EXHIBIT 10.2A
SUPPLEMENTAL AGREEMENT
relating to a
Loan Agreement for a
NLG 1,100,000,000 Multi-currency Revolving Credit Facility
to
UNITED PAN-EUROPE COMMUNICATIONS N.V.
AND CERTAIN OF ITS SUBSIDIARIES
Guaranteed by
UNITED PAN-EUROPE COMMUNICATIONS N.V.
AND CERTAIN OF ITS SUBSIDIARIES
Arranged by
THE TORONTO-DOMINION BANK
Agent
THE TORONTO-DOMINION BANK
Security Trustee
THE TORONTO-DOMINION BANK
▇▇▇▇▇▇ ▇▇▇▇
London
CONTENTS
--------
CLAUSE HEADING PAGE
1 Interpretation.................................................... 1
2 Amendments to Principal Agreement................................. 2
3 Representations and warranties.................................... 4
4 Temporary amendments to certain financial covenants............... 6
5 Fees and expenses................................................. 6
6 Conditions........................................................ 7
7 Miscellaneous..................................................... 8
8 Governing law and jurisdiction.................................... 8
SCHEDULES
1 Part A - The Banks................................................ 10
Part B - Restricted Subsidiaries and Original Guarantors.......... 14
Part C - Borrowers................................................ 15
2 Documents and evidence required as conditions precedent........... 16
THIS SUPPLEMENTAL AGREEMENT is dated 25th January, 1999 and made BETWEEN:
(1) UNITED PAN-EUROPE COMMUNICATIONS N.V. as Parent and a Borrower;
(2) THE ENTITIES listed in part C of schedule 1 hereto as Borrowers;
(3) THE ENTITIES listed in part B of schedule 1 hereto as Guarantors;
(4) UIH EUROPE, INC., whose principal place of business is at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America as a
subordinated creditor ("UIHE");
(5) THE TORONTO-DOMINION BANK as Arranger;
(6) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set out
in part A of schedule 1 hereto;
(7) THE TORONTO-DOMINION BANK as Agent; and
(8) THE TORONTO-DOMINION BANK as Security Trustee.
WHEREAS:
(A) This Supplemental Agreement is supplemental to (i) an agreement dated 8th
October 1997 (as subsequently amended, the "PRINCIPAL AGREEMENT") and made
between the Parent (1), the Borrowers (2), the Guarantors (3), the Arranger
(4), the Banks (5), the Agent (6) and the Security Trustee (7), whereby the
Banks agreed to make available to the Borrowers a multi-currency revolving
credit facility of up to NLG 1,100,000,000 upon the terms and subject to
the conditions therein contained and (ii) a deed of subordination dated
16th March 1998 (the "UIHE DEED OF SUBORDINATION") and made between UIHE
(1) and the Security Trustee (2).
(B) The Parent has requested the Banks to amend the Principal Agreement, the
Telekabel Notes and the UIHE Deed of Subordination to the extent set out in
this Supplemental Agreement.
NOW IT IS AGREED as follows:
1 INTERPRETATION
--------------
1.1 Definitions in Principal Agreement
----------------------------------
Unless the context otherwise requires and save as mentioned below, words
and expressions defined in the Principal Agreement, or to be defined in the
Principal Agreement with effect from the Effective Date, shall have the
same meanings when used in this Supplemental Agreement.
1
1.2 Definitions
-----------
In this Supplemental Agreement the expression the "SUPPLEMENTAL AGREEMENT"
shall mean this Supplemental Agreement and, unless the context otherwise
requires:
"EFFECTIVE DATE" means the date on which the Agent notifies the Parent and
the Banks that the Agent has received the documents and evidence listed in
Schedule 2 hereto in form and substance satisfactory to it and the Parent
has paid the fee referred to in the first sentence of clause 5.1;
"INITIAL EQUITY RAISE END DATE" means the earliest to occur of:
(a) 31st May 1999;
(b) the abandonment of the Initial Equity Raise by the Parent; and
(c) the Completion of the Initial Equity Raise; and
"EQUITY RAISE EFFECTIVE DATE" means the date of Completion of the Initial
Equity Raise.
1.3 Interpretation of Principal Agreement
-------------------------------------
References in the Principal Agreement to "THIS AGREEMENT" shall, with
effect from the Effective Date and unless the context otherwise requires,
be references to the Principal Agreement as amended by this Supplemental
Agreement and words such as "HEREIN", "HEREOF", "HEREUNDER", "HEREAFTER",
"HEREBY" and "HERETO", where they appear in the Principal Agreement, shall
be construed accordingly.
1.4 Incorporation of certain references
-----------------------------------
Clauses 1.3 to 1.6 (inclusive) of the Principal Agreement shall be deemed
to be incorporated in this Supplemental Agreement in full, mutatis
mutandis.
2 AMENDMENTS TO PRINCIPAL AGREEMENT
---------------------------------
2.1 Amendments
----------
(A) With effect from the Equity Raise Effective Date the parties hereto agree
that the Principal Agreement and all Telekabel Notes then outstanding shall
for all purposes be amended so as to incorporate all the amendments
reflected in Appendix 1 so that, with effect from the Equity Raise
Effective Date, the Principal Agreement and all Telekabel Notes then
outstanding shall be read and construed as so amended.
(B) With effect from the Equity Raise Effective Date the parties hereto agree
that the UIHE Deed of Subordination shall be amended by adding the
following proviso at the end of clause 2.1 thereto:
2
"Provided that notwithstanding the foregoing provisions of this clause 2.1,
(A) the Parent shall be permitted to repay Indebtedness owed by the Parent
to the Subordinated Creditor up to a maximum of 40 per cent. of the gross
cash proceeds of the Initial Equity Raise to the extent that the same
exceed NLG 700,000,000 and are equal to or less than NLG 1,000,000,000 by
transferring the Belmarken UIH Shares to the Subordinated Creditor at fair
market value (if and to the extent that the Belmarken Funding Arrangements
are effected by the Parent acquiring the Belmarken UIH Shares from the
Bridge Borrower) and/or utilising the cash proceeds of the Initial Equity
Raise, and (B) the Parent and the Subordinated Creditor may amend the terms
of the Parent Promissory Note so that the Parent Promissory Note is (1)
repayable on demand at any time on or after 31st March, 2001 rather than on
demand and (2) is convertible into shares of the Parent at the price per
share offered to the public pursuant to the Initial Equity Raise rather
than NLG 18".
2.2 Conditions
----------
The amendments to the Principal Agreement, any Telekabel Notes and the UIHE
Deed of Subordination set out in clause 2.1 are subject to the following
conditions and if such conditions are not satisfied on or before the Equity
Raise Effective Date such amendments will not take effect:
(a) the Effective Date having occurred;
(b) the gross proceeds received by the Parent in respect of the Initial
Equity Raise not being less than NLG 550,000,000;
(c) where the Initial Equity Raise is effected in whole or in part by way
of an initial public offering of ordinary shares fully paid of the
Parent and American Depositary Shares representing a number of the
ordinary shares in the Parent or rights thereto a copy, certified as a
true copy by an Authorised Officer of the Parent, of an irrevocable
instruction to ▇▇▇▇▇▇▇ ▇▇▇▇▇, duly acknowledged by ▇▇▇▇▇▇▇ Sachs,
instructing it to transfer 100% of the net proceeds of the whole or
such part of the Initial Equity Raise to the account of the Parent
with the Agent;
(d) original irrevocable instructions from the Parent and the Bridge
Borrower instructing the Agent to apply the net proceeds of the
Initial Equity Raise, in the case of UPC, first, to effect the
Belmarken Funding Arrangements and secondly, to prepay voluntarily the
Facility; and
(e) where the Initial Equity Raise is effected in whole or in part by way
of private placement of new ordinary shares fully paid of the Parent
confirmation from the private investors that they have been
irrevocably instructed by the Parent to transfer 100% of the net
proceeds of their subscription for the new ordinary shares in the
Parent to the account of the Parent with the Agent.
3
2.3 Further amendment
-----------------
With effect from the Effective Date the parties hereto agree that the
Principal Agreement and all Telekabel Notes then outstanding shall for all
purposes be amended so as to incorporate the amendment to the definition of
"Borrowed Money" reflected in Appendix 1 so that, with effect from the
Effective Date, the Principal Agreement and all Telekabel Notes then
outstanding shall be read and construed as so amended. With effect from
the Effective Date the Agent, the Arranger, the Security Trustee and the
Banks agree that any breach which has then occurred and is continuing of
the Principal Agreement or the Telekabel Notes then outstanding which would
not have occurred had the definition of "Borrowed Money" reflected that in
Appendix 1 shall be waived.
3 REPRESENTATIONS AND WARRANTIES
------------------------------
3.1 Each of the Obligors (in the case of Telekabel Wien, in respect of itself
only) and UIHE (in the case of UIHE, in respect of itself only and UIHE
does not make any representation or warranty in respect of clause 3.1(a))
represents and warrants to each of the Banks, the Arranger, the Security
Trustee and the Agent that:
(a) Representations and warranties in Principal Agreement
-----------------------------------------------------
the representations and warranties set out in clause 10.1 of the
Principal Agreement which are to be repeated in accordance with clause
10.3 of the Principal Agreement are true and correct as if made at the
date of this Supplemental Agreement with reference to the facts and
circumstances existing at such date;
(b) Corporate power
---------------
each of the Obligors and UIHE has power to execute, deliver and
perform its obligations under this Supplemental Agreement; all
necessary corporate, shareholder and other action has been taken to
authorise the execution, delivery and performance of this Supplemental
Agreement;
(c) Binding obligations
-------------------
this Supplemental Agreement constitutes valid and legally binding
obligations of each of the Obligors and UIHE enforceable in accordance
with its terms, subject to the qualifications contained in the legal
opinions referred to in schedule 3 part A of the Principal Agreement
and mandatory provisions of law affecting creditors rights generally;
(d) No conflict with other obligations
----------------------------------
the execution and delivery of, the performance of its obligations
under, and compliance with the provisions of, this Supplemental
Agreement by the Obligors or UIHE will not (i) contravene any existing
applicable law,
4
statute, rule or regulation or any judgment, decree or permit to which
any of the Obligors or UIHE is subject, (ii) conflict with, or result
in any breach of any of the terms of, or constitute a default under,
any agreement or other instrument to which any of the Obligors or UIHE
is a party or is subject or by which it or any of its property is
bound, (iii) contravene or conflict with any provision of any
Obligor's or UIHE's constitutive documents (iv) breach in any material
respect any term of the Licences or Necessary Authorisations or (v)
save for the Encumbrances granted to the Security Trustee pursuant to
the Security Documents, result in the creation or imposition of or
oblige any Obligor or UIHE to create any Encumbrance (other than a
Permitted Encumbrance) on any member of the Restricted Group's
undertakings, assets, rights or revenues;
(e) Consents obtained
-----------------
every consent, authorisation, licence or approval of, or registration
with or declaration to, governmental or public bodies or authorities
or courts (other than the Licences and the Necessary Authorisations)
required by each of the Obligors or UIHE to authorise, or required by
the Obligors or UIHE in connection with, the execution, delivery,
validity, enforceability or admissibility in evidence of this
Supplemental Agreement or the performance by each of the Obligors and
UIHE of their respective obligations under this Supplemental Agreement
has been obtained or made and is in full force and effect and there
has been no material default in the observance of the conditions or
restrictions (if any) imposed in, or in connection with, any of the
same; and
(f) No filings required
-------------------
save for the filings, registrations and notarisations referred to in
schedule 2 hereto, is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Supplemental
Agreement that it or any other instrument be notarised, filed,
recorded, registered or enrolled in any court, public office or
elsewhere in any Relevant Jurisdiction or that any stamp, registration
or similar tax or charge be paid in any Relevant Jurisdiction on or in
relation to this Supplemental Agreement and this Supplemental
Agreement is in proper form for its enforcement in the courts of each
Relevant Jurisdiction.
3.2 Repetition
----------
The representations and warranties in clause 3.1 (other than (a) and (e))
shall be deemed to be repeated by each of the Obligors and UIHE on and as
of each Drawdown Date and each Maturity Date as if made with reference to
the facts and circumstances existing on each such day.
5
4 TEMPORARY AMENDMENTS TO CERTAIN FINANCIAL COVENANTS
---------------------------------------------------
4.1 Amendments
----------
With effect from the Effective Date the Agent, the Arranger, the Security
Trustee and the Banks agree that any breach which has then occurred and is
continuing of the clauses of the Principal Agreement set out below (and any
corresponding provisions in any Telekabel Notes then outstanding) shall be
waived and shall not be an Event of Default either permanently, if the
conditions set out in clause 2.2 are satisfied on or before the Initial
Equity Raise End Date, or, if such conditions are not so satisfied,
temporarily for the period ending on the Initial Equity Raise End Date and
that in respect of the period commencing on (and including) the Effective
Date and ending on (but excluding) the Initial Equity Raise End Date the
clauses of the Principal Agreement set out below (and any corresponding
provisions in any Telekabel Notes then outstanding) shall be amended
temporarily as set out below:
(a) clause 4.1(b): by inserting in column (II) the figure 7 and changing
the figure 6.75 in column (III) to the figure 8.25 against the period
1st January, 1999 to 30th June, 1999 and changing the date of 30th
June, 1999 to the Initial Equity Raise End Date;
(b) clause 12.2(a): by changing the figure 6.75 in column (2) to the
figure 8.25 against the period 1st January, 1999 to 30th June, 1999;
and
(c) clause 12.2(b): by changing the date 31st December, 1998 to 30th June,
1999.
4.2 Conditions
----------
The agreement of the Banks set out in clause 4.1 above is subject to the
following conditions:
(a) the Parent continues to pursue actively the Initial Equity Raise for
gross proceeds of not less than NLG 550,000,000; and
(b) no Advance may be made or requested under the Principal Agreement if,
following the making of such Advance, the Loan will exceed the Loan
immediately prior to the making of such Advance (taking into account
any other Advances scheduled to be made or repaid on the date of such
Advance).
5 FEES AND EXPENSES
-----------------
5.1 Amendment fees
--------------
The Parent shall pay to the Agent, whether or not the Effective Date
occurs, an amendment fee of NLG 3,300,000 for the account of the Banks pro
rata to their Commitments on or before the day falling three days after the
date of this
6
Supplemental Agreement. If all amounts outstanding under the Principal
Agreement and the Telekabel Notes have not been irrevocably repaid or paid
in full and the Commitments of all the Banks have not been irrevocably
cancelled in full by 30th June, 1999 the Parent shall pay to the Agent on
such date a further fee of NLG 5,000,000 for the account of the Banks pro
rata to their Commitments. The amount of or date of payment of either of
the fees referred to in this clause 5.1 may only be changed with the prior
written agreement of all the Banks.
5.2 Expenses
--------
The Parent shall pay to the Agent on demand all reasonable costs and
expenses (including, without limitation, reasonable legal fees and
disbursements) and any value added or similar tax upon such costs and
expenses reasonably incurred by the Agent, the Security Trustee and the
Arranger in connection with the negotiation, preparation and execution of
this Supplemental Agreement and all related documents whether or not the
Effective Date occurs.
5.3 Stamp and other duties
----------------------
The Parent shall pay all stamp, documentary, registration or other like
duties or Taxes (including any duties or Taxes payable by, or assessed on,
the Banks, the Arranger, the Agent or the Security Trustee) imposed on or
in connection with this Supplemental Agreement or any related documents and
shall indemnify the Banks, the Arranger, the Agent and the Security Trustee
against any liability arising by reason of any delay or omission by the
Parent to pay such duties or Taxes.
6 CONDITIONS
----------
6.1 Further conditions precedent
----------------------------
The Agent shall not give notice of the occurrence of the Effective Date
(unless expressly instructed in writing by the Majority Banks to do so) if,
on the date on which it would otherwise have done so, the Agent has
received actual knowledge that an Event of Default has occurred and is
continuing or that any of the representations and warranties in clause 3.1
or repeated by virtue of clause 3.2 are untrue or incorrect as at such date
as if made on such date with respect to the facts and circumstances
existing at such date.
6.2 Condition subsequent
--------------------
The Parent undertakes to procure that, within 60 days of the Completion of
the Initial Equity Raise, the rights of all members of the Restricted Group
in respect of outstanding loans made by members of the Restricted Group to
members of the Unrestricted Group and subject to receipt of approvals from
the lender or lenders to MediaReseaux Marne S.A. the interest of the
members of the Restricted Group in the share capital of MediaReseaux S.A.
are pledged in favour of, or for the benefit of, the Banks on terms
reasonably satisfactory to the
7
Agent and that such documents and evidence as the Agent shall reasonably
require as to the power and authority of the relevant member of the
Restricted Group to enter into such pledge and that the same constitutes
valid and legally binding obligations of such member of the Restricted
Group enforceable in accordance with its terms are delivered to the Agent.
The Parent further undertakes to use all reasonable endeavours to obtain
the approval of the lender or lenders to Mediareseaux Marne S.A. as soon as
possible.
7 MISCELLANEOUS
-------------
7.1 Continuation of Principal Agreement
-----------------------------------
Save as amended by this Supplemental Agreement, the provisions of the
Principal Agreement and the UIHE Deed of Subordination shall continue in
full force and effect and the Principal Agreement and this Supplemental
Agreement and UIHE Deed of Subordination and this Supplemental Agreement
shall each be read and construed as one instrument.
7.2 Security Documents
------------------
Each Obligor and UIHE confirms that the Security Documents to which it is a
party shall continue in full force and effect notwithstanding the
amendments to or waivers of the terms of the Principal Agreement and the
UIHE Deed of Subordination contained in this Supplemental Agreement.
7.3 Counterparts
------------
This Supplemental Agreement may be executed in any number of counterparts
and by the different parties on separate counterparts, each of which when
so executed and delivered shall be an original but all counterparts shall
together constitute one and the same instrument.
8 GOVERNING LAW AND JURISDICTION
------------------------------
8.1 Law
---
This Supplemental Agreement shall be governed by English law.
8.2 Submission to jurisdiction
--------------------------
The parties to this Supplemental Agreement agree for the benefit of the
Agent, the Arranger, the Security Trustee and the Banks that:
(a) if any party has any claim against any other arising out of or in
connection with this Supplemental Agreement such claim shall (subject
to clause 8.2(c)) be referred to the High Court of Justice in England,
to the jurisdiction of which each of the parties irrevocably submits;
(b) the jurisdiction of the High Court of Justice in England over any such
claim against the Agent, the Arranger, the Security Trustee or any
Bank
8
shall be an exclusive jurisdiction and no courts outside England
shall have jurisdiction to hear or determine any such claim; and
(c) nothing in this clause 8.2 shall limit the right of the Agent, the
Security Trustee, the Arranger or the Banks to refer any such claim
against any Obligor to any other court of competent jurisdiction
outside England, to the jurisdiction of which each Obligor hereby
irrevocably agrees to submit, nor shall the taking of proceedings by
the Agent, the Security Trustee, the Arranger or any Bank before the
courts in one or more jurisdictions preclude the taking of proceedings
in any other jurisdiction whether concurrently or not.
IN WITNESS whereof the parties hereto have caused this Supplemental Agreement to
be duly executed the day and year first above written.
9
Schedule 1
----------
Part A - The Banks
------------------
Name Address and telefax number
_____ ______________
The Toronto-Dominion Triton Court
Bank ▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Communications Finance
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Loans Administration
Barclays Bank plc Structured Finance
▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CIBC Wood Gundy Plc ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Director, Media &
Communications
HSBC Investment Bank plc ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Bank of America N.T. & S.A. New Broad Street House
35 New ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
The Royal Bank of Scotland plc ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ 2TH
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
BankBoston, N.A. ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇/
0171 222 5649
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/
▇▇▇▇ ▇▇▇▇▇ (Credit matters)
▇▇▇▇▇▇▇ Nel (Administration)
Citibank, N.A. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ 5
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/
▇▇▇ ▇▇▇ ▇▇▇ 6144
Attention: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
(Credit matters)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(Operational matters)
Export Development ▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/
001 613 598 2514
Attention: ▇▇▇ ▇▇▇▇▇
(Credit matters)
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
(Operational matters)
11
▇▇▇▇▇ Bank N.A. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
0171 920 9457
Attention: Nazz ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
(Operational matters)
Deutsche Bank AG London ▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
MeesPierson ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇-▇▇▇▇▇ Post/
▇▇▇▇▇ ▇▇▇▇▇
Banque Paribas ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
Cedex 01
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
Attention: Denis de Paillerets
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Ref: 378D
Bank Austria Creditanstalt ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Bank of Nova Scotia Scotia House
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Bankers Trust Company ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
British Linen Bank ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
De Nationale 4 Carnegieplein
Investeringsbank N.V. ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Banque Artesia Nederland N.V. Harengracht 539-543
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇
Attention: H.D.R. Fledderus
Bank of Scotland International Division
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
13
SCHEDULE 1
----------
Part B - Restricted Subsidiaries and Original Guarantors
--------------------------------------------------------
================================================================================
Company Country of Address
------- ---------- -------
Incorporation
-------------
--------------------------------------------------------------------------------
Cable Networks Austria The Netherlands ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇.▇. ▇.▇. ▇▇▇ ▇▇▇▇▇
1070 BT
Amsterdam
--------------------------------------------------------------------------------
Telekabel Wien G.m.b.H. Austria ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
Telekabel Klagenfurt G.m.b.H. Austria ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
Telekabel Graz G.m.b.H. Austria Lazarettgurtel 81, ▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
Telekabel-Fernsehnetz Wiener Austria ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ Neustadt,
Neunkirchen Betriebs-G.m.b.H. Austria
--------------------------------------------------------------------------------
Telekabel-Fernsehnetz Region Austria ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇- G.m.b.H. Traiskirchen, Austria
--------------------------------------------------------------------------------
Radio Public S.A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
▇▇▇▇▇ Multicom A/S ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇,
▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇
================================================================================
14
SCHEDULE 1
----------
Part C - Borrowers
------------------
================================================================================
Company Country of Incorporation Address
------- ------------------------ -------
--------------------------------------------------------------------------------
United Pan-Europe The Netherlands ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇.▇. ▇▇▇ ▇▇▇▇▇
1076 EE Amsterdam
--------------------------------------------------------------------------------
Telekabel Wien G.m.b.H. Austria ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
▇▇▇▇▇ Multicom A/S ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇,
▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇
================================================================================
15
Schedule 2
----------
Documents and evidence required as conditions precedent
-------------------------------------------------------
1 A copy, certified as a true, complete and up-to-date copy by an Authorised
Officer of the Parent, of the constitutive documents of the Parent and each
member of the Restricted Group (or a certificate from an Authorised Officer
of the Parent confirming that there has been no change to the constitutive
documents previously provided to the Agent in connection with the amendment
of the Principal Agreement on 8th December, 1997).
2 A copy, certified as a true copy by an Authorised Officer of the Parent, of
resolutions of the Supervisory Board of Directors of the Parent evidencing
approval of this Supplemental Agreement and authorising its appropriate
officers to execute and deliver this Supplemental Agreement and to give all
notices and take all other action required by the Parent under this
Supplemental Agreement.
3 A copy, certified as a true copy by an Authorised Officer of the Parent of
resolutions of the Board of Directors of each of the members of the
Restricted Group (except for the Austrian members of the Restricted Group)
evidencing approval of this Supplemental Agreement and authorising their
respective appropriate officers to execute and deliver this Supplemental
Agreement and to give all notices and take all other action required by
such member of the Restricted Group thereunder.
4 Specimen signatures, authenticated by an Authorised Officer of the Parent,
of the persons authorised in the resolutions referred to in paragraphs 2
and 3 above, together with originals of the powers of attorney granted by
the Parent and any member of the Restricted Group in connection with this
Supplemental Agreement.
5 A copy, certified as a true copy by an Authorised Officer of the Parent, of
all consents, authorisations, licences and approvals required by the
members of the Restricted Group to authorise, or required by the members of
the Restricted Group in connection with, the execution, delivery, validity,
enforceability and admissibility in evidence of this Supplemental Agreement
and the performance by the members of the Restricted Group of their
respective obligations under this Supplemental Agreement.
6 The Parent having given notice to the Agent cancelling the Commitments by
NLG 100,000,000 to NLG 1,000,000,000.
Additional documents and evidence required as conditions precedent in Austria
-----------------------------------------------------------------------------
1 A resolution of CNA as 95 per cent. shareholder in the supervisory board of
Telekabel Wien, inter alia, approving the entry into by Telekabel Wien of
this Supplemental Agreement, in a form acceptable to the Agent.
16
2 A power of attorney for each other Telekabel Entity (other than Telekabel
Wien), appointing Mr ▇▇▇▇▇▇ ▇▇▇▇▇▇ and Mr A.H.E. van Voskuijlen to approve
and execute this Supplemental Agreement on behalf of such Telekabel Entity.
Additional documents and evidence required as conditions precedent in the
-------------------------------------------------------------------------
Netherlands
-----------
1 An extract from the trade register of the Chamber of Commerce of the Parent
and each member of the Restricted Group incorporated in The Netherlands.
2 A copy, certified as a true, complete and up-to-date copy by an Authorised
Officer of the Parent, of the shareholders' register of (i) the Parent and
(ii) each member of the Restricted Group incorporated in The Netherlands.
3 A copy, certified as a true, complete and up-to-date copy by an Authorised
Officer of the Parent, of a shareholders' resolution from the shareholders
of each member of the Restricted Group incorporated in The Netherlands
evidencing approval of the shareholders to the terms of this Supplemental
Agreement and the obligations of the Dutch companies hereunder.
Additional documents and evidence required as conditions precedent in Norway
----------------------------------------------------------------------------
1 A copy, certified as a true, complete and up-to-date copy by an Authorised
Officer of the Parent of a shareholders' resolution of the shareholders of
New ▇▇▇▇▇ evidencing approval of the shareholders of New ▇▇▇▇▇ to the terms
of this Supplemental Agreement and the obligations of New ▇▇▇▇▇ hereunder.
2 A copy, certified as a true, complete and up-to-date copy by an Authorised
Officer of the Parent of a letter from the Norwegian Bankruptcy Register
confirming that as of the Effective Date, none of the members of the
Restricted Group incorporated in Norway have been reported from the local
probate courts to the said register bankrupt.
3 Copies, certified as true copies by an Authorised Officer of the Parent, of
shareholders' registers ("aksjonaerprotokoll") of New ▇▇▇▇▇.
4 A copy, certified as a true, complete and up-to-date copy by an Authorised
Officer of the Parent of the articles of association and certificate of
registration of New ▇▇▇▇▇.
Additional documents and evidence required as conditions precedent in the United
--------------------------------------------------------------------------------
States of America
-----------------
1 A copy, certified as a true, complete and up-to-date copy by an Authorised
Officer of the Parent of the certificate of incorporation and bylaws of
UIHE together with a certificate of good standing of the Delaware Secretary
of State concerning UIHE.
2 Copies, certified as true, complete and up-to-date copies by an Authorised
Officer of the Parent evidencing approval of the board of directors of UIHE
to
17
the terms of this Supplemental Agreement and the obligations of
UIHE hereunder.
18
THE PARENT (AS A BORROWER AND A GUARANTOR)
----------
SIGNED for and on behalf of )
UNITED PAN-EUROPE COMMUNICATIONS N.V. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
NEW ▇▇▇▇▇ (AS A BORROWER AND A GUARANTOR)
-----------------------------------------
SIGNED for and on behalf of )
▇▇▇▇▇ MULTICOM A/S ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
THE GUARANTORS
--------------
SIGNED for and on behalf of )
CABLE NETWORKS AUSTRIA HOLDING B.V. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
TELEKABEL KLAGENFURT G.M.B.H. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
TELEKABEL WIEN G.M.B.H. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
TELEKABEL-FERNSEHNETZ WIENER ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
NEUSTADT/NEUNKIRCHEN )
BETRIEBS-G.M.B.H.
by:
SIGNED for and on behalf of )
TELEKABEL GRAZ G.M.B.H. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
19
SIGNED for and on behalf of )
TELEKABEL-FERNSEHNETZ REGION ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
BADEN BETRIEBS-G.M.B.H. )
by:
SIGNED for and on behalf of )
RADIO PUBLIC S.A. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
THE SUBORDINATED CREDITOR
-------------------------
SIGNED for and on behalf of ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
UIH EUROPE, INC. ) /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
by: )
THE ARRANGER
------------
SIGNED for and on behalf of )
THE TORONTO-DOMINION BANK ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
THE BANKS
---------
SIGNED for and on behalf of )
THE TORONTO-DOMINION BANK ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
BARCLAYS BANK PLC ) /s/ [ILLEGIBLE SIGNATURE]
by: )
20
SIGNED for and on behalf of )
CIBC WOOD GUNDY PLC ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
HSBC INVESTMENT BANK PLC ) /s/ [illegible signature]
by: )
SIGNED for and on behalf of )
BANK OF AMERICA N.T. & S.A. ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
by: ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
Vice President
SIGNED for and on behalf of )
THE ROYAL BANK OF SCOTLAND PLC ) /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
by: ▇▇▇ ▇. ▇▇▇▇▇▇ )
Corporate Director
SIGNED for and on behalf of )
BANKBOSTON, N.A. ) /s/ ▇▇▇▇ ▇▇▇▇▇
by: ▇▇▇▇ ▇▇▇▇▇ )
SIGNED for and on behalf of )
CITIBANK, N.A. ) /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
by: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ )
Vice President
SIGNED for and on behalf of ) /s/ ▇▇▇ ▇▇▇▇▇
EXPORT DEVELOPMENT CORPORATION ) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
by: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ )
Financial Services Team Leader,
Manager Telecom Team
SIGNED for and on behalf of ) /s/ [illegible signature]
▇▇▇▇▇ BANK N.A. ) /s/ [illegible signature]
by: )
21
SIGNED for and on behalf of ) /s/ [illegible signature]
DEUTSCHE BANK AG LONDON ) /s/ [illegible signature]
by: )
SIGNED for and on behalf of )
MEESPIERSON ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
BANQUE PARIBAS ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of ) /s/ [illegible signature]
BANK AUSTRIA CREDITANSTALT INTERNATIONAL AG ) /s/ [illegible signature]
by: )
SIGNED for and on behalf of )
BANK OF NOVA SCOTIA ) /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
BANKERS TRUST COMPANY ) /s/ [illegible signature]
by: )
SIGNED for and on behalf of )
BRITISH LINEN BANK ) /s/ [illegible signature]
by: )
SIGNED for and on behalf of )
DE NATIONALE INVESTERINGSBANK N.V. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
22
SIGNED for and on behalf of )
BANQUE ARTESIA NEDERLAND N.V. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
BANK OF SCOTLAND ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
THE AGENT
---------
SIGNED for and on behalf of )
THE TORONTO-DOMINION BANK ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
THE SECURITY TRUSTEE
--------------------
SIGNED for and on behalf of )
THE TORONTO-DOMINION BANK ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
23
Appendix 1
----------
Amended and Restated Principal Agreement
----------------------------------------
LOAN AGREEMENT
for a
NLG 1,100,000,000 MULTI-CURRENCY REVOLVING CREDIT FACILITY
to
UNITED PAN-EUROPE COMMUNICATIONS N.V.
AND CERTAIN OF ITS SUBSIDIARIES
Guaranteed by
CERTAIN SUBSIDIARIES OF
UNITED PAN-EUROPE COMMUNICATIONS N.V.
Arranged by
THE TORONTO-DOMINION BANK
Agent
THE TORONTO-DOMINION BANK
Security Trustee
THE TORONTO-DOMINION BANK
▇▇▇▇▇▇ ▇▇▇▇
London
CONTENTS
CLAUSE HEADING PAGE
1 Purpose and definitions................................................... 1
1.1 Purpose.......................................................... 1
1.2 Definitions...................................................... 2
1.3 Headings......................................................... 24
1.4 Construction of certain terms.................................... 24
1.5 Majority Banks................................................... 25
1.6 Agent's opinion.................................................. 26
2 The Facility.............................................................. 27
2.1 Amount........................................................... 27
2.2 Obligations several.............................................. 27
2.3 Interests several................................................ 27
2.4 Telekabel Wien's interests several............................... 27
3 Conditions................................................................ 28
3.1 Documents and evidence........................................... 28
3.2 General conditions precedent..................................... 28
3.3 Waiver of conditions precedent................................... 29
3.4 Notification..................................................... 29
3.5 New ▇▇▇▇▇........................................................ 29
3.6 Conditions subsequent............................................ 30
4 Advances; Currencies...................................................... 32
4.1 Maximum Outstandings............................................. 32
4.2 Drawdown......................................................... 33
4.3 Amount and Term.................................................. 33
4.4 Selection of currencies.......................................... 33
4.5 Limit on currencies; non-availability............................ 33
4.6 Currency Amounts................................................. 34
4.7 Notification to Banks............................................ 34
4.8 Application of proceeds.......................................... 34
4.9 Initial Advances................................................. 34
4.10 Philips Advance.................................................. 36
4.11 Telekabel Bond................................................... 36
4.12 Subsidiary Drawings.............................................. 37
4.13 Refinancing the ▇▇▇▇▇ Loan Agreement............................. 37
4.14 Telekabel Notes.................................................. 38
5 Interest; alternative interest rates...................................... 38
5.1 Normal interest rate............................................. 38
5.2 Applicable Margin................................................ 39
5.3 Interest for late payment........................................ 39
5.4 Notification of interest rate.................................... 40
5.5 Reference Bank quotations.......................................... 40
5.6 Market disruption; non-availability................................ 40
6 Repayment, prepayment and cancellation...................................... 42
6.1 Repayment.......................................................... 42
6.2 Voluntary prepayment............................................... 42
6.3 Additional voluntary prepayment.................................... 42
6.4 Amounts payable on prepayment...................................... 42
6.5 Mandatory prepayment, Excess Cash Flow recapture and cancellation.. 43
6.6 Notice of prepayment............................................... 46
6.7 Cancellation of Commitments........................................ 46
6.8 Reduction of Total Commitments..................................... 46
6.9 Termination of Commitments......................................... 47
7 Fees and expenses........................................................... 48
7.1 Fees............................................................... 48
7.2 Expenses........................................................... 48
7.3 Value Added Tax.................................................... 49
7.4 Stamp and other duties............................................. 49
8 Payments and Taxes; accounts and calculations............................... 50
8.1 No set-off or counterclaim; distribution to the Banks.............. 50
8.2 Payments by the Banks.............................................. 50
8.3 Non-Banking Days................................................... 50
8.4 Agent may assume receipt........................................... 50
8.5 Grossing-up for Taxes.............................................. 51
8.6 Qualifying Banks................................................... 51
8.7 Claw-back of Tax benefit........................................... 51
8.8 Certification to secure a Tax benefit.............................. 52
8.9 Bank accounts...................................................... 53
8.10 Partial payments................................................... 53
8.11 Calculations....................................................... 54
8.12 Certificates conclusive............................................ 54
8.13 Effect of monetary union........................................... 54
9 Guarantee................................................................... 56
9.1 Limits of Guarantee................................................ 56
9.2 Covenant to pay.................................................... 57
9.3 Guarantors as principal debtors; indemnity......................... 57
9.4 No security taken by Guarantors.................................... 57
9.5 Interest........................................................... 58
9.6 Continuing security and other matters.............................. 58
9.7 New accounts....................................................... 58
9.8 Liability unconditional............................................ 58
9.9 Collateral Instruments............................................. 59
9.10 Waiver of Guarantors' rights....................................... 59
9.11 Suspense accounts.................................................. 60
9.12 Settlements conditional............................................ 60
9.13 Guarantors to deliver up certain property.......................... 60
9.14 Retention of this guarantee........................................ 60
9.15 Changes in constitution or reorganisations of Banks................ 61
9.16 Other Guarantors................................................... 61
9.17 Acceding Guarantors and New ▇▇▇▇▇.................................. 61
10 Representations and warranties.............................................. 63
10.1 Repeated representations and warranties............................ 63
10.2 Further representations and warranties............................. 66
10.3 Repetition......................................................... 68
11 Undertakings................................................................ 70
11.1 Positive Covenants................................................. 70
11.2 Negative Covenants................................................. 82
12 Financial covenants......................................................... 92
12.1 Pre Philips Advance Covenants...................................... 92
12.2 Post Philips Advance Covenants..................................... 92
12.3 Auditors certificate............................................... 94
13 Events of Default........................................................... 96
13.1 Events of default.................................................. 96
13.2 Acceleration....................................................... 103
13.3 Demand basis....................................................... 103
14 Indemnities................................................................. 104
14.1 Miscellaneous indemnities.......................................... 104
14.2 Currency of account; currency indemnity............................ 104
14.3 Environmental indemnity............................................ 105
15 Unlawfulness and increased costs; mitigation................................ 106
15.1 Unlawfulness....................................................... 106
15.2 Increased costs.................................................... 106
15.3 Exceptions......................................................... 107
15.4 Mitigation......................................................... 108
16 Set-off and pro rata payments............................................... 109
16.1 Set-off............................................................ 109
16.2 Pro rata payments.................................................. 109
16.3 No release......................................................... 110
16.4 No charge.......................................................... 110
17 Assignment, substitution and lending offices................................ 111
17.1 Benefit and burden................................................. 111
17.2 No assignment by Obligors.......................................... 111
17.3 Substitution....................................................... 111
17.4 Reliance on Substitution Certificate............................... 112
17.5 Authorisation of Agent............................................. 112
17.6 Construction of certain references................................. 112
17.7 Lending offices.................................................... 112
17.8 Disclosure of information.......................................... 112
18 Arranger, Agent, Security Trustee and Reference Banks....................... 114
18.1 Appointment of Agent............................................... 114
18.2 Agent's actions.................................................... 114
18.3 Agent's duties..................................................... 114
18.4 Agent's rights..................................................... 115
18.5 No liability of Arranger, Security Trustee and Agent............... 116
18.6 Non-reliance on Arranger, Security Trustee or Agent................ 117
18.7 No Responsibility on Arranger, Security Trustee or Agent for
any Obligor's performance.......................................... 117
18.8 Reliance on documents and professional advice...................... 118
18.9 Other dealings..................................................... 118
18.10 Rights of Agent as Bank; no partnership............................ 118
18.11 Amendments; waivers................................................ 118
18.12 Reimbursement and indemnity by Banks............................... 119
18.13 Retirement of Agent................................................ 120
18.14 Change of Reference Banks.......................................... 120
18.15 Prompt distribution of proceeds.................................... 121
19 Notices and other matters................................................... 122
19.1 Notices............................................................ 122
19.2 Notices through the Agent.......................................... 123
19.3 No implied waivers, remedies cumulative............................ 123
19.4 English translations............................................... 123
19.5 Counterparts....................................................... 123
19.6 No breach of Austrian Agreements................................... 123
20 Governing law and jurisdiction.............................................. 125
20.1 Law................................................................ 125
20.2 Submission to jurisdiction......................................... 125
20.3 Agent for service of process....................................... 125
Schedule
1 Part A - The Banks and their Commitments.................................... 126
Part B - Restricted Subsidiaries and Original Guarantors.................... 130
Part C - Borrowers.......................................................... 131
2 Form of Drawdown Notice..................................................... 132
3 Part A - documents and evidence required as conditions
precedent to first Advance.................................................. 134
Part B - Documents and evidence required as conditions
precedent to Philips Advance................................................ 138
Part C - Documents and evidence required as conditions precedent to the first
Advance made to the Norwegian Borrowers if at that time the Norwegian
Merger has occurred......................................................... 139
Part D - Documents and evidence required as conditions precedent to the
first Advance made to the Norwegian Borrowers if at that time the Norwegian
Merger has not occurred..................................................... 141
4 Calculation of Additional Cost.............................................. 143
5 Form of Substitution Certificate............................................ 145
6 Part A - Compliance Certificate to be delivered by an Authorised
Officer of the Parent...................................................... 148
Part B - Compliance Certificate to be delivered by the auditors
of the Restricted Group.................................................... 150
7 Licences.................................................................... 152
8 Form of Deed of Subordination............................................... 155
9 Principal Agreements........................................................ 171
10 Part A - Deed of Guarantor Accession........................................ 172
Part B - Documents and Evidence to be delivered by an Acceding Guarantor.... 174
11 Part A - Deed of Borrower Accession......................................... 176
Part B - Documents and Evidence to be delivered by New ▇▇▇▇▇................ 177
12 [Intentionally left blank].................................................. 179
13 Part A - Norwegian Security Documents....................................... 180
Part B - Norwegian Security Documents (if at the relevant time the
Norwegian Merger has occurred)............................................. 187
14 Form of Telekabel Note...................................................... 188
THIS AGREEMENT is dated 8th October 1997 (as subsequently amended) and is made
BETWEEN:
(1) UNITED PAN-EUROPE COMMUNICATIONS N.V. as Parent and a Borrower;
(2) THE ENTITIES listed in part C of schedule 1 as Borrowers;
(3) THE ENTITIES listed in part B of schedule 1 as Guarantors;
(4) THE TORONTO-DOMINION BANK as Arranger;
(5) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set out
in part A of schedule 1;
(6) THE TORONTO-DOMINION BANK as Agent; and
(7) THE TORONTO-DOMINION BANK as Security Trustee.
IT IS AGREED as follows:
1 PURPOSE AND DEFINITIONS
-----------------------
1.1 Purpose
-------
(a) This Agreement sets out the terms and conditions upon and subject to
which the Banks agree, according to their several obligations, to make
available to the Borrowers a revolving credit facility of up to NLG
1,100,000,000 or its equivalent in Optional Currencies to be used for
the purpose of (i) general corporate purposes of the Restricted Group,
(ii) refinancing and cancellation of the Existing UPC Facility (iii)
refinancing in part the ASLK Facility, (iv) refinancing and
cancellation of the Existing Norkabel Facility, (v) payments to be
made at the closing of the Philips Transaction in accordance with and
as contemplated by the Securities Purchase and Conversion Agreement in
an amount equal to (A) the principal and accrued but unpaid interest
of the UPC PIK Notes and (B) certain fees in connection with the
Philips Transaction, (vi) financing future investments and working
capital needs of the Restricted Group (subject to the provisions of
this Agreement), (vii) refinancing certain Indebtedness owed by
members of the Restricted Group to the Parent and (viii) financing
expenses incurred in connection with the Facility. For the avoidance
of doubt the Facility may not be used to make any payments of
principal, interest or other charges under the Bridge Facility.
Furthermore, the aggregate amount to be made available by the Banks to
the Norwegian Borrowers shall not exceed the Norwegian Loan Amount;
and
(b) For the purposes of this Agreement the revolving credit facility shall
only be made available to Telekabel Wien by way of loans against the
issue by Telekabel Wien of Telekabel Notes within the overall limit of
the
1
Facility and, without prejudice to the foregoing, Telekabel Wien
shall, subject to the approval of the managing board of Telekabel Wien
of the amount of such borrowing, be permitted to borrow by way of
loans against the issue of Telekabel Notes upon and subject to the
terms of this Agreement, a sum of up to Austrian Schillings
1,700,000,000 or such greater amount as shall be agreed upon by the
supervisory board of Telekabel Wien from time to time. Except (i) in
the possible case of loans to CNA and (ii) loans to other members of
the Restricted Group incorporated in Austria in amounts not exceeding
its Distributable Profits at the time thereof, Telekabel Wien shall
not use such borrowings for the purpose of providing loans to any
member of the Restricted Group or any other person.: The possibility
to grant loans does not constitute an obligation to that extent and
any loans may be granted by Telekabel Wien in accordance with Austrian
law.
