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Exhibit 10.8
[▇▇▇▇▇▇▇▇ CHANCE LOGO]
DATED 30 MAY 2000
NTL COMMUNICATIONS LIMITED
AS PARENT
NTL BUSINESS LIMITED
AS ORIGINAL BORROWER
NTL COMMUNICATIONS CORP.
AS NTL ▇▇
▇▇▇▇▇ MANHATTAN PLC
AND
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ BANK LIMITED
AS ARRANGERS AND JOINT book MANAGERS
CHASE MANHATTAN INTERNATIONAL LIMITED
AS AGENT AND SECURITY TRUSTEE
AND
OTHERS
L2,500,000,000 CREDIT AGREEMENT
RELATING TO THE ACQUISITION OF CABLE & WIRELESS
COMMUNICATIONS (HOLDINGS) PLC
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation................................................................ 1
2. The Revolving Facility........................................................................ 49
3. Utilisation Of The Revolving Facility......................................................... 51
4. Payment And Calculation Of Interest On Revolving Advances..................................... 53
5. Incremental Facility.......................................................................... 54
6. Market Disruption And Alternative Interest Rates.............................................. 55
7. Notification.................................................................................. 56
8. Repayment And Reduction Of The Revolving Facility............................................. 56
9. Cancellation And Prepayment................................................................... 57
10. Mandatory Prepayment.......................................................................... 58
11. Taxes......................................................................................... 63
12. Tax Receipts.................................................................................. 65
13. Increased Costs............................................................................... 66
14. Illegality.................................................................................... 68
15. Mitigation.................................................................................... 68
16. Representations............................................................................... 68
17. Financial Information......................................................................... 77
18. Financial Condition........................................................................... 82
19. Covenants..................................................................................... 90
20. Events Of Default............................................................................. 104
21. Guarantee And Indemnity....................................................................... 111
22. Commitment Commission And Fees................................................................ 114
23. Costs And Expenses............................................................................ 116
24. Default Interest And Break Costs.............................................................. 117
25. Borrowers' Indemnities........................................................................ 118
26. Currency Of Account And Payment............................................................... 118
27. Payments...................................................................................... 119
28. Set-Off....................................................................................... 121
29. Sharing....................................................................................... 121
30. The Agent, The Arrangers And The Banks........................................................ 122
31. Assignments And Transfers..................................................................... 127
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32. Economic And Monetary Union................................................................... 130
33. Additional Borrowers.......................................................................... 131
34. Accession Of Guarantors And The CWC Parent.................................................... 132
35. Calculations And Evidence Of Debt............................................................. 134
36. Remedies And Waivers, Partial Invalidity...................................................... 135
37. Notices....................................................................................... 135
38. Counterparts.................................................................................. 137
39. Amendments.................................................................................... 137
40. Governing Law................................................................................. 138
41. Jurisdiction.................................................................................. 138
Schedule 1 THE BANKS ................................................................................ 140
Schedule 2 FORM OF TRANSFER CERTIFICATE.............................................................. 142
Schedule 3 CONDITIONS PRECEDENT...................................................................... 145
Part A Initial Conditions Precedent........................................................... 145
Part B CWC Holdings Conditions Precedent...................................................... 148
Schedule 4 NOTICE OF DRAWDOWN........................................................................ 149
Schedule 5 EXISTING ENCUMBRANCES..................................................................... 151
Schedule 6 FORM OF COMPLIANCE CERTIFICATE............................................................ 156
Schedule 7 FORM OF BORROWER ACCESSION MEMORANDUM..................................................... 163
Schedule 8 FORM OF GUARANTOR ACCESSION MEMORANDUM.................................................... 165
Schedule 9 CWC ACCESSION MEMORANDUM.................................................................. 168
Schedule 10 ADDITIONAL CONDITIONS PRECEDENT.......................................................... 170
Part A Accession Conditions Precedent......................................................... 170
Part B Security Documentation................................................................. 172
Schedule 11 FORM OF RESIGNATION NOTICE............................................................... 174
Schedule 12 MANDATORY COSTS.......................................................................... 175
Schedule 13 MEMBERS OF THE TARGET GROUP GRANTING SECURITY............................................ 178
Schedule 14 MEMBERS OF THE UK GROUP.................................................................. 182
Schedule 15 UK GROUP PRINCIPAL PROPERTIES............................................................ 184
Schedule 16 FORM OF REPORT ON TITLE.................................................................. 186
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THIS AGREEMENT is made on 30 May 2000
BETWEEN:
(1) NTL COMMUNICATIONS LIMITED, a company incorporated in England and Wales
with company number 3521915 (the "PARENT");
(2) NTL BUSINESS LIMITED (FORMERLY NAMED NTL TECHNOLOGIES LIMITED), a company
incorporated in England and Wales with company number 3076222 (the
"ORIGINAL BORROWER");
(3) NTL COMMUNICATIONS CORP., a company incorporated in Delaware ("NTL CC");
(4) CHASE MANHATTAN PLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ BANK LIMITED as
arrangers and joint book managers of the Revolving Facility (the
"ARRANGERS");
(5) CHASE MANHATTAN INTERNATIONAL LIMITED as agent for the Banks (the
"AGENT");
(6) CHASE MANHATTAN INTERNATIONAL LIMITED as security trustee for the Finance
Parties (the "SECURITY TRUSTEE"); and
(7) THE BANKS (as defined below).
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION MEMORANDUM" means a Borrower Accession Memorandum or a
Guarantor Accession Memorandum.
"ACCOUNTANTS' REPORT" means the report prepared by the Target's
accountants, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, dated 14 February 2000 and splitting the
Target's financial statements for its financial years ended 31 March
1997, 31 March 1998 and 31 March 1999 between the CWC ConsumerCo Business
and the CWC DataCo Business (as set out in Part A of Appendix 8 of the
CWC Circular).
"ACQUISITION" means the acquisition by NTL Holdings of the issued share
capital of CWC Holdings pursuant to the Transaction Agreement.
"ACQUISITION DATE" means the date on which the Acquisition is completed,
being a date on or prior to 31 March 2001.
"ADDITIONAL BORROWER" means any company which has become an Additional
Borrower in accordance with Clause 33 (Additional Borrowers).
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"ADDITIONAL OBLIGOR" means an Additional Borrower or a Guarantor.
"ASSET ADJUSTMENT PAYMENTS" means:
(a) a payment made by a member of the Target Group to a company
carrying on the CWC DataCo Business, in respect of a transfer of
assets from that company carrying on the CWC DataCo Business to
such a member of the Target Group; or
(b) a payment made by a company carrying on the CWC DataCo Business to
a member of the Target Group, in respect of a transfer of assets
from such a member of the Target Group to that company carrying on
the CWC DataCo Business,
in each case in accordance with the terms of the Transaction Agreement
and where either Cable & Wireless is obliged to reimburse NTL Holdings
in respect of a payment made by a member of the Target Group under
paragraph (a) or NTL Holdings is obliged to reimburse Cable & Wireless
in respect of a payment received by a member of the Target Group
pursuant to paragraph (b).
"ASSET PASSTHROUGH" means a series of transactions, commencing with a
transaction between NTL UK and a member of the UK Group, which may be
followed by one or more similar transactions between various members of
the UK Group, and culminating with a similar transaction between a
member of the UK Group and a Final Asset Transferee, the purpose of
which is to enable NTL UK to indirectly transfer assets to that Final
Asset Transferee by way of transfers of those assets to and from (and,
if necessary, between) one or more members of the UK Group in such a
manner as to be neutral to the UK Group taken as a whole PROVIDED THAT:
(a) the consideration payable (if any) by the first member of the UK
Group to acquire such assets to NTL UK comprises either (i) cash
funded or to be funded directly or indirectly by a payment from
the Final Asset Transferee in connection with that series of
transactions or (ii) Subordinated Funding;
(b) if the Parent (having acquired such assets from NTL UK) transfers
them on to another member of the UK Group, the consideration
payable by such a member of the UK Group comprises either (i) cash
funded or to be funded directly or indirectly by a payment from
the Final Asset Transferee in connection with that series of
transactions or (ii) Parent Funding;
(c) the consideration payable by the Final Asset Transferee is equal
to the consideration received or receivable by NTL UK;
(d) the consideration payable by each member of the UK Group
participating in such a series of transactions is equal in value;
(e) all of the transactions comprising such a series of transactions
(from and including the transfer of the assets by NTL UK to and
including the
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acquisition of those assets by the Final Asset Transferor) are
completed within two Business Days; and
(f) upon completion of all of the transactions comprising such a
series of transactions, no person (other than another member of
the UK Group) has any recourse to any member of the UK Group in
relation to such a series of transactions (other than in respect
of (i) the Subordinated Funding mentioned in paragraph (a) above
and (ii) covenants as to title provided in favour of the Final
Asset Transferee on the same terms as such covenants provided in
favour of the Initial Asset Transferor in respect of the relevant
assets).
"ASSIGNED DEBT" means any loan made by the Parent to any other member of
the UK Group, where on and after the Pushdown Date the Parent's rights in
respect of any such loan which is outstanding on or after the Pushdown
Date have been assigned to the Security Trustee pursuant to the Parent
Intra-Group Loan Assignment (but without prejudice to the ability to make
or repay such a loan prior to the Pushdown Date).
"AUTHORISED SIGNATORY" means, in relation to the Parent, the CWC Parent,
NTL CC, NTL UK, an Obligor or proposed Obligor, any person who is duly
authorised (in such manner as may be reasonably acceptable to the Agent)
and in respect of whom the Agent has received a certificate signed by a
director or another Authorised Signatory of the Parent, the CWC Parent,
NTL CC, NTL UK or, as the case may be, such Obligor or proposed Obligor
setting out the name and signature of such person and confirming such
person's authority to act.
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time and save
as otherwise provided herein, its Commitment at such time LESS its share
of the amount of the Revolving Advances which are then outstanding and
not due for repayment, PROVIDED THAT such amount shall not be less than
zero.
"AVAILABLE EXCESS CASH FLOW" means, at any time, the aggregate Excess
Cash Flow generated in respect of each financial year of the Parent,
commencing with the financial year ended 31 December 2003, less the
amount of such Excess Cash Flow (in respect of each such financial year)
which is required to be used (in respect to such financial year) to
prepay the Revolving Loan in accordance with Clause 10.1 (Mandatory
Prepayment from Excess Cash Flow).
"AVAILABLE FACILITY" means, at any time, the aggregate amount of the
Available Commitments adjusted, in the case of any proposed drawdown, so
as to take into account:
(a) any reduction in the Commitment of a Bank pursuant to the terms
hereof;
(b) the amount of any Revolving Advance which, pursuant to any other
drawdown, is to be made; and
(c) the amount of any Revolving Advance which is due to be repaid,
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on or before the proposed drawdown date.
"AVAILABLE WORKING CAPITAL AMOUNT" means, at any time, the then Available
Facility less the amount of the Existing Target Indebtedness which
remains outstanding at such time.
"AVERAGE REVENUE CONTRIBUTIONS" means, in respect of any asset at any
time:
A + B
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where:
A = the revenue generated by, or attributable (whether in
whole or in part) to, such asset during the immediately
preceding financial year of the Parent, expressed as a
percentage of the aggregate of the consolidated revenue
of the UK Group and, prior to the Pushdown Date, the
consolidated revenue of the Target Group for such a
financial year; and
B = the revenue generated by, or attributable (whether in
whole or in part) to, such asset during the financial
year of the Parent preceding that referred to in A
above, expressed as a percentage of the aggregate of the
consolidated revenue of the UK Group and, prior to the
Pushdown Date, the consolidated revenue of the Target
Group for such financial year.
"BANK" means any financial institution:
(a) named in Schedule 1 (The Banks); or
(b) which has become a party hereto as a Bank in accordance with
Clause 31.4 (Assignments by Banks) or Clause 31.5 (Transfers by
Banks),
and which has not ceased to be a party hereto in accordance with the
terms hereof.
"BCM NOTES" means the 3.5 per cent. convertible loan notes due March 2001
and the 5.0 per cent. convertible loan notes due July 2001, in each case
issued by Cable & Wireless Communications (B) Limited.
"BORROWER ACCESSION MEMORANDUM" means a memorandum substantially in the
form set out in Schedule 7 (Form of Borrower Accession Memorandum).
"BORROWERS" means the Original Borrower and each Additional Borrower,
PROVIDED THAT such company has not been released from its rights and
obligations hereunder in accordance with Clause 33.3 (Resignation of a
Borrower).
"BUDGET" means a budget delivered by the Parent to the Agent pursuant to
Clause 17.5 (Budgets).
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"BUSINESS DAY" means a day (other than a Saturday or Sunday) which is not
a public holiday and on which banks are open for general business in both
London and New York.
"BUSINESS PLAN" means the financial model including profit and loss
accounts, balance sheets and cashflow projections, in the agreed form,
relating to the UK Group (for these purposes assuming that the Pushdown
has been completed), as set out in annex 16 of the Information
Memorandum.
"C&W (UK) HOLDINGS" means Cable & Wireless (UK) Holdings plc, a company
incorporated in England and Wales (company number 3888319), being (after
the Scheme Effective Date) a wholly owned subsidiary of Cable & Wireless.
"CABLE & WIRELESS" means Cable & Wireless plc, a company incorporated in
England and Wales (company number 238525).
"CABLE & WIRELESS DEBT" means Financial Indebtedness owed by any members
of the Target Group to Cable & Wireless and certain other members of the
CWC DataCo Business.
"CABLE & WIRELESS LOAN" means a loan of up to L50,000,000 from CWC
Holdings to Cable & Wireless, made in relation to the costs incurred by
the CWC ConsumerCo Business in connection with separation of the CWC
ConsumerCo Business and the CWC DataCo Business (as provided for in the
Transaction Agreement).
"CABLE BUSINESS" means:
(a) the business of directly or indirectly operating, or owning a
license to operate, a cable and/or television and/or telephone
and/or telecommunications system or service principally within the
United Kingdom and/or in Ireland; and
(b) any Cable Related Business.
"CABLE RELATED BUSINESS" means a business which directly, or indirectly,
owns or provides a service or product used in a Cable Business,
including, without limitation, any television programming, production
and/or licensing business or any programming guide or telephone directory
business or content or software related thereto.
"CAPITAL EXPENDITURE" means expenditure on the acquisition or improvement
of an asset which would be treated as a capital asset in accordance with
generally accepted accounting principles in the United Kingdom.
"CAXTON" means Caxton Holdings Limited, a company incorporated in England
and Wales (company number 3840888), being (prior to the First Caxton
Sale) a wholly owned subsidiary of the Target which, together with its
subsidiaries, carries on the CWC DataCo Business.
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"CERTAIN FUNDS EVENTS OF DEFAULT" means any circumstance constituting an
Event of Default under any of the following Clauses:
(a) Clause 20.7 (Insolvency and Rescheduling), Clause 20.8
(Winding-up) or, solely in relation to Clause 20.7 (Insolvency and
Rescheduling) and Clause 20.8 (Winding-up), Clause 20.10
(Analogous Events), in each case to the extent such relates to NTL
CC and/or the Original Borrower; and
(b) Clause 20.13 (Illegality).
"CERTAIN FUNDS PERIOD" means the period from and including the Execution
Date to (and including) the date falling two Business Days after the
Acquisition Date.
"CHARGED ACCOUNT" means the NTL CC Charged Account or, as the case may
be, the NTL Charged Account.
"CODE" means the City Code on Takeovers and Mergers.
"COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set opposite its name under the
heading "COMMITMENT" in Schedule 1 (The Banks). The Commitments of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Bank Limited and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
shall be determined in accordance with Clause 31.10 (▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Commitment).
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 6 (Form of Compliance Certificate).
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking in the
standard form from time to time of the LMA or in such other form as may
be agreed between the Relevant Obligor and the Agent.
"COURT" means the High Court of Justice of England and Wales.
"COURT MEETING" means the meeting of the holders of the shares of Target
summoned by the Court and directed to consider and vote on whether to
approve the Scheme pursuant to Section 425.
"COVENANT GROUP" means NTL CC and any subsidiary of NTL CC which is a
holding company of the Parent.
"CWC ACCESSION MEMORANDUM" means a memorandum substantially in the form
set out in Schedule 9 (CWC Accession Memorandum), by which CWC Holdings
will accede hereto as both a Guarantor and the CWC Parent.
"CWC CIRCULAR" means the circular to the Target's shareholders dated 14
February 2000 (as supplemented by a circular dated 3 March 2000),
relating to the Scheme and the proposed acquisition of the CWC DataCo
Business by Cable & Wireless and the CWC ConsumerCo Business by NTL
Holdings.
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"CWC CONSUMERCO BUSINESS" means the residential cable, business cable,
indirect residential telephony, residential internet and digital
television development and services businesses owned and operated by the
Target and its subsidiaries.
"CWC CREDIT AGREEMENT" means the credit agreement dated 19 March 1997 (as
amended and restated on 31 March 1998) between, among others, the Target
and certain financial institutions.
"CWC DATACO BUSINESS" means the corporate, business, internet protocol
and wholesale operations carried on by the Target and its subsidiaries
prior to the First Caxton Sale.
"CWC HOLDINGS" means Cable & Wireless Communications (Holdings) plc, a
company incorporated in England and Wales with company number 3922682.
"CWC HOLDINGS CAPITAL REDUCTION" means the reduction in the share capital
of CWC Holdings occurring prior to the Acquisition, such a reduction
being confirmed by the Court in accordance with section 135 of the
Companies ▇▇▇ ▇▇▇▇.
"CWC HOLDINGS INTRA-GROUP LOAN ASSIGNMENT" means the assignment in the
agreed form executed or to be executed by CWC Holdings in favour of the
Security Trustee, assigning CWC Holding's rights in respect of loans made
or to be made by it to the Target and other members of the Target Group.
"CWC HOLDINGS SHARE CHARGE" means the share charge in agreed form
executed or to be executed by CWC Holdings in favour of the Security
Trustee relating to the issued share capital of the Target.
"CWC PARENT" means CWC Holdings, once such has acceded hereto as the CWC
Parent in accordance with Clause 34.4 (Accession of CWC Parent).
"DEBENTURES" means the debentures, in the agreed forms, executed or to be
executed in connection herewith, creating first fixed and floating
charges over the whole of the assets and undertaking of the entity party
thereto as Obligor save to the extent that such assets include:
(a) shares or any other interests in or assets of a Project Company;
(b) shares in a Target Group Excluded Subsidiary or shares in a UK
Group Excluded Subsidiary;
(c) shares in Cable Guide Limited; or
(d) in respect of CableTel Limited, CableTel Investments Limited, Maza
Limited, Northampton Cable Limited and Herts Cable Limited, assets
which are used by or the interests in either of the Telecential
Partnerships where the terms of the partnership deeds relating
thereto prohibit the granting of security over those interests or
assets or the granting of such security could reasonably be
expected to result in a breach of a fiduciary duty.
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"DEBT ADJUSTMENT PAYMENTS" means:
(a) in the event that the members of the Target Group are found to
have had excessive indebtedness as at the Acquisition Date, the
payment of cash or the issue of Cable & Wireless shares to NTL
Holdings; or
(b) in the event that the members of the Target Group are found to
have had insufficient indebtedness as at the Acquisition Date, the
payment of a sum equal to such an insufficient amount of
indebtedness by NTL Holdings to Cable & Wireless,
in each case in accordance with the terms of the Transaction Agreement.
"DIAMOND NOTES" means the:
(a) 13-1/4% senior discount notes due 30 September 2004, with a
principal amount at maturity of $285,000,000, issued by Diamond
Cable Communications plc;
(b) 11-3/4% senior discount notes due 15 December, 2005, with a
principal amount at maturity of $531,000,000, issued by Diamond
Cable Communications plc;
(c) 10-3/4% senior discount notes due 15 February 2007, with a
principal amount at maturity of $421,000,000, issued by Diamond
Cable Communications plc;
(d) 10% senior notes due 1 February 2008 with a principal amount at
maturity of L135,000,000, issued by Diamond Holdings plc; and
(e) 9-1/8% senior notes due 1 February 2008 with a principal amount at
maturity of $110,000,000, issued by Diamond Holdings plc.
"DISCLOSURE LETTER" means the letter, in the agreed form, dated on or
about the date of this Agreement from the Parent to the Agent (on behalf
of the Finance Parties) setting out various matters to be excluded from
certain representations and covenants in this Agreement.
"DISPUTE" means any dispute referred to in Clause 41 (Jurisdiction).
"DORMANT SUBSIDIARY" means, at any time, any subsidiary of the Parent or
the CWC Parent which is "dormant" as defined in Section 250(3) of the
Companies ▇▇▇ ▇▇▇▇.
"EBITDA" has the meaning given to it in Clause 18.3 (Financial
Definitions).
"EGM" means the extraordinary general meeting of the Target convened to
consider and vote on the resolutions necessary to implement the Scheme.
"EMU" means Economic and Monetary Union as contemplated in the Treaty on
European Union.
"EMU LEGISLATION" means legislative measures of the European Union for
the introduction of, changeover to or operation of the euro in one or
more member states, being in part legislative measures to implement the
third stage of EMU.
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"ENCUMBRANCE" means (a) a mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person, (b) any arrangement
under which money or claims to, or the benefit of, a bank or other
account may be applied, set off or made subject to a combination of
accounts so as to effect discharge of any sum owed or payable to any
person or (c) any other type of preferential arrangement (including any
title transfer and retention arrangement) having a similar effect.
"ENVIRONMENTAL CLAIM" means any claim, proceeding or investigation by any
person pursuant to any Environmental Law.
"ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in which
any member of the UK Group (or, prior to the Pushdown Date, the Original
Borrower or any member of the UK Group and/or the Target Group) conducts
business which relates to the pollution or protection of the environment
or harm to or the protection of human health or the health of animals or
plants.
"ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval and
other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of the
business of any member of the UK Group (or, prior to the Pushdown Date,
the Original Borrower or any member of the UK Group and/or the Target
Group) conducted on or from the properties owned or used by the relevant
member of the UK Group (or, prior to the Pushdown Date, the Original
Borrower or any member of the UK Group and/or the Target Group).
"EVENT OF DEFAULT" means any circumstance described as such in Clause 20
(Events of Default).
"EXCESS CAPACITY NETWORK SERVICES" means the provision of network
services, or agreement to provide network services, by the Original
Borrower or a member of the Target Group or a member of the UK Group in
favour of one or more of its affiliates where such network services are
only provided in respect of the capacity available to the Original
Borrower, such member of the Target Group or member of the UK Group in
excess of that network capacity it requires to continue to provide
current services to its existing and projected future customers and to
allow it to provide further services to both its existing and projected
future customers in accordance with the Business Plan.
"EXCESS CASH FLOW" has the meaning given to it in Clause 18.3 (Financial
Definitions).
"EXCLUDED CONTRIBUTIONS" means the cash proceeds of any:
(a) Financial Indebtedness or equity raised by members of the Covenant
Group on or before 31 December 2002, the aggregate amount of which
does not exceed L750,000,000 (or its equivalent) and PROVIDED
THAT, in the case of any Financial Indebtedness incurred by a
member of the Covenant Group, the final maturity date of such
Financial Indebtedness is a date falling no earlier than the date
twelve months after the Final Maturity Date;
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(b) equity issued by NTL CC to any other members of the NTL Holding
Group, up to an aggregate amount of L25,000,000 (or its
equivalent) in any financial year of NTL CC; and
(c) Permitted Refinancings.
"EXECUTION DATE" means the date of this Agreement.
"EXISTING HEDGING" means the Hedging Agreements of members of the Target
Group in existence on the Acquisition Date.
"EXISTING PERFORMANCE BONDS" means:
(a) performance bonds in an aggregate amount of up to L7,100,000
issued by Zurich Re at the request of certain members of the
Target Group;
(b) performance bonds in an aggregate amount of up to L1,139,199
issued by National Westminster Bank Plc at the request of certain
members of the Target Group; and
(c) performance bonds in an aggregate amount of up to L2,800,000
issued by National Westminster Bank Plc at the request of certain
members of the UK Group.
"EXISTING TARGET INDEBTEDNESS" means the Financial Indebtedness of CWC
Holdings and each of its subsidiaries outstanding on the Acquisition Date
including, without limitation, Financial Indebtedness in respect of:
(a) the Yankee Bonds;
(b) the Sterling Bonds;
(c) the CWC Credit Agreement;
(d) the BCM Notes;
(e) the Videotron Mortgage;
(f) the NatWest Finance Leases;
(g) the Vehicle Finance Leases;
(h) the Overdraft Facilities;
(i) the High Yield Bonds;
(j) the Receivables Purchase Facility;
(k) the Cable & Wireless Debt;
(l) the Existing Hedging;
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(m) the South Herts Facility; and
(n) the TWTV Debt.
"FACILITY OFFICE" means, in relation to the Agent, the office identified
with its signature below or such other office as it may select by notice
and, in relation to any Bank, the office notified by it to the Agent in
writing prior to the date hereof (or, in the case of a Transferee, at the
end of the Transfer Certificate to which it is a party as Transferee) or
such other office as it may from time to time select by notice to the
Agent.
"FINAL ASSET TRANSFEREE" means the member of the Group, other than a
member of the UK Group, who is the final transferee in respect of a
transfer from NTL UK, through one or more members of the UK Group.
"FINAL MATURITY DATE" means 30 September 2005.
"FINANCE DOCUMENTS" means this Agreement, any Borrower Accession
Memorandum delivered hereunder, any Guarantor Accession Memorandum
delivered hereunder, the fee letters referred to in Clause 22.5 (Agency
and other Fees), the Security Documents, the Security Trust Agreement,
the NTL UK Subordination Agreement, the NTL Subordination Agreement, any
Subordination Agreement and any other document designated as such by the
Agent and the Relevant Obligor.
"FINANCE PARTIES" means, at any time, the Agent, the Arrangers, the
Security Trustee and the Banks at such time.
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) Indebtedness for Borrowed Money;
(b) any documentary or standby letter of credit facility or
performance bond facility;
(c) any Hedging Agreement (and the amount of the Financial
Indebtedness in relation thereto shall be calculated by reference
to the ▇▇▇▇-to-market valuation of such transaction at the
relevant time); and
(d) (without double counting) any guarantee or indemnity for any of
the items referred to in paragraphs (a) to (c) above.
"FINANCIAL QUARTER" has the meaning given to it in Clause 18.3 (Financial
Definitions).
"FIRST CAXTON SALE" means the transfer, after the Scheme Effective Date,
of Caxton by the Target to CWC Holdings, as authorised by the Scheme,
such a transfer being made at book value (subject to adjustment under
Schedule 19 of the Transaction Agreement), on terms that the price
payable by CWC Holdings is left outstanding to the extent that
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CWC Holdings does not assume at least a corresponding amount of
indebtedness of the Target in consideration for the sale of Caxton.
"FORCED DRAW" means a utilisation of the Working Capital Facility made as
a result of the lenders under the Working Capital Facility exercising
their right to require the Parent, in its capacity as the borrower under
the Working Capital Facility, to draw an advance thereunder.
"FUNDED EXCLUDED SUBSIDIARY" means, in respect of a UK Group Funding
Passthrough, a UK Group Excluded Subsidiary or, prior to the Pushdown
Date and in respect of a Target Group Funding Passthrough, a Target Group
Excluded Subsidiary which:
(a) indirectly receives funding from NTL UK (in respect of a UK Group
Funding Passthrough) or a member of the NTL Holding Group (in
respect of a Target Group Funding Passthrough); and/or
(b) by way of dividend or other distribution, loan or payment of
interest on or the repayment of the principal amount of any
indebtedness owed by it, makes a payment to NTL UK (in respect of
a UK Group Funding Passthrough) or a member of the NTL Holding
Group (in respect of a Target Group Funding Passthrough).
"FUNDING PASSTHROUGH" means either a UK Group Funding Passthrough or a
Target Group Funding Passthrough.
"GROUP" means NTL Holdings and its subsidiaries for the time being.
"GROUP REPRESENTATIVE" means the Original Borrower, acting as
representative of the Obligors and as provider of information in relation
to members of the UK Group (and, prior to the Pushdown Date, members of
the Target Group).
"GROUP STRUCTURE CHARTS" means:
(a) the structure chart showing (at least) the UK Group and the NTL
Holding Group, in the agreed form; and
(b) the structure chart showing the Target Group (in a form similar to
the structure chart referred to in paragraph (a) above).
"GUARANTOR" means any company which has become a Guarantor in accordance
with Clause 34 (Accession of Guarantors and the CWC Parent) PROVIDED THAT
such company has not been released from its rights and obligations
hereunder in accordance with Clause 34.3 (Resignation of a Guarantor).
"GUARANTOR ACCESSION MEMORANDUM" means, in respect of the accession of
CWC Holdings as a Guarantor, the CWC Accession Memorandum or, in all
other cases, a memorandum substantially in the form set out in Schedule 8
(Form of Guarantor Accession Memorandum).
-12-
16
"HEDGING AGREEMENT" means an agreement in respect of an interest rate
swap, currency swap, forward foreign exchange transaction, cap, floor,
collar or option transaction or any other treasury transaction or any
combination thereof or any other transaction entered into in connection
with protection against or benefit from fluctuation in any rate or price.
"HEDGING STRATEGY" means the hedging strategy adopted by the Parent from
time to time for the sole purpose of hedging the UK Group's (and, adopted
by the CWC Parent prior to the Pushdown Date, for the sole purpose of
hedging the Target Group's) then existing interest rate or currency risk
exposure in connection with its ordinary business acting reasonably and
prudently and not for speculative or proprietary trading purposes.
"HIGH YIELD BONDS" means:
(a) the $256,225,000 11 per cent. senior discount notes due 2005
issued by Cable & Wireless Communications (V) Holdings Limited
(formerly known as Videotron Holdings plc) pursuant to an
indenture dated 15 August 1995 (as supplemented);
(b) the $490,213,555 11.95 per cent. senior discount notes due 2004
issued by Cable & Wireless Communications (B) Limited (formerly
known as ▇▇▇▇ Cablemedia plc) pursuant to an indenture dated 22
July 1994 (as supplemented); and
(c) the $489,115,000 11.875 per cent. senior discount notes due 2005
issued by Cable & Wireless Communications (B) Limited pursuant to
an indenture dated 18 September 1995 (as supplemented),
PROVIDED THAT the covenants in relation thereto have been fully defeased
and the aggregate principal amount of the remaining indebtedness
thereunder is less than $3,200,000.
"ICTA" means the Income and Corporation Taxes ▇▇▇ ▇▇▇▇.
"INCREMENTAL FACILITY" means a facility of up to a maximum aggregate
amount of L500,000,000 which may be made available to members of the UK
Group following a request by the Parent pursuant to Clause 5 (Incremental
Facility).
"INDEBTEDNESS FOR BORROWED MONEY" means any indebtedness for or in
respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument (for the avoidance of doubt excluding any such
instrument issued solely by way of consideration for
-13-
17
the acquisition of assets where such an instrument is not issued
for the purpose of raising finance);
(d) any amount raised pursuant to any issue of shares which are
expressed to be redeemable in cash (other than (i) shares
redeemable after 31 March 2007 and (ii) redeemable shares issued
by way of consideration for the acquisition of assets where such
shares are not issued for the purpose of raising finance);
(e) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with generally
accepted accounting principles in the relevant jurisdiction, be
treated as a finance or capital lease;
(f) the amount of any liability in respect of any advance or deferred
purchase agreement if the primary reason for entering into such
agreement is to raise finance;
(g) receivables sold or discounted (other than on a non-recourse
basis);
(h) any agreement or option to re-acquire an asset if the primary
reason for entering into such agreement or option is to raise
finance;
(i) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial effect
of a borrowing; and
(j) (without double counting) the amount of any liability in respect
of any guarantee or indemnity for any of the items referred to in
paragraphs (a) to (i) above.
"INFORMATION MEMORANDUM" means the document concerning the CWC ConsumerCo
Business and the UK Group and the Target Group which, at NTL Inc.'s and
the Parent's request and on their behalf, was prepared in relation to
this transaction and distributed by the Arrangers to selected banks
during May 2000 (as the same may be updated on or before the Syndication
Date).
"INITIAL SECURITY" means the CWC Holdings Share Charge, the CWC Holdings
Intra-Group Loan Assignment, the Original Borrower Intra-Group Loan
Assignment, the NTL Intra-Group Loan Assignment, the NTL Security Over
Cash Agreement and the Original Borrower Security Over Cash Agreement.
"INSTRUCTING GROUP" means:
(a) before any Revolving Advances have been made, a Bank or Banks
whose Commitments amount in aggregate to more than sixty-six and
two thirds per cent. of the Total Commitments; and
(b) thereafter, a Bank or Banks to whom in aggregate more than
sixty-six and two thirds per cent. of the amount of the Revolving
Loan is (or, immediately prior to its repayment, was then) owed.
