shall enter into
negotiations with a view to agreeing alternative
financial conditions to replace those contained in
Clause 21.1 (Financial Condition) in order to
maintain a consistent basis for the financial
covenants; and
(b) if, after three months commencing on the date of the
notice given to the Agent pursuant to this sub-clause
20.8.2, the Agent and the Principal Borrower cannot
agree alternative financial conditions which are
acceptable to an Instructing Group, the Agent shall
refer the matter to such internationally recognised
accounting firm as may be agreed between the
Principal Borrower and an Instructing Group for
determination of the adjustments required to be made
to such financial statements or the calculation of
such ratios to take account of such change, such
determination to be binding on the parties hereto,
PROVIDED THAT pending such determination the
Principal Borrower shall continue to prepare
financial statements and calculate such ratios in
accordance with sub-clause 20.8.1 above.
20.9 GENERAL INFORMATION
The Principal Borrower shall, as soon as reasonably practicable,
furnish the Agent with such general information as it or any member of
the Restricted Group is required by law to supply or make available to
its (or such member of the Restricted Group's) (a) shareholders (in
their capacity as such) or (b) creditors generally or any class
thereof.
20.10 LITIGATION AND GOVERNMENT OR REGULATORY ENQUIRY
The Shareholder (in respect of itself) and the Principal Borrower (in
respect of itself and each other member of the Restricted Group) shall
advise the Agent forthwith of the details of:
20.10.1 any litigation, arbitration or administrative proceedings
pending or threatened against it or, as the case may be, any
other member of the Restricted Group which may result in
liability of it or, as the case may be, such other member of
the Restricted Group in an amount in excess of CHF2,000,000
(or its equivalent); and
20.10.2 any notice or communication received by it or, as the case may
be, any other member of the Restricted Group from, or any
actual or potential enquiry, investigation or proceedings
commenced by, any government, court or regulatory agency or
authority, if such notice, communication, enquiry,
investigation or proceedings could reasonably be expected to
have a Material Adverse Effect.
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20.11 ACQUISITION INFORMATION
The Parent shall from time to time, on the request of the Agent,
provide the Agent with any material information in the possession of
any member of either the NTL Inc. Holding Group or the Group relating
to the Acquisition as the Agent may reasonably request provided that
the Parent shall be under no obligation to supply any information the
supply of which it can demonstrate would be contrary to any
confidentiality obligation binding on it or on any member of the NTL
Inc. Holding Group or the Group.
20.12 ORIGINAL PRO-FORMA FINANCIAL STATEMENTS
The Principal Borrower shall, within 30 Business Days of the date
hereof, deliver to the Agent in sufficient copies for the Banks the
financial statements referred to in paragraph (a) of the definition of
the Original Financial Statements.
21. FINANCIAL CONDITION
21.1 FINANCIAL CONDITION
The Principal Borrower shall ensure that the financial condition of the
Restricted Group shall be such that:
21.1.1 Ratio of Senior Debt to Annualised EBITDA
The ratio of the Senior Debt of the Restricted Group on each
of the Quarter Dates specified in column one below to the
Annualised EBITDA of the Restricted Group for the Financial
Quarter ended on that date shall be no greater than the ratio
set out in column two below corresponding to that date.
--------------------------------------------------------------------------------------------------
COLUMN ONE COLUMN TWO COLUMN ONE COLUMN TWO
QUARTER DATE SENIOR DEBT: ANNUALISED QUARTER DATE SENIOR DEBT: ANNUALISED
EBITDA EBITDA
--------------------------------------------------------------------------------------------------
30 June 2000 20.00:1 30 September 2005 4.50:1
30 September 2000 21.45:1 31 December 2005 4.25:1
31 December 2000 22.25:1 31 March 2006 3.50:1
31 March 2001 19.75:1 30 June 2006 3.00:1
30 June 2001 18.25:1 30 September 2006 3.00:1
30 September 2001 18.25:1 31 December 2006 2.75:1
31 December 2001 18.25:1 31 March 2007 2.50:1
31 March 2002 15.00:1 30 June 2007 2.25:1
30 June 2002 13.00:1 30 September 2007 2.25:1
30 September 2002 13.00:1 31 December 2007 2.00:1
31 December 2002 13.00:1 31 March 2008 2.00:1
31 March 2003 10.50:1 30 June 2008 1.50:1
30 June 2003 8.75:1 30 September 2008 1.50:1
30 September 2003 8.75:1 31 December 2008 1.50:1
31 December 2003 8.75:1 31 March 2009 1.00:1
31 March 2004 7.00:1 30 June 2009 1.00:1
30 June 2004 6.00:1 30 September 2009 1.00:1
30 September 2004 6.00:1 31 December 2009 1.00:1
31 December 2004 6.00:1
31 March 2005 5.00:1
30 June 2005 4.50:1
--------------------------------------------------------------------------------------------------
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21.1.2 Total Cash Interest Cover Ratio
The ratio of the EBITDA of the Restricted Group for each Relevant
Period ended on the Quarter Dates specified in column one below to the
Consolidated Finance Charges of the Restricted Group for that Relevant
Period shall be equal to or greater than the ratio set out in column
two below corresponding to that date.
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COLUMN ONE COLUMN TWO COLUMN ONE COLUMN TWO
QUARTER DATE EBITDA: QUARTER DATE EBITDA:
CONSOLIDATED FINANCE CONSOLIDATED FINANCE
CHARGES CHARGES
-------------------------------------------------------------------------------------------
30 June 2001 1.00:1 30 September 2003 2.10:1
30 September 2001 1.00:1 31 December 2003 2.10:1
31 December 2001 1.00:1 31 March 2004 2.50:1
31 March 2002 1.20:1 30 June 2004 2.75:1
30 June 2002 1.40:1 30 September 2004 3.00:1
30 September 2002 1.40:1 31 December 2004 3.10:1
31 December 2002 1.40:1 31 March 2005 3.50:1
31 March 2003 1.75:1 30 June 2005 3.50:1
30 June 2003 2.10:1 30 September 2005 3.50:1
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31 December 2005 3.50:1
and each Quarter Date
thereafter
-------------------------------------------------------------------------------------------
21.1.3 Consolidated Pro-Forma Debt Service Cover Ratio
The ratio of the Annualised EBITDA of the Restricted Group for each
Financial Quarter ended on each of the Quarter Dates specified in
column one below to the Consolidated Pro-Forma Debt Service of the
Restricted Group as at that Quarter Date shall be equal to or greater
than the ratio set out in column two below corresponding to that date.
------------------------------------------------------------------------------------------------
COLUMN ONE COLUMN TWO COLUMN ONE COLUMN TWO
QUARTER DATE ANNUALISED EBITDA: QUARTER DATE ANNUALISED EBITDA:
PRO-FORMA DEBT SERVICE PRO-FORMA DEBT SERVICE
------------------------------------------------------------------------------------------------
31 March 2003 1.45:1 30 September 2006 1.25:1
30 June 2003 1.45:1 31 December 2006 1.25:1
30 September 2003 1.35:1 31 March 2007 1.25:1
31 December 2003 1.20:1 30 June 2007 1.25:1
31 March 2004 1.35:1 30 September 2007 1.25:1
30 June 2004 1.35:1 31 December 2007 1.25:1
30 September 2004 1.35:1 31 March 2008 1.30:1
31 December 2004 1.35:1 30 June 2008 1.30:1
31 March 2005 1.30:1 30 September 2008 1.30:1
30 June 2005 1.30:1 31 December 2008 1.30:1
30 September 2005 1.20:1 31 March 2009 1.20:1
31 December 2005 1.10:1 30 June 2009 1.50:1
31 March 2006 1.20:1 30 September 2009 1.75:1
30 June 2006 1.25:1 31 December 2009 2.00:1
------------------------------------------------------------------------------------------------
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21.2 FINANCIAL DEFINITIONS
In this Agreement the following terms have the following meanings.
"ANNUALISED EBITDA" means:
(a) with respect to any calculations made under sub-clause
6.1.7(a) of Clause 6.1 (Drawdown Conditions for Revolving
Advances), the consolidated EBITDA of the Restricted Group for
the financial year ended 31 December 1999;
(b) with respect to (i) any calculations made under sub-clause
6.1.7(b) of Clause 6.1 (Drawdown Conditions for Revolving
Advances) prior to the delivery to the Agent of the
consolidated financial statements of the Restricted Group for
the Financial Quarter ended 31 September 2000 and (ii) the
calculation of the ratio of Senior Debt to Annualised EBITDA
on 30 June 2000 under this Clause 21, the consolidated EBITDA
of the Restricted Group for the Financial Quarter ended on 30
June 2000, multiplied by four; and
(c) with respect to any other Quarter Date, the consolidated
EBITDA of the Restricted Group for the Relevant Period ended
on such Quarter Date, multiplied by two.
"CONSOLIDATED FINANCE CHARGES" means, in respect of each Relevant
Period, the aggregate amount of the interest (including the interest
element of leasing and hire purchase payments) commission, fees and
other periodic finance payments paid or due and payable by any member
of the Restricted Group in cash in respect of Financial Indebtedness
during such a Relevant Period,
(a) including any commission, fees and other finance payments
payable by any member of the Restricted Group in cash under
any interest rate hedging arrangement;
(b) deducting any commission, fees and other finance payments
receivable by any member of the Restricted Group under any
interest rate hedging instrument permitted by this Agreement;
and
(c) excluding, for the avoidance of doubt, any capitalised
interest in respect of any Subordinated Funding or any other
payment in relation to Subordinated Funding which cannot be
made due to the subordination of such Subordinated Funding
remaining in full force and effect.
"CONSOLIDATED PRO-FORMA DEBT SERVICE" means, on any Quarter Date, the
aggregate of:
(a) save to the extent such will be immediately available for
reborrowing, all scheduled repayments of principal in respect
of the Facilities over the immediately succeeding twelve month
period after such Quarter Date; and
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77
(b) the Consolidated Finance Charges of the Restricted Group for
the Relevant Period ended on such Quarter Date, multiplied by
two.
"CURRENT ASSETS" means the aggregate of inventory, trade and other
receivables of each member of the Restricted Group including sundry
debtors (but excluding cash at bank) maturing within twelve months from
the date of computation and excluding amounts due from either the
Vendor or the Vendor's shareholders in connection with the Acquisition.
"CURRENT LIABILITIES" means the aggregate of all liabilities (including
trade creditors, accruals and provisions and prepayments) of each
member of the Restricted Group falling due within twelve months from
the date of computation but excluding consolidated aggregate
Indebtedness for Borrowed Money of the Restricted Group falling due
within such period and any interest on such Indebtedness for Borrowed
Money due in such period and excluding amounts due to the Vendor in
connection with the Acquisition.
"EBIT" means, in respect of any period, the consolidated net income of
the Restricted Group for such period adding back (only to the extent,
in each case, deducted in calculating such consolidated net income):
(a) any provision on account of taxation;
(b) any interest (including capitalised interest), commission,
discounts or other fees incurred or payable, received or
receivable, by any member of the Restricted Group in respect
of Indebtedness for Borrowed Money;
(c) any amounts received or paid pursuant to the interest hedging
arrangements entered into in respect of the Facilities; and
(d) any items treated as exceptional or extraordinary items.
"EBITDA" means, in respect of any period, EBIT for such period adding
back (only to the extent, in each case, deducted in calculating EBIT):
(a) any amount attributable to amortisation of intangible assets
(including goodwill);
(b) depreciation of tangible assets and capitalised costs and
expenses; and
(c) amortisation, or the writing off, of transaction expenses in
relation to the Acquisition,
and deducting any costs and expenses capitalised during such period
(other than costs and expenses incurred in constructing or upgrading
cable networks in the ordinary course of the Restricted Group's
business).
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78
"EXCESS CASH FLOW" means, for any financial year, Operating Cash Flow
for that period LESS
(a) Net Debt Service for that period; and
(b) voluntary prepayments of the Term Facilities during such
period.
"FINANCIAL QUARTER" means the period commencing on the day after one
Quarter Date and ending on the next Quarter Date.
"NET DEBT SERVICE" means, in respect of any financial year, the
aggregate of:
(a) Consolidated Finance Charges for the two Relevant Periods of
that financial year deducting any interest received by any
Obligor on any deposit or bank account; and
(b) save to the extent such were immediately reborrowed, the
aggregate of scheduled and mandatory payments of the
principal, capital or nominal amounts of any Indebtedness for
Borrowed Money which fell due during that financial year
(excluding any such payments which relate to Subordinated
Funding where such payments cannot be made due to the
subordination of such Subordinated Funding remaining in full
force and effect).
"OPERATING CASH FLOW" means, in respect of any financial year, EBITDA
of the Restricted Group for that financial year after:
(a) adding back:
(i) any decrease in the amount of Working Capital at the
end of such a financial year compared against the
Working Capital at the start of such financial year;
and
(ii) any cash receipt in respect of any exceptional or
extraordinary item; and
(b) deducting:
(i) any amount of capital expenditure actually made by
any member of the Restricted Group;
(ii) any increase in the amount of Working Capital at the
end of such financial year compared against the
Working Capital at the start of that financial year;
(iii) any amount actually paid or due and payable in
respect of taxes on the profits of any member of the
Restricted Group; and
(iv) any cash payment in respect of any exceptional or
extraordinary item,
and no amount shall be included or excluded more than once.
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79
"QUARTER DATE" means 31 March, 30 June, 30 September and 31 December in
each year.
"RELEVANT PERIOD" means each period of six months ending on a Quarter
Date.
"SENIOR DEBT" means, at any time (without double counting), the
aggregate principal, capital or nominal amounts (including any
capitalised interest) of indebtedness of any member of the Restricted
Group constituting Indebtedness for Borrowed Money together with any
other indebtedness of any member of the Restricted Group constituting
Indebtedness for Borrowed Money which is due and payable and has not
been paid at such time and in respect of which the grace period (if
any) specified in the documentation relating thereto has expired but:
(a) excluding such Indebtedness for Borrowed Money of any member
of the Restricted Group to another member of the Restricted
Group to the extent permitted under this Agreement; and
(b) excluding any Indebtedness for Borrowed Money to the extent
such is Subordinated Funding.
"WORKING CAPITAL" means on any date Current Assets less Current
Liabilities.
21.3 FINANCIAL TESTING
The financial covenants set out in Clause 21.1 (Financial Condition)
shall be tested by reference to each of the financial statements
delivered pursuant to Clause 20.2 (Quarterly Statements) and/or each
Compliance Certificate delivered pursuant to Clause 20.4 (Compliance
Certificates).
21.4 AUDITOR'S VERIFICATION
The Agent may, at any time if it has reasonable grounds for believing
that the figures prepared by the Principal Borrower are incorrect,
inaccurate or incomplete at the Principal Borrower's expense require
the auditors of the Restricted Group to verify the figures supplied by
the Principal Borrower in connection with:
21.4.1 the financial conditions set out in Clause 21.1 (Financial
Condition); or
21.4.2 the financial conditions to be satisfied in order to permit a
reduction in the Margin in accordance with Clause 5.3 (Margin
Ratchet); or
21.4.3 the financial condition to be satisfied to reduce mandatory
prepayments from Excess Cash flow in accordance with Clause
13.1 (Mandatory Prepayment from Excess Cash Flow).
The Agent may also, in accordance with this Clause 21.4, request
confirmation that any figure in a Compliance Certificate delivered
under Clause 20.4 (Compliance Certificates) has been correctly
extracted from the relevant financial statements delivered under Clause
20 (Financial Information).
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80
21.5 ACCOUNTING TERMS
All accounting expressions which are not otherwise defined herein shall
be construed in accordance with generally accepted accounting
principles in Switzerland.
22. COVENANTS
22.1 MAINTENANCE OF LEGAL VALIDITY
Each Obligor shall:
22.1.1 do all such things as are necessary to maintain its existence
as a legal person save where it shall cease to exist as a
legal person pursuant to the implementation of the
Reorganisation or an Additional Merger; and
22.1.2 obtain, comply with the terms of and do all that is necessary
to maintain in full force and effect all authorisations,
approvals, licences and consents required in or by the laws of
its jurisdiction of incorporation to (a) enable it to lawfully
enter into and perform its obligations under the Finance
Documents to which it is a party and (b) ensure the legality,
validity, admissibility in evidence or (subject to the
Reservations) enforceability in its jurisdiction of
incorporation of the Finance Documents to which it is a party.
22.2 INSURANCE
The Principal Borrower shall procure that each member of the Restricted
Group maintains insurances on and in relation to its business and
assets with reputable underwriters or insurance companies against such
risks and to such extent as is usual for companies carrying on a
business such as that carried on by such member of the Restricted
Group.
22.3 ENVIRONMENTAL COMPLIANCE
The Principal Borrower shall ensure that each member of the Restricted
Group shall comply in all material respects with all Environmental Law
and obtain and maintain any Environmental Permits, breach of which (or
failure to obtain or maintain which) could reasonably be expected to
have a Material Adverse Effect.
22.4 ENVIRONMENTAL CLAIMS
The Principal Borrower shall inform the Agent in writing as soon as
reasonably practicable upon becoming aware of the same if any
Environmental Claim has been commenced or (to the best of the Principal
Borrower's knowledge and belief) is threatened against any member of
the Restricted Group in any case where such claim would be reasonably
likely, if determined against such member of the Restricted Group, to
have a Material Adverse Effect, or of any facts or circumstances which
will or are reasonably likely to result in any Environmental Claim
being commenced or threatened against any member of the Restricted
Group in any case where such claim would be reasonably likely, if
determined against such member of the Restricted Group, to have a
Material Adverse Effect.
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81
22.5 NOTIFICATION OF EVENTS OF DEFAULT
The Principal Borrower shall promptly inform the Agent of the
occurrence of any Event of Default or Potential Event of Default and,
upon receipt of a written request to that effect from the Agent,
confirm to the Agent that, save as previously notified to the Agent or
as notified in such confirmation, no Event of Default or Potential
Event of Default has occurred.
22.6 CLAIMS PARI PASSU
Each Obligor shall ensure that, save for claims preferred by any
bankruptcy, insolvency, liquidation or other similar laws of general
application:
22.6.1 at all times the claims of the Finance Parties against it
under the Finance Documents (other than the Security
Documents) to which it is a party rank at least pari passu
with the claims of all its other unsecured and unsubordinated
creditors; and
22.6.2 at all times the claims of the Finance Parties against it
under the Security Documents to which it is a party rank ahead
of the claims of all its other creditors (other than (if and
to the extent applicable) creditors with the benefit of the
Permitted Encumbrances referred to in paragraphs (d), (e),
(f), (h), (i), (k) and (l) of the definition of that term)
against the assets the subject of the Encumbrances created by
such Security Documents.
22.7 CONSENTS AND APPROVALS
Each Obligor (other than the Shareholder) shall, and the Principal
Borrower shall procure that each member of the Restricted Group shall:
22.7.1 apply for, obtain, preserve, keep in full force and effect and
comply in all material respects with the terms and conditions
of, all consents, licences (including, without limitation, the
Licences), authorisations and other approvals necessary to
allow such Obligor or the Restricted Group to conduct its
business in accordance with the Business Plan; and
22.7.2 to the extent such Obligor or member of the Restricted Group
requires a telecommunication licence under the
Telecommunication Act to conduct its business in accordance
with the Business Plan, obtain or procure that such a licence
is obtained as soon as is reasonably practicable after the
date hereof and, in any event, by 30 June 2001.
Each Obligor shall, and the Principal Borrower shall procure that each
member of the Restricted Group shall, comply with all applicable laws,
rules, regulations and orders and obtain and maintain all governmental
and regulatory consents, licences, authorisations and approvals the
failure to comply with which or the failure to obtain and maintain
which could reasonably be expected to have a Material Adverse Effect.
22.8 CONDUCT OF BUSINESS
Each Obligor (other than the Shareholder) shall, and the Principal
Borrower shall procure that each member of the Restricted Group shall:
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22.8.1 carry on its business, or cause the same to be carried on, in
accordance with the terms and conditions of the Licences in
all material respects and no Obligor shall, and the Principal
Borrower shall procure that no member of the Restricted Group
shall knowingly, do, omit to do or suffer to be done, any act
whereby any person is entitled or empowered to revoke,
materially and adversely amend, suspend, withdraw or terminate
any Licence (except in each case where the failure to comply
with this sub-clause 22.8.1 could not reasonably be expected
to have a Material Adverse Effect); and
22.8.2 save in order to effect the Reorganisation or an Additional
Merger, continue to carry on the business that it carries on
at the date hereof and not enter into any type of business
(other than, for the avoidance of doubt, a business which
relates to the operation of a telecommunications and/or cable
and/or television and/or telephone network or system or the
provision of such services) which would result in a material
change in the business of the Restricted Group taken as a
whole from the business of the Restricted Group as at the date
hereof.