1.2 Definitions
-----------
In this Agreement, unless the context otherwise requires:
"1997 BUDGET" means the budget for the Restricted Group for the period
commencing on 1st January, 1997 and ending on 31st December, 1997 contained
within the Management Base Case;
"ACCEDING GUARANTORS" means those entities which have become a party to
this Agreement as Guarantors pursuant to clause 9.17;
"ADDITIONAL COST" means in relation to any period a percentage calculated
for such period at an annual rate determined in accordance with schedule 4;
"ADVANCE" means (i) (in the case of each Borrower other than Telekabel
Wien) each borrowing of a portion of the Commitments by a Borrower by way
of advance or (as the context may require) the principal amount of such
borrowing for the time being and/or (ii)(in the case of Telekabel Wien)
each borrowing of a portion of the Commitments by Telekabel Wien against
the issue by Telekabel Wien of a Telekabel Note or (as the context may
require) the principal amount of such Telekabel Note for the time being
outstanding;
"AGENT" means The Toronto-Dominion Bank of Triton Court, ▇▇-▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ or such other person as may be appointed agent for
the Banks pursuant to clause 18.13;
"ANNUAL BUDGET" means a budget in respect of the Restricted Group for each
financial year containing information of a substantially similar type and
to a substantially similar level of detail as the 1997 Budget or containing
such other information or to such other level of detail as has, at the
relevant time, been approved in writing by the Agent acting on the
instructions of the Majority Banks;
2
"ARRANGER" means The Toronto-Dominion Bank of Triton Court, ▇▇-▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"ASLK FACILITY" means the secured overdraft facility made available to
Radio Public by ASLK Bank N.V. pursuant to an agreement between Radio
Public and ASLK Bank N.V. dated 13th February 1997;
"ASSOCIATED COMPANY" of a person means (i) any other person which is
directly or indirectly controlled by, under common control with or
controlling such person or (ii) any other person owning beneficially and/or
legally directly or indirectly 10 per cent. or more of the equity interest
in such person or 10 per cent. of whose equity interest is owned
beneficially and/or legally directly or indirectly by such person. For the
purposes of this definition the term "control" means possession, directly
or indirectly, of the power to direct or cause the direction of the
management and policies of a person whether through the ownership of
interests or voting securities, by contract or otherwise;
"AUSTRIAN AGREEMENTS" means the following documents and agreements which
have been entered into by the Telekabel Entities:
(a) Vereinbarung (agreement on mutual relations) dated 30th November 1977
between Telekabel Wien and Kabel-TV-Wien GmbH;
(b) Entgeltvereinbarung (agreement on details of payment), dated 23rd
November 1987 between Telekabel Wien and Stadt Wien;
(c) Programmnutzungsvereinbarung (agreement on use of television and radio
programmes) dated 10th December 1987 between Telekabel Wien and Kabel-
TV-Wien GmbH;
(d) Treuhand-und Geschaftsbesorgungsvertrag (trust and agency agreement)
dated 29th November 1988 between Telekabel Wien, Telekabel-Fernsehnetz
Wiener Neustadt/Neunkirchen Betriebsgesellschaft mbh and Philips Data
Systems GmbH;
(e) Kostenvergutung (reimbursement of costs agreement) dated 27th July
1994 by Telekabel Wien in favour of Kabel-TV Wiener
Neustadt/Neunkirchen GmbH;
(f) Syndikatsvereinbarung (shareholders agreement) dated 28th June 1995
between Osterreichische Philips Industrie GmbH, CNA and Kabel-TV-Wien
GmbH;
(g) Geschaftsordnung (internal organisational rules) Telekabel Wien GmbH
dated 28th June 1995 between Osterreichische Philips Industrie GmbH,
CNA and Kabel-TV-Wien GmbH;
(h) Entgeltvereinbarung (agreement on details of payment) dated 9th
February 1988 between Telekabel Graz GmbH and Grazer Kabel-TV GmbH;
3
(i) Grundsatzvereinbarung (basic agreement on mutual relations) dated 30th
November 1977 entered into between Osterreichische Philips Industrie
GmbH and Kabel-TV-Wien GmbH;
(j) Dividendengarantie (guarantee of dividends) dated 30th November 1987
entered into by Osterreichische Philips Industrie GmbH in favour of
Kabel-TV-Wien GmbH;
(k) Grundsatzvereinbarung (basic agreement on mutual relations and
operations of project company (Telekabel Graz GmbH)) dated 5th May
1983 entered into between Osterreichische Philips Industrie GmbH and
Grazer Kabel-TV GmbH;
(l) Dividendengarantie (guarantee of dividends) dated 14th November 1988
entered into by Osterreichische Philips Industrie GmbH in favour of
Grazer Kabel-TV GmbH;
(m) Grundsatzvereinbarung (basic agreement on mutual relations and
operation of Telekabel Klagenfurt GmbH) dated 6th August 1979 entered
into between Osterreichische Philips Industrie GmbH and
Landeshauptstadt Klagenfurt;
(n) Dividendengarantie (guarantee of dividends) dated 18th December 1990
entered into by Osterreichische Philips Industrie GmbH in favour of
Landeshauptstadt Klagenfurt;
(o) Grundsatzvereinbarung (basic agreement on mutual relations and
operation of Telekabel-Fernsehnetz Region Buden Betriebsgesellschaft
mbH) dated 18th February 1980 entered into between Osterreichische
Philips Industrie GmbH and Kabel-TV Sud GmbH;
(p) Grundsatzvereinbarung (basic agreement on mutual relations and
operation of Telekabel-Fernsehnetz Wiener Neustadt/Neunkirchen
Gesellschaft mbH) dated 23rd May 1979 entered into between
Osterreichische Philips Industrie GmbH and Kabel-TV Wiener Neustadt
GmbH; and
(q) Vereinbarung (agreement relating to remunerating ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-
▇▇▇▇▇) dated 30th November 1993 entered into between Telekabel Wien
and Kabel-TV-Wien GmbH;
"AUSTRIAN LICENCES" means those licences specified as Austrian Licences in
schedule 7;
"AUSTRIAN SECURITY DOCUMENT" means the pledge over receivables given to the
Security Trustee by Telekabel Wien in the agreed form and, for the
avoidance of doubt, includes any documents supplemental to such pledge;
4
"AUTHORISED OFFICER" means that officer or officers of the Parent
authorised to sign Compliance Certificates, Drawdown Notices and other
notices, requests, or confirmations referred to in this Agreement or
relating to the Facility;
"AVAILABILITY PERIOD" means the period from the date of this Agreement and
ending on whichever is the earlier of (i) the Termination Date or (ii) the
date on which (a) the Parent cancels the whole of the undrawn Commitments
under clause 6 or (b) the Total Commitments are reduced to zero pursuant to
clause 6, 13.2 or 15.1;
"AVAILABLE FACILITY AMOUNT" means at any time the amount by which the Total
Commitments exceed the aggregate Guilder Amount of all Advances outstanding
at such time;
"BANKING DAY" means a day (other than Saturday or Sunday) on which dealings
in deposits in Guilders or the relevant Optional Currency are carried on in
the London Interbank Market and (if any calculations in respect of, or
transfer of funds in, Guilders and/or an Optional Currency is required to
be made on such day) on which banks and foreign exchange markets are open
for business in the City of London and Amsterdam or the principal financial
centre in the jurisdiction of the Optional Currency concerned;
"BANKS" means the banks and financial institutions listed in part A of
schedule 1 and includes their successors in title and Substitutes;
"BELGIAN FRANCS" and "BEF" means the lawful currency for the time being of
Belgium;
"BELGIAN LICENCES" means those licences specified as Belgian Licences in
schedule 7;
"BELMARKEN FUNDING ARRANGEMENTS" means (i) the loan of part of the net
proceeds of the Initial Equity Raise made or to be made by the Parent to
the Bridge Borrower and/or the purchase by the Parent of all or any of the
Belmarken UIH Shares from the Bridge Borrower at fair market value, to the
extent that the aggregate of the principal amount of such loan and/or the
consideration paid for the Belmarken UIH Shares does not exceed all
amounts, including principal and interest, outstanding under the Bridge
Facility and (ii) the acquisition by the Parent of all or any of the
Belmarken UIH Shares from the Bridge Borrower at fair market value in
satisfaction pro tanto of the Bridge Borrower's obligations under the
Bridge Borrower Loan Agreement in its original terms;
"BELMARKEN UIH SHARES" means 2784620 fully paid and non-assessable shares
of the Class A Common Stock par value $0.01 per share in UIH owned by the
Bridge Borrower;
"BORROWED MONEY" means Indebtedness in respect of (i) money borrowed or
raised and debit balances at banks, (ii) any bond, note, loan stock,
debenture or
5
similar debt instrument, (iii) acceptance or documentary credit facilities,
(iv) receivables sold or discounted (otherwise than on a non-recourse
basis), (v) payments for assets acquired or services supplied deferred for
a period of over 90 days after the relevant assets were or are to be
acquired or the relevant services were or are to be supplied, (vi) finance
leases and hire purchase contracts, (vii) any other transaction (including
without limitation forward sale or purchase agreements) having the
commercial effect of a borrowing or raising of money or of any of (ii) to
(vi) above and (viii) guarantees in respect of Indebtedness of any person
falling within any of (i) to (vii) above (for the avoidance of doubt
without double counting guarantees given by the member of the Restricted
Group for the Indebtedness of another member of the Restricted Group)
provided that Indebtedness which has been cash collateralised shall not be
included in any calculation of Borrowed Money to the extent so cash
collateralised and any item properly taken into account in determining
compliance with the limits set out in clause 11.2(h) shall not also be
considered to be Borrowed Money of the relevant member of the Restricted
Group for the purposes of this Agreement;
"BORROWERS" means the Parent and the other entities whose names are set out
in part C of schedule 1 together with, after its accession pursuant to
clause 3.5, New ▇▇▇▇▇ and reference to a "Borrower" means any one of them,
as the context may require provided that Telekabel Wien shall not be a
Borrower for the purposes of this Agreement until the provisions of clause
3.6(b) have been complied with and provided further that, for the purposes
of this Agreement, the term "BORROWER", when used in connection with
Telekabel Wien, shall mean Telekabel Wien as an issuer of Telekabel Notes
in accordance with the terms and conditions of this Agreement;
"BRIDGE AGENT" means The Toronto-Dominion Bank of Triton Court, ▇▇/▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ or such successor bank or financial
institution as is appointed agent for the banks pursuant to the terms of
the Bridge Facility;
"BRIDGE BORROWER" means Belmarken Holding B.V. a limited liability company
incorporated under the laws of The Netherlands with its registered office
at Amsterdam and its business office at (1076EE) ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
"BRIDGE BORROWER LOAN AGREEMENT" means the loan agreement dated 16th March
1998 between, inter alios, the Parent and the Bridge Borrower whereby the
Parent agreed to lend up to $100,000,000 to the Bridge Borrower;
"BRIDGE FACILITY" means the senior bridge facility made available to the
Bridge Borrower pursuant to the Bridge Facility Agreement the proceeds of
which (other than those to be used to fund the interest reserve) are to be
used by the Bridge Borrower in satisfaction of the consideration payable to
the Parent for the purchase of the interests in the Unrestricted Group
pursuant to the Restructuring such proceeds to be used by the Parent for
the purpose of making certain
6
payments in connection with the Securities Purchase and Conversion
Agreement;
"BRIDGE FACILITY AGREEMENT" means the agreement entered or to be entered
into between inter alios the Bridge Borrower and the Bridge Agent in
relation to the Bridge Facility provided that none of the lenders under the
Bridge Facility shall in any circumstances have recourse to any member of
the Restricted Group or any of their respective assets unless such lenders
have entered into inter-creditor arrangements with the Banks, satisfactory
to all the Banks;
"BRIDGE TERMINATION DATE" means the date upon which the Bridge Facility has
been repaid in full and the commitments of the banks thereunder have been
irrevocably cancelled in full, as notified by the Bridge Agent to the Agent
and the Parent;
"CABLE SYSTEMS" means the telecommunications and/or television systems
constructed or to be constructed in the areas covered by the Licences and
includes any part of such system and all modifications, substitutions,
replacements, renewals and extensions made to such systems;
"CABLE TV ANNUALISED NET OPERATING CASH FLOW" means, for the Restricted
Group, twice the aggregate of the Cable TV Net Operating Cash Flow in
respect of the most recently ended Six Month Period for the Restricted
Group in respect of which Monthly Management Accounts have been delivered
to the Agent under this Agreement;
"CABLE TV NET OPERATING CASH FLOW" means in respect of each Six Month
Period or financial year of the Restricted Group, the aggregate of (i) the
aggregate of the Net Operating Cash Flow of each of the Restricted
Subsidiaries referable solely to their respective cable television
businesses and (ii) the unconsolidated Net Operating Cash Flow of the
Parent adjusted by adding back 50 per cent. of the overhead costs incurred
by the Parent, as determined in accordance with GAAP and as shown in the
financial statements for such Six Month Period or financial year prepared
and delivered to the Agent under this Agreement;
"CALL OPTION AGREEMENT" means the call option agreement dated 8th January
1997 and made between the Parent and HMC;
"CNA" means Cable Networks Austria Holding b.v., a limited liability
company incorporated under the laws of the Netherlands with its registered
office at Amsterdam and its business office at (1076EE) Amsterdam, Fredrik
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
"CNA SHARE SECURITY" means the share pledge to be given to the Security
Trustee by the Parent in respect of its shareholding in CNA in the agreed
form;
"COLLATERAL INSTRUMENTS" means notes, bills of exchange, certificates of
deposit and other negotiable and non-negotiable instruments, guarantees and
any other
7
documents or instruments which contain or evidence an obligation (with or
without security) to pay, discharge or be responsible directly or
indirectly for, any Indebtedness or liabilities under this Agreement and
includes Encumbrances;
"COMMITMENT" means, in relation to a Bank, at any relevant time the amount
set opposite its name in part A of schedule 1 and/or, in the case of a
Substitute, the amount novated as specified in the relevant Substitution
Certificate, as reduced, in each case, by any relevant term of this
Agreement and so that, if at such time the Total Commitments have been
reduced to zero, references to a Bank's Commitment shall be construed as a
reference to that Bank's Commitment immediately prior to such reduction to
zero;
"COMPLETION OF THE INITIAL EQUITY RAISE" means:
(i) the listing of ordinary shares of the Parent on the Amsterdam Stock
Exchange and/or the registration of American Depositary Shares
representing a number of ordinary shares of the Parent or rights
thereto on the NASDAQ National Market Systems; and
(ii) the receipt by the Parent in cash of the net proceeds of the private
placement of ordinary shares fully paid of the Parent (other than
pursuant to the transaction described in clause 6.5 (D)(vii),
provided that (i) shall not apply if there is not an initial public
offering of shares in the Parent and (ii) shall not apply if there is not a
private placement of shares in the Parent;
"COMPLIANCE CERTIFICATE" means either (i) a certificate substantially in
the form set out in schedule 6A in relation to the compliance (or
otherwise) with the undertakings in clause 12 issued by the Authorised
Officer of the Parent in relation to quarterly financial statements or (ii)
a certificate substantially in the form of schedule 6B in relation to the
compliance (or otherwise) with the undertakings in clause 12 issued by the
auditors of the Parent in relation to annual financial statements;
"CONTRIBUTION" means, in relation to a Bank, the principal amount of the
Advances owing to such Bank at any relevant time;
"DEED OF BORROWER ACCESSION" means the deed to be executed and delivered by
each entity which is to accede to this Agreement as a Borrower, each
substantially in the form of schedule 11 part A, mutatis mutandis (or such
other document as the Banks may require which has the same, or
substantially the same, effect);
"DEED OF GUARANTOR ACCESSION" means a deed to be executed and delivered by
any Acceding Guarantor pursuant to clause 9.17 substantially in the form of
schedule 10 part A;
8
"DEED OF SUBORDINATION" means a deed of subordination to be entered into
between the Security Trustee and any Relevant Person pursuant to the terms
of this Agreement substantially in the form of schedule 8 with such changes
as are satisfactory to the Banks;
"DEFAULT" means any Event of Default or any event or circumstance which
would, upon the giving of a notice by the Agent and/or the expiry of the
relevant period and/or the fulfilment of any other condition (in each case
as specified in clause 13.1), constitute an Event of Default;
"DERIVATIVES CONTRACT" means a contract, agreement or transaction which is:
(i) a rate swap, basis swap, commodity swap, forward rate transaction,
commodity option, equity (or equity or other index) swap or option,
bond option, interest rate option, foreign exchange transaction,
collar or floor, currency swap, currency option or any other similar
transaction; and/or
(ii) any combination of such transactions,
in each case, whether on-exchange or otherwise;
"DIC" means DIC Loans Ltd. a company organised and existing under the laws
of the State of Israel and having its principal place of business at ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇;
"DISTRIBUTABLE PROFITS" means, in relation to any entity incorporated in
Austria, the distributable profits of such entity as calculated in
accordance with generally accepted accounting provisions prevailing in
Austria which may be disbursed as dividends and for which a shareholder's
resolution authorising such distribution has been passed save that, in the
case of any member of the Restricted Group incorporated in Austria only,
the Relevant Reserves may not be included in the calculation of
distributable profits of such entity apart from by way of charges made to
the profit and loss account of such entity in respect of the amortisation
of the good-will represented by such Relevant Reserves and to extinguish
existing negative balances on the profit and loss account of such entity;
"DOLLARS" and "$" means the lawful currency for the time being of the
United States of America;
"DISCLOSURE LETTER" means the letter from the Parent to the Agent of even
date herewith, the form and content of which have previously been approved
by the Agent;
"DRAWDOWN DATE" means the date, being a Banking Day falling with the
Availability Period, on which an Advance is or is to be drawn down;
"DRAWDOWN NOTICE" means a notice in the form or substantially in the form
of schedule 2, duly completed with particulars of the relevant Advance;
9
"ENCUMBRANCE" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment by way of security, trust
arrangement for the purpose of providing security or other security
interest of any kind securing any obligation of any person or any other
arrangement having the effect of conferring rights of retention or other
disposal rights over an asset (including without limitation title transfer
and/or retention arrangements having a similar effect or a deposit of money
with the primary intention of affording a right of set-off) and includes
any agreement to create any of the foregoing but does not include liens
arising in the ordinary course of trading by operation of law and not by
way of contract;
"ENVIRONMENTAL CLAIM" means any claim, notice prosecution, demand, action,
official warning, abatement or other order (conditional or otherwise)
relating to Environmental Matters or any notification or order requiring
compliance with the terms of any Environmental Licence or Environmental
Law;
"ENVIRONMENTAL LAW" includes all or any law, statute, rule, regulation,
treaty, by-law, code of practice, order, notice, demand, decision of the
courts or of any governmental authority or agency or any other regulatory
or other body in any jurisdiction relating to Environmental Matters;
"ENVIRONMENTAL LICENCE" includes any permit, licence, authorisation,
consent or other approval required at any time by any Environmental Law;
"ENVIRONMENTAL MATTERS" includes (a) the generation, deposit, disposal,
keeping, treatment, transportation, transmission, handling, importation,
exportation, processing, collection, sorting, presence or manufacture of
any waste or any Relevant Substance; (b) nuisance, noise, defective
premises, health and safety at work or elsewhere; and (c) the pollution,
conservation or protection of the environment (both natural and built) or
of man or any living organisms supported by the environment or any other
matter whatsoever affecting the environment or any part of it;
"EVENT OF DEFAULT" means any of the events or circumstances described in
clause 13.1;
"EXCESS CASH FLOW" means the aggregate of the Net Operating Cash Flow of
the Restricted Group calculated for the most recently ended financial year
(beginning with the financial year ending on 31st December 2001), as shown
in the relevant Compliance Certificate less (i) any interest and other
charges in respect of Borrowed Money of the Restricted Group, (ii)
repayments and/or prepayments of any Borrowed Money of the Restricted Group
and (iii) capital expenditure of the Restricted Group, whether or not
incurred, to the extent that the same is included in the Annual Budget for
such period as delivered to the Agent under this Agreement, in the case of
(i) and (ii) as were paid during such Six Month Periods;
"EXISTING UPC FACILITY" means the US$150,000,000 revolving credit facility
dated 29th January 1996 and the US$150,000,000 syndicated acquisition
facility
10
dated 15th April 1996, in each case made available to the Parent by ABN-
AMRO Bank N.V.;
"EXISTING NORKABEL FACILITY" means the NOK 540,000,000 bridge facility made
available to Norkabel and its Subsidiaries by ING Bank N.V. pursuant to an
agreement dated 5th March 1997 between, inter alios, ING Bank N.V. and
Norkabel;
"FACILITY" means the revolving credit facility (including in the case of
Telekabel Wien, the facility permitting Telekabel Wien to borrow the
Commitments against the issue of Telekabel Notes) granted by the Banks to
the Borrowers under this Agreement;
"FINANCE DOCUMENTS" means this Agreement and the Security Documents and the
Interest Rate Hedging Arrangements (as defined in the Security Trust Deed);
"GAAP" means generally accepted accounting principles and practices in the
Netherlands;
"GUARANTEE" means the guarantee of the Guarantors contained in clause 9 and
includes each separate or independent stipulation or agreement by the
Guarantors contained in clause 9;
"GUARANTEED LIABILITIES" means all moneys, obligations and liabilities
expressed to be guaranteed by the Guarantors in clause 9.2;
"GUARANTORS" means (i) the Original Guarantors and (ii) the Acceding
Guarantors Provided always that Radio Public shall not be a Guarantor for
the purposes of this Agreement until such time as it shall have amended its
Articles of Association to a form acceptable to the Agent in accordance
with clause 11.1(aa) which form permits Radio Public to give the Guarantee
(subject to the limits set out in clause 9.1);
"GUILDER AMOUNT" means (a) in relation to an Advance to be drawn down in
Guilders, the amount in Guilders so drawn down and (b) in relation to an
Advance to be drawn down in an Optional Currency, the amount in Guilders
which would be required to purchase the principal amount of that Advance as
determined in accordance with clause 4.6, in each case as reduced by any
repayment or prepayment under this Agreement;
"GUILDERS" and "NLG" mean the lawful currency for the time being of the
Netherlands and in respect of all payments to be made under this Agreement
in Guilders mean immediately available, freely transferable cleared funds;
"HMC" means Helsinki Media Company Oy;
"HOLDING COMPANY" in relation to a person, means an entity of which that
person is a Subsidiary;
11
"INCAPACITY" means, in relation to a person, the insolvency, liquidation,
dissolution, winding-up, administration, receivership or other incapacity
of that person whatsoever (and in the case of a partnership, includes the
termination or change in composition of the partnership);
"INDEBTEDNESS" means any obligation for the payment or repayment of money,
whether as principal or as surety and whether present or future, actual or
contingent;
"INFORMATION MEMORANDUM" means the Information Memorandum dated 9th
September, 1997 and any subsequent update approved by the Parent
distributed by the Arranger at the request of the Parent in connection with
this Agreement;
"INITIAL EQUITY RAISE" means (i) the initial public offering of ordinary
shares fully paid of the Parent and/or American Depositary Shares
representing a number of the ordinary shares of the Parent or rights
thereto and/or (ii) the private placement of new ordinary shares fully paid
of the Parent (other than pursuant to the transaction described in clause
6.5(D)(vii));
"INTELLECTUAL PROPERTY RIGHTS" means any patent, trademark, service ▇▇▇▇,
registered design, trade name or copyright required to carry on the
business of any member of the Restricted Group;
"▇▇▇▇▇" means ▇▇▇▇▇ ▇▇▇▇▇-TV A/S (now known as ▇▇▇▇▇ Multicom A/S), a
corporation incorporated in Norway (organisation no. 919 394 056) having
its corporate seat at ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ or, following the
Norwegian Merger, the successor entity of ▇▇▇▇▇ ▇▇▇▇▇-TV A/S;
"▇▇▇▇▇ LOAN AGREEMENT" means the loan agreement dated 18th June 1997 made
between the Parent and ▇▇▇▇▇ in the amount of NOK 571,000,000;
"LIBOR" means, in relation to a particular period, the arithmetic mean
(rounded upwards, if necessary, to five decimal places) of the London
interbank offered rates for deposits of the currency in question for a
period equal to such period at or about 11 a.m. on the Quotation Date for
such period as displayed on the relevant page of the ▇▇▇▇▇▇ Monitor Money
Rates Service (or such other page as may replace such page on such service
for the purpose of displaying London interbank offered rates of leading
banks for deposits of that currency) or, if on such date the offered rates
for the relevant period of fewer than two leading banks are so displayed,
the arithmetic mean (rounded upwards, if necessary, to five decimal places)
of such rates quoted to the Agent by each of the Reference Banks at the
request of the Agent;
"LICENCES" means the Belgian Licences, the Austrian Licences and the
Norwegian Licences and, if applicable, any other licences, franchises and
permits issued to any member of the Restricted Group under any
Telecommunications and Cable Laws;
12
"LOAN" means the aggregate principal amount owing to the Banks under this
Agreement at any relevant time (including, for the avoidance of doubt, the
aggregate principal amount of all Telekabel Notes which are then issued and
outstanding);
"MAJORITY BANKS" means at any relevant time Banks (a) the aggregate of
whose Contributions exceeds 662/3 per cent of the Advances or (b) (if no
principal amounts are outstanding under this Agreement) the aggregate of
whose Commitments exceeds 662/3 per cent of the Total Commitments;
"MANAGEMENT BASE CASE" means the management base case financial and
operational projections for the Restricted Group produced by the Parent in
the form approved by the Agent prior to the date of this Agreement;
"MARGIN" means the rate per annum calculated in accordance with clause 5;
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the ability of
the members of the Restricted Group (taken as a whole) or the Parent to
perform all or any of their or its respective material obligations under or
otherwise comply with the terms of this Agreement or any Security Document;
"MONTH" or "MONTHS" means a period beginning in one calendar month and
ending in the relevant later calendar month on the day numerically
corresponding to the day of the calendar month in which it started,
provided that (i) if the period started on the last Banking Day in a
calendar month or if there is no such numerically corresponding day, it
shall end on the last Banking Day in such later calendar month and (ii) if
such numerically corresponding day is not a Banking Day, the period shall
end on the next following Banking Day in such later calendar month but if
there is no such Banking Day it shall end on the preceding Banking Day and
"MONTHLY" shall be construed accordingly;
"MATURITY DATE" means, subject to clause 8.3, in relation to an Advance,
the last day of its Term;
"MONTHLY MANAGEMENT ACCOUNTS" means the monthly management accounts of the
Restricted Group to be delivered (or which may be delivered) to the Agent
pursuant to clause 11.1 in a form and to accounting policies consistent
with the Management Base Case and containing information of a substantially
similar type as is required by such form;
"NECESSARY AUTHORISATIONS" means all approvals, authorisations and licences
(other than the Licences) from, all rights granted by and all filings,
registrations and agreements with any person including, without limitation,
any government or other regulatory authority necessary in order to enable
each member of the Restricted Group to carry on such business as may be
permitted by the terms of this Agreement and which is carried on at the
relevant time;
"NET DERIVATIVES LIABILITY" means, at any time, the net liability (if any)
at such time of the Parent and its Subsidiaries taken as a whole in respect
of Derivatives
13
Contracts determined by reference to the amounts (as determined by the
Agent), which would be payable or receivable by the Parent and its
Subsidiaries if all Derivatives Contracts to which the Parent and its
Subsidiaries were party at such time were terminated at such time and
replaced by the obligation to make a payment reflecting the economic burden
or value to the Parent or the relevant Subsidiary of the payment flows
under those Derivatives Contracts remaining at the time of termination;
"NET INCOME" means, in relation to any member of the Restricted Group for
any Six Month Period or any financial year, the net profit after Taxes of
such member of the Restricted Group arising out of the use and operation of
its Cable System for such Six Month Period or financial year, as determined
in accordance with GAAP and as shown in the financial statements for such
Six Month Period or financial year prepared and delivered to the Agent
pursuant to clause 11.1;
"NET OPERATING CASH FLOW" means in respect of each Six Month Period or
financial year of any member of the Restricted Group, the Net Income of
such member of the Restricted Group (plus any depreciation, amortisation,
other non-cash charges (such as deferred taxes) and interest and other
charges in respect of Borrowed Money) for such Six Month Period adjusted as
follows:
(a) minus extraordinary income of such member of the Restricted Group for
such Six Months Period;
(b) minus any interest income of such member of the Restricted Group for
such Six Months Period;
(c) minus all sums constituting management fees accrued but not received
in cash in respect of such Six Month Period to such member of the
Restricted Group by any member of the Unrestricted Group or by any
Relevant Person; and
(d) minus any profits or losses attributable to the interest of such
member of the Restricted Group in any member of the Unrestricted Group
as determined in accordance with GAAP and as shown in the financial
statements for such Six Month Period or such financial year prepared and
delivered to the Agent pursuant to clause 11.1;
"NEW ▇▇▇▇▇" shall have the meaning ascribed to such term in clause 11.2(b);
"NEW NORKABEL" shall have the meaning ascribed to such term in clause
11.2(b);
"NORKABEL" means Norkabelgruppen A/S, a corporation incorporated in Norway
(organisation no. 947 029 150) and having its corporate seat at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, whose rights and obligations under
this Agreement are to be assumed by New ▇▇▇▇▇ after the Norwegian Merger;
"NORWEGIAN BORROWERS" means Norkabel and New ▇▇▇▇▇;
14
"NORWEGIAN KRONE" and "NOK" means the lawful currency for the time being of
Norway;
"NORWEGIAN I/C INDEBTEDNESS" means the indebtedness of Norkabel under the
unsecured promissory note in the principal amount of $70,780,401.40 issued
by Norkabel on 26 October 1995 as amended pursuant to an amendment
agreement dated 5th March 1997;
"NORWEGIAN LICENCES" means any licence required from Norwegian public
authorities in order for Norkabel, ▇▇▇▇▇ or New ▇▇▇▇▇ (or any of their
Subsidiaries) to operate their Cable Systems;
"NORWEGIAN LOAN AMOUNT" means the maximum of NLG 350,000,000 or the
equivalent in Optional Currencies to be lent by the Banks to the Norwegian
Borrowers for the purpose of (i) refinancing and cancellation of the
Existing Norkabel Facility, (ii) refinancing the ▇▇▇▇▇ Loan Agreement in
accordance with the terms of this Agreement and (iii) general corporate
purposes and working capital of the Norwegian Borrowers;
"NORWEGIAN MERGER" means:
(a) the merger of Norkabelgruppen A/S, Norkabel A/S and Oslo Kabelanlegg
A/S to form New Norkabel; and
(b) the merger of New Norkabel with ▇▇▇▇▇ ▇▇▇▇▇-TV A/S to form New ▇▇▇▇▇;
"NORWEGIAN SECURITY DOCUMENTS" means the documents listed in schedule 13;
"NORWEGIAN SHARE SECURITY" means the share pledge given to the Security
Trustee by the Parent in respect of its shareholding in ▇▇▇▇▇ (and, after
the Norwegian Merger, New ▇▇▇▇▇) and, if any Advances are made to any
Norwegian Borrower or if the Philips Advance is made prior to the Norwegian
Merger, the share pledge given to the Security Trustee (i) by ▇▇▇▇▇ in
respect of its shareholding in Norkabel and (ii) by Norkabel in respect of
its shareholding in Norkabel A/S, Kanal 2 A/S and Oslo Kabelanlegg A/S in
the agreed form;
"OBLIGOR" means each Borrower and each Guarantor Provided that Radio Public
shall not be an Obligor for the purposes of this Agreement until such time
as it shall have amended its Articles of Association to a form acceptable
to the Agent in accordance with clause 11.1(aa) which form permits Radio
Public to give the Guarantee (subject to the limits set out in clause 9.1)
and Provided that Telekabel Wien shall not be an Original Guarantor for the
purposes of this Agreement until the provisions of clause 3.6(b) have been
complied with;
"OPTION AGREEMENTS" means the Put Option Agreement and the Call Option
Agreement;
"OPTION DATE" means either (i) the date (falling on or prior to 29th June,
2001) upon which the Parent exercises its rights to purchase all of the
shares in ▇▇▇▇▇
15
that are owned by HMC pursuant to the Call Option Agreement or (ii) the
date (falling on or prior to 15th August, 2001) upon which HMC exercises
its rights to sell all of its shares in ▇▇▇▇▇ to the Parent pursuant to the
Put Option Agreement, whichever is the earlier;
"OPTIONAL CURRENCY" means any currency, other than Guilders, which is
freely transferable, freely convertible into Guilders and dealt in on the
London Interbank Market;
"ORIGINAL GUARANTORS" means the Parent and those Subsidiaries of the Parent
whose names, country of incorporation and principal place of business are
set out in part B of schedule 1 Provided that Radio Public shall not be an
Original Guarantor for the purposes of this Agreement until such time as it
shall have amended its Articles of Association to a form acceptable to the
Agent in accordance with clause 11.1(aa) which form permits Radio Public to
give the Guarantee (subject to the limits set out in clause 9.1) and
Provided that Telekabel Wien shall not be an Original Guarantor for the
purposes of this Agreement until the provisions of clause 3.6(b) have been
complied with;
"PARENT" means United Pan-Europe Communications N.V. a public limited
liability company incorporated under the laws of The Netherlands with its
registered office at Amsterdam and its business office at (1076EE)
Amsterdam, Fredrik ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
"PARENT PROMISSORY NOTE" means the promissory note dated 16th March 1998
pursuant to which UIH Europe, Inc. agreed to lend up to $100,000,000 to the
Parent;
"PERMITTED BORROWINGS" means:
(a) any Borrowed Money arising hereunder or under the Security Documents;
(b) until the date of the first Advance hereunder, any Borrowed Money
under the Existing UPC Facility and until the date of the first
Advance to any Norwegian Borrower, any Borrowed Money under the
Existing Norkabel Facility;
(c) any Borrowed Money approved in writing by the Agent (acting on the
instructions of the Majority Banks);
(d) any Subordinated Debt;
(e) the unsecured loan of 100,000,000 Austrian Schillings made by Bank
Austria to Telekabel Wien;
(f) the letter of credit issued to ING Bank N.V. in relation to the Option
Agreements;
16
(g) any Borrowed Money arising under deferred payment agreements provided
that such Borrowed Money is deferred for no longer than 180 days and
is in an aggregate amount of not more than NLG 60,000,000 outstanding
at any time;
(h) any Borrowed Money where the debtor and creditor are both members of
the Restricted Group provided that if the creditor is the Parent, such
arrangements as may be satisfactory to the Agent are entered into so
as to ensure that all of the Parent's right, title, benefit and
interest in respect of such Borrowed Money is assigned to the Security
Trustee;
(i) any Borrowed Money not exceeding NLG 500,000 in aggregate owed to UIH
in relation to the secondment of UIH employees to the Parent;
(j) any deposits or prepayments constituting Borrowed Money received by a
member of the Restricted Group from a subscriber for its services;
(k) any Borrowed Money of any Unrestricted Subsidiary which becomes a
Restricted Subsidiary which is existing on the date that such
Unrestricted Subsidiary becomes a Restricted Subsidiary;
(l) any Borrowed Money not falling within paragraphs (a) to (k) above
(apart from (e)) and not exceeding at any time more than NLG
30,000,000 in aggregate (or its equivalent in other currencies); and
(m) any Borrowed Money arising under the Parent Promissory Note (in its
original form or as amended in accordance with proviso (y) to clause
11.2(k)(i));
"PERMITTED DISPOSAL" means the sale by any member of the Restricted Group
of any ownership interest in any member of the Unrestricted Group on bona
fide arm's length commercial terms and any other disposal made by any
member of the Restricted Group of interests that it has in, or of Borrowed
Money it is owed by members it is owed by of the Unrestricted Group as part
of the Restructuring;
"PERMITTED ENCUMBRANCES" means:
(a) any Encumbrance arising hereunder or under any Security Document;
(b) until the date of the first Advance hereunder, any Encumbrance
securing the Existing UPC Facility and until the date of the first
Advance to any Norwegian Borrower any Encumbrance securing the
Existing Norkabel Facility;
(c) until the date of the first Advance hereunder any Encumbrance agreed
to be created by the Parent over its shares in CNA in favour of ABN
AMRO Bank N.V.;
(d) any liens arising in the ordinary course of trading by way of contract
which secure Borrowed Money falling within part (g) of the definition
of
17
"PERMITTED BORROWINGS" above or which secure any Indebtedness under
any agreement for the supply of goods or services in respect of which
payment is not deferred for more than 90 days;
(e) any Encumbrance over any asset acquired by any member of the
Restricted Group after the date hereof so long as the same is
discharged within six months of such acquisition;
(f) any Encumbrance imposed by any taxation or governmental authority and
which is being contested in good faith;
(g) any Encumbrance approved in writing by the Agent (acting on the
instructions of the Majority Banks); and
(h) any Encumbrance not falling within paragraphs (a) to (g) above and
securing Indebtedness in aggregate not exceeding NLG 10,000,000 or its
equivalent in other currencies;
"PERMITTED PAYMENTS" means, in so far as the same are applied by the Parent
in satisfaction of the obligations of the Bridge Borrower under the Bridge
Facility:
(a) the proceeds of any equity share capital that has been subscribed for
in the Parent for cash (other than pursuant to a public offering) on
terms that the same is not redeemable or convertible into any other
class of share or loan capital in any member of the Restricted Group
(in either case prior to the date on which all amounts outstanding
under this Agreement have been irrevocably paid in full and no amounts
are capable of being so outstanding) and does not carry the right to
any dividend or other distribution (unless the same is not prohibited
by the application of clause 11.2(k)(i)), or on such other terms as
are satisfactory to the Majority Banks;
(b) dividends paid to members of the Restricted Group by members of the
Unrestricted Group;
(c) Subordinated Debt made available to the Parent; and
(d) any other payments agreed by all of the Banks;
"PHILIPS ADVANCE" means the Advance to be made to the Parent in accordance
with the terms of this Agreement to finance in part the Philips
Transaction;
"PHILIPS TRANSACTION" means the transactions to be undertaken in accordance
with and as contemplated by the terms of the Securities Purchase and
Conversion Agreement;
"PRINCIPAL AGREEMENTS" means the documents and agreements listed in
schedule 9;
18
"PRO-FORMA DEBT SERVICE" means the aggregate of (i) the total forecast
amount of interest (calculated by reference to the rate of interest in
effect in relation to the relevant Borrowed Money of the Restricted Group
on the date on which the calculation falls to be made) and any other
charges payable in respect of Borrowed Money of the Restricted Group in
respect of the period of twelve months immediately following the date on
which any calculation under this Agreement falls to be made, (ii) the
principal amount of any Borrowed Money of the Restricted Group due to be
repaid in accordance with the terms of such Borrowed Money during such
period and (iii) the amount of dividends payable in cash in respect of any
preference shares issued by the Parent;
"PUT OPTION AGREEMENT" means the Put Option Agreement dated 8th January
1997 and made between the Parent and HMC;
"QUALIFYING BANK" means a person, being a bank or financial institution
(whether incorporated in the United Kingdom or elsewhere), which is
eligible to have payments made to it by any Borrower under this Agreement
without any deduction or withholding in respect of Taxes either (i) by
virtue of a double taxation treaty (assuming for this purpose only that a
direction or consent such as is referred to in clause 8.8 has been given),
or (ii) by virtue of the fact that no such deduction or withholding is
imposed in the jurisdiction to which the relevant Borrower is subject;
"QUARTERLY MANAGEMENT ACCOUNTS" means the quarterly management accounts of
the Restricted Group to be delivered (or which may be delivered) to the
Agent pursuant to clause 11 in a form and to accounting policies consistent
with the Management Base Case and containing information of a substantially
similar type as is required by such form;
"QUARTER DAY" means 31st March, 30th June, 30th September and 31st December
in any year;
"QUARTERLY PERIOD" means each period of approximately three months
commencing on the day after a Quarter Day and ending on the next following
Quarter Day;
"QUOTATION DATE" means, in relation to a Term or other period for which
LIBOR is to be determined, the date on which quotations would customarily
be provided by leading banks in the London Interbank Market for deposits in
the relevant currency for delivery on the first day of that Term or other
period;
"RADIO PUBLIC" means Radio Public S.A., a company incorporated in Belgium
and having its registered office at ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, registered in the register of commerce of Brussels under no.
69,463 and in the register of commerce of Leuven under no. 44697;
"RADIO PUBLIC BOND" means the registered loan bonds issued by Radio Public
on 17th July 1995 with an aggregate nominal amount of BEF 3,611,250,000;
19
"REDUCTION DATE" means each Quarter Day during the Reduction Period
beginning with 31st December 2001;
"REDUCTION PERIOD" means the period starting on 30th September, 2001 and
ending on the Termination Date;
"REFERENCE BANKS" means the principal London offices of the Agent, CIBC
Wood Gundy Plc, HSBC Investment Bank plc and/or any other Bank appointed as
such pursuant to clause 18.14;
"RELEVANT DATE" means the earliest date after the date of the Philips
Advance on which, in respect of each of the two most recent previous
consecutive Quarterly Periods, the ratio of Total Debt to Total Annualised
Net Operating Cash Flow (calculated on the last day of each such Quarterly
Period), each as demonstrated in the Compliance Certificate for the
Quarterly Period ending immediately prior to such date, is less than 3:1;
"RELEVANT ▇▇▇▇▇ PERSON" means, other than the members of the Restricted
Group, any shareholder of ▇▇▇▇▇ or New ▇▇▇▇▇, any Subsidiary or Associated
Company of such shareholder or any Holding Company of such shareholder or
any Associated Company of such Holding Company;
"RELEVANT JURISDICTION" means each jurisdiction in which a member of the
Restricted Group is incorporated or formed or in which such member of the
Restricted Group has its principal place of business or owns any material
assets;
"RELEVANT PERSON" means UIH or any Subsidiary or Associated Company of UIH
(other than the Parent and its Subsidiaries and any Associated Companies of
the Parent which are its Associated Companies by virtue of being controlled
by the Parent or the Parent owning beneficially and/or legally directly or
indirectly 10 per cent. or more of the equity interest in such person);
"RELEVANT RESERVES" means the non-restricted capital reserves of members of
the Restricted Group incorporated in Austria created in mid-1995 in
connection with the corporate reorganisation of those entities which
reserves will be reduced during any financial year of such entity by the
amount of any amortisation of goodwill, created at such time as a result of
such reorganisation during such financial year;
"RELEVANT SUBSTANCE" means any substance whatsoever (whether in a solid or
liquid form or in the form of a gas or vapour and whether alone or in
combination with any other substance) or waste which is capable of causing
harm to man or any other living organism supported by the environment, or
damaging the environment or public health or welfare;
"RELEVANT TELEKABEL PERSON" means, other than the members of the Restricted
Group, any shareholder of any Telekabel Entity, any Subsidiary or
Associated Company of such shareholder or any Holding Company of such
shareholder or any Associated Company of such Holding Company;
20
"RESTRICTED GROUP" means the Parent and the Restricted Subsidiaries of the
Parent from time to time;
"RESTRICTED SUBSIDIARIES" means those Subsidiaries of the Parent whose
names, country of incorporation and principal place of business are set out
in part B of schedule 1 together with such Unrestricted Subsidiaries that
have become members of the Restricted Group pursuant to clause 11.1(t);
"RESTRUCTURING" means the proposed transfer for cash consideration (to be
financed by the Bridge Facility or left outstanding on inter-company
account which amounts will not be repayable to the Parent or Radio Public
whilst any amounts are outstanding under the Bridge Facility Agreement) of
the interests of Radio Public and the Parent in, and of the Borrowed Money
owing to the Parent by, the Unrestricted Group to the Bridge Borrower on
terms and conditions satisfactory to all of the Banks and, for the
avoidance of doubt, if the Banks agree that the consideration may be other
than cash, provided that subordination arrangements satisfactory to all the
Banks and have been entered into in relation to any Indebtedness owing from
the Parent to the Bridge Borrower as a result of all or part of the
proceeds of the Bridge Facility being on-lent to the Parent;
"RP SHARE SECURITY" means the share pledge given to the Security Trustee by
the Parent in respect of its shareholding in Radio Public in the agreed
form;
"S.A.R." means the stock appreciation right to be issued to Philips Media
Networks B.V. by the Parent as part of the consideration for the Philips
Transaction in accordance with the terms of the Securities Purchase and
Conversion Agreement;
"SECURITY DOCUMENTS" means the Share Securities, the Austrian Security
Document, the Norwegian Security Documents and the Security Trust Deed and
all other mortgages, charges, pledges, guarantees, inter-creditor
agreements or deeds and other instruments from time to time entered into in
favour of the Agent and/or the Security Trustee and/or the Banks by way of
guarantee or other assurance and/or security for or (in the case of inter-
creditor agreements) otherwise in relation to amounts owed to the Banks,
the Arranger, the Agent or the Security Trustee in respect of any
Indebtedness of the Borrowers or the Guarantors under this Agreement;
"SECURITY PROVIDERS" means those persons (other than Obligors) that have
entered into any of the Security Documents from time to time;
"SECURITIES PURCHASE AND CONVERSION AGREEMENT" means the securities
purchase and conversion agreement entered or to be entered into between
Philips Media B.V. (1), Philips Media Networks B.V. (2), UIH (3), Joint
Venture, Inc. (4) and the Parent (5), including all exhibits and schedules
thereto, in a form satisfactory to the Banks;
"SECURITY TRUSTEE" means the Agent in its capacity as security trustee for
the purposes of the Security Documents;
21
"SECURITY TRUST DEED" means the Security Trust Deed entered into or to be
entered into between the Banks, the Arrangers, the Agent, the Security
Trustee and each Obligor;
"SHARE SECURITIES" means the RP Share Security, the CNA Share Security and
the Norwegian Share Security and such other pledges/charges over shares in
any of the Obligors as may be executed in favour of the Security Trustee
from time to time as security for the obligations of the Obligors under
this Agreement;
"SIX MONTH PERIOD" means each period of six months ending on the last day
of a calendar month;
"STERLING" and "(Pounds)" mean the lawful currency for the time being of
the United Kingdom and in respect of all payments to be made under this
Agreement in Sterling mean immediately available, freely transferable
cleared funds;
"STOCK OPTION PLAN" means the stock option plan adopted by the Parent on
13th June 1996 and administered by Stichting Administratiekantoor UPC B.V.
pursuant to an agreement between Stichting Administratiekantoor UPC B.V.
and the Parent dated 13th June, 1996;
"SUBORDINATED CREDITOR" means any person who has, at any relevant time,
entered into a Deed of Subordination;
"SUBORDINATED DEBT" means at any relevant time, all Borrowed Money of the
Restricted Group owed to a Subordinated Creditor;
"SUBSIDIARY" of a person means any company or entity directly or indirectly
controlled by such person, for which purpose "CONTROL" means either
ownership of more than 50 per cent of the voting share capital (or
equivalent right of ownership) of such company or entity or power to direct
its policies and management whether by contract or otherwise;
"SUBSTITUTE" has the meaning given to it in clause 17.3;
"SUBSTITUTION CERTIFICATE" means a certificate substantially in the terms
of schedule 5;
"TAXES" includes all present and future taxes, levies, imposts, duties,
fees or charges of whatever nature together with interest thereon and
penalties in respect thereof and "TAXATION" shall be construed accordingly;
"TELECOMMUNICATIONS AND CABLE LAWS" means all laws, statutes, regulations
and judgments relating to telecommunications, cable television and data
services applicable to any member of the Restricted Group and/or the
business carried on by any member of the Restricted Group in any Relevant
Jurisdiction;
"TELEKABEL BOND" means the bearer bonds 1994-2003 issued by Telekabel Wien
in an aggregate nominal amount of BEF 3,863,750,000;
22
"TELEKABEL ENTITIES" means each of:
(a) Telekabel Wien;
(b) Telekabel-Fernsehnetz Region Baden Betriebsgesellschaft m.b.H, a
company incorporated in Austria with its corporate seat at A-2514
Traiskirchen, ▇▇▇▇▇▇▇▇▇▇ ▇▇, and with registration number FN 111149f;
(c) Telekabel-Fernsehnetz Wiener Neustadt/Neunkirchen Betriebsgesellschaft
m.b.H, a company incorporated in Austria with its corporate seat at ▇-
▇▇▇▇ ▇▇▇▇▇▇ Neustadt, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, and with registration
number FN 114170y;
(d) Telekabel Graz Gesellschaft m.b.H, a company incorporated in Austria
with its corporate seat at A-8020 Graz, Lazarettgurtel 81, and with
registration number FN 55555z;
(e) Telekabel Klagenfurt Gesellschaft m.b.H, a company incorporated in
Austria, with its corporate seat at ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Villacher
Strasse 161 and with registration number FN 99365a; and
(f) CNA;
"TELEKABEL NOTES" means the bearer bonds to be issued by Telekabel Wien in
respect of each Advance made to Telekabel Wien, in the form set out in
Schedule 14;
"TELEKABEL WIEN" means Telekabel Wien Gesellschaft m.b.H. a company
incorporated in Austria with its corporate seat at A-1100 Wien, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇, and with registration number FN 84116 a;
"TERM" means, in relation to an Advance, the period for which that Advance
is, or is to be, borrowed, as specified in the Drawdown Notice for such
Advance;
"TERMINATION DATE" means 30th September, 2006;
"TOTAL ANNUALISED NET OPERATING CASH FLOW" means twice the consolidated Net
Operating Cash Flow for all of the members of the Restricted Group in
respect of the most recently ended Six Month Period for the Restricted
Group in respect of which Monthly Management Accounts have been delivered
to the Agent under this Agreement;
"TOTAL COMMITMENTS" means at any relevant time the total of the Commitments
of all the Banks at such time;
"TOTAL DEBT" means the principal amount of all Borrowed Money of the
Restricted Group (other than Subordinated Debt made available by a Relevant
Person);
23
"TOTAL DEBT INTEREST CHARGES" means, in relation to any period, the total
amount of all interest, fees and commissions accruing in respect of Total
Debt during such period (having taken into account the effect of any
relevant hedging arrangements);
"UIH" means United International Holdings, Inc. a corporation incorporated
in the State of Delaware, United States of America and having its principal
place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.;
"UNRESTRICTED GROUP" means the Unrestricted Subsidiaries and the
Unrestricted Undertakings;
"UNRESTRICTED SUBSIDIARIES" means those Subsidiaries of the Parent which
are not Restricted Subsidiaries;
"UNRESTRICTED UNDERTAKINGS" means any person (other than the Restricted
Subsidiaries and Unrestricted Subsidiaries) in which UPC has the beneficial
ownership of 10 per cent. or more of the equity securities of such person
(either individually or as part of a group); and
"UPC PIK NOTES" means all of the outstanding 9.96% Series A Convertible
Notes due 2005 and all of the 10.03% Series B Convertible Notes due 2005
issued by the Parent to Philips Media B.V.
1.3 Headings
--------
Clause headings and the table of contents are inserted for convenience of
reference only and shall be ignored in the interpretation of this
Agreement.
1.4 Construction of certain terms
-----------------------------
In this Agreement, unless the context otherwise requires:
(a) references to clauses and schedules are to be construed as references
to the clauses of, and schedules to, this Agreement and references to
this Agreement include its schedules;
(b) references to (or to any specified provision of) this Agreement or any
other document shall be construed as references to this Agreement,
that provision or that document as in force for the time being and as
from time to time amended in accordance with its terms, or, as the
case may be, with the agreement of the relevant parties and (where
such consent is, by the terms of this Agreement or the relevant
document, required to be obtained as a condition to such amendment
being permitted) the prior written consent of the Agent, all of the
Banks or the Majority Banks (as the case may be);
(c) references to a "REGULATION" include any present or future regulation,
rule, directive, requirement, request or guideline (whether or not
having the force of law) of any agency, authority, central bank or
government
24
department or any self-regulatory or other national or supra-national
authority;
(d) words importing the plural shall include the singular and vice versa;
(e) references to a time of day are to London time;
(f) references to a "PERSON" shall be construed as including references to
an individual, firm, company, corporation, unincorporated body of
persons or any State or any of its agencies;
(g) references to "ASSETS" include all or part of any business,
undertaking, real property, personal property, uncalled capital and
any rights (whether actual or contingent, present or future) to
receive, or require delivery of, any of the foregoing;
(h) references to a "GUARANTEE" include references to an indemnity or
other assurance against financial loss including, without limitation,
an obligation to purchase assets or services as a consequence of a
default by any other person to pay any Indebtedness and "GUARANTEED"
shall be construed accordingly;
(i) references to the "EQUIVALENT" of an amount specified in a particular
currency (the "SPECIFIED CURRENCY AMOUNT") shall be construed as a
reference to the amount of the other relevant currency which can be
purchased with the specified currency amount in the London foreign
exchange market at or about 11 a.m. on the day on which the
calculation falls to be made for spot delivery as determined by the
Agent;
(j) references to the "agreed form" means, in relation to any document,
the form of such document as shall have been agreed between the Parent
and the Agent (acting for and on behalf of all of the Banks);
(k) references to any enactment shall be deemed to include references to
such enactment as re-enacted, amended or extended; and
(l) references to this "AGREEMENT" include (i) any supplemental agreement
entered into in respect of this Agreement and (ii) all Telekabel Notes
issued under this Agreement and references to sums payable under this
Agreement include sums payable under all Telekabel Notes.