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18
"INSURANCE PROCEEDS" means the proceeds of any insurance claim intended
to compensate for damage to any asset or interruption of business
received by any member of the UK Group or, prior to the Pushdown Date,
any member of the Target Group, after deducting:
(a) any reasonable out of pocket expenses incurred by any member of
the UK Group or, as the case may be, Target Group in relation to
such a claim; and
(b) proceeds relating to third party claims, which are applied towards
meeting such claims.
"INTELLECTUAL PROPERTY" means all patents, trade marks, service marks,
designs, copyrights, design rights, moral rights, inventions,
confidential information, know-how and other intellectual property rights
and interests, whether registered or unregistered, and the benefit of all
licences, applications and rights to use such intellectual property now
or hereafter belonging to any member of the UK Group and, prior to the
Pushdown Date, any member of the Target Group.
"INTERCREDITOR AGREEMENT" means the agreement dated on or about the
Execution Date between the Banks, the lenders under the Working Capital
Facility, the Agent, the Working Capital Facility Agent and the Security
Trustee, by which the lenders under the Working Capital Facility
undertake certain obligations in respect of their rights under the
Working Capital Facility.
"INTRA-GROUP LOAN ASSIGNMENT" means each assignment in the agreed form
executed or to be executed by a member of the NTL Holding Group in favour
of the Security Trustee, assigning the assignor's rights in respect of
loans made or to be made by it to the Original Borrower or members of the
Target Group.
"INTRA-GROUP SERVICES" means:
(a) the provision of services by a member of the UK Group or, prior to
the Pushdown Date, the Original Borrower to a member of the Group,
where such member of the Group requires those services to enable
it to carry on its business and PROVIDED THAT the consideration
for the provision thereof is in the reasonable opinion of the
Parent no less than the cost (save in any immaterial respect)
incurred by such member of the UK Group or Original Borrower in
providing such services;
(b) the provisions of services constituted by NTL Group Limited
employing personnel, acting as agent to buy equipment or other
assets or trade with residential customers on behalf of other
members of the Group, where the costs of such employment or
purchasing and the costs and revenues generated by such trading
are in the reasonable opinion of the Parent reimbursed by or
distributed (save in any immaterial respect) to the relevant Group
member; and
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19
(c) the provision of services constituted by the Original Borrower
acting as agent to trade with business customers on behalf of
other members of the Group, where the costs and revenues of such
trading are in the reasonable opinion of the Parent reimbursed by
or distributed (save in any immaterial respect) to the relevant
Group Member.
"IRELAND" means the Republic of Ireland.
"LIBOR" means, in relation to any amount to be advanced to or owing by an
Obligor under the Finance Documents on which interest for a given period
is to accrue:
(a) the percentage rate per annum equal to the offered quotation which
appears on the page of the Telerate Screen which displays the
British Bankers Association Interest Settlement Rate for sterling
(being currently "3750") or the currency of any Unpaid Sum for
such period as of 11.00 a.m. on the Quotation Date for such period
or, if such page or such service shall cease to be available, such
other page or such other service for the purpose of displaying the
British Bankers Association Interest Settlement Rate for sterling
(or the currency of such Unpaid Sum) as the Agent, after
consultation with the Banks and the Relevant Obligor, shall
select; or
(b) if no quotation for sterling (or the currency of such Unpaid Sum)
and the relevant period is displayed and the Agent has not
selected an alternative service on which a quotation is displayed,
the arithmetic mean (rounded upwards to five decimal places) of
the rates (as notified to the Agent) at which each of the
Reference Banks was offering to prime banks in the London
interbank market deposits in sterling (or the currency of such
Unpaid Sum) for such period as of 11.00 a.m. on the Quotation Date
for such period.
"LICENCES" means each licence which is material to the conduct of the
business of any member of the UK Group or, prior to the Pushdown Date,
any member of the Target Group.
"LMA" means the Loan Market Association.
"MANDATORY COST RATE" means the rate determined in accordance with
Schedule 12 (Mandatory Costs).
"MARGIN" means the percentage rate per annum determined in accordance
with Clause 4.3 (Margin Ratchet) to Clause 4.5 (Default Margin).
"MATERIAL ADVERSE EFFECT" means:
(a) in respect of the Original Borrower only (until such time as it
becomes a member of the UK Group), a material adverse effect on
(i) the business, operations, property or condition (financial or
otherwise) of the Original Borrower or (ii) the ability of the
Original Borrower to perform its material obligations under the
Finance Documents to which it is a party; and
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20
(b) in all other cases, a material adverse effect on (i) the business,
operations, property or condition (financial or otherwise) of the
UK Group taken as a whole (or, prior to the Pushdown Date, either
the UK Group taken as a whole and/or the Target Group taken as a
whole) or (ii) the ability of any Obligor to perform its material
obligations under the Finance Documents to which it is a party.
"MATERIAL COMMERCIAL CONTRACTS" means any commercial agreements entered
into by any member of the UK Group or, prior to the Pushdown Date, the
Original Borrower or any member of the UK Group and/or the Target Group
which are reasonably likely to be material to the business or prospects
of, in the case of the Original Borrower, its business or prospects or,
in the case of any member of the UK Group, the UK Group taken as a whole
(or, prior to the Pushdown Date, either the UK Group taken as a whole
and/or the Target Group taken as a whole).
"MEETINGS" means each of the Court Meeting and EGM.
"NATWEST FINANCE LEASES" means:
(a) the two finance leases dated 7 September 1995 (as amended on 6
October 1999) between Cable & Wireless Communications (Leeds)
Limited as lessee, NatWest Lessors Limited as lessor and Cable &
Wireless Communications Holdings (Leeds) Limited as guarantor; and
(b) the two finance leases dated 22 March 1996 (as amended on 6
October 1999) between (among others) Cable & Wireless
Communications (South East) Limited as lessee and NatWest Lessors
Limited as lessor.
"NET AVERAGE REVENUE CONTRIBUTIONS" means, at any time:
(a) the aggregate of the Average Revenue Contributions of all assets
disposed of by members of the UK Group and, prior to the Pushdown
Date, the Target Group under paragraph (g) of the definition of
Permitted Disposals,
less
(b) the aggregate of the estimated Average Revenue Contributions of
all assets acquired by members of the UK Group and, prior to the
Pushdown Date, the Target Group either in exchange for, or out of
the proceeds of the disposal of, assets disposed of under
paragraph (g) of the definition of Permitted Disposals (such
estimated Average Revenue Contributions to be reasonably agreed
between either the CWC Parent or the Parent and the Agent on the
basis of the revenues such acquired assets could have reasonably
been expected to have generated for the two financial years of the
Parent immediately preceding the date of their acquisition, had
such assets been owned by the relevant member of the UK Group or
Target Group throughout those two financial years).
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21
"NEW YORK OFFICE EXPENSES" means, in relation to any financial year of
NTL Holdings, the expenses (including taxes) so described and specified
in relation to such financial year in the Business Plan.
"NOTICE OF DRAWDOWN" means a notice substantially in the form set out in
Schedule 4 (Notice of Drawdown).
"NOTICE PERIOD" means the period commencing ten Business Days before the
proposed date for the making of a Revolving Advance and ending 2.00 p.m.
three Business Days before (or, in respect of Revolving Advance to be
made hereunder on the Acquisition Date, ending 9.00 a.m. two Business
Days before) the proposed date for the making of such a Revolving Advance
(or such later time as all of the Banks may agree).
"NTL CC" means NTL Communications Corp.
"NTL CC CHARGED ACCOUNT" means an account, bearing interest at a
commercially reasonable rate in relation to the given circumstances, in
the name of NTL CC over which security has been granted in favour of the
Security Trustee pursuant to the NTL CC Security Over Cash Agreement,
into which members of the UK Group make deposits for the purpose of
making Permitted Payments in accordance with paragraph (f) of the
definition thereof.
"NTL CC NOTES" means, to the extent such have been issued in either the
domestic or the international capital markets, the bonds, notes or
similar public debt instruments issued by NTL CC and outstanding at the
date of this Agreement.
"NTL CC SECURITY OVER CASH AGREEMENT" means the assignment and charge in
the agreed form executed or to be executed by NTL CC in favour of the
Security Trustee, assigning and charging NTL CC's rights in respect of
sums deposited in the NTL CC Charged Account.
"NTL CHARGED ACCOUNT" means an account, bearing interest at a
commercially reasonable rate in relation to the given circumstances, in
the name of NTL Inc. over which security has been granted in favour of
the Security Trustee pursuant to the NTL Security Over Cash Agreement,
into which members of the UK Group or, prior to the Pushdown Date, the
Original Borrower or members of the Target Group make deposits for the
purpose of making Permitted Payments in accordance with either paragraph
(f) or paragraph (g) of the definition thereof.
"NTL HOLDING GROUP" means NTL Holdings and the Parent's other holding
companies.
"NTL HOLDINGS" means NTL Incorporated (formerly named NTL Holdings
Incorporated), a company incorporated in Delaware which became the
holding company of NTL Inc. with effect from the effective date of the
CWC Holdings Capital Reduction.
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22
"NTL INC." means NTL (Delaware) Incorporated (formerly named NTL
Incorporated), a company incorporated in Delaware.
"NTL INTRA-GROUP LOAN ASSIGNMENT" means the assignment in the agreed form
executed or to be executed by NTL Inc. in favour of the Security Trustee,
assigning NTL Inc.'s rights in respect of loans made or to be made by it
to the Original Borrower and members of the Target Group.
"NTL SECURITY OVER CASH AGREEMENT" means the assignment and charge in the
agreed form executed or to be executed by NTL Inc. in favour of the
Security Trustee, assigning and charging NTL Inc.'s rights in respect of
sums deposited in the NTL Charged Account.
"NTL SUBORDINATION AGREEMENT" means the subordination agreement in the
agreed form between NTL Inc. as the lender, the Original Borrower as
borrower and the Security Trustee, pursuant to which, whilst sums remain
outstanding under the Finance Documents, no payments of interest,
repayments of principal or any other payments of any kind can be made in
respect of indebtedness owed by the Original Borrower and members of the
Target Group to NTL Inc., save for certain Permitted Payments.
"NTL TRIANGLE ACCESSION" means the accession of the members of the NTL
Triangle Sub-Group as Guarantors in accordance with Clause 34.5 (NTL
Triangle Accession).
"NTL TRIANGLE SUB-GROUP" means NTL Triangle LLC and its subsidiaries from
time to time.
"NTL UK" means NTL (UK) Group, Inc., a company incorporated in Delaware.
"NTL UK INTRA-GROUP LOAN ASSIGNMENT" means the assignment in the agreed
form executed by NTL UK on the Pushdown Date in favour of the Security
Trustee, assigning NTL UK's rights in respect of loans made or to be made
by it to members of the UK Group.
"NTL UK SUBORDINATION AGREEMENT" means the subordination agreement in the
agreed form between NTL UK as the lender, the Parent as the borrower and
the Security Trustee, pursuant to which, whilst sums remain outstanding
under the Finance Documents, no payments of interest, repayments of
principal or any other payments of any kind can be made in respect of
indebtedness owed by the Parent to NTL UK, save for certain Permitted
Payments.
"NTLIH" means NTL Investment Holdings Limited, a company incorporated in
England and Wales with company number 3173552.
"OBLIGORS" means the Borrowers and the Guarantors.
"OFTEL" means the Director General of Telecommunications and/or any other
successor or other body or authority having, inter alia, the right,
function and/or obligation to monitor and enforce compliance with the
provisions of licences issued pursuant to the Telecommunications ▇▇▇
▇▇▇▇.
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23
"ORIGINAL BORROWER CHARGED ACCOUNT" means an account, bearing interest at
a commercially reasonable rate in relation to the given circumstances, in
the name of the Original Borrower over which security has been granted in
favour of the Security Trustee pursuant to the Original Borrower Security
Over Cash Agreement and into which the Original Borrower Investment is
deposited.
"ORIGINAL BORROWER INTRA-GROUP LOAN ASSIGNMENT" means the assignment in
the agreed form executed or to be executed by the Original Borrower in
favour of the Security Trustee, assigning the Original Borrower's rights
in respect of loans made or to be made by it to CWC Holdings.
"ORIGINAL BORROWER INVESTMENT" means the cash invested by NTL Inc. in the
Original Borrower on or before the Acquisition Date, such an investment
being made by way of Subordinated Funding.
"ORIGINAL BORROWER SECURITY OVER CASH AGREEMENT" means the assignment and
charge in the agreed form executed or to be executed by the Original
Borrower in favour of the Security Trustee, assigning and charging the
Original Borrower's rights in respect of sums deposited in the Original
Borrower Charged Account.
"ORIGINAL FINANCIAL STATEMENTS" means:
(a) in relation to the Parent, its audited consolidated financial
statements for its financial year ended 31 December 1998;
(b) in relation to the Original Borrower, its audited unconsolidated
financial statements for its financial year ended 31 December
1998;
(c) in relation to the Target (and insofar as they relate to the CWC
ConsumerCo Business), the consolidated financial statements of the
Target and its subsidiaries, prepared by its auditors for the
financial year ended 31 March 1999 (as set out in the Accountants'
Report) and the consolidated financial statements of the Target
and its subsidiaries, prepared by its management for the six month
period ended 30 September 1999 (as set out in the CWC Circular).
"OVERDRAFT FACILITY" means any facility provided by a United Kingdom
clearing bank to a member of the Target Group or, as the case may be, a
member of the UK Group.
"PARENT FUNDING" means:
(a) the subscription by the Parent for new equity capital of any other
member of the UK Group; and
(b) Assigned Debt.
"PARENT INTRA-GROUP LOAN ASSIGNMENT" means the assignment in the agreed
form executed on the Pushdown Date by the Parent in favour of the
Security Trustee,
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24
assigning the Parent's rights in respect of loans made or to be made by
it to other members of the UK Group.
"PARTICIPATING MEMBER STATE" means any member state of the European Union
which has adopted the euro as its lawful currency at the relevant time.
"PERMITTED ACQUISITIONS" means:
(a) the Acquisition or any acquisitions necessary to effect either the
issues or transfers of shares referred to in paragraphs (a), (b),
(d), (e) and (f) of the definition of the Pushdown;
(b) prior to the Pushdown Date, with respect to any member of the
Target Group only, any acquisition of (or of any interests in) (A)
companies, partnerships, consortia, joint ventures or other
arrangements or (B) businesses, licences, revenues or assets
PROVIDED THAT:
(i) the relevant company, partnership, consortium, joint
venture or other arrangement or the acquired business,
licence, revenues or asset engages in, or, as the case may
be, relates to, a Cable Business;
(ii) the acquisition of such an entity or asset is financed
solely by equity;
(iii) the entity or asset to be acquired has no Financial
Indebtedness other than Financial Indebtedness owed to
another member of the Target Group; and
(iv) the requirements of paragraphs (1), (2) and (3) of
paragraph (c)(ii) of this definition are complied with in
respect of such acquisition if the total consideration
(including, without limitation, deferred consideration and
any consideration comprising of the issue of either debt
instruments or shares) for such an acquisition either (A)
exceeds L80,000,000 (or its equivalent in other currencies)
or (B) when aggregated with the consideration (determined
in accordance with paragraph (c)(ii) below) arising in
respect of all such other acquisitions (save for any
acquisitions permitted by paragraphs (a), (d), (f), (h) or
(i) of this definition of Permitted Acquisitions) made by
members of the UK Group and, prior to the Pushdown Date,
members of the Target Group during the then current
financial year, exceeds L100,000,000 (or its equivalent in
other currencies);
(c) with respect to any member of the UK Group at any time, any
acquisition of (or of any interests in) (A) companies,
partnerships, consortia, joint ventures or other arrangements or
(B) businesses, licences, revenues or assets PROVIDED THAT:
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25
(i) the relevant company, partnership, consortium, joint
venture or other arrangement or the acquired business,
licence, revenues or asset engages in, or, as the case may
be, relates to, a Cable Business; and
(ii) if the total consideration (including, without limitation,
assumed debt, deferred consideration and any consideration
comprising of the issue of either debt instruments or
shares) for such an acquisition either (A) exceeds
L80,000,000 (or its equivalent in other currencies) or (B)
when aggregated with the consideration (determined as
aforesaid) arising in respect of all such other
acquisitions (save for any acquisitions permitted by
paragraphs (a), (d), (f), (h) or (i) of this definition of
Permitted Acquisitions) made by members of the UK Group
and, prior to the Pushdown Date, members of the Target
Group during the then current financial year, exceeds
L100,000,000 (or its equivalent in other currencies):
(1) the Parent has provided the Agent with a pro forma
business plan (over a period ending at least one
year after the Final Maturity Date), together with
the key operating assumptions relating thereto, has
provided representations to the Finance Parties (in
the form agreed by the Agent (acting reasonably)
with respect thereto) in relation to such business
plan and has confirmed that no Event of Default or
Potential Event of Default has occurred and is
continuing or would occur following such
acquisition;
(2) the pro forma business plan demonstrates pro forma
compliance with the financial covenants set out in
Clause 18 (Financial Condition) until the Final
Maturity Date; and
(3) the pro forma business plan demonstrates that
amounts available for drawdown under the Revolving
Facility (following any planned drawdown to finance
the contemplated acquisition) and under other
financing sources committed to the UK Group are
sufficient to meet the UK Group's projected
financing needs until the Final Maturity Date
(excluding the amount of principal to be repaid in
respect of the Revolving Facility on the Final
Maturity Date);
(d) the incorporation of a company or the acquisition of the shares in
a newly incorporated company from its subscribing shareholders,
where such a company at all times carries on business in an
administrative capacity, supporting the business of either the UK
Group and/or the Target Group (as carried on in accordance with
Clause 19.31 (Change of Business) or acts as a holding company for
a Permitted Acquisition within paragraph (b) or (c) above;
-22-
26
(e) the acquisition of no more than 1 per cent. of the issued share
capital of any of (i) Cable & Wireless Communications (B) Limited
by the Target or (ii) the Target by CWC Holdings, in each case
pursuant to a Permitted Issuance;
(f) any acquisition made by a member of the UK Group pursuant to the
implementation of an Asset Passthrough or a member of either the
UK Group or the Target Group pursuant to a Funding Passthrough;
(g) any acquisition by any member of the UK Group of the minority
shareholdings in Northampton Cable Television Limited and/or Herts
Cable Limited;
(h) any acquisition of assets as referred to in paragraph (a) of the
definition of Asset Adjustment Payments; and
(i) any acquisition by an Obligor, a member of the UK Group or, as the
case may be, a member of the Target Group pursuant to a Permitted
Disposal within paragraphs (f), (h) or (i) of the definition
thereof.
"PERMITTED COVENANT GROUP INDEBTEDNESS" means any Financial Indebtedness
of any member of the Covenant Group:
(a) arising under the NTL CC Notes;
(b) arising under a Permitted Refinancing;
(c) arising under a guarantee or other covenant for payment given in
respect of the Working Capital Facility;
(d) where such is owed by NTL UK to NTL CC or by NTL CC to any other
members of the NTL Holding Group;
(e) arising in respect of any letters of credit, performance bonds or
guarantees issued at the request of a member of the Group in the
ordinary course of its business;
(f) incurred after the Execution Date and on or before 31 December
2002 provided that:
(i) the aggregate principal amount of such Financial
Indebtedness does not exceed L750,000,000; and
(ii) the final maturity date of such Financial Indebtedness is a
date no earlier than the day falling twelve months after
the Final Maturity Date; and
(g) incurred on or after 1 January 2003 PROVIDED THAT:
(i) the requirements of sub-clauses 18.2.3 and 18.2.4 of Clause
18.2 (UK Group Financial Condition) are satisfied; and
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27
(ii) the final maturity date of such indebtedness is a date no
earlier than the day falling twelve months after the Final
Maturity Date.
"PERMITTED DISPOSAL" means any disposal:
(a) made in the ordinary and usual course of business;
(b) on arm's length commercial terms of an asset by either a member of
the UK Group (or, prior to the Pushdown Date, the Target Group)
who is not an Obligor;
(c) for cash (if the relevant asset has any value) on arm's length
commercial terms of any surplus or obsolete assets no longer
required for the efficient operation of the business of either the
UK Group or, prior to the Pushdown Date, the Target Group or the
Original Borrower;
(d) of cash, where such a disposal is not otherwise prohibited by the
Finance Documents;
(e) by way of a realisation of a Permitted Investment;
(f) by an Obligor to another Obligor, provided that if the relevant
assets are subject to an Encumbrance pursuant to a Security
Document, they remain so or become subject to a similar
Encumbrance in favour of the Finance Parties in the hands of the
acquiring Obligor;
(g) on (A) arm's length commercial terms for cash consideration or (B)
in exchange for similar assets located in either the United
Kingdom or Ireland which the Agent (acting reasonably) determines
to be of a comparable or superior quality PROVIDED THAT:
(i) in each case the Net Average Revenue Contributions at no
time exceed 15 per cent; and
(ii) the proceeds of any disposal under (A) of this paragraph
(g) are applied in accordance with Clause 10.2 (Mandatory
Prepayment from Asset Disposals);
(h) of an interest in real property by way of a lease or licence
granted by a member of the UK Group (or, prior to the Pushdown
Date, a member of the Target Group or the Original Borrower) to a
member of the UK Group (or, prior to the Pushdown Date, a member
of the Target Group or the Original Borrower);
(i) by a member of the UK Group (or, prior to the Pushdown Date, a
member of the Target Group) who is not an Obligor to the Original
Borrower or another member of the UK Group (or, prior to the
Pushdown Date, a member of the Target Group);
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(j) (by way of share sale) of any UK Group Excluded Subsidiary or any
Target Group Excluded Subsidiary (other than Cable & Wireless
Communications (B) Limited) (or any interest therein);
(k) necessary to effect the transfers of shares referred to paragraphs
(d), (e) and (f) of the definition of the Pushdown;
(l) (by way of share sale) of NTL Insurance Limited, for fair market
value, to any member of the NTL Holding Group;
(m) (by way of share sale) of Lanbase ▇▇▇▇▇▇▇ ▇▇, for fair market
value;
(n) of any assets as referred to in paragraph (b) of the definition of
Asset Adjustment Payments; and
(o) of any assets pursuant to the implementation of an Asset
Passthrough or of any funds received pursuant to the
implementation of a Funding Passthrough.
"PERMITTED ENCUMBRANCE" means:
(a) any Encumbrance specified in Schedule 5 (Existing Encumbrances),
if the principal amount thereby secured is not increased;
(b) any Encumbrance over or affecting any asset acquired by a member
of the UK Group after the date hereof and subject to which such
asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the
acquisition of such asset by a member of the UK Group; and
(ii) the Financial Indebtedness secured by such Encumbrance at
all times falls within paragraph (n) of the definition of
Permitted Indebtedness;
(c) any Encumbrance over or affecting any asset of any company which
becomes a member of the UK Group after the date hereof, where such
Encumbrance is created prior to the date on which such company
becomes a member of the UK Group, if:
(i) such Encumbrance was not created in contemplation of the
acquisition of such company; and
(ii) the Financial Indebtedness secured by such Encumbrance at
all times falls within paragraph (k) or (n) of the
definition of Permitted Indebtedness;
(d) any netting or set-off arrangement entered into by either any
member of the UK Group (or, prior to the Pushdown Date, a member
of the Target Group or the Original Borrower) in the normal course
of its banking arrangements for the purpose of netting debit and
credit balances;
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(e) any right of set-off or any title transfer or retention of title
arrangement entered into by either any member of the UK Group (or,
prior to the Pushdown Date, a member of the Target Group or the
Original Borrower) in the normal course of its trading activities
on the counterparty's standard or usual terms (where such terms
reasonably accord with the terms generally adopted in the market
to which such a trading activity relates);
(f) any lien arising by operation of law or by a contract having a
similar effect and in each case arising or entered into in the
normal course of business, if such lien is discharged within
thirty days of arising;
(g) any Encumbrance created pursuant to, arising under or evidenced by
the Security Documents;
(h) any Encumbrance granted by a member of the UK Group over the
shares or other interests it holds in, or over the assets
attributable to, a Project Company;
(i) any Encumbrance created by any arrangements referred to in
paragraph (e) or paragraph (f) of the definition of Indebtedness
for Borrowed Money;
(j) any Encumbrance arising pursuant to an order of attachment, an
injunction restraining the disposal of assets or any similar legal
process in each case arising in connection with court proceedings
being diligently conducted by a member of the UK Group, a member
of the Target Group or the Original Borrower in good faith;
(k) any Encumbrance over cash deposited as security for the
obligations of a member of the UK Group, a member of the Target
Group or the Original Borrower in respect of a performance bond,
guarantee, standby letter of credit or similar facility entered
into by such a member of the UK Group, member of the Target Group
or the Original Borrower in the ordinary course of business;
(l) any Encumbrance existing at the date hereof in relation to the
Videotron Mortgage, the NatWest Finance Leases, the South Herts
Facility (or the South Herts Refinancing Loan) or the Vehicle
Finance Leases, for so long as the indebtedness relating to such
constitutes Permitted Indebtedness within paragraph (b) of the
definition of Permitted Indebtedness;
(m) any Encumbrance over assets subject to the Security and securing
Financial Indebtedness arising under the Incremental Facility,
subject to an intercreditor agreement acceptable to all of the
Banks being entered into between the Banks and the lenders under
the Incremental Facility;
(n) any Encumbrance constituted by a rent deposit deed entered into on
arm's length terms and in the ordinary course of business securing
the obligations of a member of the UK Group or, prior to the
Pushdown Date, a member of the
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Target Group or the Original Borrower in relation to property
leased to a member of the UK Group or, as the case may be, a
member of the Target Group or the Original Borrower;
(o) any Encumbrance granted by any member of the Target Group prior to
the Execution Date in favour of the Target or Cable & Wireless
Communications Corporation Limited PROVIDED THAT the indebtedness
related thereto has been fully repaid; and
(p) any Encumbrance securing Permitted Indebtedness falling within
paragraph (n) of the definition of that term.
"PERMITTED INDEBTEDNESS" means any Financial Indebtedness:
(a) arising under or permitted pursuant to the Finance Documents;
(b) in respect of each category of Existing Target Indebtedness listed
in paragraphs (a) to (n) of the definition thereof, until such
time that the Pushdown Condition in relation to that category of
Existing Target Indebtedness should have been satisfied in
accordance with Clause 19.18 (Discharge of Existing Target
Indebtedness);
(c) in respect of Subordinated UK Group Debt or Subordinated Target
Group Debt;
(d) arising in relation to the implementation of the Hedging Strategy;
(e) arising under Permitted Loans and Guarantees;
(f) arising under the Incremental Facility;
(g) arising under Secured Ancillary Facilities or in relation to any
documentary or standby letter of credit facility or performance
bond facility made available by a financial institution on an
unsecured basis PROVIDED THAT the aggregate indebtedness of all
members of the UK Group and, prior to the Pushdown Date, of the
Original Borrower and of all members of the Target Group in
relation to such facilities and the Secured Ancillary Facilities
does not exceed L40,000,000 (or its equivalent);
(h) falling within paragraph (e) of the definition of Indebtedness for
Borrowed Money ("FINANCE LEASE DEBT") which, when aggregated with
any other Finance Lease Debt incurred in reliance on this
paragraph (h) by each member of the UK Group (and, prior to the
Pushdown Date, each member of the Target Group and the Original
Borrower) does not exceed L45,000,000 (or its equivalent);
(i) arising in respect of Existing Performance Bonds;
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(j) in respect of Permitted Overdraft Borrowings PROVIDED THAT the
aggregate amount of such Financial Indebtedness does not exceed
L20,000,000 (or its equivalent);
(k) of any company which becomes a member of the UK Group after the
date hereof, where such Financial Indebtedness arose prior to the
date on which such company becomes a member of the UK Group; if:
(i) such Financial Indebtedness was not created in
contemplation of the acquisition of such company;
(ii) the aggregate amount of all Financial Indebtedness falling
within this paragraph (k) does not exceed L20,000,000 (or
its equivalent); and
(iii) such Financial Indebtedness is repaid within three months
of such company becoming a member of the UK Group;
(l) arising under the Working Capital Facility;
(m) arising in relation to either an Asset Passthrough or a Funding
Passthrough PROVIDED THAT any such Financial Indebtedness is
Subordinated UK Group Debt if it is owed by the Parent to NTL UK,
Assigned Debt if it is owed by a member of the UK Group to the
Parent on and after the Pushdown Date or Subordinated Target Group
Debt if it is owed by the Original Borrower or a member of the
Target Group to a member of the NTL Holding Group; and
(n) not falling within paragraphs (a) to (m) above, of any members of
the UK Group or, prior to the Pushdown Date and to the extent such
is outstanding at the Acquisition Date, of any members of the
Target Group or the Original Borrower PROVIDED THAT the aggregate
amount of such Financial Indebtedness does not exceed L20,000,000
(or its equivalent).
"PERMITTED INVESTMENTS" means:
(a) any debt securities which are readily marketable and which are
rated at least "AA" by Standard & Poor's Corporation or "Aa2" by
▇▇▇▇▇'▇ Investors Services, Inc.;
(b) certificates of deposit and deposits with banks and bankers
acceptances in each case with a bank rated at least A- (or the
equivalent thereof) by ▇▇▇▇▇'▇ Investors Services, Inc. or
Standard & Poor's Corporation; or
(c) commercial paper rated at least A-1 (or the equivalent thereof) by
▇▇▇▇▇'▇ Investors Services, Inc. or Standard & Poor's Corporation.
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"PERMITTED ISSUANCE" means the allotment and issue of shares in Cable &
Wireless Communications (B) Limited, the Target and/or CWC Holdings
(representing, in each case, no more than one per cent. of the issued
share capital of such companies) pursuant to either:
(a) the conversion of any of the BCM Notes or the exercise of options
under the ▇▇▇▇ Cablemedia plc Savings-Related Share Option Plan
1994, the ▇▇▇▇ Cablemedia plc No. 1 Executive Share Option Plan
1994, the NYNEX CableComms Revenue Approved Employee Share Option
Plan and/or the NYNEX CableComms Savings-Related Share Option
Plan; or
(b) the exercise of drag along rights to compulsorily acquire any such
shares pursuant to the articles of association of Cable & Wireless
Communications (B) Limited, the Target and/or CWC Holdings or the
terms attaching to the BCM Notes.
"PERMITTED LOANS AND GUARANTEES" means:
(a) trade credit or guarantees or indemnities granted in the ordinary
course of business on usual and customary terms;
(b) loans made by either any member of the UK Group or, prior to the
Pushdown Date, any member of the Target Group or the Original
Borrower to its employees either (i) in the ordinary course of its
employees' employment or (ii) to fund the exercise of share
options by its employees;
(c) loans made by one Obligor (other than the Parent) to another
Obligor;
(d) loans made by the Parent to other Obligors where, if such loans
are outstanding on or after the Pushdown Date, the indebtedness in
respect of such constitutes Assigned Debt;
(e) loans made by a member of the UK Group pursuant to either an Asset
Passthrough or a Funding Passthrough or by a member of the Target
Group or the Original Borrower pursuant to a Funding Passthrough;
(f) loans made, prior to the Pushdown Date, by a member of the UK
Group to another member of the UK Group;
(g) loans made, prior to the date falling five Business Days after the
Acquisition Date, by CWC Holdings to other members of the Target
Group to allow such to repay Existing Target Indebtedness or to
meet working capital requirements;
(h) loans made by a member of the UK Group or, prior to the Pushdown
Date, a member of the Target Group which is not an Obligor to any
other member of the UK Group or, as the case may be, member of the
Target Group or the Original Borrower;
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(i) loans made by a member of the UK Group or, prior to the Pushdown
Date, a member of the Target Group or the Original Borrower to a
member of the Group, where the proceeds of such a loan are either
directly or indirectly used to fund a Permitted Payment;
(j) credit granted by any member of the UK Group, any member of the
Target Group or the Original Borrower to a member of the Group,
where the indebtedness outstanding thereunder relates to
Intra-Group Services;
(k) loans of up to L17,100,000 by members of the Target Group to Cable
& Wireless Communications (South Hertfordshire) Limited;
(l) loans of up to an aggregate amount of L5,000,000 (or its
equivalent in dollars) made by any Obligor to ntl (B) Limited
(formerly Cable & Wireless Communications (B) plc) PROVIDED THAT
such loans are used to pay the Existing Target Indebtedness of ntl
(B) Limited;
(m) loans made to either of the Telecential Partnerships outstanding
on the Execution Date or made in accordance with Clause 19.29
(Telecential Partnerships);
(n) the Cable & Wireless Loan or other loans arising in connection
with the Transaction Agreement;
(o) loans made, credit granted and guarantees or indemnities given in
an aggregate amount not exceeding L200,000;
(p) any loan made out of Available Excess Cash Flow to a UK Group
Excluded Subsidiary; and
(q) any guarantee or indemnity given by a member of the UK Group or,
prior to the Pushdown Date, a member of the Target Group in
respect of any Permitted Indebtedness, or other obligation not
restricted by the terms of the Finance Documents, of another
member of the UK Group or, prior to the Pushdown Date, the Target
Group.