22.9 COMPLIANCE WITH MATERIAL COMMERCIAL CONTRACTS
Each Obligor (other than the Shareholder) shall, and the Principal
Borrower shall procure that each member of the Restricted Group shall:
22.9.1 comply in all material respects with its obligations under
each Material Commercial Contract to which it is party and
take all action necessary to ensure the continued validity and
enforceability of its rights thereunder;
22.9.2 not amend, vary, novate or supplement any such Material
Commercial Contract in any material respect; and
22.9.3 not terminate any such Material Commercial Contract prior to
its contractual termination date,
if such non-compliance, failure to take action, amendment, variation,
novation or supplement, or termination, as the case may be, could
reasonably be expected to have a Material Adverse Effect.
22.10 PRESERVATION OF ASSETS
Each Obligor (other than the Shareholder) shall, and the Principal
Borrower shall procure that each member of the Restricted Group shall,
maintain and preserve all of its assets that are necessary and material
in the conduct of its business as conducted at the date hereof in good
working order and condition (ordinary wear and tear excepted) and shall
maintain in all material respects all books and records which are
necessary in connection therewith or in connection with the conduct of
its business.
22.11 SECURITY
22.11.1 Each Obligor shall, at its own expense, take all such action
as the Agent may reasonably require for the purpose of
perfecting or protecting the Finance Parties' and the
Permitted Facilities Provider's rights under and preserving
the security interests intended to be created or evidenced by
any of the Finance
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83
Documents to which it is a party, and following the making of
any declaration pursuant to Clause 23.19 (Acceleration and
Cancellation) or 23.20 (Advances Due on Demand) for
facilitating the realisation of any such security or any part
thereof.
22.11.2 Each Obligor (other than the Shareholder) shall, to the extent
legally possible and as reasonably required by the Agent
(acting on the instructions of an Instructing Group and having
regard to the cost and expense involved) from time to time, to
the extent practicable create or procure the creation of
security over its material assets (to the extent such are not
secured by the Security Documents) in favour of the Finance
Parties to secure all or any of the obligations of the
Obligors under the Finance Documents and (if applicable) in
favour of the Permitted Facilities Provider to secure its
obligations under any of the documentation relating to the
Secured Permitted Facilities.
22.11.3 The Principal Borrower shall procure that each member of the
Group who is not an Obligor and who utilises any part of the
Secured Permitted Facilities shall, to the extent legally
possible and as reasonably required by the Permitted
Facilities Provider (having regard to the cost and expense
involved), create or procure the creation of security over its
material assets in favour of the Permitted Facilities Provider
to secure all or any of its obligations in respect of the
Secured Permitted Facilities.
22.11.4 Cablecom (Bern) AG shall, as soon as is reasonably practicable
and in any event within 75 days after the date hereof, procure
that any and all existing assignments over its receivables are
discharged and that such receivables are assigned in favour of
the Agent (on behalf of the Finance Parties and the Permitted
Facilities Provider) on the same terms as the Receivables and
Receivables Account Assignment.
22.12 ACCESS
The Shareholder and Principal Borrower shall ensure that any one or
more representatives, agents and advisers of the Agent and/or any of
the Banks will be allowed, on reasonable grounds and with prior notice,
to have access to the assets, books, records and premises of the
Shareholder and each Restricted Group member and be permitted to
inspect the same during normal business hours.
22.13 BANK ACCOUNTS
Each Obligor (other than the Shareholder) shall, and the Principal
Borrower shall ensure that each member of the Restricted Group shall,
pay all sums received by it (whether from customers or otherwise) into
a Receivables Account held by it, which is subject to security pursuant
to the Security Documents.
22.14 VENDOR WARRANTIES
The Parent, Shareholder and the Principal Borrower will, diligently
pursue all material claims for breach of contract or warranty by, or
misrepresentation by, or indemnity or other claim against the Vendor
or, as appropriate, the Vendor's shareholders under or
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84
in connection with any Acquisition Documents, unless the Agent (acting
on the instruction of an Instructing Group) has consented in writing to
such claim not being made.
22.15 AMENDMENTS
22.15.1 Neither the Parent, the Shareholder nor the Principal Borrower
shall, and the Parent shall procure that no relevant member of
the NTL Inc. Holding Group shall, amend, vary, novate,
supplement or terminate any of the Acquisition Documents, the
documentation relating to the Hivedown, any documentation
relating to the Subordinated NTL CV1 Debt or any other
Subordinated Funding, the constitutional documents or any
other document delivered to the Agent pursuant to Clauses 2.3
(Conditions Precedent) or 35.2 (Borrower Conditions Precedent)
or 36.2 (Guarantor Conditions Precedent) or waive any right
thereunder other than (a) any amendment, variation or waiver
which is of a minor or technical nature and (b) any amendments
to such constitutional documents which could not reasonably be
expected to have an adverse effect on the rights of the
Finance Parties under the Finance Documents.
22.15.2 Neither the Shareholder nor the Principal Borrower shall, and
the Principal Borrower shall procure that no member of the
Restricted Group shall without the prior written consent of
the Agent, amend, vary, novate or supplement any documentation
relating to the Secured Permitted Facilities, other than any
amendment, variation or waiver which is of a minor or
technical nature.
22.16 NEGATIVE PLEDGE
No Obligor (other than the Shareholder) shall (and the Principal
Borrower shall ensure that no member of the Restricted Group shall)
without the prior written consent of an Instructing Group, create or
permit to subsist any Encumbrance over all or any of its present or
future revenues or assets other than a Permitted Encumbrance.
22.17 LOANS AND GUARANTEES
No Obligor (other than the Shareholder) shall (and the Principal
Borrower shall ensure that no member of the Restricted Group shall)
without the prior written consent of an Instructing Group, make any
loans, grant any credit or give any guarantee or indemnity (except as
required by the Finance Documents) to or for the benefit of any person
or otherwise voluntarily assume any liability, whether actual or
contingent, in respect of any obligation of any other person other than
Permitted Loans and Guarantees.
22.18 FINANCIAL INDEBTEDNESS
No Obligor shall, and the Principal Borrower shall procure that no
member of the Restricted Group shall, incur, create or permit to
subsist or have outstanding any Financial Indebtedness or enter into
any agreement or arrangement whereby it is entitled to incur, create or
permit to subsist any Financial Indebtedness other than, in either
case, Permitted Financial Indebtedness.
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22.19 ACQUISITIONS AND INVESTMENTS
Other than the Acquisition or Permitted Acquisitions or pursuant to the
implementation of the Reorganisation or Additional Mergers no Obligor
shall, and the Principal Borrower shall procure that no member of the
Restricted Group shall:
22.19.1 purchase, subscribe for or otherwise acquire any shares (or
other securities or any interest therein) in, or incorporate,
any other company or agree to do any of the foregoing; or
22.19.2 purchase or otherwise acquire any assets (other than in the
ordinary course of business), revenues or licences, or
(without limitation to any of the foregoing) acquire any
business or interest therein or agree to do so; or
22.19.3 form, or enter into, any partnership, consortium, joint
venture or other like arrangement or agree to do so.
22.20 DIVIDENDS AND DISTRIBUTIONS
22.20.1 The Principal Borrower shall not (and the Shareholder shall
vote its shares in the Principal Borrower accordingly), and
the Principal Borrower shall procure that no Restricted Group
member shall, pay, make or declare any dividend, return on
capital, repayment of capital contributions or other
distribution (whether in cash or in kind) or make any
distribution of assets or other payment whatsoever in respect
of share capital whether directly or indirectly, save for
Permitted Distributions. On the conversion of a Conversion
Subsidiary in accordance with paragraph (c) of the definition
of the Reorganisation, to the extent any such conversion
involves a decrease in the share capital of such a Conversion
Subsidiary, no dividend, return on capital, repayment of
capital contribution or other distribution to the shareholder
of the Conversion Subsidiary shall be made.
22.20.2 The Principal Borrower shall not, and shall procure that no
Restricted Group member shall, pay any interest or return on
principal or repayment of principal or other distribution (in
cash or in kind) or make any distribution of assets or other
payment whatsoever in respect of any indebtedness which
constitutes Subordinated Funding, save for Permitted
Distributions.
22.21 DISPOSALS
No Obligor shall, and the Principal Borrower shall ensure that no
member of the Restricted Group shall, without the prior written consent
of an Instructing Group, sell, lease, transfer or otherwise dispose of
(including, without limitation, a sale or transfer of an asset where
such is or may be leased to or re-acquired or acquired by a member of
the Restricted Group), by one or more transactions or series of
transactions (whether related or not), the whole or any part of its
revenues or its assets (limited, in the case of the Shareholder, to its
shareholdings in members of the Restricted Group) other than (a) in the
implementation of the Reorganisation or pursuant to an Additional
Merger and (b) Permitted Disposals.
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86
22.22 MERGERS
No Obligor shall, and the Principal Borrower shall ensure that no
member of the Restricted Group shall merge or consolidate with any
other person, enter into any demerger transaction or participate in any
other type of corporate reconstruction (including, without limitation,
liquidations or dissolutions), unless:
22.22.1 such a merger, consolidation, demerger or reconstruction is
entered into (a) in the implementation of the Reorganisation
or pursuant to an Additional Merger or (b) as part of a
solvent re-organisation of the Restricted Group, the terms of
which have been approved in writing by the Agent (acting on
the instructions of an Instructing Group); and
22.22.2 in all cases other than the Initial Mergers or an Additional
Merger, any Obligor involved in such a re-organisation will
(a) each exist as a surviving entity and remain subject to its
obligations under the Finance Documents to which it is a party
and (b) have freely distributable reserves at least equal to
the freely distributable reserves such an Obligor had
immediately prior to such a merger, consolidation, demerger or
reconstruction.
22.23 GUARANTORS
The Principal Borrower shall ensure that at all times, the aggregate
EBITDA of the Guarantors (in each case calculated on an unconsolidated
basis) for any period of four consecutive Financial Quarters equals or
exceeds 95 per cent. of the consolidated EBITDA of the Restricted Group
for such period.
For the purposes of this Clause 22.23 the aggregate EBITDA of the
Guarantors and the consolidated EBITDA of the Restricted Group at any
time:
(a) prior to 1 July 2000, shall be equal to the aggregate
EBITDA of the Guarantors or, as the case may be, the
aggregate EBITDA of the Restricted Group for the
financial year ended 31 December 1999;
(b) between 1 July 2000 and 30 September 2000, shall be
equal to the aggregate EBITDA of the Guarantors or,
as the case may be, the consolidated EBITDA of the
Restricted Group for the Financial Quarter ended on
30 June 2000, multiplied by four;
(c) between 1 October 2000 and 31 December 2000, shall be
equal to the sum of the aggregate EBITDA of the
Guarantors or, as the case may be, the consolidated
EBITDA of the Restricted Group for the Financial
Quarters ended 30 June 2000 and 30 September 2000,
multiplied by two; and
(d) on and after 1 January 2001, shall be equal to the
sum of the aggregate EBITDA of the Guarantors or, as
the case may be, the consolidated EBITDA of the
Restricted Group for the immediately preceding four
complete Financial Quarters.
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87
A breach of this Clause 22.23 shall not constitute an Event of Default
if (i) one or more subsidiaries of the Principal Borrower become
Additional Guarantors (in accordance with Clause 36.1 (Request for
Additional Guarantor)), within five Business Days of the earlier of
notice by the Agent to the Principal Borrower of the breach and the
Principal Borrower becoming aware thereof and (ii) the Agent (acting
reasonably) is satisfied that this Clause 22.23 will, as a result of
the Additional Guarantors thereby created, be satisfied.
22.24 TREASURY TRANSACTIONS
No Obligor (other than the Shareholder) shall, and the Principal
Borrower shall procure that no member of the Restricted Group shall,
enter into any Treasury Transaction other than Permitted Treasury
Transactions.
22.25 SUBORDINATED DEBT
The Principal Borrower shall not, and shall procure that no member of
the Restricted Group shall:
22.25.1 owe any indebtedness to any member of the NTL Inc. Group or
the NTL Inc. Holding Group which does not constitute (a)
Subordinated Funding or (b) indebtedness permitted under
sub-clause 22.28.3 of Clause 22.28 (Agreements with Related
Parties);
22.25.2 unless permitted under the Subordination Deed or other
relevant subordination agreement or deed, and this Agreement,
pay, prepay or repay or defease, exchange or repurchase any
amount under the Subordinated NTL CV1 Debt or any other
Subordinated Funding.
22.26 HEDGING
The Principal Borrower (and such other Borrowers selected by the
Principal Borrower and approved by the Agent) shall, within 180 days of
each Advance enter into Hedging Agreements satisfactory to the Agent in
order to ensure that the total interest cost in respect of at least 40
per cent. of the Loan is capped by interest rates agreed between the
Principal Borrower and the Agent (both acting reasonably), for a
minimum period of 4 years from the date on which the first such Hedging
Agreement is entered into PROVIDED THAT the Principal Borrower shall
not be required to enter into a Hedging Agreement in respect of any
Advance if, on the date falling 180 days after the date of such
Advance, at least 40 per cent. of the Loan is already so capped.
22.27 SHAREHOLDER
The Shareholder shall not carry on any business other than as the
holding company of the Principal Borrower (and, prior to the completion
of the Initial Mergers, CC AG) and the holder of shares or interests in
other persons acquired pursuant to paragraph (a) of the definition of
Permitted Acquisitions and shall not:
22.27.1 own any assets other than its shareholding in the Principal
Borrower (and, prior to the completion of the Initial Mergers,
CC AG) or other shares or assets acquired by it pursuant to a
Permitted Acquisition or intra-Group credit
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balances arising from Subordinated Funding and credit balances
in bank accounts; and
22.27.2 incur any liabilities of any nature whatsoever other than (a)
any Security contemplated pursuant to the terms of this
Agreement (b) Financial Indebtedness falling within paragraph
(e) of the definition of Permitted Financial Indebtedness, (c)
professional fees and administration costs in the ordinary
course of business, or (d) any liabilities under the Finance
Documents.
22.28 AGREEMENTS WITH RELATED PARTIES
The Parent and the Principal Borrower shall ensure that there is no
indebtedness outstanding, or any contract or arrangement entered into
between (A) any member of the NTL Inc. Group or the NTL Inc. Holding
Group and any member of the Restricted Group or (B) any member of the
Restricted Group and any other member of the Restricted Group, other
than:
22.28.1 the Subordinated NTL CV1 Debt and any other Subordinated
Funding;
22.28.2 contracts or arrangements entered into to effect the
Reorganisation or any Additional Merger; and
22.28.3 other contracts or arrangements entered into on an arm's
length basis in good faith and in the commercial interests of
the parties thereto.
22.29 ACCOUNTING REFERENCE DATE
The Principal Borrower shall retain, and shall ensure that each member
of the Restricted Group retains, 31 December as its accounting
reference date and shall not change the duration of any of its
financial years.
22.30 THE REORGANISATION AND MORTGAGES
22.30.1 The Parent, the Shareholder, the Principal Borrower and each
other relevant Obligor shall procure that the Reorganisation
is completed as soon as is reasonably practicable after the
date of this Agreement and in any event no later than 30 June
2000.
22.30.2 Subject to the Principal Borrower obtaining appropriate Swiss
tax rulings granting a waiver of all or substantially all of
the Swiss source taxes which might otherwise be imposed on
interest payments under the Facilities, the Principal Borrower
and each relevant Obligor shall procure that the Mortgages are
entered into, and (to the extent deemed necessary by the
Agent's Swiss counsel) all necessary consents are obtained,
additional documents provided and filings made, on or about
the date on which the Reorganisation Share Pledges are entered
into as the final step of the Reorganisation (or, if such
Swiss tax rulings are obtained after the completion of the
Reorganisation, as soon as is reasonably practicable
thereafter). The Principal Borrower shall use its reasonable
efforts to obtain such Swiss tax rulings prior to the
completion of the Reorganisation. If the tax rulings do not
grant a waiver of
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all or substantially all of the Swiss source taxes which might
otherwise be imposed on the interest payments under the
Facilities, the relevant Obligors shall cease to be under any
obligation to enter into the Mortgages.
22.31 REVISED GROUP STRUCTURE
If the Principal Borrower becomes aware of any inaccuracies in the
Group Structure Chart delivered to the Agent pursuant to Schedule 3 (
Conditions Precedent), which relate to the items referred to in
paragraphs (a), (b), (c) or (d) of the definition thereof, it will
deliver to the Agent as soon as is reasonably practicable thereafter a
revised Group Structure Chart which is true, complete and accurate.
23. EVENTS OF DEFAULT
Each of Clause 23.1 (Failure to Pay) to Clause 23.18 (Material Adverse
Change) describes circumstances which constitute an Event of Default
for the purposes of this Agreement.
23.1 FAILURE TO PAY
Any sum due from an Obligor or the Obligors under the Finance Documents
is not paid at the time, in the currency and in the manner specified
therein unless such failure to pay is caused by administrative or
technical error and:
23.1.1 in the case of a payment of principal, payment is made within
one Business Day of the due date;
23.1.2 in the case of a payment of interest or commitment commission,
payment is made within three Business Days of the due date; or
23.1.3 in the case of a payment of any other amount payable under the
Finance Documents, payment is made within five Business Days
of the due date.
23.2 MISREPRESENTATION
Any representation or statement made or deemed to be made by the Parent
or an Obligor in the Finance Documents or in any notice or other
document, certificate or statement delivered by it pursuant hereto or
thereto or in connection herewith or therewith is or proves to have
been incorrect or misleading in any material respect when made or
deemed to be made and the circumstances giving rise to such inaccuracy,
if capable of remedy or change, are not remedied or do not change, such
that the relevant representation or statement would be correct and not
misleading if repeated five Business Days after the earlier of (a) it
being notified by the Agent to the Parent and the relevant Obligor as
having been made inaccurately and (b) the Parent or the relevant
Obligor becoming aware of such inaccuracy.
23.3 SPECIFIC COVENANTS
The Parent or an Obligor fails duly to perform or comply with any of
the obligations expressed to be assumed by it in Clause 20 (Financial
Information) or Clause 22 (Covenants). No Event of Default under this
Clause 23.3 will occur in relation to:
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23.3.1 Clause 20.1 (Annual Statements) to Clause 20.7 (Other
Financial Information), Clause 20.9 (General Information),
Clause 20.11 (Acquisition Information), if the failure to
comply with such is remedied within five Business Days of the
Agent giving notice thereof to the Parent or the relevant
Obligor; and
23.3.2 Clause 22 (Covenants), (other than Clause 22.1 (Maintenance of
Legal Validity), Clause 22.6 (Claims Pari Passu), Clause 22.8
(Conduct of Business), Clause 22.11 (Security), Clause 22.13
(Bank Accounts), Clause 22.16 (Negative Pledge), Clause 22.17
(Loans and Guarantees), Clause 22.19 (Acquisitions and
Investments), Clause 22.20 (Dividends and Distributions),
Clause 22.21 (Disposals), Clause 22.22 (Mergers), Clause 22.23
(Guarantors), Clause 22.25 (Subordinated Debt), and Clause
22.28 (Agreements with Related Parties)) if the failure to
comply with such is capable of remedy and is remedied within
five Business Days of the date on which the relevant member of
the Restricted Group or the Principal Borrower became aware of
such failure to comply.
23.4 FINANCIAL CONDITION
At any time any of the requirements of Clause 21.1 (Financial
Condition) is not satisfied.
23.5 OTHER OBLIGATIONS
The Parent or an Obligor fails duly to perform or comply with any other
obligation expressed to be assumed by it in the Finance Documents and
such failure, if capable of remedy, is not remedied within thirty days
after the Agent has given notice thereof to the Parent or such Obligor
(as the case may be).
23.6 CROSS DEFAULT
Any Financial Indebtedness of any member of the Restricted Group is not
paid when due, any Financial Indebtedness of the Shareholder or any
member of the Restricted Group is declared to be or otherwise becomes
due and payable prior to its specified maturity (on account of an event
of default (howsoever described)), any commitment for any Financial
Indebtedness of any member of the Restricted Group is cancelled or
suspended (on account of an event of default (howsoever described)) by
a creditor of such member of the Restricted Group or any creditor of
any member of the Restricted Group becomes entitled (on account of an
event of default (howsoever described)) to declare any Financial
Indebtedness of such member of the Restricted Group due and payable
prior to its specified maturity, PROVIDED THAT it shall not constitute
an Event of Default if:
23.6.1 with respect to all such Financial Indebtedness, other than
Financial Indebtedness incurred in the ordinary course of
business on usual and customary terms, the aggregate amount
thereof (or its equivalent in Swiss Francs) is less than
CHF10,000,000;
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23.6.2 with respect to all such Financial Indebtedness incurred in
the ordinary course of business on usual and customary terms,
the aggregate amount thereof (or its equivalent in Swiss
Francs) is less than CHF2,000,000; or
23.6.3 such Financial Indebtedness comprises Subordinated Funding and
the subordination relating thereto is in full force and effect
at such time.