1.5 Majority Banks
--------------
Where this Agreement provides for any matter to be determined by reference
to the opinion of the Majority Banks or to be subject to the consent or
request of the Majority Banks or for any action to be taken on the
instructions of the Majority Banks, such opinion, consent, request or
instructions shall (as between the Banks) only be regarded as having been
validly given or issued by the Majority Banks if all the Banks shall have
received prior notice of the matter on which such opinion, consent, request
or instructions are required to
25
be obtained and the relevant majority of Banks shall have given or issued
such opinion, consent, request or instructions but so that (as between the
Borrowers and the Banks), once informed by the Agent that such opinion,
consent, request or instructions have been given, the Borrowers shall be
entitled (and bound) to assume that such notice shall have been duly
received by each Bank and that the relevant majority shall have been
obtained to constitute Majority Banks whether or not this is in fact the
case.
1.6 Agent's opinion
---------------
Where this Agreement provides for the Agent's opinion to determine whether
any matter would or is reasonably likely to have a Material Adverse Effect
and/or a material adverse effect, as the case may be, the Agent shall act
in accordance with the instructions of the Majority Banks in making such
determination.
26
2 THE FACILITY
------------
2.1 Amount
------
The Banks, relying upon each of the representations and warranties in
clause 10 agree to lend to the Borrowers upon and subject to the terms of
this Agreement the principal sum of up to NLG 1,100,000,000 or the
equivalent in Optional Currencies (of which, for the avoidance of doubt,
the Norwegian Borrowers may not borrow more than the Norwegian Loan Amount
and which shall include, for the avoidance of doubt, the amounts borrowed
by Telekabel Wien against the issue of Telekabel Notes). The obligation of
each Bank under this Agreement shall be to contribute that proportion of
each Advance which, as at the Drawdown Date of such Advance, its Commitment
bears to the Total Commitments.
2.2 Obligations several
-------------------
The obligations of each Bank under this Agreement are several; the failure
of any Bank to perform such obligations shall not relieve any other Bank,
the Arranger, the Security Trustee, the Agent or any Obligor of any of
their respective obligations or liabilities under this Agreement nor shall
the Agent, the Security Trustee or the Arranger be responsible for the
obligations of any Bank (except for its own obligations, if any, as a Bank)
nor shall any Bank be responsible for the obligations of any other Bank
under this Agreement.
2.3 Interests several
-----------------
Notwithstanding any other term of this Agreement (but without prejudice to
the provisions of this Agreement relating to or requiring action by the
Majority Banks) the interests of the Agent, the Security Trustee, the
Arranger and the Banks are several and the amount due to the Agent (for its
own account), to the Arranger, to the Security Trustee and to each Bank is
a separate and independent debt. The Agent, the Security Trustee, the
Arranger and each Bank shall have the right to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for the
Agent, the Security Trustee, the Arranger or any Bank (as the case may be)
to be joined as an additional party in any proceedings for this purpose.
2.4 Telekabel Wien's interests several
----------------------------------
For the avoidance of doubt, every obligation of Telekabel Wien under this
Agreement is several and it is acknowledged by all parties that Telekabel
Wien save for its obligations under the Guarantee, is not liable for any
obligations of any other Obligor under this Agreement.
27
3 CONDITIONS
----------
3.1 Documents and evidence
----------------------
(a) Subject to clause 3.1(b) and clause 3.1(c), the obligation of each
Bank to make its Commitment available shall be subject to the
condition that the Agent, or its duly authorised representative, shall
have received, not later than two Banking Days before the day on which
the first Advance is to be made, the documents and evidence specified
in part A of schedule 3 in form and substance satisfactory to all of
the Banks.
(b) The obligation of each Bank to contribute to the Philips Advance is
subject to the further condition that the Agent, or its duly
authorised representative, shall have received, no later than three
Banking Days before the day on which the Drawdown Notice in respect of
the Philips Advance is given, the documents and evidence specified in
part B of schedule 3 in form and substance satisfactory to all of the
Banks together with either the documents and evidence set out in
schedule 3 part C or schedule 3 part D each in form and substance
satisfactory to all the Banks.
(c) The obligation of each Bank to contribute to the first Advance to the
Norwegian Borrowers shall be subject to the further condition that the
Agent, or its duly authorised representative, shall have received, no
later than three Banking Days before the day on which the Drawdown
Notice in respect of such Advance is given, (i) (if the Norwegian
Merger has occurred by such date), the documents and evidence
specified in part C of schedule 3 or (ii) (if the Norwegian Merger has
not occurred by such date) the documents and evidence set out in
schedule 3 part D, in each case in form and substance satisfactory to
the Banks.
3.2 General conditions precedent
----------------------------
If, following the making of an Advance, the Loan will exceed the Loan
immediately prior to the making of such Advance (taking into account any
other Advances or part thereof scheduled to be made or repaid or prepaid on
the date of such Advance) the obligation of each Bank to contribute to any
Advance is subject to the further conditions that at the date of each
Drawdown Notice and on each Drawdown Date:
(a) the representations and warranties set out in clause 10.1 to be
repeated in accordance with clause 10.3 are true and correct on and as
of each such date as if each were made with respect to the facts and
circumstances existing at such date; and
(b) no Default shall have occurred and be continuing or would result from
the making of such Advance.
28
However, in the case of the drawing of an Advance which would not, if
drawn, cause the aggregate Guilder Amount of Advances outstanding after
such drawing to exceed the aggregate Guilder Amount of Advances outstanding
prior to that drawing (after taking account of any repayment made on the
date of such drawing):
(i) clause 3.2(a) shall apply only if the incorrectness would be
reasonably likely to have a material adverse effect on the ability of
any Borrower to perform its obligations under this Agreement or on the
financial position of the Parent and its Subsidiaries taken as a
whole; and
(ii) clause 3.2(b) shall not apply if the Term of the relevant Advance is
one month.
Nothing in this clause 3.2 shall be construed as constituting a waiver of
any right of the Banks (including, without limitation, their rights under
clause 13.2) arising from any Event of Default which shall have occurred
and be outstanding at the time of the drawing of the relevant Advance.
3.3 Waiver of conditions precedent
------------------------------
The conditions specified in this clause 3 are inserted solely for the
benefit of the Banks and may be waived on their behalf in whole or in part
and with or without conditions by the Agent acting on the instructions of
all of the Banks in respect of the first Advance, the Philips Advance, and
the first Advance to the Norwegian Borrowers and on the instructions of the
Majority Banks with respect to any other Advances without prejudicing the
right of the Agent acting on such instructions to require fulfilment of
such conditions in whole or in part in respect of any other Advance.
3.4 Notification
------------
The Agent shall notify the Banks and the Parent promptly after receipt by
it of the documents and evidence referred to in clause 3.1 in form and
substance satisfactory to it.
3.5 New ▇▇▇▇▇
---------
(a) Contemporaneously with the completion of the Norwegian Merger, the
Parent shall procure that New ▇▇▇▇▇ and/or the Parent delivers to the
Agent the documents and evidence listed in part B of schedule 11
together with such other documents, evidence and legal opinions as the
Agent shall require so that New ▇▇▇▇▇ assumes all obligations then
owed to the Agent, the Arranger, the Security Trustee and the Banks by
Norkabel provided that such obligations shall not exceed the Norwegian
Loan Amount.
(b) On confirmation by the Agent to the Banks that it has received all of
the documents referred to in paragraph (a) above in form and substance
29
satisfactory to it, New ▇▇▇▇▇ shall become the sole Norwegian
Borrower under this Agreement provided that it shall not be permitted
to borrow in excess of the Norwegian Loan Amount and such of Norkabel
and its Subsidiaries as were, prior to the date of the Norwegian
Merger, Borrowers and/or Guarantors shall cease to be Borrowers
and/or Guarantors under this Agreement. Delivery of a Deed of
Borrower Accession executed by the Parent and New ▇▇▇▇▇ constitutes
confirmation by New ▇▇▇▇▇ and the Parent that the representations and
warranties set out in clause 10 and to be made by them on the date of
the Deed of Borrower Accession are correct, as if made with reference
to the facts and circumstances then existing.
Each Bank irrevocably authorises the Agent to execute any duly
executed Deed of Borrower Accession on its behalf and each other
Obligor irrevocably authorises the Parent to execute any Deed of
Borrower Accession on its behalf.
3.6 Conditions subsequent
---------------------
The Parent undertakes to procure that:
(a) prior to the earlier to occur of the date of the Philips Advance or
the date of the first Advance made to the Norwegian Borrowers the
constitutional documents of CNA shall be amended to a form
satisfactory to the Agent; and
((b)) ((i)) resolutions of the supervisory board of Telekabel Wien shall
be provided to the Agent approving the terms and conditions of
this Agreement (as amended) and the Austrian Security Document
on or before 12th December 1997; and
(ii) on or before 12th December, 1997 there is delivered to the
Agent the Austrian Security Document and such other documents
as the Agent may require, each duly executed and delivered by
Telekabel Wien, together with such other documents, evidence
and legal opinions as the Agent shall require to ensure that
Telekabel Wien becomes a Borrower and a Guarantor under this
Agreement.
Provided that if the Parent fails to comply with either of the above
undertakings, in whole or in part, without prejudice to any other rights or
remedies available to the Agent, the Security Trustee, the Arranger, the
Banks (or any of them) such failure shall constitute an immediate Event of
Default and the Agent shall be entitled to exercise its rights under clause
13.2. Provided further that until such time as the undertakings set out in
clause 3.6 have been complied with, save with the agreement of all of the
Banks, none of the Banks shall be under any
30
obligation to make any Advance other than the Advance referred to in clause
4.9(A).
31
4 ADVANCES; CURRENCIES
--------------------
4.1 Maximum Outstandings
--------------------
(a) Prior to the date of the Philips Advance and subject to the provisions
of clause 4.10, the principal amount of Advances outstanding under the
Facility shall not exceed (i) if the first Advance to a Norwegian
Borrower shall not have been made, NLG 360,000,000 or, (ii) if the
first Advance to a Norwegian Borrower shall have been made, NLG
550,000,000, or, in each case, the equivalent in Optional Currencies.
On each Quarter Day and each Drawdown Date prior to the date on which
the Philips Advance is made, the amount of Total Debt shall not exceed
five times Total Annualised Net Operating Cash Flow (as determined by
reference to the most recently delivered Monthly Management Accounts
at such time) and no Advances (other than the Philips Advance in
accordance with the provisions of clause 4.10) shall be made if,
following the making of such Advance, such limit would be exceeded.
(b) On and from the date of the Philips Advance, the principal amount of
Advances outstanding under the Facility shall not exceed NLG
1,100,000,000 or the equivalent in Optional Currencies. On each
Quarter Day and each Drawdown Date falling within the period set out
in column (I) below, the amount of Total Debt shall not exceed the
multiple of Cable TV Annualised Net Operating Cash Flow or Total
Annualised Net Operating Cash Flow, as the case may be, (each as
determined by reference to the most recently delivered Monthly
Management Accounts at such time) set out against such period in
column (II) and column (III) below, and no Advances shall be made if,
following the making of such Advance, such limit would be exceeded:
==================================================================================================
(I) (II) (III)
Period Multiple of Cable TV Multiple of Total
Annualised Net Annualised Net
Operating Cash Flow Operating Cash Flow
--------------------------------------------------------------------------------------------------
Up to (but excluding) Completion of the Initial
Equity Raise 7 8.25
--------------------------------------------------------------------------------------------------
From (and including) Completion of the Initial
Equity Raise to (and including) 30th June 1999 6.25 7.5
--------------------------------------------------------------------------------------------------
From (and including) 1st July 1999 to (and
including) 30th September 1999 6.5 8
--------------------------------------------------------------------------------------------------
From (and including) 1st October 1999 to (and 6.75 8
including) 31st December 1999
32
--------------------------------------------------------------------------------------------------
From (and including) 1st January 2000 to (and 6 6
including) 31st December 2000
--------------------------------------------------------------------------------------------------
From (and including) 1st January 2001 to (and 5 6
including) 31st December 2001
--------------------------------------------------------------------------------------------------
From (and including) 1st January 2002 to (and 4 4
including) 31st December 2002
--------------------------------------------------------------------------------------------------
Thereafter 3 3
==================================================================================================
4.2 Drawdown
--------
Subject to the terms and conditions of this Agreement, an Advance shall be
made available to a Borrower following receipt by the Agent from such
Borrower of a Drawdown Notice not later than 10 a.m. on the third Banking
Day before the proposed Drawdown Date. A Drawdown Notice shall be
effective on actual receipt by the Agent and, once given, shall, subject as
provided in clause 5.6(a), be irrevocable.
4.3 Amount and Term
---------------
Each Advance shall be:
(a) of a Guilder Amount which is a minimum of NLG 10,000,000 and, in the
case of Advances to be made in Guilders, an integral multiple of NLG
5,000,000, or the balance of the Commitments;
(b) denominated in one currency only; and
(c) borrowed for a Term of one, two, three or six months (or, with the
prior agreement of all of the Banks, such other period as the Parent
may select) ending on or before the Termination Date.
4.4 Selection of currencies
-----------------------
Subject to the provisions of clause 4.5, if a Borrower so requests in the
Drawdown Notice for an Advance, such Advance may be drawn down in an
Optional Currency.
4.5 Limit on currencies; non-availability
-------------------------------------
An Advance may not be drawn down in an Optional Currency if (a) in
consequence thereof there would be Advances outstanding in more than 5
different currencies or (b) any Bank reasonably determines that deposits of
such Optional Currency are not readily available to such Bank in an amount
comparable with such Bank's portion of the relevant Advance and so notifies
the Agent not later than 3 p.m. on the third Banking Day before the
proposed Drawdown Date or (c) the Agent determines after consultation with
the Reference Banks (which determination shall be conclusive) at any time
prior to
33
10 a.m. (local time in the place of payment) on the Drawdown Date
that by reason of any change in currency availability, currency exchange
rates or exchange controls it is or will be impracticable for the relevant
Advance to be drawn down in that Optional Currency. Accordingly, in any
such event, the relevant Advance shall be drawn down in Guilders.
4.6 Currency Amounts
----------------
If an Advance is to be drawn down in an Optional Currency, the Banks shall,
subject to clause 3.2, advance to the relevant Borrower on drawdown of such
Advance, the amount of such Optional Currency requested. The Guilder
Amount of such Advance shall be the amount of Guilders (as determined by
the Agent) which would be required to purchase the amount of such Optional
Currency at the average of the spot rates of exchange quoted to the Agent
by the Reference Banks to be ruling in the London Foreign Exchange Market
for the purchase of such Optional Currency with Guilders on receipt of the
relevant Drawdown Notice. If an Advance is to be drawn down in Guilders,
the Banks shall, subject to clause 3.2, advance to the relevant Borrower on
drawdown of such Advance, the Guilder Amount of such Advance.
4.7 Notification to Banks
---------------------
As soon as practicable after receipt of a Drawdown Notice complying with
the terms of this Agreement the Agent shall notify each Bank and, subject
to clause 3, each of the Banks shall on the Drawdown Date make available to
the Agent its portion of the relevant Advance in accordance with clause
8.2. If an Advance is to be drawn down in an Optional Currency the amount
to be advanced to the relevant Borrower under this clause 4.7 shall be the
amount of such Optional Currency specified in the relevant Drawdown Notice.
If an Advance is to be drawn down in Guilders, the amount to be advanced to
the relevant Borrower under this clause 4.7 shall be the Guilder Amount of
that Advance.
4.8 Application of proceeds
-----------------------
Without prejudice to the Borrowers' obligations under clause 11.1(c), or
clause 4.9 and 4.10, none of the Banks, the Arranger, the Security Trustee
or the Agent shall have any responsibility for the application of the
proceeds of any Advance by any Borrower.
4.9 Initial Advances
----------------
(A) Refinancing the Existing UPC Facility
-------------------------------------
Subject to the provisions of clause 3.1(a), the Borrowers undertake to
comply with the terms of this clause 4 so as to ensure that a Drawdown
Notice is delivered for an Advance to be made on or before 10th
October 1997 (or such other date as may be agreed by the Agent) by the
Parent in an amount not less than the aggregate of the amount
certified to the Parent by the Agent to be equal to the principal
amount outstanding
34
under the Existing UPC Facility together with all unpaid interest
thereon and any other amounts payable in relation thereto.
The Borrowers irrevocably authorise the Agent, and the Agent agrees,
to apply that part of such Advance as is equal to the amount so
certified in discharge of the Parent's obligations in respect of the
Existing UPC Facility and the Agent's obligations under clause 8.2 in
respect of such Advance shall be to remit the balance following such
discharge (if any) to the Parent forthwith.
Unless and until the Existing UPC Facility has been repaid in full and
cancelled and all (if any) security granted in connection therewith
has been unconditionally discharged in full to the satisfaction of the
Agent or has been assigned or transferred to the Security Trustee, no
further Advances may be made to the Borrowers hereunder.
(B) Refinancing the Existing Norkabel Facility
------------------------------------------
Subject to the provisions of clause 3.1(a) and clause 3.1(c), the
Borrowers undertake to comply with the terms of this clause 4 so as to
ensure that, on the earliest of (i) the date of the Norwegian Merger,
(ii) the date falling three Banking Days prior to the date of the
Philips Advance or (iii) 12th December 1997 (or such other date as may
be agreed by the Agent) a Drawdown Notice is delivered to the Agent by
(i) (if the Norwegian Merger has not occurred) Norkabel or (ii) (if
the Norwegian Merger has occurred) New ▇▇▇▇▇ in an amount not less
than the aggregate of the principal amount certified by the Agent to
the Parent and the relevant Norwegian Borrower to be equal to the
principal amount outstanding under the Existing Norkabel Facility
together with all unpaid interest thereon and any other amounts
payable in relation thereto.
The Borrowers irrevocably authorise the Agent, and the Agent agrees,
to apply that part of such Advance as is equal to the amount so
certified in discharge of Norkabel's obligations in respect of the
Existing Norkabel Facility, and the Agent's obligations under clause
8.2 in respect of such Advance shall be to remit the balance following
such discharge (if any) to the relevant Norwegian Borrower forthwith.
After the earliest of (i) the date of the Norwegian Merger, (ii) the
date falling three Banking Days prior to the date of the Philips
Advance or (iii) 12th December 1997 (or such other date as may be
agreed by the Agent), unless and until the Existing Norkabel Facility
has been repaid in full and cancelled and all or any security granted
in connection therewith has been assigned or transferred to the
Security Trustee to the satisfaction of the Agent no further Advances
may be made if, following the making of such Advance, the Loan would
exceed the Loan immediately prior to such Advance.
35
4.10 Philips Advance
---------------
(a) Subject to the provisions of clause 3.1(b), the Borrowers undertake to
comply with the terms of this clause 4 so as to ensure that the
Philips Advance is made on or before the date falling 90 days after
the date of the first Advance (or such other date as may be agreed by
the Agent acting on the instructions of all of the Banks) and to
ensure that the Philips Advance is in an amount not less than an
amount which, when aggregated with the amount of the Bridge Facility
which the Bridge Borrower has used in satisfaction of the
consideration payable to the Parent for the purchase of the interests
in the Unrestricted Group pursuant to the Restructuring and any other
funds available to the Parent (if any), is certified by the Parent to
the Agent to be sufficient to consummate the Philips Transaction in
accordance with the terms of the Securities Purchase and Conversion
Agreement.
The Borrowers irrevocably authorise the Agent to apply that part of
the Philips Advance so certified in discharge of the Parent's
obligations in respect of the Securities Purchase and Conversion
Agreement and the Agent's obligations under clause 8.2 in respect of
the Philips Advance shall be to remit the balance following such
discharge (if any) to the Parent forthwith. Unless and until the
Philips Advance has been made no further Advances may be made if,
following the making of such Advance, the Loan would exceed the amount
set out in clause 4.1(a).
(b) If the Philips Advance has not been made on or before the date falling
90 days after the date of the first Advance made under the Facility
(or such other date as may be agreed by the Agent acting on the
instructions of all of the Banks), then the Agent (acting on the
instructions of all of the Banks) and the Parent shall seek to
renegotiate the terms and conditions of the Facility in good faith. If
the Philips Advance has not been made on or before the date falling
180 days after the date of the first Advance (or such other date as
may be agreed by the Agent acting on the instructions of all of the
Banks) then there shall be an Event of Default and the Agent shall be
entitled to exercise all of its rights under clause 13.2.
4.11 Telekabel Bond
--------------
Subject to the Agent receiving confirmation that the Telekabel Bond has
been delivered to the Parent, and subject to the provisions of clause 3.6,
on the date that the Philips Advance is made (or as soon as possible
thereafter), the Borrowers undertake to comply with the terms of this
clause 4 so as to ensure that an Advance is made to Telekabel Wien (the
"TELEKABEL ADVANCE") in an amount not less than the amount equal to the
principal amount outstanding under the Telekabel Bond together with all
unpaid interest thereon and any other amounts payable in relation thereto.
36
The Borrowers irrevocably authorise the Agent, and the Agent agrees, to
apply that part of the Telekabel Advance as is equal to the amount required
to redeem the Telekabel Bond in full in discharge of Telekabel Wien
obligations in respect of the Telekabel Bond and the Agent's obligations
under clause 8.2 in respect of such Advance shall be to remit the balance
following such discharge (if any) to Telekabel Wien forthwith. Following
the date of the Philips Advance unless and until the Telekabel Advance has
been made, no further Advances (other than the Advance referred to in
clause 4.9(B)) may be made if, following the making of such Advance, the
Loan would exceed the Loan immediately prior to the making of such Advance.
4.12 Subsidiary Drawings
-------------------
The Parent shall not be permitted to on-lend any funds drawn down by the
Parent under the Facility to Telekabel Wien or the Norwegian Borrowers
without the consent of the Majority Banks. Telekabel Wien and the
Norwegian Borrowers undertake that such funds as they may respectively
require for the purposes set out in clause 1.1 shall be drawn by them
direct from the Banks in accordance with the terms of this Agreement
(provided that, in the case of the Norwegian Borrowers, the Norwegian Loan
Amount shall not be exceeded).
4.13 Refinancing the ▇▇▇▇▇ Loan Agreement
------------------------------------
Subject to the provisions of clause 3.1 and provided that the Agent shall
have received the documents and evidence specified in part B of schedule
11, the Parent shall procure that on or prior to 30th June, 2000 New ▇▇▇▇▇
shall refinance the principal amount of the Indebtedness of New ▇▇▇▇▇ under
the ▇▇▇▇▇ Loan Agreement as at the date of this Agreement by Advances under
this Agreement (the "NEW ▇▇▇▇▇ ADVANCES") or, if this is not legally
possible at such time, New ▇▇▇▇▇ shall have entered into such other
arrangements as are acceptable to the Majority Banks.
The Borrowers irrevocably authorise the Agent, and the Agent agrees, to
apply the New ▇▇▇▇▇ Advances in discharge of New ▇▇▇▇▇'▇ obligations in
respect of the ▇▇▇▇▇ Loan Agreement and the Agent's obligations under
clause 8.2 in respect of such Advance shall be to remit the balance
following such discharge (if any) to New ▇▇▇▇▇ forthwith.
The first New ▇▇▇▇▇ Advance shall not be made unless the Parent has
provided the Agent with a legal opinion of Norwegian counsel, acceptable to
the Banks stating that the making of such New ▇▇▇▇▇ Advance will not
adversely affect the security position of the Banks or the liability of the
Norwegian Borrower (or any remaining Norwegian Guarantors, as the case may
be) under the Agreement and will not contravene any provision of Norwegian
law. If the Parent is unable to provide such legal opinion, the Parent and
New ▇▇▇▇▇ shall enter into such other arrangements as may be acceptable to
the Majority Banks.
37
4.14 Telekabel Notes
---------------
Each borrowing of a portion of the Commitments to be made by Telekabel Wien
under this Agreement shall be made against the issue by Telekabel Wien of a
Telekabel Note to the Agent.
At the same time as and together with a Drawdown Notice in connection with
any such Advance to be made to Telekabel Wien, Telekabel Wien shall deliver
to the Agent an original Telekabel Note the details set out in which shall
correspond to the details of the Advance described in such Drawdown Notice.
The Banks shall be under no obligation to make any funds available to
Telekabel Wien unless the Agent shall have received such Telekabel Note in
a form satisfactory to it.
Telekabel Wien hereby authorises the Agent to complete the provisions in
each Telekabel Note relating to the calculation of interest payable in
connection therewith.
On the condition that the relevant Telekabel Note has been duly completed
and executed and provided that the conditions set out in clause 3 have been
satisfied, the Banks shall contribute to the Advance to be made to
Telekabel Wien against the relevant Telekabel Note in accordance with the
provisions of clauses 4.2 to 4.8 (inclusive).
The Agent shall hold each Telekabel Note for and on behalf of the Banks and
shall not part with possession of such Telekabel Note without the consent
of the Banks. All payments received by the Agent under any Telekabel Note
shall be applied in accordance with the provisions of clause 8. For the
avoidance of doubt, for the purposes of the Security Trust Deed, all
indebtedness of Telekabel Wien under Telekabel Notes shall constitute
"Senior Indebtedness" (as defined in the Security Trust Deed).
The Agent shall be entitled to place all Telekabel Notes deposited with it
in any safe deposit, safe or receptacle selected by the Agent and the Agent
shall not be responsible for any loss incurred in connection with any such
deposit.
5 INTEREST; ALTERNATIVE INTEREST RATES
------------------------------------
5.1 Normal interest rate
--------------------
The Borrowers shall pay interest on each Advance made to them on such
Advance's Maturity Date (or, in the case of an Advance having a Term of
more than six months, by instalments, every six months from the Drawdown
Date of such Advance and on the relevant Maturity Date) at the rate per
annum determined by the Agent to be the aggregate of (a) the applicable
Margin, (b) (in the case of Advances in Sterling) the Additional Cost and
(c) LIBOR.
38
5.2 Applicable Margin
-----------------
(A) Subject to sub-clauses (B) and (C) below, the Margin in relation to any
Advance and any unpaid sum due under this Agreement under clause 5.3 shall
(subject to the proviso below) be the rate set out in column (I) below
against the ratio of Total Debt to Total Annualised Net Operating Cash Flow
(as shown in the most recently delivered Quarterly Management Accounts and
Compliance Certificate delivered to the Agent prior to, first day of the
relevant Term or, in relation to any unpaid sum due under this Agreement
under clause 5.3, the first day of the relevant period determined in
accordance with clause 5.3) set out in column (II) below as at the first
day of the Term of such Advance or period in respect of which interest is
payable in accordance with clause 5.3 (as the case may be):
(I) (II)
Rate (per cent. Ratio of Total Debt to
--------------- ----------------------
per annum) Total Annualised
------------ ----------------
Net Operating Cash Flow
-----------------------
2.00 8:1 or greater
1.75 at least 6.5:1 but less than 8:1
1.25 at least 5:1 but less than 6.5:1
1.00 at least 4:1 but less than 5:1
0.75 at least 3:1 but less than 4:1
0.50 less than 3:1
provided that (i) if on the relevant date on which the Margin is to be
determined the Philips Advance has not been made then the Margin for such
Advance and/or such unpaid sum shall be 2.00 per cent. per annum, and (ii)
until such time as the Parent shall have delivered to the Agent Quarterly
Management Accounts (relating to any Quarter ending on 31st December 1997
or later) and a Compliance Certificate relating thereto which indicate that
a lower Margin is applicable, the Margin for each Advance shall be 2.00 per
cent. per annum.
(B) The Margin in relation to any Advance or any unpaid sum outstanding on the
date of Completion of the Initial Equity Raise shall from (and including)
such date be 2.00 per cent. per annum.
(C) The Margin in relation to any Advance made or unpaid sum which becomes due
on or after the date of Completion of the Initial Equity Raise shall be
2.00 per cent. per annum.
5.3 Interest for late payment
-------------------------
If any Borrower fails to pay any sum (including, without limitation, any
sum payable pursuant to this clause 5.3 on its due date for payment under
this Agreement) the relevant Borrower shall pay interest on such sum from
the due date up to the date of actual payment (as well after as before
judgment) at a rate determined by the Agent pursuant to this clause 5.3.
The period beginning on
39
such due date and ending on such date of payment shall be divided into
successive periods of not more than three months as selected by the Agent
(after consultation with the Banks so far as reasonably practicable in the
circumstances) each of which (other than the first, which shall commence on
such due date) shall commence on the last day of the preceding such period.
The rate of interest applicable to each such period shall be the aggregate
(as determined by the Agent) of (a) one per cent per annum, (b) the
applicable Margin, (c) (in the case of amounts in Sterling) the Additional
Cost and (d) LIBOR, unless such unpaid sum is an amount of principal which
shall have become due and payable, by reason of a declaration by the Agent
under clause 13.2(b) or a prepayment pursuant to clauses 6.3 or 15.1, prior
to the Maturity Date relating thereto, in which case the first such period
selected by the Agent shall end on such Maturity Date and interest shall be
payable on such unpaid sum during such period at a rate one per cent above
the rate applicable thereto immediately before it shall have become so due
and payable. Interest under this clause 5.3 shall be due and payable on the
last day of each period determined by the Agent pursuant to this clause 5.3
or, if earlier, on the date on which the sum in respect of which such
interest is accruing shall actually be paid. If, for the reasons specified
in clause 5.6(a)(i) or 5.6(a)(ii), the Agent is unable to determine a rate
in accordance with the foregoing provisions of this clause 5.3, each Bank
shall promptly notify the Agent of the cost of funds to such Bank and
interest on any sum not paid on its due date for payment shall be
calculated for each Bank at a rate determined by the Agent to be one per
cent per annum above the aggregate of the Margin and the cost of funds
(including, in the case of amounts in Sterling, Additional Cost) to such
Bank.
5.4 Notification of interest rate
-----------------------------
The Agent shall notify the Parent, the relevant Borrower and the Banks
promptly of each rate of interest determined by it under this clause 5.
5.5 Reference Bank quotations
-------------------------
If any Reference Bank is unable or otherwise fails to furnish a quotation
for the purpose of calculating LIBOR, the interest rate for the relevant
Term or other period shall be determined, subject to clause 5.6, on the
basis of the quotations furnished by the remaining Reference Banks.
5.6 Market disruption; non-availability
-----------------------------------
(a) If and whenever, at any time prior to the making of an Advance the
London interbank offered rates for deposits of the currency in
question for the relevant period are not displayed on the relevant
page of the ▇▇▇▇▇▇ Monitor Money Rates Service (or any replacement
therefor) and:
(i) the Agent shall have determined, after consultation with the
Reference Banks (which determination shall, in the absence of
manifest error, be conclusive), that adequate and fair means do
not exist for ascertaining LIBOR during such Term; or
40
(ii) none or only one of the Reference Banks supplies the Agent with
a quotation for the purpose of calculating LIBOR; or
(iii) the Agent shall have received notification from Banks with
Contributions aggregating not less than one-third of the total
of the Advances (or, prior to the first Drawdown Date,
Commitments aggregating not less than one-third of the Total
Commitments) that deposits in Guilders are not available to
such Banks in the London Interbank Market in the ordinary
course of business in sufficient amounts to fund their
Contributions to such Advance or that LIBOR does not accurately
reflect the cost to such Banks of obtaining such deposits;
the Agent shall forthwith give notice (a "DETERMINATION NOTICE") to
the Parent and to each of the Banks and such Advance shall not be
made. A Determination Notice shall contain particulars of the
relevant circumstances giving rise to its issue.
(b) After the giving of any Determination Notice the undrawn amount of the
Total Commitments shall not be borrowed until the circumstances giving
rise to the issue of the Determination Notice have ceased.
(c) During the period of 10 days after any Determination Notice has been
given by the Agent under clause 5.6(a), each Bank shall certify an
alternative basis (the "SUBSTITUTE BASIS") for making available or, as
the case may be, maintaining its contribution to the Advance. The
Substitute Basis may (without limitation) include alternative interest
periods, alternative currencies or alternative rates of interest but
shall include a margin above the cost of funds including Additional
Cost, if any, to such Bank equivalent to the Margin. Each Substitute
Basis so certified shall be binding upon the Borrowers and shall take
effect in accordance with its terms from the date specified in the
Determination Notice until such time as none of the circumstances
specified in clause 5.6 (a) continues to exist whereupon the normal
interest rate fixing provisions of this Agreement shall apply.
41
6 REPAYMENT, PREPAYMENT AND CANCELLATION
--------------------------------------
6.1 Repayment
---------
The Borrowers shall repay each Advance on its Maturity Date in the currency
in which it is denominated. If an advance (the "NEW ADVANCE") is to be
made on a day on which another Advance (the "MATURING ADVANCE") denominated
in the same currency as the new Advance is due to be repaid by the same
Borrower then, subject to the terms of this Agreement and so long as the
conditions referred to in clause 3.2 shall have been satisfied in relation
to the new Advance, (a) the maturing Advance shall be deemed to have been
repaid on its Maturity Date either in whole (if the new Advance is equal to
or greater than the maturing Advance) or in part (if the new Advance is
less than the maturing Advance) and (b) to the extent that the maturing
Advance is so deemed to have been repaid, the principal amount of the new
Advance to be made on such date shall be deemed to have been credited to
the account of the relevant Borrower by the Agent on behalf of the Banks in
accordance with the terms of this Agreement and the Banks shall only be
obliged to make available to the relevant Borrower pursuant to clause 4.6 a
principal amount equal to the amount by which the new Advance exceeds the
maturing Advance. On the Termination Date, all outstanding Advances and
other sums (if any) then owing under this Agreement shall in any event be
repaid or paid in full.
6.2 Voluntary prepayment
--------------------
The Borrowers may, without premium or penalty, prepay any Advance (in whole
or in part provided that, in the case of part, the Guilder Amount of such
part is a minimum of NLG 10,000,000 and, in the case of Advances made in
Guilders, an integral multiple of NLG 10,000,000) at any time subject to
the provisions of this clause 6.
6.3 Additional voluntary prepayment
-------------------------------
Any Borrower may also prepay (in whole but not in part only), without
premium or penalty, but without prejudice to its obligations under clauses
5.6, 8.5 and 15.2, the Contribution of any Bank to which such Borrower
shall have become obliged to pay additional amounts under clause 5.6, 8.5
or 15.2. Upon any notice of such prepayment being given, the Commitment of
the relevant Bank shall be reduced to zero and the amount of the Total
Commitments shall be reduced accordingly.
6.4 Amounts payable on prepayment
-----------------------------
Any prepayment under this Agreement shall be made in the currency in which
the relevant Advance is then denominated together with: (a) accrued
interest to the date of prepayment; (b) any additional amount payable under
clause 5.6, 8.5 or 15.2; and (c) all other sums payable by the relevant
Borrower to the relevant Bank under this Agreement including, without
limitation, any accrued commitment commission payable under clause 7.1(c)
on any undrawn amount
42
that is cancelled at the same time as such prepayment and any amounts
payable under clause 14.1.
6.5 Mandatory prepayment, Excess Cash Flow recapture and cancellation
-----------------------------------------------------------------
(A) Mandatory prepayment
--------------------
(a) Subject to the provisions of clause 6.5(D) below, the Borrowers
undertake to apply and to procure the application of all of:
(i) the proceeds of all disposals made by any member of the
Restricted Group of assets comprising or contributing 5 per cent. or more
of the total assets, turnover or Net Operating Cash Flow (in any financial
year) of the Restricted Group (taken as a whole);
(ii) the net proceeds of all equity share capital that has been subscribed for
in any member of the Restricted Group for cash other than pursuant to the
Norwegian Merger or in connection with the conversion of the Norwegian I/C
Indebtedness in accordance with clause 11.1(ac); and
(iii) the proceeds of all Borrowed Money (other than Borrowed Money referred to
in paragraphs (v) and (vi) of the definition thereof and Permitted Borrowings)
made available to members of the Restricted Group,
in prepayment of the Loan (or, if less the amount of the Loan).
(b) The Borrowers' obligations under paragraph (a) above shall not apply at any
time when, in respect of each of the two most recent previous consecutive
Quarterly Periods, the ratio of Total Debt to Total Annualised Net
Operating Cash Flow (calculated on the last day of each such Quarterly
Period and each as demonstrated in the Compliance Certificate for the
Quarterly Period ending immediately prior to such date) is less than (and
remains below) 4:1.
(B) Excess Cash Flow recapture
--------------------------
During the Reduction Period, the Borrowers shall apply, or procure the
application of, 75 per cent. of Excess Cash Flow (if any) in respect
of the twelve month period of the Restricted Group ending on 31st
December in each year (commencing with the twelve month period ending
on 31st December, 2001 and calculated by reference to the Compliance
Certificate delivered by the auditors of the Parent in respect of the
most recent financial year ending on such date) in prepayment of the
Loan (or, if less, the amount of the Loan) Provided that:
(i) no such prepayment shall be required to be made if the ratio of
Total Debt to Total Annualised Net Operating Cash Flow
43
(calculated as at the last day of such twelve month period and as
shown in the most recent Compliance Certificate delivered to the Agent
in accordance with clause 11.1) is less than (and remains below)
3.5:1; and
(ii) no such prepayment shall be required to be made if the amount of
Excess Cash Flow in respect of the most recently ended twelve month
period is less than NLG 10,000,000 (but without prejudice to the
operation of this clause 6.5(B) if the amount of Excess Cash Flow is
NLG 10,000,000 or more). (C) Application of
(C) Application of mandatory prepayments and Excess Cash Flow
---------------------------------------------------------
(a) Each prepayment to be made under paragraphs (A) and (B) above (each
referred to in this clause as a "MANDATORY PAYMENT") shall be made
immediately unless the relevant Borrower states in writing at the time of
its receipt of such Mandatory Payment (or at the time that the auditors of
the Parent deliver the relevant Compliance Certificate, as the case may be)
that it shall be applied on Maturity Dates falling after the date of
receipt of such Mandatory Payment (or delivery of such Compliance
Certificate, as the case may be) in which case the relevant Borrower shall
deposit the amount of such Mandatory Payment (or if less the amount of the
Loan) with the Agent or as the Agent may reasonably direct in an account
(or accounts) bearing interest at market rates on terms that the principal
amount so deposited may only be released to the relevant Borrower by making
the relevant prepayment, beginning with the first such Maturity Date and
continuing until the prepayment obligation under paragraphs (A) and/or (B)
above has been satisfied but that any interest on such principal amount is
to be released to the relevant Borrower following such prepayments; and
(b) if on any Maturity Date upon which an amount of a Mandatory Payment is to
be applied in prepayment of the Loan:
(A) such amount is less than the amount of Advances, whose Maturity Date
is such date, the relevant Borrower may select against which Advance
or Advances the prepayment is to be made and the proportion of the
relevant amount to be prepaid on each Advance but shall ensure that
the full amount of such Mandatory Payment required to be applied is so
applied in prepayment; or
(B) such amount is equal to or greater than the amount of the Advances
whose Maturity Date is such date, the relevant Borrower shall prepay
each such Advance on such date.
44
(D) Exceptions to clause 6.5(A)
---------------------------
The following shall not constitute Mandatory Prepayments for the
purposes of clause 6.5(A):
(i) Permitted Payments;
(ii) Permitted Disposals made as part of the Restructuring;
(iii) that part of the net proceeds received by the Parent from the
Initial Equity Raise which is equal to the aggregate of all
amounts outstanding in respect of the Bridge Facility provided
that such amount is immediately lent by the Parent to the
Bridge Borrower or used by the Parent to purchase the Belmarken
UIH Shares pursuant to paragraph (i) of the definition of the
Belmarken Funding Arrangements and applied in the irrevocable
prepayment and cancellation in full of the Bridge Facility;
(iv) that part of the net proceeds received by the Parent from the
Initial Equity Raise which exceeds the aggregate of (a) the
amount referred to in (iii) above and (b) the aggregate
outstanding principal amount of all Advances made to the Parent
under this Facility;
(v) the proceeds of any equity share capital subscribed for in
▇▇▇▇▇ which is permitted pursuant to clause 11.2(g)(iii);
(vi) the proceeds of any equity share capital subscribed for in the
Parent used to redeem or refinance any preference shares issued
pursuant to the Securities Purchase and Conversion Agreement;
(vii) the proceeds from the issuance of ordinary shares in the Parent
to the holder of the option granted pursuant to the option
agreement dated 5th November, 1998 among the Parent, DIC
Communications and Technology Ltd. and PEC Israel Economic
Corporation for cash consideration of up to $90,000,000 plus
unpaid and outstanding interest thereon plus six per cent. of
$90,000,000 to the extent that such amount is, as soon as is
permitted by the terms of such loan, used by the Parent to
acquire or repay the loan of $90,000,000 made by DIC to Cable
Network Zuid-Oost Brabant Holding B.V. on or about 9th November
1998 and provided that, pending such repayment or acquisition,
the relevant proceeds are credited to a blocked account with
the Agent bearing interest at a commercially competitive rate
on terms that amounts standing to the credit of such account
will only be released to the Borrower to effect such repayment
or acquisition; and
45
(viii) the proceeds received by the Parent from the issue of priority
shares to UIH or a Subsidiary of UIH pursuant to the Initial
Equity Raise provided that such proceeds are nominal;
(E) Cancellation
------------
For the avoidance of doubt, and without prejudice to any other
provision of this Agreement, on the date upon which any Mandatory
Prepayment is to be applied in prepayment of the Loan pursuant to this
clause 6.5 (save in the case of any Mandatory Prepayment made from the
net proceeds received by the Parent from the Initial Equity Raise),
the Total Commitments shall be automatically reduced by an amount
equal to the Guilder Amount of the Mandatory Payment to be so applied.
6.6 Notice of prepayment
--------------------
No prepayment may be effected under this clause 6 unless the relevant
Borrower shall have given the Agent at least 3 Banking Days' notice of its
intention to make such prepayment. Every notice of prepayment shall be
effective only on actual receipt by the Agent, shall be irrevocable and
shall oblige the relevant Borrower to make such prepayment on the date
specified. Upon a prepayment being made during the Reduction Period or in
accordance with clause 6.5 the Total Commitments shall be automatically
reduced by an amount equal to the Guilder Amount of the Advance (or part
thereof) so prepaid. The Borrowers may not prepay the Loan or any part
thereof save as expressly provided in this Agreement.
6.7 Cancellation of Commitments
---------------------------
The Parent may at any time during the Availability Period by notice to the
Agent (effective only on actual receipt) cancel with effect from a date not
less than 3 Banking Days after the receipt by the Agent of such notice the
whole or any part (being NLG 10,000,000 or any larger sum which is an
integral multiple of NLG 10,000,000) of the Total Commitments. Any such
notice of cancellation, once given, shall be irrevocable and upon such
cancellation taking effect the Commitment of each Bank shall be reduced
proportionately.
6.8 Reduction of Total Commitments
------------------------------
On each Reduction Date the Total Commitments shall be automatically reduced
by an amount equal to five per cent. of the amount of the Total Commitments
as at the beginning of the Reduction Period. The Commitment of each Bank
shall be reduced proportionately.
The Borrowers shall prepay or repay Advances in accordance with the terms
of this Agreement on each Reduction Date so that the aggregate of the Loan
does not exceed the aggregate of the Total Commitments as reduced on such
Reduction Date.
46
6.9 Termination of Commitments
--------------------------
Without prejudice to any other term of this Agreement, any part of the
Commitments which is undrawn and uncancelled on the Termination Date shall
thereupon be automatically reduced to zero and no Advance shall be made to
the Borrowers thereafter.
47
7 FEES AND EXPENSES
-----------------
7.1 Fees
----
The Parent shall pay to the Agent whether or not any part of the
Commitments is ever advanced:
(a) on the earlier of (i) the date of the first Advance and (ii) the date
falling five Banking Days after the date of this Agreement, for the
account of the Arranger, an arrangement fee of an amount agreed
between the Parent and the Arranger in a letter dated the date hereof;
(b) on the earlier of (i) the date of the first Advance and (ii) the date
falling five Banking Days after the date of this Agreement and on each
anniversary of the date of this Agreement until all moneys owing under
this Agreement have been paid in full, for the account of the Agent,
an agency fee of an amount agreed between the Parent and the Agent in
a letter dated the date hereof; and
(c) in arrears on each Quarter Day after the date of this Agreement and on
the last day of the Availability Period, for the account of each Bank,
commitment commission computed from the date of this Agreement or the
relevant date from which commitment commission is to accrue at the
rate of 0.35 per cent. per annum on the daily undrawn and uncancelled
amount of such Bank's Commitment. If an Advance is outstanding in an
Optional Currency, the amount of the Commitments treated as drawn for
the purpose of calculating commitment commission shall be the Guilder
Amount of such Advance.
7.2 Expenses
--------
The Parent shall pay to the Agent on demand:
(a) all expenses (including reasonable legal, printing and out-of-pocket
expenses) incurred by the Agent, the Security Trustee and the Arranger
in connection with the negotiation, preparation and execution of this
Agreement and the Security Documents, the syndication of the Facility,
the preparation and distribution of the Information Memorandum and
advertising in connection with this Agreement and of any amendment or
extension of, or the granting of any waiver or consent under, this
Agreement or the Security Documents together with interest at the rate
referred to in clause 5.3 from the date of demand for payment of such
expenses to the date of payment (as well after as before judgment);
and
(b) all expenses (including legal and out-of-pocket expenses) incurred by
the Agent, the Security Trustee, the Arranger, the Banks or any of
them in contemplation of, or otherwise in connection with, the
enforcement or attempted enforcement of, or preservation or attempted
preservation of any rights under, this Agreement and/or the Security
Documents,
48
including, without limitation, after the occurrence of a Default or if
otherwise agreed with the Parent, the fees and expenses of accountants
or other experts incurred in relation to any investigation into the
affairs of the Parent or any member of the Restricted Group, or
otherwise in respect of the moneys owing under this Agreement and/or
the Security Documents, together with interest at the rate referred to
in clause 5.3 from the date on which such expenses were incurred to
the date of payment (as well after as before judgment).
7.3 Value Added Tax
---------------
All fees and expenses payable pursuant to this clause 7 shall be paid
together with an amount equal to any value added tax payable by the Agent,
the Arranger or any Bank in respect of such fees and expenses.
7.4 Stamp and other duties
----------------------
The Parent shall pay all stamp, documentary, registration or other similar
duties or Taxes (including any such duties or Taxes payable by, or assessed
on, the Banks or the Agent or the Arranger) imposed on or in connection
with this Agreement and/or the Security Documents or the Facility (other
than those imposed by reason of any assignment or novation by any Bank) and
shall indemnify the Agent, the Arranger and the Banks against any liability
arising by reason of any delay or omission by the Parent to pay such duties
or Taxes.
49
8 PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS
---------------------------------------------
8.1 No set-off or counterclaim; distribution to the Banks
-----------------------------------------------------
All payments to be made by the Obligors under this Agreement and/or the
Security Documents shall be made in full, without any set-off or
counterclaim whatsoever and, subject as provided in clause 8.5, free and
clear of any deductions or withholdings, in Guilders or the relevant
Optional Currency (except for costs, charges or expenses which shall be
payable in the currency in which they are incurred) on the due date to the
account of the Agent at such bank as the Agent may from time to time
specify for this purpose. Save where this Agreement and/or the Security
Documents provide for a payment to be made for the account of the Agent
(for its own account), the Arranger, the Security Trustee or a particular
Bank (including, without limitation, clauses 6.3, 7, 8.5, 14.1, 14.2, 15.1
and 15.2), in which case the Agent shall distribute the relevant payment to
the Bank concerned, payments to be made by any Obligor under this Agreement
and/or the Security Documents shall be for the account of all the Banks and
the Agent shall forthwith distribute such payments in like funds as are
received by the Agent to the Banks rateably in accordance with their
Commitments or Contributions, as the case may be.