"PERMITTED OVERDRAFT BORROWINGS" means Financial Indebtedness in respect
of an Overdraft Facility if such Financial Indebtedness:
(a) has been incurred solely for short term cash management purposes
in the ordinary course of business;
(b) is fully repaid within three Business Days of it having been
incurred (from available funds other than Permitted Overdraft
Borrowings); and
(c) is not outstanding at any time between the date on which the
Pushdown Condition is satisfied and the Pushdown Date.
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"PERMITTED PAYMENT" means a Restricted Payment which is:
(a) made after 31 December 2003 and funded from Available Excess Cash
Flow;
(b) made, at any time, to fund the payment of New York Office
Expenses, the amount of such payments during each financial year
of the Parent being no greater than the amount of New York Office
Expenses so attributed for that financial year in the Business
Plan;
(c) made, at any time, to fund the cash payment obligations of any
member of the NTL Holding Group in relation to:
(i) the NTL CC Notes;
(ii) any Permitted Refinancings within either paragraph (a) or
paragraph (b) of the definition thereof;
(iii) subject to the NTL Triangle Accession having been
completed, any Permitted Refinancings with paragraph (d) of
the definition thereof; or
(iv) any bonds, notes or similar public debt instruments issued
by any member of the NTL Holding Group after the date
hereof, in either the domestic or the international capital
markets, to the extent that the net proceeds thereof have
been invested into the UK Group,
which, in either case, has fallen due or will fall due within five
Business Days;
(d) made pursuant to an Asset Passthrough and funded solely from cash
generated by entities outside of the UK Group or made available
pursuant to a Funding Passthrough and funded solely from cash
generated by entities outside of the UK Group and the Target
Group;
(e) in an amount of up to L2,000,000 made to NTL Inc. to finance
payments to be made by NTL Inc. to Cable & Wireless in relation to
certain Acquisition overhead costs;
(f) deposited in a Charged Account and:
(i) represents the proceeds from a payment of interest on
Subordinated UK Group Debt, being paid by the Parent to NTL
UK and then paid by NTL UK to NTL CC (and, if applicable,
by NTL CC to NTL Inc.) in accordance with arrangements the
Group has with the Inland Revenue; and
(ii) is reinvested in the Parent within ten Business Days of the
date of the Restricted Payment, such an investment being by
way of Subordinated Funding;
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(g) deposited in the NTL Charged Account prior to the Pushdown Date
where:
(i) such a Restricted Payment represents a dividend or other
distribution or the payment of interest on or the repayment
of the principal amount of any Subordinated Target Group
Debt or the granting of a loan by the Original Borrower to
NTL Inc.;
(ii) such a Restricted Payment is reinvested by NTL Inc. (A) in
the Original Borrower by way of Subordinated Funding, (B)
in a member of the Target Group subject to or potentially
liable to US Federal Income Taxes or whose members or
shareholders are liable or potentially liable to US Federal
Income Tax in respect of its net income or profits, by way
of Subordinated Funding or (C) pursuant to a UK Group
Funding Payment in each case made within one Business Day
of the date of the Restricted Payment; and
(iii) the aggregate amount on deposit in the NTL Charged Account
for the purpose of this paragraph (g) at any one time does
not exceed L25,000,000 (or its equivalent);
(h) made out of the proceeds of an Asset Adjustment Payment referred
to in paragraph (b) of the definition thereof received by a member
of the Target Group;
(i) made by either a member of the Target Group or the Original
Borrower, where the proceeds of such a Restricted Payment are to
be used by NTL Holdings to make a Debt Adjustment Payment to Cable
& Wireless in accordance with paragraph (b) of the definition
thereof;
(j) made in relation to Intra-Group Services; or
(k) made by a member of the Target Group to another member of the
Target Group on or before the date falling five Business Days
after the Acquisition Date or made by a member of the UK Group to
another member of the UK Group on or before the Pushdown Date,
and provided in each case that such payment shall only be permitted if
and to the extent that no Event of Default has occurred (and is
continuing) or would result from the making of such payment.
"PERMITTED REFINANCINGS" means any refinancing of:
(a) the NTL CC Notes;
(b) the Working Capital Facility, by any member of the Covenant Group;
(c) the Diamond Notes, by any member of the Covenant Group; or
(d) the Triangle Notes, by any member of the Covenant Group,
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PROVIDED THAT, in each case, the final maturity date of the indebtedness
incurred in respect of such refinancing is a date no earlier than the day
falling one year after the Final Maturity Date.
"POTENTIAL EVENT OF DEFAULT" means any event which would become (with the
passage of time, the giving of notice, the making of any determination
hereunder or any combination thereof) an Event of Default.
"PREPAYMENT ESCROW ACCOUNT" means an account, bearing interest at a
commercially reasonable rate in relation to the given circumstances, held
with the Agent (or such other financial institution reasonably acceptable
to the Agent) in the name of the Parent or, prior to the Pushdown Date,
the CWC Parent, over which the Parent or, as the case may be, the CWC
Parent has granted or will grant security in favour of the Security
Trustee and into which sums are deposited in accordance with Clause 10
(Mandatory Prepayment).
"PRINCIPAL PROPERTIES" means, in respect of the UK Group, the properties
which are specified in Schedule 15 (UK Group Principal Properties) and,
in respect of the Target Group, those of the properties selected by the
Agent in accordance with Clause 19.39 (Notification of Target Group
Assets).
"PROJECT COMPANY" means a subsidiary of the Parent or, prior to the
Pushdown Date, the CWC Parent (or a person in which a subsidiary of the
Parent, prior to the Pushdown Date, the CWC Parent has an interest),
which has a special purpose and whose creditors have no recourse to any
member of the UK Group or, any member of the Target Group in respect of
any Financial Indebtedness of that person or any of its subsidiaries
(other than recourse to any member of the UK Group or, as the case may
be, any member of the Target Group who has granted security over its
shares or other interest in such a Project Company beneficially owned by
it PROVIDED THAT such recourse is limited to the realisation of such
security).
"PUSHDOWN" means:
(a) the release by the Original Borrower of indebtedness owed to it by
CWC Holdings and the release by the Security Trustee of the
Initial Security and all guarantees and security created in its
favour by any member of the Target Group pursuant to Clause 19.17
(Post-Acquisition Date Security) in consideration for the issue by
CWC Holdings of preference shares to the Original Borrower,
subject to the security referred to in paragraph (h) below being
granted on the same day as such release;
(b) capitalisation of all intra-group indebtedness owed by CWC
Holdings;
(c) (if necessary) the issue of preference shares by CWC Holdings to
NTL Inc. in consideration for the assignment to CWC Holdings of
the benefit of indebtedness owed by members of the Target Group to
NTL Inc. and the subsequent contribution of such preference shares
to the Original Borrower in
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consideration for the issue of ordinary shares in the Original
Borrower to NTL Inc.;
(d) the novation of the obligations of the Original Borrower under
this Agreement to NTLIH as consideration for the transfer by the
Original Borrower to NTLIH of all the preference shares of CWC
Holdings issued to it pursuant to paragraph (a) above;
(e) the transfer of the ordinary shares in CWC Holdings held by NTL
Holdings to NTL Group Limited, by way of a series of equity
contributions between the members of the NTL Holding Group, the
Parent, NTLIH and NTL Group Limited;
(f) the transfer of the shares in the Original Borrower held by NTL
Inc. to NTLIH by way of a series of equity contributions between
the members of the NTL Holding Group, the Parent and NTLIH;
(g) filing a United States of America "check-the-box" election in
respect of the Original Borrower;
(h) the granting of the UK Group Security and the Target Group
Security by the relevant members of the UK Group and the Target
Group to secure NTLIH's (and any other Borrowers') obligations
hereunder;
(i) the re-registration of CWC Holdings as an unlimited liability
company; and
(j) the reduction in the share capital by CWC Holdings by way of
special resolution cancelling its preferences shares and replacing
them with debt.
"PUSHDOWN CONDITION" means the completion of all or any of the following
steps, such that the Pushdown can be effected without a breach of any
Permitted Covenant Group Indebtedness:
(a) the repayment in full of the Existing Target Indebtedness;
(b) the novation or restructuring of the Existing Target Indebtedness
on terms such that there is no surviving recourse to CWC Parent or
any of its subsidiaries;
(c) the transfer of one or more of the Excluded Target Group
Subsidiaries, so that such cease to be subsidiaries of the CWC
Parent; and
(d) the issuing of an opinion by an independent advisor of NTL CC,
confirming that the Pushdown is fair from a financial point of
view to NTL CC and the other relevant members of the Group.
"PUSHDOWN DATE" means the date upon which the Pushdown is completed.
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"QUALIFYING LENDER" means:
(a) a Bank which is (on the date a payment of interest falls due under
a Finance Document) beneficially entitled to and within the charge
to United Kingdom corporation tax in respect of that payment
PROVIDED THAT the advance in respect of which the payment is made
was made by a bank for the purposes of section 349 of ICTA at the
time the advance was made; or
(b) a Treaty Lender.
"QUARTER DATE" has the meaning given to it in Clause 18.3 (Financial
Definitions).
"QUOTATION DATE" means, in relation to any period for which an interest
rate is to be determined under the Finance Documents, the day on which
quotations would ordinarily be given by prime banks in the London
Interbank Market for deposits in the currency of the relevant sum for
delivery on the first day of that period, PROVIDED THAT, if, for any such
period, quotations would ordinarily be given on more than one date, the
Quotation Date for that period shall be the last of those dates.
"RECEIVABLES PURCHASE FACILITY" means the facility made available to
certain members of the Target Group pursuant to the receivables purchase
agreement dated 31 March 1998 between those members of the Target Group,
Cable & Wireless Communications Receivables Limited, Cable & Wireless
Communications Services Limited and Bank of America, N.A.
"REDUCTION DATE" means each of the dates specified in Clause 8.2
(Reduction).
"REDUCTION INSTALMENT" means each instalment for reduction of the Total
Commitments referred to in Clause 8.2 (Reduction).
"REFERENCE BANKS" means:
(a) whilst the financial institutions named in Schedule 1 (The Banks)
are the only Banks hereunder, the principal London offices of The
Chase Manhattan Bank; and
(b) at any other time, the principal London offices of The Chase
Manhattan Bank, and the principal London offices of two other
Banks agreed between the Agent and the Relevant Obligor on or
before the Syndication Date,
or such other bank or banks as may from time to time be agreed between
the Relevant Obligor and the Agent acting on the instructions of an
Instructing Group.
"RELEVANT OBLIGOR" means:
(a) prior to the accession of CWC Holdings as the CWC Parent in
accordance with Clause 34.4 (Accession of CWC Parent), the
Original Borrower;
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(b) after CWC Holdings has acceded hereto as the CWC Parent in
accordance with Clause 34.4 (Accession of CWC Parent), but prior
to the Pushdown Date, the CWC Parent; and
(c) after the Pushdown Date, the Parent.
"RELEVANT PERIOD" has the meaning given to it in Clause 18.3 (Financial
Definitions).
"REPAYMENT DATE" means, in relation to any Revolving Advance, the last
day of the Term thereof.
"REPEATED REPRESENTATIONS" means each of the representations set out in
Clause 16.2 (Status and Due Authorisation), Clause 16.4 (No Immunity),
Clause 16.7 (Binding Obligations), Clause 16.9 (No Material Defaults) to
Clause 16.11 (Audited Financial Statements), Clause 16.16 (Budgets),
Clause 16.21 (Execution of this Agreement), Clause 16.25 (Intellectual
Property), Clause 16.26 (Security Interest) and Clause 16.27 (Group
Structure).
"REPORT ON TITLE" means a report on title given by counsel to an
Additional Obligor, substantially in the form set out in Schedule 16
(Form of Report on Title).
"RESERVATIONS" means:
(a) the principle that equitable remedies are remedies which may be
granted or refused at the discretion of the court, the limitation
of enforcement by laws relating to bankruptcy, insolvency,
liquidation, reorganisation, court schemes, moratoria,
administration and other laws generally affecting the rights of
creditors, the time barring of claims under any applicable law,
the possibility that an undertaking to assume liability for or to
indemnify against non-payment of any stamp duty or other tax may
be void, defences of set-off or counterclaim and similar
principles;
(b) anything analogous to any of the matters set out in paragraph (a)
above under any laws of any applicable jurisdiction;
(c) the reservations in or anything disclosed by any of the legal
opinions delivered pursuant to Clause 2.5 (Conditions Precedent)
and Schedule 3 (Conditions Precedent) or, as the case may be,
Schedule 10 (Additional Conditions Precedent); and
(d) any circumstance arising through a failure to obtain any of the
consents referred to in Clause 19.15 (Consents and Properties) on
or before the execution of the relevant Security Document.
"RESIGNATION NOTICE" means a notice substantially in the form set out in
Schedule 11 (Form of Resignation Notice).
"RESTRICTED GROUP" means each member of the Group, other than each
subsidiary of NTL Holdings who is:
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(a) a member of either the UK Group or, prior to the Pushdown Date,
the Target Group; and
(b) a Guarantor.
"RESTRICTED PAYMENT" means any payment by a member of the UK Group or,
prior to the Pushdown Date, the Original Borrower or a member of the UK
Group or the Target Group to a member of the Restricted Group by way of
dividend or other distribution or the payment of interest on or repayment
of the principal amount of any Assigned Debt or Subordinated UK Group
Debt or Subordinated Target Group Debt.
"REVOLVING ADVANCE" means an advance made or to be made by the Banks
under the Revolving Facility.
"REVOLVING FACILITY" means the L2,500,000,000 revolving loan facility
granted to the Borrowers in this Agreement.
"REVOLVING LOAN" means, at any time, the aggregate principal amount of
the outstanding Revolving Advances at such time.
"ROLLOVER ADVANCE" means a Revolving Advance which is used to refinance a
maturing Revolving Advance and which is the same amount as such maturing
Revolving Advance and is to be drawn on the day such maturing Revolving
Advance is to be repaid.
"SCHEME" means the scheme of arrangement under Section 425 in relation to
the Target, as detailed in appendix 12 of the CWC Circular (or with such
modifications, additions or conditions as may be approved or imposed by
the Court).
"SCHEME DOCUMENTS" means the CWC Circular, including the notice of the
Court Meeting and of the EGM and the resolutions of such Court Meeting
and EGM.
"SCHEME EFFECTIVE DATE" the date upon which an office copy of the order
of the Court sanctioning the Scheme and the cancellation of the Target's
shares covered by the Scheme was registered by the Registrar of
Companies, being 12 May 2000.
"SECOND CAXTON SALE" means the transfer of Caxton by CWC Holdings to C&W
(UK) Holdings in part satisfaction of the CWC Holdings Capital Reduction.
"SECTION 425" means section 425 of the Companies ▇▇▇ ▇▇▇▇.
"SECURED ANCILLARY FACILITIES" means any bank facilities made available
to members of the UK Group or, prior to the Pushdown Date, the Original
Borrower or members of the Target Group (on normal commercial terms)
pursuant to documentation in the agreed form and where the providers of
such facilities have each acceded to the Security Trust Agreement as a
Secured Ancillary Facilities Provider PROVIDED THAT the aggregate
indebtedness of all members of the UK Group and, prior to the Pushdown
Date, the Original Borrower or members of the Target Group in respect of
Secured Ancillary Facilities at no time exceeds L40,000,000 (or its
equivalent).
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"SECURED ANCILLARY FACILITIES PROVIDER" means a financial institution
which has executed a Secured Party Accession Undertaking (as defined in
the Security Trust Agreement) and delivered such to the Security Trustee,
thereby allowing it to share in the Security.
"SECURITY" means the security from time to time constituted by or
pursuant to the Security Documents and the guarantees provided hereunder.
"SECURITY DOCUMENTS" means the documents constituting the Initial
Security, the Target Group Security, the UK Group Security and the NTL CC
Security Over Cash Agreement and any other agreement or document pursuant
to which any member of the Group creates any security interest in favour
of the Finance Parties (or the Security Trustee on their behalf) for all
or any part of the obligations of the Obligors or any of them under any
of the Finance Documents.
"SECURITY TRUST AGREEMENT" means the security trust agreement entered
into or to be entered into in connection herewith between, inter alia,
the Security Trustee, the Agent and the Banks.
"SOUTH HERTS FACILITY" means the facility agreement dated 18 April 1995
between, among others, Cable & Wireless Communications (South
Hertfordshire) Limited and Bank of America, N.A.
"SOUTH HERTS REFINANCING LOAN" means a loan of up to L17,100,000 from the
Target (or other member of the Target Group) to Cable & Wireless
Communications (South Hertfordshire) Limited where:
(a) such a loan is used by Cable & Wireless Communications (South
Hertfordshire) Limited to refinance its existing outstandings
under the South Herts Facility; and
(b) Cable & Wireless Communications (South Hertfordshire) Limited
provides security in respect of its obligations under such a loan,
substantially similar to the security provided by it in respect of
the South Herts Facility.
"STANDARD SECURITIES" means the first ranking fixed security over the
Principal Properties located in Scotland given in favour of the Security
Trustee.
"STATUTORY REQUIREMENTS" means any applicable provision or requirement of
any Act of Parliament including the Telecommunications ▇▇▇ ▇▇▇▇, the
Cable and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Cable and the Broadcasting ▇▇▇
▇▇▇▇ or any instrument, rule or order made under any Act of Parliament or
any regulation or by-law of any local or other competent authority or any
statutory undertaking or statutory company which has jurisdiction in
relation to the carrying out, use, occupation, operation of the
properties or the businesses of the Original Borrower or any member of
the UK Group (or, prior to the Pushdown Date, the Target Group) carried
out thereon.
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"STERLING BONDS" means the L300,000,000 7.125 per cent. bonds due 2005
and the L200,000,000 7.375 per cent. bonds due 2017, issued by the Target
pursuant to trust deeds dated 27 February 1998 between the Target and
Royal Exchange Trust Company Limited.
"SUBORDINATED FUNDING" means:
(a) the subscription by NTL CC or any member of the NTL Holding Group,
for new equity capital of either the Parent or, prior to the
Pushdown Date, the Original Borrower or the CWC Parent;
(b) Subordinated UK Group Debt; and
(c) prior to the Pushdown Date, Subordinated Target Group Debt.
"SUBORDINATED TARGET GROUP DEBT" means any loan made by any member of the
NTL Holding Group to the Original Borrower, CWC Holdings or any other
member of the Target Group subject to or potentially liable to US Federal
Income Taxes or whose members or shareholders are liable or potentially
liable to US Federal Income tax in respect of its net income or profits,
where:
(a) such a loan has been subordinated to the Revolving Loan pursuant
to the NTL Subordination Agreement or any other Subordination
Agreement; and
(b) the relevant member of the NTL Holding Group has assigned its
rights in respect of such a loan to the Security Trustee as
security for the obligations of the Obligors under the Finance
Documents pursuant to the NTL Intra-Group Loan Assignment (in the
case of NTL Inc.) or any other Intra-Group Loan Assignment (in the
case of any other member of the NTL Holding Group).
"SUBORDINATED UK GROUP DEBT" means any loan made by NTL UK to the Parent,
where:
(a) such a loan has been subordinated to the Revolving Loan pursuant
to the NTL UK Subordination Agreement; and
(b) if such a loan is outstanding after the Pushdown Date, NTL UK has
assigned its rights in respect of such a loan to the Security
Trustee as security for the obligations of the Obligors under the
Finance Documents pursuant to the NTL UK Intra-Group Assignment.
"SUBORDINATION AGREEMENT" means each subordination agreement in the
agreed form executed or to be executed by any member of the NTL Holding
Group in favour of the Security Trustee, pursuant to which the
indebtedness identified therein owed by the Original Borrower or any
member of the Target Group to such member of the NTL Holding Group is
subordinated to the obligations of the Obligors under the Finance
Documents.
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"SUBSEQUENT PARTICIPANT" means a member state that adopts the euro as its
lawful currency after 1 January 1999.
"SYNDICATION DATE" means the earlier of (a) the day specified by the
Arrangers, after having given five Business Days' prior notice to the
Parent, as the day on which primary syndication of the Revolving Facility
is completed and (b) the day falling six months after the date hereof.
"TARGET" means Cable & Wireless Communications Limited (company number
3288998).
"TARGET GROUP" means CWC Holdings, Target and its direct and indirect
subsidiaries (other than the Target Group Excluded Subsidiaries) after
the Second Caxton Sale, such comprising the CWC ConsumerCo Business and,
for the purpose of Clause 18.1 (Target Group Financial Condition) to
Clause 18.3 (Financial Definitions) and any other provisions of this
Agreement using the definitions defined in Clause 18.3 (Financial
Definitions), the Original Borrower.
"TARGET GROUP EXCLUDED SUBSIDIARIES" means:
(a) Cable & Wireless Communications (B) Limited, until such time as
the BCM Notes are either converted or redeemed;
(b) Cable & Wireless Communications (South Hertfordshire) Limited and
its subsidiaries, until such time as Cable & Wireless
Communications (South Herefordshire) Limited becomes a
wholly-owned subsidiary of the CWC Parent;
(c) Two Way TV Limited and its subsidiaries;
(d) Fawnspring Limited;
(e) Cable & Wireless Communications Telephone Equipment Limited;
(f) any subsidiary of the CWC Parent which is a Dormant Subsidiary and
which (i) has assets with an aggregate value of L10,000 or less
and (ii) does not hold a Licence; and
(g) any subsidiary of the CWC Parent which is a Project Company,
PROVIDED THAT any of such companies shall become a member of the Target
Group and cease to be a Target Group Excluded Subsidiary if the CWC
Parent and the Agent (acting on the instructions of an Instructing Group,
acting reasonably) so agree.
"TARGET GROUP FUNDING PASSTHROUGH" means a series of transactions between
a member of the NTL Holding Group, one or more members of the Target
Group and a Funded Excluded Subsidiary, where such takes place prior to
the Pushdown Date and:
(a) in the case of funding being provided by a member of the NTL
Holding Group to the Funded Excluded Subsidiary, that funding is:
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(i) first made available by the member of the NTL Holding Group
to the CWC Parent by way of Subordinated Funding;
(ii) secondly, (if relevant) made available by one or more
transactions between members of the Target Group (other
than the CWC Parent) and finally made available by a member
of the Target Group to the Funded Excluded Subsidiary in
all such cases by way of either the subscription for new
equity capital, the advancing of loans or capital
contribution; or
(b) in the case of a payment to be made by the Funded Excluded
Subsidiary to a member of the NTL Holding Group, that payment is:
(i) first made by the Funded Excluded Subsidiary to a member of
the Target Group and thereafter between members of the
Target Group (as relevant), by way of dividend or other
distribution, loan or payment of interest on or the
repayment of the principal amount of any indebtedness owed
by such Funded Excluded Subsidiary or relevant Target Group
member; and
(ii) finally made by a member of the Target Group to the
relevant member of the NTL Holding Group by way of dividend
or other distribution, loan or the payment of interest on
or the repayment of the principal amount of any
Subordinated Target Group Debt owed to that member of the
NTL Holding Group.
"TARGET GROUP SECURITY" means the security constituted by each Debenture,
Guarantor Accession Memorandum and any other document pursuant to which a
security interest in favour of the Finance Parties is created, in each
case executed or to be executed by each member of the Target Group listed
in Schedule 13 (Members of the Target Group Granting Security).
"TELECENTIAL PARTNERSHIPS" means:
(a) Telecential Communications (Herts) Partnership, a partnership
between CableTel Limited and CableTel Investments Limited (acting
through the Telecential Communications Partnership), Maza Limited
and Herts Cable Limited; and
(b) Telecential Communications (Northants) Partnership, a partnership
between CableTel Limited and CableTel Investments Limited (acting
through the Telecential Communications Partnership), Maza Limited
and Northampton Cable Television Limited.
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"TERM" means, save as otherwise provided herein:
(a) in relation to any Revolving Advance, the period for which such
Revolving Advance is borrowed, as specified in the Notice of
Drawdown relating thereto; and
(b) in relation to any Unpaid Sum, any of those periods mentioned in
Clause 24.1 (Default Interest Periods).
"TOTAL COMMITMENTS" means, at any time, the aggregate of the Banks'
Commitments.
"TOTAL NET CASH FINANCE CHARGES" has the meaning given to it in Clause
18.3 (Financial Definitions).
"TRANSACTION AGREEMENT" means the restated agreement dated as of 26 July
1999 between ▇▇▇▇ Atlantic Corporation, Cable & Wireless, the Target and
NTL Inc. (as amended from time to time before the date of this
Agreement).
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 2 (Form of Transfer Certificate) or in such other form as
may be agreed between the Relevant Obligor and the Agent signed by a Bank
and a Transferee under which:
(a) such Bank seeks to procure the transfer to such Transferee of all
or a part of such Bank's rights, benefits and obligations under
the Finance Documents upon and subject to the terms and conditions
set out in Clause 31.3 (Assignments and Transfers by Banks); and
(b) such Transferee undertakes to perform the obligations it will
assume as a result of delivery of such certificate to the Agent as
contemplated in Clause 31.5 (Transfers by Banks).
"TRANSFER DATE" means, in relation to any Transfer Certificate, the date
for the making of the transfer as specified in such Transfer Certificate.
"TRANSFEREE" means a person to which a Bank seeks to transfer by novation
all or part of such Bank's rights, benefits and obligations under the
Finance Documents.
"TREATY LENDER" means a Bank which is (on the date a payment falls due
under a Finance Document) entitled to that payment under a double
taxation agreement in force on that date (subject to the completion of
any necessary procedural formalities) without a deduction or withholding
for or on account of tax from such a payment.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957, as
amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty (which
was signed at Maastricht on 7 February 1992 and came into force on 1
November 1993).
"TRIANGLE NOTES" means the 11.2% senior discount debentures due 15
November 2007, with a principal amount at maturity of $517,300,000,
issued by NTL Triangle LLC (formerly known as Comcast UK Cable Partners
Limited).
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"TWTV DEBT" means:
(a) a loan in a principal aggregate amount of up to L2,000,000 made
available to Two Way TV Limited by certain of its shareholders;
and
(b) a loan note in a principal amount of up to L536,000 issued to
Granada plc by Two Way TV Limited.
"UNPAID SUM" means the unpaid balance of any of the sums referred to in
Clause 24.1 (Default Interest Periods).
"UK GROUP" means:
(a) for the purpose of Clause 18.2 (UK Group Financial Condition),
Clause 18.3 (Financial Definitions) and any other provisions of
this Agreement using the definitions defined in Clause 18.3
(Financial Definitions):
(i) the Parent;
(ii) Northampton Cable Television Limited and Herts Cable
Limited;
(iii) Cable & Wireless Communications (South Hertfordshire)
Limited; (iv) each of the Parent's direct and indirect
subsidiaries from time to time, excluding the UK Group
Excluded Subsidiaries (other than Northampton Cable
Television Limited, Herts Cable Limited and Cable &
Wireless Communications (South Hertfordshire) Limited); and
(v) prior to the Pushdown Date, the Target Group (including the
Original Borrower); and
(b) for all other purposes, the Parent and each of its direct and
indirect subsidiaries from time to time other than the UK Group
Excluded Subsidiaries. For information purposes only, the members
of the UK Group on the Execution Date (as defined by this
paragraph (b)) are listed in Schedule 14 (Members of the UK
Group).
"UK GROUP EXCLUDED SUBSIDIARY" means:
(a) any subsidiary of the Parent which is a Dormant Subsidiary and
which (i) has assets (save for loans existing on the Execution
Date owed to it by other members of the UK Group) with an
aggregate value of L10,000 or less and (ii) does not hold a
Licence;
(b) X-Tant Limited (and its subsidiaries);
(c) Northampton Cable Television Limited (until such time as it
becomes a wholly owned subsidiary of the Parent);
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(d) Herts Cable Limited (until such time as it becomes a wholly owned
subsidiary of the Parent);
(e) any member of the NTL Triangle Sub-Group (until such time as the
Parent elects for the members of the NTL Triangle Sub-Group to
become members of the UK Group in accordance with Clause 34.5 (NTL
Triangle Accession);
(f) any Target Group Excluded Subsidiaries which become subsidiaries
of the Parent pursuant to the Pushdown;
(g) any subsidiary of the Parent which is a Project Company; and
(h) any company which becomes a subsidiary of the Parent after the
date hereof pursuant to an Asset Passthrough,
PROVIDED THAT any of such companies shall become a member of the UK Group
and cease to be a UK Group Excluded Subsidiary if the Parent and the
Agent (acting on the instructions of an Instructing Group, acting
reasonably) so agree.
"UK GROUP FUNDING PASSTHROUGH" means a series of transactions between NTL
UK, one or more members of the UK Group and a Funded Excluded Subsidiary
where:
(a) in the case of funding being provided by NTL UK to the Funded
Excluded Subsidiary, that funding is:
(i) first made available by NTL UK to the Parent by way of
Subordinated Funding;
(ii) secondly (if relevant) made available by the Parent to any
other members of the UK Group by way of Parent Funding; and
(iii) thirdly (if relevant) made available by one or more
transactions between members of the UK Group (other than
the Parent) and finally made available by a member of the
UK Group to the Funded Excluded Subsidiary in all such
cases by way of either the subscription for new equity
capital, the advancing of loans or capital contribution; or
(b) in the case of a payment to be made by the Funded Excluded
Subsidiary to NTL UK, that payment is:
(i) first made by the Funded Excluded Subsidiary to a member of
the UK Group, and thereafter between members of the UK
Group (as relevant), by way of dividend or other
distribution, loan or payment of interest on or the
repayment of the principal amount of any indebtedness owed
by such Funded Excluded Subsidiary or relevant UK Group;
and
(ii) finally made by a member of the UK Group to NTL UK by way
of dividend or other distribution, loan or the payment of
interest on or
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the repayment of the principal amount of any Subordinated
UK Group Debt owed to NTL UK.
"UK GROUP FUNDING PAYMENT" means an indirect payment by NTL Inc. to one
or more members of the UK Group where:
(a) such a payment is made prior to the Pushdown Date and is funded by
a dividend or other distribution or the payment of interest on or
the repayment of the principal amount of any Subordinated Target
Group Debt or the granting of a loan by the Original Borrower to
NTL Inc.;
(b) NTL Inc. invests such a payment in NTL CC, who in turn invests
such a payment in NTL UK; and
(c) NTL UK invests such a payment in the Parent as Subordinated
Funding, who in turn makes such Subordinated Funding available to
other members of the UK Group.
"UK GROUP SECURITY" means the security constituted by the NTL UK
Intra-Group Loan Assignment, the Parent Intra-Group Loan Assignment, each
Debenture and Guarantor Accession Memorandum executed or to be executed
by the Parent and sufficient members of the UK Group to ensure compliance
with Clause 19.32 (Guarantors).
"VEHICLE FINANCE LEASES" means vehicle finance leases made between PHH
Vehicle Management Services Limited and Cable & Wireless Communications
Corporation Limited.
"VIDEOTRON MORTGAGE" means the loan agreement dated 1 July 1993 between
Videotron Corporation Limited and Barclays Bank PLC.
"WORKING CAPITAL FACILITY" means a facility in the agreed form made or to
be made available to the Parent by certain financial institutions, where:
(a) the amount available to the Parent thereunder is at least
L1,300,000,000 (or its equivalent); and
(b) amounts advanced to the Parent thereunder are applied by it, by
way of Parent Funding, to members of the UK Group for application
towards their working capital purposes.
"WORKING CAPITAL FACILITY AGENT" means the person from time to time
appointed as the agent of the lenders under the Working Capital Facility.
"YANKEE BONDS" means the $750,000,000 6.375 per cent. notes due 2003, the
$650,000,000 6.625 per cent. notes due 2005, the $400,000,000 6.750 per
cent. notes due 2008 and the $700,000,000 6.75 per cent. notes due 2008,
issued by the Target pursuant to an indenture dated 6 March 1998 between
the Target and Citibank, N.A.