23.7 INSOLVENCY AND RESCHEDULING
The Parent, the Shareholder or any member of the Restricted Group:
23.7.1 is unable to pay its debts as they fall due;
23.7.2 has liabilities (taking into account contingent and
prospective liabilities that would be taken into account in
the preparation of its annual financial statements) which
exceed the value of its assets;
23.7.3 commences negotiations with any one or more of its creditors
with a view to the general readjustment or rescheduling of its
indebtedness (other than as part of a solvent reorganisation
of the Restricted Group, on terms which have been approved in
writing by the Agent, acting on the instructions of an
Instructing Group);
23.7.4 makes a general assignment for the benefit of or a composition
with its creditors; or
23.7.5 has a moratorium declared in respect of any of its
indebtedness.
23.8 WINDING-UP
The Parent, the Shareholder or any member of the Restricted Group takes
any corporate action or other steps are taken or legal proceedings are
started for its winding-up, dissolution, administration or
re-organisation (whether by way of voluntary arrangement, scheme of
arrangement or otherwise) or for the appointment of a liquidator,
receiver, administrator, administrative receiver, conservator,
custodian, trustee or similar officer of it or of any or all of its
revenues and assets PROVIDED THAT it shall not constitute an Event of
Default if:
23.8.1 such action, steps or proceedings relate to the Reorganisation
or to an Additional Merger or to a solvent liquidation or
re-organisation of a member of the Restricted Group which is
not an Obligor, or are on terms which have been approved in
writing by the Agent, acting on the instructions of an
Instructing Group; or
23.8.2 such action, steps or proceedings (a) are frivolous or
vexatious, (b) do not relate to the appointment of an
administrator (or its equivalent in any other jurisdiction)
and (c) are contested in good faith by appropriate legal
action and are stayed or discharged within fourteen days of
their commencement.
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23.9 EXECUTION OR DISTRESS
Any execution or distress is levied against, or an encumbrancer takes
possession of, the whole or any part of, the property, undertaking or
assets of the Shareholder or any member of the Restricted Group or any
event occurs which under the laws of the jurisdiction of incorporation
of the Shareholder or, as the case may be, such member of the
Restricted Group has a similar or analogous effect where:
23.9.1 the aggregate value of such assets exceeds CHF600,000; and
23.9.2 such execution, distress or possession is not discharged
within fourteen days.
23.10 FAILURE TO COMPLY WITH FINAL JUDGMENT
The Shareholder or any member of the Restricted Group fails to comply
with or pay any sum due from it under any final judgment or any final
order made or given by any court of competent jurisdiction.
23.11 GOVERNMENTAL INTERVENTION
By or under the authority of any government, (a) the management of any
Obligor is wholly or partially displaced or the authority of any
Obligor in the conduct of its business is wholly or partially curtailed
or (b) all or a majority of the issued shares of any Obligor or the
whole or any substantial part of its revenues or assets is seized,
nationalised, expropriated or compulsorily acquired, in each case where
such is not remedied to the satisfaction of the Agent within thirty
days of the relevant event occurring.
23.12 OWNERSHIP OF THE RESTRICTED GROUP
If:
23.12.1 either the Principal Borrower or, prior to the completion of
the Initial Mergers, CC AG ceases to be a wholly-owned
subsidiary of the Shareholder; or
23.12.2 the Principal Borrower ceases to own (either directly or
indirectly) the percentage of the issued share capital of each
of its subsidiaries which is a Guarantor as indicated on the
Group Structure Chart, save as a result of the Reorganisation
or any Additional Mergers.
23.13 OWNERSHIP OF SHAREHOLDER
If:
23.13.1 prior to it or any member of the NTL Inc. Holding Group
entering into a Permitted Joint Venture, the Parent ceases
(directly or indirectly) to:
(a) own 100 per cent. of the issued share capital of the
Shareholder; or
(b) to have the power to either control the casting of
all of the votes that might be cast at a general
meeting of the Shareholder or appoint or remove all
of the directors or equivalent officers of the
Shareholder; or
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23.13.2 after it or any member of the NTL Inc. Holding Group enters
into a Permitted Joint Venture, the Parent ceases (directly or
indirectly) to:
(a) own at least 50 per cent. of the issued share capital
of the Shareholder; or
(b) to have the power to either control the casting of at
least 50 per cent. of the maximum votes that might be
cast at a general meeting of the Shareholder or
appoint or remove at least half of the directors or
equivalent officers of the Shareholder.
23.14 REPUDIATION, SUBORDINATION AND SECURITY
If:
23.14.1 the Parent, NTL SPV Inc., NTL CV1 or any Obligor repudiates a
Finance Document; or
23.14.2 the security intended to be created by, or the subordination
effected under, the Finance Documents is not or ceases to be
legal and valid and (except as contemplated by the
Reservations or, if capable of remedy, such as is remedied
within five Business Days of the earlier of (a) notice of the
relevant event by the Agent to the Parent and the Principal
Borrower and (b) the date on which the Parent, the Principal
Borrower or the relevant Obligor becomes aware of such event)
binding and enforceable.
23.15 ILLEGALITY
At any time it is or becomes unlawful for the Parent or an Obligor to
perform or comply with any or all of its obligations under the Finance
Documents to which it is a party or any of the obligations of the
Parent or an Obligor under the Finance Documents to which it is a party
are not or cease to be legal and valid and (except as contemplated by
the Reservations or, if capable of remedy, such as is remedied within
five Business Days of the earlier of (a) notice of the relevant event
by the Agent to the Parent or, as the case may be, the relevant Obligor
and (b) the date on which the Parent or, as the case may be, the
relevant Obligor becomes aware of such event) binding and enforceable.
23.16 ADVERSE PROCEEDINGS
If any investigation or proceedings are commenced by, any government,
court or regulatory agency or authority, which could reasonably be
expected to be adversely determined, and if so determined, are
reasonably likely to have a Material Adverse Effect.
23.17 SUBORDINATED FUNDING
Any person (other than a Finance Party or an Obligor) party to the
Subordination Deed or any other agreement or deed approved by the Agent
in respect of Subordinated Funding fails to comply with its obligations
under the Subordination Deed or such other agreement or deed and
(unless an Obligor party to the Subordination Deed or any such other
agreement or deed has also so failed to comply) such failure might
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reasonably be expected to have a material adverse effect on the
subordination intended to be effected by the Subordination Deed or such
other agreement or deed.
23.18 MATERIAL ADVERSE CHANGE
Any event or circumstance occurs which has or could reasonably be
expected to have a Material Adverse Effect.
23.19 ACCELERATION AND CANCELLATION
Upon the occurrence of an Event of Default and at any time thereafter
whilst it is continuing, the Agent may (and, if so instructed by an
Instructing Group, shall) by notice to the Parent and the Principal
Borrower (on its own behalf and on behalf of the other Borrowers):
23.19.1 declare all or any part of the Advances to be immediately due
and payable (whereupon the same shall become so payable
together with accrued interest thereon and any other sums then
owed by the Borrowers under the Finance Documents) or declare
all or any part of the Advances to be due and payable on
demand of the Agent; and/or
23.19.2 declare that any undrawn portion of the Facilities shall be
cancelled, whereupon the same shall be cancelled and the
Available Commitment of each Bank shall be reduced to zero;
and/or
23.19.3 exercise (on its own behalf and on behalf of the Banks and the
Hedge Counterparties) all rights and remedies of a mortgagee
or a secured party at such time and (without limitation),
subject to the Security Documents and to the extent permitted
by applicable law, (a) foreclose on any or all of the assets
subject to the Security by any available judicial procedure,
(b) take possession of any or all of the assets subject to the
Security and the books and records relating thereto, with or
without judicial process and/or (c) enter any premises where
any assets subject to the Security, or any books and records
relating thereto, are located and take possession of and
remove the same therefrom.
23.20 ADVANCES DUE ON DEMAND
If, pursuant to Clause 23.19 (Acceleration and Cancellation), the Agent
declares all or any part of the Advances to be due and payable on
demand of the Agent, then, and at any time thereafter, the Agent may
(and, if so instructed by an Instructing Group, shall) by notice to the
Borrowers:
23.20.1 require repayment of all or such part of the Advances on such
date as it may specify in such notice (whereupon the same
shall become due and payable on the date specified together
with accrued interest thereon and any other sums then owed by
the Borrowers under the Finance Documents) or withdraw its
declaration with effect from such date as it may specify;
and/or
23.20.2 select as the duration of any Interest Period or Term which
begins whilst such declaration remains in effect a period of
six months or less.
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24. GUARANTEE AND INDEMNITY
24.1 GUARANTEE AND INDEMNITY
Subject to Clause 24.9 (Swiss Restrictions) and Clause 24.11 (Recourse
to Shareholder), each of the Guarantors irrevocably and unconditionally
jointly and severally:
24.1.1 guarantees to each Finance Party the due and punctual
observance and performance of all the terms, conditions and
covenants on the part of each Borrower contained in the
Finance Documents and agrees to pay from time to time on
demand any and every sum or sums of money which each Borrower
is at any time liable to pay to any Finance Party under or
pursuant to the Finance Documents and which has become due and
payable but has not been paid at the time such demand is made;
and
24.1.2 agrees as a primary obligation to indemnify each Finance Party
from time to time on demand from and against any loss incurred
by any Finance Party as a result of any of the obligations of
any Borrower under or pursuant to the Finance Documents being
or becoming void, voidable, unenforceable or ineffective as
against such Borrower for any reason whatsoever, whether or
not known to any Finance Party or any other person, the amount
of such loss being the amount which the person or persons
suffering it would otherwise have been entitled to recover
from such Borrower.
24.2 ADDITIONAL SECURITY
The obligations of each Guarantor herein contained shall be in addition
to and independent of every other security which any Finance Party may
at any time hold in respect of any of any Obligor's obligations under
the Finance Documents.
24.3 CONTINUING OBLIGATIONS
The obligations of each Guarantor herein contained shall constitute and
be continuing obligations notwithstanding any settlement of account or
other matter or thing whatsoever and shall not be considered satisfied
by any intermediate payment or satisfaction of all or any of the
obligations of the Borrowers under the Finance Documents and shall
continue in full force and effect until final payment in full of all
amounts owing by any Borrowers under the Finance Documents and total
satisfaction of all the Borrowers' actual and contingent obligations
under the Finance Documents.
24.4 OBLIGATIONS NOT DISCHARGED
Neither the obligations of each Guarantor herein contained nor the
rights, powers and remedies conferred in respect of each Guarantor upon
any Finance Party by the Finance Documents or by law shall be
discharged, impaired or otherwise affected by:
24.4.1 the winding-up, dissolution, administration or re-organisation
of any Obligor or any other person or any change in its
status, function, control or ownership;
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24.4.2 any of the obligations of any Obligor or any other person
under the Finance Documents or under any other security taken
in respect of any of its obligations under the Finance
Documents being or becoming illegal, invalid, unenforceable or
ineffective in any respect;
24.4.3 time or other indulgence being granted or agreed to be granted
to any Obligor or any other person in respect of its
obligations under the Finance Documents or under any such
other security;
24.4.4 any amendment to, or any variation, waiver or release of, any
obligation of any Obligor or any other person under the
Finance Documents or under any such other security;
24.4.5 any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken in respect
of any Obligor's obligations under the Finance Documents;
24.4.6 any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any
security taken in respect of any Obligor's obligations under
the Finance Documents; or
24.4.7 any other act, event or omission which, but for this Clause
24.4, might operate to discharge, impair or otherwise affect
any of the obligations of each Guarantor herein contained or
any of the rights, powers or remedies conferred upon any of
the Finance Parties by the Finance Documents or by law.
24.5 SETTLEMENT CONDITIONAL
Any settlement or discharge between a Guarantor and any of the Finance
Parties shall be conditional upon no security or payment to any Finance
Party by an Obligor or any other person on behalf of an Obligor being
avoided or reduced by virtue of any laws relating to bankruptcy,
insolvency, liquidation or similar laws of general application and, if
any such security or payment is so avoided or reduced, each Finance
Party shall be entitled to recover the value or amount of such security
or payment from such Guarantor subsequently as if such settlement or
discharge had not occurred.
24.6 EXERCISE OF RIGHTS
No Finance Party shall be obliged before exercising any of the rights,
powers or remedies conferred upon them in respect of any Guarantor by
the Finance Documents or by law:
24.6.1 to make any demand of any Obligor (save where such demand is
expressly required by the terms of the Finance Documents);
24.6.2 to take any action or obtain judgment in any court against any
Obligor;
24.6.3 to make or file any claim or proof in a winding-up or
dissolution of any Obligor; or
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24.6.4 to enforce or seek to enforce any other security taken in
respect of any of the obligations of any Obligor under the
Finance Documents.
24.7 DEFERRAL OF GUARANTORS' RIGHTS
Until all amounts which may be or become payable by the Borrowers under
or in connection with the Finance Documents have been irrevocably paid
in full and unless the Agent otherwise directs, no Guarantor will
exercise any rights which it may have by reason of performance by it of
its obligations under the Finance Documents:
24.7.1 to be indemnified by a Borrower;
24.7.2 to claim any contribution from any other guarantor of the
obligations of any Borrower under the Finance Documents;
and/or
24.7.3 to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or
security taken pursuant to, or in connection with, the Finance
Documents by any Finance Party.
24.8 APPROPRIATIONS
Until all amounts which may be or become payable by the Borrowers under
or in connection with the Finance Documents have been irrevocably paid
in full, each Finance Party (or any trustee or agent on its behalf)
may:
24.8.1 refrain from applying or enforcing any other moneys, security
or rights held or received by that Finance Party (or any
trustee or agent on its behalf) in respect of those amounts,
or apply and enforce the same in such manner and order as it
sees fit (whether against those amounts or otherwise) and no
Guarantor shall be entitled to the benefit of the same; and
24.8.2 hold in an interest-bearing suspense account any moneys
received from any Guarantor or on account of any Guarantor's
liability under this Clause 24.
24.9 SWISS RESTRICTIONS
The Restricted Obligations of (a) each Swiss Obligor under this Clause
24 and the Security Documents to which that Swiss Obligor is a party
and (b) each Swiss Obligor under Clause 14 (Taxes) shall at all times
be limited to the maximum amount of that Swiss Obligor's profits
available for distribution as dividends at any given time (being the
balance sheet profits and any reserves made for this purpose, in each
case in accordance with article 675(2) and article 671(1) and (2), no.
3, of the Swiss Federal Code of Obligations).
24.10 SWISS WITHHOLDING TAX
Each Swiss Obligor shall:
24.10.1 if and to the extent required by applicable law in force at
the relevant time:
(a) subject to any applicable double taxation treaty,
deduct Swiss Anticipatory Tax (withholding tax) at
the rate of 35 per cent. (or such
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other rate as in force from time to time) from any
payment made by it in respect of Restricted
Obligations;
(b) pay any such deduction to the Swiss Federal Tax
Administration; and
(c) notify (or procure that the Principal Borrower
notifies) the Agent that such a deduction has been
made in accordance with Clause 15.1 (Notification of
Requirement to Deduct Tax) and provide, in accordance
with Clause 15.2 (Evidence of Payment of Tax) the
Agent with evidence that such a deduction has been
paid to the Swiss Federal Tax Administration; and
24.10.2 to the extent such a deduction is made, not be obliged to
either gross-up in accordance with Clause 14.1 (Tax Gross-up)
or indemnify the Finance Parties in accordance with Clause
14.2 (Tax Indemnity) in relation to any payment made by it in
respect of Restricted Obligations.
24.11 RECOURSE TO SHAREHOLDER
The liability of the Shareholder under this Clause 24 shall at all
times be limited to the proceeds of the Security granted by the
Shareholder. A Finance Party shall not be entitled to take any further
steps to recover from the Shareholder sums due to it under the Finance
Documents and any claims the Finance Parties have against the
Shareholder shall be extinguished once the Security granted by the
Shareholder has been realised and the proceeds applied against sums due
by the Shareholder under the Finance Documents.
25. COMMITMENT COMMISSION AND FEES
25.1 COMMITMENT COMMISSION ON THE ORIGINAL TERM FACILITY
The Borrowers, acting through the Principal Borrower, shall pay to the
Agent for account of each Bank a commitment commission on the amount of
such Bank's Available Term Commitment from day to day during the
Original Term Availability Period, such commitment commission to be
calculated at the rate of 0.75 per cent. per annum and payable in
arrear on the last day of each successive period of three months which
ends during the Original Term Availability Period and on the last day
of the Original Term Availability Period.
25.2 COMMITMENT COMMISSION ON THE REVOLVING FACILITY
The Borrowers, acting through the Principal Borrower, shall pay to the
Agent for account of each Bank in respect of each Commitment Period (as
defined below) a commitment commission calculated at the percentage
rate per annum determined pursuant to Clause 25.3 (Rate of Revolving
Facility Commitment Commission) on an amount equal to the average daily
Available Revolving Commitments during such Commitment Period.
25.3 RATE OF REVOLVING FACILITY COMMITMENT COMMISSION
The applicable rate of commitment commission for any Commitment Period
in respect of the Revolving Facility shall be determined by reference
to the average daily
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utilisation of the Revolving Facility during such Commitment Period expressed as
a percentage of the average daily Revolving Commitment during such Commitment
Period and in accordance with the following scale:
AVERAGE DAILY UTILISATION AS PERCENTAGE
OF AVERAGE DAILY REVOLVING COMMITMENT APPLICABLE RATE OF
COMMISSION COMMITMENT
Up to and including 50 per cent. 0.75 per cent.
Over 50 per cent. 0.50 per cent.
25.4 DEFINITIONS AND AVERAGE CALCULATIONS
For the purposes of Clauses 25.2 (Commitment Commission on the
Revolving Facility) and Clause 25.3 (Rate of Revolving Facility
Commitment Commission):
25.4.1 "COMMITMENT PERIOD" means each successive period of three
months during the period beginning on the date hereof and
ending on the Revolving Termination Date (except that if the
last such period would otherwise extend beyond the Revolving
Termination Date it shall be shortened so as to end on that
date).
25.4.2 The average daily utilisation of the Revolving Facility during
a Commitment Period shall equal the sum of all Revolving
Advances made by the Banks and outstanding on each day during
such Commitment Period, divided by the number of days in such
Commitment Period.
25.4.3 The average daily Revolving Commitments during a Commitment
Period shall equal the aggregate of the Revolving Commitments
on each day during such Commitment Period divided by the
number of days in such Commitment Period.
25.4.4 The average daily Available Revolving Commitments during a
Commitment Period shall equal the aggregate of the Available
Revolving Commitments on each day during such Commitment
Period divided by the number of days in such Commitment
Period.
25.5 PAYMENT OF COMMITMENT COMMISSION
The Agent shall promptly after the end of each Commitment Period notify
the Principal Borrower (on its own behalf and on behalf of the
Borrowers) and the Banks of the amounts payable by the Borrowers under
Clause 25.2 (Commitment Commission on the Revolving Facility) in
respect of such Commitment Period and the Borrowers, acting through the
Principal Borrower, shall pay such amount to the Agent for account of
the Banks pro rata to each Bank's Revolving Commitment hereunder from
time to time during the applicable Commitment Period, within five
Business Days of such notification.
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25.6 AGENCY AND OTHER FEES
The Parent shall:
25.6.1 pay (or shall procure that the Principal Borrower shall pay)
to the Agent for its own account the agency fees specified in
the letter dated 16 February 2000 from the Arrangers to the
Parent at the times, and in the amounts, specified in such
letter; and
25.6.2 pay (or shall procure that the Principal Borrower shall pay)
to the Arrangers the fees specified in the letters dated 16
February 2000 from the Arrangers to the Parent (and the
attachments thereto) at the times, and in the amounts,
specified in such letters.
26. COSTS AND EXPENSES
26.1 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Borrowers, acting through the Principal Borrower, shall, from time
to time on demand of the Agent, reimburse the Finance Parties for all
costs and expenses (including legal fees) on a full indemnity basis
together with any VAT thereon incurred in or in connection with the
preservation and/or enforcement of any of the rights of the Finance
Parties under the Finance Documents and any document referred to in the
Finance Documents (including, without limitation, any costs and
expenses reasonably incurred in relation to any investigation as to
whether or not an Event of Default might have occurred or is likely to
occur or any steps necessary or desirable in connection with any
proposal for remedying or otherwise resolving an Event of Default or
Potential Event of Default).