8.2 Payments by the Banks
---------------------
All sums to be advanced by the Banks to the Borrowers under this Agreement
shall be remitted in Guilders or the relevant Optional Currency on the
relevant Drawdown Date to the account of the Agent at such bank as the
Agent may have notified to the Banks and shall be paid by the Agent on such
date in like funds as are received by the Agent to the account of the
relevant Borrower specified in the relevant Drawdown Notice.
8.3 Non-Banking Days
----------------
When any payment under this Agreement would otherwise be due or any
reduction in the Total Commitments pursuant to clause 6.8 would otherwise
be effected on a day which is not a Banking Day, the due date for payment
or the date of such reduction shall be postponed to the next following
Banking Day unless such Banking Day falls in the next calendar month in
which case payment shall be made on the immediately preceding Banking Day.
If any date or day specifically referred to in this Agreement is not a
Banking Day all references thereto shall be deemed to be to the immediately
preceding Banking Day.
8.4 Agent may assume receipt
------------------------
Where any sum is to be paid under this Agreement to the Agent for the
account of another person, the Agent may assume that the payment will be
made when due and may (but shall not be obliged to) make such sum available
to the person so entitled. If it proves to be the case that such payment
was not made to the Agent, then the person to whom such sum was so made
available shall on request refund such sum to the Agent together with
interest thereon sufficient to
50
compensate the Agent for the cost of making available such sum up to the
date of such repayment and the person by whom such sum was payable shall
indemnify the Agent for any and all loss or reasonable expense which the
Agent may sustain or incur as a consequence of such sum not having been
paid on its due date.
8.5 Grossing-up for Taxes
---------------------
Subject to clause 8.6, at any time any Obligor is required to make any
deduction or withholding in respect of Taxes from any payment due under
this Agreement and/or the Security Documents for the account of any Bank,
the Arranger, the Security Trustee or the Agent (or if the Agent is
required to make any such deduction or withholding from a payment to the
Arranger, the Security Trustee or a Bank), the sum due from the relevant
Obligor in respect of such payment shall, subject to the Banks' compliance
with clause 8.8(b), be increased to the extent necessary to ensure that,
after the making of such deduction or withholding, each Bank, the Arranger,
the Security Trustee and the Agent receives on the due date for such
payment (and retains, free from any liability in respect of such deduction
or withholding) a net sum equal to the sum which it would have received had
no such deduction or withholding been required to be made and the relevant
Obligor shall indemnify each Bank, the Arranger, the Security Trustee and
the Agent against any losses or costs incurred by any of them by reason of
any failure of such Obligor to make any such deduction or withholding or by
reason of any increased payment not being made on the due date for such
payment. The relevant Obligor shall promptly deliver to the Agent any
receipts, certificates or other proof evidencing the amounts (if any) paid
or payable in respect of any such deduction or withholding.
8.6 Qualifying Banks
----------------
If any Bank is not or ceases to be a Qualifying Bank then it shall promptly
notify the relevant Obligor upon becoming aware of the same and the
relevant Obligor shall not be obliged to pay such Bank under clause 8.5 any
amount in excess of the amount it would have been obliged to pay if such
Bank was or had not ceased to be a Qualifying Bank provided that this
clause 8.6 shall not apply (and the relevant Obligor shall be obliged to
comply with its obligations under clause 8.5) if after today's date there
shall have been any change in, or in the interpretation or application of,
any relevant law, directive, treaty (including, without limitation, any
applicable double tax treaty) or regulation or practice of any applicable
taxation authority and as a result thereof the relevant Bank ceases to be a
Qualifying Bank or the relevant Obligor will be required to make deduction
or withholding on account of tax irrespective of whether the recipient of
the relevant payment is or is not a Qualifying Bank. Each Bank confirms to
each of the Obligors that it is a Qualifying Bank.
8.7 Claw-back of Tax benefit
------------------------
If following any such deduction or withholding as is referred to in clause
8.5 the Agent, the Arranger, the Security Trustee or any Bank shall receive
or be granted
51
a credit against or remission for any Taxes payable by it, the Agent, the
Arranger, the Security Trustee or such Bank shall, subject to the relevant
Obligor having made any increased payment in accordance with clause 8.5 and
to the extent that the Agent, the Arranger, the Security Trustee or such
Bank can do so without prejudicing the retention of the amount of such
credit or remission and without prejudice to the right of the Agent, the
Arranger, the Security Trustee or such Bank to obtain any other relief or
allowance which may be available to it, reimburse the relevant Obligor with
such amount as the Agent, the Arranger or such Bank shall in its absolute
discretion certify to be the proportion of such credit or remission as will
leave the Agent, the Arranger, the Security Trustee or such Bank (after
such reimbursement) in no worse position than it would have been in had
there been no such deduction or withholding from the payment by the
relevant Obligor as aforesaid. Such reimbursement shall be made forthwith
upon the Agent, the Arranger, the Security Trustee or such Bank certifying
that the amount of such credit or remission has been received by it.
Nothing contained in this Agreement shall oblige the Agent, the Arranger,
the Security Trustee or any Bank to rearrange its tax affairs or to
disclose any information regarding its tax affairs and computations.
Without prejudice to the generality of the foregoing, the Obligors shall
not, by virtue of this clause 8.7, be entitled to enquire about the
Agent's, the Arranger's, the Security Trustee's or any Bank's tax affairs.
8.8 Certification to secure a Tax benefit
-------------------------------------
If, in order to make any payment due under this Agreement to the Agent, the
Arranger, the Security Trustee or any Bank without deduction or withholding
for or on account of Tax or to secure the benefit of any reduced rate of
such deduction or withholding, any Borrower requires a direction from or
the consent of a government or taxing authority:
(a) the Borrowers agree to use their reasonable endeavours to complete
(accurately and in a manner reasonably satisfactory to the Agent, the
Security Trustee, the Arranger or such Bank), execute, arrange for any
required certification of, and deliver to the Agent, the Security
Trustee, the Arranger or such Bank or such government or taxing
authority as the Agent, the Security Trustee, the Arranger or such
Bank reasonably directs, any form or document reasonably required of
it, and to provide such information that the Agent, the Security
Trustee, the Arranger, such Bank or such government or taxing
authority may reasonably require or request in order to assist or
enable the Agent, the Security Trustee, the Arranger or such Bank to
secure that such a direction or consent is given to the relevant
Borrower in respect of any payment. Each Borrower shall perform its
obligations under this sub-paragraph (a) promptly upon the earlier of:
(i) being notified that the form, document or information is required
or requested; and
52
(ii) demand being made by the Agent, the Security Trustee, the
Arranger, such Bank or the relevant government or taxing
authority, as the case may be;
(b) the Agent, the Security Trustee, the Arranger and each such Bank
agrees to use its reasonable endeavours to complete (accurately and in
a manner reasonably satisfactory to the Parent), execute, arrange for
any required certification of, and deliver to the relevant Borrower,
or such government or taxing authority as the Parent may reasonably
direct, any form or document reasonably required of it, and to provide
such information that the Parent or such government or taxing
authority may reasonably require or request in order to assist or
enable the Parent to secure that such a direction or consent is given
to the relevant Borrower in respect of any payment. The obligations of
the Agent, the Security Trustee, the Arranger and such Bank under this
sub-paragraph (b) shall be performed within 30 days of reasonable
demand by the Parent.
8.9 Bank accounts
-------------
Each Bank shall maintain, in accordance with its usual practices, an
account or accounts evidencing the amounts from time to time lent by, owing
to and paid to it under this Agreement. The Agent shall maintain a control
account showing each Advance and other sums owing by each Borrower under
this Agreement and all payments in respect thereof made by the Obligors
from time to time. The control account shall, in the absence of manifest
error, be conclusive as to the amount from time to time owing by each
Borrower under this Agreement.
8.10 Partial payments
----------------
If, on any date on which a payment is due to be made by any Obligor under
this Agreement and/or the Security Documents, the amount received by the
Agent from the relevant Obligor falls short of the total amount of the
payment due to be made by the relevant Obligor on such date then, without
prejudice to any rights or remedies available to the Agent and the Banks
under this Agreement and/or the Security Documents, the Agent shall apply
the amount actually received from the relevant Obligor in or towards
discharge of the obligations of the Borrowers under this Agreement in the
following order, notwithstanding any appropriation made, or purported to be
made, by the relevant Obligor:
(a) firstly, in or towards payment, on a pro rata basis, of any unpaid
fees, costs and expenses of the Agent under this Agreement and/or the
Security Documents;
(b) secondly, in or towards payment to the Arranger of any portion of the
arrangement fee payable under clause 7.1(a) which remains unpaid and
to the Agent of any portion of the agency fee payable under clause
7.1(b) which remains unpaid;
53
(c) thirdly, in or towards payment to the Banks, on a pro rata basis, of
any accrued commitment commission payable under clause 7.1(c) which
shall have become due but remains unpaid;
(d) fourthly, in or towards payment to the Banks, on a pro rata basis, of
any accrued interest which shall have become due but remains unpaid;
(e) fifthly, in or towards payment to the Banks, on a pro rata basis, of
any principal which shall have become due but remains unpaid; and
(f) sixthly, in or towards payment of any other sum which shall have
become due but remains unpaid (and, if more than one such sum so
remains unpaid, on a pro rata basis).
The order of application set out in this clause 8.10(b)-8.10(f) shall be
varied by the Agent if all Banks so direct, without any reference to, or
consent or approval from, any of the Borrowers.
8.11 Calculations
------------
All interest and other payments of an annual nature under this Agreement
shall accrue from day to day and be calculated on the basis of actual days
elapsed and (in the case of Guilders) a 360 day year or (in the case of any
optional currency) in accordance with standard London interbank market
practice in respect of calculating the numbers of days comprising a year.
In calculating the actual number of days elapsed in a period which is one
of a series of consecutive periods with no interval between them or a
period on the last day of which any payment falls to be made in respect of
such period, the first day of such period shall be included but the last
day excluded.
8.12 Certificates conclusive
-----------------------
Any certificate or determination of the Agent or any Bank as to any rate of
interest or any amount payable under this Agreement shall, in the absence
of manifest error, be conclusive and binding on the Obligors and (in the
case of a certificate or determination by the Agent) on the Banks.
8.13 Effect of monetary union
------------------------
If the country of any national currency in which any amount is expressed to
be payable under this Agreement participates in Economic and Monetary Union
in accordance with Article 109j of the Treaty on European Union, then:
(a) any amount expressed to be payable under this Agreement in that
national currency shall be made in that national currency or in euro
as the Agent may, by not less than three Banking Days' notice to the
Obligors and the Banks to that effect, require;
(b) any amount so required to be paid in euro shall be converted from that
national currency at the rate stipulated pursuant to Article 109l(4)
of the
54
Treaty on European Union and payment of the amount in euro derived
from such conversion shall discharge the obligation of the relevant
party to pay such national currency amount in accordance with, and
subject to, the Regulation(s) made pursuant to Article 109l(4);
(c) after consultation with the Parent and the Banks and notwithstanding
clause 18.11 the Agent shall be entitled to make such amendments to
this Agreement as it may determine to be necessary to take account of
monetary union and any consequent changes in market practices (whether
as to the settlement or rounding of obligations, the calculation of
interest or otherwise howsoever).
Any amendment so made to this Agreement by the Agent shall be promptly
notified to the Banks and the Obligors by the Agent and shall be binding on
all the Banks and the Obligors.
55
9 GUARANTEE
---------
9.1 Limits of Guarantee
-------------------
Notwithstanding the provisions of clause 9.2 to 9.17 inclusive, the
following limitations shall apply to the relevant Guarantors:
(a) Austria
-------
Any payment under the Guarantee by any of the Guarantors incorporated
in Austria (the "AUSTRIAN GUARANTORS") for any amounts not being
direct liabilities of the respective Austrian Guarantor shall only be
up to the amount of Distributable Profits for which CNA shall have
given an instruction in accordance with clause 11.1(af) to the
relevant Austrian Guarantor ("Anweisung auf ▇▇▇▇▇▇") stating that its
interest in such Distributable Profits can be the subject of the
Guarantee. Provided that the Agent agrees that, without prejudice to
any of its other rights under this Agreement, it shall not make a
demand for payment from Telekabel Wien under the Guarantee until 28
days after the date that the Agent has notified Telekabel Wien that a
Default has occurred unless at such time (i) Telekabel Wien has repaid
all amounts in respect of the Telekabel Notes, (ii) Telekabel Wien has
breached any of its obligations under this Agreement or (iii) an Event
of Default has otherwise occurred in relation to Telekabel Wien, in
which case such 28 day grace period (or any unexpired part thereof)
shall not apply. Payments under the Guarantee for direct liabilities
of the relevant Austrian Guarantor are not subject to any restriction.
(b) Belgium
-------
Radio Public shall not have any liability under the Guarantee
contained in this clause 9 unless and until such time as its Articles
of Association have been amended to a form satisfactory to the Agent
which form permits Radio Public to give the Guarantee (to the extent
described in this clause 9.1(b)). Once the Articles of Association of
Radio Public have been amended as set out above, the liability of
Radio Public under the Guarantee shall be limited to the amount that
has been on-lent to Radio Public from time to time from Advances made
to the Parent, together with the amount of any Advances which have
been applied by the Parent in satisfaction of obligations of Radio
Public.
(c) Norway
------
Each Guarantor which is incorporated in Norway (a "NORWEGIAN
GUARANTOR") shall have no liability in excess of the aggregate of (i)
the amounts drawn down and utilised by the Norwegian Borrowers under
the Facility from time to time (up to but not exceeding the Norwegian
Loan Amount) and (ii) a portion of the total loan amount drawn down
and utilised by the Borrowers up to but not exceeding the amount of
56
distributable equity of such Norwegian Guarantor for which adequate
security has been provided in accordance with the provisions of
section 12-10 of the Norwegian Companies Act of 1976.
9.2 Covenant to pay
---------------
In consideration of the Banks making or continuing to make Advances to the
Borrowers pursuant to this Agreement the Guarantors hereby irrevocably and
unconditionally but subject always to the provisions of clause 9.1:
(a) jointly and severally guarantee to each Bank, the Arranger, the
Security Trustee and the Agent, the due performance by the Borrowers
of all of their respective obligations under or pursuant to the
Finance Documents; and
(b) jointly and severally guarantee to each Bank, the Arranger, the
Security Trustee and the Agent the payment of all moneys now or
hereafter due, owing or incurred by the Borrowers under or pursuant to
the Finance Documents when the same become due whether by acceleration
or otherwise.
9.3 Guarantors as principal debtors; indemnity
------------------------------------------
As a separate and independent stipulation, but subject always to the
provisions of clause 9.1, the Guarantors jointly and severally agree that
if any purported obligation or liability of any Borrower which would have
been the subject of this Guarantee had it been valid and enforceable is not
or ceases to be valid or enforceable against such Borrower on any ground
whatsoever whether or not known to the Banks or any of them or the Agent,
the Security Trustee or the Arranger (including, without limitation, any
irregular exercise or absence of any corporate power or lack of authority
of, or breach of duty by, any person purporting to act on behalf of such
Borrower or any legal or other limitation, or any disability or Incapacity
or any change in the constitution of any relevant Borrower) the Guarantors
shall nevertheless be jointly and severally liable in respect of that
purported obligation or liability as if the same were fully valid and
enforceable and such Guarantor was the principal debtor in respect thereof.
The Guarantors hereby irrevocably and unconditionally jointly and severally
agree to indemnify and keep indemnified the Agent, the Arranger, the
Security Trustee and the Banks against any loss or liability arising from
any failure of any Borrower to perform or discharge any such purported
obligation or liability or from any invalidity or unenforceability of any
of the same against any Borrower (subject to the provisions of clause 9.1).
9.4 No security taken by Guarantors
-------------------------------
The Guarantors hereby jointly and severally warrant that they have not
taken or received, and undertake that until all the Guaranteed Liabilities
have been paid or discharged in full, they will not take or receive, the
benefit of any security
57
from any Borrower or any other person in respect of their obligations under
this Guarantee save as may be agreed by the Majority Banks.
9.5 Interest
--------
Each Guarantor agrees to pay interest on each amount demanded of it under
this Guarantee from the date of such demand until payment (as well after as
before judgment) at the rate specified in clause 5.3. Such interest shall
be compounded at the end of each period determined for this purpose by the
Agent in the event of it not being paid when demanded but without prejudice
to the Agent, the Arranger and each Bank's right to require payment of such
interest.
9.6 Continuing security and other matters
-------------------------------------
This Guarantee shall, subject to the provisions of clause 9.1:
(a) extend to the ultimate balance from time to time owing to the Banks
and/or the Agent and/or the Arranger and/or the Security Trustee by
the Borrowers and shall be a continuing guarantee, notwithstanding any
settlement of account or other matter whatsoever;
(b) be in addition to any present or future Collateral Instrument, right
or remedy held by or available to the Banks or any of them, the
Arranger, the Security Trustee or the Agent; and
(c) not be in any way prejudiced or affected by the existence of any such
Collateral Instrument, rights or remedies or by the same becoming
wholly or in part void, voidable or unenforceable on any ground
whatsoever or by the Agent, the Security Trustee or the Arranger or
the Banks or any of them dealing with, exchanging, varying or failing
to perfect or enforce any of the same or giving time for payment or
indulgence or compounding with any other person liable.
9.7 New accounts
------------
If this Guarantee ceases to be continuing for any reason whatsoever each
Bank may nevertheless continue any account of any Borrower or open one or
more new accounts and the liability of each Guarantor under this Guarantee
shall not in any manner be reduced or affected by any subsequent
transactions or receipts or payments into or out of any such account.
9.8 Liability unconditional
-----------------------
The liability of each Guarantor shall not be affected nor shall this
Guarantee be discharged or reduced by reason of:
(a) the Incapacity or any change in the name, style or constitution of any
Obligor or any other person liable; or
58
(b) the Agent, the Security Trustee or the Arranger or any of the Banks
granting any time, indulgence or concession to, or compounding with,
discharging, releasing or varying the liability of any other Obligor
or any other person liable or renewing, determining, varying or
increasing any accommodation, facility or transaction or otherwise
dealing with the same in any manner whatsoever or concurring in,
accepting or varying any compromise, arrangement or settlement or
omitting to claim or enforce payment from any Obligor or any other
person liable; or
(c) any act or omission which would not have discharged or affected the
liability of such Guarantor had it been a principal debtor instead of
a guarantor or by anything done or omitted which but for this
provision might operate to exonerate such Guarantor.
9.9 Collateral Instruments
----------------------
None of the Banks, the Arranger, the Security Trustee and the Agent shall
be obliged to make any claim or demand on any Borrower or to resort to any
Collateral Instrument or other means of payment now or hereafter held by or
available to them or it before enforcing this Guarantee and no action taken
or omitted by any of the Banks, the Arranger, the Security Trustee or the
Agent in connection with any such Collateral Instrument or other means of
payment shall discharge, reduce, prejudice or affect the liability of any
Guarantor under this Guarantee nor shall any of the Banks, the Arranger,
the Security Trustee or the Agent be obliged to apply any money or other
property received or recovered in consequence of any enforcement or
realisation of any such Collateral Instrument or other means of payment in
reduction of the Guaranteed Liabilities.
9.10 Waiver of Guarantors' rights
----------------------------
Until all the Guaranteed Liabilities have been paid, discharged or
satisfied in full (and notwithstanding payment of a dividend in any
liquidation or under any compromise or arrangement) each Guarantor agrees
that, without the prior written consent of the Agent, it will not:
(a) exercise its rights of subrogation, reimbursement and indemnity
against any other Obligor or any other person liable; or
(b) demand or accept any security to be executed in respect of any of its
obligations under this Guarantee or any other Indebtedness now or
hereafter due to such Guarantor from any other member of the
Restricted Group or from any other person liable; or
(c) take any step or enforce any right against any Obligor or any other
person liable in respect of any Guaranteed Liabilities; or
(d) exercise any right of set-off or counterclaim against any other
Obligor or any other person liable or claim or prove or vote as a
creditor in competition with the Agent, the Arranger, the Security
Trustee or any of
59
the Banks in the liquidation, administration or other insolvency
proceeding of any other Obligor or any other person liable or have the
benefit of, or share in, any payment from or composition with, any
other Obligor or any other person liable or any other Collateral
Instrument now or hereafter held by the Agent, the Arranger, the
Security Trustee or any of the Banks for any Guaranteed Liabilities or
for the obligations or liabilities of any other person liable but so
that, if so directed by the Agent, it will prove for the whole or any
part of its claim in the liquidation of any other Obligor on terms
that the benefit of such proof and of all money received by it in
respect thereof shall be held on trust for the Banks, the Arranger,
the Security Trustee and the Agent and applied in or towards discharge
of the Guaranteed Liabilities in such manner as the Agent shall deem
appropriate.
9.11 Suspense accounts
-----------------
Any money received in connection with this Guarantee (whether before or
after any Incapacity of any Obligor) may be placed to the credit of a
suspense account with a view to preserving the rights of the Banks, the
Arranger, the Security Trustee and the Agent to prove for the whole of
their respective claims against any Obligor or any other person liable or
may be applied in or towards satisfaction of the Guaranteed Liabilities as
the Agent may from time to time conclusively determine in its absolute
discretion.
9.12 Settlements conditional
-----------------------
Any release, discharge or settlement between any Guarantor and the Agent,
the Arranger or any of the Banks shall be conditional upon no security,
disposition or payment to the Agent, the Arranger, the Security Trustee or
any of the Banks by any Obligor or any other person liable being void, set
aside or ordered to be refunded pursuant to any enactment or law relating
to bankruptcy, liquidation, administration or insolvency or for any other
reason whatsoever and if such condition shall not be fulfilled the Banks,
the Arranger, the Security Trustee and the Agent shall be entitled to
enforce this Guarantee subsequently as if such release, discharge or
settlement had not occurred and any such payment had not been made.
9.13 Guarantors to deliver up certain property
-----------------------------------------
If, contrary to clauses 9.4 or 9.10, any Guarantor takes or receives the
benefit of any security or receives or recovers any money or other
property, such security, money or other property shall be held on trust for
the Agent, the Arranger, the Security Trustee and the Banks and shall be
delivered to the Agent on demand.
9.14 Retention of this guarantee
---------------------------
The Banks, the Arranger, the Security Trustee and the Agent shall be
entitled to retain this Guarantee after as well as before the payment or
discharge of all the Guaranteed Liabilities for such period as the Agent
may reasonably determine.
60
9.15 Changes in constitution or reorganisations of Banks
---------------------------------------------------
For the avoidance of doubt and without prejudice to the provisions of
clause 18, this Guarantee shall remain binding on each Guarantor
notwithstanding any change in the constitution of the Banks or any of them
or the Arranger, the Security Trustee or the Agent or their or its
absorption in, or amalgamation with, or the acquisition of all or part of
their or its undertaking or assets by, any other person, or any
reconstruction or reorganisation of any kind, to the intent that this
Guarantee shall remain valid and effective in all respects in favour of any
successor in title of the Banks, the Arranger, the Security Trustee and the
Agent, any Substitute and any successor Agent appointed pursuant to clause
19.13 or any successor Security Trustee appointed pursuant to the Security
Trust Deed in the same manner as if such successor in title, Substitute or
successor Agent or successor Security Trustee had been named in this
guarantee as a party instead of, or in addition to, the relevant Bank or
the Arranger, the Security Trustee or the Agent, as the case may be.
9.16 Other Guarantors
----------------
Each Guarantor agrees to be bound by this Guarantee notwithstanding that
any other person intended to execute or to be bound by any other guarantee
or assurance under or pursuant to this Agreement may not do so or may not
be effectually bound and notwithstanding that such other guarantee or
assurance may be determined or be or become invalid or unenforceable
against any other person, whether or not the deficiency is known to the
Banks or any of them or the Agent, the Security Trustee or the Arranger.
9.17 Acceding Guarantors and New ▇▇▇▇▇
---------------------------------
(a) To the extent legally possible, the Parent shall procure that (i) as
soon as reasonably practicable following the Bridge Termination Date
all Unrestricted Subsidiaries which are wholly owned by the Parent and
which are required to become Acceding Guarantors by the Agent (acting
on the instructions of the Majority Banks acting reasonably) and (ii)
all Subsidiaries of any Restricted Subsidiary deemed by the Agent
(acting on the instructions of the Majority Banks acting reasonably)
to be of a material size, become Acceding Guarantors by delivering to
the Agent (as soon as is reasonably practicable following receipt by
the Parent of a written notice from the Agent requiring such action)
Deeds of Guarantor Accession duly executed by such Subsidiaries and
the Parent.
(b) To the extent legally possible, the Parent shall procure that, at the
same time as a Deed of Guarantor Accession is delivered to the Agent,
there is delivered to the Agent all the documents and evidence listed
in schedule 10, part B in respect of the relevant Subsidiary in each
case in form and substance satisfactory to the Agent acting
reasonably.
(c) Delivery of a Deed of Guarantor Accession duly executed by an Acceding
Guarantor and the Parent constitutes confirmation by the
61
relevant Acceding Guarantor that the representations and warranties
set out in clause 10.1 to be made by it on the date of the Deed of
Guarantor Accession in accordance with clause 10.3 are correct as if
made by it with reference to the facts and circumstances then
existing.
(d) To the extent legally possible in any Relevant Jurisdiction, each
Acceding Guarantor, before entering into such a Deed of Guarantor
Accession, shall comply with all relevant legislation in its country
of incorporation, to the satisfaction of the Agent, to ensure that the
proposed guarantee to be given is in compliance with any relevant
provisions of such legislation and to ensure that the proposed
guarantee to be given is to be legal valid and binding on the proposed
Acceding Guarantor.
(e) The Arranger and each Bank irrevocably authorises the Agent to
countersign each Deed of Guarantor Accession on its behalf without any
further consent of, or consultation with, the Arranger or any of the
Banks.
(f) Each of the other Obligors irrevocably authorises the Parent to
countersign each Deed of Guarantor Accession on its behalf without any
further consent of, or consultation with, any of the other Obligors.
(g) Contemporaneously with the completion of the Norwegian Merger, the
Parent shall procure that New ▇▇▇▇▇ shall enter into such
documentation as the Agent shall require so as to succeed to and
assume all obligations then owed to the Agent, the Arranger, the
Security Trustee and the Banks by ▇▇▇▇▇, Norkabel, Kanal 2 A/S,
Norkabel A/S and Oslo Kabelanlegg A/S and shall provide to the Agent
such documents, evidence and legal opinions as the Agent may require
in connection therewith.
62
10 REPRESENTATIONS AND WARRANTIES
------------------------------
10.1 Repeated representations and warranties
---------------------------------------
Each Obligor in respect of itself and its Subsidiaries which are members of
the Restricted Group represents and warrants to each of the Banks, the
Arranger, the Security Trustee and the Agent that:
(a) Due incorporation: all of the members of the Restricted Group are duly
-----------------
incorporated and validly existing under the laws of the respective
countries of their incorporation as limited liability companies and
have power to carry on their respective businesses as they are now
being conducted and to own their respective property and other assets;
(b) Power to borrow etc.: each Obligor has power to execute, deliver and
--------------------
perform its obligations under this Agreement and the Security
Documents to which it is a party and, in the case of the Borrowers, to
borrow the Commitments; all necessary corporate, shareholder and other
action has been taken to authorise the execution, delivery and
performance of the same and no limitation on the powers of any
Borrower to borrow or on the powers of any Guarantor to give
guarantees will be exceeded as a result of borrowings under this
Agreement or as a result of the giving of the Guarantee (in each case
as limited, where appropriate, by clause 9.1);
(c) Binding obligations: this Agreement constitutes and the Security
-------------------
Documents to which it is a party, when executed and delivered by the
relevant Obligor will constitute, valid and legally binding
obligations of such Obligor enforceable in accordance with their
respective terms subject to the qualifications contained in the legal
opinions referred to in schedule 3 and mandatory provisions of law
affecting creditors rights generally;
(d) No conflict with other obligations: the execution and delivery of, the
----------------------------------
performance of its obligations under, and compliance with the
provisions of, this Agreement and the Security Documents to which it
is a party by the Obligors will not (i) contravene any existing
applicable law, statute, rule or regulation or any judgment, decree or
permit to which any Obligor is subject, (ii) conflict with, or result
in any breach of any of the terms of, or constitute a default under,
any agreement or other instrument to which any Obligor is a party or
is subject or by which it or any of its property is bound, (iii)
contravene or conflict with any provision of any Obligor's
constitutive documents, (iv) breach in any material respect any term
of the Licences or Necessary Authorisations or (v) save for the
Encumbrances granted to the Security Trustee pursuant to the Security
Documents, result in the creation or imposition of or oblige any
member of the Restricted Group to create any Encumbrance (other than a
Permitted Encumbrance) on any member of the Restricted Group's
undertakings, assets, rights or revenues;
63
(e) No filings required: save for the filings, registrations and
-------------------
notarisations referred to in the legal opinions referred to in
schedule 3, it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement or the
Security Documents that any of them or any other instrument be
notarised, filed, recorded, registered or enrolled in any court,
public office or elsewhere in any Relevant Jurisdiction or that any
stamp, registration or similar tax or charge be paid in any Relevant
Jurisdiction on or in relation to this Agreement or any of the
Security Documents and this Agreement and the Security Documents are
in proper form for their enforcement in the courts of any Relevant
Jurisdiction;
(f) No litigation: no litigation, arbitration or administrative
-------------
proceeding is taking place, pending or, to the knowledge of the
officers of any Obligor, threatened against any member of the
Restricted Group which, if adversely determined would or is reasonably
likely to have a Material Adverse Effect;
(g) Financial statements correct and complete:
-----------------------------------------
(i) the audited consolidated financial statements of the Parent and
the audited financial statements of each member of the
Restricted Group (in the case of Kanal 2 A/S, Oslo Kabelanlegg
A/S, Norkabel A/S, as consolidated into the consolidated
financial statements of Norkabelgruppen A/S and in the case of
CNA, as consolidated into the consolidated financial statements
of the Parent) in respect of the financial year ended on 31st
December 1996 as delivered to the Agent have been prepared in
accordance with GAAP which principles have been consistently
applied and present fairly and accurately the financial
position of the Parent and the financial position of each
member of the Restricted Group respectively as at such date and
the results of the operations of the operations of the Parent
and the results of the operations of each member of the
Restricted Group respectively for the financial year ended on
such date and, as at such date, neither the Parent nor any
member of the Restricted Group had any significant liabilities
(contingent or otherwise) or any losses which are not disclosed
by, or reserved against or provided for in, such financial
statements;
((ii)) ((A)) the unaudited monthly management accounts for each of the
Parent, Radio Public, the Telekabel Entities, ▇▇▇▇▇ and its
Subsidiaries and the Restricted Group dated 30th June, 1997;
and
(B) the unaudited quarterly management accounts for each of
the Parent, Radio Public, the Telekabel Entities, ▇▇▇▇▇
and its Subsidiaries and the Restricted Group dated 30th
June, 1997;
64
as delivered to the Agent have been prepared in accordance with
GAAP which principles have been consistently applied and
present fairly and accurately the results of the operations of
each of the Parent, Radio Public, the Telekabel Entities, ▇▇▇▇▇
and its Subsidiaries and the Restricted Group dated 30th June,
1997 (as appropriate) for the relevant period; and
(iii) the combined financial projections for the Restricted Group for
the financial years ending 1997 to 2006 inclusive, the
operating statistics projections for such financial years and
the Management Base Case have been prepared based upon
historical financial information and upon the assumptions set
forth therein, which assumptions were reasonable when made and
are reasonable on the date hereof;
(h) No material adverse change: there has been no material adverse
--------------------------
change in the financial position of the Parent or the consolidated
financial position of the Restricted Group from that set forth in the
financial statements referred to in clause 10.1(g)(i) and (ii);
(i) Choice of law: the choice by the Obligors of English law to govern
-------------
this Agreement and the submission by the Obligors to the non-exclusive
jurisdiction of the High Court of Justice in England are valid and
binding;
(j) Title to assets: each Obligor is the legal and beneficial owner of
---------------
and has good and marketable title to its assets free and clear of any
Encumbrance other than Permitted Encumbrances;
(k) Intellectual Property Rights:
----------------------------
(i) the Intellectual Property Rights owned by or licensed to each
member of the Restricted Group are free from any Encumbrance
(save for those created or to be created by or pursuant to the
Security Documents and Permitted Encumbrances) and any other
rights or interests in favour of third parties;
(ii) the Intellectual Property Rights owned by or licensed to each
member of the Restricted Group are all the Intellectual Property
Rights required by them in order to carry on, maintain and
operate in all material respects their respective businesses,
properties and assets and no member of the Restricted Group in
carrying on its business infringes any Intellectual Property
Rights of any third party where any action taken by such third
party in respect of any such infringement would or is reasonably
likely to have a Material Adverse Effect; and
65
(iii) no Intellectual Property Rights owned by any member of the
Restricted Group are being infringed, nor is there any
threatened infringement of any such Intellectual Property
Rights which, in either case would or is reasonably likely to
have a Material Adverse Effect;
(l) Copyright matters: each member of the Restricted Group has obtained
-----------------
all consents and taken all other action required in connection with
the secondary transmission by it of any broadcast television signals
(other than where failure to do so would not or is reasonably likely
not to have a Material Adverse Effect) and no member of the Restricted
Group has any knowledge, nor is it aware of any claim, that it is or
may be liable to any person for any copyright infringement of any
nature whatsoever as a result of the operation of its business which
liability would or is reasonably likely to have a Material Adverse
Effect;
(m) Shares: all shares issued by each member of the Restricted Group have
------
been validly allotted; and
(n) Works councils: no Obligor incorporated in the Netherlands has
--------------
instituted a works council or, if any such works council has been
instituted, all action has been taken by or in relation to such works
council necessary to authorise the performance by the Obligors of their
respective obligations under this Agreement and the Security Documents.
10.2 Further representations and warranties
--------------------------------------
Each Obligor in respect of itself and its Subsidiaries which are members of
the Restricted Group further represents and warrants to each of the Banks,
the Arranger, the Security Trustee and the Agent that:
(a) Principal Agreements:
--------------------
(i) the Principal Agreements which have been entered into on or prior
to the date of this Agreement are in full force and effect; and
(ii) to the best of its knowledge and belief after due enquiry, (1) no
party is in breach of any material term thereof, (2) there is no
material dispute subsisting between the parties thereto and (3)
no amendments have been made thereto;
(b) Licences and Necessary Authorisations: the Licences are in full force
-------------------------------------
and effect and each member of the Restricted Group is in compliance in
all material respects with all provisions thereof that are applicable
to it. Each member of the Restricted Group has secured all the
Necessary Authorisations, all such Necessary Authorisations are in
full force and effect and each member of the Restricted Group is in
compliance in all material respects with all provisions thereof. To
the best of its knowledge and belief after due enquiry, neither the
Licences nor any of
66
the Necessary Authorisations are the subject of any pending or
threatened attack or revocation;
(c) Consents obtained: every consent, authorisation, licence or approval
-----------------
of, or registration with or declaration to, governmental or public
bodies or authorities of courts (other than the Licences and the
Necessary Authorisations) required by each member of the Restricted
Group to authorise, or required by any member of the Restricted Group
in connection with, the execution, delivery, validity, enforceability
or admissibility in evidence of this Agreement and the Security
Documents to which it is a party or the performance by each member of
the Restricted Group of their respective obligations under this
Agreement and the Security Documents to which they are a party has
been obtained or made and is in full force and effect and there has
been no material default in the observance of the conditions or
restrictions (if any) imposed in, or in connection with, any of the
same;
(d) Contractual commitments: since the audited accounts of the Parent
-----------------------
for the year ended 31st December 1996, no dividends (in cash or
specie) of the Parent or any other rights or benefits have been
declared, made or paid by the Parent and no member of the Restricted
Group has entered into any contractual commitments of a material
nature (other than (i) the Principal Agreements, (ii) for the purpose
of carrying out the business of constructing, installing and operating
cable television and telecommunications systems in the territories
covered by the Licences or such other business as is permitted by the
terms of this Agreement, (iii) contractual commitments constituting
Permitted Borrowings, Permitted Disposals or Permitted Encumbrances or
(iv) in relation to the Philips Transaction);
(e) No withholding Taxes: (assuming the correctness of the confirmation
--------------------
set out in clause 8.6) under the law and practice at today's date no
Taxes are imposed by withholding or otherwise on any payment to be
made to the Agent, the Security Trustee, the Arranger or the Banks by
any member of the Restricted Group under this Agreement or any
Security Document or are imposed on or by virtue of the execution or
delivery by any member of the Restricted Group of this Agreement or
any Security Document to which it is a party or any document or
instrument to be executed or delivered under this Agreement or any
such Security Document;
(f) Telecommunications and Cable Laws: to the best of its knowledge and
---------------------------------
belief after due enquiry, each member of the Restricted Group is in
compliance in all material respects with all Telecommunications and
Cable Laws but excluding, for these purposes only, breaches of
Telecommunications and Cable Laws which have been expressly waived by
the relevant regulatory authority;
67
(g) No Default: no member of the Restricted Group is in breach of or in
----------
default under any agreement relating to Indebtedness to which it is a
party or by which it may be bound; and
(h) Information Memorandum: to the best of the Parent's knowledge and
----------------------
belief after due enquiry, as at the date of the Information Memorandum
the factual information relating to the Restricted Group contained in
the Information Memorandum was true and accurate in all material
respects and not misleading in any material respect and the
Information Memorandum does not omit any material facts; all
reasonable enquiries have been made by the Parent to verify the facts
and statements relating to the Restricted Group contained therein; all
opinions, projections and forecasts contained therein and the
assumptions on which such opinions, projections and forecasts were
based on and arrived at after due and careful consideration and
enquiry and represent the views of the Parent as at the date of the
Information Memorandum; there are no material facts or circumstances
which have not been disclosed to the Arranger prior to the date hereof
the omission of which could make any factual information contained in
the Information Memorandum inaccurate or misleading in any material
respect either as at the date of the Information Memorandum or as at
the date of this Agreement or any of the opinions, projections and
forecasts contained in the Information Memorandum (and the assumptions
on which such opinions, projections and forecasts were made)
misleading in any material respect either as at the date of the
Information Memorandum or as the date of this Agreement.
Notwithstanding the above, no warranty or representation is made in
respect of (i) any information, facts, statements, opinions,
projections, forecasts, demographic statistics or circumstances
relating to the cable, media, telecommunications and data services
industry as a whole, and (ii) any person other than any member of the
Restricted Group; and
(i) Environmental Matters
---------------------
(i) each member of the Restricted Group complies, in all respects,
with all requirements of Environmental Laws where failure to do
so has or is reasonably likely to have a Material Adverse Effect;
and
(ii) after due enquiry, no Environmental Claim is, to the knowledge of
any member of the Restricted Group, pending, threatened or
existing, as at the date of this Agreement, which has or is
reasonably likely to have a Material Adverse Effect.
10.3 Repetition
----------
The representations and warranties in clause 10.1, (so that (i) the
representation and warranty in clause 10.1(g)(i) shall for this purpose
refer to the then latest consolidated financial statements of the
Restricted Group verified by the auditors to the Restricted Group and
delivered to the Agent under clause 11.1, (ii) the
68
representation and warranty in clause 10.1(g)(ii) shall for this purpose
refer to the then latest Monthly Management Accounts and Quarterly
Management Accounts delivered to the Agent under clause 11.1, (iii) the
representation and warranty contained in clause 10.1(g)(iii) shall for this
purpose refer to the then latest consolidated financial projections of the
Restricted Group and the then latest operating statistics projections for
each franchise and shall not include a representation or warranty as to the
Management Base Case, and (iv) the representation and warranty in clause
10.1(h) shall for this purpose refer to the latest audited financial
statements of the Restricted Group delivered to the Agent under clause
11.1) shall be deemed to be repeated by the Obligors on and as of each
Drawdown Date and each Maturity Date as if made with reference to the facts
and circumstances existing on each such day and, in the case of an Obligor
which becomes a party to this Agreement after the date hereof, shall be
deemed to be repeated by that Obligor on the date that it executes a Deed
of Borrower Accession or Deed of Guarantor Accession.
69
11 UNDERTAKINGS
------------
11.1 Positive Covenants
------------------
Each Obligor in respect of itself and its Subsidiaries which are members
of the Restricted Group undertakes with each of the Banks, the Security
Trustee, the Arranger and the Agent that, from the date of this Agreement
and so long as any moneys are owing under this Agreement or remain
available for drawing by the Borrowers, it will:
(a) Notice of Default, etc.
----------------------
procure that the Agent is promptly informed of (i) any occurrence of
which it becomes aware which would or is reasonably likely to have a
Material Adverse Effect, (ii) any Default and any potential breach
of any of the undertakings set out in clause 11 or 12 forthwith upon
becoming aware thereof and will from time to time, if so requested
by the Agent, confirm to the Agent in writing that, save as
otherwise stated in such confirmation, no Default has occurred and
is continuing, (iii) any lapse, suspension or termination of or
refusal by any person to renew or extend any Licence or Necessary
Authorisation or any breach of any Licence or Necessary
Authorisation or any breach of any Licence or Necessary
Authorisation where any such breach would or is reasonably likely to
have a Material Adverse Effect, (iv) (to the extent known to any
member of the Restricted Group) the commencement of all proceedings
and investigations by or before any governmental body and all
actions and proceedings in any court or before any arbitrator where
any such proceedings, investigations or actions would, if adversely
determined, have a Material Adverse Effect (v) any application of
which it becomes aware for any other licence or franchise agreement
by means of cable television systems (including satellite master
antennae television systems and multi-point microwave distributions
systems) with respect to the territory covered by the Licences where
any such application, if successful, would or is reasonably likely
to have a Material Adverse Effect and (vi) any breach of any
Telecommunications and Cable Laws by any member of the Restricted
Group which would or is reasonably likely to have a Material Adverse
Effect;
(b) Consents and licences
---------------------
without prejudice to clauses 3 and 10.1, obtain or cause to be
obtained, maintain in full force and effect and comply in all
material respects with the conditions and restrictions (if any)
imposed in, or in connection with, every consent, authorisation,
licence or approval of governmental or public bodies or authorities
or courts and do, or cause to be done, all other acts and things
which may from time to time be necessary or desirable under
applicable law for the continued due performance of all its
obligations under this Agreement and the Security Documents;
70
(c) Use of proceeds
---------------
use the proceeds of drawings under this Agreement exclusively for
the purposes specified in clause 1.1;
(d) Pari passu
----------
ensure that its obligations under this Agreement shall, without
prejudice to the provisions of clause 11.2 or to the security
intended to be created pursuant to the Security Documents, at all
times rank at least pari passu with all its other present and future
unsecured and unsubordinated Indebtedness with the exception of any
obligations which are mandatorily preferred by law and not by
contract;
(e) Business
--------
engage in the business of acting as the holder of shares and/or
interests in other members of the Restricted Group and/or the
Unrestricted Group and/or engage in the business of constructing,
installing, operating and utilising cable television,
telecommunications and data service systems for households and
businesses in Europe and Israel and in no other activities save for
any directly related business reasonably considered to be
financially beneficial to such business; in the case of the Parent
engage in the business of acting as the holding company of its
Subsidiaries (which shall include the raising of Permitted
Borrowings and the on-lending of such Borrowed Money to its
Subsidiaries in accordance with the provisions of this Agreement and
the entry into of hedging arrangements on behalf of its
Subsidiaries) and in no other activities;
(f) Financial statements
--------------------
(in the case of the Parent) prepare:
(i) annual audited:
(A) unconsolidated financial statements of the Parent,
(B) unconsolidated financial statements of Radio Public,
(C) consolidated financial statements of the Telekabel
Entities,
(D) consolidated financial statements of ▇▇▇▇▇ and its
Subsidiaries, and
(E) combined financial statements of the Restricted Group
each in accordance with GAAP (together with a
reconciliation statement to the generally accepting
71
accounting principles and practices in the United States
of America) and cause such financial statements to be
reported on by its auditors and deliver to the Agent
sufficient copies of the same for distribution to all of
the Banks as soon as practicable but not later than 120
days (or 150 days if the Parent is in active discussions
with its auditors and if such financial statements would
have been subject to a qualification (other than a
qualification of a technical nature and the remedy for
the matter giving rise to the qualification would have
no effect on the results of the relevant members of the
Restricted Group for the period to which such financial
statements relate or on the financial position of the
relevant member of the Restricted Group as at the end of
such period) if delivered within 120 days) after the end
of the financial year to which they relate; and
(ii) semi-annual unaudited:
(A) unconsolidated financial statements of the Parent,
(B) unconsolidated financial statements of Radio Public,
(C) consolidated financial statements of the Telekabel
Entities,
(D) consolidated financial statements of ▇▇▇▇▇ and its
Subsidiaries, and
(E) combined financial statements of the Restricted Group
(on the same basis as that used for the annual financial
statements referred to in (i) above) and deliver to the Agent
sufficient copies of the same for distribution to all of the
Banks as soon as practicable but not later than 45 days after
the end of the Six Month Period to which they relate.
Each set of consolidated financial information or financial
statements of all or any part of the Restricted Group delivered
pursuant to this clause 11.1(f) shall be accompanied by a
calculation in reasonable detail of Net Operating Cashflow for each
of (i) the Parent, (ii) Radio Public (iii) the Telekabel Entities
(iv) ▇▇▇▇▇ and its Subsidiaries and (v) the Restricted Group;
(g) Quarterly Management Accounts
-----------------------------
(in the case of the Parent) in respect of each Quarterly Period
commencing with the Quarterly Period ending 30th September 1997,
prepare unaudited Quarterly Management Accounts for each of:
72
(i) the Parent (unconsolidated),
(ii) Radio Public (unconsolidated),
(iii) the Telekabel Entities (consolidated),
(iv) ▇▇▇▇▇ and its Subsidiaries (consolidated), and
(v) the Restricted Group (combined)
in each case containing information of a substantially similar type
and to a substantially similar level of detail as in the format used
in the preparation of the Management Base Case (including, without
limitation, a profit and loss account, balance sheet, cash flow
statement and summary of operating statistics in the form (or in a
form substantially similar to the form) used in the Management Base
Case and, in the case of the last Quarterly Period of each financial
year, a profit and loss account, and cash flow statement for that
financial year in the form (or in a form substantially similar to
the form) used in the Management Base Case) or omitting any such
information or detail or containing such other information or to
such other level of detail as may, from time to time, be approved by
the Agent (acting on the instructions of the Majority Banks acting
reasonably) in writing and deliver a copy of the same to the Agent
for distribution to all of the Banks as soon as practicable but not
later than 45 days after the Quarterly Period to which they relate;
(h) Monthly Management Accounts
---------------------------
(in the case of the Parent) in respect of each calendar month
commencing with September 1997, prepare unaudited Monthly Management
Accounts each of:
(i) the Parent (unconsolidated) ,
(ii) Radio Public (unconsolidated),
(iii) the Telekabel Entities (consolidated),
(iv) ▇▇▇▇▇ and its Subsidiaries (consolidated), and
(v) the Restricted Group (combined)
in each case containing information of a substantially similar type
and to a substantially similar level of detail as in the format used
in the preparation of the Management Base Case (including, without
limitation, a commentary, a profit and loss account and cash flow
statement and a summary of operating statistics in the form (or in a
form substantially similar to the form) used in the Management Base
Case) or omitting any such information or detail or containing such
other information or to such
73
other level of detail as may, from time to time, be approved by the
Agent (acting on the instructions of the Majority Banks acting
reasonably) in writing and deliver a copy of the same to the Agent
for distribution to all of the Banks as soon as practicable but not
later than 30 days after the calendar month to which they relate;
(i) Change in basis of accounts
---------------------------
(in the case of the Parent) ensure that all financial statements
delivered under clause 10.1(f) are prepared in accordance with GAAP
and in accordance with the accounting principles and practices used
in the preparation of the financial statements referred to in clause
9.1(g)(i) and the 1997 Budget (the "ORIGINAL BASIS") consistently
applied in respect of each financial year unless to do so would be
inconsistent with then current GAAP (the "NEW BASIS"). If the
preparation of financial statements on the Original Basis is
contrary to the New Basis then the Parent shall promptly notify the
Agent in writing of the relevant change and (at the option of the
Parent) shall either (1) prepare and deliver to the Agent audited
financial statements on both the Original Basis and the New Basis
(or shall prepare and deliver financial statements on the New Basis
only but shall also prepare and deliver an audited reconciliation
statement (a "RECONCILIATION STATEMENT") showing those adjustments
necessary in order to reconcile the financial statements produced on
the New Basis to the Original Basis) or (2) request the Agent to
enter into good faith negotiations for such amendments (if any) as
are necessary to the covenants contained in clause 12.1 and any
other provisions of this Agreement affected by such change, in which
event the Agent will enter into such negotiations for a period of
not more than 28 days. If agreement is reached between the Parent
and the Agent (acting on the instructions of the Majority Banks)
within such period as to the amendment of any such covenants or
provisions, then the parties hereto will enter into such
documentation and take such other steps as are required to put such
amendments into effect following which the Parent shall then be
obliged to produce financial statements on the New Basis only. If no
such agreement is reached then the Parent shall be obliged to
prepare and deliver financial statements on both the Original Basis
and the New Basis (or shall prepare and deliver audited financial
statements on the New Basis accompanied by a Reconciliation
Statement).