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1.2 INTERPRETATION
Any reference in this Agreement to:
the "AGENT", an "ARRANGER", the "SECURITY TRUSTEE" or any "BANK" shall be
construed so as to include it and any subsequent successors and permitted
transferees in accordance with their respective interests;
an "AFFILIATE" of a specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect
common control with that specified person, where:
(a) "CONTROL" (and "CONTROLLING", "CONTROLLED BY" and "UNDER COMMON CONTROL
WITH") mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a person,
whether by the ownership of shares, by agreement or otherwise; and
(b) the beneficial ownership of 10 per cent. or more of the issued share
capital of a person shall be deemed to constitute control of that person;
"AGREED FORM" in relation to any document means a form which is
initialled by each of the Agent and the Relevant Obligor for the purposes
of identification (as such form may be amended from time to time by
agreement between such parties) or a document executed on or before the
Execution Date by (among others) the Parent, the CWC Parent or the
Original Borrower and the Agent or, if not so executed or initialled, a
document in form and substance reasonably satisfactory to the Agent;
"ASSETS" includes present and future properties, revenues and rights of
every description;
a "COMPANY" includes any body corporate;
"CONTINUING", in relation to an Event of Default, shall be construed as a
reference to an Event of Default which has not been waived in writing or
remedied and, in relation to a Potential Event of Default, one which has
not been remedied within the relevant grace period or waived in
accordance with the terms hereof;
"DISPOSAL" includes any sale, lease, transfer or other disposal;
the "EQUIVALENT" on any date in one currency (the "FIRST CURRENCY") of an
amount denominated in another currency (the "SECOND CURRENCY") is a
reference to the amount of the first currency which could be purchased
with the amount of the second currency at the spot rate of exchange
quoted by the Agent at or about 11.00 a.m. on such date for the purchase
of the first currency with the second currency;
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
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"INDEBTEDNESS" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or repayment
of money, whether present or future, actual or contingent;
a "LAW" shall be construed as any law (including common or customary
law), statute, constitution, decree, judgment, treaty, regulation,
directive, bye-law, order or any other legislative measure of any
government, supranational, local government, statutory or regulatory body
or court;
a "MEMBER STATE" shall be construed as a reference to a member state of
the European Union;
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that:
(a) if any such numerically corresponding day is not a Business Day,
such period shall end on the immediately succeeding Business Day
to occur in that next succeeding calendar month or, if none, it
shall end on the immediately preceding Business Day; and
(b) if there is no numerically corresponding day in that next
succeeding calendar month, that period shall end on the last
Business Day in that next succeeding calendar month,
(and references to "MONTHS" shall be construed accordingly);
a "PERSON" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
"REPAY" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "PREPAY" (or, as the case may be, the
corresponding derivative form thereof) and vice versa;
a "SUBSIDIARY" of a company or corporation shall be construed as a
reference to:
(a) any company or corporation:
(i) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(ii) more than half the issued share capital of which is
beneficially owned, directly or indirectly, by the
first-mentioned company or corporation; or
(iii) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation
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and, for these purposes, a company or corporation shall be treated
as being controlled by another if that other company or
corporation is able to direct its affairs and/or to control the
composition of its board of directors or equivalent body; and
(b) for the purposes only of Clause 17 (Financial Information), Clause
18 (Financial Condition) and where the financial definitions
referred to in Clause 18.3 (Financial Definitions) are used in
this Agreement, any company or corporation which is a subsidiary
undertaking as defined in Section 258 of the Companies ▇▇▇ ▇▇▇▇ or
any other legal entity which is accounted for as a subsidiary of
that first mentioned company or corporation;
a "SUCCESSOR" shall be construed so as to include an assignee or
successor in title of such party and any person who under the laws of its
jurisdiction of incorporation or domicile has assumed the rights and
obligations of such party under this Agreement or to which, under such
laws, such rights and obligations have been transferred;
"TAX" shall be construed so as to include any tax, levy, impost, duty or
other charge of a similar nature (including any penalty or interest
payable in connection with any failure to pay or any delay in paying any
of the same);
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time;
a "WHOLLY-OWNED SUBSIDIARY" of a company or corporation shall be
construed as a reference to any company or corporation which has no other
members except that other company or corporation and that other company's
or corporation's wholly-owned subsidiaries or persons acting on behalf of
that other company or corporation or its wholly-owned subsidiaries; and
the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a company or
corporation shall be construed so as to include any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company or corporation is incorporated or any jurisdiction in which such
company or corporation carries on business including the seeking of
liquidation, winding-up, reorganisation, dissolution, administration,
arrangement, adjustment, protection or relief of debtors.
1.3 CURRENCY SYMBOLS
1.3.1 "L" and "STERLING" denote lawful currency of the United Kingdom
and "$" and "DOLLARS" denote lawful currency of the United States
of America.
1.3.2 "EURO" means the single currency unit of the European Union as
constituted by the Treaty on European Union as referred to in EMU
Legislation and "EURO UNIT" means the currency unit of the euro as
defined in EMU Legislation.
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1.4 AGREEMENTS AND STATUTES
Any reference in a Finance Document to:
1.4.1 this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may be,
such other agreement or document as the same may have been, or may
from time to time be, amended, varied, novated or supplemented;
and
1.4.2 a statute or treaty shall be construed as a reference to such
statute or treaty as the same may have been, or may from time to
time be, amended or, in the case of a statute, re-enacted.
1.5 HEADINGS
Clause and Schedule headings are for ease of reference only.
1.6 TIME
Any reference in this Agreement to a time of day shall, unless a contrary
indication appears, be a reference to London time.
1.7 TERMS DEFINED IN THE DEBENTURE
Unless otherwise defined in any Debenture or if the context otherwise
requires, a term defined in this Agreement or in any other Finance
Document has the same meaning in such Debenture or any notice given under
or in connection with such Debenture, as if all references in the defined
terms to the Agreement or other Finance Document were a reference to such
Debenture or such notice.
1.8 CONSTRUCTION
Clauses 1.2 (Interpretation) to 1.6 (Time) of this Agreement will apply
as if incorporated in each Debenture or in any notice given under or in
connection with such Debenture, as if all references in such Clauses to
the Agreement were a reference to such Debenture or such notice.
1.9 APPLICATION OF PROVISIONS IN AGREEMENT
Clauses 23 (Costs and Expenses), 25.2 (Currency Indemnity), 36 (Remedies
and Waivers, Partial Invalidity), 37 (Notices) and 41 (Jurisdiction) of
this Agreement are deemed to form part of the Debenture as if expressly
incorporated into it and as if all references in such Clauses to the
Agreement were a reference to the Debenture.
1.10 THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement.
2. THE REVOLVING FACILITY
2.1 GRANT OF THE REVOLVING FACILITY
The ▇▇▇▇▇ ▇▇▇▇▇ to the Borrowers, upon the terms and subject to the
conditions hereof, a sterling revolving loan facility in an aggregate
amount of L2,500,000,000, as the same may be reduced in accordance with
the terms hereof PROVIDED THAT no Borrower organised under the laws of
any state of the United States of America may borrow
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under this facility unless NTL Holdings gives its prior written consent
to such borrowing.
2.2 PURPOSE PRIOR TO PUSHDOWN
The Revolving Facility is intended, prior to the Pushdown Date:
2.2.1 to refinance Existing Target Indebtedness (other than the BCM
Notes and the High Yield Bonds referred to in paragraph (a) of the
definition thereof);
2.2.2 to finance the Cable & Wireless Loan and the South Herts
Refinancing Loan;
2.2.3 to finance, or refinance, acquisitions permitted by paragraph (g)
of the definition of Permitted Acquisitions;
2.2.4 to finance a Permitted Payment to be made in accordance with
paragraph (g) of the definition thereof;
2.2.5 to finance Asset Adjustment Payments; and
2.2.6 to finance the working capital requirements of the UK Group or the
Target Group,
PROVIDED THAT the amount of the Revolving Facility available for the
purposes specified in sub-clauses 2.2.2 to 2.2.6 shall be limited to the
Available Working Capital Amount.
2.3 PURPOSE AFTER PUSHDOWN
The Revolving Facility is intended, on and after the Pushdown Date:
2.3.1 to finance the working capital requirements of the UK Group;
2.3.2 to finance, or refinance, Permitted Acquisitions (other than the
Acquisition); and
2.3.3 to finance Asset Adjustment Payments.
2.4 APPLICATION
Each Borrower shall apply all amounts raised by it hereunder in or
towards satisfaction of, prior to the Pushdown, the purposes specified in
Clause 2.2 (Purpose prior to Pushdown) and, on and after the Pushdown,
the purposes specified in Clause 2.3 (Purpose after Pushdown) and none of
the Finance Parties shall be obliged to concern themselves with such
application.
2.5 INITIAL CONDITIONS PRECEDENT
Save as the Banks may otherwise agree, none of the Banks shall have any
obligation to make the Revolving Loan Available unless the Agent has
confirmed to the Original Borrower and the Banks that it has received all
of the documents and other evidence listed in Part A (Initial Conditions
Precedent) of Schedule 3 (Conditions Precedent) and that each is, in form
and substance, satisfactory to the Agent. The Agent shall notify the
Original Borrower and the Banks promptly upon being so satisfied.
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2.6 BANKS' OBLIGATIONS SEVERAL
The obligations of each Bank are several and the failure by a Bank to
perform its obligations hereunder shall not affect the obligations of an
Obligor towards any other party hereto nor shall any other party be
liable for the failure by such Bank to perform its obligations hereunder.
2.7 BANKS' RIGHTS SEVERAL
The rights of each Bank are several and any debt arising hereunder at any
time from an Obligor to any of the other parties hereto shall be a
separate and independent debt. Each such party shall be entitled to
protect and enforce its individual rights arising out of this Agreement
independently of any other party (so that it shall not be necessary for
any party hereto to be joined as an additional party in any proceedings
for this purpose).
3. UTILISATION OF THE REVOLVING FACILITY
3.1 DRAWDOWN CONDITIONS FOR REVOLVING ADVANCES
A Revolving Advance will be made by the Banks to a Borrower if:
3.1.1 during the Notice Period, the Agent has received a completed
Notice of Drawdown from such Borrower;
3.1.2 the proposed date for the making of such Revolving Advance is a
Business Day falling one month or more before the Final Maturity
Date;
3.1.3 the proposed amount of such Revolving Advance is (a) if less than
the Available Facility an amount or integral multiple of
L50,000,000 (or such lesser amount as the Original Borrower and
the Agent may agree in respect of a Revolving Advance to be
utilised to refinance Existing Target Indebtedness) or (b) equal
to the amount of the Available Facility;
3.1.4 in respect of any Revolving Advance which:
(a) is requested prior to the Pushdown Date; and
(b) is to be used to finance any of the purposes set out in
sub-clauses 2.2.2 to 2.2.6 of Clause 2.2 (Purpose prior to
Pushdown),
the amount of such a Revolving Advance is equal to or less than
the Available Working Capital Amount;
3.1.5 there would not, immediately after the making of such a Revolving
Advance, be more than ten Revolving Advances outstanding;
3.1.6 save for Revolving Advances requested to be made during the
Certain Funds Period and Rollover Advances, neither of the events
mentioned in sub-clauses 6.1.1 and 6.1.2 of Clause 6.1 (Market
Disruption) shall have occurred;
3.1.7 in respect of any Revolving Advance requested by a Borrower prior
to the Pushdown Date, the proposed Term of the Revolving Advance
requested is a
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period of one, two, three or six months or such other period as
the Agent (acting on the instructions of all of the Banks) may
agree in each case ending on or before the estimated Pushdown Date
(as from time to time agreed between the Agent and the Relevant
Obligor) PROVIDED THAT prior to the Syndication Date, only periods
of one month (or, if less, such duration necessary to ensure that
such Term shall end on the Syndication Date) or such other period
as the Original Borrower and the Agent may agree may be requested;
3.1.8 in respect of any Revolving Advance requested by an Additional
Borrower following the Pushdown Date, the proposed Term of the
Revolving Advance is a period of one, two, three or six months or
such other period as the Agent (acting on the instructions of all
of the Banks) may agree, in each case ending on or before the
Final Maturity Date; and
3.1.9 on and as of the proposed date for the making of such Revolving
Advance:
(a) in the case of any Revolving Advance requested to be made
during the Certain Funds Period, no Certain Funds Event of
Default is continuing;
(b) in the case of Revolving Advances not within paragraph (a)
above (other than Rollover Advances), (i) no Event of
Default or Potential Event of Default is continuing and
(ii) the Repeated Representations are true in all material
respects; or
(c) in the case of Rollover Advances not within paragraph (a)
above, (i) no Event of Default is continuing and (ii) those
of the Repeated Representations which are not capable of
remedy or change if incorrect or misleading in any material
respect, are true in all material respects.
3.2 TERMS ENDING ON REDUCTION DATES
The Borrowers shall ensure that there are sufficient Revolving Advances
with Terms ending on or before the next succeeding Reduction Date to
allow the reduction in the Total Commitments scheduled to take place on
that Reduction Date to occur. If the Borrowers have not so ensured the
Agent may, subject to Clause 24.4 (Break Costs), shorten the Terms of one
or more Revolving Advances agreed with the Relevant Obligor to so ensure.
3.3 EACH BANK'S PARTICIPATION IN REVOLVING ADVANCES
Each Bank will participate through its Facility Office in each Revolving
Advance made pursuant to this Clause 3 in the proportion borne by its
Available Commitment to the Available Facility immediately prior to the
making of that Revolving Advance.
3.4 REDUCTION OF AVAILABLE COMMITMENT
If a Bank's Commitment is reduced in accordance with the terms hereof
after the Agent has received the Notice of Drawdown for a Revolving
Advance and such reduction was not taken into account in the Available
Facility, then the amount of that Revolving Advance shall be reduced
accordingly.
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4. PAYMENT AND CALCULATION OF INTEREST ON REVOLVING ADVANCES
4.1 PAYMENT OF INTEREST
On the Repayment Date relating to each Revolving Advance (and, if the
Term of such Revolving Advance exceeds six months, on the expiry of each
period of six months during such Term) the Borrower to which such
Revolving Advance has been made shall pay accrued interest on that
Revolving Advance.
4.2 CALCULATION OF INTEREST
The rate of interest applicable to a Revolving Advance from time to time
during its Term shall be the rate per annum which is the sum of:
4.2.1 the Margin at such time;
4.2.2 the Mandatory Cost Rate; and
4.2.3 LIBOR.
4.3 MARGIN RATCHET
The Margin shall:
4.3.1 from the date hereof until the Pushdown Date, be 2.25 per cent.
per annum;
4.3.2 (if relevant) on and after the Pushdown Date and until the date
falling 12 months after the date hereof, be 2.00 per cent. per
annum; and
4.3.3 at any other time, subject to clause 4.5 (Default Margin) and in
accordance with the provisions of Clause 4.4 (Margin Changes), be
the percentage rate per annum determined by the ratio of EBITDA of
the UK Group in respect of the Relevant Period ended on the most
recent Quarter Date to the Total Net Cash Finance Charges for that
Relevant Period in accordance with the table set out below.
RATIO OF EBITDA TO TOTAL NET CASH FINANCE CHARGES MARGIN (PER CENT. PER ANNUM)
Less than 1.25:1 2.00
Equal to or greater than 1.25:1 but less than 1.50:1 1.75
Equal to or greater than 1.50:1 but less than 1.75:1 1.50
Equal to or greater than 1.75:1 but less than 2.00:1 1.25
Equal to or greater than 2.00:1 but less than 2.25:1 1.00
Equal to or greater than 2.25:1 0.75
4.4 MARGIN CHANGES
Any reduction or increase to the Margin provided for by Clause 4.3
(Margin Ratchet) shall take effect in relation to all existing Revolving
Advances and future Revolving Advances, in each case with effect from the
date the Agent receives the Parent's Compliance Certificate in accordance
with Clause 17.4 (Compliance Certificates) for
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its most recent Financial Quarter. Any change in the Margin applicable to
an existing Revolving Advance shall only relate to the remainder of the
current Term of such a Revolving Advance.
4.5 DEFAULT MARGIN
The Margin shall be 2.25 per cent. per annum from the date determined by
the Agent (acting reasonably) (in writing) as being the date on which an
Event of Default or Potential Event of Default has occurred or come into
existence until the date specified by the Agent (in writing) as being the
date on which it has been demonstrated to its satisfaction (acting
reasonably) that such Event of Default or Potential Event of Default is
no longer continuing. The Agent shall promptly notify the other parties
hereto of any determination that an Event of Default or Potential Event
of Default has occurred or exists or, as the case may be, that it has
been demonstrated to its reasonable satisfaction that such is no longer
continuing.
5. INCREMENTAL FACILITY
5.1 REQUEST FOR INCREMENTAL FACILITY
If no Event of Default or Potential Event of Default has occurred and is
continuing, the Parent may, at any time after the date falling 12 months
after the Acquisition Date, deliver to the Agent and the Arrangers a
request (the "INCREMENTAL FACILITY REQUEST") requesting that the
Arrangers arrange the Incremental Facility.
5.2 REQUIREMENTS OF INCREMENTAL FACILITY REQUEST
The Incremental Facility Request shall be in writing and shall specify:
5.2.1 the proposed amount of the Incremental Facility, which shall not
exceed L500,000,000;
5.2.2 the proposed final maturity date of the Incremental Facility,
which shall be no earlier than 31 March 2006;
5.2.3 the proposed margin payable on amounts drawn under the Incremental
Facility; and
5.2.4 the other proposed key terms and conditions of the Incremental
Facility, which shall be no more onerous than the terms of this
Agreement.
5.3 ACKNOWLEDGEMENT BY BANKS
The Banks consent to the incurrence by the Borrowers of the additional
indebtedness under the Incremental Facility, which shall rank pari passu
with indebtedness under the Revolving Facility. Subject to an
intercreditor agreement acceptable to all of the Banks being entered into
between the Banks and the lenders under the Incremental Facility, the
indebtedness under the Incremental Facility may be secured on assets
subject to the Security. The Banks (and/or their designated
representatives) shall negotiate in good faith with the proposed lenders
under the Incremental Facility, with a view to such an intercreditor
agreement being agreed and executed as soon as reasonably practicable.
The Banks shall have the opportunity, but shall not be obliged, to
participate in the
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Incremental Facility and hereby consent to the Incremental Facility being
offered to persons who are not Banks at the time the Incremental Facility
Request is delivered by the Parent. The Incremental Facility shall be
priced by reference to market conditions on and around the date of
delivery of the Incremental Facility Request, but shall otherwise contain
terms no more onerous than the terms hereof, as the same shall be agreed
between the parties hereto and any additional persons who agree to
participate in the Incremental Facility.
6. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
6.1 MARKET DISRUPTION
If, in relation to any Revolving Advance:
6.1.1 LIBOR is to be determined by reference to Reference Banks and at
or about 11.00 a.m. on the Quotation Date for the relevant Term
none or only one of the Reference Banks supplies a rate for the
purpose of determining LIBOR for the relevant Term; or
6.1.2 before the close of business in London on the Quotation Date for
such Revolving Advance the Agent has been notified by a Bank or
each of a group of Banks, to whom in aggregate fifty per cent. or
more of such Revolving Advance would be owed if made that the
LIBOR rate does not accurately reflect the cost of funding its
participation in such Revolving Advance,
then the Agent shall notify the Relevant Obligor, the relevant Borrower
and the Banks of such event and, notwithstanding anything to the contrary
in this Agreement, Clause 6.2 (Substitute Term and Interest Rate) shall
apply to such Revolving Advance (if it is a Rollover Advance). If
sub-clause 6.1.1 or 6.1.2 applies to a proposed Revolving Advance (other
than a Rollover Advance), such a Revolving Advance shall not be made.
6.2 SUBSTITUTE TERM AND INTEREST RATE
If sub-clause 6.1.1 of Clause 6.1 (Market Disruption) applies to a
Revolving Advance, the duration of the relevant Term shall be one month
or, if less, such that it shall end on the next succeeding Reduction Date
or, as the case may be, the Final Maturity Date. If either sub-clause
6.1.1 or 6.1.2 of Clause 6.1 (Market Disruption) applies to a Revolving
Advance, the rate of interest applicable to each Bank's portion of such
Revolving Advance during the relevant Term shall (subject to any
agreement reached pursuant to Clause 6.3 (Alternative Rate)) be the rate
per annum which is the sum of:
6.2.1 the Margin at such time;
6.2.2 the Mandatory Cost Rate; and
6.2.3 the rate per annum notified to the Agent by such Bank before the
last day of such Term to be that which expresses as a percentage
rate per annum the cost to such Bank of funding from whatever
sources it may reasonably select its portion of such Revolving
Advance during such Term.
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6.3 ALTERNATIVE RATE
If either of those events mentioned in sub-clauses 6.1.1 and 6.1.2 of
Clause 6.1 (Market Disruption) occurs in relation to a Revolving Advance,
then if the Agent or the Relevant Obligor so requires, the Agent and the
Relevant Obligor shall enter into negotiations with a view to agreeing a
substitute basis (i) for determining the rates of interest from time to
time applicable to the Revolving Advances and/or (ii) upon which the
Revolving Advances may be maintained (whether in sterling or some other
currency) thereafter and any such substitute basis that is agreed shall
take effect in accordance with its terms and be binding on each party
hereto, PROVIDED THAT the Agent may not agree any such substitute basis
without the prior consent of each Bank (which is not to be unreasonably
withheld).
7. NOTIFICATION
7.1 REVOLVING ADVANCES
The Agent shall, promptly upon its receipt of a Notice of Drawdown,
notify each Bank of:
7.1.1 if applicable, the name of the Borrower;
7.1.2 the proposed amount of the relevant Revolving Advance;
7.1.3 the proposed length of the relevant Term; and
7.1.4 the aggregate principal amount of the relevant Revolving Advance
allocated to such Bank pursuant to Clause 3.3 (Each Bank's
Participation in Revolving Advances).
7.2 INTEREST RATE DETERMINATION
The Agent shall promptly notify the relevant Borrower and the Banks of
each determination of LIBOR, the Mandatory Cost Rate and the Margin.
7.3 CHANGES TO REVOLVING ADVANCES OR INTEREST RATES
The Agent shall promptly notify the relevant Borrower and the Banks of
any change to (a) the proposed length of a Term or (b) any interest rate
occasioned by the operation of Clause 6 (Market Disruption and
Alternative Interest Rates).
8. REPAYMENT AND REDUCTION OF THE REVOLVING FACILITY
8.1 REPAYMENT
Each Borrower to which a Revolving Advance has been made shall repay the
Revolving Advance made to it in full on the Repayment Date relating
thereto.
8.2 REDUCTION
8.2.1 The Total Commitments shall be reduced in instalments on each
Reduction Date by an amount equal to the amount (the "REDUCTION
INSTALMENT"), as set out in the table below:
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REDUCTION DATE REDUCTION INSTALMENT
(L)
30 June 2004 30,000,000
30 September 2004 30,000,000
31 December 2004 30,000,000
31 March 2005 100,000,000
30 June 2005 100,000,000
8.2.2 The Parent shall, to the extent necessary, procure that sufficient
Revolving Advances are repaid on a Reduction Date to ensure that
the aggregate of the outstanding Revolving Advances (after such
repayment) is equal to or less than the reduced amount of the
Total Commitments.
8.2.3 Any reduction of the Total Commitments shall reduce
proportionately the Commitment of each Bank.
8.2.4 If any Borrower cancels the whole or any part of the Commitments
in accordance with Clause 9.1 (Cancellation of the Revolving
Facility) or if the Available Commitment of any Bank is reduced
under Clause 9.5 (No Further Revolving Advances), Clause 10.7
(Application of Proceeds) or Clause 14 (Illegality) then the
amount of the Reduction Instalment for each Reduction Date falling
after that cancellation will reduce pro rata by the amount
cancelled.
9. CANCELLATION AND PREPAYMENT
9.1 CANCELLATION OF THE REVOLVING FACILITY
The Relevant Obligor may, by giving to the Agent not less than five
Business Days' prior written notice to that effect, cancel the whole or
any part (being a minimum amount of L50,000,000 and an integral multiple
of L10,000,000) of the Available Facility. Any such cancellation shall
reduce the Available Commitment and Commitment of each Bank rateably. Any
amount so cancelled under this Clause 9.1 may not be reborrowed.
9.2 PREPAYMENT OF THE REVOLVING FACILITY
Subject to the provisions of Clause 24.4 (Break Costs), a Borrower to
which a Revolving Advance has been made may, by giving to the Agent not
less than five Business Days' prior written notice to that effect, prepay
the whole or any part of a Revolving Advance (being a minimum amount of
L50,000,000 and an integral multiple of L10,000,000).
9.3 NOTICE OF CANCELLATION OR PREPAYMENT
Any notice of cancellation or prepayment given by the Relevant Obligor or
a Borrower pursuant to this Clause 9 shall be irrevocable, shall specify
the date upon which such cancellation or prepayment is to be made and the
amount of such cancellation or prepayment and, in the case of a notice of
prepayment, shall oblige the relevant Borrower to make such prepayment on
such date.
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9.4 REPAYMENT OF A BANK'S SHARE OF THE REVOLVING LOAN
If:
9.4.1 any sum payable to any Bank by an Obligor is required to be
increased pursuant to Clause 11.1 (Tax Gross-up); or
9.4.2 any Bank claims indemnification from an Obligor under Clause 11.2
(Tax Indemnity), the Agent claims indemnification from an Obligor
under Clause 11.2 (Tax Indemnity) in respect of a payment received
by it and paid by it to a Bank under the Finance Documents or any
Bank claims indemnification from a Borrower under Clause 13.1
(Increased Costs),
the Relevant Obligor may, whilst such circumstance continues, give the
Agent at least five Business Days' prior written notice (which notice
shall be irrevocable) of its intention to procure the repayment of such
Bank's share of the Revolving Loan. On the last day of each then current
Term, or at any other time subject to the provisions of Clause 24.4
(Break Costs), each Borrower to which a Revolving Advance has been made
shall repay such Bank's portion of the Revolving Advance to which such
Term relates.
9.5 NO FURTHER REVOLVING ADVANCES
A Bank for whose account a repayment is to be made under Clause 9.4
(Repayment of a Bank's Share of the Revolving Loan) shall not be obliged
to participate in the making of Revolving Advances on or after the date
upon which the Agent receives the Relevant Obligor's notice of its
intention to procure the repayment of such Bank's share of the Revolving
Loan, and such Bank's Available Commitment shall be reduced to zero.
9.6 NO OTHER REPAYMENTS
The Borrowers shall not repay all or any part of the Revolving Loan
except at the times and in the manner expressly provided for in this
Agreement.
10. MANDATORY PREPAYMENT
10.1 MANDATORY PREPAYMENT FROM EXCESS CASH FLOW
The Parent shall ensure that within ten Business Days of delivery of the
most recent financial statements of the UK Group pursuant to Clause 17.1
(Annual Statements), commencing with the financial statements delivered
in respect of the financial year ending 31 December 2003, 50 per cent. of
Excess Cash Flow for the financial year to which such financial
statements relate is applied in cancellation and repayment of the
Revolving Loan in accordance with Clause 10.7 (Application of Proceeds).
10.2 MANDATORY PREPAYMENT FROM ASSET DISPOSALS
Prior to the Pushdown Date, the CWC Parent and the Original Borrower and,
after the Pushdown Date, the Parent shall ensure that the net proceeds of
any disposal falling within paragraph (g)(A) of the definition of
Permitted Disposals of any asset by any member of the Target Group or,
after the Pushdown Date, any member of the UK Group, are applied in
cancellation and repayment of the Revolving Loan in accordance with
Clause 10.7 (Application of Proceeds) unless the relevant member of the
Target
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Group or, as the case may be, the UK Group can show to the satisfaction
of the Agent (acting reasonably) that:
10.2.1 such disposal was on arms' length terms and the net proceeds are
to be reinvested in similar or like assets of a comparable or
superior quality or applied towards the Target Group's or, as the
case may be (after the Pushdown Date), the UK Group's Capital
Expenditure within a period of 365 days from the date of receipt
of such proceeds by the relevant member of the Target Group or, as
the case may be, the UK Group; or
10.2.2 such disposal was on arms' length terms and in the ordinary and
usual course of business of such member of the Target Group or, as
the case may be, the UK Group; or
10.2.3 the net disposal proceeds, when aggregated with the net disposal
proceeds received by members of the Target Group and, after the
Pushdown Date, the UK Group in respect of disposals falling within
paragraph (g)(A) of the definition of Permitted Disposals made in
the immediately preceding twelve calendar month period (excluding
the proceeds from disposals falling within sub-clauses 10.2.1 or
10.2.2 above), does not exceed L10,000,000 or its equivalent.
In the case of sub-clause 10.2.1 only, the net disposal proceeds referred
to therein will be deposited in the Prepayment Escrow Account and the
relevant member of the Target Group or, as the case may be, the UK Group
shall be entitled, during the 365 day period, to withdraw (or, as the
case may be, require the Parent, the CWC Parent or the Original Borrower
to withdraw) sums from such account only to the extent that it is able
reasonably to demonstrate that such sums will be reinvested or applied in
accordance with the provisions of sub-clause 10.2.1. Any amounts not
reinvested as specified in sub-clause 10.2.1 during the 365 day period
specified therein shall thereafter be applied in repayment of the
Revolving Loan in accordance with Clause 10.7 (Application of Proceeds).
10.3 MANDATORY PREPAYMENT FROM INSURANCE PROCEEDS
Prior to the Pushdown Date, the CWC Parent and the Original Borrower and,
after the Pushdown Date, the Parent shall ensure that Insurance Proceeds
received by any member of the Target Group or, after the Pushdown Date,
any member of the UK Group, above an aggregate minimum threshold of
Insurance Proceeds of L10,000,000 (the "MINIMUM THRESHOLD"), are paid to
the Agent and applied in repayment of the Revolving Loan in accordance
with Clause 10.7 (Application of Proceeds) unless the Insurance Proceeds
received above the Minimum Threshold are:
10.3.1 promptly upon receipt, deposited in the Prepayment Escrow Account
in accordance with the provisions of Clause 10.4 (Payment of
Insurance Proceeds into Escrow Account); and
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10.3.2 applied, to the satisfaction of the Agent, towards the
replacement, reinstatement and/or repair of the assets and/or the
satisfaction of business interruption losses in respect of which
the relevant insurance claim was made (or to refinance any
expenditure incurred in the replacement, reinstatement and/or
repair of such assets and/or the satisfaction of business
interruption losses) within a period of 365 days from the date of
receipt of such Insurance Proceeds by the relevant member of the
Target Group or, as the case may be, the UK Group.
10.4 PAYMENT OF INSURANCE PROCEEDS INTO PREPAYMENT ESCROW ACCOUNT
Prior to the Pushdown Date, the CWC Parent and the Original Borrower and,
after the Pushdown Date, the Parent shall ensure that any Insurance
Proceeds to be applied in accordance with sub-clause 10.3.2 of Clause
10.3 (Mandatory Prepayment from Insurance Proceeds) are deposited in the
Prepayment Escrow Account. The relevant member of the Target Group or, as
the case may be, the UK Group that received the Insurance Proceeds shall
be entitled, during the period of 365 days from its receipt of the
Insurance Proceeds, to withdraw sums from the Prepayment Escrow Account
only to the extent that it is able to reasonably demonstrate that such
sums will be applied towards the replacement, reinstatement and/or repair
of the assets and/or the satisfaction of business interruption losses in
respect of which the relevant insurance claim was made (or to refinance
any expenditure incurred in the replacement, reinstatement and/or repair
of such assets and/or the satisfaction of business interruption losses).
Any sums not so withdrawn during such 365 day period shall thereafter be
paid to the Agent and applied in repayment of the Revolving Loan in
accordance with Clause 10.7 (Application of Proceeds).
10.5 MANDATORY PREPAYMENT FROM DEBT AND EQUITY
Sub-clause 19.22.3 of Clause 19.22 (Mandatory Contribution) obliges NTL
CC to ensure that 75 per cent. of the aggregate amount of the net cash
proceeds of any equity or Financial Indebtedness raised by any member of
the Covenant Group after 31 December 2003 (other than the proceeds of
relevant Excluded Contributions) is contributed to the members of the UK
Group (other than the Parent). NTL CC shall ensure that 50 per cent. of
the aggregate amount of the net cash proceeds of any equity or Financial
Indebtedness raised by members of the Covenant Group at any time after 31
December 2003 (other than the proceeds of relevant Excluded
Contributions), (such an amount being 662/3 per cent. of the amount
contributed to the UK Group (other than the Parent) in accordance with
sub-clause 19.22.3 of Clause 19.22 (Mandatory Contribution)) is applied
in cancellation and repayment of the Revolving Loan in accordance with
Clause 10.7 (Application of Proceeds).
10.6 MANDATORY PREPAYMENT FROM FORCED DRAW PROCEEDS
Upon its receipt of a notice from the Working Capital Facility Agent,
specifying that a Forced Draw is required to be made under the Working
Capital Facility, the Parent will promptly provide a copy of such a
notice to the Agent. If such a Forced Draw is to be made on or after the
Pushdown Date and if required by an Instructing Group:
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10.6.1 the Agent shall notify the Parent that the Banks require all (or
such lesser amount as specified by the relevant Instructing Group)
of the proceeds of that Forced Draw to be deposited in the
Prepayment Escrow Account and applied in repayment of the
Revolving Loan in accordance with Clause 10.7 (Application of
Proceeds);
10.6.2 the Parent shall, upon receipt of the proceeds of that Forced Draw
and to the extent specified in the notice received by it pursuant
to sub-clause 10.6.1 above, deposit such proceeds in the
Prepayment Escrow Account for application in repayment of the
Revolving Loan in accordance with Clause 10.7 (Application of
Proceeds); and
10.6.3 if the Agent requires it to do so, the Parent shall direct the
Working Capital Facility Agent to pay the relevant amount of the
proceeds of that Forced Draw directly to the Agent.