26.2 STAMP TAXES
The Borrowers, acting through the Principal Borrower, shall pay all
stamp, registration and other taxes to which the Finance Documents, any
other document referred to in the Finance Documents (save as otherwise
specified therein) or any judgment given in connection therewith is or
at any time may be subject and shall, from time to time on demand of
the Agent, indemnify the Finance Parties against any liabilities,
costs, claims and expenses resulting from any failure to pay or any
delay in paying any such tax.
26.3 AMENDMENT COSTS
If an Obligor requests any amendment, waiver or consent then the
Borrowers, acting through the Principal Borrower, shall, within five
Business Days of demand by the Agent, reimburse the Agent for all costs
and expenses (including legal fees) together with any VAT thereon
reasonably incurred by it in responding to or complying with such
request.
26.4 BANKS' LIABILITIES FOR COSTS
If the Borrowers fail to perform any of their obligations under this
Clause 26, each Bank shall, in its Proportion, indemnify the Agent
against any loss incurred by the Agent as a result of such failure.
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27. DEFAULT INTEREST AND BREAK COSTS
27.1 DEFAULT INTEREST PERIODS
If any sum due and payable by an Obligor hereunder is not paid on the
due date therefor in accordance with Clause 30 (Payments) or if any sum
due and payable by an Obligor under any judgment of any court in
connection herewith is not paid on the date of such judgment, the
period beginning on such due date or, as the case may be, the date of
such judgment and ending on the date upon which the obligation of such
Obligor to pay such sum is discharged shall be divided into successive
periods, each of which (other than the first) shall start on the last
day of the preceding such period and the duration of each of which
shall (except as otherwise provided in this Clause 27) be selected by
the Agent.
27.2 DEFAULT INTEREST
An Unpaid Sum shall bear interest during each Interest Period in
respect thereof at the rate per annum which is one per cent. per annum
above the percentage rate which would apply if such Unpaid Sum had been
an Advance in the amount and currency of such Unpaid Sum and for the
same Interest Period, PROVIDED THAT if such Unpaid Sum relates to an
Advance which became due and payable on a day other than the last day
of an Interest Period or Term relating thereto:
27.2.1 the first Interest Period applicable to such Unpaid Sum shall
be of a duration equal to the unexpired portion of the current
Interest Period or Term relating to that Advance; and
27.2.2 the percentage rate of interest applicable thereto from time
to time during such period shall be that which exceeds by one
per cent. the rate which would have been applicable to it had
it not so fallen due, save that the Margin shall be, or be
deemed to be, 2.50 per cent. per annum.
27.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under Clause 27.2 (Default
Interest) in respect of an Unpaid Sum shall be due and payable and
shall be paid by the Obligor owing such Unpaid Sum on the last day of
each Interest Period in respect thereof or on such other dates as the
Agent may specify by notice to such Obligor.
27.4 BREAK COSTS
If any Bank or the Agent on its behalf receives or recovers all or any
part of such Bank's share of an Advance or Unpaid Sum otherwise than on
the last day of an Interest Period or Term relating thereto, the
Principal Borrower shall pay to the Agent within three Business Days of
demand for account of such Bank an amount equal to the amount (if any)
by which (a) the additional interest which would have been payable on
the amount so received or recovered had it been received or recovered
on the last day of that Interest Period or Term exceeds (b) the amount
of interest which that Bank would have been able to obtain by placing
an amount equal to the amount so received or recovered on deposit with
a prime bank in London for a period starting on the
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Business Day following the date of such receipt or recovery and ending
on the last day of that Interest Period or Term.
28. BORROWERS' INDEMNITIES
28.1 BORROWERS' INDEMNITY
The Borrowers, acting through the Principal Borrower, undertake to
indemnify:
28.1.1 each Finance Party against any cost, claim, loss, expense
(including legal fees) or liability together with any VAT
thereon, which it may sustain or incur as a consequence of the
occurrence of any Event of Default or any default by any
Obligor in the performance of any of the obligations expressed
to be assumed by it in the Finance Documents;
28.1.2 each Bank against any cost or loss it may suffer under Clause
26.4 (Banks' Liabilities for Costs) or Clause 33.6
(Indemnification); and
28.1.3 each Bank against any cost or loss it may suffer or incur as a
result of its funding or making arrangements to fund its
portion of an Advance requested by any Borrower but not made
by reason of the operation of any one or more of the
provisions hereof.
28.2 CURRENCY INDEMNITY
If any sum (a "SUM") due from an Obligor under the Finance Documents or
any order or judgment given or made in relation thereto has to be
converted from the currency (the "FIRST CURRENCY") in which such Sum is
payable into another currency (the "SECOND CURRENCY") for the purpose
of:
28.2.1 making or filing a claim or proof against such Obligor;
28.2.2 obtaining or enforcing an order or judgment, in any court or
other tribunal or authority,
the Borrowers, acting through the Principal Borrower, shall indemnify
each person to whom such Sum is due from and against any loss suffered
or incurred as a result of any discrepancy between (a) the rate of
exchange used for such purpose to convert such Sum from the First
Currency into the Second Currency and (b) the rate or rates of exchange
available to such person at the time of receipt of such Sum.
29. CURRENCY OF ACCOUNT AND PAYMENT
The Swiss Franc is the currency of account and payment for each and
every sum at any time due from an Obligor hereunder, PROVIDED THAT:
29.1.1 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred; and
29.1.2 each payment pursuant to Clause 14.2 (Tax Indemnity), Clause
16.1 (Increased Costs) or Clause 28.1 (Borrowers' Indemnity)
shall be made in the currency specified by the party claiming
thereunder.
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30. PAYMENTS
30.1 NOTIFICATION OF PAYMENTS
Without prejudice to the liability of each party hereto promptly to pay
each amount owing by it hereunder on the due date therefor, whenever a
payment is expected to be made by any of the parties hereto, the Agent
shall, at least two Business Days prior to the expected date for such
payment, notify all the parties hereto of the amount, currency and
timing of such payment and the identity of the party liable to make
such payment.
30.2 PAYMENTS TO THE AGENT
On each date on which this Agreement requires an amount to be paid by
an Obligor or a Bank, such Obligor or, as the case may be, such Bank
shall make the same available to the Agent for value on the due date at
such time and in such funds and to such account with such bank as the
Agent shall (acting reasonably) specify from time to time.
30.3 PAYMENTS BY THE AGENT
30.3.1 Save as otherwise provided herein, each payment received by
the Agent pursuant to Clause 30.2 (Payments to the Agent)
shall:
(a) in the case of a payment received for the account of
a Borrower, be made available by the Agent to such
Borrower by application:
(i) first, in or towards payment the same day of
any amount then due from such Borrower
hereunder to the person from whom the amount
was so received; and
(ii) secondly, in or towards payment the same day
to the account of such Borrower with such
bank in Zurich as such Borrower shall have
previously notified to the Agent for this
purpose; and
(b) in the case of any other payment, be made available
by the Agent to the person entitled to receive such
payment in accordance with this Agreement (in the
case of a Bank, for the account of its Facility
Office) for value the same day by transfer to such
account of such person with such bank in Zurich as
such person shall have previously notified to the
Agent.
30.3.2 A payment will be deemed to have been made by the Agent on the
date on which it is required to be made under this Agreement
if the Agent has, on or before that date, taken steps to make
that payment in accordance with the regulations or operating
procedures of the clearing or settlement system used by the
Agent in order to make the payment.
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30.4 NO SET-OFF
All payments required to be made by an Obligor hereunder shall be
calculated without reference to any set-off or counterclaim and shall
be made free and clear of and without any deduction for or on account
of any set-off or counterclaim.
30.5 CLAWBACK
Where a sum is to be paid hereunder to the Agent for account of another
person, the Agent shall not be obliged to make the same available to
that other person until it has been able to establish to its
satisfaction that it has actually received such sum, but if it does so
and it proves to be the case that it had not actually received such
sum, then the person to whom such sum was so made available shall on
request refund the same to the Agent together with an amount sufficient
to indemnify the Agent against any cost or loss it may have suffered or
incurred by reason of its having paid out such sum prior to its having
received such sum.
30.6 SECURITY PROCEEDS
Each Security Party (other than the Agent) shall promptly pay all
Security Proceeds recovered by it to the Agent. All Security Proceeds
received, recovered or paid to the Agent will be held and applied by
the Agent as follows:
30.6.1 to the extent such sums are not denominated in Swiss Francs,
they will be converted by the Agent into the equivalent amount
of Swiss Francs; and
30.6.2 the net Security Proceeds will then be credited to such
account or accounts as the Agent thinks fit pending their
application in accordance with Clause 30.7 (Application of
Security Proceeds), the Agent being entitled to retain the net
Security Proceeds in such account or accounts whilst any
Obligor remains under any actual or contingent obligations
under the Finance Documents and/or any member of the Group
remains under any actual or contingent obligations under or in
respect of the Secured Permitted Facilities.
30.7 APPLICATION OF SECURITY PROCEEDS
Amounts standing to the credit of the account or accounts referred to
in Clause 30.6 (Security Proceeds) shall (save to the extent prohibited
by any applicable law) be applied by the Agent in the following order
of priority:
30.7.1 FIRST, in or towards payment of any unpaid costs and expenses
of the Agent;
30.7.2 SECONDLY, in or towards discharging all assessments to tax
made on the Agent (or, as the case may be, any other Security
Party) in respect of any of the Security held by it or its
receipt of the Security Proceeds;
30.7.3 THIRDLY, after setting aside any sums which the Agent believes
will or may become payable under either sub-clause 30.7.1 or
sub-clause 30.7.2 above, in or towards satisfying the
Principal Borrower's obligations to the Banks under sub-clause
28.1.2 of Clause 28.1 (Borrowers' Indemnities);
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30.7.4 FOURTHLY, to the Finance Parties and the Permitted Facilities
Provider in or towards the discharge, pro rata, of all sums
due and payable by the Parent or the Obligors under the
Finance Documents or, as the case may be, by any members of
the Group under or in respect of the Secured Permitted
Facilities;
30.7.5 FIFTHLY, if no Obligor has any further actual or contingent
liability under the Finance Documents and no member of the
Group has any further actual or contingent liability under the
documentation relating to the Secured Permitted Facilities, in
payment to the extent necessary to any person the Agent is
obliged to pay in priority to the member of the Group
otherwise entitled to such sum; and
30.7.6 thereafter, in payment to the member of the Group entitled to
such sum.
The Permitted Facilities Provider shall, for the purposes of enabling
the Agent to determine the amounts to be applied in accordance with the
provisions of Clause 30.7.4 and Clause 30.7.5, promptly after the Agent
declares all or any part of the Advances to be immediately due and
payable in accordance with either Clause 23.19 (Acceleration and
Cancellation) or Clause 23.20 (Advances Due on Demand), notify the
Agent of the amounts due and payable to it under or in respect of the
Secured Permitted Facilities (identifying, in such notification, the
nature of each such amount payable, whether it is in respect of
principal, interest or some other obligation).
30.8 PARTIAL PAYMENTS
If and whenever:
30.8.1 a payment is made by an Obligor hereunder and the Agent
receives an amount less than the due amount of such payment;
or
30.8.2 the Agent is to apply Security Proceeds in or towards the
discharge of all sums due and payable by the Parent or the
Obligors under the Finance Documents and/or payable by any
members of the Group under or in respect of the Secured
Permitted Facilities, but the Security Proceeds to be so
applied are less than such sums due and payable,
the Agent may apply the amount received towards the obligations of the
Obligors under the Finance Documents and the obligations of any members
of the Group under or in respect of the Secured Permitted Facilities,
in the following order:
(a) FIRST, in or towards payment of any unpaid costs and expenses
of the Agent;
(b) SECONDLY, in or towards payment pro rata of any accrued
interest or commitment commission due but unpaid;
(c) THIRDLY, in or towards payment pro rata of any principal due
but unpaid; and
(d) FOURTHLY, in or towards payment pro rata of any other sum due
but unpaid.
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30.9 VARIATION OF PARTIAL PAYMENTS
The order of partial payments set out in Clause 30.8 (Partial Payments)
shall, in the case of the payment made by any member of the Group,
override any appropriation made by the member of the Group to which the
partial payment relates but the order set out in sub-clauses (b), (c)
and (d) of Clause 30.8 (Partial Payments) may be varied if agreed by,
in the case of a payment falling within sub-clause 30.8.1 of Clause
30.8 (Partial Payments) all the Banks and, in the case of a payment
falling within sub-clause 30.8.2 of Clause 30.8 (Partial Payments), by
all the Banks and the Permitted Facilities Provider.
30.10 BUSINESS DAYS
30.10.1 Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the
same calendar month (if there is one) or the preceding
Business Day (if there is not).
30.10.2 During any extension of the due date for payment of any
principal or an Unpaid Sum under this Agreement interest is
payable on the principal at the rate payable on the original
due date.
31. SET-OFF
31.1 CONTRACTUAL SET-OFF
Each Obligor authorises each Bank, at any time any sum is due and
payable hereunder and remains unpaid, to apply any credit balance to
which such Obligor is entitled on any account of such Obligor with such
Bank in satisfaction of any sum due and payable from such Obligor to
such Bank under the Finance Documents but unpaid. For this purpose,
each Bank is authorised to purchase with the moneys standing to the
credit of any such account such other currencies as may be necessary to
effect such application.
31.2 SET-OFF NOT MANDATORY
No Bank shall be obliged to exercise any right given to it by Clause
31.1 (Contractual Set-off).
32. SHARING
32.1 PAYMENTS TO BANKS
If (a) prior to the Agent declaring all or any part of the Advances to
be immediately due and payable in accordance with either Clause 23.19
(Acceleration and Cancellation) or Clause 23.30 (Advances Due on
Demand), a Bank (a "RECOVERING BANK") applies any receipt or recovery
from an Obligor to a payment due and payable under this Agreement and
such amount is received or recovered other than in accordance with
Clause 30.3 (Payments by the Agent), or (b) after the Agent declaring
all or any part of the Advances to be immediately due and payable in
accordance with either Clause 23.19 (Acceleration and Cancellation) or
Clause 23.20 (Advances Due on Demand), a Bank or the Permitted
Facilities Provider (a "RECOVERING ENTITY") applies any receipt or
recovery from a member of the Group to a payment due and payable under
this Agreement and/or the documentation relating to the Secured
Permitted
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Facilities and such amount is received or recovered other than in
accordance with Clause 30.7 (Application of Security Proceeds) or
Clause 30.8 (Partial Payments), then such Recovering Bank or, as the
case may be, such Recovering Entity shall:
32.1.1 notify the Agent of such receipt or recovery;
32.1.2 at the request of the Agent, promptly pay to the Agent an
amount (the "SHARING PAYMENT") equal to such receipt or
recovery less any amount which the Agent determines may be
retained by such Recovering Bank or, as the case may be, such
Recovering Entity as its share of any payment to be made in
accordance with Clause 30.8 (Partial Payments).
32.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant member of the Group and distribute it between the Finance
Parties (other than the Recovering Bank) or, as the case may be,
between the Security Parties (other than the Recovering Entity) in
accordance with Clause 30.8 (Partial Payments).
32.3 RECOVERING BANK'S RIGHTS
The Recovering Bank or, as the case may be, the Recovering Entity will
be subrogated into the rights of the parties which have shared in a
redistribution pursuant to Clause 32.2 (Redistribution of Payments) in
respect of the Sharing Payment (and the relevant Obligor (or, in the
case of any member of the Group which is not an Obligor, the Principal
Borrower shall procure that such member of the Group) shall be liable
to the Recovering Bank or, as the case may be, the Recovering Entity in
an amount equal to the Sharing Payment).
32.4 REPAYABLE RECOVERIES
If any part of the Sharing Payment received or recovered by a
Recovering Bank or, as the case may be, the Recovering Entity becomes
repayable and is repaid by such Recovering Bank or, as the case may be,
by such Recovering Entity, then:
32.4.1 each party which has received a share of such Sharing Payment
pursuant to Clause 32.2 (Redistribution of Payments) shall,
upon request of the Agent, pay to the Agent for account of
such Recovering Bank or, as the case may be, such Recovering
Entity an amount equal to its share of such Sharing Payment;
and
32.4.2 such Recovering Bank's or, as the case may be, such Recovering
Entity's rights of subrogation in respect of any reimbursement
shall be cancelled and the relevant member of the Group will
be liable to the reimbursing party for the amount so
reimbursed.
32.5 EXCEPTION
This Clause 32 shall not apply if the Recovering Bank or, as the case
may be, the Recovering Entity would not, after making any payment
pursuant hereto, have a valid and enforceable claim against the
relevant member of the Group.
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32.6 RECOVERIES THROUGH LEGAL PROCEEDINGS
If any Bank intends to commence any action in any court it shall give
prior notice to the Agent and the other Banks. If any Bank shall
commence any action in any court to enforce its rights hereunder and,
as a result thereof or in connection therewith, receives any amount,
then such Bank shall not be required to share any portion of such
amount with any Bank which has the legal right to, but does not, join
in such action or commence and diligently prosecute a separate action
to enforce its rights in another court.
32.7 HEDGING AGREEMENTS
The Principal Borrower shall provide the Agent with, as soon as is
reasonably practicable after the same are entered into, copies of the
Hedging Agreements entered into by either it or any other Borrowers
selected by it pursuant to Clause 22.26 (Hedging). The Principal
Borrower and each Hedging Bank shall ensure that each Hedging Agreement
to which (a) (in the case of the Principal Borrower) it or any other
member of the Group is a party or (b) (in the case of a Hedging Bank)
it or any of its affiliates is a party as a Hedge Counterparty:
32.7.1 provides for "two-way payments" in the event of a termination
of a hedging transaction entered into pursuant to a Hedging
Agreement whether upon a termination event or an event of
default (each as defined in the Hedging Agreement), meaning
that the defaulting party under that Hedging Agreement will be
entitled to receive payment under the relevant termination
provisions if the net replacement value of all terminated
transactions affected under the Hedging Agreement is in its
favour;
32.7.2 includes as an event of default (as defined in the Hedging
Agreement) an Event of Default.
32.8 TERMINATION OF HEDGING AGREEMENTS
Each Hedging Bank shall:
32.8.1 if (a) any hedging transaction under any Hedging Agreement to
which it (or, as the case may be, its affiliate) is a party is
terminated, (b) a settlement amount or other amount falls due
from it (or, as the case may be, its affiliate) to any Obligor
under such a Hedging Agreement and (c) the Security has
become, and remains at the proposed date of payment,
enforceable, pay (or procure that its affiliate pays) such a
settlement amount to the Agent as Security Proceeds for
application in accordance with Clause 30.7 (Application of
Security Proceeds); and
32.8.2 unless the Agent otherwise instructs it, exercise (or procure
that its affiliate exercises) any rights it may have to
terminate the hedging transactions under the Hedging
Agreements to which either it or its affiliate is a party as
soon as is reasonably practicable after the date on which the
Agent declares all or any part of the Advances to be
immediately due and payable in accordance with
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either Clause 23.19 (Acceleration and Cancellation) or Clause
23.20 (Advances Due on Demand).
32.9 RIGHTS OF HEDGE COUNTERPARTIES
Whilst any Obligor has any actual or contingent liabilities under the
Finance Documents, except with the prior consent of the Agent (acting
on the instructions of an Instructing Group), no Hedging Bank will (and
each Hedging Bank will procure that any of its affiliates who are Hedge
Counterparties do not):
32.9.1 demand or receive payment, prepayment, repayment, or any
distribution in respect of or on account of any of the Hedging
Liabilities in cash or in kind or apply any money or property
in or towards the discharge of any Hedging Liabilities except
for:
(a) scheduled payments arising under the terms of the
Hedging Agreements; and
(b) the proceeds of enforcement of the Security Documents
received and applied in the order permitted by Clause
30.7 (Application of Security Proceeds);
32.9.2 exercise any right it might otherwise have pursuant to any
Hedging Agreement to terminate any hedging transactions under
such Hedging Agreement or to refuse to make any payment due
from it under such hedging transactions until the Agent
declares all or any part of the Advances to be immediately due
and payable in accordance with either Clause 23.19
(Acceleration and Cancellation) or Clause 23.20 (Advances Due
on Demand);
32.9.3 discharge all or any part of the Hedging Liabilities by
set-off, any right of combination of accounts or otherwise
except if and to the extent that those Hedging Liabilities are
permitted to be paid under sub-clause 32.9.1(a); or
32.9.4 take, accept or receive the benefit of any Encumbrance or
guarantee in respect of the Hedging Liabilities other than
under (a) the Finance Documents or (b) any other Encumbrance
or guarantee granted for the full benefit of the Finance
Parties in accordance with the ranking specified in this
Agreement.