Where the Parent is under an obligation to deliver financial
statements under clause 11.1(f) on both the Original Basis and the
New Basis (or on the New Basis but accompanied by a Reconciliation
Statement), Monthly Management Accounts and Quarterly Management
Accounts shall also be delivered on both bases or on the New Basis
but accompanied by a Reconciliation Statement.
All financial statements, Quarterly Management Accounts, Monthly
Management Accounts and Reconciliation Statements delivered pursuant
74
to this clause 11.1(i) shall be delivered within the relevant time
period set out in clause 11.1.
The provisions of this clause 11.1(i) shall also apply, mutatis
mutandis, to the preparation and delivery of the Annual Budget under
clause 11.1(j)(iii) and the revised financial projections under
clause 11.1(j)(iv).
(j) Delivery of reports
-------------------
deliver to the Agent, for distribution to the Banks (in the case of
a Compliance Certificate issued by the auditors of the Restricted
Group) sufficient copies for all of the Banks or (in any other case)
a copy of each of the following documents, in each case at the time
of issue thereof or (in the case of the Compliance Certificates
referred to in (ii) below) together with the financial statements
prepared in respect of each financial year and Quarterly Management
Accounts prepared in respect of each Quarterly Period pursuant to
clause 11.1(g) in respect of the financial period to which such
Compliance Certificate relates:
(i) every material document issued by the Parent to its
shareholders (in their capacity as a shareholder) or issued by
the Parent or any of its Subsidiaries to its creditors
generally;
(ii) (in the case of the Parent only) a Compliance Certificate
stating that the Restricted Group as at the last day of the
financial period to which such financial statements or
Quarterly Management Accounts relate was in compliance with
the relevant covenants and undertakings in clause 12 (or if it
was not in compliance indicating the extent of the breach);
(iii) (in the case of the Parent only) (for each financial year
falling within the Availability Period) an Annual Budget for
each financial year for the Restricted Group no later than the
last day of the preceding financial year; and
(iv) (in the case of the Parent only)(for each financial year
falling within the Availability Period commencing in 1998) no
later than 30th June in each year, revised financial
projections and revised projections for operating statistics
in relation to the Restricted Group containing information of
a substantially similar type and to a substantially similar
level of detail as the base case financial projections and
operating statistics projections contained in the Management
Base Case, such projections to extend to at least the
Termination Date and to contain details of the assumptions on
the basis of which such projections have been prepared and an
explanation of any discrepancies from the most recently
delivered financial projections and projections for operating
statistics delivered under this sub-paragraph (j)(iv) (or, in
the case of the first such financial
75
projections, from the base case financial projections or
operating statistics projections (as the case may be)
contained in the Management Base Case);
(k) Financial Year End
------------------
maintain a financial year end of 31 December for each member of the
Restricted Group save with the prior written consent of the Majority
Banks;
(l) Authorised Officers
-------------------
ensure that any new or replacement Authorised Officer has provided
the Agent with evidence satisfactory to it of such new officer(s)'
authority and a specimen of his or their signature(s) prior to
signing any Compliance Certificates, Drawdown Notices, or any other
notices, requests or confirmations referred to in this Agreement or
relating to the Facility;
(m) Auditors
--------
ensure that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is appointed as auditor of the Parent
and each Restricted Subsidiary and not change such appointment
without appointing a major accounting firm of recognised
international standing and repute;
(n) Provision of further information
--------------------------------
notify the Agent of any change to the business of any member of the
Restricted Group providing details of such change as soon as
practicable after making such change and provide the Agent with a
copy of (i) each Principal Agreement entered into after the date of
this Agreement and (ii) any material report, notice or other
communication relating to the Licences, the Necessary Authorisations
and such financial and other information concerning each member of
the Restricted Group and their respective affairs as the Agent or
any Bank (acting through the Agent) may from time to time reasonably
require;
(o) Insurance
---------
maintain insurance cover of a type and level which a prudent company
in the same business as the relevant Obligor would effect;
(p) Inspection
----------
if required by the Agent (acting on the instructions of the Majority
Banks), at any time whilst a Default is continuing, permit, to the
extent it is able to do so, representatives of the Agent or any of
the Banks upon reasonable prior written notice to the Parent or its
relevant Subsidiary, after having made arrangements with the Parent
so to do and after entering into a confidentiality undertaking if
reasonably required by the
76
Parent (a) visit and inspect the properties of any member of the
Restricted Group during normal business hours, (b) inspect and make
extracts from and copies of its books and records other than records
which the relevant member of the Restricted Group is prohibited by
law from disclosing to the Agent and/or any relevant Bank and (c)
discuss with its principal officers and auditors its business,
assets, liabilities, financial position, results of operations and
business prospects provided that any such discussion with the
auditors shall only be on the basis of the audited accounts of the
Restricted Group and Compliance Certificates issued by the auditors;
(q) Compliance with laws and regulations
------------------------------------
comply with the terms and conditions of all laws (including
Telecommunications and Cable Laws, the Licences and the Necessary
Authorisations), regulations, agreements, licences and concessions
including, without limitation, all Environmental Laws and all
Environmental Licences if the failure to comply therewith, would or
is reasonably likely, in the opinion of the Agent, to have a
Material Adverse Effect;
(r) Taxes
-----
file or cause to be filed all tax returns required to be filed in
all jurisdictions in which it is situated or carries on business or
is otherwise subject to Taxation and will pay all Taxes shown to be
due and payable on such returns or any assessments made against it
within the period stipulated for such payment (other than those
being contested in good faith and where such payment may be lawfully
withheld);
(s) Cost capitalisation policy
--------------------------
maintain a cost capitalisation policy consistent with the cost
capitalisation policy used in the preparation of the financial
statements referred to in clause 10.1(g)(i) or such other cost
capitalisation policy as may be approved by the auditors and the
Agent (acting on the instructions of the Majority Banks) from time
to time;
(t) Further members of the Restricted Group
---------------------------------------
after the Bridge Termination Date, and subject to the provisions of
clause 9.16, it will and will procure that any Acceding Guarantor
which is wholly owned by the Parent and which the Majority Banks and
the Parent agree may become a member of the Restricted Group,
delivers to the Agent such documents and evidence as the Agent may
require, in form and substance satisfactory to the Agent (acting on
the instructions of the Majority Banks). The parties hereto agree
that upon the execution and delivery of all such documents and
evidence, and provided that the Agent has notified each of the other
parties of this Agreement that such
77
documents and evidence are in form and substance satisfactory to it,
such Acceding Guarantor shall become a member of the Restricted
Group for the purposes of this Agreement; and
(u) Agreed Hedging Programme
------------------------
as from the date falling three months after the date of this
Agreement, procure that any one or more of the Obligors maintain
interest rate protection arrangements with a Bank, on a rolling
forward not less than two year basis in respect of at least 50 per
cent. of the then forecast amount of the Loan, which interest rate
protection arrangements have the effect of fixing the maximum rate
of interest payable (excluding the Margin and any other associated
costs) by the Borrowers within 200 basis points of three month LIBOR
(as at the date that the relevant arrangements come into effect) for
the relevant currency.
(v) Licences and Necessary Authorisations
-------------------------------------
obtain or cause to be obtained, every consent, authorisation,
licence or approval of, or registration with or declaration to,
governmental or public bodies or authorities or courts in any
Relevant Jurisdiction necessary for the construction, installation
or operation of the Cable Systems (including, without limitation,
the Licences and the Necessary Authorisations) and (A) ensure that
none of the same is revoked, cancelled, suspended, withdrawn,
terminated, expires and is not renewed or otherwise ceases to be in
full force and effect without a new one having first been put in
place with a member of the Restricted Group on substantially
identical terms or on terms more beneficial to the Restricted Group
and (B) ensure that none of the same is modified in any respect and
that no member of the Restricted Group commits any default in the
observance of the conditions or restrictions (if any) imposed in, or
in connection with, any of the same which, in the case of any of the
events listed in this sub-paragraph (B), in the reasonable opinion
of the Majority Banks, would or is reasonably likely to have a
Material Adverse Effect; and
(w) Shareholdings in the Restricted Subsidiaries
--------------------------------------------
save, in each case, with the prior written consent of all of the
Banks:
(i) (in the case of the Parent) maintain (A) 100 per cent. of the
issued share capital of each of CNA and 100 per cent. direct
or indirect ownership of the issued share capital of Radio
Public and maintain at least the percentage of direct
shareholding in Radio Public that it has at the date of this
Agreement, (B) (prior to the Norwegian Merger) not less than
70.2 per cent. of the issued share capital of ▇▇▇▇▇, (c)
(after the Norwegian Merger but before the Option Date) not
less than 87.3 per cent. of the issued share capital of New
▇▇▇▇▇ and (d) (after the Option Date and at all
78
times after 29th June, 2001) not less than 100 per cent. of
the issued share capital of New ▇▇▇▇▇ and the Parent shall
ensure that at all times thereafter 100 per cent. of the
shares in New ▇▇▇▇▇ are pledged to the Security Trustee
pursuant to the Norwegian Share Security;
(ii) (in the case of CNA) maintain not less than 95 per cent. of
the issued share capital of each of the Telekabel Entities;
(iii) (in the case of ▇▇▇▇▇) prior to the Norwegian Merger, maintain
not less than 100 per cent. of the issued share capital of
▇▇▇▇▇ Multicom A/S, Satelvisjon A/S and Norkabel;
(iv) (in the case of Norkabel) prior to the Norwegian Merger,
maintain not less than 100 per cent. of the issued share
capital of Kanal 2 A/S, Norkabel A/S and Oslo Kabelanlegg A/S;
and
(v) as soon as practicable after the Norwegian Merger, the Parent
shall procure that New ▇▇▇▇▇ shall liquidate Kanal 2 A/S,
▇▇▇▇▇ Multicom A/S (since renamed ▇▇▇▇▇ Telematikk A/S) and
Satelvisjon A/S;
(x) Subordination of loans from Relevant Persons
--------------------------------------------
(in the case of the Parent) shall procure that prior to any Relevant
Person making any Borrowed Money available to any of the members of
the Restricted Group, such Relevant Person shall enter into a Deed
of Subordination on terms and conditions satisfactory to the Agent
and a Charging Entity's Deed of Accession (as such term is defined
in the Security Trust Deed) and provides the Agent with such
documents and evidence as it may reasonably require as to the power
and authority of the Relevant Person to enter into such Deed of
Subordination and Charging Entity's Deed of Accession and that the
same constitute valid and legally binding obligations of such
Relevant Person enforceable in accordance with its terms subject to
substantially similar qualifications to those made in the legal
opinions referred to in part A of schedule 3. In addition, it will
procure that each Security Provider enters into a Charging Entity's
Deed of Accession and provides the Agent with such documents and
evidence as it may reasonably require as to the power and authority
of such Security Provider to enter into such Charging Entity's Deed
of Accession and that the same constitutes valid and legally binding
obligations of such Security Provider enforceable in accordance with
its terms subject to substantially similar qualifications to those
made in the legal opinions referred to in part A of schedule 3. For
the avoidance of doubt, it is agreed that Telekabel Wien shall not
be required to enter into a Deed of Subordination in respect of any
loan provided by Telekabel Wien to another member of the Restricted
Group;
79
(y) Norwegian security
------------------
(in the case of each of the Obligors which is incorporated in
Norway) it shall and shall procure that it and each of its
Subsidiaries from time to time (the "▇▇▇▇▇ GROUP") shall,
immediately when requested to do so by the Agent, execute all such
documents and so all such acts and things (and shall procure any
other member of the ▇▇▇▇▇ Group to execute all such documents and do
all such acts and things), as may reasonably be required by the
Agent (acting on the instructions of the Majority Banks) and which
may lawfully be done for the purpose of ensuring that all assets of
the ▇▇▇▇▇ Group are duly charged as security for the obligations of
the Norwegian Borrowers hereunder and procure to keep the Agent
informed about any new asset they acquire during the loan period
which could be provided as security for the Norwegian Loan Amount;
(z) UPC debt to be reduced first
----------------------------
(in the case of the Parent) it shall ensure that during the
Reduction Period and in making any prepayment pursuant to clause
6.5, and so long as such action does not result in any adverse
taxation, legal or other material consequences, the aggregate of the
Advances outstanding to the Parent shall be reduced in accordance
with the terms of this Agreement in preference to the aggregate of
the Advances outstanding to any other Borrower by procuring, where
appropriate, that the Restricted Subsidiaries make intercompany
loans directly or indirectly to the Parent to enable the relevant
Advances made to the Parent under this Agreement to be repaid as
required by clause 6 provided that this clause shall not require
Telekabel Wien to make any loans to CNA or other members of the
Restricted Group incorporated in Austria except in accordance with
Austrian law and shall not require or permit Telekabel Wien to make
any loans to any other person other than CNA or other members of the
Restricted Group incorporated in Austria;
(aa) Radio Public Articles of Association
------------------------------------
(in the case of the Parent) it shall procure that on or prior to the
date falling 150 days after the date of this Agreement, the Articles
of Association of Radio Public shall be amended to a form acceptable
to the Agent, which form will permit Radio Public to give the
Guarantee contained in clause 9 (subject always to the provisions of
clause 9.1) and promptly upon such amendment taking place provide a
copy of such amended Articles of Association to the Agent together
with a certified English translation thereof;
(ab) Radio Public Bond
-----------------
the Parent shall either (i) procure that on the date of the Philips
Advance or as soon as practicable thereafter, Radio Public shall
redeem and cancel the Radio Public Bond in full or (ii) on the date
of the Philips Advance or
80
as soon as practicable thereafter, enter into such arrangements as
may be satisfactory to the Banks so as to ensure that all of the
Parent's right, title, benefit and interest under the Radio Public
Bond is assigned to the Security Trustee and that, provided that
such action is at the time acceptable to the Majority Banks, Radio
Public makes a loan to the Parent in a principal amount equal to the
principal amount of the Radio Public Bond, the interest in respect
of which will be set off against the interest payable under the
Radio Public Bond;
(ac) Norwegian I/C Indebtedness
--------------------------
the Parent shall ensure that on the occurrence of the Norwegian
Merger the equivalent of NOK 600,000,000 of the Norwegian I/C
Indebtedness is converted into equity share capital of New ▇▇▇▇▇,
and that all such equity share capital is pledged to the Security
Trustee on the same terms and conditions as the Norwegian Share
Security. As a condition precedent to the first Advance made to the
Norwegian Borrowers the Parent shall ensure that such arrangements
as may be satisfactory to the Banks are entered into so as to ensure
that all of the Parent's right, title, benefit and interest in
respect of the Norwegian I/C Indebtedness is assigned to the
Security Trustee; and
(ad) ▇▇▇▇▇ Loan Agreement
--------------------
(in the case of the Parent) ensure that, as a condition precedent to
the first Advance made to the Norwegian Borrowers, such arrangements
as may be satisfactory to the Banks are entered into so as to ensure
that all of the Parent's right, title benefit and interest in
respect of the ▇▇▇▇▇ Loan Agreement is assigned to the Security
Trustee.
(ae) ASLK Facility
-------------
(in the case of the Parent and/or Radio Public) (i) ensure that
Radio Public makes no drawing under the ASLK Facility unless and
until all security (including, but not limited to, the subordination
agreement relating to the Radio Public Bond and any other pledges or
charges granted to ASLK Bank N.V.) granted in connection with the
ASLK Facility has been released and (ii) ensure that all such
security granted in connection with the ASLK Facility is so released
within seven days of the date of this Agreement.
(af) Instructions as to debt
-----------------------
(in the case of CNA) (i) ensure that at all times each other
Telekabel Entity has received a valid, irrevocable and unconditional
instruction to assume debt ("Anweisung auf ▇▇▇▇▇▇") stating that
CNA's interest in any Distributable Profits, to the extent that at
any time it exceeds the principal amount of intercompany loans made
by that Telekabel Entity to CNA pursuant to clause 11.1(z) which are
outstanding at that time, is to
81
be owed by such Telekabel Entity to the Agent pursuant to the
Guarantee, and (ii) ensure that it calls all relevant shareholders
meetings of each Telekabel Entity to vote upon the amount of
Distributable Profits and votes its shares in each Telekabel Entity
so as to ensure that at all times the amount of Distributable
Profits of such Telekabel Entity is the maximum amount legally
possible for such Telekabel Entity.
11.2 Negative Covenants
------------------
Each Obligor in respect of itself and its Subsidiaries which are members
of the Restricted Group undertakes with each of the Banks, the Security
Trustee, the Arranger and the Agent that, from the date of this Agreement
and so long as any moneys are owing under this Agreement or remain
available for drawing by the Borrowers, without the prior written consent
of the Agent acting on the instructions of the Majority Banks:
(a) Negative pledge
---------------
save for Encumbrances created by the Security Documents, it will not
permit any Encumbrance (other than the Permitted Encumbrances) by
any member of the Restricted Group to subsist, arise or be created
or extended over all or any part of their respective present or
future undertakings, assets, rights or revenues to secure or prefer
any present or future Indebtedness of any member of the Restricted
Group or any other person;
(b) No merger
---------
it will not merge or consolidate with any other company or person
and it will procure that no member of the Restricted Group merges or
consolidates with any other company or person save that subject to
the compliance with the terms of clause 3.5(c) and 9.16(g):
(i) Norkabelgruppen A/S shall be permitted to merge with Oslo
Kabelanlegg A/S and Norkabel A/S (such merged company being
referred to in this Agreement as "NEW NORKABEL"); provided
that promptly thereafter
(ii) New Norkabel shall be permitted to and shall merge with ▇▇▇▇▇
Kabel-TV A/S (such merged company being referred to in this
Agreement as "NEW ▇▇▇▇▇");
(c) Disposals
---------
it will not and will procure that no other member of the Restricted
Group will sell, transfer, lend or otherwise dispose of or cease to
exercise direct control over any part of its present or future
undertaking, assets, rights or revenues whether by one or a series
of transactions related or not (other than (i) Permitted Disposals
made as part of the Restructuring, (ii) transfers, sales and
disposals pursuant to the Norwegian Merger, (iii)
82
transfers, sales and disposals the proceeds of which are applied in
prepayment of the Loan pursuant to clause 6.5, (iv) transfers, sales
and disposals in any financial year of assets, rights or revenues
the market value of which does not exceed NLG 250,000, (v)
transfers, sales and disposals made to another member of the
Restricted Group incorporated in the same Relevant Jurisdiction
provided that there is no material adverse effect on the security
position of the Banks and there is no breach of any Licence), (vi)
the transfer, sale or disposal by New ▇▇▇▇▇ of the property referred
to in number 39 of part A paragraph A of schedule 13, (vii) the
transfer by the Parent of the Belmarken UIH Shares to UIH Europe,
Inc. to the extent permitted by proviso (x) to clause 11.2(k)(i),
and (viii) transfers, sales or disposals conducted on arm's length
terms for full consideration in the ordinary course of trading
unless, in respect of each of the two most recent previous
consecutive Quarterly Periods, the ratio of Total Debt to Total
Annualised Net Operating Cash Flow (calculated on the last day of
each such Quarterly Period and as shown in the Compliance
Certificates for the two Quarterly Periods ending immediately prior
to such date) is less than and remains below 4:1;
(d) Intra-Group accounts
--------------------
(without limiting the generality of clause 11.2(c) and other than
(i) the refinancing of the Telekabel Bond, (ii) as envisaged by the
terms of the Securities Purchase and Conversion Agreement and (iii)
the conversion of the Norwegian I/C Indebtedness into equity
securities in New ▇▇▇▇▇ as part of the Norwegian Merger) it will not
subordinate, postpone, defer, assign or otherwise dispose of or deal
with, any Indebtedness owing to it by any member of the Restricted
Group and will procure that no member of the Restricted Group will
subordinate, postpone, defer, assign or otherwise dispose of or deal
with, any Indebtedness owing to it by any other member of the
Restricted Group;
(e) Loans and guarantees
--------------------
it will not, and will procure that no member of the Restricted Group
will, make any loans, grant any credit (save for normal trade credit
in the ordinary course of day-to-day trading) or give any guarantee
to or for the benefit of any person other than:
(i) pursuant to the Bridge Borrower Loan Agreement (in its
original terms) or the loan referred to in paragraph (i) of
the definition of the Belmarken Funding Arrangements (in its
original terms); or
(ii) to or for the benefit of members of the Unrestricted Group in
an aggregate amount (when aggregated with the amount of all
transactions falling within clause 11.2(h)(i), (ii) and (iii))
not in excess of the aggregate of NLG 80,000,000 (or its
equivalent in other currencies) and any additional amount
permitted pursuant to
83
paragraph (y) of clause 11.2(h) (excluding for the purposes of
this calculation any loans permitted pursuant to (i) above);
or
(iii) to or for the benefit of another member of the Restricted
Group; or
(iv) as envisaged by the terms of the Securities Purchase and
Conversion Agreement; or
(v) if, in respect of each of the two most recent previous
consecutive Quarterly Periods, the ratio of Total Debt to
Total Annualised Net Operating Cash Flow (calculated on the
last day of each such Quarterly Period and as shown in the
Compliance Certificates for the two Quarterly Periods ending
immediately prior to such date) is less than and remains below
3:1;
(f) Borrowed Money
--------------
(i) it will not and will procure that the Restricted Group (taken
as a whole) and the Bridge Borrower taken together will not
incur Borrowed Money in excess of NLG 1,300,000,000 to be
outstanding at any time, save that Borrowed Money incurred by
the Parent pursuant to the Parent Promissory Note (in its
original terms or as amended in accordance with the proviso
(y) to clause 11.2(k)(i)) and Borrowed Money lent to the
Bridge Borrower by any member of the Restricted Group shall be
ignored for the purposes of clause 11.2(f)(i); and
(ii) it will not and will procure that no member of the Restricted
Group will create, assume, incur or otherwise permit to be
outstanding any Borrowed Money (other than Permitted
Borrowings and other than as envisaged by the terms of the
Securities Purchase and Conversion Agreement) Provided that,
during the Reduction Period, the Parent and/or any member of
the Restricted Group may create, assume, incur or otherwise
permit to be outstanding any such Borrowed Money if the ratio
of Total Debt (calculated as at the relevant date and
including the principal amount of such Borrowed Money) to
Total Annualised Net Operating Cash Flow (as shown in the most
recent Compliance Certificate delivered to the Agent pursuant
to this Agreement) is less than and remains below 3:1;
(g) Issue of shares
---------------
other than pursuant to the Norwegian Merger or as envisaged by the
terms of the Securities Purchase and Conversion Agreement, it will
not and will procure that no member of the Restricted Group reduces
its capital or purchases any class of its shares and that no member
of the Restricted Group issues any shares of any class save that:
84
(i) any member of the Restricted Group may issue shares to any
other member of the Restricted Group so long as such shares
are charged or pledged in favour of the Security Trustee
pursuant to the terms of a Security Document and there are
delivered at the same time to the Security Trustee the
relevant share certificates and blank stock transfer forms (or
equivalent documents) in respect thereof together with such
other documents and evidence and legal opinions as the Agent
may require;
(ii) the Parent shall be entitled to (a) issue shares to UIH or any
wholly owned Subsidiary of UIH, (b) issue ordinary shares to
Stichting Administratiekantoor UPC B.V. in accordance with the
Stock Option Plan, (c) issue ordinary shares fully paid and
American Depositary Shares representing ordinary shares
pursuant to the Initial Equity Raise (d) issue ordinary shares
to any Relevant Person or to any other person (not being a
Subsidiary of the Parent) in or towards satisfaction on bona
fide arm's length commercial terms of liabilities of the
Parent or any of its Subsidiaries and (e) purchase its shares
from UPC Intermediates B.V. for the purpose of offering the
same for sale pursuant to the Initial Equity Raise provided
that:
(A) the consideration payable for each such share does not
exceed the gross proceeds for a share in the Parent
pursuant to the Initial Equity Raise;
(B) such consideration is immediately satisfied in part by
the repayment of the outstanding loan of the equivalent
of approximately NLG 110,000,000 made by the Parent to
UPC Intermediates B.V.;
(C) any outstanding consideration is satisfied by way of a
subordinated inter-company loan made by UPC
Intermediates B.V. to UPC; and
(D) prior to such purchase UPC Intermediates B.V. enters
into a Deed of Subordination on terms and conditions
satisfactory to the Agent and a Charging Entity's Deed
of Accession (as such term is defined in the Security
Trust Deed) and provides the Agent with such documents
and evidence as it may reasonably require as to the
power and authority of UPC Intermediates B.V. to enter
into such Deed of Subordination and Charging Entity's
Deed of Accession and that the same constitute valid,
legal and binding obligations of UPC Intermediates B.V.
enforceable in accordance with their terms subject to
substantial similar qualifications to those made in the
legal opinions referred to in part A of schedule 3 which
relate to Deeds of Subordination. Such Deed of
85
Subordination will permit the Parent to repay the
subordinated outstanding inter-company loan to the
extent that it receives cash dividends from UPC
Intermediates B.V. to fund such repayment or the
cancellation of such loan in lieu of such dividends;
(iii) ▇▇▇▇▇ may, with the prior written consent of all of the Banks,
issue equity share capital to a recognised telecommunications
company or other person acceptable to the Majority Banks
provided that the proceeds of such issue are used by ▇▇▇▇▇ to
fund the capital expenditure requirements to provide
telecommunications services in the cable systems operated by
▇▇▇▇▇; and
(iv) Telekabel Wien may reclassify into nominal share capital such
of the Relevant Reserves as may be necessary to ensure that
the nominal share capital of Telekabel Wien is equal to
337,300,000 Austrian Schillings.
(h) Investments
-----------
other than as envisaged by the terms of the Securities Purchase and
Conversion Agreement it will not and will procure that no member of
the Restricted Group:
(i) makes any loan (other than pursuant to the Bridge Borrower
Loan Agreement (in its original terms)) or advance to, or
enters into any transaction having the effect of lending money
with, any person (other than another member of the Restricted
Group) or otherwise acquires for a consideration any document
evidencing Indebtedness, capital stock or other securities of
any person (other than another member of the Restricted
Group); or
(ii) acquires all or any substantial part of the assets, property
or business of any other person (other than another member of
the Restricted Group) or any assets that constitute a division
or operating unit of the business of any other person (other
then another member of the Restricted Group); or
(iii) creates or acquires any Subsidiary,
save that the Parent may, issue ordinary shares as permitted by
clause 11.2(g)(ii)(d), enter into the Belmarken Funding
Arrangements, and purchase its shares from UPC Intermediates B.V. on
the terms set out in clause 11.2(g)(ii)(e), and repay or acquire the
loan referred to in clause 6.5(D)(viii) using the proceeds from the
issuance of ordinary shares in the Parent referred to in such clause
and the members of the Restricted Group may undertake transactions
referred to in clause 11.2(h)(i), (ii) or (iii) in relation to the
Unrestricted Group provided that the aggregate
86
amount in respect of such transactions (when aggregated with those
transactions referred to in clause 11.2(e)(ii)) shall not be in
excess of the aggregate of:
(x) NLG 80,000,000 (or its equivalent in other currencies); and
(y) the amount set out in column (1) below against the gross cash
proceeds from the Initial Equity Raise in column (2) below:
------------------------------------------------------------
(1) (2)
------------------------------------------------------------
GROSS CASH PROCEEDS FROM VALUE OF ADDITIONAL INVESTMENTS
THE INITIAL EQUITY RAISE (NLG MILLION (OR ITS EQUIVALENT
(NLG MILLION0 IN OTHER CURRENCIES))
------------------------------------------------------------
550 40
------------------------------------------------------------
575 75
------------------------------------------------------------
600 110
------------------------------------------------------------
625 140
------------------------------------------------------------
650 150
------------------------------------------------------------
675 165
------------------------------------------------------------
700 181.5
------------------------------------------------------------
700 to 1,000 181.5 plus 70% of the proceeds
in excess of 700 but less than
1,000
------------------------------------------------------------
1,000 or more 391.5 plus 100% of the proceeds
in excess of 1,000
------------------------------------------------------------
and Provided that:
(A) the amount set out in column (2) shall be reduced by the
amount used by the Parent to repay Indebtedness owed by the
Parent to UIH pursuant to the proviso to clause 11.2(k)(i);
and
(B) the Parent shall use its best endeavours to ensure that all
funding made available by members of the Restricted Group to
the Unrestricted Group shall be provided by way of
intercompany loans and not by equity and shall ensure that,
within 60 days of their creation, such intercompany loans are
pledged in favour of, or for the benefit of, the Banks on
terms reasonably satisfactory to the Agent and that such
documents and evidence as the Agent shall reasonably require
as to the power and authority of the relevant member of the
Restricted Group to enter into such pledge and that the same
constitutes valid and legally binding obligations
87
of such member of the Restricted Group enforceable in
accordance with its terms are delivered to the Agent,
and Provided that:
(A) the Parent shall be permitted to subscribe for capital stock
in the Bridge Borrower for a consideration of not more than
NLG 60,000,000 in aggregate so long as the Parent shall
procure that the proceeds of such subscription are used
promptly to fund the acquisition by Cable Network Brabant
Holding N.V. of Stichting Combivisie Regio and Setelco B.V.
and
(B) the Parent and/or any other member of the Restricted Group may
make such loans or acquisitions if, in respect of each of the
two most recent previous consecutive Quarterly Periods, the
ratio of Total Debt to Total Annualised Net Operating Cash
Flow (calculated on the last day of each such Quarterly Period
and as shown in the Compliance Certificates for the two
Quarterly Periods ending immediately prior to such date) is
less than, and remains below 3:1;
(i) Capital expenditure
-------------------
it will not and will procure that no member of the Restricted Group
incurs any capital expenditure other than in relation to the
business of constructing, installing, operating and utilising cable
television, telecommunications and data service systems in the
territories covered by the Licences or any directly related business
reasonably considered to be financially beneficial thereto;
(j) Swaps and hedging
-----------------
it will not and will procure that no member of the Restricted Group
enters into any interest rate or currency swaps or other hedging
arrangements other than non-speculative arrangements directly
relating to the risk management of any Borrowed Money permitted to
subsist by the terms of this Agreement and entered into in the
ordinary course of the business for the genuine hedging of the
relevant underlying transaction;
(k) Subordination of shareholder funding
------------------------------------
(i) (in the case of the Parent only) other than (A) payments to be
made in consummation of the Philips Transaction in accordance
with the terms of the Securities Purchase and Conversion
Agreement, (B) payments made to UIH in relation to the
secondment of UIH employees to the Parent described in
paragraph (j) of the definition of "Permitted Borrowings"
contained in clause 1.2, (C) payments to UIH on bona fide
arm's length commercial terms pursuant to any management
services
88
agreement and (D) payments to UIH on bona fide arm's length
commercial terms pursuant to any registration rights agreement
providing for the filing of a registration statement by the
Parent under the Securities Act of 1933 with respect to all or
a portion of UIH's or its Subsidiary's ordinary shares of the
Parent or American Depository Shares representing a number of
ordinary shares of the Parent or rights thereto it will not
make to any Relevant Person (a) any direct or indirect
distribution, dividend or other payment (whether in cash,
securities, property or otherwise), including, without
limitation, any loan or any payment on account of any class of
its share capital or capital stock or other securities, or any
interest thereon, (b) any transfer of assets or (c) any
payment (whether in cash, securities, property or otherwise)
of principal of, or interest on, any debt made available to it
by any Relevant Person unless (i) in respect of each of the
two most recent previous consecutive Quarterly Periods, the
ratio of Total Debt to Total Annualised Net Operating Cash
Flow (calculated on the last day of each such Quarterly
Period), each as demonstrated in the Compliance Certificates
for the two Quarterly Periods ending immediately prior to such
date, is less than, and remains below, 3:1, and (ii) no
Default has occurred or would occur or be reasonably likely to
occur as a result of such distribution, transfer or payment,
Provided that (x) the Parent shall be permitted to repay
Indebtedness owed by the Parent to UIH Europe, Inc. in an
amount up to a maximum of 40 per cent. of the gross cash
proceeds of the Initial Equity Raise to the extent that the
same exceed NLG 700,000,000 and are equal to or less than NLG
1,000,000,000 by transferring the Belmarken UIH Shares to UIH
Europe, Inc. at the fair market value (if and to the extent
that the Belmarken Funding Arrangements are effected by the
Parent purchasing the Belmarken UIH Shares from the Bridge
Borrower) and/or utilising the cash proceeds of the Initial
Equity Raise, and (y) the Parent and UIH Europe, Inc. may
amend the terms of the Parent Promissory Note so that the
Parent Promissory Note is (1) repayable on demand at any time
on or after 31st March, 2001 rather than on demand and (2) is
convertible into shares of the Parent at the price per share
offered to the public pursuant to the Initial Equity Raise
rather than NLG 18;
(ii) (in the case of ▇▇▇▇▇ and/or New ▇▇▇▇▇ only) it will not make
to any Relevant ▇▇▇▇▇ Person (a) any direct or indirect
distribution, dividend or other payment (whether in cash,
securities, property or otherwise), including, without
limitation any loan or any payment on account of its share
capital or capital stock or other securities or any interest
thereon, (b) any transfer of assets or (c) any payment
(whether in cash, securities, property or otherwise)
89
of principal of, or interest on, any debt made available to it
by any Relevant ▇▇▇▇▇ Person, other than pursuant to the
Option Agreements (in their form as at the date of this
Agreement) unless (i) in respect of each of the two most
recent previous consecutive Quarterly Periods, the ratio of
Total Debt to Total Annualised Net Operating Cash Flow
(calculated on the last day of each such Quarterly Period),
each as demonstrated in the Compliance Certificates for the
two Quarterly Periods ending immediately prior to such date,
is less than, and remains below, 3:1, and (ii) no Default has
occurred or would occur or would be reasonably likely to occur
as a result of such distribution, transfer or payment.
(iii) (in the case of the Telekabel Entities only) they will not
make to any Relevant Telekabel Person (a) any direct or
indirect distribution, dividend or other payment (whether in
cash, securities, property or otherwise), including, without
limitation, any loan or any payment on account of their share
capital or capital stock or other securities or any interest
thereon, (b) any transfer of assets or (c) any payment
(whether in cash, securities, property or otherwise) of
principal of, or interest on, any debt made available to any
of them by any Relevant Telekabel Person, other than pursuant
to the Austrian Agreements (in their form as at the date of
this Agreement) unless (i) in respect of each of the two most
recent previous consecutive Quarterly Periods, the ratio of
Total Debt to Total Annualised Net Operating Cash Flow
(calculated on the last day of each such Quarterly Period),
each as demonstrated in the Compliance Certificates for the
two Quarterly Periods ending immediately prior to such date,
is less than, and remains below, 3:1, and (ii) no Default has
occurred or would occur or would be reasonably likely to occur
as a result of such distribution, transfer or payment Provided
that if at any time any Telekabel Entity makes any payment of
Distributable Profits to the Agent pursuant to any instruction
("Anweisung auf ▇▇▇▇▇▇") given to it by CNA, the amount of
Distributable Profits which are not subject to such
instruction may be paid by such Telekabel Entity to the
Relevant Telekabel Person entitled thereto;
For the avoidance of doubt (A) this clause 11.2(k) shall not prevent
any payments, distributions or transfers from one member of the
Restricted Group to another member of the Restricted Group and (B)
this clause 11.2(k) shall not prevent the performance of any
contracts for the provision of goods and services on bona fide arm's
length commercial terms between the Telekabel Entities and any
Relevant Telekabel Person or between New ▇▇▇▇▇ and any Relevant
▇▇▇▇▇ Person;
90
(l) Change of business
------------------
it will not and will procure that the Restricted Group (taken as a
whole) does not change the nature of the business carried on by it
in any material respect from that carried on at the date of this
Agreement and that no member of the Restricted Group ceases to carry
on a business where any such cessation would or is reasonably likely
to have a Material Adverse Effect;
(m) Constitutive documents
----------------------
save for (i) the amendment of the constitutive documents of the
Parent envisaged by the Securities Purchase and Conversion
Agreement, (ii) the amendments to constitutive documents necessary
to enable the Norwegian Merger to take place and (iii) the
amendments to the constitutive documents of Radio Public referred to
in clause 11.1(aa), it will not, and will procure that none of
members of the Restricted Group amends its constitutive documents in
any way which would or is reasonably likely to adversely affect (in
terms of value, enforceability or otherwise) the charge or pledge
granted to the Security Trustee pursuant to the Share Securities;
(n) Securities Purchase and Conversion Agreement
--------------------------------------------
(in the case of the Parent) it will not permit any material
amendment to be made to the Securities Purchase and Conversion
Agreement (or any document, instrument or agreement entered into in
connection therewith) without the prior written consent of the Agent
(acting on the instructions of the Majority Banks);
(o) Indemnity payments
------------------
(in the case of the Parent) it will not make any payment to Philips
Electronics N.V. (or any Subsidiary or Associated Company thereof)
("PHILIPS") in respect of the indemnity granted or to be granted by
the Parent to Philips pursuant to the Securities Purchase and
Conversion Agreement in connection with the obligations of Philips
under the Vienna Agreements (as defined in the Securities Purchase
and Conversion Agreement) until, in respect of each of the two most
recent previous consecutive Quarterly Periods, the ratio of Total
Debt to Total Annualised Net Operating Cash Flow (calculated on the
last day of each such Quarterly Period), each as demonstrated in the
Compliance Certificates for the two Quarterly Periods ending
immediately prior to such date, is less than, and remains below,
3:1; and
(p) Chello and Priority
-------------------
it will not and will not permit any contractual arrangements between
Chello Broadband N.V. and Priority Telecom N.V. and the Restricted
91
Group to be entered into other than on bona fide arm's length
commercial terms.
12 FINANCIAL COVENANTS
-------------------
12.1 Pre Philips Advance Covenants
-----------------------------
The Parent undertakes with each of the Banks, the Arranger, the Security
Trustee and the Agent to ensure that at all times the ratio of Total Debt
to Total Annualised Net Operating Cash Flow (calculated on each Quarter
Day by reference to the Six Month Period ending on such day) shall not
exceed 5:1 at all times prior to the date that the Philips Advance is made
(but, for the avoidance of doubt not on or after such date).
12.2 Post Philips Advance Covenants
------------------------------
From the date that the Philips Advance is made the Parent undertakes with
each of the Banks, the Arranger, the Security Trustee and the Agent:
(a) Total Debt/Total Annualised Net Operating Cash Flow
---------------------------------------------------
to ensure that at all times during the periods set out in column (1)
below the ratio of Total Debt to Total Annualised Net Operating Cash
Flow (calculated on each Quarter Day by reference to the Six Month
Period ending on such day) shall not exceed the ratio set out
against such period in column (2) below:
=================================================================
(1) (2)
Period Ratio
-----------------------------------------------------------------
up to (but excluding) Completion 8.25:1
of the Initial Raise
-----------------------------------------------------------------
from (and including) Completion of the 7.5:1
Initial Raise to (and including)
30th June, 1999
-----------------------------------------------------------------
from (and including) 1st July, 1999 to 8:1
(and including) 31st December, 1999
-----------------------------------------------------------------
from (and including) 1st January, 2000 to 6:1
(and including) 31st December, 2000
-----------------------------------------------------------------
from (and including) 1st January, 2001 to 5:1
(and including) 31st December, 2001
-----------------------------------------------------------------
from (and including) 1st January, 2002 to 4:1
(and including) 31st December, 2002
-----------------------------------------------------------------
Thereafter 3:1
=================================================================
92
(b) Total Debt/Cable TV Annualised Net Operating Cash Flow
------------------------------------------------------
to ensure that at all times up to and including 31st December, 1998
the ratio of Total Debt to Cable TV Annualised Net Operating Cash
Flow (calculated on each Quarter Day by reference to the Six Month
Period ending on such day) shall not exceed the ratio set out
against such period in column (2) below:
================================================================
(1) (2)
Period Ratio
----------------------------------------------------------------
Up to (but excluding) Completion 7:1
of the Initial Equity Raise
----------------------------------------------------------------
from (and including) Completion of 6.25:1
the Initial Raise to (and including)
30th June, 1999
----------------------------------------------------------------
from (and including) 1st July, 1999 to 5:1
(and including) 30th September, 1999
----------------------------------------------------------------
from (and including) 1st October, 1999 to 6.75:1
(and :1ing) 31st December, 1999
----------------------------------------------------------------
from (and including) 1st January, 2000 to 6:1
(and including) 31st December, 2000
----------------------------------------------------------------
from (and including) 1st January, 2001 to 5:1
(and in5:1ding) 31 December, 2001
----------------------------------------------------------------
from (and including) 1st January, 2002 to 4:1
(and including) 31st December, 2002
----------------------------------------------------------------
Thereafter 3:1
================================================================
(c) Senior Debt Interest Cover
--------------------------
to ensure that at all times during the periods set out in column (1)
below, the ratio of Total Annualised Net Operating Cash Flow
(calculated on each Quarter Day by reference to the Six Month Period
ending on such day) to the amount of Total Debt Interest Charges
incurred during such Six Month Period multiplied by two shall be
greater than the number set out against such period in column (2)
below:
================================================================
(1) (2)
Period Ratio
----------------------------------------------------------------
up to (and including) 31st December, 1998 1.5:1
----------------------------------------------------------------
from (and including) 1st January, 1999 to 1.75:1
93
----------------------------------------------------------------
(and including) 31st December, 1999
----------------------------------------------------------------
from (and including) 1st January, 2000 to 2:1
(and including) 30th June, 2000
----------------------------------------------------------------
from (and including) 1st July, 2000 to 3.1
(and including) 31st December, 2000
----------------------------------------------------------------
from (and including) 1st January, 2001 4:1
================================================================
(d) Pro-forma Debt Service Cover
----------------------------
(i) to ensure that at all times from (and including) 31st
December, 2000, the ratio of Total Annualised Net Operating
Cash Flow (calculated on each Quarter Day by reference to the
Six Month Period ending on such day) to Proforma Debt Service
shall not be less than 1.2:1; and
(ii) to ensure that at all times from (and including) 31st March,
2004, the ratio of Total Annualised Net Operating Cash Flow
(calculated in each Quarter Day by reference to the Six Month
Period ending on such day) to Proforma Debt Service shall not
be less than 1.5:1.
12.3 Auditors certificate
--------------------
If at any time the Majority Banks (acting reasonably and following
consultation with the Parent) do not consider that any figure set out in
any Compliance Certificate issued by any Authorised Officer is correct,
they shall be entitled within 30 days of the date of the delivery of such
Compliance Certificate to the Agent pursuant to clause 11.1 to call for a
certificate from the Parent's auditors as to such figure. For such
purposes the Parent's auditors shall act as independent experts and not as
arbiters and every such certificate shall be addressed to the Agent (on
behalf of the Banks) and be at the expense of the Parent (unless the
certificate so provided by the Parent's auditors shows that the relevant
figures set out in the Compliance Certificate are in fact correct in which
case such certificate shall be at the expense of the Banks). The Majority
Banks may only call for one such certificate in any calendar year unless
the relevant figures set out in the Compliance Certificate are in fact
incorrect in which case the Majority Banks may call for up to three
further such certificates in such financial year, provided that if, in any
of such certificates, the relevant figures set out in the Compliance
Certificate are certified as being in fact correct, then the Majority
Banks may not call for such further certificates in such financial year.
If the Majority Banks call for such a certificate all calculations under
this Agreement by reference to the relevant figure shall (i) until the
Parent's auditors deliver the relevant certificate under this clause 12.3
be made by reference to the figure set out in the relevant Compliance
Certificate delivered to the Agent under this Agreement and (ii) following
the delivery by the Parent's auditors of a certificate under this clause
12.3 be made by reference to such certificate and the Parent undertakes
forthwith to take all action including, without limitation, the
94
prepayment of all or part of the Loan so as to procure that all
action taken on the basis of the relevant Compliance Certificate
which on the basis of such auditors' certificate would not have been
permitted is reversed.