10.7 APPLICATION OF PROCEEDS
10.7.1 Any amounts paid to the Agent in accordance with Clause 10.1
(Mandatory Prepayment from Excess Cash Flow) to Clause 10.6
(Mandatory Prepayment from Forced Draw Proceeds) shall be:
(a) retained in the Prepayment Escrow Account pending any
withdrawal permitted by any of those Clauses; and
(b) if no such right of withdrawal is available, if it has
ceased to be available or if the Relevant Obligor so
instructs the Agent, be retained in the Prepayment Escrow
Account for application on one or more Repayment Dates
until such time as such amounts have been applied in full
in repayment of the Revolving Loan in accordance with this
Clause 10.7.
10.7.2 Any amounts paid to the Agent in accordance with Clause 10.1
(Mandatory Prepayment from Excess Cash Flow) to 10.6 (Mandatory
Prepayment from Forced Draw Proceeds) shall when required to be
applied in repayment of the Revolving Loan in accordance with this
Clause 10.7 (and then on the dates indicated in sub-clause 10.7.1
above) be applied as follows:
(a) first, in repayment of the Revolving Loan (and a
corresponding cancellation of the Available Facility); and
(b) secondly, if any excess remains thereafter, in payment of
such excess to the relevant member of the UK Group or, as
the case may be, the Target Group and in cancellation of
the remaining Available Facility by an equal amount.
Any amount of the Revolving Loan repaid in accordance with this
Clause 10.7 may not be reborrowed and any cancellation of the
Available Facility in accordance with this Clause 10.7 shall
reduce the Commitment of each Bank rateably and the amount so
cancelled may not be reborrowed.
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10.8 MANDATORY PREPAYMENT DUE TO CHANGE IN CONTROL
10.8.1 If after the date hereof:
(a) any person, or group of connected persons, (which does not
have control at the date hereof) acquires control of NTL
Holdings;
(b) the Parent ceases to be (directly or indirectly) a
wholly-owned subsidiary of NTL Holdings; or
(c) either CWC Holdings and/or the Original Borrower ceases to
be a wholly-owned subsidiary of NTL Holdings other than:
(i) pursuant to the implementation of the Pushdown; or
(ii) where NTL Holdings' ownership in CWC Holdings is
reduced by no more than 1 per cent. of CWC Holdings'
issued share capital as a result of a Permitted
Issuance,
then the Parent and, prior to the Pushdown Date, the CWC Parent
and the Original Borrower shall procure the immediate repayment of
the Revolving Loan in full (together with accrued interest thereon
and any other sums then owed by the Borrowers hereunder) and the
Available Commitment of each Bank shall immediately be cancelled
and reduced to zero.
10.8.2 For the purpose of this Clause 10.8:
"CONTROL" means:
(a) the power (whether by way of ownership of shares, proxy,
contract, agency or otherwise) to:
(i) cast, or control the casting of, more than one-half
of the maximum number of votes that might be cast at
a general meeting of NTL Holdings; or
(ii) appoint or remove all, or the majority, of the
directors or other equivalent officers of NTL
Holdings; or
(iii) give directions with respect to the operating and
financial policies of NTL Holdings which the
directors or other equivalent officers of NTL
Holdings are obliged to comply with; or
(b) the holding of more than one-half of the issued share
capital of NTL Holdings (excluding any part of that issued
share capital that carries no voting rights).
"GROUP OF CONNECTED PERSONS" means, a group of persons who,
pursuant to an agreement or understanding (whether formal or
informal), actively co-operate, through the acquisition by any of
them, either directly or indirectly, of shares in NTL Holdings or
to obtain or consolidate control of NTL Holdings.
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10.8.3 This Clause 10.8 will not apply, and the Available Commitments
will not be cancelled, and the Revolving Loan will not become due
and payable in the event that:
(a) France Telecom S.A. or any of its affiliates acquires
control of NTL Holdings; or
(b) any company acquires control of NTL Holdings as part of a
solvent reorganisation of the Group on terms approved by
the Agent (acting on the instructions of an Instructing
Group).
10.9 MANDATORY PREPAYMENT DUE TO PUSHDOWN DATE
Notwithstanding any other provision of this Agreement, if the Pushdown
Date has not occurred on or prior to 20 July 2001 the Parent shall
procure that the Revolving Loan is repaid in full (together with accrued
interest thereon and any other sums then owed by the Borrowers
hereunder), on the first Business Day after 20 July 2001, and the
Available Commitment of each Bank shall immediately be cancelled and
reduced to zero.
11. TAXES
11.1 TAX GROSS-UP
All payments to be made by an Obligor to any Finance Party under the
Finance Documents shall be made free and clear of and without deduction
for or on account of tax unless such Obligor is required by law to make
such a payment subject to the deduction or withholding of tax, in which
case the sum payable by such Obligor (in respect of which such deduction
or withholding is required to be made) shall, subject to Clause 11.5
(Excluded Claims), be increased to the extent necessary to ensure that
such Finance Party receives a sum net of any deduction or withholding
equal to the sum which it would have received had no such deduction or
withholding been made or required to be made.
11.2 TAX INDEMNITY
Without prejudice to Clause 11.1 (Tax Gross-up), if the Agent or (as a
result of the introduction of, or change in or in the interpretation,
administration or application of, any law or regulation or order or
governmental rule or double taxation agreement or any published practice
or concession of any relevant taxing authority after the date hereof) any
Bank (a) is required to make any payment of or on account of tax on or in
relation to any sum received or receivable under the Finance Documents
(including any sum deemed for purposes of tax to be received or
receivable by such Finance Party whether or not actually received or
receivable) or (b) has any liability in respect of any such payment
asserted, imposed, levied or assessed against it, the relevant Obligor
shall, within five Business Days of demand by the Agent, promptly
indemnify the Agent or Bank which suffers a loss or liability as a result
against such payment or liability, together with any interest, penalties,
costs and expenses payable or incurred in connection therewith, PROVIDED
THAT this Clause 11.2 shall not apply to:
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11.2.1 any tax imposed on and calculated by reference to the net income,
profits or gains actually received or receivable by the Agent or
such Bank (but, for the avoidance of doubt, not including any sum
deemed for purposes of tax to be received or receivable by the
Agent or such Bank but not actually receivable) by the
jurisdiction in which the Agent or such Bank is incorporated or,
if different, the jurisdiction (or jurisdictions) in which the
Agent or such Bank is treated as resident for tax purposes; or
11.2.2 any tax imposed on and calculated by reference to the net income,
profits or gains of the Facility Office of the Agent or such Bank
actually received or receivable by the Agent or such Bank (but,
for the avoidance of doubt, not including any sum deemed for
purposes of tax to be received or receivable by the Agent or such
Bank but not actually receivable) by the jurisdiction in which its
Facility Office is located; or
11.2.3 any tax imposed on the Agent, as a result of the failure by a Bank
to satisfy on the due date of a payment of interest either of the
conditions set out in sub-clauses 11.3.1 and 11.3.2 of Clause 11.3
(Banks' Tax Status Confirmation); or
11.2.4 for the avoidance of doubt, any tax imposed on a Bank which would
not have arisen but for the sub-participation of its rights and
benefits under any of the Finance Documents.
11.3 BANKS' TAX STATUS CONFIRMATION
Each Bank confirms in favour of the Agent (on the date hereof or, in the
case of a Bank which becomes a party hereto pursuant to a transfer or
assignment, on the date on which the relevant transfer or assignment
becomes effective) that either:
11.3.1 it is not resident for tax purposes in the United Kingdom and is
beneficially entitled to its share of the Revolving Loan and the
interest thereon; or
11.3.2 it is a bank as defined for the purposes of Section 349 of ICTA
and is beneficially entitled to its share of the Revolving Loan
and the interest thereon,
and each Bank shall promptly notify the Agent if there is any change in
its position from that set out above.
11.4 CLAIMS BY BANKS AND THE AGENT
A Bank intending to make a claim pursuant to Clause 11.2 (Tax Indemnity)
shall notify the Agent of the event giving rise to the claim, whereupon
the Agent shall notify the Relevant Obligor and the Borrowers thereof. If
the Agent intends to make a claim pursuant to Clause 11.2 (Tax Indemnity)
it shall notify the Relevant Obligor and the Borrowers of the event
giving rise to the claim.
11.5 EXCLUDED CLAIMS
If any Finance Party is not or ceases to be a Qualifying Lender, no
Obligor shall be liable to pay to that Finance Party under Clause 11.1
(Tax Gross-Up) any amount in
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respect of taxes levied or imposed in excess of the amount it would have
been obliged to pay if that Finance Party had been or had not ceased to
be a Qualifying Lender PROVIDED THAT this Clause 11.5 shall not apply
(and each Obligor shall be obliged to comply with its obligations under
Clause 11.1 (Tax Gross-Up)) if:
11.5.1 after the date hereof, there shall have been any introduction of,
or change in or in the interpretation, administration or
application of, any law or regulation or order or governmental
rule or double taxation agreement or any published practice or
concession of any relevant taxing authority and as a result
thereof such Finance Party ceases to be a Qualifying Lender; or
11.5.2 such Finance Party is not or ceases to be a Qualifying Lender as a
result of the actions of any Obligor.
11.6 TREATY LENDERS
A Treaty Lender and each Obligor which makes a payment to which that
Treaty Lender is entitled shall co-operate in completing any procedural
formalities necessary for that Obligor to obtain authorisation to make
that payment without a deduction or withholding for or on account of tax.
If an Obligor is able to demonstrate that a deduction or withholding for
or on account of tax is required to be made by it as a result of a Treaty
Lender's failure to so co-operate, such an Obligor shall not be liable to
pay any increased amount under Clause 11.1 (Tax Gross-Up) as a result of
such a deduction or withholding.
11.7 NOTIFICATION OF STATUS
Each Bank shall notify the Agent if it is not a Qualifying Lender at the
time it becomes a Bank hereunder and shall promptly notify the Agent if
at any time thereafter it ceases to be a Qualifying Lender. The Agent
shall promptly notify the Relevant Obligor of any notices it receives
under this Clause 11.7 and if it ceases to be a Qualifying Lender.
12. TAX RECEIPTS
12.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX
If, at any time, an Obligor is required by law to make any deduction or
withholding from any sum payable by it under the Finance Documents (or if
thereafter there is any change in the rates at which or the manner in
which such deductions or withholdings are calculated), such Obligor and
the Bank to which such sum is payable shall promptly upon becoming aware
of such a requirement notify the Agent accordingly. If the Agent receives
such a notification from a Bank it shall promptly notify the Relevant
Obligor and the Obligor who is required to make such a deduction or
withholding.
12.2 EVIDENCE OF PAYMENT OF TAX
If an Obligor makes any payment under the Finance Documents in respect of
which it is required to make any deduction or withholding, it shall pay
the full amount required to be deducted or withheld to the relevant
taxation or other authority within the time allowed for such payment
under applicable law and shall request and, within thirty days of it
receiving the same, deliver to the Agent for each Bank an original
receipt (or
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a certified copy thereof) issued by such authority evidencing the payment
to such authority of all amounts so required to be deducted or withheld
in respect of that Bank's share of such payment.
12.3 TAX CREDIT PAYMENT
If an additional payment is made under Clause 11 (Taxes) by an Obligor
for the benefit of any Finance Party and such Finance Party, in its sole
discretion, determines that it has obtained (and has derived full use and
benefit from) a credit against, a relief or remission for, or repayment
of, any tax, then, if and to the extent that such Finance Party, in its
sole opinion, determines that such credit, relief, remission or repayment
is in respect of or calculated with reference to or otherwise relates to
the additional payment made pursuant to Clause 11 (Taxes), such Finance
Party shall, to the extent that it can do so without prejudice to the
retention of the amount of such credit, relief, remission or repayment,
pay to such Obligor such amount as such Finance Party shall, in its sole
opinion, determine to be the amount which will leave such Finance Party
(after such payment) in no worse after-tax position than it would have
been in had the additional payment in question not been required to be
made by such Obligor.
12.4 TAX CREDIT CLAWBACK
If any Finance Party makes any payment to an Obligor pursuant to Clause
12.3 (Tax Credit Payment) and such Finance Party subsequently determines,
in its sole opinion, that the credit, relief, remission or repayment in
respect of which such payment was made was not available or has been
withdrawn or that it was unable to use such credit, relief, remission or
repayment in full, such Obligor shall reimburse such Finance Party such
amount as such Finance Party determines, in its sole opinion, is
necessary to place it in the same after-tax position as it would have
been in if such credit, relief, remission or repayment had been obtained
and fully used and retained by such Finance Party.
12.5 TAX AND OTHER AFFAIRS
No provision of this Agreement shall interfere with the right of any
Finance Party to arrange its tax or any other affairs in whatever manner
it thinks fit, oblige any Finance Party to claim any credit, relief,
remission or repayment in respect of any payment under Clause 11 (Taxes)
in priority to any other credit, relief, remission or repayment available
to it nor oblige any Finance Party to disclose any information relating
to its tax or other affairs or any computations in respect thereof.
13. INCREASED COSTS
13.1 INCREASED COSTS
If, by reason of the occurrence, in each case after the date hereof, of
(a) any change in law or in its interpretation or administration and/or
(b) compliance with any such new law or with any request or requirement
relating to the maintenance of capital or any other request from or
requirement of any central bank or other fiscal, monetary or other
authority (in each case, where a request or requirement that does not
have the force of law is a request or requirement with which financial
institutions subject to such request or requirement are generally
accustomed to comply):
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13.1.1 a Bank or any holding company of such Bank is unable to obtain the
rate of return on its capital which it would have been able to
obtain but for such Bank's entering into or assuming or
maintaining a commitment or performing its obligations under the
Finance Documents;
13.1.2 a Bank or any holding company of such Bank incurs a cost as a
result of such Bank's entering into or assuming or maintaining a
commitment or performing its obligations under the Finance
Documents; or
13.1.3 there is any increase in the cost to a Bank or any holding company
of such Bank of funding or maintaining such Bank's share of the
Revolving Advances or any Unpaid Sum,
then the Borrowers (acting through the Relevant Obligor) shall, within
three Business Days of a demand of the Agent, pay to the Agent for the
account of that Bank amounts sufficient to indemnify that Bank or to
enable that Bank to indemnify its holding company from and against, as
the case may be, (i) such reduction in the rate of return of capital,
(ii) such cost or (iii) such increased cost.
13.2 INCREASED COSTS CLAIMS
A Bank intending to make a claim pursuant to Clause 13.1 (Increased
Costs) shall notify the Agent of the event giving rise to such claim,
whereupon the Agent shall notify the Relevant Obligor thereof.
13.3 EXCLUSIONS
Notwithstanding the foregoing provisions of this Clause 13, no Bank shall
be entitled to make any claim under this Clause 13 in respect of any
reduction in the rate of return on capital, cost or increased cost:
13.3.1 attributable to a deduction or withholding for or on account of
tax from a payment under a Finance Document required by law to be
made by an Obligor and compensated for pursuant to the provisions
of Clause 11.1 (Tax Gross-Up) (or would have been compensated for
under Clause 11.1 (Tax Gross-Up) but was not so compensated solely
because of Clause 11.5 (Excluded Claims) or Clause 11.6 (Treaty
Lenders));
13.3.2 compensated by Clause 11.2 (Tax Indemnity) (or would have been
compensated for under Clause 11.2 (Tax Indemnity) but was not so
compensated solely because of one of the exclusions set out in
sub-clauses 11.2.1 to 11.2.4 of Clause 11.2 (Tax Indemnity));
13.3.3 compensated by the Mandatory Cost Rate; or
13.3.4 attributable to the wilful breach by the relevant Finance Party or
its affiliates of any law or regulation.
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14. ILLEGALITY
If, at any time, it is or will become unlawful for a Bank to make, fund
or allow to remain outstanding all or part of its share of the Revolving
Advances, then that Bank shall, promptly after becoming aware of the
same, deliver to the Relevant Obligor through the Agent a notice to that
effect and:
14.1.1 such Bank shall not thereafter be obliged to participate in the
making of any Revolving Advances and the amount of its Available
Commitment shall be immediately reduced to zero; and
14.1.2 if the Agent on behalf of such Bank so requires, each Borrower
which has drawn a Revolving Advance shall no later than the last
day permitted by law repay such Bank's share of any outstanding
Revolving Advances together with accrued interest thereon and all
other amounts owing to such Bank under the Finance Documents.
15. MITIGATION
If, in respect of any Bank, circumstances arise which would or would upon
the giving of notice result in:
15.1.1 an increase in any sum payable to it or for its account pursuant
to Clause 11.1 (Tax Gross-up);
15.1.2 a claim for indemnification pursuant to Clause 11.2 (Tax
Indemnity) or Clause 13.1 (Increased Costs); or
15.1.3 the reduction of its Available Commitment to zero or any repayment
to be made pursuant to Clause 14 (Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the obligations of the Obligors or the Relevant
Obligor under any of the Clauses referred to above, such Bank shall
promptly upon becoming aware of such circumstances notify the Agent
thereof and, in consultation with the Agent and the Relevant Obligor and
to the extent that it can do so lawfully, take reasonable steps
(including a change of location of its Facility Office or the transfer of
its rights, benefits and obligations under the Finance Documents to
another financial institution acceptable to the Relevant Obligor and
willing to participate in the Revolving Facility) to mitigate the effects
of such circumstances, PROVIDED THAT such Bank shall be under no
obligation to take any such action if, in the opinion of such Bank, to do
so might have any adverse effect upon its business, operations or
financial condition (other than any minor costs and expenses of an
administrative nature).
16. REPRESENTATIONS
16.1 REPRESENTING PARTIES
16.1.1 Each Obligor makes the representations and warranties set out in
Clause 16.2 (Status and Due Authorisation) to Clause 16.10 (No
Material Proceedings),
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Clause 16.13 (No Material Adverse Change), Clause 16.17
(Environmental Compliance) to Clause 16.21 (Execution of this
Agreement) and Clause 16.23 (Licences and Consents) to Clause
16.26 (Security Interest) with respect to itself.
16.1.2 Each of the Original Borrower and, on and after the date on which
it becomes a party hereto, the CWC Parent, makes the
representations and warranties set out in Clause 16.2 (Status and
Due Authorisation) to Clause 16.11 (Audited Financial Statements),
Clause 16.13 (No Material Adverse Change), Clause 16.14 (Full
Disclosure), Clause 16.17 (Environmental Compliance) to Clause
16.21 (Execution of this Agreement), Clause 16.23 (Licences and
Consents) to Clause 16.26 (Security Interest), Clause 16.28
(Scheme Information) and Clause 16.30 (Existing Target
Indebtedness) with respect to itself.
16.1.3 The Original Borrower on and after the Acquisition Date and, on
and after the date on which it becomes a party hereto, the CWC
Parent, makes the representations and warranties set out in Clause
16.8 (No Winding Up) to Clause 16.10 (No Material Proceedings),
Clause 16.17 (Environmental Compliance) to Clause 16.20 (No
Loans), Clause 16.23 (Licences and Consents) to Clause 16.26
(Security Interest) and Clause 16.28 (Scheme Information) to
Clause 16.30 (Existing Target Indebtedness) with respect to each
member of the Target Group.
In addition, the Original Borrower makes the representations and
warranties set out in Clause 16.12 (Original Financial Statements)
and Clause 16.13 (No Material Adverse Change) with respect to each
member of the Target Group and makes the representations and
warranties set out in sub-clause 16.15.3 of Clause 16.15 (Business
Plan and Information Memorandum) and Clause 16.32 (Initial
Guarantors).
16.1.4 The Parent makes the representations and warranties set out in:
(a) Clause 16.2 (Status and Due Authorisation) to Clause 16.11
(Audited Financial Statements), Clause 16.13 (No Material
Adverse Change) to Clause 16.26 (Security Interest), Clause
16.27 (Group Structure) and Clause 16.28 (Scheme
Information) in respect of itself; and
(b) Clause 16.8 (Winding Up) to Clause 16.10 (No Material
Proceedings), Clause 16.17 (Environmental Compliance) to
Clause 16.20 (No Loans) and Clause 16.23 (Licences and
Consents) to Clause 16.27 (Group Structure) with respect to
each member of the UK Group.
16.1.5 NTL CC makes the representations and warranties set out in Clause
16.2 (Status and Due Authorisation), Clause 16.5 (Validity and
Admissibility in Evidence) to Clause 16.8 (No Winding-Up) and
Clause 16.21 (Execution of this Agreement) with respect to itself.
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Each of the Parent, the CWC Parent, NTL CC and each Obligor acknowledges
that the Finance Parties have entered into the Finance Documents in
reliance on those representations and warranties.
16.2 STATUS AND DUE AUTHORISATION
It is duly organised under the laws of the jurisdiction in which it is
established or incorporated with power to enter into each of the Finance
Documents to which it is a party and to exercise its rights and perform
its obligations thereunder and all corporate and other action required to
authorise its execution of each of the Finance Documents to which it is a
party and its performance of its obligations thereunder has been duly
taken. No limit on its powers will be exceeded as a result of the
borrowings, granting of security or giving of guarantees contemplated by
the Finance Documents to which it is a party.
16.3 NO DEDUCTIONS OR WITHHOLDING
Under the laws of the jurisdiction in which it is established or
incorporated in force at the date hereof, it will not be required to make
any deduction or withholding from any payment it may make under any
Finance Document to any Bank which is a Qualifying Lender (assuming in
the case of a Treaty Lender, that it has secured a direction from the UK
Inland Revenue to pay interest gross).
16.4 NO IMMUNITY
In any proceedings taken in the jurisdiction in which it is incorporated
or established in relation to any Finance Document to which it is party,
it is not entitled to claim for itself or any of its assets immunity from
suit, execution, attachment or other legal process.
16.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All acts, conditions and things required to be done, fulfilled and
performed in order:
16.5.1 to enable it lawfully to enter into, exercise its rights under and
perform and comply with the obligations expressed to be assumed by
it in each of the Finance Documents to which it is party;
16.5.2 to ensure that the obligations expressed to be assumed by it in
each such Finance Document are legal, valid and (subject to the
Reservations) binding and enforceable; and
16.5.3 (subject to the Reservations) to make each such Finance Document
admissible in evidence in England,
have been done, fulfilled and performed (other than (a) the registration
of the Encumbrances created by the Security Documents with the Registrar
of Companies under Sections 395 and 398 of the Companies ▇▇▇ ▇▇▇▇, and in
respect of the Principal Property situated in England and Wales, under
Section 2 of the Land Charges ▇▇▇ ▇▇▇▇ and Section 26 of the Land
Registration ▇▇▇ ▇▇▇▇, in respect of the Principal Property situated in
Scotland, in the Land Register of Scotland or the General Register of
Sasines and in respect of the Principal Property situated in Northern
Ireland in the
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▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or the Registry of Deeds in Belfast or
any similar registrations required in any applicable jurisdiction, (b)
the giving of any notices in respect of any contracts being assigned
pursuant to the Security Documents and (c) the obtaining of any consents
referred to in Clause 19.15 (Consents and Properties).
16.6 NO FILING OR STAMP TAXES
Under the laws of the jurisdiction in which it is incorporated or
established in force at the date hereof, it is not necessary that any of
the Finance Documents to which it is a party be filed, recorded or
enrolled with any court or other authority in such jurisdiction or that
any stamp, registration or similar tax be paid on or in relation to any
Finance Document other than the entries in public registries referred to
in Clause 16.5 (Validity and Admissibility in Evidence) and fixed duties
on assignments by way of security.
16.7 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document to
which it is expressed to be a party are legal and valid obligations and
(subject to the Reservations) binding on it and enforceable against it in
accordance with the terms thereof.
16.8 NO WINDING-UP
No Obligor, no member of the UK Group or (as the case may be) no member
of the Target Group, has taken any corporate action nor have any other
steps been taken or legal proceedings been started and served or (to the
best of its knowledge and belief) threatened against any Obligor, any
member of the UK Group or (as the case may be) any member of the Target
Group, for its winding-up, dissolution, administration or re-organisation
or for the appointment of a receiver, administrator, administrative
receiver, trustee or similar officer of it or of any or all of its assets
or revenues (other than for the purpose of a solvent reconstruction or
amalgamation of such Obligor, such member of the UK Group or (as the case
may be) such member of the Target Group (where such would not cause any
breach of this Agreement) or for the purpose of the transfer of all or
part of the business and assets of any Obligor, any member of the UK
Group or (as the case may be) any member of the Target Group to any other
Obligor, member of the UK Group or (as the case may be) member of the
Target Group respectively (PROVIDED THAT such transfer is permitted under
the terms of this Agreement)) and (save in the case of any action, steps
or proceedings relating to the appointment of an administrator) other
than where the relevant action, steps or proceedings are frivolous or
vexatious or being contested in good faith by appropriate legal action
and such action, steps or proceedings are discontinued (in any such case)
within 30 days of commencement.
16.9 NO MATERIAL DEFAULTS
No Obligor, no member of the UK Group or (as the case may be) no member
of the Target Group, is in breach of or in default under any agreement to
which it is a party (including, without limitation, the Material
Commercial Contracts) or which is binding on it or any of its assets and
no party has terminated or is entitled to terminate (on the
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basis of any breach of or default thereunder) any such agreement, to an
extent or in a manner which could reasonably be expected to have a
Material Adverse Effect.
16.10 NO MATERIAL PROCEEDINGS
No action or administrative proceeding of or before any court, arbitrator
or agency (including, but not limited to, investigative proceedings)
which could reasonably be expected to have a Material Adverse Effect has
been started or threatened against it or any of its assets.
16.11 AUDITED FINANCIAL STATEMENTS
Its most recent consolidated audited financial statements, excluding for
the purposes of this Clause 16.11, the Original Financial Statements in
relation to the Target:
16.11.1 were prepared in accordance with accounting principles generally
accepted in its jurisdiction of incorporation and consistently
applied;
16.11.2 disclose, in the case of the audited financial statements of the
Original Borrower, all material liabilities (contingent or
otherwise) and all material unrealised or anticipated losses of
the Original Borrower and its consolidated subsidiaries, and in
all other cases, all material liabilities (contingent or
otherwise) and all material unrealised or anticipated losses of
any member of the UK Group or, as the case may be, any member of
the Target Group; and
16.11.3 save as disclosed therein, give a true and fair view of the
financial condition and operations of, as the case may be, the
Original Borrower and its consolidated subsidiaries, the UK Group
or, as the case may be, the Target Group during the relevant
financial year.
16.12 ORIGINAL FINANCIAL STATEMENTS
Save as disclosed in the Disclosure Letter, the financial statements of
the Target referred to in paragraph (c) of the definition of Original
Financial Statements, to the best of its knowledge and belief:
16.12.1 were prepared in accordance with accounting principles generally
accepted in England and Wales and consistently applied;
16.12.2 disclose all material liabilities (contingent or otherwise) and
all material unrealised or anticipated losses of the Target and
the CWC ConsumerCo Business; and
16.12.3 save as disclosed therein, give a true and fair view of the
financial condition and operations of the Target and the CWC
ConsumerCo Business during the period to which such financial
statements relate.
16.13 NO MATERIAL ADVERSE CHANGE
Since the date as at which its most recent audited financial statements
(where required by Clause 17.1 (Annual Statements), consolidated, in the
case of the Parent and the CWC Parent) were stated to be prepared, there
has been no change in its business or financial condition or, in the case
of the Parent, in the business or financial condition
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of any member of the UK Group or of the UK Group taken as a whole or, in
the case of the CWC Parent, in the business or financial condition
of any member of the Target Group or of the Target Group taken as a whole
which, in each case, could reasonably be expected to have a Material
Adverse Effect.
16.14 FULL DISCLOSURE
It is not aware of any material facts or circumstances that have not been
disclosed to the Finance Parties originally party hereto and which would,
in its reasonable opinion, if disclosed, adversely affect the decision of
a person considering whether or not to provide finance for the purposes
set out in Clauses 2.2 (Purpose prior to Pushdown) and 2.3 (Purpose after
Pushdown) on the terms of the Finance Documents.
16.15 BUSINESS PLAN AND INFORMATION MEMORANDUM
The Parent:
16.15.1 does not regard any of the forecasts or projections set out in
the Business Plan as unreasonable or, to any material extent,
unattainable;
16.15.2 considers (having made all reasonable enquiries) the assumptions
upon which the forecasts and projections contained in the
Business Plan are based to be fair and reasonable in all material
respects; and
16.15.3 confirms that the factual information contained in the
Information Memorandum and any other factual written information
supplied by any member of the UK Group or any member of the
Target Group (in the latter case, supplied after the Acquisition
Date or, if supplied before the Acquisition Date, supplied with
the Parent's knowledge) to the Agent, the Arrangers and the Banks
in connection herewith is (in the case of any such information
supplied by any member of the Target Group, to the best of its
knowledge and belief) true, complete and accurate in all material
respects.
16.16 BUDGETS
It:
16.16.1 regards (as at the date each Budget is delivered to the Agent) as
neither unreasonable, nor to any material extent unattainable,
any of the forecasts or projections set out in the latest Budget
delivered under Clause 17.5 (Budgets);
16.16.2 believes (having made all reasonable enquiries) the assumptions,
upon which the forecasts and projections in relation to the CWC
ConsumerCo Business contained in the latest Budget delivered
under Clause 17.5 (Budgets) are based, to be fair and reasonable;
and
16.16.3 has, to the best of its knowledge and belief (having made all
reasonable efforts to make due and careful enquiry), made full
disclosure of all material facts relating to the CWC ConsumerCo
Business to all the persons responsible for the preparing of the
latest Budget delivered under Clause 17.5 (Budgets).
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16.17 ENVIRONMENTAL COMPLIANCE
The Original Borrower, each member of the UK Group and (to the best of
its knowledge and belief) each member of the Target Group has complied in
all material respects with all Environmental Law and obtained and
maintained any Environmental Permits breach of which or, as the case may
be, failure to obtain or maintain which, could reasonably be expected to
have a Material Adverse Effect.
16.18 ENVIRONMENTAL CLAIMS
No Environmental Claim has been commenced or (to the best of its
knowledge and belief) is threatened against the Original Borrower, any
member of the UK Group or any member of the Target Group where such claim
would be reasonably likely, if determined against the Original Borrower
or such member of the UK Group or the Target Group, to have a Material
Adverse Effect.
16.19 NO ENCUMBRANCES
Save (in each case) for Permitted Encumbrances, no Encumbrance exists
over all or any of its present or future revenues or assets and, in the
case of the Parent, over all or any of the present or future revenues or
assets of any other member of the UK Group and, in the case of the
Original Borrower and the CWC Parent, over all or any of the present or
future revenues or assets of any other member of the Target Group.
16.20 NO LOANS
Save (in each case) for Permitted Loans and Guarantees, neither the
Original Borrower, any member of the UK Group nor (to the best of its
knowledge and belief) any member of the Target Group has made any loans
or granted any credit or other financial accommodation which is or are
outstanding.
16.21 EXECUTION OF THIS AGREEMENT
Its execution of each Finance Document to which it is a party and the
performance of its obligations thereunder do not and will not:
16.21.1 conflict with any agreement, mortgage, bond or other instrument
or treaty to which it is party or which is binding upon it or any
of its assets in a manner that could reasonably be expected to
have a Material Adverse Effect;
16.21.2 conflict with its constitutive documents and rules and
regulations; or
16.21.3 conflict with any applicable law.
16.22 OWNERSHIP OF THE PARENT
The Parent is a wholly-owned subsidiary of NTL Holdings, and no persons
or group of connected persons (as construed in accordance with Clause
10.8 (Mandatory Prepayment due to Change in Control)) has control (as
construed in accordance with Clause 10.8 (Mandatory Prepayment due to
Change in Control)) of NTL Holdings.
16.23 LICENCES AND CONSENTS
It and, in the case of the Parent, each member of the UK Group and, in
the case of the Original Borrower and the CWC Parent, each member of the
Target Group has, at all
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relevant times, obtained all material licences (including, without
limitation, the Licences), permissions, authorisations and consents (each
an "APPROVAL") required for the conduct of its business as carried on
from time to time, and all such approvals are valid and subsisting save
in any such case where failure to obtain such an approval or the
invalidity of such an approval or its failure to subsist could not
reasonably be expected to have a Material Adverse Effect and to the best
of its knowledge and belief (having made, with respect to the UK Group
only, due and careful enquiry) there has been no act or omission on the
part of it or, as the case may be, any Target Group member or any UK
Group member, which is likely to give rise to the enforcement,
revocation, material amendment, suspension, withdrawal or avoidance of
any of the approvals or any of the material terms or conditions thereof,
which enforcement, revocation, amendment, withdrawal, suspension or
avoidance could reasonably be expected to have a Material Adverse Effect.