32.10 AMENDMENT OF HEDGING AGREEMENTS
Except with the prior written consent of the Agent (acting on the
instructions of an Instructing Group), neither an Obligor nor a Hedging
Bank will (and each Hedging Bank which has an affiliate who is a Hedge
Counterparty will procure that such affiliate does not) amend, vary,
supplement or allow to be superseded any provision of the Hedging
Agreements which would result in:
32.10.1 any provision in the Hedging Agreements being amended unless
the Hedge Counterparty concerned, acting reasonably and in
good faith, certifies to the Agent that it considers such
amendment does not impose restrictions or
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obligations or conditions on any Obligor which are more
onerous than those originally provided for in the Hedging
Agreements;
32.10.2 any payment under the Hedging Agreements being required to be
made by a Obligor earlier than the date originally provided
for in the Hedging Agreements; or
32.10.3 any Obligor becoming liable to make an additional payment (or
increase an existing payment) under any of the Hedging
Agreements, where such liability does not arise from the
original provisions of the Hedging Agreements.
33. THE AGENT, THE ARRANGERS AND THE BANKS
33.1 APPOINTMENT OF THE AGENT
Each of the Arrangers, the Banks and, for the purposes of (a) Clause 30
(Payments), Clause 32 (Sharing) and Clause 41 (Amendments) of this
Agreement and (b) the Agent's entry into of certain of the Security
Documents, the Permitted Facilities Provider, hereby appoints the Agent
to act as its agent in connection with the Finance Documents and
authorises the Agent to exercise such rights, powers, authorities and
discretions as are specifically delegated to the Agent under or in
connection with the Finance Documents or, as the case may be, the
Secured Permitted Facilities together with any other incidental rights,
powers, authorities and discretions. In respect of the Subordination
Deed, the parties hereto agree that the Agent acts as the agent and
representative of the Finance Parties and the Permitted Facilities
Provider in accordance with the provisions of Dutch law.
33.2 AGENT'S DISCRETIONS
The Agent may:
33.2.1 assume, unless it has, in its capacity as agent for the Banks,
received notice to the contrary from any other party hereto,
that (a) any representation made or deemed to be made by the
Parent or an Obligor in connection with the Finance Documents
is true, (b) no Event of Default or Potential Event of Default
has occurred (unless it has actual knowledge of an Event of
Default arising under Clause 23.1 (Failure to Pay)), (c)
neither the Parent nor any Obligor is in breach of or default
under its obligations under the Finance Documents and (d) any
right, power, authority or discretion vested herein upon an
Instructing Group, the Banks or any other person or group of
persons has not been exercised;
33.2.2 assume that (a) the Facility Office of each Bank is that
notified to it by such Bank in writing and (b) the information
provided by each Bank pursuant to Clause 39 (Notices), Clause
33.15 (Banks' Mandatory Cost Details) and Schedule 10
(Mandatory Costs), and the information provided by the
Permitted Facilities Provider pursuant to Clause 39 (Notices),
is true and correct in all respects until it has received from
such Bank or, as the case may be, the Permitted Facilities
Provider notice of a change to the Facility Office
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or any such information and act upon any such notice until the
same is superseded by a further notice;
33.2.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or
services may to it seem necessary, expedient or desirable and
rely upon any advice so obtained;
33.2.4 rely as to any matters of fact which might reasonably be
expected to be within the knowledge of the Parent or an
Obligor upon a certificate signed by or on behalf of the
Parent or such Obligor;
33.2.5 rely upon any communication or document believed by it to be
genuine;
33.2.6 refrain from exercising any right, power or discretion vested
in it as agent under the Finance Documents unless and until
instructed by an Instructing Group as to whether or not such
right, power or discretion is to be exercised and, if it is to
be exercised, as to the manner in which it should be
exercised;
33.2.7 refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding
arising out of or in connection with the Finance Documents
until it shall have received such security as it may require
(whether by way of payment in advance or otherwise) for all
costs, claims, losses, expenses (including legal fees) and
liabilities together with any VAT thereon which it will or may
expend or incur in complying with such instructions; and
33.2.8 assume (unless it has specific notice to the contrary) that
any notice or request made by the Principal Borrower is made
on behalf of all the Obligors.
33.3 AGENT'S OBLIGATIONS
The Agent shall:
33.3.1 promptly inform each Bank of the contents of any written
notice or document received by it in its capacity as Agent
from the Parent or an Obligor under the Finance Documents;
33.3.2 promptly notify each Bank of the occurrence of any Event of
Default or any default by the Parent or an Obligor in the due
performance of or compliance with its obligations under the
Finance Documents of which the Agent has notice from any other
party hereto;
33.3.3 promptly notify each Bank of the occurrence of an Event of
Default under Clause 23.1 (Failure to Pay);
33.3.4 promptly notify each Bank and the Permitted Facilities
Provider of all or any part of the Advances being declared to
be immediately due and payable in accordance with either
Clause 23.19 (Acceleration and Cancellation) or Clause 23.30
(Advances Due on Demand);
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33.3.5 save as otherwise provided herein, act as agent under the
Finance Documents in accordance with any instructions given to
it by an Instructing Group, which instructions shall be
binding on the Arrangers and the Banks;
33.3.6 if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it as
agent under the Finance Documents; and
33.3.7 unless it has a Bank's consent, refrain from acting on behalf
of that Bank in any legal or arbitration proceedings relating
to any Finance Document.
The Agent's duties under the Finance Documents are solely mechanical
and administrative in nature.
33.4 EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent nor an Arranger shall:
33.4.1 be bound to enquire as to (a) whether or not any
representation made or deemed to be made by either the Parent
or an Obligor in connection with the Finance Documents is
true, (b) the occurrence or otherwise of any Event of Default
or Potential Event of Default, (c) the performance by either
the Parent or an Obligor of its obligations under the Finance
Documents or (d) any breach of or default by either the Parent
or an Obligor of or under its obligations under the Finance
Documents;
33.4.2 be bound to account to any Bank or the Permitted Facilities
Provider for any sum or the profit element of any sum received
by it for its own account;
33.4.3 be bound to disclose to any other person any information
relating to any member of the NTL Inc. Group, any member of
the NTL Inc. Holding Group or any member of the Group if (a)
such information is confidential or (b) such disclosure would
or might in its reasonable opinion constitute a breach of any
law or a breach of fiduciary duty;
33.4.4 be under any obligations other than those for which express
provision is made herein; or
33.4.5 be or be deemed to be a fiduciary for any other party hereto.
33.5 DELEGATION
The Agent may delegate, transfer or assign to any subsidiary of The
Chase Manhattan Corporation or its successor from time to time all or
any of the rights, powers, authorities and discretions vested in it
under the Finance Documents and the performance of its duties in
accordance therewith, and such delegation, transfer or assignment may
be made upon such terms and subject to such conditions (including the
power to sub-delegate) and subject to such regulations as the Agent may
think fit (and the term "Agent" as used in this Agreement shall include
any such delegate).
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33.6 INDEMNIFICATION
Each Bank shall, in its Proportion, from time to time on demand by the
Agent, indemnify the Agent against any and all costs, claims, losses,
expenses (including legal fees) and liabilities together with any VAT
thereon which the Agent may incur, otherwise than by reason of its own
gross negligence or wilful misconduct, in acting in its capacity as
agent under the Finance Documents (other than any which have been
reimbursed by the Borrowers pursuant to Clause 28.1 (Borrowers'
Indemnity)).
33.7 EXCLUSION OF LIABILITIES
Each Bank confirms that it has read the Notice to Recipients in the
Information Memorandum, that it has complied with the Recipients'
Obligations (as set out in the Notice to Recipients) and, accordingly,
that it enters into this Agreement on the basis of the Notice to
Recipients. In particular, each of the Banks accepts that it is
entering into this Agreement in reliance only on the representations of
the Parent and Obligors in this Agreement (and, in relation to the
Information Memorandum, in reliance only on the representations of the
Shareholder in Clause 19.22 (Information Memorandum)) and on its own
investigations, that it has not relied on the Arrangers and that,
except as set out below, it neither has nor will have any claims
against the Arrangers arising from or in connection with this
Agreement. Similarly, each of the Banks accepts that the Notice to
Recipients in the Information Memorandum is applicable also to the
Agent as if the Agent had been named in addition to the Arrangers in
the Important Notice.
Except in the case of gross negligence or wilful default, neither the
Agent nor any Arranger accepts any responsibility to any of the Banks
and/or to the Permitted Facilities Provider:
33.7.1 for the adequacy, accuracy and/or completeness of the
Information Memorandum or any other information supplied by
the Agent or the Arrangers, by the Parent or an Obligor or by
any other person in connection with the Finance Documents or
any other agreement, arrangement or document entered into,
made or executed in anticipation of, pursuant to or in
connection with the Finance Documents;
33.7.2 for the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection with
the Finance Documents; or
33.7.3 for the exercise of, or the failure to exercise, any
judgement, discretion or power given to any of them by or in
connection with the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the Finance
Documents.
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Accordingly, neither the Agent nor the Arrangers shall be under any
liability (whether in negligence or otherwise) in respect of such
matters, save in the case of gross negligence or wilful misconduct.
33.8 NO ACTIONS
Each of the Banks agrees that it will not assert or seek to assert
against any director, officer or employee of the Agent or the Arrangers
any claim it might have against any of them in respect of the matters
referred to in Clause 33.7 (Exclusion of Liabilities).
33.9 BUSINESS WITH THE GROUP
The Agent and the Arrangers may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any
member of the NTL Inc. Group, the NTL Inc. Holding Group or any member
of the Group whether or not it may or does lead to a conflict with the
interests of any of the Banks. Similarly, the Agent or the Arrangers
may undertake business with or for others even though it may lead to a
conflict with the interests of any of the Banks.
33.10 RESIGNATION
The Agent may resign its appointment hereunder at any time without
assigning any reason therefor by giving not less than thirty days'
prior notice to that effect to each of the other parties hereto,
PROVIDED THAT no such resignation shall be effective until a successor
for the Agent is appointed in accordance with the succeeding provisions
of this Clause 33.
33.11 REMOVAL OF AGENT
An Instructing Group may, after consultation with the Principal
Borrower, remove the Agent from its role as agent under the Finance
Documents by giving notice to that effect to each of the other parties
hereto. Such removal shall take effect only when a successor to the
Agent is appointed in accordance with the terms of the Finance
Documents.
33.12 SUCCESSOR AGENT
If the Agent gives notice of its resignation pursuant to Clause 33.10
(Resignation) or it is removed pursuant to Clause 33.11 (Removal of
Agent), then any reputable and experienced bank or other financial
institution may, with the prior consent of the Principal Borrower, be
appointed as a successor to the Agent by an Instructing Group during
the period of such notice but, if no such successor is so appointed,
the Agent may appoint such a successor itself.
33.13 RIGHTS AND OBLIGATIONS
If a successor to the Agent is appointed under the provisions of Clause
33.12 (Successor Agent), then (a) the retiring or departing Agent shall
be discharged from any further obligation under the Finance Documents
but shall remain entitled to the benefit of the provisions of this
Clause 33 and (b) its successor and each of the other parties to the
Finance Documents shall have the same rights and obligations amongst
themselves as they would have had if such successor had been a party
thereto.
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33.14 OWN RESPONSIBILITY
It is understood and agreed by each Bank that at all times it has
itself been, and will continue to be, solely responsible for making its
own independent appraisal of and investigation into all risks arising
under or in connection with the Finance Documents including, but not
limited to:
33.14.1 the financial condition, creditworthiness, condition, affairs,
status and nature of each member of the NTL Inc. Group, the
NTL Inc. Holding Group and the Group;
33.14.2 the legality, validity, effectiveness, adequacy and
enforceability of the Finance Documents and any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection with
the Finance Documents;
33.14.3 whether such Bank has recourse, and the nature and extent of
that recourse, against an Obligor or any other person or any
of their respective assets under or in connection with the
Finance Documents, the transactions therein contemplated or
any other agreement, arrangement or document entered into,
made or executed in anticipation of, pursuant to or in
connection with the Finance Documents; and
33.14.4 the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent or
the Arrangers, the Parent, an Obligor, or by any other person
in connection with the Finance Documents, the transactions
contemplated therein or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with the Finance Documents.
Accordingly, each Bank acknowledges to the Agent and the Arrangers that
it has not relied on and will not hereafter rely on the Agent and the
Arrangers or any of them in respect of any of these matters.
33.15 BANKS' MANDATORY COST DETAILS
Each Bank will supply the Agent with such information and in such
detail as the Agent may require in order to calculate the Mandatory
Cost Rate in accordance with Schedule 10 (Mandatory Costs).
33.16 RECEIPT OF INFORMATION BY THE AGENT
Any information or document received by the Agent shall only be treated
as having been received by the Agent if the same has been delivered to
the Agent's agency department in accordance with Clause 40 (Notices).
Accordingly, any information or documents received by the Agent other
than by its agency department in accordance with Clause 40 (Notices) is
not by reason of that receipt to be treated as having been received by
the Agent unless and until the Agent's agency department has received
actual notice of the same in accordance with such Clause. Save as
expressly set out in this Agreement and, unless the Agent's agency
department shall have received
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information or documents in accordance with Clause 40 (Notices) the
Agent shall have no duty to disclose, and shall not be liable for the
failure to disclose, any information or documents, that are
communicated to or obtained by the Agent.
34. ASSIGNMENTS AND TRANSFERS
34.1 BINDING AGREEMENT
The Finance Documents shall be binding upon and enure to the benefit of
each party hereto and its or any subsequent successors and Transferees.
34.2 NO ASSIGNMENTS AND TRANSFERS BY THE PARENT OR THE OBLIGORS
Neither the Parent nor any Obligor shall be entitled to assign or
transfer all or any of its rights, benefits and obligations under the
Finance Documents.
34.3 ASSIGNMENT AND TRANSFERS BY BANKS
34.3.1 Subject to Clause 34.7 (Qualifying Lenders), any Bank may, at
any time, assign all or any of its rights and benefits
hereunder, transfer in accordance with Clause 34.5 (Transfers
by Banks) all or any of its rights, benefits and obligations
hereunder to, or enter into any form of sub-participation
agreement with, a bank or financial institution.
34.3.2 The prior written consent of the Principal Borrower (which
shall be deemed to be given on its own behalf and on behalf of
the other Obligors) is required for an assignment or transfer
by a Bank unless the assignment or transfer is to:
(a) another Bank; or
(b) an affiliate of the transferring Bank.
34.3.3 The Principal Borrower's consent must not be (a) unreasonably
delayed or withheld or (b) withheld solely because the
assignment or transfer may result in an increase to the
Mandatory Cost Rate.
34.3.4 Any assignment or transfer by a Bank shall be in respect of a
pro rata amount of such Bank's participation in each Facility.
34.4 ASSIGNMENTS BY BANKS
If any Bank assigns all or any of its rights and benefits under the
Finance Documents in accordance with Clause 34.3 (Assignments and
Transfers by Banks), then, unless and until the assignee has delivered
a notice to the Agent confirming in favour of the other Finance Parties
that it shall be under the same obligations towards each of them as it
would have been under if it had been an original party hereto as a Bank
(whereupon such assignee shall become a party hereto as a "Bank"), the
Agent, the Arrangers, the other Banks and the Permitted Facilities
Provider shall not be obliged to recognise such assignee as having the
rights against each of them which it would have had if it had been such
a party hereto.
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34.5 TRANSFERS BY BANKS
If any Bank wishes to transfer all or any of its rights, benefits
and/or obligations under the Finance Documents as contemplated in
Clause 34.3 (Assignments and Transfers by Banks), then such transfer
may be effected by the delivery to the Agent of a duly completed
Transfer Certificate executed by such Bank and the relevant Transferee
in which event, on the later of the Transfer Date specified in such
Transfer Certificate and the fifth Business Day after (or such earlier
Business Day endorsed by the Agent on such Transfer Certificate falling
on or after) the date of delivery of such Transfer Certificate to the
Agent:
34.5.1 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer by novation its rights, benefits and
obligations under the Finance Documents, the Parent and each
of the Obligors and such Bank shall be released from further
obligations towards one another under the Finance Documents
and their respective rights against one another shall be
cancelled (such rights and obligations being referred to in
this Clause 34.5 as "DISCHARGED RIGHTS AND OBLIGATIONS");
34.5.2 the Parent, each of the Obligors and the Transferee party
thereto shall assume obligations towards one another and/or
acquire rights against one another which differ from such
discharged rights and obligations only insofar as the Parent,
the Obligors and such Transferee have assumed and/or acquired
the same in place of the Parent, the Obligors and such Bank;
34.5.3 the Agent, the Arrangers, the Permitted Facilities Provider,
such Transferee and the other Banks shall acquire the same
rights and benefits and assume the same obligations between
themselves as they would have acquired and assumed had such
Transferee been an original party hereto as a Bank with the
rights, benefits and/or obligations acquired or assumed by it
as a result of such transfer and to that extent the Agent, the
Arrangers, the Permitted Facilities Provider, the other Banks
and the relevant Bank shall each be released from further
obligations to each other under the Finance Documents; and
34.5.4 such Transferee shall become a party hereto as a "Bank".
34.6 NO INCREASED OBLIGATIONS
If:
34.6.1 a Bank assigns or transfers any of its rights or obligations
under the Finance Documents or changes its Facility Office;
and
34.6.2 as a result of circumstances existing at the date of the
assignment, transfer or change of Facility Office, an Obligor
would be obliged to make a payment to the assignee, Transferee
or the Bank acting through its new Facility Office under
Clause 14.1 (Tax Gross-up), Clause 14.2 (Tax Indemnity) or
Clause 16 (Increased Costs),
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then the assignee, Transferee or the Bank acting through its new
Facility Office shall only be entitled to receive payment under those
Clauses to the same extent as the assignor, transferor or the Bank
acting through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
34.7 QUALIFYING LENDERS
34.7.1 Subject to sub-clause 34.7.2 below, no Bank may:
(a) assign all or any of its rights and benefits
hereunder to;
(b) transfer all or any of its rights, benefits and
obligations hereunder to; or
(c) enter into a sub-participation agreement in relation
to this Agreement with,
any person who is not, at the time of such an assignment,
transfer or sub-participation a Qualifying Lender.
34.7.2 On or before the Syndication Date, the Banks may with the
consent of the Arrangers (and in consultation with the
Principal Borrower) assign all or any of their rights and
benefits hereunder or transfer all or any of their rights,
benefits and obligations hereunder to financial institutions
who are not Qualifying Lenders PROVIDED THAT the number of
Banks who are not Qualifying Lenders shall not exceed ten.
34.7.3 Any Bank who enters into a sub-participation agreement in
relation to this Agreement shall ensure that:
(a) the terms of such sub-participation agreement oblige
the sub-participant to neither enter into further
sub-participation agreements (in relation to the
rights between it and such Bank) nor assign or grant
any interest over the sub-participation agreement,
except in each case to a person who is a Qualifying
Lender;
(b) the sub-participant enters into an undertaking in
favour of each Obligor to abide by the terms included
in the sub-participation agreement to reflect
paragraph (a) above;
(c) the terms of such sub-participation agreement oblige
the sub-participant, in respect of any further
sub-participation, assignment or grant, to include a
term identical to the provisions of this clause
mutatis mutandis, including a requirement that any
further sub-participant, assignee or grantee enters
into such undertaking.
34.8 ASSIGNMENT AND TRANSFER FEES
On the date upon which an assignment takes effect pursuant to Clause
34.4 (Assignments by Banks) or a transfer takes effect pursuant to
Clause 34.5 (Transfers by Banks) the relevant assignee or Transferee
shall pay to the Agent for its own account a fee of $1,500.
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34.9 CONFIDENTIALITY
Each Bank agrees to be bound by the terms and conditions of the
Confidentiality Undertaking, as if such had been issued by such a Bank
to, and countersigned by, the Parent. This Clause 34.8 and the terms
and conditions of the Confidentiality Undertaking shall replace and
supersede any undertakings with respect to confidentiality in relation
to this transaction previously given by any Bank in favour of the
Parent and other members of the NTL Inc. Group, the NTL Inc. Holding
Group and the Group.
34.10 DISCLOSURE OF INFORMATION
Any Bank may disclose to any person:
34.10.1 to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights,
benefits and obligations under the Finance Documents;
34.10.2 with (or through) whom such Bank enters into (or may
potentially enter into) any sub-participation in relation to,
or any other transaction under which payments are to be made
by reference to, the Finance Documents or any Obligor; or
34.10.3 to whom information may be required to be disclosed by any
applicable law,
such information about the Parent, the NTL Inc. Group, the NTL Inc.
Holding Group, the Group and the Finance Documents as such Bank shall
consider appropriate PROVIDED THAT, in relation to sub-clauses 34.10.1
and 34.10.2, the person to whom such information is to be given has
entered into a Confidentiality Undertaking.