95
13 EVENTS OF DEFAULT
-----------------
13.1 Events of default
-----------------
Each of the events and circumstances set out below is an Event of Default
(whether or not caused by any reason outside the control of an Obligor):
(a) Non-payment: any Borrower fails to pay any principal sum due from it
-----------
under this Agreement in the currency, at the time and in the manner
stipulated in this Agreement, or any other sum due from it under
this Agreement within three Banking Days of the due date in the
currency and in the manner stipulated in this Agreement; or
(b) Breach of certain obligations: any Obligor commits any breach of or
-----------------------------
omits to observe any of the obligations or undertakings expressed to
be assumed by it under clauses 11.1(c), (d), (e), (f), (g), (h),
(j)(ii), (k) and (w), clause 11.2(a), (b), (c), (e), (f),(g), (h),
(i), (k) and (n) and clause 12; or
(c) Breach of other obligations: any Obligor commits any breach of or
---------------------------
omits to observe any of the obligations or undertakings expressed to
be assumed by it under this Agreement or the Security Documents
(other than failure to pay any sum when due or any breach of the
undertakings referred to in (b) above) and, in respect of any such
breach or omission which is capable of remedy, such action as the
Agent may require shall not have been taken within 21 days of the
Agent notifying the relevant Obligor of such default and of such
required action; or
(d) Misrepresentation: any representation or warranty made or deemed to
-----------------
be made or repeated by or in respect of any Obligor or any other
member of the Restricted Group in or pursuant to this Agreement or
the Security Documents or in any notice, certificate or statement
referred to in or delivered under this Agreement or the Security
Documents is or proves to have been incorrect or misleading in any
material respect and, in the event that the act or circumstance
which led to such representation or warranty being incorrect or
misleading is capable of remedy, such action as the Agent may
require shall not have been taken within 21 days of the Agent
notifying the relevant Obligor of such act or circumstance and such
required action; or
(e) Challenge to security: any Security Document is not or ceases to be
---------------------
effective (other than those Norwegian Security Documents which are
not required by the Agent to be assumed by or transferred to New
▇▇▇▇▇ at the time of the Norwegian Merger) or any member of the
Restricted Group shall in any way challenge, or proceedings shall in
any way be brought to challenge, the prior status of the charges
created by the Security Documents or the validity or enforceability
of the Security Documents; or
96
(f) Cross-default: any Borrowed Money of any member of the Restricted
-------------
Group is not paid when due or any Borrowed Money of any member of
the Restricted Group becomes (whether by declaration or
automatically in accordance with the relevant agreement or
instrument constituting the same) due and payable prior to the date
when it would otherwise have become due or any creditor of any
member of the Restricted Group becomes entitled to declare any
Borrowed Money of any member of the Restricted Group so due and
payable or to require cash collateralisation or security for any
such Borrowed Money or any facility or commitment available to any
member of the Restricted Group relating to Borrowed Money is
withdrawn, suspended or cancelled by reason of any default (however
described) of the company concerned and the amount, or aggregate
amount at any one time, of all Borrowed Money in relation to which
any of the foregoing events shall have occurred and be continuing is
equal to or greater than NLG 10,000,000 or its equivalent in the
currency in which the same is denominated and payable or if the
Bridge Facility becomes (whether by declaration or automatically in
accordance with the terms of the Bridge Facility Agreement) due and
payable prior to the date when it would otherwise have become due;
or
(g) Derivatives Contract default: any member of the Restricted Group
----------------------------
fails to make payment in relation to a Derivatives Contract of any
sum equal to or greater than NLG 10,000,000 in aggregate at any one
time (or its equivalent in the relevant currency of payment) on its
due date or the counterparty to a Derivatives Contract becomes
entitled to terminate that Derivatives Contract early by reason of
default on the part of any member of the Restricted Group and the
Net Derivatives Liability of such member of the Restricted Group, in
the aggregate, under all its Derivatives Contracts at the relevant
time is not less than NLG 10,000,000 (or its equivalent in the
relevant currency); or
(h) Legal process: any judgment or order made against any member of the
-------------
Restricted Group is not stayed or complied with within 14 days or a
creditor attaches or takes possession of, or a distress, execution,
sequestration or other process is levied or enforced upon or sued
out against, any material part of the undertakings, assets, rights
or revenues of any member of the Restricted Group and is not
discharged within seven days; or
(i) Insolvency:
----------
(i) any member of the Restricted Group which is domiciled or which
has a branch office in the Netherlands is declared bankrupt
(in staat van faillissement verklaard) or enters into a
preliminary or definitive moratorium (in voorlopige of
definitieve surseance van betaling gaan) pursuant to the Dutch
Bankruptcy Act (Faillissementswet);
97
(ii) any "Reorganisationsverfahren", "Ausgleich" or "Konkurs" under
the applicable Austrian Laws is being opened on the assets of
any member of the Restricted Group organised in Austria or any
such member of the Restricted Group enters into an agreement
with its creditors having the same effect;
(iii) any member of the Restricted Group incorporated in Belgium is
declared bankrupt under the Bankruptcy Act of 18 April 1851 of
Belgium or any replacement enactment therefor which is entered
into after the date of this Agreement;
(iv) with respect to any member of the Restricted Group
incorporated in Norway, any order of a competent court or an
event analogous thereto shall be made or any effective
resolution passed with a view to the bankruptcy, composition
proceedings, debt negotiations, liquidation, winding-up or
similar event pursuant to the Norwegian Bankruptcy Act of 8th
June 1984;
(j) Reduction or loss of capital: other than in connection with the
----------------------------
Norwegian Merger or as required in order to consummate the Philips
Transaction a meeting is convened by the Parent or any of its
Subsidiaries for the purpose of passing any resolution to purchase,
reduce or redeem any of its share capital; or
(k) Winding up: any petition is presented and is not discharged within
----------
14 days or other step is taken for the purpose of winding up any
member of the Restricted Group (not being a petition which the
relevant member of the Restricted Group can demonstrate to the
satisfaction of the Agent, by providing an opinion of leading
counsel to that effect, is frivolous, vexatious or an abuse of the
process of the court or relates to a claim to which the relevant
member of the Restricted Group has a good defence and which is being
vigorously contested by the relevant member of the Restricted Group)
or an order is made or resolution passed for the winding up of any
member of the Restricted Group or a notice is issued convening a
meeting for the purpose of passing any such resolution; or
(l) Administration: any petition is presented and is not withdrawn
--------------
within 14 days or other step is taken for the purpose of the
appointment of an administrator of any member of the Restricted
Group or the Agent believes that any such petition or other step is
imminent or an administration order is made in relation to any
member of the Restricted Group; or
(m) Appointment of receivers and managers: any administrative or other
-------------------------------------
receiver is appointed of any member of the Restricted Group or any
material part of their respective assets and/or undertakings or any
other steps are taken to enforce any Encumbrance over all or any
part of the assets of any member of the Restricted Group; or
98
(n) Compositions: any steps are taken, or negotiations commenced, by any
------------
member of the Restricted Group or by any of their respective
creditors with a view to proposing any kind of composition,
compromise or arrangement involving such company and any of its
creditors; or
(o) Analogous proceedings: there occurs, in relation to any member of
---------------------
the Restricted Group, in any country or territory in which any of
them carries on business or to the jurisdiction of whose courts any
part of their respective assets is subject, any event which
corresponds with, or have an effect equivalent or similar to, any of
those mentioned in clauses 13.1(h) to 13.1(n) (inclusive) or any
member of the Restricted Group otherwise becomes subject, in any
such country or territory, to the operation of any law relating to
insolvency, bankruptcy or liquidation; or
(p) Cessation of business: other than in connection with the Norwegian
---------------------
Merger any member of the Restricted Group suspends or ceases or
threatens to suspend or cease to carry on their respective
businesses; or
(q) Seizure: all or a material part of the undertakings, assets, rights
-------
or revenues of, or shares or other ownership interests in, any
member of the Restricted Group are seized, nationalised,
expropriated or compulsorily acquired by or under the authority of
any government; or
(r) Change of Control:
-----------------
(i) after the date of the Philips Advance and prior to the
Relevant Date, UIH and/or any wholly owned Subsidiary of UIH
ceases (A) to own at least 51% of the issued share capital of
the Parent or (B) to own at least 51% of the voting rights
attributable to the issued ordinary share capital of the
Parent or (C) to have the right to receive at least 51% of the
dividends or any other distributions by the Parent; or
(ii) on or after the Relevant Date, (1) UIH and/or any wholly owned
Subsidiary of UIH ceases (A) to own at least 30% of the issued
share capital of the Parent or (B) to own at least 30% of the
voting rights attributable to the issued share capital of the
Parent or (C) to have the right to receive at least 30% of the
dividends or any other distribution by the Parent or (2) any
person or group of persons acting in concert acquires a
shareholding in the Parent greater than that held by UIH
and/or any wholly owned Subsidiary of UIH;
Provided that if, pursuant to the Securities Purchase and Conversion
Agreement, Philips Media Networks B.V. acquires 50 per cent. of the
issued share capital of the Parent and such acquisition would
constitute an Event of Default under this clause 13.1(r) but for
this proviso, then the Banks will consult with UPC and its
shareholders in good faith for a period of up to 90 days during
which period such acquisition will not
99
constitute an Event of Default. Immediately upon the ending of such
period, if, following such good faith consultation, the Majority
Banks determine that such acquisition shall constitute an Event of
Default, the Agent and the Banks shall be entitled to exercise their
rights under clause 13.2 in respect of such Event of Default; or
(s) Principal Agreements:
--------------------
(i) save as is required by any term of this Agreement, any
Principal Agreement is terminated, suspended, revoked or
cancelled or otherwise ceases to be in full force and effect
unless services of a similar nature to those provided pursuant
to such Principal Agreement are at all times provided to the
Restricted Group on similar commercial terms or on terms no
less beneficial to the relevant member of the Restricted Group
save where any such services are provided on more onerous
terms to the relevant member of the Restricted Group due to
the mandatory requirements of any regulatory body and any such
termination, suspension, revocation, cancellation or cessation
would have a Material Adverse Effect; or
(ii) any alteration or variation is made to any term of any
Principal Agreement which would have a Material Adverse
Effect; or
(iii) any party breaches any term of or repudiates any of its
obligations under any of the Principal Agreements where such
breach or repudiation would have a Material Adverse Effect; or
(t) Unlawfulness: it becomes unlawful at any time for any Obligor or any
------------
Subordinated Creditor to perform any of their respective material
obligations under this Agreement or the Security Documents or any of
the material obligations of any Obligor or any Subordinated Creditor
under this Agreement or the Security Documents becomes unenforceable
in any way or there ceases to be security over the relevant property
or assets of the relevant Obligor as intended and created by the
Security Documents; or
(u) Environmental matters: as a result of any Environmental Law: (a) the
---------------------
Agent, the Arranger, the Security Trustee or any of the Banks
becomes, in the opinion of the Agent, subject to a material
obligation (actual or contingent, in the case of any contingent
obligation, being one which, at the relevant time, would be likely
to arise) in relation to any Relevant Substance on or from any
property, owned, occupied or leased by any member of the Restricted
Group; or (b) the rights and claims of the Agent, the Arranger, the
Security Trustee, or any of the Banks under this Agreement or any of
the Security Documents become subordinated to the claims and rights
of any competent agency of any Relevant Jurisdiction or the European
Community; or
100
(v) Telecommunications and Cable Laws: any member of the Restricted
------------------
Group fails to comply with any term or condition of any
Telecommunications and Cable Law where such non-compliance would or
is reasonably likely to have a Material Adverse Effect; or
(w) Repudiation: any member of the Restricted Group repudiates this
-----------
Agreement or any Security Document to which it is a party or does or
causes or permits to be done any act or thing evidencing an
intention to repudiate this Agreement or any such Security Document;
or
(x) Subordinated Creditors:
----------------------
(i) any Subordinated Creditor commits any breach of or omits to
observe any of the obligations or undertakings expressed to be
assumed by it under a Deed of Subordination and in respect of
any such breach or omission which, in the opinion of the Agent
(acting on the instructions of the Majority Banks (acting
reasonably)) is capable of remedy, such action as the Agent
may require shall not have been taken within 21 days of the
Agent notifying such Subordinated Creditor thereof and of such
required action; or
(ii) any representation or warranty made or deemed to be made or
repeated by or in respect of any Subordinated Creditor in or
pursuant to any Deed of Subordination is or proves to have
been incorrect or misleading in any material respect on the
date on which it was made or deemed to be made or repeated
and, in the event that the act or circumstance which led to
such representation or warranty being incorrect or misleading
is capable of remedy, such action as the Agent may require
shall not have been taken within 21 days of the Agent
notifying the relevant Subordinated Creditor of such act or
circumstance and such required action; or
(iii) any Subordinated Creditor is not or ceases to be bound by a
Deed of Subordination; or
(iv) any payment due from a member of the Restricted Group to a
Subordinated Creditor is not or ceases to be subordinated to
the amounts owing under this Agreement; or
(v) any Subordinated Creditor or any liquidator, administrator or
administrative or other receiver (or similar officer) of any
Subordinated Creditor takes steps to contest the subordination
effected by a Deed of Subordination; or
101
(y) Security Documents:
------------------
(i) any Security Provider commits any breach of or omits to
observe any of its obligations or undertakings expressed to be
assumed by it under any Security Document and in respect of
any such breach or omission which is capable of remedy, such
action as the Agent may require shall not have been taken
within 21 days of the Agent and/or the Security Trustee
notifying such Security Provider thereof of such required
action; or
(ii) any representation or warranty made or deemed to be made or
repeated by or in respect of any Security Provider in or
pursuant to any Security Document is or proves to have been
incorrect or misleading in any material respect on the date on
which it was made or deemed to be made or repeated and, in the
event that the act or circumstance which led to such
representation or warranty being incorrect or misleading is
capable of remedy, such action as the Agent and/or the
Security Trustee may require shall not have been taken within
21 days of the Agent and/or the Security Trustee notifying the
relevant Security Provider of such act or circumstance and
such required action; or
(iii) any Security Provider is not or ceases to be bound by any
Security Document; or
(iv) any Security Document is not or ceases to constitute a valid
security interest over the relevant assets of the relevant
Security Provider in accordance with its terms; or
(v) any Security Provider or any liquidator, administrator or
administrative or other receiver (or similar officer) of any
Security Provider takes steps to contest any Security Document
and/or encumbrance effected by a Security Document; or
(z) Material events: any other event occurs or circumstances arise which
---------------
in the opinion of the Agent acting on the instructions of the
Majority Banks is likely to have a Material Adverse Effect; or
(aa) Qualification of accounts: the auditors of any member of the
-------------------------
Restricted Group qualify their report on the audited financial
statements of the relevant member of the Restricted Group and/or the
audited consolidated financial statements of the Restricted Group in
any way whatsoever except where the qualification is of a technical
nature and the remedy for the matter giving rise to the
qualification would have no effect on the results of the relevant
member of the Restricted Group for the period to which such accounts
relate or on the financial position of the relevant member of the
Restricted Group as at the end of such period; or
102
(ab) Failure to borrow the Philips Advance: the Parent fails to draw down
-------------------------------------
the Philips Advance in accordance with the terms of this Agreement
on or before the date falling 180 days after the date of the first
Advance (or such other date as may be agreed by the Agent (acting on
the instructions of all of the Banks acting reasonably)) and there
occurs an Event of Default pursuant to clause 4.10(b); or
(ac) Failure to prepay the Bridge Facility: the Parent fails to procure
-------------------------------------
the prepayment and permanent cancellation of the Bridge Facility by
the earlier of 10 Banking Days following the Completion of the
Initial Equity Raise and the next interest payment date under the
Bridge Facility following Completion of the Initial Equity Raise.
13.2 Acceleration
------------
The Agent may and if so requested by the Majority Banks shall, without
prejudice to any other rights of the Banks, at any time after the
happening of an Event of Default so long as the same is continuing,
unremedied or unwaived by notice to the Parent declare that:
(a) the obligation of each Bank to make its Commitment available shall
be terminated, whereupon the Total Commitments shall be reduced to
zero forthwith; and/or
(b) all outstanding Advances and all interest and commitment commission
accrued and all other sums payable under this Agreement have become
immediately due and payable or have become due and payable on
demand, whereupon the same shall, immediately or in accordance with
the terms of such notice, become so due and payable; and/or
(c) the Security Documents (or any of them) have become enforceable
whereupon the same shall be enforceable.
On or at any time after the making of any such declaration, the Agent
shall be entitled, to the exclusion of the Borrowers (and without
prejudice to clause 5.3), to select the duration of each period for the
calculation of interest in relation to any outstanding Advances or other
sums payable under this Agreement Provided that the Agent agrees that,
without prejudice to any of its other rights under this Agreement, it
shall not accelerate the due date of any sums payable by Telekabel Wien
until 28 days after the date that the Agent has given notice to Telekabel
Wien that a Default has occurred unless at such time (i) Telekabel Wien
has breached any of its obligations under this Agreement or (ii) an Event
of Default has otherwise occurred in relation to Telekabel Wien, in which
case such 28 day grace period (or any unexpired part thereof) shall not
apply.
13.3 Demand basis
------------
If, pursuant to clause 13.2(b), the Agent declares all outstanding
Advances to be due and payable on demand then the Agent may (and, if so
instructed by the
103
Majority Banks, shall) at any time by written notice to the Parent (a)
call for repayment of the Advances on such date as may be specified in
such notice whereupon the Advances shall become due and payable on the
date so specified together with all interest and commitment commission
accrued and all other sums payable under this Agreement or (b) withdraw
such declaration with effect from the date specified in such notice.
14 INDEMNITIES
-----------
14.1 Miscellaneous indemnities
-------------------------
The Parent shall on demand indemnify each Bank, the Arranger and the
Agent, without prejudice to any of their other rights under this Agreement
and the Security Documents, against any loss (including loss of Margin) or
expense which such Bank, the Arranger or the Agent shall certify as
sustained or incurred by it as a consequence of:
(a) any default in payment by any Obligor of any sum under this Agreement
or any of the Security Documents when due;
(b) the occurrence of any other Event of Default;
(c) any prepayment of all or part of any Advance or being made otherwise
than on its Maturity Date; or
(d) any Advance not being made or issued for any reason (excluding any
default by the Agent, the Arranger or any Bank) after a Drawdown
Notice has been given;
including, in any such case, but not limited to, any loss or expense
sustained or incurred by such Bank in maintaining or funding all or any
part of its Contribution or in liquidating or re-employing deposits from
third parties acquired or contracted for to fund all or any part of its
Contribution or any other amount owing to such Bank.
14.2 Currency of account; currency indemnity
---------------------------------------
No payment by any Obligor under this Agreement which is made in a currency
other than the currency ("CONTRACTUAL CURRENCY") in which such payment is
required to be made pursuant to this Agreement shall discharge the
obligation in respect of which it is made except to the extent of the net
proceeds in the Contractual Currency received by the Agent upon the sale
of the currency so received, after taking into account any premium and
costs of exchange in connection with such sale. For the avoidance of doubt
the Agent, the Arranger, the Security Trustee and the Banks shall not be
obliged to accept any such payment in a currency other than the
Contractual Currency nor shall the Agent, the Arranger, the Security
Trustee or the Banks be liable to any Obligor for any loss or alleged loss
arising from fluctuations in exchange rates between the date on which such
payment is so received by the Agent and the date on which the Agent
effects such sale, as to which the Agent shall (as against the relevant
104
Obligor) have an absolute discretion. If any sum due from any Obligor
under this Agreement or any order or judgment given or made in relation
hereto is required to be converted from the Contractual Currency or the
currency in which the same is payable under such order or judgment (the
"FIRST CURRENCY") into another currency (the "SECOND CURRENCY") for the
purpose of (a) making or filing a claim or proof against the relevant
Obligor, (b) obtaining an order or judgment in any court or other tribunal
or (c) enforcing any order or judgment given or made in relation to this
Agreement, the relevant Obligor shall indemnify and hold harmless the
Agent, the Arranger, the Security Trustee and each Bank from and against
any loss suffered as a result of any difference between (i) the rate of
exchange used for such purpose to convert the sum in question from the
first currency into the second currency and (ii) the rate or rates of
exchange at which the Agent, the Arranger, the Security Trustee or such
Bank may in the ordinary course of business purchase the first currency
with the second currency upon receipt of a sum paid to it in satisfaction,
in whole or in part, of any such order, judgment, claim or proof. Any
amount due from any Obligor under the indemnity contained in this clause
14.2 shall be due as a separate debt and shall not be affected by judgment
being obtained for any other sums due under or in respect of this
Agreement and the term "RATE OF EXCHANGE" includes any premium and costs
of exchange payable in connection with the purchase of the first currency
with the second currency.
14.3 Environmental indemnity
-----------------------
The Parent agrees to indemnify on demand each Bank, the Arranger, the
Security Trustee and the Agent, and their respective officers, employees,
agents and delegates (together the "INDEMNIFIED PARTIES") in respect of
which each Bank, the Arranger, the Security Trustee and the Agent holds
this indemnity on trust, without prejudice to any of their other rights
under this Agreement, against any loss, liability, action, claim, demand,
cost, expense, fine or other outgoing whatsoever whether in contract,
tort, delict or otherwise and whether arising at common law, in equity or
by statute which the relevant Indemnified Party shall certify as sustained
or incurred by it at any time as a consequence of, or relating to, or
arising directly or indirectly out of, any Environmental Claims made or
asserted against such Indemnified Party which would not have arisen if
this Agreement had not been executed and which was not caused by the
negligence or wilful default of the relevant Indemnified Party.
105
15 UNLAWFULNESS AND INCREASED COSTS; MITIGATION
--------------------------------------------
15.1 Unlawfulness
------------
If it is or becomes contrary to any law or regulation for any Bank to
contribute to Advances or to maintain its Commitment or fund its
Contribution, such Bank shall promptly, through the Agent, notify the
Parent whereupon (a) such Bank's Commitment shall be reduced to zero and
(b) the Borrowers shall be obliged to prepay the Contribution of such Bank
either (i) forthwith or (ii) on a future specified date not being earlier
than the latest date permitted by the relevant law or regulation. Any
prepayment pursuant to this clause 15.1 shall be made together with all
amounts referred to in clause 6.4.
15.2 Increased costs
---------------
If the result of any change in, or in the interpretation or application
of, or the introduction of, any law or any regulation, request or
requirement (whether or not having the force of law, but, if not having
the force of law, with which the relevant Bank or, as the case may be, its
holding company habitually complies), including (without limitation) those
relating to Taxation, capital adequacy, liquidity, reserve assets, cash
ratio deposits and special deposits, is to:
(a) subject any Bank to Taxes or change the basis of Taxation of any Bank
with respect to any payment under this Agreement (other than Taxes or
Taxation on the overall net income, profits or gains of such Bank
imposed in the jurisdiction in which its principal or lending office
under this Agreement is located); and/or
(b) increase the cost to, or impose an additional cost on, any Bank or its
holding company in making or keeping available all or part of such
Bank's Commitment or maintaining or funding all or part of such Bank's
Contribution; and/or
(c) reduce the amount payable or the effective return to any Bank under
this Agreement; and/or
(d) reduce any Bank's or its holding company's rate of return on its
overall capital by reason of a change in the manner in which it is
required to allocate capital resources to such Bank's obligations
under this Agreement; and/or
(e) require any Bank or its holding company to make a payment or forgo a
return calculated by reference to or on any amount received or
receivable by such Bank under this Agreement; and/or
(f) require any Bank or its holding company to incur or sustain a loss
(including a loss of future potential profits) by reason of being
obliged to deduct all or part of such Bank's Commitment or
Contribution from its capital for regulatory purposes,
106
then and in each such case (but subject to clause 15.3):
(i) such Bank shall notify the Parent through the Agent in writing of
such event promptly upon its becoming aware of the same; and
(ii) the Parent shall on demand, made at any time whether or not such
Bank's Contribution has been repaid, pay to the Agent for the account
of such Bank the amount which such Bank specifies (in a certificate
setting forth the basis of the computation of such amount but not
including any matters which such Bank or its holding company regards
as confidential) is required to compensate such Bank and/or its
holding company for such liability to Taxes, increased or additional
cost, reduction, payment, forgone return or loss.
For the purposes of this clause 15.2 and clause 15.4 "HOLDING COMPANY"
means, in relation to a Bank, the company or entity (if any) within the
consolidated supervision of which such Bank is included.
15.3 Exceptions
----------
Nothing in clause 15.2 shall entitle any Bank to receive any amount in
respect of compensation for any such liability to Taxes, increased or
additional cost, reduction, payment, forgone return or loss to the extent
that the same:
(a) is taken into account in calculating the Additional Cost; or
(b) is the subject of an additional payment under clause 8.5; or
(c) arises as a consequence of (or of any law or regulation implementing)
(i) the proposals for international convergence of capital
measurement and capital standards published by the Basle Committee
on Banking Regulations and Supervisory Practices in July 1988 and/or
(ii) any applicable directive of the European Union (in each case)
unless it results from any change in, or in the interpretation or
application of, such proposals or any such applicable directive (or
any law or regulation implementing the same) occurring after the
date hereof; or
(d) arises as a result of a breach by such Bank of any regulation, request
or requirement (which either (i) is in existence at the date of this
Agreement or (ii) which comes into effect after the date of this
Agreement and with which such Bank would have complied if such
regulation, request or requirement was in effect on the date of this
Agreement) of any applicable central bank or other fiscal, monetary or
other authority (whether or not having the force of law).
For the purposes of clause 15.3(c) the term "APPLICABLE DIRECTIVE" means
(exclusively) each of the Own Funds Directive (89/299/EEC of 17th April
1989) and the Solvency Ratio Directive (89/647/EEC of 18th December 1989).
107
15.4 Mitigation
----------
If circumstances arise which would, or would upon the giving of notice,
result in:
(a) the application of clause 5.6 in relation to any Bank;
(b) any Obligor being required to make an increased payment to any Bank
pursuant to clause 8.5;
(c) the reduction of any Bank's Commitment to zero or the Borrowers being
required to prepay any Bank's Contribution pursuant to clause 15.1; or
(d) the Parent being required to make a payment to any Bank to compensate
such Bank or its holding company for a liability to Taxes, increased
or additional cost, reduction, payment, forgone return or loss
pursuant to clause 15.2(ii);
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Parent or the Borrowers under clause 8 and this clause
15, such Bank shall, in consultation with the Agent, endeavour to take
such reasonable steps (and/or, in the case of clause 15.2(ii) and where
the increased or additional cost, reduction, payment, forgone return or
loss is that of its holding company, endeavour to procure that its holding
company takes such reasonable steps) as are open to it (or, as the case
may be, its holding company) to mitigate or remove such circumstances
(including (in the case of such Bank) the transfer of its rights and
obligations under this Agreement to another bank or financial institution
acceptable to the Parent) unless the taking of such steps might (in the
opinion of such Bank) be prejudicial to such Bank (or, as the case may be,
its holding company) or be in conflict with such Bank's (or, as the case
may be, its holding company's) general banking policies or involve such
Bank (or, as the case may be, its holding company) in any material expense
or any material increased administrative burden.
108
16 SET-OFF AND PRO RATA PAYMENTS
-----------------------------
16.1 Set-off
-------
Each Obligor authorises each Bank to apply any credit balance to which
such Obligor is then entitled on any account of such Obligor with such
Bank at any of its branches in or towards satisfaction of any sum then due
and payable from such Obligor to such Bank under this Agreement. For this
purpose each Bank is authorised to purchase with the moneys standing to
the credit of such account such other currencies as may be necessary to
effect such application. No Bank shall be obliged to exercise any right
given to it by this clause 16.1. Each Bank shall notify the Agent and the
relevant Obligor (giving full details) forthwith upon the exercise or
purported exercise of any right of set-off and the Agent shall inform the
other Banks.
16.2 Pro rata payments
-----------------
(a) If at any time any Bank (the "RECOVERING BANK") receives or recovers
any amount owing to it by any Obligor under this Agreement by direct
payment, set-off or in any manner other than by payment through the
Agent pursuant to clause 8.1 or 8.10 (not being a payment received
from a Substitute in such Bank's Contribution or any other payment
of an amount due to the Recovering Bank for its sole account
pursuant to clauses 6.3, 7, 8.5, 14.1, 14.2, 15 or 15.2), the
Recovering Bank shall, within two Banking Days of such receipt or
recovery (a "RELEVANT RECEIPT") notify the Agent of the amount of
the Relevant Receipt. If the Relevant Receipt exceeds the amount
which the Recovering Bank would have received if the Relevant
Receipt had been received by the Agent and distributed pursuant to
clause 8.1 or 8.10 (as the case may be) then:
(i) within two Banking Days of demand by the Agent, the Recovering
Bank shall pay to the Agent an amount equal (or equivalent) to
the excess;
(ii) the Agent shall treat the excess amount so paid by the
Recovering Bank as if it were a payment made by the relevant
Obligor and shall distribute the same to the Banks (other than
the Recovering Bank) in accordance with clause 8.10; and
(iii) as between the relevant Obligor and the Recovering Bank the
excess amount so re-distributed shall be treated as not having
been paid but the obligations of the relevant Obligor to the
other Banks shall, to the extent of the amount so re-
distributed to them, be treated as discharged.
(b) If any part of the Relevant Receipt subsequently has to be wholly or
partly refunded by the Recovering Bank (whether to a liquidator or
otherwise) each Bank to which any part of such Relevant Receipt was
so re-distributed shall on request from the Recovering Bank repay to
the
109
Recovering Bank such Bank's pro rata share of the amount which has
to be refunded by the Recovering Bank.
(c) Each Bank shall on request supply to the Agent such information as
the Agent may from time to time request for the purpose of this
clause 16.2.
(d) Notwithstanding the foregoing provisions of this clause 16.2 no
Recovering Bank shall be obliged to share any Relevant Receipt which
it receives or recovers pursuant to legal proceedings taken by it to
recover any sums owing to it under this Agreement with any other
party which has a legal right to, but does not, either join in such
proceedings or commence and diligently pursue separate proceedings
to enforce its rights in the same or another court (unless the
proceedings instituted by the Recovering Bank are instituted by it
without prior notice having been given to such party through the
Agent).
16.3 No release
----------
For the avoidance of doubt it is hereby declared that failure by any
Recovering Bank to comply with the provisions of clause 16.2 shall not
release any other Recovering Bank from any of its obligations or
liabilities under clause 16.2.
16.4 No charge
---------
The provisions of this clause 16 shall not, and shall not be construed so
as to, constitute a charge by a Bank over all or any part of a sum
received or recovered by it in the circumstances mentioned in clause 16.2.
110
17 ASSIGNMENT, SUBSTITUTION AND LENDING OFFICES
--------------------------------------------
17.1 Benefit and burden
------------------
This Agreement shall be binding upon, and enure for the benefit of, the
Banks, the Arranger, the Agent, the Security Trustee and the Obligors and
their respective successors.
17.2 No assignment by Obligors
-------------------------
None of the Obligors may assign or otherwise transfer any of its rights or
obligations under this Agreement.
17.3 Substitution
------------
Each Bank (an "EXISTING BANK") may transfer, by way of novation (but not
by way of assignment or otherwise), all or any part (being at least NLG
15,000,000 and an integral multiple of NLG 5,000,000) of its rights,
benefits and/or obligations under this Agreement (including, for the
avoidance of doubt, any outstanding Telekabel Notes) to a Qualifying Bank
(a "SUBSTITUTE") with the prior consent in writing of the Parent, such
consent not to be unreasonably withheld or delayed. Any such novation
shall be effected upon not less than 5 Banking Days' prior notice by
delivery to the Agent of a duly completed Substitution Certificate duly
executed by the Existing Bank and the Substitute. On the Effective Date
(as specified and defined in a Substitution Certificate so executed and
delivered), to the extent that the Commitment and Contribution of the
Existing Bank are expressed in a Substitution Certificate to be the
subject of the novation in favour of the Substitute effected pursuant to
this clause 17.3, by virtue of the counter-signature of the Substitution
Certificate by the Agent (for itself and the other parties to this
Agreement):
(a) the existing parties to this Agreement and the Security Trust Deed
and the Existing Bank shall be released from their respective
obligations towards one another under this Agreement and the
Security Trust Deed ("DISCHARGED OBLIGATIONS") and their respective
rights against one another under this Agreement and the Security
Trust Deed ("DISCHARGED RIGHTS") shall be cancelled;
(b) the Substitute party to the relevant Substitution Certificate and
the existing parties to this Agreement and the Security Trust Deed
(other than such Existing Bank) shall assume obligations towards
each other which differ from the discharged obligations only insofar
as they are owed to or assumed by such Substitute instead of to or
by such Existing Bank; and
(c) the Substitute party to the relevant Substitution Certificate and
the existing parties to this Agreement and the Security Trust Deed
(other than such Existing Bank) shall acquire rights against each
other which
111
differ from the discharged rights only insofar as they are
exercisable by or against such Substitute instead of by or against
such Existing Bank;
and, on such Effective Date, the Substitute shall pay to the Agent for its
own account a fee of(pound)1,000. The Agent shall promptly notify the
Parent of the receipt by it of any Substitution Certificate and shall
promptly deliver a copy of such Substitution Certificate to the Parent.
17.4 Reliance on Substitution Certificate
------------------------------------
The Agent, the Banks, the Arranger, the Security Trustee and the Obligors
shall be fully entitled to rely on any Substitution Certificate delivered
to the Agent in accordance with the foregoing provisions of this clause 17
which is complete and regular on its face as regards its contents and
purportedly signed on behalf of the relevant Existing Bank and the
Substitute and none of the Agent, the Banks, the Arranger, the Security
Trustee or the Obligors shall have any liability or responsibility to any
party as a consequence of placing reliance on and acting in accordance
with any such Substitution Certificate if it proves to be the case that
the same was not authentic or duly authorised.
17.5 Authorisation of Agent
----------------------
Each party to this Agreement irrevocably authorises the Agent to counter-
sign each Substitution Certificate on its behalf for the purposes of
clause 17.3 without any further consent of, or consultation with, any such
party except, in the case of the Parent, the consent required pursuant to
clause 17.3.
17.6 Construction of certain references
----------------------------------
If any Bank novates all or any part of its rights, benefits and
obligations as provided in clause 17.3 all relevant references in this
Agreement and the Security Trust Deed to such Bank shall thereafter be
construed as a reference to such Bank and/or its Substitute to the extent
of their respective interests.
17.7 Lending offices
---------------
Each Bank shall lend through its office at the address specified in part A
of schedule 1 or, as the case may be, in any relevant Substitution
Certificate or through any other office of such Bank selected from time to
time by such Bank through which such Bank wishes to lend for the purposes
of this Agreement, Provided that no such change of lending office may take
place if it would involve any Obligor having to pay any increased cost
with respect to its obligations under this Agreement. If the office
through which a Bank is lending is changed pursuant to this clause 17.7,
such Bank shall notify the Agent promptly of such change.
17.8 Disclosure of information
-------------------------
Subject to such person first executing a confidentiality undertaking in a
form acceptable to the Parent, acting reasonably, any Bank may disclose to
a
112
prospective transferee or to any other person who may propose entering
into contractual relations with such Bank in relation to this Agreement
such information about the Restricted Group as such Bank shall consider
appropriate.
113
18 ARRANGER, AGENT, SECURITY TRUSTEE AND REFERENCE BANKS
-----------------------------------------------------
18.1 Appointment of Agent
--------------------
Each Bank irrevocably appoints the Agent as its agent for the purposes of
this Agreement and irrevocably authorises the Agent in such capacity:
(a) to execute all documents as may be approved by the Majority Banks
for execution by the Agent; and
(b) (whether or not by or through employees or agents) to take such
action on such Bank's behalf and to exercise such rights, remedies,
powers and discretions as are specifically delegated to the Agent by
this Agreement or, (as the case may be) the Security Documents,
together with such powers and discretions as are reasonably
incidental thereto (but subject to any restrictions or limitations
specified in this Agreement). None of the Agent, or the Arranger or
the Security Trustee shall, however, have any duties, obligations or
liabilities (whether fiduciary or otherwise) to the Banks beyond
those expressly stated in this Agreement and/or the Security
Documents.
Notwithstanding that the Agent and the Security Trustee may from time to
time be the same entity, the Agent and Security Trustee have entered into
this Agreement in their separate capacities as agent for the Banks under
and pursuant to this Agreement and as security trustee for the
Beneficiaries (as defined in the Security Trust Deed) to hold the security
created or to be created by the Security Documents on the terms set out in
the Security Trust Deed. However, where this Agreement provides for the
Agent to communicate with or provide instructions to the Security Trustee,
while the Agent and the Security Trustee are the same entity, it will not
be necessary for there to be any such formal communications or
instructions notwithstanding that this Agreement provides in certain cases
for the same to be in writing.
18.2 Agent's actions
---------------
Any action taken by the Agent under or in relation to this Agreement with
requisite authority, or on the basis of appropriate instructions, received
from the Majority Banks (or as otherwise duly authorised) shall be binding
on all the Banks.
18.3 Agent's duties
--------------
The Agent shall:
(a) promptly notify each Bank of the contents of each notice,
certificate or other document received by the Agent from the Parent
or any other Obligor under or pursuanrt to this Agreement;
(b) consult with the Banks as to whether and, if so, how a discretion
vested in the Agent is, either in any particular instance or
generally, to be
114
exercised but so that this shall not prevent the Agent in
exceptional circumstances where time does not permit such
consultation and urgent action is required, from exercising its
rights and powers, or from instructing the Security Trustee to
exercise its rights and powers, to preserve the security constituted
by the Security Documents so long as the Agent promptly notifies the
Banks subsequently of such exercise; and
(c) (subject to the other provisions of this clause 18) take such action
or, as the case may be, refrain from taking such action with respect
to the exercise of any of its rights, remedies, powers and
discretions as agent or security agent, as the Majority Banks may
reasonably direct.
18.4 Agent's rights
--------------
The Agent may:
(a) in the exercise of any right, remedy, power or discretion in
relation to any matter, or in any context, not expressly provided
for by this Agreement, act or, as the case may be, refrain from
acting in accordance with the instructions of the Majority Banks,
and shall be fully protected in so doing;
(b) unless and until it shall have received directions from the Majority
Banks, take such action, or refrain from taking such action in
respect of a Default of which the Agent has actual knowledge as it
shall deem advisable in the best interests of the Banks (but shall
not be obliged to do so);
(c) refrain from acting in accordance with any instructions of the
Majority Banks to institute, or to instruct the Security Trustee to
institute any legal proceedings arising out of or in connection with
this Agreement and/or the Security Documents until it and/or the
Security Trustee has been indemnified and/or secured to its
satisfaction against any and all costs, expenses or liabilities
(including legal fees) which it and/or the Security Trustee would or
might incur as a result;
(d) deem and treat (i) each Bank as the person entitled to the benefit
of the Contribution of such Bank for all purposes of this Agreement
and the Security Documents unless and until a Substitution
Certificate shall have been filed with the Agent and shall have
become effective, and (ii) the office set opposite the name of each
Bank in part A of schedule 1 or, as the case may be, in any relevant
Substitution Certificate as such Bank's lending office unless and
until a written notice of change of lending office shall have been
received by the Agent; and the Agent may act upon any such notice
unless and until the same is superseded by a further such notice;
115
(e) rely as to matters of fact which might reasonably be expected to be
within the knowledge of any Obligor upon a certificate signed by any
director of the relevant Obligor on behalf of such Obligor; and
(f) refrain from doing anything which would, or might in its opinion, be
contrary to any law or regulation of any jurisdiction and may do
anything which is in its opinion necessary or desirable to comply
with any such law or regulation.
18.5 No liability of Arranger, Security Trustee and Agent
----------------------------------------------------
None of the Arranger, the Security Trustee, the Agent or any of their
respective employees and agents shall:
(a) be obliged to request any certificate or opinion under clause 11.1
or any provision of the Security Documents or to make any enquiry as
to the use of the proceeds of the Facility unless (in the case of
the Agent) so required in writing by any Bank, in which case the
Agent shall promptly make the appropriate request of the relevant
Obligor; or
(b) be obliged to make any enquiry as to any breach or default by any
Obligor in the performance or observance of any of the provisions of
this Agreement or as to the existence of a Default unless (in the
case of the Agent) the Agent has actual knowledge thereof or has
been notified in writing thereof by a Bank, in which case the Agent
shall promptly notify the Banks of the relevant event or
circumstance; or
(c) be obliged to enquire whether or not any representation or warranty
made by any Obligor pursuant to this Agreement or any of the
Security Documents is true; or
(d) be obliged to do anything (including, without limitation, disclosing
any document or information) which would, or might in its opinion,
be contrary to any law or regulation or be a breach of any duty of
confidentiality or otherwise be actionable or render it liable to
any person; or
(e) be obliged to account to any Bank for any sum or the profit element
of any sum received by it for its own account; or
(f) be obliged to institute any legal proceedings arising out of or in
connection with, or otherwise take steps to enforce, this Agreement
and/or the Security Documents other than on the instructions of the
Majority Banks; or
(g) be liable to any Bank for any action taken or omitted under or in
connection with this Agreement and/or the Security Documents or the
Loan unless caused by its gross negligence or wilful misconduct.
116
For the purposes of this clause 18 neither the Agent, nor the Security
Trustee shall be treated as having actual knowledge of any matter of which
the corporate finance or any other division outside the agency or loan
administration department of the person for the time being acting as the
Agent or the Security Trustee, as the case may be, may become aware in the
context of corporate finance, advisory or lending activities from time to
time undertaken by the Agent or the Security Trustee, as the case may be,
for the Parent or any of its Subsidiaries or Associated Companies or any
other person which may be a trade competitor of any of the Obligors or may
otherwise have commercial interests similar to those of any of the
Obligors.
18.6 Non-reliance on Arranger, Security Trustee or Agent
---------------------------------------------------
Each Bank acknowledges, by virtue of its execution of this Agreement or,
as the case may be, a Substitution Certificate, that it has not relied on
any statement, opinion, forecast or other representation made by the
Arranger, the Security Trustee or the Agent to induce it to enter into
this Agreement and that it has made and will continue to make, without
reliance on the Agent, the Security Trustee or the Arranger and based on
such documents as it considers appropriate, its own appraisal of the
creditworthiness of the Parent and its Subsidiaries and its own
independent investigation of the financial condition, prospects and
affairs of the Parent and its Subsidiaries in connection with the making
and continuation of the Loan under this Agreement. None of the Arranger,
the Security Trustee or the Agent shall have any duty or responsibility,
either initially or on a continuing basis, to provide any Bank with any
credit or other information with respect to the Obligors whether coming
into its possession before the making of any Advance or at any time or
times thereafter, other than (in the case of the Agent) as provided in
clause 18.3(a).
18.7 No Responsibility on Arranger, Security Trustee or Agent for any Obligor's
--------------------------------------------------------------------------
performance
-----------
None of the Arranger, the Security Trustee or the Agent shall have any
responsibility or liability to any Bank:
(a) on account of the failure of any Obligor to perform its obligations
under this Agreement or any Security Document; or
(b) for the financial condition of any Obligor; or
(c) for the completeness or accuracy of any statements, representations
or warranties in this Agreement, any Security Document or the
Information Memorandum or any document delivered under this
Agreement or any Security Document; or
(d) for the execution, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence of this Agreement or any
of the Security Documents or of any certificate, report or other
document
117
executed or delivered under this Agreement or any of the Security
Documents; or
(e) otherwise in connection with the Facility or its negotiation or for
acting (or, as the case may be, refraining from acting) in
accordance with the instructions of the Majority Banks.
18.8 Reliance on documents and professional advice
---------------------------------------------
The Arranger and the Agent shall be entitled to rely on any communication,
instrument or document believed by it to be genuine and correct and to
have been signed or sent by the proper person and shall be entitled to
rely as to legal or other professional matters on opinions and statements
of any legal or other professional advisers selected or approved by it
(including those in the Agent's employment).
18.9 Other dealings
--------------
The Arranger and the Agent may, without any liability to account to the
Banks, accept deposits from, lend money to, and generally engage in any
kind of banking or other business with, and provide advisory or other
services to, the Parent or any of its Subsidiaries or associated companies
or any of the Banks as if it were not the Arranger or the Agent, as the
case may be.
18.10 Rights of Agent as Bank; no partnership
---------------------------------------
With respect to its own Commitment and Contribution (if any) the Agent
shall have the same rights and powers under this Agreement and the
Security Documents as any other Bank and may exercise the same as though
it were not performing the duties and functions delegated to it under this
Agreement and/or the Security Documents and the term "BANKS" shall, unless
the context clearly otherwise indicates, include the Agent in its
individual capacity as a Bank. This Agreement shall not and shall not be
construed so as to constitute a partnership between the parties or any of
them.
18.11 Amendments; waivers
-------------------
(a) Subject to clause 18.11(b), the Agent may, with the consent of the
Majority Banks (or if and to the extent expressly authorised by the
other provisions of this Agreement) and, if so instructed by the
Majority Banks, shall (i) agree amendments or modifications to this
Agreement with the Obligors and/or (ii) vary or waive breaches of,
or defaults under, or otherwise excuse performance of, any provision
of this Agreement by any Obligor. Any such action so authorised and
effected by the Agent shall be documented in such manner as the
Agent shall (with the approval of the Majority Banks) determine,
shall be promptly notified to the Banks by the Agent and (without
prejudice to the generality of clause 18.2) shall be binding on all
the Banks.
118
(b) Except with the prior written consent of all the Banks, the Agent
shall not have authority on behalf of the Banks (A) to agree with
any Obligor any amendment or modification to this Agreement or to
grant waivers in respect of breaches or defaults or to vary or
excuse performance of or under this Agreement by any Obligor, if the
effect of such amendment, modification, waiver, variation or excuse
would be to (i) reduce the Margin, (ii) postpone the due date or
reduce the amount of any reduction in availability, any payment of
principal, interest, commitment commission or other amount payable
by any Obligor under this Agreement, (iii) change the currency in
which any amount is payable by any Obligor under this Agreement,
(iv) increase any Bank's Commitment, (v) extend the Availability
Period, (vi) change the definition of "Majority Banks" in clause
1.2, (vii) change any provision of this Agreement which expressly or
impliedly requires the approval or consent of all the Banks such
that the relevant approval or consent may be given otherwise than
with the sanction of all the Banks, (viii) change clause 4.1, (ix)
change the order of distribution under clause 8.10, (x) change
clause 16.2, (xi) change this clause 18.11 or (B) release any member
of the Restricted Group or any of their respective assets from the
security created by any of the Security Documents unless such
release is to permit the disposal or other dealing with such asset
in accordance with the terms of this Agreement and any relevant
Security Document or (C) release any Guarantor from its obligations
under any Guarantee to which it is a party.
(c) For the purposes of this clause 18.11 it is expressly agreed and
acknowledged that the execution of a Deed of Borrower Accession or a
Deed of Guarantor Accession or any deed or instrument pursuant to a
further assurance provision in the Security Documents shall not
constitute an amendment or modification to, or variation of, this
Agreement or any of the Security Documents.
18.12 Reimbursement and indemnity by Banks
------------------------------------
Each Bank shall reimburse the Arranger and the Agent (rateably in
accordance with such Bank's Commitment or Contribution), to the extent
that the Arranger or the Agent is not reimbursed by the Obligors, for the
costs, charges and expenses incurred by the Arranger and the Agent in
connection with the negotiation, preparation and execution of this
Agreement and the Security Documents and/or in contemplation of, or
otherwise in connection with, the enforcement or attempted enforcement of,
or the preservation or attempted preservation of any rights under, or in
carrying out its duties under, this Agreement and/or any of the Security
Documents including (in each case) the fees and expenses of legal or other
professional advisers. Each Bank shall on demand indemnify the Agent
(rateably in accordance with its Commitment or Contribution) against all
liabilities, damages, costs and claims whatsoever incurred by the Agent in
connection with this Agreement and the Security Documents or the
performance of its duties under this Agreement and the
119
Security Documents or any action taken or omitted by the Agent under this
Agreement and/or any of the Security Documents, unless such liabilities,
damages, costs or claims arise from the Agent's own gross negligence or
wilful misconduct.
18.13 Retirement of Agent
-------------------
(a) The Agent may retire from its appointment as Agent under this
Agreement having given to the Parent and each of the Banks not less
than 30 days' notice of its intention to do so, provided that no
such retirement shall take effect unless there has been appointed by
the Banks as a successor agent:
(i) a Bank nominated by the Majority Banks with the consent of the
Parent (not to be unreasonably withheld or delayed) or,
failing such a nomination,
(ii) any reputable and experienced bank or financial institution
with offices in London nominated by the Agent with the consent
of the Parent (not to be unreasonably withheld or delayed).
Any corporation into which the Agent may be merged or converted or
any corporation with which the Agent may be consolidated or any
corporation resulting from any merger, conversion, amalgamation,
consolidation or other reorganisation to which the Agent shall be a
party shall, to the extent permitted by applicable law, be the
successor Agent under this Agreement without the execution or filing
of any document or any further act on the part of any of the parties
to this Agreement, save that notice of any such merger, conversion,
amalgamation, consolidation or other reorganisation shall forthwith
be given to the Parent and the Banks.
(b) Upon any such successor as aforesaid being appointed, the retiring
Agent shall be discharged from any further obligation under this
Agreement (but shall continue to have the benefit of this clause 18
in respect of any action it has taken or refrained from taking prior
to such discharge) and its successor and each of the other parties
to this Agreement shall have the same rights and obligations among
themselves as they would have had if such successor had been a party
to this Agreement in place of the retiring Agent. The retiring Agent
shall (at the expense of the Parent) provide its successor with
copies of such of its records as its successor reasonably requires
to carry out its functions under this Agreement.
18.14 Change of Reference Banks
-------------------------
If (a) the whole of the Contribution (if any) of any Reference Bank is
prepaid, (b) the Commitment (if any) of any Reference Bank is reduced to
zero in accordance with clause 6.3 or 15.1, (c) a Reference Bank novates
the whole of its rights and obligations (if any) as a Bank under this
Agreement or (d) any
120
Reference Bank ceases to provide quotations to the Agent for the purposes
of determining LIBOR, the Agent may, acting on the instructions of the
Majority Banks, terminate the appointment of such Reference Bank and after
consultation with the Parent appoint another Bank to replace such
Reference Bank.
18.15 Prompt distribution of proceeds
-------------------------------
Moneys received by the Security Trustee (whether from a Receiver or
otherwise) pursuant to the exercise of (or otherwise by virtue of the
existence of) any rights and powers under or pursuant to any of the
Security Documents shall be paid to the Agent for distribution in
accordance with the terms of the Security Trust Deed shall be distributed
by the Agent as soon as is practicable after the relevant moneys are
received by, or otherwise become available to, the Agent save that
(without prejudice to any other provision contained in any of the Security
Documents) the Agent (acting on the instructions of the Majority Banks)
may credit any moneys received by it to a suspense account for so long and
in such manner as the Agent may from time to time determine with a view to
preserving the rights of the Agent and/or the Arranger and/or the Banks or
any of them to prove for the whole of their respective claims against any
Obligor or any other person liable.
121
19. NOTICES AND OTHER MATTERS
-------------------------
19.1 Notices
-------
Every notice, request, demand or other communication under this Agreement
shall:
(a) be in writing delivered personally or by first-class prepaid letter
(airmail if available) or telefax;
(b) be deemed to have been received, subject as otherwise provided in
this Agreement, in the case of a letter when delivered and, in the
case of a telefax, when a complete and legible copy is received by
the addressee (unless the date of despatch is not a business day in
the country of the addressee or the time of despatch of any telefax
is after the close of business in the country of the addressee in
which case it shall be deemed to have been received at the opening
of business on the next such business day); and
(c) be sent:
(i) to each Obligor at:
▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
Telefax: (▇▇) ▇▇▇▇▇ ▇▇▇▇
Attention: Chief Financial Officer
and,
in addition, the case of Telekabel Wien only, to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇.▇.▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇
Telefax: 431 1701 211
Attention: Chief Financial Officer
(ii) to the Agent, the Arranger and the Security Trustee at:
▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telefax: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Manager, Loans Agency
and:
Telefax: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Director, Communications Finance
122
(iii) to each Bank
at its address or telefax number
specified in
part A of schedule 1 or
in any relevant Substitution Certificate
or to such other address or telefax number as is notified by the
relevant party to the other parties to this Agreement.