16.24 GOVERNMENT OR REGULATORY AUTHORITY INQUIRY
Neither it nor, in the case of the Parent, any member of the UK Group
nor, in the case of the Original Borrower and the CWC Parent, any member
of the Target Group, has to the best of its knowledge and belief (having
made with respect to the UK Group only, due and careful enquiry) received
any notice or communication which has not been disclosed to the Agent on
or prior to the date hereof from, or is aware of, any inquiry,
investigation or proceeding on the part of any government, court or
regulatory agency or authority the effect of which, in any such case,
could reasonably be expected to have a Material Adverse Effect.
16.25 INTELLECTUAL PROPERTY
It is not aware of any adverse circumstance relating to the validity,
subsistence or use of any of its and, in the case of the Original
Borrower and the CWC Parent, any member of the Target Group's and, in the
case of the Parent, any member of the UK Group's Intellectual Property
which could reasonably be expected to have a Material Adverse Effect.
16.26 SECURITY INTEREST
16.26.1 Subject (in each case) to the Reservations, each Security
Document creates the security interest which that Security
Document purports to create or, if that Security Document
purports to evidence a security interest, accurately evidences a
security interest which has been validly created and each
security interest ranks in priority (save in respect of, if and
to the extent applicable, Permitted Encumbrances) as specified
in the Security Document creating or evidencing that interest.
16.26.2 Save as disclosed in the Disclosure Letter, the shares of any UK
Group or Target Group member which are subject to an Encumbrance
under the Security Documents are fully paid and not subject to
any option to purchase or similar rights and the constitutional
documents of any such UK Group or Target Group member do not and
could not restrict or inhibit (whether
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absolutely, partly, under a discretionary power or otherwise)
any transfer of such shares pursuant to enforcement of the
Security Documents.
16.27 GROUP STRUCTURE
The corporate structure of the UK Group and the NTL Holding Group set
out in the Group Structure Chart delivered pursuant to Clause 2.5
(Conditions Precedent) and the corporate structure of the UK Group, the
Target Group and the NTL Holding Group set out in any Group Structure
Chart delivered to the Agent pursuant to Clause 19.37 (Revised Group
Structure) is true, complete and accurate, in each case as at the date
of its delivery to the Agent.
16.28 SCHEME INFORMATION
The CWC Circular contains all the material terms of the Scheme and the
information contained in the CWC Circular relating to the Group (other
than the Target Group), and the Scheme and, to the best of its knowledge
and belief, the CWC ConsumerCo Business is true, complete and accurate
in all material respects on its date of despatch. An office copy of the
order of the court sanctioning the Scheme under Section 425 was filed
with the Registrar of Companies for registration pursuant to sub-section
3 of Section 425 on 12 May 2000.
16.29 THE SCHEME
In relation to the Scheme:
16.29.1 no step has been taken which has increased (or may in the future
increase) the offer price under the Scheme beyond the level
specified in the CWC Circular;
16.29.2 no modification, variation or amendment of a material nature has
been made to, and no waiver has been granted in respect of, any
of the conditions set out in Appendix 2 to the CWC Circular or
in the Transaction Agreement;
16.29.3 no press release or other publicity, the text of which has not
previously been agreed with the Agent, which makes reference to
the Revolving Facility or to some or all of the Finance Parties
has been issued or allowed to be issued; and
16.29.4 in all material respects relevant in the context of the Scheme,
it and each of its affiliates (as relevant) has complied with
the Code, the Financial Services ▇▇▇ ▇▇▇▇, the Companies ▇▇▇
▇▇▇▇ and all other applicable laws and regulations.
16.30 EXISTING TARGET INDEBTEDNESS
To the best of its knowledge and belief:
16.30.1 the Financial Indebtedness of the CWC Parent and its
subsidiaries comprises:
(a) the Financial Indebtedness set out in paragraphs (a) to
(n) of the definition of Existing Target Indebtedness;
and
(b) the Financial Indebtedness in respect of the Existing
Performance Bonds referred to in paragraphs (a) and (b)
of the definition thereof;
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16.30.2 there are no contractual provisions in any document
constituting such Existing Target Indebtedness or the Existing
Performance Bonds or in any other document to which the CWC
Parent or any of its subsidiaries are party, or which is
binding on the CWC Parent or any of its subsidiaries (or any
of their assets) which will prevent compliance with Clause
19.17 (Post-Acquisition Date Security).
16.31 EXISTING GROUP INDEBTEDNESS
16.31.1 NTL UK owes no Financial Indebtedness to any other members of
the NTL Holding Group, other than NTL CC.
16.31.2 The Parent owes no Financial Indebtedness to any members of
the NTL Holding Group, other than NTL UK.
16.32 INITIAL GUARANTORS
The aggregate EBITDA of the members of the Target Group listed in
Schedule 13 (Members of the Target Group Granting Security) for the
financial year ended 31 March 1999 equal or exceeds 90% of the
aggregate EBITDA of the CWC ConsumerCo Business for that financial
year.
16.33 REPETITION OF REPRESENTATIONS
The Repeated Representations shall (to the extent applicable) be deemed
to be repeated by the Original Borrower, the CWC Parent (on and after
the date on which it becomes a party hereto) the Parent, the Obligors
and NTL CC on each date on which a Revolving Advance is or is to be
made and on each date on which a company becomes an Additional Obligor,
and to the extent that the representations set out in sub-clause
16.15.3 of Clause 16.15 (Business Plan and Information Memorandum)
relate to the Information Memorandum, such shall be deemed to be made
on the date that the Information Memorandum is approved by each of the
Original Borrower and the Parent and (save as otherwise disclosed by
the Parent, in writing to the Agent, prior to the Syndication Date) on
the Syndication Date.
17. FINANCIAL INFORMATION
17.1 ANNUAL STATEMENTS
17.1.1 The Parent shall as soon as the same become available, but in
any event within 120 days after the end of each of its
financial years, deliver to the Agent in sufficient copies for
the Banks the consolidated financial statements of the UK
Group for such financial year, audited by an internationally
recognised firm of independent auditors licensed to practise
in England and Wales.
17.1.2 In respect of any of its financial years which end before the
Pushdown Date, the CWC Parent shall as soon as the same become
available, but in any event within 180 days after the end of
each of those financial years, deliver to the Agent in
sufficient copies for the Banks the consolidated financial
statements of the Target Group for such financial year,
audited by an internationally recognised firm of independent
auditors licensed to practise in England and Wales.
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17.2 QUARTERLY STATEMENTS
17.2.1 The Parent shall as soon as the same become available, but in
any event within 60 days after the end of each Financial
Quarter, deliver to the Agent in sufficient copies for the
Banks the unaudited consolidated financial statements of the
UK Group for such period.
17.2.2 In respect of any Financial Quarter which ends before the
Pushdown Date, the CWC Parent shall as soon as the same become
available, but in any event within 60 days after the end of
each of those Financial Quarters, deliver to the Agent in
sufficient copies for the Banks the unaudited consolidated
financial statements of the Target Group for such period.
17.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
The Parent and the CWC Parent shall ensure that each set of financial
statements delivered by it pursuant to this Clause 17 is:
17.3.1 certified by one of its Authorised Signatories as giving a
true and fair view of, in the case of the Parent, the
consolidated financial condition of the UK Group and, in the
case of the CWC Parent, the consolidated financial condition
of the Target Group as at the end of the period to which those
financial statements relate and of the results of the UK
Group's or, as the case may be, the Target Group's operations
during such period; and
17.3.2 accompanied by a comparison to the Business Plan projections
(as updated by the relevant Budget) for the financial year or,
as the case may be, Financial Quarter, to which those
financial statements relate.
17.4 COMPLIANCE CERTIFICATES
The Parent and the CWC Parent shall ensure that each set of
consolidated financial statements delivered by it pursuant to Clause
17.1 (Annual Statements) or Clause 17.2 (Quarterly Statements) is
accompanied by a Compliance Certificate signed by two of its Authorised
Signatories.
17.5 BUDGETS
The Parent shall, as soon as the same become available, and in any
event no later than 60 days after the beginning of each of its
financial years, deliver to the Agent in sufficient copies for the
Banks an annual budget (in a form agreed with the Agent and, for the
purpose of this Clause 17.5, assuming that the Pushdown has been
completed) prepared by reference to each Financial Quarter in respect
of such financial year including:
17.5.1 forecasts of projected disposals (including timing and amount
thereof) on a consolidated basis of the UK Group (including,
prior to the Pushdown Date, the Target Group) for such
financial year;
17.5.2 projected annual profit and loss accounts (including projected
turnover and operating costs) and projected balance sheets and
cash flow statements, together with the main operating
assumptions relating thereto, on a quarterly
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basis, for such financial year on a consolidated basis for the
UK Group (including, prior to the Pushdown Date, the Target
Group);
17.5.3 revisions to the projections set out in the Business Plan,
together with the main operating assumptions relating thereto,
for such financial year until the Final Maturity Date, based
on the financial condition and performance and prospects of
the UK Group (including, prior to the Pushdown Date, the
Target Group) at such time;
17.5.4 projected Permitted Payments to be made during such financial
year and the (in respect of paragraph (c) of the definition of
Permitted Payments) related Financial Indebtedness of the
relevant members of the NTL Holding Group to which those
Permitted Payments will relate;
17.5.5 projected Capital Expenditure to be incurred on a quarterly
basis for such financial year on a consolidated basis for the
UK Group (including, prior to the Pushdown Date, the Target
Group);
17.5.6 projected EBIT and EBITDA as at the end of each Financial
Quarter in such financial year, for the UK Group and (prior to
the Pushdown Date) the Target Group; and
17.5.7 a qualitative analysis and commentary from the management on
its proposed activities for such financial year.
The Parent shall provide the Agent with details of any material changes
in the projections delivered under this Clause 17.5 as soon as
reasonably practicable after it becomes aware of any such change.
17.6 HEDGING
The Parent will promptly notify the Agent upon either it or any member
of the UK Group and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, promptly
notify the Agent upon either it or any member of the Target Group
entering into any Hedging Agreement.
17.7 ASSET PASSTHROUGHS AND FUNDING PASSTHROUGHS
The Parent (in the case of an Asset Passthrough or a UK Group Funding
Passthrough) or the CWC Parent (in the case of a Target Group Funding
Passthrough) shall, at least five Business Days prior to effecting
either an Asset Passthrough or a Funding Passthrough provide the Agent
with:
17.7.1 written notice of the proposed Asset Passthrough or Funding
Passthrough;
17.7.2 a summary of the steps to be implemented in connection with
the proposed Asset Passthrough or Funding Passthrough;
17.7.3 a certificate from an Authorised Signatory of the Parent or,
as the case may be, the CWC Parent, confirming that the
proposed Asset Passthrough or
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Funding Passthrough will satisfy all of the requirements of
the definition thereof; and
17.7.4 such other information in relation to the proposed Asset
Passthrough or Funding Passthrough as the Agent may reasonably
request.
17.8 UK GROUP FUNDING PAYMENT
The Original Borrower shall, at least five Business Days prior to it
making a payment to NTL Inc. to allow a UK Group Funding Payment to be
made, provide the Agent with a certificate signed by one of its
Authorised Signatories:
17.8.1 specifying the amount of the proposed payment; and
17.8.2 demonstrating that the Original Borrower and the members of
the Target Group will, after that payment has been made, have
sufficient working capital (in the form of either cash or the
ability to utilise the Available Working Capital Amount under
the Revolving Facility) to meet their working capital
requirements in accordance with the Business Plan.
17.9 OTHER FINANCIAL INFORMATION
Each Obligor shall, the Parent shall procure that each member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall procure that each member of the Target
Group shall from time to time on the request of the Agent, furnish the
Agent with such information about the business, condition (financial or
otherwise), operations, performance, properties or prospects of,
respectively, such Obligor, the UK Group and the Target Group as the
Agent or any Bank (through the Agent) may reasonably require PROVIDED
THAT neither the Parent, the CWC Parent nor any Obligor shall be under
any obligation to supply any information the supply of which would be
contrary to any confidentiality obligation binding on it.
17.10 ACCOUNTING POLICIES
The Parent and the CWC Parent shall ensure that each set of financial
statements delivered pursuant to this Clause 17 is prepared using
accounting policies, practices, procedures and reference period
consistent with those applied in the preparation of the Original
Financial Statements unless, in relation to any such set of financial
statements, the Parent or the CWC Parent notifies the Agent that there
have been one or more changes in any such accounting policies,
practices, procedures or reference period and:
17.10.1 the auditors of the Parent or the CWC Parent provide:
(a) a description of the changes and the adjustments
which would be required to be made to those financial
statements in order to cause them to use the
accounting policies, practices, procedures and
reference period upon which the relevant Original
Financial Statements were prepared; and
(b) sufficient information, in such detail and format as
may be reasonably required by the Agent, to enable
the Banks to make an accurate
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comparison between the financial position indicated
by those financial statements and the relevant
Original Financial Statements,
in which case any reference in this Agreement to those
financial statements shall be construed as a reference to
those financial statements as adjusted to reflect the basis
upon which the relevant Original Financial Statements were
prepared; or
17.10.2 the CWC Parent or, as the case may be, the Parent also
notifies the Agent that it is no longer practicable to test
compliance with the financial condition set out in either
Clause 18.1 (Target Group Financial Condition) or Clause 18.2
(UK Group Financial Condition) against the financial
statements received in which case:
(a) the Agent and the CWC Parent or, as the case may be,
the Parent shall enter into negotiations with a view
to agreeing alternative financial conditions to
replace those contained in either Clause 18.1 (Target
Group Financial Condition) or Clause 18.2 (UK Group
Financial Condition) in order to maintain a
consistent basis for such financial covenants; and
(b) if, after three months commencing on the date of the
notice given to the Agent pursuant to this sub-clause
17.10.2, the Agent and the CWC Parent or, as the case
may be, the Parent cannot agree alternative financial
conditions which are acceptable to an Instructing
Group, the Agent shall refer the matter to such
internationally recognised accounting firm as may be
agreed between either the CWC Parent or the Parent
and an Instructing Group for determination of the
adjustments required to be made to such financial
statements or the calculation of such ratios to take
account of such change, such determination to be
binding on the parties hereto, provided that pending
such determination the CWC Parent and the Parent
shall continue to prepare financial statements and
calculate such ratios in accordance with sub-clause
17.10.1 above.
17.11 GENERAL INFORMATION
17.11.1 The Parent shall, as soon as reasonably practicable, furnish
the Agent with such general information as it or any member of
the UK Group is required by law to supply or make available to
its (or such member of the UK Group's) (a) shareholders (in
their capacity as such) or (b) creditors generally or any
class thereof.
17.11.2 Prior to the Pushdown Date, the CWC Parent shall, as soon as
reasonably practicable, furnish the Agent with such general
information as it or any member of the Target Group is
required by law to supply or make available to its (or such
member of the Target Group's) (a) shareholders (in their
capacity as such) or (b) creditors generally or any class
thereof.
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17.12 LITIGATION AND GOVERNMENT OR REGULATORY ENQUIRY
NTL CC (in respect of itself), the Parent (in respect of itself and
each other member of the UK Group) and, prior to the Pushdown Date, the
CWC Parent (in respect of itself and each other member of the Target
Group) shall advise the Agent forthwith of the details of:
17.12.1 any litigation, arbitration or administrative proceedings
pending or threatened against it or, as the case may be, any
other member of the UK Group or the Target Group which could
reasonably be expected to result in liability of it or, as the
case may be, such other member of the UK Group or the Target
Group in an amount in excess of L5,000,000 (or its
equivalent); and
17.12.2 any notice or communication received by it or, as the case may
be, any other member of the UK Group or the Target Group from,
or any actual or potential enquiry, investigation or
proceedings commenced by, any government, court or regulatory
agency or authority, if such notice, communication, enquiry,
investigation or proceedings could reasonably be expected to
have a Material Adverse Effect.
17.13 ACQUISITION INFORMATION
The Parent (in the case of the UK Group) and the Original Borrowers or
the CWC Parent (in the case of the Target Group) shall from time to
time, on the request of the Agent, provide the Agent with any material
information in the possession of any member of either the NTL Holding
Group, the UK Group or (after the Acquisition Date) the Target Group
relating to the Acquisition and/or the Scheme as the Agent may
reasonably request provided that the Parent, the Original Borrower and
the CWC Parent shall be under no obligation to supply any information
the supply of which would be contrary to any confidentiality obligation
binding on it or on any member of the NTL Holding Group, the UK Group
or the Target Group.
17.14 WORKING CAPITAL FACILITY DRAWDOWN
The Parent shall, at the same time as it delivers a notice of drawdown
under the Working Capital Facility, deliver a copy thereof to the
Agent.
18. FINANCIAL CONDITION
18.1 TARGET GROUP FINANCIAL CONDITION
Each of the Original Borrower and, on and after the date it becomes a
party hereto, the CWC Parent shall, prior to the Pushdown Date, ensure
that the financial condition of the Target Group (which shall, for the
purposes of this Clause 18.1 be deemed to include the Original
Borrower) shall be such that:
18.1.1 Ratio of Target Group Net Senior Debt to Annualised EBITDA
The ratio of the Target Group Net Senior Debt on each of the
Quarter Dates specified in column one below to the Annualised
EBITDA of the Target Group for the Relevant Period ended on
that date shall be no greater than the ratio set out in column
two below corresponding to that date.
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COLUMN ONE COLUMN TWO
QUARTER DATE TARGET GROUP NET SENIOR DEBT: ANNUALISED
EBITDA
31 December 2000 27.50:1.0
31 March 2001 23.50:1.0
30 June 2001 19.00:1.0
18.1.2 Target Group Net Senior Interest Cover Ratio
The ratio of the EBITDA of the Target Group for each Relevant
Period ended on the Quarter Dates specified in column one
below to the Target Group Net Cash Senior Finance Charges for
that Relevant Period shall be equal to or greater than the
ratio set out in column two below corresponding to that date.
COLUMN ONE COLUMN TWO
QUARTER DATE EBITDA : TARGET GROUP NET CASH SENIOR
FINANCE CHARGES
31 December 2000 0.40:1.0
31 March 2001 0.50:1.0
30 June 2001 0.60:1.0
18.2 UK GROUP FINANCIAL CONDITION
The Parent shall ensure that the financial condition of the UK
Group (which shall, for the purposes of this Clause 18.2 be
deemed to include (a) Northampton Cable Television Limited,
Herts Cable Limited and Cable & Wireless Communications (South
Hertfordshire) Limited and (b) prior to the Pushdown Date, the
Target Group (including the Original Borrower)) shall be such
that:
18.2.1 Ratio of UK Group Net Senior Debt to Annualised EBITDA
The ratio of the UK Group Net Senior Debt on each of the
Quarter Dates specified in column one below to the Annualised
EBITDA of the UK Group for the Relevant Period ended on that
date shall be no greater than the ratio set out in column two
below corresponding to that date.
COLUMN ONE COLUMN TWO
QUARTER DATE UK GROUP NET SENIOR DEBT: ANNUALISED
EBITDA
31 December 2000 11.45:1.0
31 March 2001 10.00:1.0
30 June 2001 8.50:1.0
30 September 2001 6.50:1.0
31 December 2001 5.25:1.0
31 March 2002 5.25:1.0
30 June 2002 4.00:1.0
30 September 2002 3.75:1.0
31 December 2002 3.50:1.0
31 March 2003 3.50:1.0
30 June 2003 2.75:1.0
30 September 2003 2.75:1.0
31 December 2003 2.25:1.0
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COLUMN ONE COLUMN TWO
QUARTER DATE UK GROUP NET SENIOR DEBT: ANNUALISED
EBITDA
31 March 2004 2.25:1.0
30 June 2004 2.00:1.0
30 September 2004 2.00:1.0
31 December 2004 1.75:1.0
31 March 2005 1.75:1.0
30 June 2005 1.50:1.0
18.2.2 UK Group Net Senior Interest Cover Ratio
The ratio of the EBITDA of the UK Group for each Relevant
Period ended on the Quarter Dates specified in column one
below to the UK Group Net Cash Senior Finance Charges for that
Relevant Period shall be equal to or greater than the ratio
set out in column two below corresponding to that date.
COLUMN ONE COLUMN TWO
QUARTER DATE EBITDA: UK GROUP NET CASH SENIOR
FINANCE CHARGES
31 December 2000 0.95:1.0
31 March 2001 1.20:1.0
30 June 2001 1.45:1.0
30 September 2001 1.75:1.0
31 December 2001 2.15:1.0
31 March 2002 2.15:1.0
30 June 2002 2.75:1.0
30 September 2002 3.25:1.0
31 December 2002 3.50:1.0
31 March 2003 3.50:1.0
30 June 2003 4.50:1.0
30 September 2003 4.50:1.0
31 December 2003 5.25:1.0
31 March 2004 5.25:1.0
30 June 2004 7.00:1.0
30 September 2004 7.00:1.0
31 December 2004 7.50:1.0
31 March 2005 7.50:1.0
30 June 2005 7.50:1.0
18.2.3 Total Interest Cover Ratio
The ratio of the EBITDA of the UK Group for each Relevant
Period ended on the Quarter Dates specified in column one
below to the Total Net Cash Finance Charges for that Relevant
Period shall be equal to or greater than the ratio set out in
column two below corresponding to that date.
COLUMN ONE COLUMN TWO
QUARTER DATE EBITDA: TOTAL NET CASH FINANCE CHARGES
31 December 2002 1.30:1.0
31 March 2003 1.30:1.0
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COLUMN ONE COLUMN TWO
QUARTER DATE EBITDA: TOTAL NET CASH FINANCE CHARGES
30 June 2003 1.50:1.0
30 September 2003 1.50:1.0
31 December 2003 1.65:1.0
31 March 2004 1.65:1.0
30 June 2004 1.75:1.0
30 September 2004 1.75:1.0
31 December 2004 2.00:1.0
31 March 2005 2.00:1.0
30 June 2005 2.25:1.0
18.2.4 Ratio of Total Net Debt to Annualised EBITDA
The ratio of the Total Net Debt on each of the Quarter Dates
specified in column one below to the Annualised EBITDA of the
UK Group for the Relevant Period ended on that date shall be
no greater than the ratio set out in column two below
corresponding to that date.
COLUMN ONE COLUMN TWO
QUARTER DATE TOTAL NET DEBT: ANNUALISED EBITDA
31 December 2002 10.25:1.0
31 March 2003 10.00:1.0
30 June 2003 8.00:1.0
30 September 2003 8.00:1.0
31 December 2003 7.50:1.0
31 March 2004 7.50:1.0
30 June 2004 5.50:1.0
30 September 2004 5.50:1.0
31 December 2004 5.25:1.0
31 March 2005 5.25:1.0
30 June 2005 4.50:1.0
18.3 FINANCIAL DEFINITIONS
In this Agreement the following terms have the following meanings. For
the purpose of the financial definitions set out in this Clause 18.3:
18.3.1 references to the UK Group shall be deemed to include (a)
Northampton Cable Television Limited, Herts Cable Limited and
Cable & Wireless Communications (South Hertfordshire) Limited
and (b) prior to the Pushdown Date, the Target Group; and
18.3.2 references to the Target Group shall be deemed to include the
Original Borrower.
"ANNUALISED EBITDA" means with respect to any Quarter Date, the
consolidated EBITDA of the Target Group or, as the case may be, the UK
Group, for the Relevant Period ended on such Quarter Date, multiplied
by two.
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"CASH" means at any time, cash denominated in sterling (or any other
currency freely convertible into sterling) and credited to an account
in the name of a member of the Covenant Group, the UK Group or (as
applicable) the Target Group with an Eligible Deposit Bank and to which
such a member of the Covenant Group, the UK Group or the Target Group
is alone beneficially entitled and for so long as:
(a) such cash is repayable on demand and repayment of such cash is
not contingent on the prior discharge of any other
indebtedness of any member of the Covenant Group, the UK Group
or the Target Group or of any other person whatsoever or on
the satisfaction of any other condition; or
(b) such cash has been deposited with an Eligible Deposit Bank as
security for any performance bond, guarantee, standby letter
of credit or similar facility the contingent liabilities
relating to such having been included in the calculation of
Covenant Group Net Debt, Target Group Net Senior Debt or, as
the case may be, UK Group Net Senior Debt.
"CURRENT ASSETS" means the aggregate of inventory, trade and other
receivables of each member of the UK Group including sundry debtors
(but excluding cash at bank) maturing within twelve months from the
date of computation.
"CURRENT LIABILITIES" means the aggregate of all liabilities (including
trade creditors, accruals and provisions and prepayments) of each
member of the UK Group falling due within twelve months from the date
of computation but excluding consolidated aggregate Indebtedness for
Borrowed Money of the UK Group falling due within such period and any
interest on such Indebtedness for Borrowed Money due in such period.
"COVENANT GROUP NET DEBT" means, at any time (without double counting),
the aggregate principal, capital or nominal amounts (including any
capitalised interest) of indebtedness of any member of the Covenant
Group constituting Indebtedness for Borrowed Money together with any
other indebtedness of any member of the Covenant Group constituting
Indebtedness for Borrowed Money which is due and payable and has not
been paid at such time and in respect of which the grace period (if
any) specified in the documentation relating thereto has expired, but:
(a) excluding Indebtedness for Borrowed Money of any member of the
Covenant Group to another member of the Group to the extent
permitted under this Agreement; and
(b) deducting the Cash held by members of the Covenant Group at
such time.
"EBIT" means, in respect of any period, the consolidated net income of
the Target Group or, as the case may be, the aggregate of the
consolidated net income of the UK Group for such period adding back
(only to the extent, in each case, deducted in calculating such
consolidated net income):
(a) any provision on account of taxation;
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(b) any interest (including capitalised interest), commission,
discounts or other fees incurred or payable, received or
receivable, by any member of the Target Group or, as the case
may be, the UK Group in respect of Indebtedness for Borrowed
Money;
(c) any amounts received or paid pursuant to the interest hedging
arrangements entered into in respect of the Revolving
Facility;
(d) any items treated as exceptional or extraordinary items and
any other similar items agreed between the Relevant Obligor
and the Agent (acting on the instructions of an Instructing
Group); and
(e) separation and integration costs and payments made by any
member of the Target Group under schedule 8 of the Transaction
Agreement.
"EBITDA" means, in respect of any period, EBIT for such period adding
back (only to the extent, in each case, deducted in calculating EBIT):
(a) any amount attributable to amortisation of intangible assets
(including goodwill);
(b) depreciation of tangible assets and capitalised costs and
expenses; and
(c) amortisation, or the writing off, of transaction expenses in
relation to the Acquisition,
and deducting any costs and expenses capitalised during such period
(other than costs and expenses incurred in constructing or upgrading
cable networks in the ordinary course of the Target Group's business
or, as the case may be, the UK Group's, business).
"ELIGIBLE DEPOSIT BANK" means any bank or financial institution with a
short term rating of at least A1 granted by Standard & Poor's
Corporation or P1 granted by ▇▇▇▇▇'▇ Investors Services, Inc.
"EXCESS CASH FLOW" means, for any financial year, Operating Cash Flow
for that period LESS Net Total Debt Service for that period.
"FINANCIAL QUARTER" means the period commencing on the day after one
Quarter Date and ending on the next Quarter Date.
"NET TOTAL DEBT SERVICE" means, in respect of any financial year, the
aggregate of:
(a) Total Net Cash Finance Charges for the two Relevant Periods in
that financial year; and
(b) save to the extent such were immediately reborrowed, the
aggregate of scheduled and mandatory payments of the
principal, capital or nominal amounts of any Indebtedness for
Borrowed Money of any member of the UK Group or the Covenant
Group which fell due during that financial year (excluding any
such payments which relate to Subordinated Debt where such
payments cannot be made due to the subordination of such
Subordinated Debt remaining in full force and effect).
"OPERATING CASH FLOW" means, in respect of any financial year, EBITDA
of the UK Group for that financial year after:
(a) adding back:
(i) any decrease in the amount of Working Capital at the
end of such a financial year compared against the
Working Capital at the start of such financial year;
and
(ii) any cash receipt in respect of any exceptional or
extraordinary item; and
(b) deducting:
(i) any amount of Capital Expenditure actually made by
any member of the UK Group;
(ii) any increase in the amount of Working Capital at the
end of such financial year compared against the
Working Capital at the start of that financial year;
(iii) any amount actually paid or due and payable in
respect of taxes on the profits of any member of the
UK Group; and
(iv) any cash payment in respect of any exceptional or
extraordinary item,
and no amount shall be included or excluded more than once.
"QUARTER DATE" means 31 March, 30 June, 30 September and 31 December in
each year.
"RELEVANT PERIOD" means each period of six months ending on a Quarter
Date.
"TARGET GROUP NET SENIOR DEBT" means, at any time (without double
counting), the aggregate principal, capital or nominal amounts
(including any capitalised interest) of indebtedness of any member of
the Target Group constituting Indebtedness for Borrowed Money together
with any other indebtedness of any member of the Target Group
constituting Indebtedness for Borrowed Money which is due and payable
and has not been paid at such time and in respect of which the grace
period (if any) specified in the documentation relating thereto has
expired but:
(a) excluding such Indebtedness for Borrowed Money of any member
of the Target Group to another member of the Target Group to
the extent permitted under this Agreement;
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(b) excluding any Indebtedness for Borrowed Money to the extent
such is Subordinated Target Group Debt; and
(c) deducting the Cash held by members of the Target Group at such
time.
"TARGET GROUP NET CASH SENIOR FINANCE CHARGES" means, in respect of
each Relevant Period, the aggregate amount of the interest (including
the interest element of leasing and hire purchase payments) commission,
fees and other periodic finance payments paid or due and payable in
cash on the Target Group Net Senior Debt during such a Relevant Period,
(a) adding any commission, fees and other finance payments payable
by any member of the Target Group in cash under any interest
rate hedging arrangement;
(b) deducting any commission, fees and other finance payments
receivable by any member of the Target Group under any
interest rate hedging arrangement permitted by this Agreement;
and
(c) deducting any interest receivable by any member of the Target
Group on any deposit or bank account.
"TOTAL NET DEBT" means, at any time, the aggregate of the UK Group Net
Senior Debt and the Covenant Group Net Debt.
"TOTAL NET CASH FINANCE CHARGES" means, in respect of each Relevant
Period, the aggregate amount of the interest (including the interest
element of leasing and hire purchase payments) commission, fees and
other periodic finance payments paid or due and payable in cash on the
Total Net Debt during such a Relevant Period,
(a) adding any commission, fees and other finance payments payable
by any member of the Covenant Group and the UK Group, in cash
under any interest rate hedging arrangement;
(b) deducting any commission, fees and other finance payments
receivable by any member of the Covenant Group and the UK
Group under any interest rate hedging arrangement permitted by
this Agreement; and
(c) deducting any interest receivable by any member of the
Covenant Group and the UK Group, on any deposit or bank
account.
"UK GROUP NET SENIOR DEBT" means, at any time (without double
counting), the aggregate principal, capital or nominal amounts
(including any capitalised interest) of indebtedness of any member of
the UK Group constituting Indebtedness for Borrowed Money together with
any other indebtedness of any member of the UK Group constituting
Indebtedness for Borrowed Money which is due and payable and has not
been paid at such time and in respect of which the grace period (if
any) specified in the documentation relating thereto has expired but:
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(a) excluding such Indebtedness for Borrowed Money of any member
of the UK Group to another member of the UK Group to the
extent permitted under this Agreement;
(b) excluding any Indebtedness for Borrowed Money to the extent
such is either Subordinated UK Group Debt or Subordinated
Target Group Debt; and
(c) deducting the Cash held by members of the UK Group at such
time.
"UK GROUP NET CASH SENIOR FINANCE CHARGES" means, in respect of each
Relevant Period, the aggregate amount of the interest (including the
interest element of leasing and hire purchase payments) commission,
fees and other periodic finance payments paid or due and payable in
cash on the UK Group Net Senior Debt during such a Relevant Period,
(a) adding any commission, fees and other finance payments payable
by any member of the UK Group in cash under any interest rate
hedging arrangement;
(b) deducting any commission, fees and other finance payments
receivable by any member of the UK Group under any interest
rate hedging arrangement permitted by this Agreement; and
(c) deducting any interest receivable by any member of the UK
Group on any deposit or bank account.
"WORKING CAPITAL" means on any date Current Assets less Current
Liabilities.
18.4 ACCOUNTING TERMS
All accounting expressions which are not otherwise defined herein shall
be construed in accordance with generally accepted accounting
principles in England.