34.11 NOTIFICATION
The Agent shall within fourteen days of receiving a Transfer
Certificate notify the Principal Borrower (on its own behalf and on
behalf of the other Borrowers) of any assignment or transfer completed
pursuant to this Clause 34.
35. ADDITIONAL BORROWERS
35.1 REQUEST FOR ADDITIONAL BORROWER
The Principal Borrower may request that any of its subsidiaries
incorporated in either Switzerland or Austria become an Additional
Borrower by delivering to the Agent a Borrower Accession Memorandum
duly executed by the Principal Borrower and such subsidiary, together
with the documents and other evidence listed in Schedule 8 (Additional
Conditions Precedent) in relation to such subsidiary.
35.2 BORROWER CONDITIONS PRECEDENT
A company, in respect of which the Principal Borrower has delivered a
Borrower Accession Memorandum to the Agent, shall become an Additional
Borrower and assume all the rights, benefits and obligations of a
Borrower as if it had been an Original Borrower on the date on which
the Agent notifies the Principal Borrower that:
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35.2.1 all of the Banks accepts the Principal Borrower's request in
respect of such subsidiary; and
35.2.2 the Agent has received, in form and substance satisfactory to
it, all documents and other evidence listed in Schedule 8
(Additional Conditions Precedent) in relation to such
subsidiary,
unless on such date an Event of Default or Potential Event of Default
is continuing or would occur as a result of such subsidiary becoming an
Additional Borrower.
35.3 RESIGNATION OF A BORROWER
If at any time a Borrower (other than the Principal Borrower) is under
no actual or contingent obligation under or pursuant to any Finance
Document, the Principal Borrower may request that such Borrower shall
cease to be a Borrower by delivering to the Agent a Resignation Notice.
Such Resignation Notice shall be accepted by the Agent on the date on
which it notifies the Principal Borrower that it is satisfied that such
Borrower is under no actual or contingent obligation under or pursuant
to any Finance Document and such Borrower shall immediately cease to be
a Borrower and shall have no further rights, benefits or obligations
hereunder save for those which arose prior to such date.
36. ADDITIONAL GUARANTORS
36.1 REQUEST FOR ADDITIONAL GUARANTOR
The Principal Borrower may request that any of its subsidiaries become
an Additional Guarantor by delivering to the Agent a Guarantor
Accession Memorandum duly executed by the Principal Borrower and such
subsidiary, together with the documents and other evidence listed in
Schedule 8 (Additional Conditions Precedent) in relation to such
subsidiary.
36.2 GUARANTOR CONDITIONS PRECEDENT
A company, in respect of which the Principal Borrower has delivered a
Guarantor Accession Memorandum to the Agent, shall become an Additional
Guarantor and assume all the rights, benefits and obligations of a
Guarantor as if it had been an original party hereto as a Guarantor on
the date on which the Agent notifies the Principal Borrower that it has
received, in form and substance satisfactory to it, all the documents
and other evidence listed in Schedule 8 (Additional Conditions
Precedent).
36.3 RESIGNATION OF A GUARANTOR
The Principal Borrower may request that a Guarantor (other than the
Principal Borrower) ceases to be a Guarantor by delivering a
Resignation Notice to the Agent. The Agent shall accept such
Resignation Notice and notify the Principal Borrower of its acceptance
(whereupon such Guarantor shall immediately cease to be a Guarantor and
shall have no further rights, benefits or obligations hereunder) if:
36.3.1 the Agent has received evidence, in form and substance
satisfactory to it, confirming that the aggregate EBITDA of
the remaining Guarantors for the last financial year of the
Principal Borrower equalled or exceeded 95% of the
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consolidated EBITDA of the Restricted Group for such a
financial year (calculated in accordance with Clause 22.23
(Guarantors); and
36.3.2 on such date no Event of Default or Potential Event of Default
is continuing or would occur as a result of such cessation.
37. PERMITTED FACILITIES PROVIDER
37.1 REQUEST FOR PERMITTED FACILITIES PROVIDER
The Principal Borrower may request that any financial institution
becomes the Permitted Facilities Provider by delivering to the Agent:
37.1.1 a written request, identifying such financial institution; and
37.1.2 copies of the proposed documentation setting out the terms on
which the Secured Permitted Facilities will be made available
to certain members of the Restricted Group.
37.2 PERMITTED FACILITIES PROVIDER CONDITIONS PRECEDENT
The financial institution, in respect of which the Principal Borrower
has delivered a request in accordance with Clause 37.1 (Request for
Permitted Facilities Provider), shall become the Permitted Facilities
Provider and assume all the rights, benefits and obligations of the
Permitted Facilities Provider as if it had been an original party
hereto as the Permitted Facilities Provider if:
37.2.1 the Agent (acting on the instructions of an Instructing Group)
has (a) confirmed to the Principal Borrower that such
financial institution is acceptable to it and (b) approved the
terms of the proposed documentation on which the Secured
Permitted Facilities will be provided; and
37.2.2 the Agent has received a Deed of Accession executed by such a
financial institution.
38. CALCULATIONS AND EVIDENCE OF DEBT
38.1 BASIS OF ACCRUAL
Interest and commitment commission shall accrue from day to day and
shall be calculated on the basis of a year of 360 days (or, in any case
where market practice differs, in accordance with market practice) and
the actual number of days elapsed.
38.2 QUOTATIONS
If on any occasion a Reference Bank or Bank fails to supply the Agent
with a quotation required of it under the foregoing provisions of this
Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Agent,
PROVIDED THAT, in relation to determining LIBOR, this Clause 38.2 shall
not apply if only one Reference Bank supplies a quotation.
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38.3 EVIDENCE OF DEBT
Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it
hereunder.
38.4 CONTROL ACCOUNTS
The Agent shall maintain on its books a control account or accounts in
which shall be recorded (a) the amount of any Advance or any Unpaid Sum
and each Bank's share therein, (b) the amount of all principal,
interest and other sums due or to become due from an Obligor and each
Bank's share therein and (c) the amount of any sum received or
recovered by the Agent hereunder and each Bank's share therein.
38.5 PRIMA FACIE EVIDENCE
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 38.3 (Evidence of Debt) and Clause 38.4 (Control Accounts) shall
be prima facie evidence of the existence and amounts of the specified
obligations of the Obligors.
38.6 CERTIFICATES OF BANKS
A certificate of a Bank as to (a) the amount by which a sum payable to
it hereunder is to be increased under Clause 14.1 (Tax Gross-up), (b)
the amount for the time being required to indemnify it against any such
cost, payment or liability as is mentioned in Clause 14.2 (Tax
Indemnity), Clause 16.1 (Increased Costs) or Clause 28.1 (Borrowers'
Indemnity) or (c) the amount of any credit, relief, remission or
repayment as is mentioned in Clause 15.3 (Tax Credit Payment) or Clause
15.4 (Tax Credit Clawback) shall, in the absence of manifest error, be
prima facie evidence of the existence and amounts of the specified
obligations of the Obligors.
38.7 AGENT'S CERTIFICATES
A certificate of the Agent as to the amount at any time due from a
Borrower hereunder or the amount which, but for any of the obligations
of such Borrower hereunder being or becoming void, voidable,
unenforceable or ineffective, at any time would have been due from such
Borrower hereunder shall, in the absence of manifest error, be
conclusive for the purposes of Clause 24 (Guarantee and Indemnity).
39. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
39.1 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver thereof, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise thereof or
the exercise of any other right or remedy. The rights and remedies
herein provided are cumulative and not exclusive of any rights or
remedies provided by law.
39.2 PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality,
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validity or enforceability of the remaining provisions thereof nor the
legality, validity or enforceability of such provision under the law of
any other jurisdiction shall in any way be affected or impaired
thereby.
40. NOTICES
40.1 COMMUNICATIONS IN WRITING
Each communication to be made under the Finance Documents shall be made
in writing and, unless otherwise stated, shall be made by fax or
letter.
40.2 ADDRESSES
Any communication or document to be made or delivered pursuant to the
Finance Documents shall be made or delivered to the address or fax
number (and the department or officer, if any, for whose attention the
communication is made):
40.2.1 in the case of the Parent, the Original Obligors and the
Agent, identified with its name below;
40.2.2 in the case of each Bank, notified in writing to the Agent
prior to the date hereof (or, in the case of a Transferee, at
the end of the Transfer Certificate to which it is a party as
Transferee);
40.2.3 in the case of the Permitted Facilities Provider, in the Deed
of Accession; and
40.2.4 in the case of each Additional Obligor, in the relevant
Accession Memorandum,
or to any substitute address, fax number or department or officer as
the Parent, an Obligor, the Permitted Facilities Provider, or a Bank
may notify to the Agent (or the Agent may notify to the Principal
Borrower (on its own behalf and on behalf of the other Obligors), the
Permitted Facilities Provider and the Banks, if a change is made by the
Agent) by not less than five Business Days' notice. Any communication
to be made to an Obligor (other than the Principal Borrower) by fax
shall be made to the fax number identified with the Principal
Borrower's name below. Any communication or document to be made or
delivered to an Obligor (other than the Principal Borrower) shall be
copied to the Principal Borrower.
40.3 DELIVERY
Any communication or document to be made or delivered by one person to
another under or in connection with the Finance Documents shall only be
effective:
40.3.1 if by way of fax, when received in legible form;
40.3.2 if by way of letter, when left at the relevant address or, as
the case may be, five days after being deposited in the post
in a postage prepaid envelope addressed to such address; and
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40.3.3 if a particular department or officer is specified as part of
the address details provided under Clause 40.2 (Addresses), if
addressed to that department or officer,
PROVIDED THAT any communication or document to be made or delivered to
the Agent shall be effective only when actually received by its agency
division and then only if the same is expressly marked for the
attention of the department or officer identified with the Agent's
signature below (or such other department or officer as the Agent shall
from time to time specify for this purpose).
40.4 THE AGENT
All notices from or to either the Parent or an Obligor shall be sent
through the Agent.
40.5 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to
another pursuant to the Finance Documents shall be in the English
language or accompanied by a translation thereof into English certified
(by an officer of the person making or delivering the same) as being a
true and accurate translation thereof.
40.6 NOTIFICATION OF CHANGES
Promptly upon receipt of notification, from the Parent or an Obligor,
of a change of address or fax number pursuant to Clause 40.2
(Addresses) or changing its own address or fax number the Agent shall
notify the other parties hereto of such change.
40.7 DEEMED RECEIPT BY THE OBLIGORS
Any communication or document made or delivered to the Principal
Borrower in accordance with Clause 40.3 (Delivery) shall be deemed to
have been made or delivered to each of the Obligors.
41. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
42. AMENDMENTS
42.1 AMENDMENTS
Each of the parties hereto agrees that, if the Agent has the prior
consent of an Instructing Group, the Agent, the Parent and the Obligors
party to a Finance Document may from time to time agree in writing to
amend such Finance Document or, as the case may be, the Agent may
consent to or waive, prospectively or retrospectively, any of the
requirements of such Finance Document and any amendments or waivers so
agreed or consents so given shall be binding on all the Finance Parties
and the Permitted Facilities Provider, PROVIDED THAT no such waiver or
amendment shall subject any Finance Party or the Permitted Facilities
Provider to any new or additional obligations without the consent of
such Finance Party or, as the case may be, the Permitted Facilities
Provider.
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125
42.2 AMENDMENTS REQUIRING THE CONSENT OF ALL THE BANKS
An amendment or waiver which relates to:
42.2.1 Clause 32 (Sharing) or this Clause 42;
42.2.2 a change in the principal amount of or currency of any
Advance, or deferral of any Original Term Repayment Date,
Repayment Date or Term-Out Repayment Date;
42.2.3 a change in the Margin, the amount of any payment of
principal, interest, fees or any other amount payable
hereunder to any Finance Party or deferral of the date for
payment thereof;
42.2.4 a release of any of the Security;
42.2.5 a Security Document, where such an amendment or waiver could
affect the nature or scope of the property subject to the
Security;
42.2.6 an increase in the commitment of a Bank;
42.2.7 a change to the Borrowers or Guarantors other than in
accordance with Clause 35 (Additional Borrowers) or Clause 36
(Additional Guarantors);
42.2.8 Clause 2.4 (Banks' Obligations Several), Clause 2.5 (Banks'
Rights Several), Clause 30.6 (Security Proceeds), Clause 30.7
(Application of Security Proceeds), Clause 35 (Additional
Borrowers) or Clause 36 (Additional Guarantors);
42.2.9 the conditions set out in sub-clause 3.1.6 of Clause 3.1
(Drawdown Conditions for Original Term Advances) if (in
respect of Original Term Advances made on the Acquisition
Date) an Acquisition Event of Default or Acquisition Potential
Event of Default which relates to an Acquisition Repeated
Representation is continuing or (in the case of all other
Original Term Advances) an Event of Default or Potential Event
of Default which relates to a Repeated Representation or
Clause 22.16 (Negative Pledge) is continuing;
42.2.10 the conditions set out in sub-clause 6.1.10 of Clause 6.1
(Drawdown Conditions for Revolving Advances) if an Event of
Default or Potential Event of Default which relates to a
Repeated Representation or Clause 22.16 (Negative Pledge) is
continuing;
42.2.11 the definition of Instructing Group, Permitted Encumbrance or
Potential Event of Default; or
42.2.12 any provision which contemplates the need for the consent or
approval of all the Banks,
shall not be made without the prior consent of all the Banks.
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42.3 EXCEPTIONS
42.3.1 Notwithstanding any other provisions hereof, the Agent shall
not be obliged to agree to any such amendment or waiver if the
same would:
(a) amend or waive this Clause 42, Clause 26 (Costs and
Expenses) or Clause 33 (The Agent, the Arrangers and
the Banks); or
(b) otherwise amend or waive any of the Agent's rights
hereunder or subject the Agent or the Arrangers to
any additional obligations hereunder.
42.3.2 Notwithstanding any other provisions hereof, the Permitted
Facilities Provider's consent shall be required for any such
amendment or waiver relating to Clause 30 (Payments) and/or
Clause 32 (Sharing) if the same would have a material adverse
effect on the Permitted Facilities Provider's rights and/or
obligations under Clause 30 (Payments) and/or Clause 32
(Sharing).
43. GOVERNING LAW
This Agreement is governed by English law.
44. JURISDICTION
44.1 ENGLISH COURTS
The courts of England have exclusive jurisdiction to settle any dispute
(a "DISPUTE") arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or termination
of this Agreement or the consequences of its nullity).
44.2 CONVENIENT FORUM
The parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes between them and, accordingly,
that they will not argue to the contrary.
44.3 NON-EXCLUSIVE JURISDICTION
This Clause 44 is for the benefit of the Finance Parties only. As a
result and notwithstanding Clause 44.1 (English Courts), it does not
prevent any Finance Party from taking proceedings relating to a Dispute
("PROCEEDINGS") in any other courts with jurisdiction. To the extent
allowed by law, the Finance Parties may take concurrent Proceedings in
any number of jurisdictions.
44.4 SERVICE OF PROCESS
The Parent and each Original Obligor agrees that the documents which
start any Proceedings and any other documents required to be served in
relation to those Proceedings may be served on it:
44.4.1 in the case of the Parent, on NTL Group Limited at ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ or, if
different, its registered office.
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44.4.2 in the case of each Original Obligor, on NTL Group Limited at
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ or, if different, its registered office.
If the Parent or any Original Obligor ceases to have a place of
business in Great Britain or, as the case may be, the appointment of
the person mentioned in this Clause 43.4 ceases to be effective, the
Parent or the relevant Original Obligor shall immediately appoint
another person in England to accept service of process on its behalf in
England. If the Parent or an Original Obligor fails to do so (and such
failure continues for a period of not less than fourteen days), the
Agent shall be entitled to appoint such a person by notice to the
Parent or, as the case may be, the relevant Original Obligor. Nothing
contained herein shall restrict the right to serve process in any other
manner allowed by law. This Clause 43.4 applies to Proceedings in
England and to Proceedings elsewhere.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
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SCHEDULE 1
THE ORIGINAL PARTIES
PART A
THE OBLIGORS
ORIGINAL BORROWERS
NAME OF ORIGINAL BORROWER JURISDICTION OF INCORPORATION
Principal Borrower Switzerland
Cablecom Management AG Switzerland
Balcab AG Switzerland
ORIGINAL GUARANTORS
NAME OF ORIGINAL GUARANTOR JURISDICTION OF INCORPORATION
Shareholder Switzerland
Principal Borrower Switzerland
Cablecom AG Switzerland
Cablecom (Suisse Romande) SA Switzerland
Coditel SA Switzerland
Cablecom (Ticino) SA Switzerland
Balcab AG Switzerland
Swiss Online AG Switzerland
Cablecom (Bern) AG Switzerland
Cablecom Engineering AG Switzerland
Cablecom (Mittelland) AG Switzerland
Cablecom (Zentralschweiz) AG Switzerland
Kilchenmann Holding AG Switzerland
Nordex SA Switzerland
Rera AG Immobiliengesellschaft Switzerland
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129
NAME OF ORIGINAL GUARANTOR JURISDICTION OF INCORPORATION
Winter Kabelfernseh AG Switzerland
Cable Signal Olten AG Switzerland
Kilchenmann Kabelfernseh AG Switzerland
Cablecom Media AG Switzerland
Catec SV AG Switzerland
Rediffusion AG Switzerland
Cablecom Management AG Switzerland
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130
PART B
THE OPERATING COMPANIES
The Principal Borrower
CC AG
Cablecom (Mittelland) AG
Cablecom (Zentralschweiz) AG
Cablecom (Bern) AG
Cablecom (Suisse Romande) SA
Cablecom Engineering SA
Cablecom Media SA
Cablecom (Ticino) ▇▇
▇▇▇▇▇▇▇▇▇▇▇ Kabelfernseh AG
Balcab AG
Rediffusion AG Coditel SA Swiss Online AG
Cablecom Management AG
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PART C
THE BANKS
TERM REVOLVING
BANK COMMITMENT CHF COMMITMENT CHF
LEAD ARRANGERS
The Chase Manhattan Bank 151,883,436 78,754,374
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. 151,883,436 78,754,374
ARRANGERS
Bank of America, N.A. 121,506,751 63,003,500
Bayerische Hypo- und Vereinsbank 121,506,751 63,003,500
Aktiengesellschaft, London Branch
Paribas 121,506,751 63,003,500
CIBC World Markets plc 121,506,751 63,003,500
Citibank, N.A. 121,506,751 63,003,500
Deutsche Bank AG London 121,506,751 63,003,500
Dresdner Bank Luxembourg S.A. 121,506,751 63,003,500
▇▇▇▇▇▇ Guaranty Trust Company of 121,506,751 63,003,500
New York
The Royal Bank of Scotland plc 121,506,751 63,003,500
Societe Generale 121,506,751 63,003,500
Westdeutsche Landesbank Girozentrale 121,506,751 63,003,500
CO-ARRANGERS
ABC International Bank plc 78,979,388 40,952,275
Banca Nazionale del Lavoro S.p.A., 78,979,388 40,952,275
London Branch
Bankgesellschaft Berlin AG 78,979,388 40,952,275
The Governor and Company of the 78,979,388 40,952,275
Bank of Scotland
Bayerische Landesbank Girozentrale 78,979,388 40,952,275
Credit Lyonnais 78,979,388 40,952,275
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132
TERM REVOLVING
BANK COMMITMENT CHF COMMITMENT CHF
Credit Suisse 78,979,388 40,952,275
The Dai-Ichi Kangyo Bank, Limited 78,979,388 40,952,275
Dexia Project and Public Finance 78,979,388 40,952,275
International Bank
DG Bank Deutsche 52,637,924 27,293,739
Genossenschaftsbank AG
Cooperative Centrale Raiffeisen- 26,341,463 13,658,537
Boerenleenbank BA (trading as
Rabobank International)
DLJ Capital Funding, Inc. 78,979,388 40,952,275
MeesPierson N.V. 78,979,388 40,952,275
Scotiabank Europe plc 78,979,388 40,952,275
LEAD MANAGER
The Fuji Bank, Limited 32,926,829 17,073,171
---------------- ----------------
CHF2,700,000,000 CHF1,400,000,000
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SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
To: Chase Manhattan International Limited
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "CREDIT AGREEMENT") dated 28 March 2000 whereby
CHF4,100,000,000 term and revolving loan facilities were made available to a
group of borrowers including the Principal Borrower by a group of banks on whose
behalf Chase Manhattan International Limited acted as agent in connection
therewith.
1. Terms defined in the Credit Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank, Transferee
and Portion Transferred are defined in the schedule hereto.