19.2 Notices through the Agent
-------------------------
Every notice, request, demand or other communication under this Agreement
to be given by any Obligor to any other party shall be given to the Agent
for onward transmission as appropriate and to be given to the Obligors (or
any of them) shall (except as otherwise provided in this Agreement) be
given by the Agent.
19.3 No implied waivers, remedies cumulative
---------------------------------------
No failure or delay on the part of the Agent, the Arranger, the Banks or
any of them to exercise any power, right or remedy under this Agreement
shall operate as a waiver thereof, nor shall any single or partial
exercise by the Agent, the Arranger, the Banks or any of them of any
power, right or remedy preclude any other or further exercise thereof or
the exercise of any other power, right or remedy. The remedies provided in
this Agreement are cumulative and are not exclusive of any remedies
provided by law.
19.4 English translations
--------------------
All certificates, instruments and other documents to be delivered under or
supplied in connection with this Agreement shall be in the English
language or shall be accompanied by a certified English translation upon
which the Agent, the Arranger and the Banks shall be entitled to rely.
19.5 Counterparts
------------
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so executed
and delivered shall be an original, but all counterparts shall together
constitute one and the same instrument.
19.6 No breach of Austrian Agreements
--------------------------------
The Banks (i) confirm that they have received copies of the Austrian
Agreements in their form at the date of the first supplemental agreement
to this Agreement, and (ii) further confirm, and authorise the Agent to
confirm, that if they, the Agent or the Security Trustee become majority
shareholders in CNA following enforcement of the CNA Share Security they
will not, and they will not instruct the Agent or the Security Trustee to,
require CNA to take any advice
123
which would to their knowledge, after taking advice, constitute a breach
of the Austrian Agreements in their form at the date of the first
supplemental agreements to this Agreement if such action would also
constitute a breach of the Austrian Agreements in their form at the date
on which such action is taken. These confirmations, however, do not
constitute (a) a waiver of any rights the Banks, the Agent or the Security
Trustee may have under the Austrian Agreements as such shareholders or (b)
a guarantee of CNA's obligations under the Austrian Agreements. The Banks
do not have authority to bind any third party who becomes a shareholder in
CNA, whether following enforcement of the CNA Share Security or otherwise,
but the Banks agree that if they, the Agent or the Security Trustee
dispose of the shares in CNA, upon enforcement of the CNA Share Security,
or as shareholders in CNA following enforcement of the CNA Share Security,
otherwise than by means of a public offer, public sale or public auction
they will make such disposal on terms that the acquirer gives a
confirmation in the same terms as this clause 19.6.
124
20 GOVERNING LAW AND JURISDICTION
------------------------------
20.1 Law
---
This Agreement shall be governed by English law.
20.2 Submission to jurisdiction
--------------------------
The parties to this Agreement agree for the benefit of the Agent, the
Arranger, the Security Trustee and the Banks that:
(a) if any party has any claim against any other arising out of or in
connection with this Agreement such claim shall (subject to clause
20.2(c) be referred to the High Court of Justice in England, to the
jurisdiction of which each of the parties irrevocably submits;
(b) the jurisdiction of the High Court of Justice in England over any
such claim against the Agent, the Arranger, the Security Trustee or
any Bank shall be an exclusive jurisdiction and no courts outside
England shall have jurisdiction to hear or determine any such claim;
and
(c) nothing in this clause 20.2 shall limit the right of the Agent, the
Security Trustee, the Arranger or the Banks to refer any such claim
against any Obligor to any other court of competent jurisdiction
outside England, to the jurisdiction of which each Obligor hereby
irrevocably agrees to submit, nor shall the taking of proceedings by
the Agent, the Security Trustee, the Arranger or any Bank before the
courts in one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction whether concurrently or not.
20.3 Agent for service of process
----------------------------
Each Obligor irrevocably designates, appoints and empowers TG Registrars
Limited at present of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ to receive
for it and on its behalf service of process issued out of the High Court
of Justice in England in relation to any claim arising out of or in
connection with this Agreement.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
125
SCHEDULE 1
----------
Part A - The Banks and their Commitments
----------------------------------------
Name Address and telefax number Commitment NLG
----- -------------- -------------
The Toronto-Dominion Triton Court 139,700,000
Bank ▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Communications Finance
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Loan Administration
Barclays Bank plc Structured Finance 93,060,000
5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CIBC ▇▇▇▇ ▇▇▇▇▇ Plc Cottons Centre 73,060,000
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Director, Media &
Communications
HSBC Investment Bank plc Thames Exchange 69,813,000
▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Bank of America N.T. & New Broad Street House 93,060,000
S.A. ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
The Royal Bank of Waterhouse Square 93,060,000
Scotland plc ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
BankBoston, N.A. ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 40,000,000
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇/
0171 222 5649
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/
▇▇▇▇ ▇▇▇▇▇ (Credit matters)
▇▇▇▇▇▇▇ Nel (Administration)
Citibank, N.A. 8th Floor 50,000,000
Zone 5
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/
▇▇▇ ▇▇▇ ▇▇▇ 6144
Attention: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
(Credit matters)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(Operational matters)
Export Development ▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇,▇▇▇,▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/
001 613 598 2514
Attention: ▇▇▇ ▇▇▇▇▇
(Credit matters)
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
(Operational matters)
127
▇▇▇▇▇ Bank N.A. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇,▇▇▇,▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
0171 920 9457
Attention: Nazz ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
(Operational matters)
Deutsche Bank AG London 6 Bishopsgate 60,000,000
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
MeesPierson Coolsingel 93 30,000,000
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇-▇▇▇▇▇ Post/
▇▇▇▇▇ ▇▇▇▇▇
Banque Paribas ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ 40,000,000
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
Cedex 01
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
Attention: Denis de Paillerets
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Ref: 378D
Bank Austria AG Bank Austria House 45,000,000
▇▇/▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Bank of Nova Scotia Scotia House 30,000,000
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Bankers Trust Company ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 30,000,000
▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
British Linen Bank ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 30,000,000
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
De Nationale 4 Carnegieplein 45,000,000
Investeringsbank N.V. ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Banque Artesia Nederland Harengracht 539-543 20,000,000
N.V ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇
Attention: H.D.R. Fledderus
Bank of Scotland International Division 23,247,000
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
129
Part B - Restricted Subsidiaries and Original Guarantors
--------------------------------------------------------
================================================================================
Company Country of Address
------- ---------- -------
Incorporation
-------------
--------------------------------------------------------------------------------
Cable Networks Austria The Netherlands ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇.▇. ▇.▇. ▇▇▇ ▇▇▇▇▇
1070 BT
Amsterdam
--------------------------------------------------------------------------------
Telekabel Wien G.m.b.H. Austria ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
Telekabel Klagenfurt G.m.b.H. Austria ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
Telekabel Graz G.m.b.H. Austria Lazarettgurtel 81, ▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
Telekabel-Fernsehnetz Wiener Austria ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ Neustadt,
Neunkirchen Betriebs-G.m.b.H. Austria
--------------------------------------------------------------------------------
Telekabel-Fernsehnetz Region Austria ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇- G.m.b.H. Traiskirchen, Austria
--------------------------------------------------------------------------------
Radio Public S.A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
▇▇▇▇▇ Multicom A/S ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇
--------------------------------------------------------------------------------
130
Part C - Borrowers
------------------
================================================================================
Company Country of Incorporation Address
------- ------------------------ -------
--------------------------------------------------------------------------------
United Pan-Europe The Netherlands ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇.▇. ▇▇▇ ▇▇▇▇▇
1076 EE Amsterdam
--------------------------------------------------------------------------------
Telekabel Wien G.m.b.H. Austria ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
▇▇▇▇▇ Multicom A/S ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇,
▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇
================================================================================
131
SCHEDULE 2
----------
Form of Drawdown Notice
-----------------------
To: The Toronto-Dominion Bank,
Triton Court,
▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
Attention: Manager, Loans Agency [Date]
NLG 1,100,000,000 Multi-currency Revolving Credit
-------------------------------------------------
Facility Agreement dated 8th October 1997 (as from time to time amended,
------------------------------------------------------------------------
varied, extended, restated, refinanced or replaced, the "AGREEMENT")
--------------------------------------------------------------------
We refer to the Agreement and hereby give you notice that [[if the Borrower is
the Parent or the Norwegian Borrower only] we wish to draw down an Advance of
[amount] on [date] for a Term of [ ] months [[if the Borrower is Telekabel Wien
only] we wish to issue a Telekabel Note in the nominal amount of [ ] on [date]
for a Term of [ ] months]. The funds should be credited to [name and number of
account] with [details of bank in [principal financial centre for relevant
Optional Currency.]]
We confirm that:
(i) so far as we are aware, no event or circumstance has occurred and is
continuing which constitutes a Default; [and]
(ii) the representations and warranties contained in clause 10.1 of the
Agreement to be repeated in accordance with clause 10.3 of the
Agreement;
(A) [if the aggregate Guilder Amount of Advances outstanding after
such drawing would exceed the aggregate Guilder Amount of
Advances outstanding prior to that drawing (after taking into
account any repayment made on the date of such drawing)] are
true and correct; or
(B) [in all other circumstances] are not incorrect or misleading
in any way which would be reasonably likely to have a material
adverse effect on the ability of any Borrower to perform its
obligations under the Agreement or on the financial position
of the Parent and its Subsidiaries taken as a whole;
as at the date of this notice as if made with respect to the facts and
circumstances existing at the date of this notice; [and]
(iii) [[if the Borrower is the Norwegian Borrower only] the amount of the
Advance, when aggregated with other Advances outstanding to the
Norwegian Borrowers, is less than the Norwegian Loan Amount].
132
[[If the Borrower is Telekabel Wien only] We enclose a Telekabel Note in respect
of the drawdown requested by this notice which has been duly completed save for
the provision of such Telekabel Note dealing with the calculation of interest.
We hereby authorise you to complete on our behalf the provisions of such
Telekabel Note dealing with the calculation of interest.]
The Parent confirms that Total Annualised Net Operating Cash Flow is the most
recently delivered Monthly Management Account was [ ].
[The Parent confirms that Cable TV Annualised Net Operating Cash Flow in the
most recently delivered Monthly Management Accounts was [ ]].
The Parent confirms that the ratio of Total Debt (including for these purposes,
the amount of the Advance the subject of this notice) to Total Annualised Net
Operating Cash Flow as calculated from the most recently delivered Monthly
Management Accounts delivered to the Agent under the Agreement was [ ].
[The Parent confirms that the ratio of Total Debt (including for these purposes,
the amount of the Advance the subject of this notice) to Cable TV Annualised Net
Operating Cash Flow as calculated from the most recently delivered Monthly
Management Accounts delivered to the Agent under the Agreement was [ ]].
Words and expressions defined in the Agreement shall have the same meanings
where used in this notice.
For and on behalf of
United Pan-Europe Communications N.V.
..........................
[if Borrower is not the Parent]
For and on behalf of
[Name of relevant Borrower]
..........................
133
SCHEDULE 3
----------
Part A - documents and evidence required as conditions precedent to first
-------------------------------------------------------------------------
Advance
-------
(a) A copy, certified as a true, complete and up-to-date copy by an Authorised
Officer of the Parent, of the constitutive documents of the Parent and
each member of the Restricted Group amended as agreed between the Parent
and the Agent.
(b) A copy, certified as a true copy by an Authorised Officer of the Parent,
of resolutions of the Supervisory Board of Directors of the Parent
evidencing approval of this Agreement, the Security Documents to which it
is a party and authorising its appropriate officers to execute and deliver
this Agreement, such Security Documents and to give all notices and take
all other action required by the Parent under this Agreement and each such
Security Document.
(c) A copy, certified as a true copy by an Authorised Officer of the Parent of
resolutions of the Board of Directors of each of the members of the
Restricted Group (except for the Austrian members of the Restricted Group)
evidencing approval of this Agreement and the Security Documents to which
they are a party and authorising their respective appropriate officers to
execute and deliver such Security Documents and to give all notices and
take all other action required by such member of the Restricted Group
thereunder.
(d) Specimen signatures, authenticated by an Authorised Officer of the Parent,
of the persons authorised in the resolutions referred to in paragraphs (b)
and (c) above, together with originals of the powers of attorney granted
by the Parent and any member of the Restricted Group in connection with
the Finance Documents.
(e) A copy, certified as a true copy by an Authorised Officer of the Parent,
of all consents, authorisations, licences and approvals required by the
members of the Restricted Group to authorise, or required by the members
of the Restricted Group in connection with, the execution, delivery,
validity, enforceability and admissibility in evidence of this Agreement
and the Security Documents and the performance by the members of the
Restricted Group of their respective obligations under this Agreement and
the Security Documents.
(f) An opinion of ▇▇▇▇▇▇ ▇▇▇▇, dated not more than five Banking Days prior to
the first Drawdown Date, in a form acceptable to the Agent.
(g) A copy, certified as a true copy by an Authorised Officer of the Parent of
a letter from each Obligor's agent for receipt of service of process
referred to this Agreement and in the Security Trust Deed accepting its
appointment.
(h) The Share Securities and the Security Trust Deed duly executed by the
Parent and/or by the other members of the Restricted Group party thereto
together with all documents, deeds, notices and certificates required to
be delivered pursuant to the terms thereof.
134
(i) The Disclosure Letter.
(j) The audited financial statements for the financial year ended on 31
December 1996 referred to in clause 10.1(g)(i) and the monthly management
accounts and quarterly management accounts referred to in clause
10.1(g)(ii).
(k) A copy of the Management Base Case.
(l) A copy of the accountants letter relating to the Management Base Case.
(m) Copies, certified by the Authorised Officer of the Parent to be true,
complete and up to date copies of:
(i) the Licences;
(ii) the Principal Agreements; and
(iii) the Necessary Authorisations.
Documents and evidence required as conditions precedent in Austria
------------------------------------------------------------------
1 List of receivables pledged by the Austrian Security Document to be
provided on or before 12 December, 1997 under clause 3.6(b).
2 Written confirmation from the secretary of Telekabel Wien that the pledge
pursuant to the Austrian Security Document has been noted in the
computerised company books of Telekabel Wien to be provided on or before
12 December, 1997 under clause 3.6(b).
3 Originals of the notice and acknowledgement of the pledge of bank account
duly signed by Telekabel Wien and acknowledged by the relevant bank, as
set out in the schedule to the Austrian Security Document to be provided
on or before 12 December, 1997 under clause 3.6(b).
4 A resolution of CNA, as 95 per cent. shareholder in each other Telekabel
Entity (other than Telekabel Wien), inter alia, approving the entry into
by such Telekabel Entity of the Guarantee, in a form acceptable to the
Agent.
5 An opinion of Ortner, Poch, Foramitti Rechtsanwalte, special legal
advisers to the Banks in Austria, dated not more than five Banking Days
prior to the first Drawdown Date, in a form acceptable to the Agent.
Documents and evidence required as conditions precedent in Belgium
------------------------------------------------------------------
1 Entry in the share register of Radio Public of the pledge of shares in
Radio Public given by the Parent, signed by the Parent.
2 Regulatory approvals of Radio Public for Etterbeek, Schaarbeek,
Koekelberg, ▇▇▇▇▇, Ganshoren, Berghem-Sainte-Agathe, Forest, Leuven,
Heverlee and Kessel-Lo and two letters of the Belgian Institute for Post
and Telecommunication
135
authorising Radio Public to operate an Internet Service and a
telecommunications service from 7th May 1997.
3 An opinion of ▇▇▇▇▇▇▇, Van Ommeslaghe & Faures, special legal advisers to
the Banks in Belgium, dated not more than five Banking Days prior to the
first Drawdown Date, in a form acceptable to the Agent.
Documents and evidence required as conditions precedent in the Netherlands
--------------------------------------------------------------------------
1 An extract from the trade register of the Chamber of Commerce of the
Parent and each member of the Restricted Group incorporated in The
Netherlands.
2 A copy, certified as a true, complete and up-to-date copy by an Authorised
Officer of the Parent, of the shareholders' register of (i) the Parent and
(ii) each member of the Restricted Group incorporated in The Netherlands.
3 Resolution of the Board of Supervisory directors of the Parent evidencing
approval of this Agreement and the Security Documents to which the Parent
is a party and authorising the appropriate officers of the Parent to
execute and deliver the Agreement and the Security Documents and to give
all notices and other action required thereunder.
4 A confirmation satisfactory to the Agent from ABN Amro Bank N.V. of all
amounts outstanding under the Existing UPC Facility to be repaid for value
10th October 1997 and confirming that all and any security granted in
connection with such facility will be released and that such facility
shall be irrevocably cancelled on receipt of such amount.
5 An opinion of (i) Trenite Van Doorne and (ii) Horlings, Bronwer &
Horlings, special legal advisers to the Banks in the Netherlands, dated
not more than five Banking Days prior to the first Drawdown Date, in a
form acceptable to the Agent.
Documents and evidence required as conditions precedent in Norway
-----------------------------------------------------------------
1 A shareholders' resolution of the shareholders of ▇▇▇▇▇ evidencing
approval of the shareholders of ▇▇▇▇▇ to the terms of this Agreement and
the obligations of ▇▇▇▇▇ thereunder.
2 A letter from the Norwegian Bankruptcy Register confirming that as of the
first Drawdown Date, none of the members of the Restricted Group
incorporated in Norway have been reported from the local probate courts to
the said register bankrupt.
3 Copies, certified as true copies by an Authorised Officer of the Parent,
of shareholders' registers ("aksjonaerprotokoll") of ▇▇▇▇▇.
136
4 An opinion of Wiersholm, Mellbye & Bech, special legal advisers to the
Banks in Norway, dated not more than five Banking Days prior to the first
Drawdown Date, in a form acceptable to the Agent.
5 Originals of the notice of assignment of dividends and acknowledgement of
notice duly signed by the Parent and acknowledged by ▇▇▇▇▇, as set out in
exhibits 1 and 2 to the Norwegian Share Security.
137
SCHEDULE 3
----------
Part B - Documents and evidence required as conditions precedent to Philips
---------------------------------------------------------------------------
Advance
-------
(a) A copy certified to be a true copy by an Authorised Officer of the Parent
of the Securities Purchase and Conversion Agreement and the Bridge
Facility Agreement.
(b) Evidence satisfactory to the Agent that:
(i) all conditions to the Securities Purchase and Conversion Agreement
have been satisfied other than those dependant upon the drawdown of
the Philips Advance and, if the Parent is required to issue any
Initial Preference Shares (as defined in the Securities Purchase and
Conversion Agreement) pursuant to the terms of the Securities
Purchase and Conversion Agreement such shares are consistent with
the outline terms and conditions contained in the Securities
Purchase and Conversion Agreement;
(ii) all conditions precedent set out in the Bridge Facility Agreement
have been satisfied and a drawdown notice in respect of the full
amount of the Bridge Facility has been given in accordance with the
terms thereof;
(iii) the Parent has sufficient funds at its disposal, in the opinion of
the Agent, which when aggregated with the Philips Advance will
enable the Parent to consummate the Philips Transaction in
accordance with the terms of the Securities Purchase and Conversion
Agreement.
(c) Such other documents and evidence as the Agent shall reasonably require.
138
SCHEDULE 3
----------
Part C - Documents and evidence required as conditions precedent to the first
-----------------------------------------------------------------------------
Advance made to the Norwegian Borrowers if at that time the Norwegian Merger
----------------------------------------------------------------------------
has occurred
------------
(a) An opinion of Wiersholm, Mellbye & Bech, special legal advisers to the
Banks in Norway dated not more than five Banking Days prior to the date of
the first Advance to be made to the Norwegian Borrowers, in a form
acceptable to the Agent.
(b) Each of the Norwegian Security Documents listed in part B of schedule 13
duly executed by the members of the Restricted Group party thereto
together with all documents, deeds, notices and certificates required to
be delivered pursuant to the terms thereof.
(c) A confirmation from ING Bank N.V. specifying the total of all amounts
outstanding under the Existing Norkabel Facility as at the proposed date
of the first Advance to be made to the Norwegian Borrowers and that such
of the Norwegian Security Documents that are to be assigned or transferred
to the Security Trustee by ING Bank N.V. have been deposited with the law
firm Thommessen, Krefting, Greve, ▇▇▇▇ in Oslo, who have been irrevocably
instructed to release the said documents to the law firm Wiersholm,
Mellbye & Bech in Oslo on behalf of the Security Trustee upon confirmation
from ING Bank N.V. that the said amounts have been received and that upon
the said amounts being received all other security granted to ING Bank
N.V. in connection with the Norkabel Facility shall be released, cancelled
or discharged (as the case may be).
(d) each of the documents and evidence specified in part B of schedule 11.
(e) A shareholders resolution of the shareholders of ▇▇▇▇▇ evidencing approval
of the shareholders of ▇▇▇▇▇ to the terms of the Norwegian Security
Documents and the obligations of ▇▇▇▇▇ under those documents.
(f) A copy, certified as a true copy by an Authorised Officer of the Parent of
the Shareholders' registers ("aksjonaerprotokoll") of ▇▇▇▇▇.
(g) A letter from the Norwegian Bankruptcy Register confirming that as of the
date of the first drawdown to be made to the Norwegian Borrowers, that
▇▇▇▇▇ has not been reported from the local probate court to the said local
register bankrupt.
(h) Consent in writing to record the mortgages over leased real estates with
appurtenances forming part of the Norwegian Security Documents, from the
landlords who have not given such consent earlier on.
(i) Evidence of the discharge of all Encumbrances granted by ▇▇▇▇▇ prior to
the date of the Norwegian Merger.
139
(j) An assignment given by the Parent of all of its rights title benefit and
interest in and under the ▇▇▇▇▇ Loan Agreement, in form and substance
satisfactory to the Majority Banks together with such Board Resolutions,
legal opinions and such other documents and evidence to show that the
obligations of the Parent thereunder are legal, valid and binding, as the
Agent, acting on the instructions of the Majority Banks, may reasonable
require.
(k) A copy, certified as a true, complete and up-to-date copy by an Authorised
Officer of each relevant company, of the constitutive documents as at the
date of foundation of such company of each member of the Restricted Group
incorporated in Norway.
140
SCHEDULE 3
----------
Part D - Documents and evidence required as conditions precedent to the first
-----------------------------------------------------------------------------
Advance made to the Norwegian Borrowers if at that time the Norwegian Merger
----------------------------------------------------------------------------
has not occurred
----------------
(a) An opinion of Wiersholm, Mellbye & Bech, special legal advisers to the
Banks in Norway dated not more than five Banking Days prior to the date of
the first Advance to be made to the Norwegian Borrowers, in a form
acceptable to the Agent.
(b) Each of the Norwegian Security Documents listed in part A of schedule 13
duly executed by the members of the Restricted Group party thereto
together with all documents, deeds, notices and certificates required to
be delivered pursuant to the terms thereof.
(c) A confirmation from ING Bank N.V. specifying the total of all amounts
outstanding under the Existing Norkabel Facility as at the proposed date
of the first Advance to be made to the Norwegian Borrowers and that such
of the Norwegian Security Documents that are to be assigned or transferred
to the Security Trustee by ING Bank N.V. have been deposited with the law
firm Thommessen, Krefting, Greve, ▇▇▇▇ in Oslo, who have been irrevocably
instructed to release the said documents to the law firm Wiersholm,
Mellbye & Bech in Oslo on behalf of the Security Trustee upon confirmation
from ING Bank N.V. that the said amounts have been received and that upon
the said amounts being received all other security granted to ING Bank
N.V. in connection with the Norkabel Facility shall be released, cancelled
or discharged (as the case may be).
(d) A shareholders resolution of the shareholders of ▇▇▇▇▇ evidencing approval
of the shareholders of ▇▇▇▇▇ to the terms of the Norwegian Security
Documents and the obligations of ▇▇▇▇▇ under those documents.
(e) A copy, certified as a true copy by an Authorised Officer of the Parent of
the Shareholders' registers ("aksjonaerprotokoll") of each member of the
Restricted Group incorporated in Norway.
(f) A letter from the Norwegian Bankruptcy Register confirming that as of the
date of the first drawdown to be made to the Norwegian Borrowers, no
member of the Restricted Group incorporated in Norway has been reported
from the local probate court to the said local register bankrupt.
(g) Consent in writing to record the mortgages over leased real estates with
appurtenances forming part of the Norwegian Security Documents, from the
landlords who have not given such consent earlier on.
(h) Evidence of the discharge of all Encumbrances granted by ▇▇▇▇▇ prior to
the date of the first Advance to be made to the Norwegian Borrowers.
141
(i) An assignment given by the Parent of all of its rights title benefit and
interest in and under the ▇▇▇▇▇ Loan Agreement, in form and substance
satisfactory to the Majority Banks together with such Board Resolutions,
legal opinions and such other documents and evidence to show that the
obligations of the Parent thereunder are legal, valid and binding, as the
Agent, acting on the instructions of the Majority Banks, may reasonable
require.
(j) A copy, certified as a true, complete and up-to-date copy by an Authorised
Officer of each relevant company, of the constitutive documents as at the
date of the foundation of such company of each member of the Restricted
Group incorporated in Norway.
142
SCHEDULE 4
----------
Calculation of Additional Cost
------------------------------
1 The Additional Cost shall be calculated by the Agent in respect of each
period for which it falls to be calculated relating to an Advance in
accordance with the following formulae:
In relation to each Sterling Advance:
CL + S(L - Z) + 0.01F
---------------------- = per cent. per annum
100- (C + S)
In relation to each other Advance:
0.01F
Y------ = per cent. per annum
100
Where:
C = The amount required to be held as a non-interest bearing cash
ratio deposit with the Bank of England expressed as a
percentage of an eligible institution's eligible liabilities
(above any stated minimum).
F = The amount of Sterling per(pound)1,000,000 of the fee base of
an authorised institution payable to the Financial Services
Authority per annum (disregarding any minimum fee payable
under the Fees Regulations).
L = The rate of interest per annum at which Sterling deposits are
offered by the Agent to leading banks in the London Interbank
Market at or about 11.00 a.m. on the date of calculation for a
period comparable to the period for which the Additional Cost
is to be calculated.
S = The amount required to be placed as special deposits with the
Bank of England, expressed as a percentage of an eligible
institution's eligible liabilities (above any stated minimum).
Y = The fraction of foreign currency liabilities taken into
account under the Fees Regulations in calculating the fee base
(disregarding any offset for claims on non-resident offices).
Z = The lower of L and the rate of interest per annum paid by the
Bank of England on special deposits at or about 11.00 a.m. on
the date of calculation.
143
2 For the purposes of calculating the Additional Cost:
(a) C, L, S and Z are included in the formula as numbers and not as
percentages, e.g. if C = 0.15 per cent. and L = 7 per cent. CL is
calculated as 0.15 x 7;
(b) the formula is applied on the first day of each period for which it
falls to be calculated (and the result shall apply for the duration
of such period);
(c) each amount is rounded up to the nearest four decimal places; and
(d) if the formulae produce a negative percentage, the percentage shall
be taken as zero.
3 If alternative or additional financial requirements are imposed by the
Bank of England, the Financial Services Authority or any other United
Kingdom governmental authority or agency which in the Agent's opinion
(after consultation with the Banks) make the formulae (or either of them)
no longer appropriate, the Agent shall be entitled by notice to the
Borrower to stipulate such other formulae as shall be suitable to apply in
substitution for the formulae. Any such other formulae so stipulated shall
take effect in accordance with the terms of such notice.
4 In this schedule 4:
"AUTHORISED" and "INSTITUTION" have the meanings given to those terms in
the Banking ▇▇▇ ▇▇▇▇;
"BANK OF ENGLAND ACT" means the Bank of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇;
"ELIGIBLE INSTITUTION" has the meaning given to that term in schedule 2 to
the Bank of England Act;
"ELIGIBLE LIABILITIES" has the meaning given to that term in the Cash
Ratio Deposits (Eligible Liabilities) Order 1998 or the applicable
substitute order made under the Bank of England Act as is in force on the
date of application of the formulae;
"FEE BASE" has the meaning given to that term in the Fees Regulations;
"FEES REGULATIONS" means the Banking Supervision (Fees) Regulations 1998
or the applicable substitute regulations made under the Bank of England
Act as are in force on the date of application of the formulae; and
"SPECIAL DEPOSITS" has the meaning given to that term by the Bank of
England on the date of application of the formulae.
144
SCHEDULE 5
----------
Form of Substitution Certificate
--------------------------------
BANKS ARE ADVISED NOT TO EMPLOY SUBSTITUTION CERTIFICATES WITHOUT FIRST ENSURING
--------------------------------------------------------------------------------
THAT THE TRANSACTION COMPLIES WITH ALL APPLICABLE LAWS AND REGULATIONS,
-----------------------------------------------------------------------
INCLUDING THE FINANCIAL SERVICES ▇▇▇ ▇▇▇▇ AND REGULATIONS MADE THEREUNDER.
--------------------------------------------------------------------------
To: The Toronto-Dominion Bank,
Triton Court,
▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
Attention: Manager, Loans Agency ' 19'
Substitution Certificate
------------------------
This Substitution Certificate relates to an Agreement (as from time to
time amended, varied, extended, restated, refinanced or replaced, the
"AGREEMENT") dated ! 1997 between United Pan-Europe Communications N.V. as
Parent and a Borrower (1), the entities listed in part C of schedule 1 thereto
as Borrowers (2), the entities listed in part B of schedule 1 thereto as
Guarantors (3), The Toronto-Dominion Bank as Arranger (4), the banks and
financial institutions whose respective names and addresses are set out in part
A of schedule 1 thereto as Banks (5), The Toronto-Dominion Bank as Agent (6) and
The Toronto-Dominion Bank as Security Trustee (7). Terms defined in the
Agreement shall have the same meaning in this Substitution Certificate.
1 [Name of Existing Bank] (the "Existing Bank") (a) confirms the accuracy of
the summary of its Commitment and Contribution set out in the schedule to
this Substitution Certificate; and (b) requests [Substitute Bank] (the
"Substitute") to accept by way of novation the portion of its Commitment
and Contribution specified in the schedule to this Substitution
Certificate by counter-signing and delivering this Substitution
Certificate to the Agent at its address for the service of notices
specified in the Agreement.
2 The Substitute requests the Agent (on behalf of itself, the Arranger, the
Security Trustee, the Interest Rate Beneficiaries (as defined in the
Security Trust Deed), the Obligors and the Banks) to accept this
Substitution Certificate as being delivered to the Agent pursuant to and
for the purposes of clause ERROR! REFERENCE SOURCE NOT FOUND. of the
Agreement, so as to take effect in accordance with its terms on [date of
transfer], [being not earlier than 5 Banking Days after date of delivery
of the Certificate to the Agent] (the "Effective Date").
3 The Agent (on behalf of itself and the other parties to the Agreement)
confirms the novation effected by this Substitution Certificate pursuant
to and for the purposes of clause 17.3 of the Agreement.
145
4 The Substitute confirms:
(a) that it has received a copy of the Agreement, the Security Trust
Deed and all other Security Documents and other documentation and
information required by it in connection with the transactions
contemplated by this Substitution Certificate;
(b) that it has made its own assessment of the execution, effectiveness,
adequacy, genuineness, validity, enforceability and admissibility in
evidence of the Agreement, the Security Documents and this
Substitution Certificate and has not relied and will not rely on the
Existing Bank or any statements made by the Existing Bank in that
respect;
(c) that it has made and will continue to make its own appraisal of the
creditworthiness of the Parent and its Subsidiaries and its own
independent investigation of the financial condition, prospects and
affairs of the Parent and its Subsidiaries and has not relied and
will not rely on the Existing Bank, the Agent, the Arranger, the
Security Trustee or any other Bank or any statement, opinion,
forecast or other representation made by the Existing Bank, the
Agent, the Arranger, the Security Trustee or any other Bank in that
respect;
(d) accordingly, none of the Existing Bank, the Agent, the Arranger, the
Security Trustee or any other Bank shall have no liability or
responsibility to the Substitute in respect of any of the foregoing
matters[; and]
(e) it is a Qualifying Bank.
5 Execution of this Substitution Certificate by the Substitute constitutes
its representation to the Existing Bank and all other parties to the
Agreement and the Security Trust Deed that it has power to become party to
the Agreement and the Security Trust Deed as a Bank on the terms herein
and therein set out and has taken all necessary steps to authorise
execution and delivery of this Substitution Certificate.
6 The Substitute acknowledges that the Existing Bank has no obligation to
repurchase or reacquire any of the rights and obligations novated by
virtue of this Substitution Certificate or to support, indemnify or
compensate the Substitute for any losses suffered by the Substitute as a
consequence of the novation effected by virtue of this Substitution
Certificate.
7 The Substitute hereby undertakes to the Existing Bank, the Obligors, the
Arranger, the Security Trustee, the Interest Rate Beneficiaries and the
Agent that it will perform in accordance with their terms all those
obligations which by the respective terms of the Agreement and the
Security Trust Deed will be assumed by it after acceptance of this
Substitution Certificate by the Agent.
8 This Substitution Certificate is governed by English law.
146
Note: This Substitution Certificate is not a security, bond, note, debenture,
----
investment or similar instrument.
AS WITNESS the hands of the authorised signatories of the parties hereto on the
date appearing below.
THE SCHEDULE
------------
Amount Advance Maturity Date Portion novated
-------------- ------------- ---------------
Guilder Portion novated
------- ---------------
Amount of NLG
--------- ---
Commitment
----------
NLG
---
Administrative Details of Substitute
------------------------------------
Lending office:
Account for payments:
Telephone:
Telefax:
Attention:
[Existing Bank] [Substitute]
By: By:
Date: Date:
The Agent
By:
on its own behalf
and on behalf of the Parent and the other parties to the Agreement and the
Security Trust Deed
Date:
147
SCHEDULE 6
----------
Part A - Compliance Certificate to be delivered by an Authorised Officer of
---------------------------------------------------------------------------
the Parent
----------
The Toronto-Dominion Bank,
Triton Court,
▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: Manager, Loans Agency [Date]
Dear Sirs,
United Pan-Europe Communications N.V.
-------------------------------------
NLG 1,100,000,000 Multi-Currency Revolving
------------------------------------------
Credit Facility, Loan Agreement dated [ ], 1997
---------------------------------------------------
(as from time to time amended, varied, extended, restated, refinanced
---------------------------------------------------------------------
or replaced the "LOAN AGREEMENT")
---------------------------------
We refer to the Loan Agreement and deliver this Certificate in respect of
the Six Months Period ended [Quarter Day] pursuant to clause 11.1(j)(ii)
thereof. Terms defined in the Loan Agreement shall have the same meaning when
used in this Certificate.
We confirm that:
1 Net Operating Cash Flow for the Restricted Group in respect of the Six
Month Period ending on [Quarter Day] was [ ] [insert calculation
details].
2 Cable TV Net Operating Cash Flow for the Restricted Group in respect of
the Six Month Period ending on [Quarter Day] was [ ] [insert
calculation details].
3 As at the end of [Quarter Day] Total Debt was [ ] [insert calculation
details].
4 Total Debt Interest Charges for the Six Month Period ending on [Quarter
Day] was [ ] [insert calculation details].
5 On the basis of the current rate of interest payable in relation thereto,
the total forecast amount of interest and any other charges payable in
respect of [Borrowed Money of the Restricted Group] during the twelve
months immediately following [Quarter Day] will be [ ]. The principal
amount of [Borrowed Money of the Restricted Group] to be repaid in
accordance with the terms of [such Borrowed Money] during such twelve
months will be [ ] [insert calculation details]/1/
Based on the above, we confirm that on [Quarter Day]:
148
1 The ratio of Total Debt to Total Annualised Net Operating Cash Flow was
[ ] [insert calculation details].
2 The ratio of Total Debt to Cable TV Annualised Net Operating Cash Flow was
[ ] [insert calculation details].
3 The ratio of Total Annualised Net Operating Cash Flow to Total Debt
Interest charges was [ ] [insert calculation details].
4 The ratio of Total Annualised Net Operating Cash Flow to Proforma Debt
Service was [ ] [insert calculation details]./1/
Accordingly, we confirm that [save as disclosed in this certificate] on
[Quarter Day] the Parent was in compliance with those covenants contained in
clause 12.2(a) to (d) inclusive of the Loan Agreement which were applicable as
at [Quarter Day].
We confirm that the representations and warranties contained in clause
10.1 of the Loan Agreement to be repeated in accordance with clause 10.3 of the
Loan Agreement, are true and correct as at the date hereof as if made with
respect to the facts and circumstances existing at such date.
For and on behalf of
United Pan-Europe Communications N.V.
..................
Authorised Officer
/1/ From and including 31st December 2000 only
149
SCHEDULE 6
----------
Part B - Compliance Certificate to be delivered by the auditors of the
----------------------------------------------------------------------
Restricted Group
----------------
The Toronto-Dominion Bank,
Triton Court,
▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: Manager, Loans Agency [Date]
Dear Sirs,
United Pan-Europe Communications N.V.
-------------------------------------
NLG 1,100,000,000,000 Revolving
-------------------------------
Credit Facility, Loan Agreement dated [ ], 1997
--------------------------------------------------
(as from time to time amended, varied, extended, restated,
----------------------------------------------------------
refinanced or replaced the "LOAN AGREEMENT")
--------------------------------------------
We refer to the Loan Agreement and deliver this Certificate in respect of
the financial year ended [year end] pursuant to clause 11.1(j)(ii) thereof.
Terms defined in the Loan Agreement shall have the same meaning when used in
this Certificate.
We confirm that in our opinion:
1 Net Operating Cash Flow for the Restricted Group in respect of the
financial year ending on [year end] was [ ] [insert calculation
details].
2 Cable TV Net Operating Cash Flow for the Restricted Group in respect of
the financial year ending on [year end] was [ ] [insert calculation
details].
3 As at the end of [year end] Total Debt was [ ] [insert calculation
details].
4 Total Debt Interest Charges for the financial year ending on [year end]
was [ ] [insert calculation details].
5 On the basis of the current rate of interest payable in relation thereto,
interest and any other specific rate charges payable in respect of
[Borrowed Money of the Restricted Group] during the twelve months
immediately following [year end] will be [ ]. The principal amount of
[Borrowed Money of the Restricted Group] to be repaid in accordance with
the terms of such Borrowed Money during such twelve months will be [ ]
[insert calculation details]./1/
Based on the above, we confirm that on [year end]:
150
1 The ratio of Total Debt to Total Annualised Net Operating Cash Flow was
[ ] [insert calculation details].
2 The ratio of Total Debt to Cable TV Annualised Net Operating Cash Flow was
[ ] [insert calculation details].
3 The ratio of Total Annualised Net Operating Cash Flow to Total Debt
Interest Charges was [ ] [insert calculation details].
4 The ratio of Total Annualised Net Operating Cash Flow to Pro-forma Debt
Service was [ ] [insert calculation details].
Accordingly, we confirm that in our opinion [and save as disclosed in this
Certificate] as at [year end] the Parent was in compliance with those covenants
contained in clause 12.2 (a) to (d) (inclusive) of the Loan Agreement which were
applicable as at [year end].
For and on behalf of
....................
Auditors
/1/ From and including 31st December 2000 only.
151
SCHEDULE 7
----------
Licences
--------
A: Austrian Licences
-----------------
"AUSTRIAN LICENCES" means the following documents and agreements:
(a) Telekabel Wien
--------------
(i) Gewerbeschein dated 5th November 1981 and
(ii) Gewerbeschein dated 30th October 1979
(iii) Konzessionsdekret dated 8th October 1981
(iv) Fernmeldebewilligung dated 13th September 1993
(v) Wegerechte: ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇
(▇) Telekabel Graz GmbH
-------------------
(i) Gewerbeschein dated 22nd April 1980
(ii) Gewerbeschein dated 7th May 1984
(iii) Fernmeldebewilligung dated 24th October 1995
(c) Telekabel Klagenfurt GmbH
-------------------------
(i) Gewerbeschein dated 10th November 1980
(ii) Gewerbeschein dated 16th December 1982
(iii) Fernmeldebewilligung dated 17th January 1995
(d) Telekabel-Fernsehnetz Baden Betriebsgesellschaft mbh
----------------------------------------------------
(i) Gewerbeschein dated 4th December 1981
(ii) Fernmeldebewillignung dated 26th July 1990 held by Kabel -
TV - Sud GmbH (minority shareholder)
(e) Telekabel-Fernsehnetz Wiener Neustadt/Neunkirchen
---------------------------------------------------------------
Betriebsgesellschaft mbh
------------------------
(i) Gewerbeschein dated 26th June 1984
(ii) Fernmeldebewilligung dated 25th July 1990 held by Kabel-TV-
Wiener Neustadt GmbH (minority shareholder).
152
B: Belgian Licences
----------------
"BELGIAN LICENCES" means the following documents and agreements:
1 BRUSSELS AREA:
--------------
(a) Municipality of Etterbeek:
--------------------------
Licence given by settlement agreement dated 26 May 1997 and authorisation
dated 19 May 1969.
(b) Municipality of Schaerbeek
--------------------------
Licence given by agreement dated 17 July 1968 and authorisation dated 21
October 1969.
(c) Municipality of Koekelberg
--------------------------
Licence given by agreement dated 19 April 1968 and authorisation dated 21
October 1969.
(d) Municipality of Jette
---------------------
Licence given by agreement dated 7 May 1968 and authorisation dated 6
February 1970.
(e) Municipality of Ganshoren
-------------------------
Licence given by agreements dated 19 March 1969 and 18 November 1988 and
authorisation dated 6 February 1970.
(f) Municipality of Berghem-St-Agathe
---------------------------------
Licence given by agreement dated 29th December 1969 and agreement dated 20
July 1988, and authorisation dated 22 December 1970.
(g) Municipality of Forest
----------------------
Licence given by agreement dated 31 March 1969 and authorisation dated 21
December 1970.
2 LEUVEN AREA:
------------
(a) Municipality of Heverlee
------------------------
Licence given by agreement dated 22 November 1968 and authorisation dated
1971.
153
(b) Municipality of Kessel-Lo
-------------------------
Licence given by agreement dated 5 December 1968, and authorisation dated
1971.
(c) Municipality of Leuven
----------------------
Licence given by agreement dated 30 August 1968, and authorisation dated
1971.
3 TELECOMMUNICATIONS SERVICES
---------------------------
(a) Letter of the IBPT authorising Radio Public to provide Internet access
through the company's public telecommunications structure;
(b) Letter of the IBPT authorising Radio Public to operate a public
telecommunications system service as of 7 May 1997, in the territories of
Etterbeek, Shaerbeek, Koekelberg, ▇▇▇▇▇, Ganshoren, Berghem-St.-Agathe,
Forest and Leuven.
154
SCHEDULE 8
----------
Form of Deed of Subordination
-----------------------------
DATED '
-------
[SUBORDINATED CREDITOR] (1)
and
THE TORONTO-DOMINION BANK (2)
(as Security Trustee)
------------------------------
DEED OF SUBORDINATION
------------------------------
▇▇▇▇▇▇ ▇▇▇▇
London
155
THIS DEED OF SUBORDINATION is dated' and made BETWEEN:
(1) [NAME OF SUBORDINATED CREDITOR] (No. [ ]) whose [registered
office/principal place of business] is at [ ] (the "SUBORDINATED
CREDITOR"); and
(2) THE TORONTO-DOMINION BANK of Triton Court, ▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ as Security Trustee.
WHEREAS
(A) By an agreement dated [ ], 1997 (as from time to time amended, varied,
extended, restated, refinanced or replaced, the "FACILITY AGREEMENT") made
between (1) United Pan-Europe Communications N.V., as Parent and a
Borrower, (2) the entities listed in part C of schedule 1 thereto as
Borrowers, (3) the entities listed in part B of schedule 1 thereto as
Original Guarantors, (4) the Arranger, (5) the banks whose names and
addresses are set out in part A of schedule 1 thereto as Banks and (6) the
Agent and (7) the Security Trustee, the Banks agreed, upon and subject to
the terms and conditions of the Facility Agreement, to make available to
the Borrowers a reducing revolving credit facility of up to NLG
1,100,000,000.
(B) The Subordinated Creditor has or will make certain Borrowed Money
available to the Borrowers and/or other members of the Restricted Group
pursuant to the Subordinated Agreements.
(C) The Parent has agreed to procure that the Subordinated Creditor enter into
this Deed pursuant to clause 11.1(x) of the Facility Agreement.
WITNESSES as follows:
1 DEFINITIONS AND INTERPRETATION
------------------------------
1.1 Definitions
In this Deed:
"DISTRIBUTION" means any payment by or distribution of assets whether in
cash, property, securities or otherwise;
"GROUP LIABILITIES" means all Liabilities of the Subordinated Creditor to
any member of the Restricted Group;
"INSOLVENCY EVENT" means, any of the events set out in clauses 13.1(i),
(k), (l) or (o) of the Facility Agreement;
"LIABILITIES" means any obligation for the payment or repayment of money,
whether as principal or as surety and whether present or future, actual or
contingent;
156
"SUBORDINATED AGREEMENTS" means the agreements described in the schedule
together with any other agreement relating to Subordinated Borrowed Money;
"SUBORDINATED BORROWED MONEY" means all Liabilities of members of the
Restricted Group to the Subordinated Creditor in respect of Borrowed Money
howsoever arising, including, without limitation, any such Liabilities
arising by virtue of any right of subrogation, reimbursement or indemnity;
and
"SUBORDINATED LIABILITIES" means all Subordinated Borrowed Money
including, without limitation, all Liabilities of any member of the
Restricted Group under the Subordinated Agreements, including interest
thereon or which may arise as a result of the Subordinated Creditor
entering into or performing all or any of its obligations under any
Subordinated Agreement.
1.2 Facility Agreement definitions
------------------------------
Unless the context otherwise requires, or unless otherwise defined in this
Deed (i) words and expressions defined in the Facility Agreement shall
have the same meaning when used in this Deed (including its recitals) and
(ii) words and expressions defined in the Security Trust Deed shall,
unless otherwise defined in the Facility Agreement, shall have the same
meaning when used in this Deed (including its recitals).
1.3 Interpretation
--------------
The interpretative provisions in clauses 1.3, 1.4, 1.5 and 1.6 of the
Facility Agreement shall apply, mutatis mutandis, in this Deed.
1.4 Effect as a Deed
----------------
This Deed is intended to take effect as a deed notwithstanding that the
Security Trustee and/or the Subordinated Creditor may have executed it
under hand only.
1.5 Successors and assigns
----------------------
The expressions "Borrower", "Obligor", "Subordinated Creditor",
"Beneficiary", "Security Trustee", "Agent", "Parent" and "Member of the
Restricted Group" include, where the context admits, their respective
successors.
2 DEFERRAL UNDERTAKINGS
---------------------
2.1 Subordinated Creditor undertakings
----------------------------------
The Subordinated Creditor hereby undertakes with the Security Trustee
that, notwithstanding any provision of any of the Subordinated Agreements,
for so long as any Secured Obligations remain outstanding, it will, and
will procure that its Subsidiaries will, unless with the prior written
consent of the Security Trustee, directly or indirectly:
157
(a) not demand or accept payment or repayment of, in whole or part, from
any member of the Restricted Group or any other person liable, any
of the Subordinated Liabilities or any distribution of assets
(whether in cash, property, securities or otherwise) in respect of
the same;
(b) not take, accept, receive or permit to exist any Encumbrance to
secure the payment and/or repayment of any of the Subordinated
Liabilities;
(c) not assign, transfer, create any Encumbrance over or otherwise
dispose of, any of the Subordinated Liabilities;
(d) not take, accept or receive any Distribution; or
(e) (save only to the extent it may be required to do so under any
applicable law) not set-off any Subordinated Liabilities against any
Group Liabilities;
(f) not commence any proceedings against any member of the Restricted
Group or take any action for or in respect of the recovery of any of
the Subordinated Liabilities, or any part thereof (including,
without limitation, any action or step with a view to winding up any
member of the Restricted Group);
(g) not enter into any transaction, whether by way of borrowing or
otherwise, constituting, or otherwise suffer to arise any Group
Liabilities;
(h) not agree to any variation of the terms of any Subordinated
Agreement; or
(i) procure that each of its Subsidiaries (which is not a member of the
Restricted Group) enters into a Deed of Subordination prior to any
moneys in respect of any loans made by such Subsidiary to any member
of the Restricted Group and provides the Agent with such evidence as
it may reasonably request as to the power and authority of the
relevant Subsidiary to enter into such Deed of Subordination and
that such Deed of Subordination constitutes valid and legally
binding obligations of the relevant Subsidiary enforceable in
accordance with its terms.