19. COVENANTS
19.1 NOTIFICATION OF EVENTS OF DEFAULT
The Group Representative shall promptly inform the Agent of the
occurrence of any Event of Default or Potential Event of Default and,
upon receipt of a written request to that effect from the Agent,
confirm to the Agent that, save as previously notified to the Agent or
as notified in such confirmation, no Event of Default or Potential
Event of Default has occurred and is continuing.
19.2 CLAIMS PARI PASSU
Each Obligor shall ensure that, subject to the Reservations:
19.2.1 at all times the claims of the Finance Parties against such
Obligor under the Finance Documents (other than the Security
Documents) to which such Obligor is party rank at least pari
passu with the claims of all its other unsecured and
unsubordinated creditors; and
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19.2.2 at all times the claims of the Finance Parties against such
Obligor under the Security Documents to which such Obligor is
party rank ahead of the claims of all its other creditors
(other than (if and to the extent applicable) creditors with
the benefit of Permitted Encumbrances) against the assets the
subject of the Encumbrances created by such Security
Documents.
19.3 MAINTENANCE OF LEGAL VALIDITY
Each Obligor shall, and the Parent shall procure that each Obligor in
the UK Group shall and the CWC Parent (on and after the date on which
it becomes a party hereto) shall procure that, prior to the Pushdown
Date, each Obligor in the Target Group shall:
19.3.1 do all such things as are necessary to maintain its existence
as a legal person (other than as part of a solvent
reorganisation on terms which have been approved in writing by
the Agent acting on the instructions of an Instructing Group);
and
19.3.2 obtain, comply with the terms of and do all that is necessary
to maintain in full force and effect all authorisations,
approvals, licences and consents required in or by the laws
and regulations of each jurisdiction in which it owns or
leases property or in which it conducts its business to enable
it lawfully to enter into and perform its obligations under
each of the Finance Documents to which it is expressed to be a
party or to ensure the legality or validity or (subject to the
Reservations) enforceability or admissibility in evidence in
England and in each other jurisdiction in which it owns or
leases property or in which it conducts its business (to the
extent applicable) of each such Finance Document.
19.4 INSURANCE
Each Obligor shall, the Parent shall procure that each member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
each member of the Target Group shall, effect and maintain, insurances
(or, in the case of NTL Insurance Limited (or its successor as the UK
Group's captive insurance company), insurances and re-insurances) on
and in relation to its business and assets against such risks as is
reasonable for a company carrying on a business such as that carried on
by such Obligor, member of the UK Group or member of the Target Group
with either (save in respect of NTL Insurance Limited's own insurance)
NTL Insurance Limited (or its successor as the UK Group's captive
insurance company) or with a reputable underwriter or insurance company
and, in the case of NTL Insurance Limited (or its successor as the UK
Group's captive insurance company), with a reputable underwriter or
insurance or reinsurance company.
19.5 ENVIRONMENTAL COMPLIANCE
Each Obligor shall, the Parent shall procure that each member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
each member of the Target Group shall, comply in all material respects
with all Environmental Law and obtain and maintain
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any Environmental Permits, breach of which (or failure to obtain or
maintain which) could reasonably be expected to have a Material Adverse
Effect.
19.6 ENVIRONMENTAL CLAIMS
Each Obligor shall, the Parent shall procure that each member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
each member of the Target Group shall, inform the Agent in writing as
soon as reasonably practicable upon becoming aware of the same if any
Environmental Claim has been commenced or (to the best of such
Obligor's, member of the UK Group's or member of the Target Group's
knowledge and belief) is threatened against it in any case where such
claim would be reasonably likely, if adversely determined, to have a
Material Adverse Effect, or of any facts or circumstances which will or
are reasonably likely to result in any Environmental Claim being
commenced or threatened against such Obligor, member of the UK Group or
member of the Target Group in any case where such claim would be
reasonably likely, if adversely determined, to have a Material Adverse
Effect.
19.7 MAINTENANCE OF LICENCES AND OTHER AUTHORISATION
Each Obligor shall, the Parent shall procure that each member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
each member of the Target Group shall:
19.7.1 ensure that it has the right and is duly qualified to conduct
its business and to the extent that the loss of any contract,
authorisation, approval, licence, consent, right or franchise
could reasonably be expected to have a Material Adverse
Effect, do all things necessary to obtain, preserve, keep
valid and binding and, where relevant, renew all such
contracts, authorisations, approvals, licences, consents,
rights and franchises; and
19.7.2 ensure that each Licence (or any replacement or renewal
thereof) is held by a member of the UK Group (other than the
Parent) or, prior to the Pushdown Date, a member of the Target
Group (other than the CWC Parent).
19.8 CONDUCT BUSINESS IN ACCORDANCE WITH LICENCES
Each Obligor shall, the Parent shall procure that each member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
each member of the Target Group shall carry on its business, or cause
the same to be carried on, in accordance with the terms and conditions
of the Licences in all material respects and no Obligor shall, the
Parent shall procure that no member of the UK Group shall and the CWC
Parent shall, prior to the Pushdown Date, procure that no member of the
Target Group shall do, omit to do or suffer to be done, any act whereby
any person is entitled or empowered to revoke, materially and adversely
amend, suspend, withdraw or terminate any Licence if such amendment,
revocation, suspension, withdrawal or termination could reasonably be
expected to have a Material Adverse Effect.
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19.9 STATUTORY REQUIREMENTS
Each Obligor shall, the Parent shall procure that each member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
each member of the Target Group shall, comply in all material respects
with all Statutory Requirements binding upon it or enforceable against
it in respect of the conduct of its business and the ownership of its
properties if and insofar as failure to do so could reasonably be
expected to have a Material Adverse Effect.
19.10 REGULATORY NOTICES AND COMMUNICATIONS
The:
19.10.1 Parent shall notify the Agent within fourteen days of receipt
by any member of the UK Group of; and
19.10.2 the CWC Parent (on and after the date on which it becomes a
party hereto) shall, prior to the Pushdown Date, notify the
Agent within fourteen days of receipt by any member of the
Target Group of,
any notice or communication from any government, court or regulatory
authority or agency (including, without prejudice to the generality of
the foregoing, the Secretary of State for Trade and Industry, Oftel or
the Radiocommunications Agency) which may give rise to the revocation,
termination, material adverse amendment, suspension, withdrawal or
avoidance of any Licences or any of the terms and conditions thereof if
such revocation, termination, material adverse amendment, suspension,
withdrawal or avoidance could reasonably be expected to have a Material
Adverse Effect.
19.11 COMPLIANCE WITH MATERIAL COMMERCIAL CONTRACTS
Each Obligor shall, the Parent shall procure that each member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
each member of the Target Group shall:
19.11.1 comply in all material respects with its obligations under
each Material Commercial Contract to which it is party and
take all action necessary to ensure the continued validity and
enforceability of its rights thereunder;
19.11.2 not amend, vary, novate or supplement any such Material
Commercial Contract in any material respect;
19.11.3 not terminate any such Material Commercial Contract prior to
its contractual termination date,
if such non-compliance, failure to take action, amendment, variation,
novation or supplement or termination, as the case may be, could
reasonably be expected to have a Material Adverse Effect.
19.12 PRESERVATION OF ASSETS
Each Obligor shall, the Parent shall procure that each member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall,
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prior to the Pushdown Date, procure that each member of the Target
Group shall, maintain and preserve all of its assets that are necessary
and material in the conduct of its business as conducted at the date
hereof in good working order and condition (ordinary wear and tear
excepted), repair (with reasonable promptness) any damage to such
assets and shall maintain in all material respects all books and
records which are necessary in connection therewith or in connection
with the conduct of its business.
19.13 SECURITY
Each Obligor shall, at its own expense, take all such action as the
Agent may reasonably require for the purpose of perfecting or
protecting the Finance Parties' rights under and preserving the
security interests intended to be created or evidenced by any of the
Finance Documents to which it is a party, and following the making of
any declaration pursuant to Clause 20.18 (Acceleration and
Cancellation) or 20.19 (Revolving Advances Due on Demand) for
facilitating the realisation of any such security or any part thereof.
19.14 ACCESS
The Parent (in the case of each member of the UK Group) and the CWC
Parent (on or after the date on which it becomes a party hereto and in
the case of each member of the Target Group) shall ensure that any one
or more representatives, agents and advisers of the Agent and/or any of
the Banks will be allowed, whilst an Event of Default or Potential
Event of Default is continuing and with prior notice, to have access to
the assets, books, records and premises of each UK Group member and
(prior to the Pushdown Date) each Target Group member and be permitted
to inspect the same during normal business hours.
19.15 CONSENTS AND PROPERTIES
Each Obligor which owns a Principal Property shall, the Parent shall
procure that each such Obligor in the UK Group shall and the CWC Parent
(on and after the date on which it becomes a party hereto) shall, prior
to the Pushdown Date, procure that each such Obligor in the Target
Group shall use all reasonable endeavours to obtain consents to charge
all of the Principal Properties which are leasehold and which are
charged pursuant to the Security Documents from the relevant landlords
as soon as practicable.
19.16 ACQUISITION DATE SECURITY
The Original Borrower shall procure that, on the Acquisition Date:
19.16.1 the CWC Accession Memorandum and the documentation required
under Clause 34.2 (Guarantor Conditions Precedent) are
delivered to the Agent, such as to allow CWC Holdings to
accede hereto as both a Guarantor and the CWC Parent in
accordance with Clause 34 (Accession of Guarantors and the CWC
Parent); and
19.16.2 the Initial Security is provided.
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19.17 POST-ACQUISITION DATE SECURITY
The CWC Parent (on and after the date on which it becomes a party
hereto) and the Original Borrower shall procure that:
19.17.1 within five Business Days of the Acquisition Date, each member
of the Target Group listed in Schedule 13 (Members of the
Target Group Providing Guarantees and Security) accedes hereto
as a Guarantor in accordance with the provisions of Clause 34
(Accession of Guarantors and the CWC Parent) PROVIDED THAT if
any member of the Target Group is a party to any agreement
which prohibits or restricts the granting of such a guarantee,
the CWC Parent and the Original Borrower shall only be obliged
to procure that such member of the Target Group accedes hereto
as a Guarantor within sixty days of the Acquisition Date (or
such later date as may be agreed by an Instructing Group,
acting reasonably); and
19.17.2 within thirty days of the Acquisition Date (or such later date
as may be agreed by an Instructing Group (acting reasonably),
each member of the Target Group listed in Schedule 13 (Members
of the Target Group Providing Guarantees and Security) creates
security in favour of the Finance Parties by executing a
Debenture and such other Security Documents as the Agent may
reasonably require and otherwise delivers to the Agent (in
form and substance satisfactory to the Agent) all of the
documents and other evidence listed in Part B (Security
Documentation) of Schedule 10 (Additional Conditions
Precedent) PROVIDED THAT if any member of the Target Group is
a party to any agreement which prohibits or restricts the
creation of such security, the CWC Parent and the Original
Borrower shall only be obliged to procure that such member of
the Target Group creates such security and delivers such
documents and evidence within sixty days of the Acquisition
Date (or such later date as may be agreed by an Instructing
Group, acting reasonably).
The Security Trustee shall, prior to the Pushdown Date and upon the
written request of the Relevant Obligor, release or allow a member of
the Target Group to refrain from providing any guarantee or security
given or to be given in accordance with this Clause 19.17 where such a
member of the Target Group is a party to an agreement which prohibits
or restricts the granting of such a guarantee or security interest
PROVIDED THAT the Security Trustee is satisfied (acting reasonably)
that following such release the requirements of sub-clause 19.32.1 of
Clause 19.32 (Guarantors) will continue to be satisfied and the written
request from the Relevant Obligor confirms (with supporting evidence)
that this is the case.
19.18 DISCHARGE OF EXISTING TARGET INDEBTEDNESS
Each of the Original Borrower and, on and after the date on which it
becomes a party hereto, the CWC Parent, shall:
19.18.1 in relation to each category of Existing Target Indebtedness
set out in the table below, use their reasonable endeavours to
procure that the Pushdown
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Condition in relation to that category of Existing Target
Indebtedness is satisfied no later than the relevant date set
out in that table:
CATEGORY OF EXISTING TARGET INDEBTEDNESS LATEST DATE FOR SATISFACTION OF THE
PUSHDOWN CONDITION IN RELATION TO THAT
EXISTING TARGET INDEBTEDNESS
Yankee Bonds 30 days after the Acquisition Date
Existing Hedging Acquisition Date
Receivables Purchase Facility Acquisition Date
Sterling Bonds Acquisition Date
CWC Credit Agreement Acquisition Date
Cable & Wireless Debt 180 days after the Acquisition Date
High Yield Bonds 30 September 2000
BCM Notes 31 March 2001 and 2 July 2001 respectively
Videotron Mortgage 10 days after the Acquisition Date
NatWest Finance Leases 180 days after the Acquisition Date
Vehicle Finance Leases 120 days after the Acquisition Date
Overdraft Facilities 2 July ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Facility 2 July 2001
TWTV Debt 2 July 2001
19.18.2 procure that the Pushdown Condition is satisfied on or prior
to 6 July 2001.
19.19 PUSHDOWN
Each of the CWC Parent, the Parent and the Original Borrower shall:
19.19.1 procure that (subject to the release by the Security Trustee
of the Security, as contemplated in paragraph (a) of the
definition of Pushdown), as soon as reasonably practical after
and, in any event, no later than ten Business Days after the
Pushdown Condition is satisfied, steps (a) to (g) of the
definition of the Pushdown are completed in a single day; and
19.19.2 ensure that, prior to the Pushdown Date, it and each member of
the Target Group:
(a) operates its business and utilises (or refrains from
utilising) the permissions and exceptions to the
covenants set out in this Clause 19 with the
overriding objective of allowing the Pushdown to
occur as soon as is reasonably practicable after the
Acquisition Date; and
(b) does not enter into any transaction or do anything
which would require it to utilise any such
permissions or exceptions (including, without
limitation, those provided by the definitions of
Permitted Acquisitions, Permitted Disposals,
Permitted Encumbrances, Permitted Indebtedness and
Permitted Loans and Guarantees) if, at the time of
entering into the transaction or first doing such
thing in reliance upon such permission or exception,
such transaction or thing could be reasonably
expected to delay the Pushdown.
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19.20 UNWINDING OF ACTIONS
If, at any time:
19.20.1 it is reasonably likely that by doing so it will enable
Pushdown to occur at a date earlier than that on which it
could otherwise occur; and
19.20.2 if the Agent (acting on the instructions of an Instructing
Group) so requires,
the Original Borrower and the CWC Parent shall, and the CWC Parent
shall procure that each member of the Target Group shall, use its
reasonable endeavours to repay any indebtedness incurred by it after
the Execution Date (including, without limitation, the unwinding of any
outstanding Hedging Agreements) to the extent that such indebtedness
needs to be repaid to satisfy the Pushdown Condition.
19.21 WORKING CAPITAL FACILITY
NTL CC and the Parent shall ensure that the full amount of the Working
Capital Facility is invested by the Parent in the other members of the
UK Group on or prior to the time anticipated in the Business Plan by
way of Parent Funding.
19.22 MANDATORY CONTRIBUTION
NTL CC shall ensure that the cash proceeds (net of any related
expenses) of any equity or Financial Indebtedness raised by any member
of the Covenant Group shall be applied as follows:
19.22.1 to the extent that such amount is required, pursuant to the
Working Capital Facility to be applied in mandatory prepayment
of the amount outstanding thereunder, such amount shall be
invested in the Parent by way of Subordinated Funding and so
applied in mandatory prepayment of the amount outstanding
under the Working Capital Facility;
19.22.2 to the extent that such amount is required, pursuant to the
Working Capital Facility to be applied in mandatory
cancellation of the Working Capital Facility, such amount
shall be invested in the Parent by way of Subordinated Funding
and onlent by way of Parent Funding to members of the UK Group
(other than the Parent);
19.22.3 to the extent that such amount is not required pursuant to the
Working Capital Facility to be applied in mandatory prepayment
or cancellation thereof:
(a) from the Acquisition Date up to (and including) 31
December 2003, 662/3 per cent. of the aggregate
amount of such cash proceeds; and
(b) at all times thereafter, 75 per cent. of the
aggregate amount of such cash proceeds,
in each case other than Excluded Contributions, shall be contributed to
the Parent by way of Subordinated Funding. The Parent shall in turn
ensure that any such Subordinated Funding received by it is contributed
to the other members of the UK Group by way of Parent Funding.
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19.23 NEGATIVE PLEDGE
No Obligor shall, the Parent shall procure that no member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
no member of the Target Group shall, create or permit to subsist any
Encumbrance over all or any of its present or future undertaking,
revenues or assets other than Permitted Encumbrances.
19.24 LOANS AND GUARANTEES
No Obligor shall, the Parent shall procure that no member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall procure that, prior to the Pushdown Date,
no member of the Target Group shall, (save in the ordinary course of
business) make, any loans, grant any credit or give any guarantee or
indemnity to or for the benefit of any person or voluntarily assume any
liability, whether actual or contingent, in respect of any obligation
of any other person other than Permitted Loans and Guarantees.
19.25 DISPOSALS
No Obligor shall, the Parent shall procure that no member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
no member of the Target Group shall, sell, lease, transfer or otherwise
dispose of, by one or more transactions or series of transactions
(whether related or not), the whole or any part of its revenues or its
assets other than any Permitted Disposal.
19.26 FINANCIAL INDEBTEDNESS
19.26.1 No Obligor shall, the Parent shall procure that no member of
the UK Group shall and the CWC Parent (on and after the date
on which it becomes a party hereto) shall, prior to the
Pushdown Date, procure that no member of the Target Group
shall incur, or allow to subsist, any Financial Indebtedness
or enter into any agreement or arrangement whereby it is
entitled to incur, create or allow to subsist any Financial
Indebtedness other than Permitted Indebtedness.
19.26.2 NTL CC shall procure that NTL UK shall not incur, or allow to
subsist, any Financial Indebtedness between it and any other
members of the NTL Holding Group or enter into any agreement
or arrangement whereby it is entitled to incur, create or
allow to subsist any such Financial Indebtedness other than
Financial Indebtedness owed by it to NTL CC.
19.26.3 NTL CC shall not, and shall procure that no other members of
the Covenant Group shall incur, or allow to subsist any
Financial Indebtedness or enter into any agreement or
arrangement whereby it is entitled to incur, create or allow
to subsist any Financial Indebtedness other than, subject to
sub-clause 19.26.2, Permitted Covenant Group Indebtedness.
19.26.4 NTL CC and the Parent shall procure that the only Financial
Indebtedness outstanding between:
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(a) NTL UK and the Parent is Subordinated UK Group Debt;
and
(b) prior to the Pushdown Date, any members of the NTL
Holding Group (as lenders) and the Original Borrower
or any members of the Target Group (as borrowers) is
Subordinated Target Group Debt.
19.27 RESTRICTED PAYMENTS
The Original Borrower shall not, the Parent shall not and shall procure
that no member of the UK Group shall and the CWC Parent (on and after
the date on which it becomes a party hereto) shall not and shall, prior
to the Pushdown Date, procure that no member of the Target Group shall
make any Restricted Payment other than Permitted Payments.
19.28 ACQUISITIONS AND INVESTMENTS
No Obligor shall, the Parent shall procure that no member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
no member of the Target Group shall, (a) purchase, subscribe for or
otherwise acquire any shares (or other securities or any interest
therein) in, or incorporate, any other company or agree to do any of
the foregoing, or (b) purchase or otherwise acquire (other than in the
ordinary course of business) any assets or revenues or (without
limitation to any of the foregoing) acquire any business or interest
therein or agree to do so, save for (and for agreements relating to):
19.28.1 any investment or acquisition of assets contemplated in the
Business Plan or arising out of expenditure being financed by
the Revolving Facility;
19.28.2 any investment in a UK Group Excluded Subsidiary made out of
Available Excess Cash Flow;
19.28.3 Permitted Investments; and
19.28.4 Permitted Acquisitions.
19.29 TELECENTIAL PARTNERSHIPS
The Parent shall, unless all of the partners of the Telecential
Partnerships are wholly-owned members of the UK Group and are subject
to an Encumbrance pursuant to the Security Documents:
19.29.1 procure that the aggregate of (a) the amount of any loans made
by any members of the UK Group to either of the Telecential
Partnerships after the Execution Date, (b) the book value of
any assets contributed by either CableTel Limited or CableTel
Investments Limited to either of the Telecential Partnerships
after the Execution Date and (c) any cash contributed by
either CableTel Limited or CableTel Investments Limited to
either of the Telecential Partnerships after the Execution
Date does not exceed L25,000,000; and
19.29.2 use its reasonable endeavours to procure that any such loan,
asset contribution or cash contribution made by any members of
the UK Group within such a
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L25,000,000 threshold is followed, to the extent and in the
manner required by the partnership agreements relating to the
Telecential Partnerships (as such may be amended from time to
time), by a loan, asset contribution or cash contribution by
the minority partner in the relevant Telecential Partnership
(and funded by the minority shareholder in such a minority
partner).
19.30 MERGERS
No Obligor shall, the Parent shall procure that no member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall, prior to the Pushdown Date, procure that
no member of the Target Group shall, enter into any merger or
consolidation with any other person save for, respectively, another
Obligor or, as the case may be, another member of the UK Group or
another member of the Target Group.
19.31 CHANGE OF BUSINESS
Save as contemplated in the Business Plan (and PROVIDED THAT nothing in
this Clause 19.31 shall prevent an Obligor from making any investment
or disposal which is otherwise permitted under this Agreement) no
Obligor shall, the Parent shall procure that no member of the UK Group
shall and the CWC Parent (on and after the date on which it becomes a
party hereto) shall, prior to the Pushdown Date, procure that no member
of the Target Group shall, enter into any type of business sector which
would result in a change in the business focus of the UK Group taken as
a whole or, as the case may be, the Target Group taken as a whole from
its business focus as at the date hereof.
19.32 GUARANTORS
19.32.1 Prior to the Pushdown Date, and once the members of the Target
Group required to do so pursuant to Clause 19.17
(Post-Acquisition Date Security) have acceded hereto as
Guarantors, the CWC Parent and the Original Borrower shall
ensure that, save to the extent that it is unable to do so as
a result of the application of the proviso to sub-clause
19.17.1 of Clause 19.17 (Post Acquisition Date Security), at
all times the aggregate EBITDA of the Guarantors (in each case
calculated on an unconsolidated basis) for each Financial
Quarter ended on or before the Pushdown Date equals or exceeds
90 per cent. of the consolidated EBITDA of the Target Group
for such period.
19.32.2 After the Pushdown Date, the Parent shall ensure that at all
times the aggregate EBITDA of the Guarantors (in each case
calculated on an unconsolidated basis) for any period of four
consecutive Financial Quarters equals or exceeds 95 per cent.
of the consolidated EBITDA of the UK Group for such period.
19.32.3 For the purposes of this Clause 19.32 the aggregate EBITDA of
the Guarantors and the consolidated EBITDA of the UK Group at
any time after the Pushdown Date:
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(a) prior to the delivery of the financial statements for
the first Financial Quarter ended after the Pushdown
Date, shall be equal to the aggregate EBITDA of the
Guarantors or, as the case may be, the aggregate
EBITDA of the UK Group and the Target Group for the
four Financial Quarters ended before the Pushdown
Date or, if less, the number of Financial Quarters
between the Execution Date and the Pushdown Date
annualised by multiplying by the relevant fraction;
(b) after the delivery of the financial statements for
the first Financial Quarter ended after the Pushdown
Date, shall be equal to the aggregate EBITDA of the
Guarantors or, as the case may be the aggregate
EBITDA of the UK Group for that Financial Quarter,
multiplied by four;
(c) after the delivery of the financial statements for
the first two Financial Quarters ended after the
Pushdown Date, shall be equal to the aggregate EBITDA
of the Guarantors or, as the case may be the
aggregate EBITDA of the UK Group for those Financial
Quarters, multiplied by two;
(d) after the delivery of the financial statements for
the first three Financial Quarters ended after the
Pushdown Date, shall be equal to the aggregate EBITDA
of the Guarantors or, as the case may be, the
aggregate EBITDA of the UK Group for those Financial
Quarters, multiplied by four and divided by three;
and
(e) after the delivery of the financial statements for
the first four Financial Quarters ended after the
Pushdown Date, shall be equal to the aggregate EBITDA
of the Guarantors or, as the case may be the
aggregate EBITDA of the UK Group for the immediately
preceding four complete Financial Quarters.
19.32.4 A breach of this Clause 19.32 shall not constitute an Event of
Default if (i) one or more subsidiaries of the Parent or, as
the case may be, the CWC Parent become Guarantors (in
accordance with Clause 34 (Accession of Guarantors and the CWC
Parent)), within five Business Days of the earlier of notice
by the Agent to the Relevant Obligor of the breach and the
Relevant Obligor becoming aware thereof and (ii) the Agent
(acting reasonably) is satisfied that this Clause 19.32 will,
as a result of the Guarantors thereby created, be satisfied.
19.33 SHARES
No Obligor shall, the Parent shall procure that no member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall procure that no member of the Target
Group shall, without the prior written consent of an Instructing Group,
alter any rights attaching to its issued shares, if:
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19.33.1 those shares are subject to the Security; and
19.33.2 such an alteration would be reasonably likely to prejudice the
value of, or the ability of the Security Trustee to realise,
the Security over the company represented by those shares.
19.34 TRANSACTIONS WITH AFFILIATES
No Obligor shall, the Parent shall procure that no member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall procure that no member of the Target
Group shall enter into any transaction with an affiliate other than:
19.34.1 transactions in respect of either Subordinated Funding or
Parent Funding;
19.34.2 transactions between:
(a) Obligors incorporated in the United Kingdom (other
than transactions prohibited under this Agreement);
(b) Obligors incorporated in the United States of America
(other than transactions prohibited under this
Agreement); and
(c) any other transaction, not falling within (a) or (b)
above between members of the Group where such are
otherwise permitted by this Agreement;
19.34.3 transactions in the ordinary course of business and either on
no worse than arms' length terms or, where there is no
available market by which to assess whether such a transaction
is on no worse than arms' length terms, on terms such that in
the reasonable opinion of the Parent the transaction is
financially fair to the relevant Obligor, member of the UK
Group or, as the case may be, member of the Target Group;
19.34.4 transactions between Cable & Wireless Communications Services
Limited and members of the Target Group incorporated in the
United States of America, pursuant to existing agency
arrangements, PROVIDED THAT the consideration for the
provision of such agency arrangements is, in the reasonable
opinion of the Parent, no less than the cost (save in any
immaterial respect) incurred by Cable & Wireless
Communications Services Limited in providing such services;
19.34.5 transactions to effect either an Asset Passthrough or a
Funding Passthrough;
19.34.6 insurance arrangements entered into in the ordinary course of
business with NTL Insurance Limited (or its successor as the
captive insurance company to the UK Group);
19.34.7 tax sharing arrangements and agreements to surrender tax
losses;
19.34.8 transactions relating to the provision of Intra-Group
Services;
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19.34.9 transactions with Cable & Wireless and its subsidiaries in
relation to the Transaction Agreement;
19.34.10 transactions relating to Excess Capacity Network Services
PROVIDED THAT the price payable by any affiliates in relation
to such Excess Capacity Network Services is no less than the
cost incurred by the relevant Obligor, member of the UK Group
or, as the case may be, member of the Target Group in
providing such Excess Capacity Network Services; and
19.34.11 transactions constituted by loans or investments in any UK
Group Excluded Subsidiary or, prior to the Pushdown Date, in
any Target Group Excluded Subsidiary, where such are otherwise
permitted under this Agreement.
19.35 WORKING CAPITAL FACILITY AMENDMENTS
The Parent shall not agree any material amendments to the terms of the
Working Capital Facility and shall not voluntarily cancel or prepay all
or any part thereof,:
19.35.1 unless a replacement or substitute therefor is put in place on
terms acceptable to the Banks and it can demonstrate to the
satisfaction of the Banks that both NTL CC and it are still
able to comply with their obligations under Clause 19.21
(Working Capital Facility); or
19.35.2 an amount equal to such cancellation is invested in the Parent
by way of Subordinated Funding and thereafter by the Parent in
the other members of the UK Group by way of Parent Funding.
19.36 CHANGE IN FINANCIAL YEAR
No Obligor shall, the Parent shall procure that no member of the UK
Group shall and the CWC Parent (on and after the date on which it
becomes a party hereto) shall (prior to the Pushdown Date) procure that
no member of the Target Group shall change the end of its financial
year, other than:
19.36.1 as agreed by an Instructing Group, acting reasonably;
19.36.2 in the case of the CWC Parent and the Target, a change so that
its financial year ends on 31 May 2000 which is (after May
2001) followed by a change in its financial year so that it
ends on the same day as the Parent's financial year; or
19.36.3 so as to ensure that the financial year of any member of the
UK Group or the Target Group ends on the same date as the
financial year of the Parent.
19.37 REVISED GROUP STRUCTURE
19.37.1 The Original Borrower shall, within 30 days of the Execution
Date, deliver to the Agent the Group Structure Chart referred
to in paragraph (b) of the definition of that term;
19.37.2 If the Relevant Obligor becomes aware of any material
inaccuracy in the corporate structure as set out in either the
Group Structure Chart delivered to
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the Agent pursuant to Clause 2.5 (Conditions Precedent) or any
Group Structure Chart delivered to the Agent pursuant to this
Clause 19.37, it will deliver to the Agent as soon as
reasonably practicable thereafter a revised Group Structure
Chart which is true, complete and accurate insofar as it
relates to the corporate structure of the UK Group, the Target
Group or the NTL Holding Group.
19.38 HEDGING
The Parent will not and shall procure that no member of the UK Group
shall and, on or after the date on which it becomes a party hereto, the
CWC Parent will not and, prior to the Pushdown Date, shall procure that
no member of the Target Group shall enter into any Hedging Agreement
other than in accordance with the Hedging Strategy.
19.39 NOTIFICATION OF TARGET GROUP ASSETS
The CWC Parent and the Original Borrower shall, within twenty days of
the Acquisition Date provide the Agent with:
19.39.1 a schedule detailing the real property of the Target Group
(other than leasehold interests where a rack rent is paid by
the relevant member of the Target Group) and indicating for
each such property (a) an estimate of its current value and
(b) the nature of its use; and
19.39.2 the details of the material assets of each member of the
Target Group listed in Schedule 13 (Members of the Target
Group Granting Security), who will be providing security over
those assets in accordance with sub-clause 19.17.2 of Clause
19.17 (Post-Acquisition Date Security), to the extent that
such details are reasonably required to enable those assets to
be sufficiently identified for the purpose of effecting such
security.
Upon receipt of the schedule referred to in sub-clause 19.39.1 the
Agent (acting reasonably and in consultation with the CWC Parent) shall
determine which properties are material to the business of the Target
Group, such properties being those which will be secured in favour of
the Finance Parties pursuant to Clause 19.17 (Post-Acquisition Date
Security).
19.40 VOLUNTARY PREPAYMENTS
The Original Borrower shall not, the Parent shall not, and shall
procure that no member of the UK Group shall, and the CWC Parent (on
and after the date on which it becomes a party hereto) shall not, and
shall, prior to the Pushdown Date, procure that no member of the Target
Group shall, make any Permitted Payment under paragraph (c) of the
definition of that term which is used or intended to be used to fund a
voluntary prepayment by any member of the NTL Holding Group in respect
of all or any part of any bonds, notes or similar public debt
instruments issued by such member of the NTL Holding Group.
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20. EVENTS OF DEFAULT
Each of Clause 20.1 (Failure to Pay) to Clause 20.17 (Material Adverse
Change) describes circumstances which constitute an Event of Default
for the purposes of this Agreement. Clause 20.18 (Acceleration and
Cancellation) and Clause 20.19 (Revolving Advances Due on Demand) deal
with the rights of the Agent and the Banks after the occurrence of an
Event of Default.
20.1 FAILURE TO PAY
Any of the Obligors fails to pay any sum due from it under any of the
Finance Documents to which it is a party at the time, in the currency
and in the manner specified therein unless:
20.1.1 the sum is of a principal amount which was not paid as a
result of a technical error or failure in the transmission of
funds and that payment is then received by the Agent within
one Business Day of the due date;
20.1.2 the sum is of an amount of interest and that payment is then
received by the Agent within three Business Days of the due
date; or
20.1.3 the sum is of an amount other than principal or interest and
that payment is then received by the Agent within five
Business Days of the due date.
20.2 MISREPRESENTATION
Any representation or statement made or repeated by NTL CC, the Parent,
the CWC Parent or any Obligor in any of the Finance Documents or in any
notice or other document or certificate delivered by it pursuant
thereto or in connection therewith is or proves to have been incorrect
or misleading in any material respect when made or deemed to be made
and the circumstances giving rise to such inaccuracy, if capable of
remedy or change, are not remedied or do not change, such that the
relevant representation or statement would be correct and not
misleading if repeated five Business Days after the earlier of (a) it
being notified by the Agent to NTL CC in the case of a representation
or statement by NTL CC, and to the Group Representative in all other
cases, as having been made inaccurately and (b) NTL CC, the Parent, the
CWC Parent or the relevant Obligor becoming aware of such inaccuracy.