2. The Bank (i) confirms that the details in the schedule hereto under the
heading "BANK'S PARTICIPATION IN THE ORIGINAL TERM FACILITY", "ORIGINAL
TERM ADVANCES", "BANK'S PARTICIPATION IN THE REVOLVING FACILITY" and
["REVOLVING ADVANCES"/"TERM-OUT ADVANCES"] accurately summarises its
participation in the Credit Agreement and the Interest Period or Term
of any existing Advances and (ii) requests the Transferee to accept and
procure the transfer by novation to the Transferee of the Portion
Transferred (specified in the schedule hereto) of its Term Commitment
and/or Revolving Commitment and/or its participation in such Advance(s)
by counter-signing and delivering this Transfer Certificate to the
Agent at its address for the service of notices specified in the Credit
Agreement.
3. The Transferee hereby requests the Agent to accept this Transfer
Certificate as being delivered to the Agent pursuant to and for the
purposes of Clause 34.5 (Transfers by Banks) of the Credit Agreement so
as to take effect in accordance with the terms thereof on the Transfer
Date or on such later date as may be determined in accordance with the
terms thereof.
4. The Transferee confirms that it has received a copy of the Credit
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will
not hereafter rely on the Bank to check or enquire on its behalf into
the legality, validity, effectiveness, adequacy, accuracy or
completeness of any such information and further agrees that it has not
relied and will not rely on the Bank to assess or keep under review on
its behalf the financial condition, creditworthiness, condition,
affairs, status or nature of the Parent or the Obligors.
5. The Transferee hereby undertakes with the Bank and each of the other
parties to the Credit Agreement that it will perform in accordance with
their terms all those obligations which by the terms of the Finance
Documents will be assumed by it after delivery of this Transfer
Certificate to the Agent and satisfaction of the conditions (if any)
subject to which this Transfer Certificate is expressed to take effect.
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134
6. The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Finance Documents or any document
relating thereto and assumes no responsibility for the financial
condition of the Obligors or for the performance and observance by the
Obligors of any of their respective obligations under the Finance
Documents or any document relating thereto and any and all such
conditions and warranties, whether express or implied by law or
otherwise, are hereby excluded.
7. The Bank hereby gives notice that nothing herein or in the Finance
Documents (or any document relating thereto) shall oblige the Bank to
(a) accept a re-transfer from the Transferee of the whole or any part
of its rights, benefits and/or obligations under the Finance Documents
transferred pursuant hereto or (b) support any losses directly or
indirectly sustained or incurred by the Transferee for any reason
whatsoever including the non-performance by any Obligor or any other
party to the Finance Documents (or any document relating thereto) of
its obligations under any such document. The Transferee hereby
acknowledges the absence of any such obligation as is referred to in
(a) or (b) above.
8. This Transfer Certificate and the rights, benefits and obligations of
the parties hereunder shall be governed by and construed in accordance
with English law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Bank's Participation in the Original Portion Transferred
Term Facility:
Bank's Term Commitment
5. Original Term Advance(s): Interest Period Portion Transferred
Amount of Bank's Participation
6. Bank's Participation in the Revolving Portion Transferred
Facility:
Bank's Revolving Commitment
7. [Revolving Advance(s)/ [Term and Repayment Portion Transferred
Term-Out Advances]: Date/Interest Period]
Amount of Bank's Participation
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[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
________________________________________________________________________________
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments:
Telex:
Fax:
Telephone:
________________________________________________________________________________
[NOTE: EACH TRANSFEREE SHOULD, AT THE SAME TIME AS EXECUTING THIS TRANSFER
CERTIFICATE, EXECUTE ACCESSION DOCUMENTS FOR THE VARIOUS SECURITY DOCUMENTS.]
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136
SCHEDULE 3
CONDITIONS PRECEDENT
(A) CORPORATE DOCUMENTS
1. In relation to the Parent and each Original Obligor:
(a) a copy, certified as at the date of this Agreement a true and
up-to-date copy by an Authorised Signatory of the Parent or,
as the case may be, the relevant Original Obligor, of the
constitutional documents of the Parent or such Original
Obligor;
(b) a copy, certified as at the date of this Agreement a true and
up-to-date copy by an Authorised Signatory of the Parent or,
as the case may be, the relevant Original Obligor, of a board
resolution of the Parent or such Original Obligor approving
the execution, delivery and performance of the Finance
Documents to which the Parent or such Original Obligor is a
party and the terms and conditions thereof and authorising a
named person or persons to sign such Finance Documents and any
documents to be delivered by the Parent or such Original
Obligor pursuant thereto; and
(c) a certificate of an Authorised Signatory of the Parent or, as
the case may be, the relevant Original Obligor setting out the
names and signatures of the persons authorised to sign, on
behalf of the Parent or such Original Obligor, the Finance
Documents to which the Parent or such Original Obligor is a
party and any documents to be delivered by the Parent or such
Original Obligor pursuant thereto.
2. In relation to NTL CV1:
(a) a copy of an up-to-date extract ("uittreksel") from the
relevant Dutch Chamber of Commerce and a copy of the executed
agreement of association;
(b) a copy of a resolution of the partners approving the general
partner to enter into the Finance Documents on behalf of NTL
CV1, and approving the separate contributions and revised
Schedule B;
(c) a certificate signed by the general partner of NTL CV1 setting
out the names and signatures of the persons authorised to
sign, on behalf of NTL CV1, the Finance Documents to which NTL
CV1 is a party and any documents to be delivered by NTL CV1
pursuant thereto.
3. The Group Structure Chart (showing all members of the Group, assuming
that the Acquisition has completed).
4. To the extent not delivered under A1, a copy, certified (to the best of
such Authorised Signatory's knowledge and belief) as at the date of
this Agreement a true and up-to-
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137
date copy by an Authorised Signatory of the relevant Group member of
the constitutive documents of each Group member whose shares are
secured by the Share Pledges.
(B) ACCOUNTS AND REPORTS
1. The Business Plan.
2. The Accountant's Letter, addressed to the Finance Parties.
3. Copies, certified true copies by an Authorised Signatory of the
Principal Borrower, of the Original Financial Statements (other than
those referred to in paragraph (a) of the definition thereof).
4. The Vendor's audited consolidated financial statements for its
financial year ended 31 December 1999.
(C) ACQUISITION DOCUMENTS, HIVEDOWN AND RELATED MATTERS
1. A copy, certified by an Authorised Signatory of the Parent as true,
complete and up-to-date, of each Acquisition Document.
2. Evidence that the Acquisition has completed or, immediately following
the first Original Term Advance hereunder, will be completed in
accordance with the terms of the Acquisition Documents and that no
right or entitlement of the Parent or any member of either the NTL Inc.
Holding Group or the Group (whether to receive documents or otherwise)
thereunder has been waived or modified except with the written consent
of the Agent, together with written confirmation from the Parent that
the Acquisition Documents contain the full agreement of the parties
thereto as to the matters set out therein (save for any amendments to
the Acquisition Documents disclosed in the Disclosure Letter).
3. Evidence that, immediately following the completion of the Acquisition
neither the Shareholder nor any member of the Restricted Group shall
have (or will have) any Financial Indebtedness outstanding (other than
Permitted Financial Indebtedness) and that all Encumbrances (other than
Permitted Encumbrances) have been, or will be, discharged.
4. A Certificate of an Authorised Signatory of the Principal Borrower
confirming that all necessary consents, licences, authorisations and
approvals in relation to the transactions constituted by the
Acquisition Documents and the Finance Documents have been obtained,
such a certificate having certified copies of the following annexed to
it:
(a) the Licences necessary for the Cablecom Business to conduct
its business as at the date of the completion of the
Acquisition (other than any Licences referred to in paragraph
(c) of the definition thereof, where such Licences are not
material in the context of the Cablecom Business as a whole);
(b) the approval of the Acquisition by the Swiss Federal Office
for Communication;
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138
(c) clearance from the Swiss Competition Commission (or a
confirmation from the Parent's Swiss counsel that no such
clearance is required in connection with the Acquisition).
5. Copies, certified by an Authorised Signatory of the Parent as true,
complete and up-to-date, of all of the documents relating to the
Hivedown, evidencing that immediately following the making of the first
Original Term Advance hereunder in order to complete the Acquisition
the Principal Borrower and CC AG will be wholly owned subsidiaries of
the Shareholder and that the Principal Borrower, CC AG and the
Principal Borrower's subsidiaries will constitute the Cablecom
Business.
6. Evidence satisfactory to the Agent that the Group has (or, within a
reasonable period following the completion of the Acquisition, will
have) in existence, insurance policies in relation to the Cablecom
Business against those risks and at those levels which are usual for
companies carrying on a business such as that carried on by the
Cablecom Business at the completion of the Acquisition.
7. Evidence satisfactory to the Agent that an aggregate amount of at least
CHF3,100,000,000 has been, pursuant to and in accordance with the
Acquisition Documents and the Hivedown, contributed by the Parent
towards the Acquisition consideration.
(D) SECURITY DOCUMENTS AND RELATED DOCUMENTATION
1. The Security Documents, duly executed and delivered by the relevant
Original Obligors, in the form of public deeds where required by
applicable law.
2. All share certificates and, where applicable, the shareholders'
register and an approving board resolution (except in the case of an
approving board resolution where indicated by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
that this is unnecessary for a particular Group member) in relation to
the certificated shares in Group members which have been pledged
pursuant to the Share Pledges.
3. The Subordination Deed, duly executed by NTL SPV LLC as sole general
partner of CV1 and the Principal Borrower.
(E) LEGAL OPINIONS
Legal opinions from the following:
(a) ▇▇▇▇▇▇▇▇ Chance, London, the Agent's English counsel;
(b) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇, the Agent's Swiss counsel;
(c) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, the Parent's
Delaware counsel or (to the extent acceptable to the Agent)
other US Counsel;
(d) ▇▇▇▇▇▇▇▇ Chance, Amsterdam, the Agent's Dutch counsel;
(e) Dutch counsel to the Parent,
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139
in each case in substantially the form distributed to the
Banks prior to the signing of this Agreement.
(F) MISCELLANEOUS
1. The fees letters referred to in Clause 25.6 (Agency and Other Fees).
2. Written confirmation from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, or
other US counsel, that (a) the Parent's entry into of this Agreement,
the Acquisition Documents and (b) the entry into by other members of
the NTL Inc. Holding Group and members of the Group of the Acquisition
Documents, the documentation relating to the Hivedown and the Finance
Documents will not breach (i) the Parent's constitutive documents and
(ii) the indentures and other documentation relating to the NTL Notes
issued by any member of the NTL Inc. Group or the NTL Inc. Holding
Group.
3. Evidence that the party or parties specified in Clause 44.4 (Service of
Process) have agreed to act as the agents of the Parent and of each
Original Obligor for the service of process in England.
4. Evidence that the fees, costs and expenses required to be paid on or
about the date of this Agreement by either the Parent or the Principal
Borrower pursuant to Clause 25.6 (Agency and Other Fees) and Clause
26.2 (Stamp Taxes) have been paid or will be paid immediately following
the completion of the Acquisition.
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140
SCHEDULE 4
NOTICE OF DRAWDOWN
From: [Borrower]
To: Chase Manhattan International Limited
Dated:
Dear Sirs,
1. We refer to the agreement (the "CREDIT AGREEMENT") dated 28 March 2000 and
made between a group of borrowers including Cablecom (Ostschweiz) AG, Chase
Manhattan International Limited as agent and the financial institutions
named therein as Banks. Terms defined in the Credit Agreement shall have
the same meaning in this notice.
2. This notice is irrevocable.
3. We hereby give you notice that, pursuant to the Credit Agreement and on
[date of proposed Advance], we wish to borrow a [Term]/[Revolving] Advance
in the amount of CHF[ ] upon the terms and subject to the conditions
contained therein.
4. [We would like this Advance to have a first Interest Period of [ ] months'
duration.]*
or
[We would like this Advance to have a Term of [ ] months' duration.]**
5. We confirm that, at the date hereof, the [Repeated Representations/
Acquisition Repeated Representations]*** are true in all material respects
and no [Acquisition Event of Default or Acquisition Potential Event of
Default]***/Event of Default [or Potential Event of Default]]**** is
continuing.
6. The proceeds of this drawdown should be credited to [insert account
details].
Yours faithfully
........................................
Authorised Signatory
for and on behalf of
[Insert name of Borrower]
* If the Notice of Drawdown is for a Term Advance, insert only if there are
no outstanding Term Advances [or less than [ ] Term Advances would then be
outstanding].
** Delete as appropriate.
*** Refer to Acquisition Repeated Representations, Acquisition Events of
Default and Acquisition Potential Events of Default for Original Term
Advances to be made on the Acquisition Date.
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**** Delete for a Rollover Advance.
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SCHEDULE 5
FORM OF COMPLIANCE CERTIFICATE
To: Chase Manhattan International Limited
Date:
Dear Sirs,
We refer to an agreement (the "CREDIT AGREEMENT") dated 28 March 2000 and made
between a group of borrowers including Cablecom (Ostschweiz) AG, Chase Manhattan
International Limited as agent, the financial institutions defined therein as
Banks and others.
Terms defined in the Credit Agreement shall bear the same meaning herein.
We confirm that:
1. The ratio of the Senior Debt of the Group on [Quarter Date] to the
Annualised EBITDA of the Restricted Group for the period ended on [Quarter
Date] was [ ]:1.
2. [The ratio of the EBITDA of the Group for the six months ended on [Quarter
Date] to the Consolidated Finance Charges of the Restricted Group for that
six month period was [ ]:1.]
3. [The ratio of the Annualised EBITDA of the Restricted Group for the period
ended on [Quarter Date] to the Consolidated Pro-Forma Debt Service of the
Restricted Group as at [Quarter Date] was [ ]:1.]
On the basis of above, we confirm that the Margin in relation to any Advance
made or Interest Period which commences after your receipt of this Compliance
Certificate will be [ ] per cent. per annum.
We also confirm that:
1. The aggregate EBITDA of the Guarantors for the 12 month period ending on
[Quarter Date] equalled or exceeded 95% of the consolidated EBITDA of the
Restricted Group for such 12 month period.
2. The amount of Available Excess Cash Flow as at [ ] was [ ].
Signed:
-------------------------------- --------------------------------
Director Director
of Cablecom (Ostschweiz) AG of Cablecom (Ostschweiz) AG
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SCHEDULE 6
FORM OF BORROWER ACCESSION MEMORANDUM
To: Chase Manhattan International Limited
From: [Subsidiary]
and
Cablecom (Ostschweiz) AG
Dated:
Dear Sirs,
1. We refer to an agreement (the "CREDIT AGREEMENT") dated 28 March 2000 and
made between a group of borrowers including Cablecom (Ostschweiz) AG (the
"PRINCIPAL BORROWER"), Chase Manhattan International Limited as agent, the
financial institutions defined therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. The Principal Borrower requests that [Subsidiary] become an Additional
Borrower pursuant to Clause 35.1 (Request for Additional Borrower) of the
Credit Agreement.
4. [Subsidiary] is a company duly organised under the laws of [name of
relevant jurisdiction].
5. [Subsidiary] confirms that it has received from the Principal Borrower a
true and up-to-date copy of the Credit Agreement.
6. [Subsidiary] undertakes, upon its becoming a Borrower, to perform all the
obligations expressed to be undertaken under the Credit Agreement by a
Borrower and agrees that it shall be bound by the Credit Agreement in all
respects as if it had been an original party thereto as an Original
Borrower.
7. The Principal Borrower confirms that, if [Subsidiary] is accepted as an
Additional Borrower, its guarantee obligations and the guarantee
obligations of the other Guarantors pursuant to Clause 24 (Guarantee and
Indemnity) of the Credit Agreement will apply to all the obligations of
[Subsidiary] under the Finance Documents in all respects in accordance with
the terms of the Credit Agreement.
8. The Principal Borrower:
(a) repeats the Repeated Representations; and
(b) confirms that no Event of Default or Potential Event of Default is
continuing or would occur as a result of [Subsidiary] becoming an
Additional Borrower.
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9. [Subsidiary] makes the representations and warranties set out in Clause
19.1 (Status) to Clause 19.11 (Legal and Beneficial Owner).
10. [Subsidiary's] administrative details are as follows:
Address:
Fax No.:
11. PROCESS AGENT [Subsidiary] agrees that the documents which start any
Proceedings and any other documents required to be served in relation to
those Proceedings may be served on it at [address of Subsidiary's place of
business in England] or at any address in Great Britain at which process
may be served on it in accordance with Part XXIII of the Companies Act
1985]/[on name of process agent in England at address of process agent or,
if different, its registered office. If [[Subsidiary] ceases to have a
place of business in Great Britain]/[the appointment of the person
mentioned above ceases to be effective], [Subsidiary] shall immediately
appoint another person in England to accept service of process on its
behalf in England. If it fails to do so (and such failure continues for a
period of not less than fourteen days), the Agent shall be entitled to
appoint such a person by notice. Nothing contained herein shall restrict
the right to serve process in any other manner allowed by law. This applies
to Proceedings in England and to Proceedings elsewhere.]
12. This Memorandum is governed by English law.
CABLECOM (OSTSCHWEIZ) AG [Subsidiary]
By: By:
------------------------------ -------------------------------
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SCHEDULE 7
FORM OF GUARANTOR ACCESSION MEMORANDUM
To: Chase Manhattan International Limited
From: [Subsidiary] and
Cablecom (Ostschweiz) AG
Dated:
Dear Sirs,
1. We refer to an agreement (the "CREDIT AGREEMENT") dated 28 March 2000 and
made between a group of borrowers including Cablecom (Ostschweiz) AG (the
"PRINCIPAL BORROWER"), Chase Manhattan International Limited as agent, the
financial institutions defined therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. The Principal Borrower requests that [Subsidiary], a subsidiary of the
Principal Borrower, become an Additional Guarantor pursuant to Clause 36.1
(Request for Additional Guarantor) of the Credit Agreement.
4. [Subsidiary] is a company duly organised under the laws of [name of
relevant jurisdiction].
5. [Subsidiary] confirms that it has received from the Principal Borrower a
true and up-to-date copy of the Credit Agreement and a list of the
Borrowers as at the date hereof.
6. [Subsidiary] undertakes, upon its becoming a Guarantor, to perform all the
obligations expressed to be undertaken under the Credit Agreement by a
Guarantor and agrees that it shall be bound by the Credit Agreement in all
respects as if it had been an original party thereto as an Original
Guarantor.
7. The Principal Borrower:
(a) repeats the Repeated Representations; and
(b) confirms that no Event of Default or Potential Event of Default is
continuing or would occur as a result of [Subsidiary] becoming an
Additional Guarantor.
8. [Subsidiary] makes the representations and warranties set out in Clause
19.1 (Status) to Clause 19.11 (Legal and Beneficial Owner).
9. [Subsidiary's] administrative details are as follows:
Address:
Fax No.:
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10. [PROCESS AGENT*
[Subsidiary] agrees that the documents which start any Proceedings and any
other documents required to be served in relation to those Proceedings may
be served on it at [address of Subsidiary's place of business in England]
or at any address in Great Britain at which process may be served on it in
accordance with Part XXIII of the Companies Act 1985] / [on name of process
agent in England at address of process agent or, if different, its
registered office. If [Subsidiary] ceases to have a place of business in
Great Britain]/[ the appointment of the person mentioned above ceases to be
effective], [Subsidiary] shall immediately appoint another person in
England to accept service of process on its behalf in England. If it fails
to do so (and such failure continues for a period of not less than fourteen
days), the Agent shall be entitled to appoint such a person by notice.
Nothing contained herein shall restrict the right to serve process in any
other manner allowed by law. This applies to Proceedings in England and to
Proceedings elsewhere.]
11. This Memorandum is governed by English law.
This Memorandum is executed and delivered as a deed by [name of Additional
Guarantor]
...........................................
Director of Additional Guarantor
...........................................
Director/Secretary of Additional Guarantor]
or
[The Common Seal of [Additional Guarantor]
was affixed to this deed in the presence of
................................
Director of Additional Guarantor
................................
Director/Secretary of Additional
Guarantor**
[Insert name of Parent]
By: .......................................
* This clause is required only if the Additional Guarantor is not
incorporated in England or Wales.
** Delete as appropriate. If the company is not incorporated in England or
Wales, alternate form of execution may be more appropriate.
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SCHEDULE 8
ADDITIONAL CONDITIONS PRECEDENT
1. A copy, certified as at the date of the relevant Accession Memorandum a
true and up-to-date copy by an Authorised Signatory of the proposed
Additional Obligor, of the constitutional documents of such proposed
Additional Obligor.
2. A copy, certified as at the date of the relevant Accession Memorandum a
true and up-to-date copy by an Authorised Signatory of the proposed
Additional Obligor, of a board resolution of such proposed Additional
Obligor approving the execution and delivery of an Accession Memorandum,
the accession of such proposed Additional Obligor to this Agreement and the
performance of its obligations under the Finance Documents and authorising
a named person or persons to sign such Accession Memorandum, any other
Finance Document and any other documents to be delivered by such proposed
Additional Obligor pursuant thereto.