[2.2 Permitted payments
------------------
If (A) no Default has occurred and is continuing or would result from the
making of any payment under this clause 2.2 and (B) in respect of each of
the two most recent previous consecutive Quarterly Periods the ratio of
Total Debt to Total Annualised Net Operating Cash Flow (calculated on the
last day of each such Quarterly Period by reference to the Six Month
Period ended on such date) each as demonstrated in the Compliance
Certificate for the relevant Quarterly Period that has been delivered to
the Agent under the Facility Agreement for the Quarterly Period ending
immediately prior to such date is less than and remains below 3:1, then
this clause shall not prevent the payment of any interest on any
Subordinated Agreement.]
158
2.3 Notification of Subordinated Liabilities
----------------------------------------
The Subordinated Creditor hereby agrees to notify the Security Trustee of
the amounts from time to time of the Subordinated Liabilities and the
Group Liabilities which may be scheduled to be made by any member of the
Restricted Group to the Subordinated Creditor.
3 SUBORDINATION
-------------
3.1 Insolvency Events
-----------------
Upon an Insolvency Event occurring in respect of any member of the
Restricted Group:
(a) the claims of the Subordinated Creditor in respect of the
Subordinated Liabilities shall be postponed in all respects to the
Secured Obligations;
(b) the Subordinated Creditor shall not, unless otherwise directed by
the Security Trustee, prove for the Subordinated Liabilities until
the Secured Obligations have first been paid or discharged in full
(and for all purposes any Distribution received by the Security
Trustee shall only be taken to discharge the Secured Obligations to
the extent of the actual amount received);
(c) if the Subordinated Creditor is directed by the Security Trustee to
prove for the Subordinated Liabilities then it shall act in
accordance with such directions and shall procure that any resultant
Distributions shall be made by the liquidator of the relevant member
of the Restricted Group, or any other person making the
Distribution, to the Security Trustee to the extent necessary to
repay all the Secured Obligations in full; and
(d) the Subordinated Creditor hereby irrevocably authorises and directs
the Security Trustee to submit any proof and/or to instruct the
relevant liquidator or other person to make Distributions in
accordance with the foregoing.
3.2 Payments contrary to this Deed
------------------------------
In the event of:
(a) any payment or other Distribution being made to, or a right of set-
off of the Group Liabilities against the Subordinated Liabilities
being exercised by, the Subordinated Creditor or any member of the
Restricted Group contrary to the provisions of this Deed;
(b) any Distribution being made by a liquidator or other person to the
Subordinated Creditor, rather than to the Security Trustee, as
required by clause 3.1; or
159
(c) the Subordinated Creditor or any member of the Restricted Group
being required to exercise rights of set-off of the Group
Liabilities against the Subordinated Liabilities under applicable
law (as contemplated in clause 2.1(e)).
the Subordinated Creditor shall forthwith pay to the Security Trustee an
amount equal to the Distributions which shall have been so received by it
up to an aggregate amount equal to the Secured Obligations or, as the case
may be, in the case of set-off, an amount equal to the sum set-off up to
an aggregate amount equal to the Secured Obligations and, until such
payment to the Security Trustee, the Subordinated Creditor will hold such
sums on trust for the Security Trustee and any such sums so paid to the
Security Trustee shall be applied in accordance with the terms of the
Security Trust Deed in or toward discharge of the Secured Obligations.
3.3 Subordinated Agreements
-----------------------
Notwithstanding clauses 2 and 3, nothing contained in this Deed is
intended to or shall impair, as between the members of the Restricted
Group and the Subordinated Creditor, the obligations of the members of the
Restricted Group under the Subordinated Agreements, including the
obligation to pay to the Subordinated Creditor all of the Subordinated
Liabilities. Until all of the Subordinated Liabilities are paid in full by
the relevant members of the Restricted Group in funds which may, at the
time when the same are received, be fully retained by the Subordinated
Creditor after giving effect to this Deed, the members of the Restricted
Group shall remain fully liable under the Subordinated Agreements and any
payment made to the Subordinated Creditor in contravention of the terms of
this Deed or by the Subordinated Creditor to the Agent pursuant to this
Deed shall not be deemed for these purposes to have in any way
extinguished the obligations of the members of the Restricted Group to the
Subordinated Creditor in relation to the Subordinated Liabilities pursuant
to the Subordinated Agreements.
3.4 Subrogation
-----------
If the Secured Obligations are partially paid out of any proceeds received
in respect of or on account of any Subordinated Liabilities, the Creditor
will not be subrogated to the Secured Obligations so paid (or any
Collateral Instrument) until the Secured Obligations have been irrevocably
paid in full.
160
4 CONTINUING OBLIGATIONS
----------------------
4.1 Continuing obligations
----------------------
The obligations of the Subordinated Creditor hereunder shall be continuing
obligations and shall be and remain fully effective until this Deed is
formally released following the discharge in full of the Secured
Obligations notwithstanding any intermediate reduction or settlement of
the Secured Obligations or any part thereof and notwithstanding any
increase in or variation of the Secured Obligations or any amendment,
variation, extension, restatement, refinancing or replacement of the
Facility Agreement any Interest Rate Hedging Arrangements or Security
Document.
4.2 Statements of account
---------------------
Any statement of account of the Parent, signed as correct by an officer of
the Agent, showing the amount of the Secured Obligations shall be prima
facie evidence of the amount of the Secured obligations.
4.3 Continuing security and other matters
-------------------------------------
This Deed shall:
(a) secure the ultimate balance from time to time of the Secured
Obligations and shall be a continuing security, notwithstanding any
settlement of account or other matter whatsoever;
(b) be in addition to any present or future Collateral Instrument, right
or remedy held by or available to the Beneficiaries or any of them;
and
(c) not be in any way prejudiced or affected by the existence of any
Collateral Instrument or other right or remedy or by the same
becoming wholly or in part void, voidable or unenforceable on any
ground whatsoever or by the Beneficiaries or any of them dealing
with, exchanging, varying or failing to perfect or enforce any of
the same or giving time for payment or indulgence or compounding
with any other person liable.
4.4 Liability unconditional
-----------------------
The liability of the Subordinated Creditor shall not be affected,
discharged or reduced by reason of:
(a) the Incapacity or any change in the name, style or constitution of
any Obligor or any other person;
(b) the Beneficiaries (or any of them) granting any time, indulgence or
concession to, or compounding with, discharging, releasing or
varying the liability of, any Obligor or any other person or
renewing, determining, varying or increasing any accommodation,
facility or transaction or otherwise dealing with the same in any
manner whatsoever or concurring
161
in, accepting or varying any compromise, arrangement or settlement
or omitting to claim or enforce payment from any Obligor or any
other person; or
(c) any act or omission which but for this provision might operate to
exonerate the Subordinated Creditor.
4.5 Collateral Instruments
----------------------
None of the Beneficiaries shall be obliged to make any claim or demand on
the Obligors or to resort to any Collateral Instrument or other means of
payment now or hereafter held by or available to them or it before
enforcing this Deed and no action taken or omitted by the Beneficiaries in
connection with any such Collateral Instrument or other means of payment
shall discharge, reduce, prejudice or affect the liability of the
Subordinated Creditor under this Deed nor (until sufficient money has been
received by the Beneficiaries (whether or not credited to a suspense
account), to discharge irrevocably the Secured Obligations in full and no
Beneficiary is under any commitment to permit any Secured Obligations to
become outstanding) shall any of the Beneficiaries be obliged to account
for any money or other property received or recovered in consequence of
any enforcement or realisation of any such Collateral Instrument or other
means of payment.
4.6 Suspense accounts
-----------------
Any money received in connection with this Deed (whether before or after
any Incapacity of any Obligor, any other person or the Subordinated
Creditor) may be placed to the credit of an interest bearing suspense
account (until sufficient money has been credited to such suspense account
to irrevocably discharge the Secured Obligations in full and no
Beneficiary is under any commitment to permit any Secured Obligations to
become outstanding) with a view to preserving the rights of the
Beneficiaries to prove for the whole of their respective claims against
the Obligors or any other person liable or may be applied in or towards
satisfaction of such of the Secured Obligations in accordance with the
terms of the Security Trust Deed. Interest shall accrue on monies from
time to time standing to the credit of any suspense account at the rate
agreed between the Security Trustee and the Subordinated Creditor at the
relevant time or, failing such agreement, the Security Trustee's overnight
deposit rate from time to time and shall be credited to such suspense
account or may be applied in or towards satisfaction of the Secured
Obligations in accordance with the terms of the Security Trust Deed.
4.7 Settlements conditional
-----------------------
Any release, discharge or settlement between the Subordinated Creditor and
the Beneficiaries (or any of them) shall be conditional upon no security,
disposition or payment to the Beneficiaries (or any of them) by any
Obligor or any other person liable being void, set aside or ordered to be
refunded pursuant to any enactment or law relating to bankruptcy,
liquidation, administration or insolvency or for any other reason
whatsoever and if such condition shall not be
162
fulfilled the Security Trustee shall be entitled to enforce this Deed
subsequently as if such release, discharge or settlement had not occurred
and any such payment had not been made.
4.8 Retention of this Deed
----------------------
Notwithstanding any other provision of this Deed, this Deed shall not be
released, the Security Trustee shall be entitled to retain this Deed and
all the provisions of this Deed shall remain in full force and effect
until the irrevocable payment or discharge in full of all the Secured
Obligations.
5 REPRESENTATIONS AND WARRANTIES
------------------------------
5.1 Representations and warranties
------------------------------
The Subordinated Creditor represents and warrants in respect of itself and
its Subsidiaries to the Security Trustee that:
(a) Due incorporation
-----------------
the Subordinated Creditor is duly [incorporated] under the laws of !
as a [limited liability company] and has the [corporate] power to
carry on its business as it is now being conducted and to own its
property and other assets;
(b) Corporate power
---------------
the Subordinated Creditor has the [corporate] power to execute,
deliver and perform its obligations under this Deed; all necessary
[corporate, shareholder] and other action has been taken to
authorise the execution, delivery and performance of the same;
(c) Binding obligations
-------------------
this Deed constitutes valid and legally binding obligations of the
Subordinated Creditor enforceable in accordance with its terms;
(d) No conflict with other obligations
----------------------------------
the execution and delivery of, the performance of its obligations
under, and compliance with the provisions of, this Deed by the
Subordinated Creditor will not (i) contravene any existing
applicable law, statute, rule or regulation or any judgment, decree
or licence to which the Subordinated Creditor is subject, (ii)
conflict with, or result in any breach of any of the terms of, or
constitute a default under, any agreement, permit or other
instrument to which the Subordinated Creditor is a party or is
subject or by which it or any of its property is bound, (iii)
contravene or conflict with any provision of the Subordinated
Creditor's [Memorandum and Articles of Association] or (iv) result
in the
163
creation or imposition of or oblige the Subordinated Creditor or any
of its Subsidiaries to create any Encumbrance on any of the
Subordinated Creditor's or any of its Subsidiaries' undertakings,
assets, rights or revenues;
(e) Consents obtained
-----------------
every consent, authorisation, licence or approval of, or
registration with or declaration to, governmental or public bodies
or authorities (in each case, solely in their capacity as such a
body or authority and not in any other capacity) or courts required
by the Subordinated Creditor to authorise, or required by the
Subordinated Creditor in connection with, the execution, delivery,
validity, enforceability or admissibility in evidence of this Deed
or the performance by the Subordinated Creditor of its obligations
under this Deed has been obtained or made and is in full force and
effect and there has been no material default which is continuing in
the observance of the conditions or restrictions (if any) imposed
in, or in connection with, any of the same;
(f) No filings required
-------------------
it is not necessary to ensure the legality, validity, enforceability
or admissibility in evidence of this Deed that it or any other
instrument be notarised, filed, recorded, registered or enrolled in
any court, public office in any relevant jurisdiction or that any
stamp, registration or similar tax or charge be paid in any relevant
jurisdiction on or in relation to this Deed and this Deed is in
proper form for its enforcement in the courts of any relevant
jurisdiction;
(g) No litigation
-------------
no litigation, arbitration or administrative proceeding is taking
place, or, to the knowledge of the officers of the Subordinated
Creditor pending or threatened against the Subordinated Creditor or
any of its Subsidiaries or Associated Companies which would or is
reasonably likely to have a material adverse effect on the ability
of the Subordinated Creditor to fulfil its obligations under this
Deed; and
(h) Choice of law
-------------
the choice by the Subordinated Creditor of English law to govern
this Deed and the submission by the Subordinated Creditor to the
jurisdiction of the English courts is valid and binding.
164
5.2 Repetition
----------
The representations and warranties in clause 5.1 shall be deemed to be
repeated by the Subordinated Creditor in respect of itself and its
Subsidiaries on and as of each date on which any of the representations
and warranties contained in clause 10.1 of the Facility Agreement are
repeated or deemed to be repeated with reference to the facts and
circumstances existing on such day.
5.3 Covenant
--------
The Subordinated Creditor undertakes with the Security Trustee that it
will, without prejudice to clause 5.1, (i) obtain or cause to be obtained,
maintain in full force and effect and comply in all material respects with
the conditions and restrictions (if any) imposed in, or in connection
with, every consent, authorisation, licence or approval of governmental or
public bodies or authorities (in each case, solely in their capacity as
such a body or authority and not in any other capacity) or courts (and do,
or cause to be done, all other acts and things) which may from time to
time be necessary or reasonably desirable under applicable law of any
relevant jurisdiction for the continued due performance of all its
obligations under this Deed, and (A) ensure that none of the same is
revoked, cancelled, suspended, withdrawn, terminated, expires and is not
renewed or otherwise ceases to be in full force and effect without a new
one having first been put in place with the Subordinated Creditor on
substantially identical terms or on terms more beneficial to the
Subordinated Creditor, and (B) ensure that none of the same is modified in
any material respect and that the Subordinated Creditor does not commit
any default in the observance of the conditions or restrictions (if any)
imposed in, or in connection with, any of the same which, in the case of
any of the events referred to in (B) above, in the reasonable opinion of
the Majority Banks, would or is reasonably likely to have a material
adverse effect on the ability of the Subordinated Creditor to perform all
or any of its obligations under or otherwise to comply with the terms of
this Deed, and (ii) ensure that this Deed is notarised, filed, recorded,
registered or enrolled in any court or public office in any relevant
jurisdiction necessary to ensure the legality, validity, enforceability or
admissibility in evidence thereof and that any stamp, registration or
similar tax or charge is paid in any relevant jurisdiction on or in
relation to this Deed.
6 BENEFIT OF THIS DEED
--------------------
6.1 Benefit and burden
------------------
This Deed shall be binding upon the Subordinated Creditor and its
successors in title and shall enure for the benefit of the Security
Trustee (and any successor Security Trustee appointed pursuant to the
terms of the Security Trust Deed) and their respective successors for the
benefit of the Beneficiaries in accordance with the provisions of the
Security Trust Deed.
165
6.2 No assignment
-------------
The Subordinated Creditor may not assign or transfer any of its rights or
obligations under this Deed.
6.3 The Security Trust Deed
-----------------------
The Subordinated Creditor and the Security Trustee hereby acknowledge that
the covenants of the Creditor contained in this Deed and the rights
constituted by this Deed and all moneys, property and assets paid to, or
held, received or recovered by the Security Trustee pursuant to or in
connection with this Deed are held by the Security Trustee subject to and
on the terms of the trusts declared in the Security Trust Deed.
6.4 Changes in constitution or reorganisation of Beneficiaries
----------------------------------------------------------
For the avoidance of doubt and without prejudice to the provisions of
clause 6.1, this Deed shall remain binding on the Subordinated Creditor
notwithstanding any change in the constitution of any of the Beneficiaries
or their or its absorption in, or amalgamation with, or the acquisition of
all or part of their or its undertaking or assets by, any other person, or
any reconstruction or reorganisation of any kind, to the intent that this
Deed shall remain valid and effective in all respects in favour of the
Security Trustee (and any successor Security Trustee appointed pursuant to
the provisions of the Security Trust Deed and their respective successors
in title) as trustee for the Beneficiaries and any assignee, transferee or
other successor in title of a Beneficiary.
7 NOTICES AND OTHER MATTERS
-------------------------
7.1 Notices
-------
Every notice, request, demand or other communication under this Deed shall
be made in accordance with the provisions, mutatis mutandis, of clause 19
of the Facility Agreement and shall be sent to the Subordinated Creditor
at its address set out above (facsimile number: [!]) or to the Security
Trustee at its address set out in clause 19 of the Facility Agreement or
to such other address or facsimile number as is notified by one party to
this Deed to the other.
7.2 No implied waivers, remedies cumulative
---------------------------------------
No failure or delay on the part of the Security Trustee to exercise any
power, right or remedy under this Deed shall operate as a waiver thereof,
nor shall any single or partial exercise by the Security Trustee of any
power, right or remedy preclude any other or further exercise thereof or
the exercise of any other power, right or remedy. The remedies provided in
this Deed are cumulative and are not exclusive of any remedies provided by
law.
166
7.3 Other Collateral Instruments
----------------------------
The Subordinated Creditor agrees to be bound by this Deed notwithstanding
that any other person intended to execute or to be bound by any Collateral
Instrument may not do so or may not be effectually bound and
notwithstanding that such other Collateral Instrument may be determined or
be or become invalid or unenforceable against any other person, whether or
not the deficiency is known to the Security Trustee or any of the other
Beneficiaries.
7.4 Severability
------------
Each of the provisions of this Deed is severable and distinct from one
another and if at any time one or more of such provisions is or becomes
illegal, invalid or unenforceable under any applicable law the validity
legality and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
7.5 Counterparts
------------
This Deed may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so executed
and delivered shall be an original, but all counterparts shall together
constitute one and the same instrument.
8 LAW AND JURISDICTION
--------------------
8.1 Governing law
-------------
This Deed is governed by and shall be construed in accordance with English
law.
8.2 Submission to jurisdiction
--------------------------
The Subordinated Creditor agrees for the benefit of the Security Trustees
that:
(a) if any party has any claim against any other arising out of or in
connection with this Agreement such claim shall (subject to clause
8.2(c)) be referred to the High Court of Justice in England, to the
jurisdiction of which each of the parties irrevocably submits;
(b) the jurisdiction of the High Court of Justice in England over any
such claim against the Security Trustee shall be an exclusive
jurisdiction and no courts outside England shall have jurisdiction
to hear or determine any such claim; and
(c) nothing in this clause 8.2 shall limit the right of the Security
Trustee to refer any such claim against the Subordinated Creditor to
any other court of competent jurisdiction outside England, to the
jurisdiction of which the Subordinated Creditor hereby irrevocably
agrees to submit, nor shall the taking of proceedings by the
Security Trustee before the courts in one or
167
more jurisdictions preclude the taking of proceedings in any other
jurisdiction whether concurrently or not.
8.3 Agent for service of process
----------------------------
The Subordinated Creditor irrevocably designates, appoints and empowers !
Limited at present of ! to receive for it and on its behalf service of
process issued out of the High Court of Justice in England in relation to
any claim arising out of or in connection with this Agreement.
IN WITNESS whereof this Deed has been executed by each party hereto the day and
year first above written.
168
Schedule
--------
Subordinated Agreements
-----------------------
1 The agreements, the details of which are set out below:
Date Document Parties
---- -------- -------
! ! !
2 Each and every Encumbrance issued or entered into by the Parent or any
member of the Restricted Group in favour of the Subordinated Creditor in
respect of the Subordinated Borrowed Money.
169
SUBORDINATED CREDITOR
---------------------
EXECUTED as a DEED )
by [SUBORDINATED CREDITOR] )
SECURITY TRUSTEE
----------------
SIGNED for and on behalf of )
THE TORONTO-DOMINION BANK )
by: )
170
SCHEDULE 9
----------
Principal Agreements
--------------------
1 The General Services Agreements between the Parent and each of:
(i) Radio Public, effective from 1st January 1995;
(ii) Norkabel, effective from 1st January, 1997; and
(iii) the Telekabel Entities (other than CNA), effective from 1st January,
1995.
2 The Radio Public Bond.
3 The Telekabel Bond.
4 The Austrian Agreements.
5 The Option Agreements.
6 The Stock Option Plan.
7 The Securities Purchase and Conversion Agreement.
8 The ▇▇▇▇▇ Loan Agreement.
9 The documents constituting the Norwegian I/C Indebtedness.
171
SCHEDULE 10
-----------
Part A - Deed of Guarantor Accession
------------------------------------
To: THE TORONTO-DOMINION BANK as Security Trustee
From: [PROPOSED GUARANTOR] and [UNITED PAN-EUROPE
COMMUNICATIONS N.V.]
Date: [ ]
UNITED PAN-EUROPE COMMUNICATIONS N.V. NLG 1,100,000,000 Senior Reducing
Revolving Credit Agreement dated , 1997 (as from time to time
amended, varied, extended, restated, refinanced or replaced the "FACILITY
AGREEMENT")
We refer to clause 9.17 of the Facility Agreement. Words and expressions defined
in the Facility Agreement have the same meanings when used in this Deed.
We, [name of company] of [address] agree to become an Acceding Guarantor and to
be bound by the terms of the Facility Agreement as an Acceding Guarantor in
accordance with clause 9.16 of the Facility Agreement and the Security Trust
Deed as a Guarantor in accordance with clause 10.16 of the Security Trust Deed.
[LOCAL LAW LIMITATIONS ON AMOUNTS GUARANTEED BY ACCEDING GUARANTOR (IF ANY)]
Our address for notices for the purposes of clause 19.1 of the Facility
Agreement is:
[
]
This Deed is intended to be executed as a deed and is governed by English law.
[PROPOSED GUARANTOR] [UNITED PAN-EUROPE
COMMUNICATIONS N.V.]
[Appropriate execution clause] [Appropriate execution clause]
By: By:
172
By:
THE TORONTO-DOMINION BANK
[Appropriate execution clause]
By
173
SCHEDULE 10
-----------
Part B - Documents and Evidence to be delivered by an Acceding Guarantor
------------------------------------------------------------------------
(a) Deed of Guarantor Accession, duly executed under seal by the
Acceding Guarantor and the Parent;
(b) a Share Security over the shares of the Acceding Guarantor, duly
executed as a deed by the parties to it (the "Relevant Shareholders")
and such other Security Documents as the Agent may reasonably require;
(c) a copy of the constitutional documents of each of the Acceding
Guarantor and the Relevant Shareholders;
(d) a copy of a resolution of the board of directors of each of the
Acceding Guarantor and Relevant Shareholders approving the terms of,
and the transactions contemplated by, the Deed of Guarantor Accession,
the relevant Security Documents or the relevant Share Security (as
appropriate) and authorising its appropriate officers to execute and
deliver the Deed of Guarantor Accession, the relevant Security
Documents or the Share Security (as appropriate) and give all notices
and take all other action required by it under the Finance Documents;
(e) a certificate of a director of the Acceding Guarantor certifying that
the amounts to be guaranteed by the Acceding Guarantor would not cause
any guaranteeing limit binding on it to be exceeded;
(f) a copy of any other authorisation or other document, opinion or
assurance which is necessary for the execution, delivery and validity
and enforceability of the Deed of Guarantor Accession, the relevant
Security Documents or the Share Security;
(g) a specimen of the signature of each person authorised by a resolution
referred to in paragraph (d) above;
(h) if available, a copy of the latest audited accounts of the Acceding
Guarantor;
(i) a legal opinion of English legal advisers, acceptable to the Agent,
addressed to the Security Trustee on behalf of the Beneficiaries (as
defined in the Security Trust Deed)
(j) if the Acceding Guarantor and/or a Relevant Shareholder is
incorporated in a jurisdiction outside England, a legal opinion of
legal advisers, acceptable to the Agent, in the jurisdiction of
incorporation of the Acceding Guarantor and/or Relevant Shareholder
(as appropriate), addressed to the Security Trustee on behalf of the
Beneficiaries (as defined in the Security Trust Deed);
(k) a certificate of an authorised signatory of the Acceding Guarantor and
each Relevant Shareholder certifying that each copy document specified
174
in part B of this schedule 10 and relating to it is correct, complete
and in full force and effect as at a date no earlier than the date of
the Deed of Guarantor Accession, relevant Security Documents or the
Share Security (as appropriate);
(l) a certificate of an authorised signatory of the Parent confirming that
its constitutional documents have not been amended (or, if they have,
enclosing a copy of the amended constitutional documents) and that all
authorisations and resolutions authorising its appropriate officers to
execute and deliver the Deed of Guarantor Accession remain in full
force and effect;
(m) if applicable, share certificates and stock transfer forms executed in
blank and all other documents required to be delivered to the Security
Trustee in connection with the relevant Share Security and such other
documents as may be required pursuant to the relevant Security
Documents; and
(n) such other documents as the Agent may reasonably require after taking
the advice of the legal advisers referred to in paragraphs (i)and (j)
above.
175
SCHEDULE 11
-----------
Part A - Deed of Borrower Accession
-----------------------------------
To: THE TORONTO-DOMINION BANK as Agent
From: [NEW ▇▇▇▇▇] [TELEKABEL WIEN] and [UNITED PAN-EUROPE
COMMUNICATIONS N.V.]
Date: [ ]
UNITED PAN-EUROPE COMMUNICATIONS N.V. NLG 1,100,000,000 Senior Reducing
Revolving Credit Agreement dated , 1997 (as from time to time
amended, varied, extended, restated, refinanced or replaced the "FACILITY
AGREEMENT")
We refer to [clause 3.5] [clause 3.6] of the Facility Agreement. Words and
expressions defined in the Facility Agreement have the same meanings when used
in this Deed.
[Name of New ▇▇▇▇▇] [Telekabel Wien] of [address] (the "PROPOSED BORROWER")
agrees to become a Borrower and to be bound by the terms of the Facility
Agreement as a Borrower in accordance with [clause 3.5] [clause 3.6] of the
Facility Agreement and the Security Trust Deed as a Borrower in accordance with
clause 10.16 of the Security Trust Deed.
The address for notices of [New ▇▇▇▇▇] [Telekabel Wien] for the purposes of
clause 19.1 of the Facility Agreement is:
[
]
This Deed is intended to be executed as a deed and is governed by English law.
[NEW ▇▇▇▇▇] [TELEKABEL WIEN] [UNITED PAN-EUROPE
COMMUNICATIONS N.V.]
Authorised Signatory Authorised Signatory
[Appropriate execution clause] [Appropriate execution clause]
By: By:
By:
THE TORONTO-DOMINION BANK
[Appropriate execution clause]
By
176
SCHEDULE 11
-----------
Part B - Documents and Evidence to be delivered by New ▇▇▇▇▇
------------------------------------------------------------
(a) a Deed of Borrower Accession, duly executed by New ▇▇▇▇▇ and the
Parent;
(b) a copy of the articles of association, certificate of registration and
other constitutional documents of New ▇▇▇▇▇ (as updated following the
Norwegian Merger);
(c) a copy of a resolution of the board of directors of New ▇▇▇▇▇
approving the terms of, and the transactions contemplated by, the Deed
of Borrower Accession and authorising its appropriate officers to
execute and deliver the Deed of Borrower Accession and to give all
notices (including, where applicable, Drawdown Notices) and take all
other action required by it under the Finance Documents;
(d) a certificate of a director of New ▇▇▇▇▇ confirming that utilisation
of the Facility up to the Norwegian Loan Amount would not cause any
borrowing limit binding on it to be exceeded;
(e) a copy of any other authorisation or other document, opinion or
assurance which is necessary for the execution, delivery, validity and
enforceability of the Deed of Borrower Accession or any other Finance
Document insofar as it is necessitated by the execution of the Deed of
Borrower Accession;
(f) a specimen of the signature of each person authorised by the
resolution referred to in paragraph (c) above;
(g) if available, the latest audited accounts of New ▇▇▇▇▇;
(h) a legal opinion of English legal advisers, acceptable to the Agent,
addressed to the Banks;
(i) a legal opinion of legal advisers, acceptable to the Agent, in Norway,
addressed to the Banks;
(j) a certificate of an authorised signatory of New ▇▇▇▇▇ certifying that
each copy document specified in part B of this schedule 11 is correct,
complete and in full force and effect as at a date no earlier than the
date of the Deed of Borrower Accession;
(k) a certificate of an authorised signatory of the Parent confirming that
its constitutional documents have not been amended (or, if they have,
enclosing a copy of the amended constitutional documents) and that all
authorisations and resolutions authorising its appropriate officers to
177
execute and deliver the Deed of Borrower Accession in full force and
effect;
(l) Copy of minutes from general meeting in Norkabelgruppen AS, evidencing
the decision to merge Norkabelgruppen AS and ▇▇▇▇▇ ▇▇▇▇▇-TV AS,
including copies of summons to such general meeting (with annexes);
(m) Copy of minutes from general meeting in ▇▇▇▇▇ Kabel-TV AS, evidencing
the decision to merge Norkabelgruppen AS and ▇▇▇▇▇ ▇▇▇▇▇-TV AS,
including copies of summons to such general meeting (with annexes);
(n) Copy of merger agreement between Norkabelgruppen AS and ▇▇▇▇▇ Kabel-TV
AS (with annexes);
(o) Copies of minutes from board meeting in Norkabelgruppen AS, evidencing
the board's approval of the merger agreement with ▇▇▇▇▇ ▇▇▇▇▇-TV AS;
(p) Copies of minutes from board meeting in ▇▇▇▇▇-▇▇▇▇▇-TV AS, evidencing
the board's approval of the merger agreement with Norkabelgruppen AS;
(q) Copy of minutes from board meeting in Norkabelgruppen AS, evidencing
the decision to merge Norkabelgruppen AS, Norkabel AS and Oslo
Kabelanlegg AS;
(r) Copy of filing to the Norwegian Companies Register from Norkabel AS,
regarding the decision to merge Norkabel AS with Norkabelgruppen AS;
(s) Copy of filing to the Norwegian Companies Register from Oslo
Kabelanlegg AS, regarding the decision to merge Oslo Kabelanlegg AS
with Norkabelgruppen AS;
(t) Copy of filing to the Norwegian Companies Register from
Norkabelgruppen AS, regarding the decision to merge Norkabelgruppen AS
with ▇▇▇▇▇ ▇▇▇▇▇-TV AS;
(u) Copy of existing company certificates of Norkabel AS, Oslo Kabelanlegg
AS, Norkabelgruppen AS and ▇▇▇▇▇ Kabel-TV AS (not more than one month
old) prior to the mergers;
(v) Copy of new company certificate of ▇▇▇▇▇ ▇▇▇▇▇-TV AS after
registration of the merger with Norkabelgruppen AS;
(w) Such other documents as the Agent may reasonably require to ensure
that all security granted to the Security Trustee prior to the
Norwegian Merger remains in place.
178
SCHEDULE 12
-----------
[Intentionally left blank]
179
SCHEDULE 13
-----------
Part A - Norwegian Security Documents
-------------------------------------
(if at the relevant time the Norwegian Merger
---------------------------------------------
has not occurred)
-----------------
A SECURITY PROVIDED BY NORKABEL, KANAL 2 A/S ("KANAL"), NORKABEL A/S ("NAS")
AND OSLO KABELANLEGG A/S ("OK")
1 Norkabel Pledge(s) of Shares by United Communications International, the
Parent and/or ▇▇▇▇▇ dated 5th March 1997, which has been either assigned
for the benefit of the Security Trustee by ING Bank N.V. or re-executed in
favour of the Security Trustee in the same form mutatis mutandis;
2 Kanal Pledge of Shares by Norkabel, dated 5th March 1997, which has been
either assigned for the benefit of the Security Trustee by ING Bank N.V.
or re-executed in favour of the Security Trustee in the same form mutatis
mutandis;
3 NAS Pledge of Shares by Norkabel, dated 5th March 1997, which has been
either assigned for the benefit of the Security Trustee by ING Bank N.V.
or re-executed in favour of the Security Trustee in the same form mutatis
mutandis;
4 OK Pledge of Shares by Norkabel, dated 5th March 1997, which has been
either assigned for the benefit of the Security Trustee by ING Bank N.V.
or re-executed in favour of the Security Trustee in the same form mutatis
mutandis;
5 Assignment of Receivables by Norkabel, dated 5th March 1997, which has
been either assigned for the benefit of the Security Trustee by ING Bank
N.V. or re-executed in favour of the Security Trustee in the same form
mutatis mutandis;
6 Assignment of Receivables by NAS, dated 5th March 1997, which has been
either assigned for the benefit of the Security Trustee by ING Bank N.V.
or re-executed in favour of the Security Trustee in the same form mutatis
mutandis;
7 Assignment of Receivables by OK, dated 5th March 1997, which has been
either assigned for the benefit of the Security Trustee by ING Bank N.V.
or re-executed in favour of the Security Trustee in the same form mutatis
mutandis;
8 Assignment of Receivables by Kanal, dated 5th March 1997, which has been
either assigned for the benefit of the Security Trustee by ING Bank N.V.
or re-executed in favour of the Security Trustee in the same form mutatis
mutandis;
9 Pledge of Bank Accounts by Norkabel, NAS, OK and Kanal, dated 5th March
1997, which has been either assigned for the benefit of the Security
Trustee by ING Bank N.V. or re-executed in favour of the Security Trustee
in the same form mutatis mutandis;
10 Declarations of Norkabel concerning Mortgages over Stock of Goods and
Motor Vehicles together with Factoring Agreement and Transcript of
Register, in
180
substantially the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility;
11 Declarations of NAS concerning Mortgages over Stock of Goods and Motor
Vehicles together with Factoring Agreement and Transcript of Register, in
substantially the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility;
12 Declarations of OK concerning Mortgages over Stock of Goods and Motor
Vehicles together with Factoring Agreement and Transcript of Register, in
substantially the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility;
13 Declarations of Kanal concerning Mortgages over Stock of Goods and Motor
Vehicles together with Factoring Agreement and Transcript of Register, in
substantially the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility;
14 Declaration relating to transfer of existing mortgages by Norkabel and
NAS, in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
15 Declaration relating to mortgages over new property by Norkabel and NAS,
in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
16 Assignment and Notice of Programme Supply Agreements by Norkabel and NAS,
in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
17 Assignment of General Services Agreement by Norkabel, in the form given to
ING Bank N.V. in connection with the Existing Norkabel Facility, mutatis
mutandis;
18 Assignment of Insurance Proceeds by Norkabel, NAS, OK and Kanal, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
19 [Intentionally left blank];
20 A Mortgage Deed for NOK 720,000,000 dated 16 November 1989, under the name
of Askim Antenneservice, registered over the Mortgagors' Leased Real
Estate and Appurtenances (leierett med driftsilbeh0r) in ▇▇▇▇▇▇▇▇▇▇. ▇,
▇▇▇. ▇▇, ▇▇▇. 47 in the municipality of Askim, in the form given to ING
Bank N.V. in connection with the Existing Norkabel Facility, mutatis
mutandis;
21 A Mortgage Deed for NOK 720,000,000 registered 17 November 1989 under the
name of Drammen Kabel-TV, registered over the Mortgagors' Leased Real
Estate and Appurtenances (leierett med drifstilbeh0r) in hans Kjaersgt. 2,
gnr. 111, bnr.
181
248 in the municipality of Drammen, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
22 A Mortgage Deed for NOK 724,000,000 registered 10 March 1992 under the
name of AS KA-TEL, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med drifstilbeh0r) in gnr. 7613, bnr. 9 in the
municipality of Kongsberg, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
23 A Mortgage Deed for NOK 720,000,000 registered 9 February 1990 under the
name of ▇▇▇▇ ▇▇▇▇▇ TV, registered over the Mortgagors' Leased Real Estate
and Appurtenances (leierett med drifstilbeh0r) in Vaerftsgaten 10, gnr. 1,
bnr. 2750 in the municipality of ▇▇▇▇, in the form given to ING Bank N.V.
in connection with the Existing Norkabel Facility, mutatis mutandis;
24 A Mortgage Deed for NOK 720,000,000 registered 31 January 1990 under the
name of 0stfold Kabelnett A/S, registered over the Mortgagors' Leased Real
Estate and Appurtenances (leierett med drifstilbeh0r) in Violgt. 8, gnr.
62, bnr. 111 in the municipality of Halden, in the form given to ING Bank
N.V. in connection with the Existing Norkabel Facility, mutatis mutandis;
25 A Mortgage Deed for NOK 720,000,000 registered 17 November 1989 under the
name of Teletransmisjon A/S, registered over the Mortgagors' Leased Real
Estate and Appurtenances (leierett med drifstilbeh0r) in Lensmannslia 30,
gnr. 50, bnr. 23 parcel A in the municipality of Asker, in the form given
to ING Bank N.V. in connection with the Existing Norkabel Facility,
mutatis mutandis;
26 A Mortgage Deed for NOK 720,000,000 registered 13 March 1990 under the
name of West Satellite A/S, registered over the Mortgagors' Leased Real
Estate and Appurtenances (leierett med drifstilbeh0r) in ▇▇▇▇▇ ▇▇▇▇▇▇
Asane 39, gnr. 88, bnr. 387, 388, 389, 390 and 391 in the municipality of
Bergen, in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
27 A Mortgage Deed for NOK 720,000,000 registered 12 September 1990 under the
name of West Satellite A/S, registered over the Mortgagors' Real Estate
and Appurtenances (fast eiendom med drifstilbeh0r) in ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇. ▇▇, ▇▇▇. 161 in the municipality of Stavanger, in the form given to
ING Bank N.V. in connection with the Existing Norkabel Facility, mutatis
mutandis;
28 A Mortgage Deed for NOK 725,000,000 dated 10 June 1993, under the name of
NAS, registered over the Mortgagors' Leased Real Estate and Appurtenances
(leierett med driftstilbeh0r) in gnr. 2076 bnr. 169 in the municipality of
Sarpsborg, in the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility, mutatis mutandis;
29 A Mortgage Deed for NOK 725,000,000 dated 10 June 1993, under the name of
NAS, registered over the Mortgagors' Leased Real Estate and Appurtenances
182
(leierett med driftstilbeh0r) in gnr. 15, bnr. 661 in the municipality of
Karm0y, in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
30 A Mortgage Deed for NOK 725,000,000 dated 10 June 1993, under the name of
NAS, registered over the Mortgagors' Leased Real Estate and Appurtenances
(leierett med driftstilbeh0r) in gnr. 188, bnr. 202 in the municipality of
Bergen, in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
31 A Mortgage Deed for NOK 725,000,000 dated 5 November 1993, under the name
of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 86, bnr. 33 in the
municipality of Frogn, in the form given to ING Bank N.V. in connection
with the Existing Norkabel Facility, mutatis mutandis;
32 A Mortgage Deed for NOK 725,000,000 registered 10 March 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 148, bnr. 834 and 306
in the municipality of Karm0y, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
33 A Mortgage Deed for NOK 725,000,000 registered 23 March 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 16, bnr. 109 in the
municipality of Stavanger, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
34 A Mortgage Deed for NOK 725,000,000 registered 23 March 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 150 bnr. 1141 in the
municipality of Kristiansand, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
35 A Mortgage Deed for NOK 725,000,000 registered 15 June 1995 under the name
of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 38, bnr. 158 in the
municipality of Oslo, in the form given to ING Bank N.V. in connection
with the Existing Norkabel Facility, mutatis mutandis;
36 A Mortgage Deed for NOK 725,000,000 registered 15 June 1995 under the name
of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 24 bnr. 4 in the
municipality of Nedre ▇▇▇▇▇, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
37 A Mortgage Deed for NOK 725,000,000 registered 20 June 1995 under the name
of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances
83
(leierett med driftstilbeh0r) in gnr. 39, bnr. 137 in the municipality of
Ringerike, in the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility, mutatis mutandis;
38 A Mortgage Deed for NOK 725,000,000 registered 23 June 1995 under the name
of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 30 bnr. 230 in the
municipality of Skedsmo, in the form given to ING Bank N.V. in connection
with the Existing Norkabel Facility, mutatis mutandis;
39 A Mortgage Deed for NOK 2,080,000 registered 17 October 1995 under the
name of Norkabel, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 32, bnr. 279 and 771
in the municipality of Oslo, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
40 A Mortgage Deed for NOK 725,000,000 registered 28 August 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 34, bnr. 14 in the
municipality of R0yken, in the form given to ING Bank N.V. in connection
with the Existing Norkabel Facility, mutatis mutandis;
41 [Intentionally left blank];
42 A Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med driftstilbeh0r) in gnr.
152 bnr. 1756 in the municipality of Kristiansand, in the form given to
ING Bank N.V. in connection with the Existing Norkabel Facility, mutatis
mutandis;
43 A Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbeh0r) in gnr.
34 bnr. 14 in the municipality of R0yken, in the form given to ING Bank
N.V. in connection with the Existing Norkabel Facility, mutatis mutandis;
44 A Mortgage Deed for NOK 900,000,000 registered over the Mortgagors' Leased
Real Estate and Appurtenances (leierett med drifstilbeh0r) in gnr. 12 bnr.
751 in the municipality of Kristiansand, in the form given to ING Bank
N.V. in connection with the Existing Norkabel Facility, mutatis mutandis;
45 A Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbeh0r) in gnr.
188 bnr. 202 in the municipality of Bergen, in the form given to ING Bank
N.V. in connection with the Existing Norkabel Facility, mutatis mutandis;
46 A Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbeh0r) in gnr.
38 bnr. 158 in the municipality of Oslo, in the form given to ING Bank
N.V. in connection with the Existing Norkabel Facility, mutatis mutandis;
184
47 A Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbeh0r) in gnr.
134 bnr. 8 in the municipality of Drammen, in the form given to ING Bank
N.V. in connection with the Existing Norkabel Facility, mutatis mutandis;
48 A Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbeh0r) in gnr.
132 bnr. 214 in the municipality of Drammen, in the form given to ING Bank
N.V. in connection with the Existing Norkabel Facility, mutatis mutandis;
49 A Mortgage Deed for NOK 900,000,000 registered over the Mortgagors' Leased
Real Estate and Appurtenances (leierett med drifstilbeh0r) in gnr. 117
bnr. 517 in the municipality of Drammen, in the form given to ING Bank
N.V. in connection with the Existing Norkabel Facility, mutatis mutandis;
50 A Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbeh0r) in gnr.
17 bnr. 3 in the municipality of Drammen, in the form given to ING Bank
N.V. in connection with the Existing Norkabel Facility, mutatis mutandis;
51 A Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbeh0r) in gnr.
142 bnr. 6 in the municipality of Lier, in the form given to ING Bank N.V.
in connection with the Existing Norkabel Facility, mutatis mutandis;
52 A Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med driftstilbeh0r) gnr.
8651 bnr. 1, 114, 115, 116, 117, 118, 119 and 120 in the municipality of
Kongsberg, in the form given to ING Bank N.V., in connection with the
Existing Norkabel Facility, mutatis mutandis;
53 A Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbeh0r) in gnr.
12 bnr. 26 in the municipality of Askim, in the form given to ING Bank
N.V., in connection with the Existing Norkabel Facility, mutatis mutandis;
54 A Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med driftstilbeh0r) in gnr.
33 bnr. 500 in the municipality of Haugesund, in the form given to ING
Bank N.V., in connection with the Existing Norkabel Facility, mutatis
mutandis;
B SECURITY PROVIDED BY ▇▇▇▇▇ ▇▇▇▇▇-TV A/S
185
1 Assignment of Receivables by ▇▇▇▇▇, in a form satisfactory to the Banks.
2 Declaration of ▇▇▇▇▇ concerning mortgages over Stock of Goods and Motor
Vehicles together with Factoring Agreement, in a form satisfactory to the
Banks.
3 Pledge of Bank Accounts by ▇▇▇▇▇, in a form satisfactory to the Banks.
4 Assignment of Insurance Proceeds by ▇▇▇▇▇, in a form satisfactory to the
Banks.
5 Assignment and Notice of Programme Supply Agreement by ▇▇▇▇▇, in a form
satisfactory to the Banks.
6 Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagor's
easement rights to antennas and appurtenances (leierett med
driftstilbeh0r) in gnr. 75 bnr. 1 in the municipality of Oslo with Oslo
Municipality as the servient tenant, in a form satisfactory to the Banks.
7 Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors'
easement rights to antennas and appurtenances (leierett med
driftstilbeh0r) in gnr. 98 bnr. 7 in the municipality of Oslo with Asbj0rn
Lie Kristoffersen as the servient tenant, in a form satisfactory to the
Banks.
8 Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors
Leased Real Estate and Appurtenances (leierett med driftstilbeh0r) at
▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ leased pursuant to a Lease Agreement dated 24th June
1997, in a form satisfactory to the Banks.
9 A Declaration of Pledge and Deposit of a new promissory note to be issued
by ▇▇▇▇▇ in the principal amount of NLG75,440,850 which, upon full
repayment of ING Bank B.V., shall replace, supersede and be in
substitution of the unsecured promissory note dated October 26th, 1995 in
the principal amount of USD$70,780,401.40 pledged to ING Bank N.V. in
connection with the Existing Nakabel Facility.
186
SCHEDULE 13
-----------
Part B - Norwegian Security Documents (if at the relevant time
--------------------------------------------------------------
the Norwegian Merger has occurred)
----------------------------------
The documents listed in part A of schedule 13 with the following numbers:-
B1 to B5 and B8 and B9 (inclusive); and
A15 to A54 exclusive A17 (inclusive)
each in the form granted to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis, or in a form acceptable to the Banks
together with a declaration by ▇▇▇▇▇ concerning the security documents provided
by Norkabel, Norkabel A/S, Kanal 2 A/S and Oslo Kableanlegg A/S, in favour of
The Toronto-Dominion Bank as Security Trustee, in a form satisfactory to the
Banks: the declaration will be numbered A9.
187
SCHEDULE 14
-----------
Form of Telekabel Note
-----------------------
TELEKABEL WIEN GESELLSCHAFT M.B.H
[CURRENCY][AMOUNT]
BEARER BOND (THE "NOTE")
ISSUED SUBJECT TO THE TERMS AND CONDITIONS SET OUT BELOW
VIENNA [DATE]
TERMS AND CONDITIONS
--------------------
1 FORM AND DENOMINATION
---------------------
This Note is issued in bearer form. The holder of this Note shall be
entitled to exercise any rights hereunder. The nominal amount of this Note
is [currency][amount].
2 INTEREST
--------
Interest on this Note shall accrue at [rate] per cent. per annum (being
the aggregate of (a) the applicable Margin (which, unless otherwise agreed
by the issuer shall not exceed 2 per cent. per annum), (b) the Additional
Cost (if the nominal amount is denominated in Sterling and (c) LIBOR).
Interest shall be payable on this Note on [[interim interest payment date]
and on] [date of maturity].
3 TERM AND FINAL MATURITY
-----------------------
Subject to clause 4 below, this Note shall be redeemed in full on [date of
maturity].
4 TERM AND CONDITIONS
-------------------
This Note has been issued on terms and conditions agreed between, inter
alia, United Pan-Europe Communications N.V., Telekabel Wien Gesellschaft
m.b.H., The Toronto-Dominion Bank as Arranger, The Toronto-Dominion Bank
as Agent on behalf of certain Banks and The Toronto-Dominion Bank as
Security Trustee. Unless the context otherwise requires, the words and
expressions defined in such terms and conditions shall have the same
meanings when used in this Note.
Signed
Telekabel Wien Gesellschaft m.b.H.
[Completed under instructions from Telekabel Wien Gesellschaft m.b.H. by the
Agent]
188