3. If the proposed Additional Obligor is incorporated in a jurisdiction other
than England and Wales and if deemed either necessary or desirable by the
Agent's counsel in the jurisdiction of incorporation of the proposed
Additional Obligor, a copy, certified as at the date of the relevant
Accession Memorandum a true and up-to-date copy by an Authorised Signatory
of the proposed Additional Obligor, of the resolutions of the shareholders
of such Additional Obligor authorising the execution and delivery of an
Accession Memorandum, the accession of such Additional Obligor to this
Agreement and the performance of its obligations under the Finance
Documents.
4. A certificate of an Authorised Signatory of the proposed Additional Obligor
setting out the names and signatures of the person or persons authorised to
sign, on behalf of such proposed Additional Obligor, the Accession
Memorandum, any other Finance Documents and any other documents to be
delivered by such proposed Additional Obligor pursuant thereto.
5. If deemed either necessary or desirable by the Agent's counsel in the
jurisdiction of incorporation of the proposed Additional Obligor, a
certificate of an Authorised Signatory of the proposed Additional Obligor
confirming that the utilisation of the Facilities would not breach any
restriction of its borrowing powers (or, as the case may be, its
guaranteeing powers).
6. If the proposed Additional Obligor is incorporated in a jurisdiction other
than England and Wales, a copy, certified a true copy by or on behalf of
the proposed Additional Obligor, of each such law, decree, consent,
licence, approval, registration or declaration as is, in the opinion of
counsel to the Banks, necessary to render the relevant Accession Memorandum
legal, valid, binding and enforceable, to make such Accession Memorandum
admissible in evidence in the proposed Additional Obligor's jurisdiction of
incorporation and to enable the proposed Additional Obligor to perform its
obligations thereunder and under the other Finance Documents.
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7. Copies, certified true copies by an Authorised Signatory of the proposed
Additional Obligor, of its latest annual audited consolidated financial
statements and any subsequent interim consolidated financial statements (to
the extent such are available).
8. An opinion of ▇▇▇▇▇▇▇▇ Chance, solicitors to the Agent, in form and
substance satisfactory to the Agent.
9. A legal opinion of the Agent's legal advisors in the jurisdiction in which
such Additional Obligor is incorporated.
10. Evidence that the process agent specified in the relevant Accession
Memorandum has agreed to act as its agent for the service of process in
England.
11. If the proposed Additional Obligor is to be an Additional Borrower, a
certificate from an Authorised Signatory of the Principal Borrower
confirming that, based on the most recent Budget delivered to the Agent
pursuant to Clause 20.5 (Budgets), the proposed Additional Borrower:
(a) together with its direct and indirect holding companies which are
Guarantors, will have projected income (including, if relevant,
dividend receipts, and having taken into account projected tax
liabilities) sufficient to enable it to service, in full, all its
projected indebtedness under the Facilities; and
(b) has sufficient taxable income to ensure full tax deductibility on all
interest payments to be made by it under the Facilities.
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SCHEDULE 9
FORM OF RESIGNATION NOTICE
To: Chase Manhattan International Limited
From: Cablecom (Ostschweiz) AG
Dated:
Dear Sirs,
1. We refer to an agreement (the "CREDIT AGREEMENT") dated 28 March 2000 and
made between a group of borrowers including Cablecom (Ostschweiz) AG (the
"PRINCIPAL BORROWER"), Chase Manhattan International Limited as agent, the
financial institutions defined therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. [We declare that [name of Borrower] is under no actual or contingent
obligation under any Finance Document in its capacity as a Borrower.]*
4. Pursuant to Clause [35.3 (Resignation of a Borrower)]/[36.3 (Resignation of
a Guarantor) we hereby request that [name of Obligor] shall cease to be a
[Borrower]/[Guarantor] under the Credit Agreement.
5. [We hereby confirm that the aggregate EBITDA of the remaining Guarantors
for the last financial year of the Principal Borrower equalled or exceeded
95% of the consolidated EBITDA of the Restricted Group for such a financial
year.]**
Yours faithfully
CABLECOM (OSTSCHWEIZ) AG
* Delete if notice is for a Guarantor.
** Delete if notice is for a Borrower.
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SCHEDULE 10
MANDATORY COSTS
1. The Mandatory Cost Rate is an addition to the interest rate to compensate
Banks for the cost of compliance with (a) the requirements of the Financial
Services Authority (or any other authority which replaces all or any of its
functions) or (b) the requirements of the European Central Bank.
2. On the first day of each Interest Period or Term, as the case may be, (or
as soon as possible thereafter) the Agent shall calculate, as a percentage
rate, a rate (the "ADDITIONAL COSTS RATE") for each Bank, in accordance
with the formula set out below. The Mandatory Cost Rate will be calculated
by the Agent as a weighted average of such Bank's additional costs rates
rounded to five decimal places (weighted in proportion to the percentage
participation of each Bank in the relevant Advance) and will be expressed
as a percentage rate per annum.
3. The additional costs rate for any Bank lending from a Facility Office in a
Participating Member State will be the percentage notified by that Bank to
the Agent as the cost of complying with the minimum reserve requirements of
the European Central Bank.
4. The additional cost rate for any Bank lending from a Facility Office in the
United Kingdom will be calculated by the Agent as follows:
F X 0.01
---------- per cent. per annum.
300
Where F is the rate of charge payable by that Bank to the Financial
Services Authority pursuant to the Fee Regulations (but, for this purpose,
ignoring any minimum fee required pursuant to the Fee Regulations) and
expressed in pounds per (pound)1,000,000 of the Fee Base of that Bank.
5. For the purposes of this Schedule:
(a) "FEE REGULATIONS" means the Banking Supervision (Fees) Regulations
1999 or such other law as may be in force from time to time in respect
of the payment of fees for banking supervision; and
(b) "FEE BASE" has the meaning given to it, and will be calculated in
accordance with, the Fee Regulations.
6. Each Bank shall supply any information required by the Agent for the
purpose of calculating its additional costs rate. In particular, but
without limitation, each Bank shall supply the following information in
writing on or prior to the date on which it becomes a Bank:
(a) its jurisdiction of incorporation and the jurisdiction of its Facility
Office; and
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(b) such other information that the Agent may reasonably require for such
purpose.
Each Bank shall promptly notify the Agent in writing of any change to the
information provided by it pursuant to this paragraph.
7. The rates of charge of each Bank for the purpose of F above shall be
determined by the Agent based upon the information supplied to it pursuant
to paragraph 6 above and on the assumption that unless a Bank notifies the
Agent to the contrary, each Bank's obligations in relation to the Fee
Regulations are the same as those of a typical bank from its jurisdiction
of incorporation with a Facility Office in the same jurisdiction as its
Facility Office.
The Agent shall have no liability to any person if such determination
results in an additional costs rate which over or under compensates any
Bank and shall be entitled to assume that the information provided by any
Bank pursuant to paragraph 6 above is true and correct in all respects.
8. The Agent shall distribute the additional amounts received pursuant to the
Mandatory Cost Rate to the Banks on basis of the additional cost rate
incurred by each Bank, as calculated in accordance with the above formula
and based on the information provided by each Bank pursuant to paragraph 6
above.
9. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost Rate, an additional costs rate or any amount
payable to a Bank shall, in the absence of manifest error, be conclusive
and binding on all of the parties hereto.
10. The Agent may from time to time, after consultation with the Principal
Borrower (on its own behalf and on behalf of the other Borrowers) and the
Banks, determine and notify to all parties any amendments or variations
which are required to be made to this Schedule in order to comply with any
charge in law, regulation or any requirements from time to time imposed by
the Financial Services Authority or the European Central Bank (or, in any
case, any other authority which replaces all or any of its functions) and
any such determination shall, in the absence of manifest error, be
conclusive and binding on all the parties hereto.
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SCHEDULE 11
CONFIDENTIALITY UNDERTAKING
TO: NTL Inc. and each of its subsidiaries including each person comprised in
the CableCom Business (as defined below)
[Date]
Dear Sirs
We refer to the CHF 4,100,000,000 credit agreement dated o March 2000 between
NTL Incorporated as parent, Chase Manhattan plc and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior
Funding, Inc. as arrangers, Chase Manhattan International Limited as agent and
others (the "FACILITY Agreement").
Capitalised terms used in this letter shall, unless otherwise stated, have the
meaning given to them in paragraph 11 below.
In consideration of you agreeing to certain information being made available to
us, by our signature of this letter we agree as follows:
1. Confidentiality Undertaking We undertake (a) to keep the Confidential
Information confidential and not to disclose it to anyone except as
provided for by paragraph 2 below and to ensure that the Confidential
Information is protected with security measures and a degree of care that
would apply to our own confidential information, (b) to use the
Confidential Information only for the Permitted Purpose and (c) to use all
reasonable endeavours to ensure that any person to whom we pass any
Confidential Information (unless disclosed under paragraph 2 (c) below)
acknowledges and complies with the provisions of this letter as if that
person were also a party to it (and so bound by its terms in your favour).
2. Permitted Disclosure You agree that we may disclose Confidential
Information:
(a) to any other bank which becomes (or is considering becoming) a bank
under the Facility Agreement and their officers, directors, employees
and professional advisers only to the extent necessary for the
Permitted Purpose and so long as any such other bank has addressed and
delivered a letter to you in substantially the same form as this
letter;
(b) subject to us procuring that the following comply with the terms of
this letter, to other members of the Group and their officers,
directors, employees and professional advisers, in each case to the
extent necessary for the Permitted Purpose, and to their auditors;
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(c) (i) where requested or required by any court of competent jurisdiction
or any competent judicial, governmental, supervisory or regulatory
body, (ii) where required by the rules of any stock exchange on which
the shares or other securities of any member of the Group are listed
or (iii) where required by the laws or regulations of any country with
jurisdiction over the affairs of any member of the Group; and
(d) to our officers, directors, employees, professional advisers, in each
case to the extent necessary for the Permitted Purpose, and to our
auditors to the extent necessary for auditing our business.
3. Notification of Required or Unauthorised Disclosure We agree (to the extent
permitted by law) to inform you promptly of the full circumstances of any
disclosure under paragraph 2(c) or upon becoming aware that Confidential
Information has been disclosed in breach of this letter.
4. Return of Copies If (a) you so request in writing and (b) we do not become
or cease to be a bank under the Facility Agreement, we shall promptly
return all Confidential Information supplied to us by you, the Agent, the
Arrangers and/or any Bank and destroy or permanently erase all copies of
Confidential Information made by us and use all reasonable endeavours to
ensure that anyone to whom we have supplied any Confidential Information
destroys or permanently erases such Confidential Information and any copies
made by them, in each case save to the extent that we or the recipients are
required to retain any such Confidential Information by any applicable law,
rule or regulation or by any competent judicial, governmental, supervisory
or regulatory body or in accordance with internal policy, or where the
Confidential Information has been disclosed under paragraph 2(c) above.
5. Continuing Obligations The obligations in this letter are continuing and,
in particular, shall survive the termination of any discussions or
negotiations between you and us or us and any Bank. Notwithstanding the
previous sentence, the obligations in this letter shall cease (without
prejudice to any antecedent breach of this letter) twelve months after we
have returned all Confidential Information supplied to us by you, the
Agent, the Arrangers and/or any Bank and destroyed or permanently erased
all copies of Confidential Information made by us (other than any such
Confidential Information or copies which have been disclosed under
paragraph 2 above (or which, pursuant to paragraph 4 above, are not
required to be returned or destroyed)).
6. Consequences of Breach We acknowledge and agree that you may be irreparably
harmed by the breach of the terms hereof and damages may not be an adequate
remedy; you may be granted an injunction or specific performance for any
threatened or actual breach of the provisions of this letter by us.
7. No Waiver; Amendments, etc This letter sets out the full extent of our
obligations of confidentiality owed to the addressees of this letter in
relation to the information the subject of this letter. No failure or delay
in exercising any right, power or privilege hereunder will operate as a
waiver thereof nor will any single or partial exercise of any
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right, power or privilege preclude any further exercise thereof or the
exercise of any other right, power or privileges hereunder. The terms of
this letter and our obligations hereunder may only be amended or modified
by written agreement between us.
8. Inside Information We acknowledge that some or all of the Confidential
Information is or may be price-sensitive information and that the use of
such information may be regulated or prohibited by applicable legislation
relating to insider dealing.
9. Nature of Undertakings The undertakings given by us under this letter are
given (without implying any fiduciary obligations on your part) to and for
the benefit of each member of the NTL group (including, each person
comprised in the CableCom Business).
10. Governing Law and Jurisdiction This letter (including the agreement
constituted by your acknowledgement of its terms) shall be governed by and
construed in accordance with the laws of England and we submit to the
non-exclusive jurisdiction of the English courts.
11. Definitions In this letter:
"ACQUISITION" means the acquisition by certain members of the NTL Inc.
group of the Cablecom Business.
"AGENT" means Chase Manhattan International Limited.
"ARRANGERS" means Chase Manhattan plc and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding,
Inc.
"BANK" means any bank or financial institution which is, at any time, party
to the Facility Agreement as a "Bank".
"CABLECOM BUSINESS" means the subsidiaries of Cablecom Holding AG, together
with certain other assets and liabilities.
"CONFIDENTIAL INFORMATION" means any information relating to any member of
the NTL Inc. group, any person comprised in the CableCom Business, the
Information Memorandum, the Facility Agreement and/or the Acquisition
provided to us by you, any of your affiliates or advisers, the Agent, the
Arrangers and/or any Bank (or any affiliates or advisers of any Bank), in
whatever form, and includes information given orally and any document,
electronic file or any other way of representing or recording information
which contains or is derived or copied from such information but excludes
information that (a) is or becomes public knowledge other than as a direct
or indirect result of any breach of this letter or (b) is known by us
before the date the information is disclosed to us by you or any of your
affiliates or advisers, the Agent, the Arrangers and/or any Bank (or any
affiliates or advisers of any Bank) or is obtained by us thereafter, other
than from a source which is connected with the NTL Inc. group or any person
comprised in the CableCom Business and which, in either case, as far as we
are aware, has not been obtained in violation of, and is not otherwise
subject to, any obligation of confidentiality.
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155
"GROUP" means us, each of our holding companies and subsidiaries and each
subsidiary of each of our holding companies (as each such term is defined
in the Companies Act 1985).
"INFORMATION MEMORANDUM" means the information memorandum dated February
2000, relating to the Acquisition and the Cablecom Business, prepared and
distributed by the Arrangers.
"PERMITTED PURPOSE" means:
(a) in respect of a person who is considering and evaluating whether to
participate in the Facility Agreement as a Bank, such consideration
and evaluation;
(b) in respect of a person who is a party to the Facility Agreement as a
Bank, its continued participation as a Bank; or
(c) in respect of a person who has ceased to participate in the Facility
Agreement as a Bank, the maintenance by such a person of a record of
its participation.
Please sign and return the enclosed copy of this letter to acknowledge your
consent to the terms and conditions hereof.
Yours faithfully
..................................
For and on behalf of
[insert name of bank or other
ending institution]
We agree to the above.
..................................
For and on behalf of
NTL INC.
Date:
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SCHEDULE 12
EXISTING MORTGAGES
MAXIMUM MATURITY
MORTGAGOR AMOUNT OF
MEMBER OF THE INDEBTEDNESS
RESTRICTED ASSETS SUBJECT TO MORTGAGOR CAN
GROUP MORTGAGEE AN ENCUMBRANCE OWE (CHF) MATURITY
------------- --------------- ------------------- ------------- ----------
Principal Graubundner Building at 671,000 31/12/2006
Borrower KB ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇, Chur
Rera AG Graubundner Building at 1,200,000 None
KB ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇,
Chur
Rera AG PK Rediffussion Building at 12,000,000 None
▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇
Rera AG PK Rediffussion Building at 1,200,000 None
▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇
Rera AG United Bank of Building at Grand- 1,000,000 None
Switzerland pont 5, Lausanne
Video 2000 SA United Bank of Building at Avenue 600,000 23/4/2001
Switzerland de la Gare 5,
Neuchatel
Video 2000 SA United Bank of Building at Avenue 600,000 23/4/2003
Switzerland de la Gare 5,
Neuchatel
Rera AG Winterthur Building at 2,300,000 None
Versich ▇▇▇▇▇▇▇▇▇▇ ▇▇, Ben
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SCHEDULE 13
FORM OF DEED OF ACCESSION
THIS Deed dated [ ], [ ] is supplemental to a credit agreement (the "CREDIT
AGREEMENT") dated 28 March 2000 and made between a group of borrowers including
Cablecom (Ostschweiz) AG, Chase Manhattan International Limited as agent, the
financial institutions defined therein as Banks and others.
Words and expressions defined in the Credit Agreement have the same meaning when
used in this Deed.
[Name of Permitted Facilities Provider] hereby agrees with each other person who
is or who becomes a party to the Credit Agreement that with effect on and from
the date hereof it will be bound by the Credit Agreement as the Permitted
Facilities Provider as if it had been party to the Credit Agreement in that
capacity.
The address for notice of [Name of the Permitted Facilities Provider] for the
purposes of Clause 40 (Notices) of the Credit Agreement is:-
[
].
This Deed is governed by English law.
EXECUTED AS A DEED )
by [Name of the Permitted Facilities Provider] )
acting by [ ] )
in the presence of:- )
Name:
Address:
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SIGNATURES
THE PARENT
NTL INCORPORATED
By: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇
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Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
THE SHAREHOLDER
NTL CABLECOM HOLDING GMBH
By: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: c/o ATAG Ernst & Young AG
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THE ORIGINAL BORROWERS
CABLECOM (OSTSCHWEIZ) AG
By: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
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Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
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CABLECOM MANAGEMENT AG
By: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇
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BALCAB AG
By: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇
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THE ORIGINAL GUARANTORS
NTL CABLECOM HOLDING GMBH
By: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: c/o ATAG Ernst & Young
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CABLECOM (OSTSCHWEIZ) AG
By: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
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160
CABLECOM AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
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CABLECOM (SUISSE ROMANDE) SA
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
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CODITEL SA
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇
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CABLECOM (TICINO) SA
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇. ▇▇▇▇ ▇
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BALCAB AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇
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SWISS ONLINE AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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CABLECOM (BERN) AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
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CABLECOM ENGINEERING AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇
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162
CABLECOM (MITTELLAND) AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇
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CABLECOM (ZENTRALSCHWEIZ) AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: c/▇ ▇▇▇▇▇▇▇ Holding AG
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▇▇▇▇ ▇▇▇▇▇▇▇
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KILCHENMANN HOLDING AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
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NORDEX SA
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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RERA AG IMMOBILIENGESELLSCHAFT
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
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WINTER KABELFERNSEH AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: c/o Balcab AG
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CABLE SIGNAL OLTEN AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: Swisscom ▇▇▇▇▇
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KILCHENMANN KABELFERNSEH AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
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164
CABLECOM MEDIA AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇
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CATEC SV AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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REDIFFUSION AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
CABLECOM MANAGEMENT AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ PLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
▇▇▇
THE AGENT
CHASE MANHATTAN INTERNATIONAL LIMITED
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
Fax: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Loans Agency Department
THE BANKS
THE LEAD ARRANGERS
THE CHASE MANHATTAN BANK
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
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▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
BAYERISCHE HYPO- UND VEREINSBANK AKTIENGESELLSCHAFT, LONDON
BRANCH
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
PARIBAS
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
CIBC WORLD MARKETS PLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
CITIBANK, N.A.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
DEUTSCHE BANK AG LONDON
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
DRESDNER BANK LUXEMBOURG S.A.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
THE ROYAL BANK OF SCOTLAND PLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
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SOCIETE GENERALE
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
CO-ARRANGERS
ABC INTERNATIONAL BANK PLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
BANCA NAZIONALE DEL LAVORO S.P.A., LONDON BRANCH
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
BANKGESELLSCHAFT BERLIN AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
BAYERISCHE LANDESBANK GIROZENTRALE
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
CREDIT LYONNAIS
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
CREDIT SUISSE
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
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THE DAI-ICHI KANGYO BANK, LIMITED
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
DEXIA PROJECT AND PUBLIC FINANCE INTERNATIONAL BANK
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK AG
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
COOPERTIEVE CENTRALE RAIFFEISEN -- BOERENLEENBANK BA
(TRADING AS RABOBANK INTERNATIONAL)
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
DLJ CAPITAL FUNDING, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
MEESPIERSON N.V.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
SCOTIABANK EUROPE PLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
LEAD MANAGER
THE FUJI BANK, LIMITED
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (AS ATTORNEY)
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