20.3 SPECIFIC COVENANTS
NTL CC, the Parent, the CWC Parent or any of the Obligors fails to
comply with any of its obligations under Clause 17 (Financial
Information) or Clause 19 (Covenants). No Event of Default under this
Clause 20.3 (Specific Covenants) shall occur in relation to:
20.3.1 Clause 17.1 (Annual Statements) to Clause 17.9 (Other
Financial Information) or Clause 17.11 (General Information)
to Clause 17.13 (Acquisition Information), if the failure to
comply with such is remedied within five Business Days of the
Agent giving notice thereof to the Group Representative;
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20.3.2 Clause 19 (Covenants), if the failure to comply with such is
capable of remedy and is remedied within five Business Days of
the date on which NTL CC, the Parent, the CWC Parent or, as
the case may be, the relevant Obligor became aware of such
failure to comply PROVIDED THAT a breach of any of the
obligations under Clause 19.2 (Claims Pari Passu), Clause 19.3
(Legal Validity), 19.8 (Conduct Business in Accordance with
Licences), 19.16 (Acquisition Date Security), Clause 19.17
(Post Acquisition Date Security), sub-clause 19.19.1 of Clause
19.19 (Pushdown), Clause 19.23 (Negative Pledge), Clause 19.24
(Loans and Guarantees), Clause 19.25 (Disposals), Clause 19.27
(Restricted Payments), Clause 19.28 (Acquisitions and
Investments), Clause 19.30 (Mergers), Clause 19.34
(Transactions with Affiliates) and Clause 19.40 (Voluntary
Prepayments), shall immediately give rise to an Event of
Default; and
20.3.3 Clause 19.4 (Insurance) to Clause 19.12 (Preservations of
Assets) or Clause 19.34 (Transactions with Affiliates), if the
failure to comply with such is attributable to a member of the
Target Group, is capable of remedy and is remedied within
thirty days of the date on which either NTL CC or the Parent
becomes aware of such failure to comply PROVIDED THAT this
sub-clause 20.3.3 shall cease to apply after the date falling
twenty weeks after the Acquisition Date.
20.4 OTHER OBLIGATIONS
NTL CC, the Parent, the CWC Parent or any of the Obligors fails duly to
perform or comply with any other obligation expressed to be assumed by
it in any of the Finance Documents and such failure is not remedied
within thirty days after the Agent has given notice thereof to NTL CC,
the Parent, the CWC Parent or, in the case of any Obligor, the Group
Representative.
20.5 FINANCIAL CONDITION
At any time any of the requirements of Clause 18.1 (Target Group
Financial Condition) or Clause 18.2 (UK Group Financial Condition) is
not satisfied.
20.6 CROSS DEFAULT
Any:
20.6.1 Financial Indebtedness of any Obligor or of any other member
of the UK Group or, after the Acquisition Date and prior to
the Pushdown Date of any other member of the Target Group is
not paid when due and payable, after taking account of any
applicable grace period, or, if payable on demand (after
taking account of any applicable grace period), is not paid on
demand;
20.6.2 Financial Indebtedness of any Obligor or of any other member
of the UK Group or, after the Acquisition Date and prior to
the Pushdown Date of any other member of the Target Group is
declared to be or otherwise becomes due and payable prior to
its specified maturity by reason of a default by the
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relevant Obligor or other member of the UK Group or Target
Group (as the case may be) (after taking account of any
applicable grace period);
20.6.3 commitment for any Financial Indebtedness of any Obligor, or
of any other member of the UK Group or, after the Acquisition
Date and prior to the Pushdown Date, of any other member of
the Target Group is cancelled or suspended by reason of a
default by the relevant Obligor or other member of the UK
Group or Target Group (as the case may be); or
20.6.4 creditor or creditors of any Obligor or of any other member of
the UK Group or after the Acquisition Date and prior to the
Pushdown Date, of any other member of the Target Group becomes
entitled (by reason of default) to declare any Financial
Indebtedness of such Obligor or other member of the UK Group
or Target Group (as the case may be) due and payable prior to
its specified maturity by reason of default by the relevant
Obligor or other member of the UK Group or Target Group (as
the case may be) after taking account of any applicable grace
period,
save that this Clause shall not apply to any Financial Indebtedness of
any Obligor or of any other member of the UK Group or prior to the
Pushdown Date, of any other member of the Target Group where such
Financial Indebtedness or demand in relation thereto (a) is Existing
Target Indebtedness PROVIDED THAT if any such Existing Target
Indebtedness is accelerated or otherwise becomes due and payable it is
repaid in full by the earlier of 5 Business Days after the demand for
repayment or the end of the grace period contractually provided for in
respect thereof (and the Revolving Facility may be utilised for such
purpose), (b) is cash collateralised and such cash is available for
application in satisfaction of such Financial Indebtedness, (c) is
being contested in good faith by appropriate action or (d) when
aggregated with all such Financial Indebtedness of the Obligors and any
other members of the UK Group or prior to the Pushdown Date of any
members of the Target Group does not exceed an aggregate of L20,000,000
(or its equivalent in other currencies).
20.7 INSOLVENCY AND RESCHEDULING
If (a) NTL CC; (b) any Obligor; (c) on or prior to the Pushdown Date,
any member of the UK Group or (d) prior to all of the members of the
Target Group required to become Guarantors in accordance with Clause
19.17 (Post-Acquisition Date Security) having done so, any member of
the Target Group:
20.7.1 is unable to pay its debts as they fall due;
20.7.2 commences negotiations with any one or more of its creditors
with a view to the general readjustment or rescheduling of its
indebtedness (other than as part of a solvent reorganisation
of NTL CC or the relevant Obligor, member of the UK Group or
member of the Target Group, on terms which have been approved
in writing by the Agent, acting on the instructions of an
Instructing Group);
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20.7.3 makes a general assignment for the benefit of or a composition
with its creditors; or
20.7.4 has a moratorium declared in respect of any of its
indebtedness.
20.8 WINDING-UP
If (a) NTL CC; (b) any Obligor; (c) on or prior to the Pushdown Date,
any member of the UK Group or (d) prior to all of the members of the
Target Group required to become Guarantors in accordance with Clause
19.17 (Post-Acquisition Date Security) having done so, any member of
the Target Group takes any corporate action or other steps are taken or
legal proceedings are started and served for its winding-up,
dissolution, administration or re-organisation whether by way of
voluntary arrangement, scheme of arrangement or otherwise or for the
appointment of a liquidator, receiver, administrator, administrative
receiver, conservator, custodian, trustee or similar officer of it or
of its revenues and assets PROVIDED THAT it shall not constitute an
Event of Default if:
20.8.1 such action, steps or proceedings relate to a solvent
liquidation or re-organisation of a member of the UK Group or,
prior to the Pushdown Date, of a member of the Target Group
which, in either case is not an Obligor, or are on terms which
have been approved in writing by the Agent, acting on the
instructions of an Instructing Group; or
20.8.2 such action, steps or proceedings (a) are frivolous or
vexatious, (b) do not relate to the appointment of an
administrator (or its equivalent in any other jurisdiction)
and (c) are contested in good faith by appropriate legal
action and are stayed or discharged within thirty days of
their commencement.
20.9 EXECUTION OR DISTRESS
Any execution or distress is levied against, or an encumbrancer takes
possession of, the whole or any part of, the property, undertaking or
assets of (a) NTL CC; (b) any Obligor; (c) on or prior to the Pushdown
Date, any member of the UK Group or (d) prior to all of the members of
the Target Group required to become Guarantors in accordance with
Clause 19.17 (Post-Acquisition Date Security) having done so, any
member of the Target Group where:
20.9.1 the aggregate value of such assets exceeds L250,000; and
20.9.2 such execution, distress or possession is not discharged
within thirty days.
20.10 ANALOGOUS EVENTS
Any event occurs which under the laws of any jurisdiction has a similar
or analogous effect to any of those events mentioned in Clause 20.7
(Insolvency and Rescheduling), Clause 20.8 (Winding-up) or Clause 20.9
(Execution or Distress).
20.11 GOVERNMENTAL INTERVENTION
By or under the authority of any government, (a) the management of any
Obligor or, prior to the Pushdown Date, any member of the UK Group is
wholly or partially
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displaced or the authority of any Obligor or, prior to the Pushdown
Date, any member of the UK Group in the conduct of a material part of
its business is wholly or partially curtailed or (b) all or a majority
of the issued shares of any Obligor or, prior to the Pushdown Date, any
member of the UK Group or the whole or any substantial part of its
revenues or assets is seized, nationalised, expropriated or
compulsorily acquired, in each case where such is not remedied to the
satisfaction of the Agent within thirty days of the relevant event
occurring.
20.12 REPUDIATION
20.12.1 NTL CC or any Obligor repudiates any of the Finance Documents;
or
20.12.2 the security intended to be created by, or the subordination
effected under, the Finance Documents is not or ceases to be
legal and valid and (except as contemplated by the
Reservations or, if capable of remedy, such as is remedied
within five Business Days of the earlier of (a) notice of the
relevant event by the Agent to the Group Representative and
(b) the date on which NTL CC or the relevant Obligor becomes
aware of such event) binding and enforceable.
20.13 ILLEGALITY
At any time it is or becomes unlawful for NTL CC or any of the Obligors
to perform or comply with any or all of its obligations under any of
the Finance Documents to which it is a party or any of the obligations
of NTL CC or any of the Obligors thereunder are not or cease to be
legal, valid and (except as contemplated by the Reservations or, if
capable of remedy, such as is remedied within five Business Days of the
earlier of (a) notice of the relevant event by the Agent to the Group
Representative and (b) the date on which NTL CC or, as the case may be,
the relevant Obligor becomes aware of such event) binding and
enforceable.
20.14 ASSET ADJUSTMENT PAYMENTS
If, following a member of the Target Group having made an Asset
Adjustment Payment within paragraph (a) of the definition thereof, NTL
Holdings fails to procure that an amount equal to such an Asset
Adjustment Payment is (in accordance with the other terms of this
Agreement) reimbursed to that member of the Target Group on or before
the date which is the earlier of:
20.14.1 ten Business Days after the date on which NTL Holdings
receives a reimbursement from Cable & Wireless for such an
Asset Adjustment Payment; and
20.14.2 thirty Business Days after the date on which such an Asset
Adjustment Payment is made,
PROVIDED THAT the aggregate amount of Asset Adjustment Payments for
which members of the Target Group have not been reimbursed in
accordance with this Clause 20.14 exceeds L10,000,000 (or its
equivalent).
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20.15 DEBT ADJUSTMENT PAYMENTS
If, following a Debt Adjustment Payment having being made to NTL
Holdings (or any other member of the Group) in accordance with
paragraph (a) of the definition thereof, NTL Holdings fails to procure
that an amount equal to such a Debt Adjustment Payment is (in
accordance with the other terms of this Agreement) invested in the
Target Group or the Original Borrower by the date which is:
20.15.1 in respect of Debt Adjustment Payments anticipated on the
Execution Date, ten Business Days after the date on which NTL
Holdings receives such a Debt Adjustment Payment; and
20.15.2 in respect of all other Debt Adjustment Payments, thirty
Business Days after the date on which NTL Holdings receives
such a Debt Adjustment Payment,
PROVIDED THAT the aggregate amount of Debt Adjustment Payments for
which members of the Target Group or the Original Borrower have not
been reimbursed in accordance with this Clause 20.15 exceeds
L10,000,000 (or its equivalent).
20.16 COVENANT GROUP CROSS DEFAULT
Any Permitted Covenant Group Indebtedness is not paid when due and
payable (after taking into account any applicable grace period) or (by
reason of the occurrence of a default) is declared to be or otherwise
becomes due and payable prior to its specified maturity or any holder
or any creditor in respect of any such Financial Indebtedness becomes
entitled to declare such Financial Indebtedness due and payable prior
to its specified maturity save that this clause shall not apply to any
Financial Indebtedness of any member of the Covenant Group where such
Financial Indebtedness when aggregated with all such Financial
Indebtedness of any members of the Covenant Group does not exceed an
aggregate of L20,000,000 (or its equivalent)
20.17 MATERIAL ADVERSE CHANGE
Any event or circumstance which would have a Material Adverse Effect
occurs.
20.18 ACCELERATION AND CANCELLATION
Upon the occurrence of an Event of Default and at any time thereafter
whilst such event is continuing, the Agent may (and, if so instructed
by an Instructing Group, shall) by written notice to the Relevant
Obligor:
20.18.1 declare the Revolving Advances to be immediately due and
payable (whereupon the same shall become so payable together
with accrued interest thereon and any other sums then owed by
the Borrowers hereunder) or declare the Revolving Advances to
be due and payable on demand of the Agent; and/or
20.18.2 declare that any undrawn portion of the Revolving Facility
shall be cancelled, whereupon the same shall be cancelled and
the Available Commitment of each Bank shall be reduced to
zero; and/or
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20.18.3 exercise or direct the Security Trustee to exercise (on its
own behalf and on behalf of the Banks) all rights and remedies
of a mortgagee or a secured party at such time and (without
limitation), subject to the Security Documents and to the
extent permitted by applicable law, (a) foreclose on any or
all of the assets subject to the Security by any available
judicial procedure, (b) take possession of any or all of the
assets subject to the Security and the books and records
relating thereto, with or without judicial process and/or (c)
enter any premises where any assets subject to the Security,
or any books and records relating thereto, are located and
take possession of and remove the same therefrom.
20.19 REVOLVING ADVANCES DUE ON DEMAND
If, pursuant to Clause 20.18 (Acceleration and Cancellation), the Agent
declares the Revolving Advances to be due and payable on demand of the
Agent, then, and at any time thereafter, the Agent may (and, if so
instructed by an Instructing Group, shall) by written notice to the
Parent:
20.19.1 require repayment of the Revolving Advances on such date as it
may specify in such notice (whereupon the same shall become
due and payable on such date together with accrued interest
thereon and any other sums then owed by the Borrowers
hereunder) or withdraw its declaration with effect from such
date as it may specify in such notice; and/or
20.19.2 select as the duration of any Term which begins whilst such
declaration remains in effect a period of six months or less;
and/or
20.19.3 exercise or direct the Security Trustee to exercise (on its
own behalf and on behalf of the Banks) all rights and remedies
of a mortgagee or a secured party in accordance with
sub-clause 20.18.3 of Clause 20.18 (Acceleration and
Cancellation).
21. GUARANTEE AND INDEMNITY
21.1 GUARANTEE AND INDEMNITY
Each of the Guarantors irrevocably and unconditionally jointly and
severally:
21.1.1 guarantees to each Finance Party the due and punctual
observance and performance of all the terms, conditions and
covenants on the part of each Borrower contained in the
Finance Documents and agrees to pay from time to time on
demand any and every sum or sums of money which each Borrower
is at any time liable to pay to any Finance Party under or
pursuant to the Finance Documents and which has become due and
payable but has not been paid at the time such demand is made;
and
21.1.2 agrees as a primary obligation to indemnify each Finance Party
from time to time on demand from and against any loss incurred
by any Finance Party as a result of any of the obligations of
each Borrower under or pursuant to the Finance Documents being
or becoming void, voidable, unenforceable or ineffective as
against such Borrower for any reason whatsoever, whether or
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not known to any Finance Party or any other person, the amount
of such loss being the amount which the person or persons
suffering it would otherwise have been entitled to recover
from such Borrower.
21.2 ADDITIONAL SECURITY
The obligations of each Guarantor herein contained shall be in addition
to and independent of every other security which any Finance Party may
at any time hold in respect of any of any Obligor's obligations under
the Finance Documents.
21.3 CONTINUING OBLIGATIONS
The obligations of each Guarantor herein contained shall constitute and
be continuing obligations notwithstanding any settlement of account or
other matter or thing whatsoever and shall not be considered satisfied
by any intermediate payment or satisfaction of all or any of the
obligations of the Borrowers under the Finance Documents and shall
continue in full force and effect until final payment in full of all
amounts owing by any Borrower under the Finance Documents and total
satisfaction of all the Borrowers' actual and contingent obligations
under the Finance Documents.
21.4 OBLIGATIONS NOT DISCHARGED
Neither the obligations of each Guarantor herein contained nor the
rights, powers and remedies conferred in respect of each Guarantor upon
any Finance Party by the Finance Documents or by law shall be
discharged, impaired or otherwise affected by:
21.4.1 the winding-up, dissolution, administration or re-organisation
of any Obligor or any other person or any change in its
status, function, control or ownership;
21.4.2 any of the obligations of any Obligor or any other person
under the Finance Documents or under any other security taken
in respect of any of its obligations under the Finance
Documents being or becoming illegal, invalid, unenforceable or
ineffective in any respect;
21.4.3 time or other indulgence being granted or agreed to be granted
to any Obligor or any other person in respect of its
obligations under the Finance Documents or under any such
other security;
21.4.4 any amendment to, or any variation, waiver or release of, any
obligation of any Obligor or any other person under the
Finance Documents or under any such other security;
21.4.5 any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken in respect
of any Obligor's obligations under the Finance Documents;
21.4.6 any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any
security taken in respect of any Obligor's obligations under
the Finance Documents; or
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21.4.7 any other act, event or omission which, but for this Clause
21.4, might operate to discharge, impair or otherwise affect
any of the obligations of each Guarantor herein contained or
any of the rights, powers or remedies conferred upon any of
the Finance Parties by the Finance Documents or by law.
21.5 SETTLEMENT CONDITIONAL
Any settlement or discharge between a Guarantor and any of the Finance
Parties shall be conditional upon no security or payment to any Finance
Party by an Obligor or any other person on behalf of an Obligor being
avoided or reduced by virtue of any laws relating to bankruptcy,
insolvency, liquidation or similar laws of general application and, if
any such security or payment is so avoided or reduced, each Finance
Party shall be entitled to recover the value or amount of such security
or payment from such Guarantor subsequently as if such settlement or
discharge had not occurred.
21.6 EXERCISE OF RIGHTS
No Finance Party shall be obliged before exercising any of the rights,
powers or remedies conferred upon them in respect of any Guarantor by
the Finance Documents or by law:
21.6.1 to make any demand of any Obligor (save where such demand is
expressly required by the terms of the Finance Documents);
21.6.2 to take any action or obtain judgment in any court against any
Obligor;
21.6.3 to make or file any claim or proof in a winding-up or
dissolution of any Obligor; or
21.6.4 to enforce or seek to enforce any other security taken in
respect of any of the obligations of any Obligor under the
Finance Documents.
21.7 DEFERRAL OF GUARANTORS' RIGHTS
Until all amounts which may be or become payable by the Borrowers under
or in connection with the Finance Documents have been irrevocably paid
in full and unless the Agent otherwise directs, no Guarantor will
exercise any rights which it may have by reason of performance by it of
its obligations under the Finance Documents:
21.7.1 to be indemnified by an Obligor; and/or
21.7.2 to claim any contribution from any other guarantor of any
obligations of any Borrower under the Finance Documents;
and/or
21.7.3 to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or
security taken pursuant to, or in connection with, the Finance
Documents by any Finance Party.
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21.8 APPROPRIATIONS
Until all amounts which may be or become payable by the Borrowers under
or in connection with the Finance Documents have been irrevocably paid
in full, each Finance Party (or any trustee or agent on its behalf)
may:
21.8.1 refrain from applying or enforcing any other moneys, security
or rights held or received by that Finance Party (or any
trustee or agent on its behalf) in respect of those amounts,
or apply and enforce the same in such manner and order as it
sees fit (whether against those amounts or otherwise) and no
Guarantor shall be entitled to the benefit of the same; and
21.8.2 hold in an interest-bearing suspense account any moneys
received from any Guarantor or on account of any Guarantor's
liability under this Clause 21.
21.9 LIABILITY OF GROUP FOR TARGET GROUP
Notwithstanding any other provision of the Finance Documents, no member
of the Group (other than the Original Borrower and any member of the
Target Group) shall, prior to the Pushdown Date, be liable for or in
respect of, or to procure the performance of, any obligations of the
Original Borrower or of any members of the Target Group nor, prior to
the Pushdown Date, shall there be any recourse to a member of the Group
(other than the Original Borrower and any member of the Target Group)
for any representation, warranty or certification made in respect of
the Original Borrower or any member of the Target Group or any
document, circumstances or matter pertaining to any member of the
Target Group or the Original Borrower nor prior to the Pushdown Date,
shall any member of the Group (other than the Original Borrower and any
member of the Target Group) be liable for any commitment commission or
costs, expenses or taxes arising in connection with the availability of
the Revolving Facility or the utilisation of the Revolving Facility by
the Original Borrower or any member of the Target Group nor, prior to
the Pushdown Date, shall any of the Finance Parties exercise any right
to consolidate or set-off credit balances maintained by any member of
the Group (other than the Original Borrower or any member of the Target
Group) against any obligations or liabilities of the Original Borrower
or any member of the Target Group.
22. COMMITMENT COMMISSION AND FEES
22.1 COMMITMENT COMMISSION ON THE REVOLVING FACILITY
The Borrowers, acting through the Relevant Obligor, shall pay to the
Agent for the account of each Bank in respect of each Commitment Period
(as defined below) a commitment commission calculated at the rate per
annum determined pursuant to Clause 22.2 (Rate of Commitment Commission
for the Revolving Facility) on an amount equal to the average daily
Available Commitments during such Commitment Period.
22.2 RATE OF COMMITMENT COMMISSION FOR THE REVOLVING FACILITY
The applicable rate of commitment commission for any Commitment Period
in respect of the Revolving Facility shall be determined by reference
to the average daily utilisation of the Revolving Facility during such
Commitment Period expressed as a
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percentage of the average daily Commitment during such Commitment
Period and in accordance with the following scale:
AVERAGE DAILY UTILISATION AS PERCENTAGE APPLICABLE RATE OF
OF AVERAGE DAILY COMMITMENT COMMITMENT COMMISSION
Up to and including 50 per cent. 0.75 per cent.
Over 50 per cent. 0.50 per cent.
22.3 DEFINITIONS AND AVERAGE CALCULATIONS
For the purposes of Clauses 22.1 (Commitment Commission on the
Revolving Facility) and Clause 22.2 (Rate of Commitment Commission for
the Revolving Facility):
22.3.1 "COMMITMENT PERIOD" means each successive period of three
months during the period beginning on the date hereof and
ending on the date falling one month before Final Maturity
Date PROVIDED THAT (a) if such a period would otherwise extend
beyond the next succeeding Reduction Date it shall be
shortened so as to end on that date and (b) if the last such
period would otherwise extend beyond the Final Maturity Date
it shall be shortened so as to end on that date.
22.3.2 The average daily utilisation of the Revolving Facility during
a Commitment Period shall equal the sum of all Revolving
Advances made by the Banks and outstanding on each day during
such Commitment Period, divided by the number of days in such
Commitment Period.
22.3.3 The average daily Commitments during a Commitment Period shall
equal the aggregate of the Commitments on each day during such
Commitment Period divided by the number of days in such
Commitment Period.
22.3.4 The average daily Available Commitments during a Commitment
Period shall equal the aggregate of the Available Commitments
on each day during such Commitment Period divided by the
number of days in such Commitment Period.
22.4 PAYMENT OF COMMITMENT COMMISSION
The Agent shall promptly after the end of each Commitment Period notify
the Relevant Obligor (on behalf of the Borrowers) and the Banks of the
amounts payable by the Borrowers under Clause 22.1 (Commitment
Commission on the Revolving Facility) in respect of such Commitment
Period and the Borrowers, acting through the Relevant Obligor, shall
pay such amount to the Agent for account of the Banks pro rata to each
Bank's Commitment hereunder from time to time during the applicable
Commitment Period within five Business Days of such notification.
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22.5 AGENCY AND OTHER FEES
The Relevant Obligor shall:
22.5.1 pay (or shall procure that the Borrowers shall pay) to the
Agent for its own account the agency fees specified in the
letter dated 16 May 2000 from the Agent to NTL Inc. and the
Parent at the times, and in the amounts, specified in such
letter; and
22.5.2 pay (or shall procure that the Borrowers shall pay) to the
Arrangers the fees specified in the letter dated 17 May 2000
from the Arrangers (and others) to NTL Inc. and the Parent
(and the attachments thereto) at the times, and in the
amounts, specified in such letters.
23. COSTS AND EXPENSES
23.1 TRANSACTION EXPENSES
The Borrowers (acting through the Relevant Obligor) shall, from time to
time on demand of the Agent, reimburse each of the Agent and the
Arrangers for all reasonable costs and expenses (including legal fees)
together with any VAT thereon incurred by it in connection with the
negotiation, preparation and execution of the Finance Documents, any
other document referred to in the Finance Documents and the completion
of the transactions therein contemplated.
23.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Borrowers, acting through the Relevant Obligor shall, from time to
time on demand of the Agent, reimburse the Finance Parties for all
costs and expenses (including legal fees) on a full indemnity basis
together with any VAT thereon incurred in or in connection with the
preservation and/or enforcement of any of the rights of the Finance
Parties under the Finance Documents and any document referred to in the
Finance Documents (including, without limitation, any costs and
expenses reasonably incurred in relation to any investigation as to
whether or not an Event of Default might have occurred or is likely to
occur or any steps necessary or desirable in connection with any
proposal for remedying or otherwise resolving an Event of Default or
Potential Event of Default).
23.3 STAMP TAXES
The Borrowers, acting through the Relevant Obligor, shall pay all
stamp, registration and other taxes to which the Finance Documents or
any judgment given in connection therewith is or at any time may be
subject and shall, from time to time on demand of the Agent, indemnify
the Finance Parties against any liabilities, costs, claims and expenses
resulting from any failure to pay or any delay in paying any such tax.
23.4 AMENDMENT COSTS
If an Obligor requests any amendment, waiver or consent then the
Borrowers, acting through the Relevant Obligor, shall, within five
Business Days of demand by the Agent, reimburse the Finance Parties for
all costs and expenses (including legal fees) together with any VAT
thereon reasonably incurred by such person in responding to or
complying with such request.
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23.5 BANKS' LIABILITIES FOR COSTS
If any of the Borrowers fail to perform any of its obligations under
this Clause 23, each Bank shall, in its Proportion, indemnify each of
the Agent and the Arrangers against any loss incurred by any of them as
a result of such failure.
24. DEFAULT INTEREST AND BREAK COSTS
24.1 DEFAULT INTEREST PERIODS
If any sum due and payable by an Obligor hereunder is not paid on the
due date therefor in accordance with Clause 27 (Payments) or if any sum
due and payable by an Obligor under any judgment of any court in
connection herewith is not paid on the date of such judgment, the
period beginning on such due date or, as the case may be, the date of
such judgment and ending on the date upon which the obligation of such
Obligor to pay such sum is discharged shall be divided into successive
periods, each of which (other than the first) shall start on the last
day of the preceding such period and the duration of each of which
shall (except as otherwise provided in this Clause 24) be selected by
the Agent.
24.2 DEFAULT INTEREST
An Unpaid Sum shall bear interest during each Term in respect thereof
at the rate per annum which is one per cent. per annum above the
percentage rate which would apply if such Unpaid Sum had been a
Revolving Advance in the amount and currency of such Unpaid Sum and for
the same Term, PROVIDED THAT if such Unpaid Sum relates to a Revolving
Advance which became due and payable on a day other than the last day
of a Term relating thereto:
24.2.1 the first Term applicable to such Unpaid Sum shall be of a
duration equal to the unexpired portion of the current Term
relating to that Revolving Advance; and
24.2.2 the percentage rate of interest applicable thereto from time
to time during such period shall be that which exceeds by one
per cent. the rate which would have been applicable to it had
it not so fallen due, save that the Margin shall be, or be
deemed to be, 2.25 per cent. per annum.
24.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under Clause 24.2 (Default
Interest) in respect of an Unpaid Sum shall be due and payable and
shall be paid by the Obligor owing such Unpaid Sum on the last day of
its Term in respect thereof or on such other dates as the Agent may
specify by notice to such Obligor.
24.4 BREAK COSTS
If any Bank or the Agent on its behalf receives or recovers all or any
part of such Bank's share of a Revolving Advance or Unpaid Sum
otherwise than on the last day of the Term thereof, the Borrowers
(acting through the Relevant Obligor) shall pay to the Agent on demand
for account of such Bank an amount equal to the amount (if any) by
which (a) the additional interest which would have been payable on the
amount so received or recovered had it been received or recovered on
the last day of that Term
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exceeds (b) the amount of interest which in the opinion of the Agent
would have been payable to the Agent on the last day of that Term in
respect of a deposit in the currency of the amount so received or
recovered equal to the amount so received or recovered placed by it
with a prime bank in London for a period starting on the Business Day
following the date of such receipt or recovery and ending on the last
day of that Term.
25. BORROWERS' INDEMNITIES
25.1 BORROWERS' INDEMNITY
The Borrowers, acting through the Relevant Obligor, undertake to
indemnify:
25.1.1 each Finance Party against any cost, claim, loss, expense
(including legal fees) or liability together with any VAT
thereon, which it may sustain or incur as a consequence of the
occurrence of any Event of Default or any default by any
Obligor in the performance of any of the obligations expressed
to be assumed by it in the Finance Documents;
25.1.2 each Bank against any cost or loss it may suffer under Clause
23.5 (Banks' Liabilities for Costs) or Clause 30.5
(Indemnification); and
25.1.3 each Bank against any cost or loss it may suffer or incur as a
result of its funding or making arrangements to fund its
portion of a Revolving Advance requested by any Borrower but
not made by reason of the operation of any one or more of the
provisions hereof.
25.2 CURRENCY INDEMNITY
If any sum (a "SUM") due from an Obligor under the Finance Documents or
any order or judgment given or made in relation thereto has to be
converted from the currency (the "FIRST CURRENCY") in which such Sum is
payable into another currency (the "SECOND CURRENCY") for the purpose
of:
25.2.1 making or filing a claim or proof against such Obligor;
25.2.2 obtaining or enforcing an order or judgment in any court or
other tribunal,
the Borrowers, acting through the Relevant Obligor, shall indemnify
each person to whom such Sum is due from and against any loss suffered
or incurred as a result of any discrepancy between (a) the rate of
exchange used for such purpose to convert such Sum from the First
Currency into the Second Currency and (b) the rate or rates of exchange
available to such person at the time of receipt of such Sum.
26. CURRENCY OF ACCOUNT AND PAYMENT
Sterling is the currency of account and payment for each and every sum
at any time due from an Obligor hereunder, PROVIDED THAT:
26.1.1 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred; and
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26.1.2 each payment pursuant to Clause 11.2 (Tax Indemnity), Clause
13.1 (Increased Costs) or Clause 25 (Borrowers' Indemnities)
shall be made in the currency specified by the party claiming
thereunder.
27. PAYMENTS
27.1 NOTIFICATION OF PAYMENTS
Without prejudice to the liability of each party hereto promptly to pay
each amount owing by it hereunder on the due date therefor, whenever a
payment is expected to be made by any of the parties hereto, the Agent
shall, at least two Business Days prior to the expected date for such
payment, notify all the parties hereto of the amount, currency and
timing of such payment and the identity of the party liable to make
such payment.
27.2 PAYMENTS TO THE AGENT
On each date on which this Agreement requires an amount to be paid by
an Obligor or a Bank, such Obligor or, as the case may be, such Bank
shall make the same available to the Agent for value on the due date at
such time and in such funds and to such account with such bank as the
Agent shall (acting reasonably) specify from time to time.
27.3 PAYMENTS BY THE AGENT
27.3.1 Save as otherwise provided herein, each payment received by
the Agent pursuant to Clause 27.2 (Payments to the Agent)
shall:
(a) in the case of a payment received for the account of
a Borrower, be made available by the Agent to such
Borrower by application:
(i) FIRST, in or towards payment on the same day
of any amount then due from such Borrower
hereunder to the person from whom the amount
was so received; and
(ii) SECONDLY, in or towards payment on the same
day to the account of such Borrower with
such bank in London as such Borrower shall
have previously notified to the Agent for
this purpose; and
(b) in the case of any other payment, be made available
by the Agent to the person entitled to receive such
payment in accordance with this Agreement (in the
case of a Bank, for the account of its Facility
Office) for value the same day by transfer to such
account of such person with such bank in London as
such person shall have previously notified to the
Agent.
27.3.2 A payment will be deemed to have been made by the Agent on the
date on which it is required to be made under this Agreement
if the Agent has, on or before that date, taken steps to make
that payment in accordance with the regulations or operating
procedures of the clearing or settlement system used by the
Agent in order to make the payment.
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27.4 NO SET-OFF
All payments required to be made by an Obligor hereunder shall be
calculated without reference to any set-off or counterclaim and shall
be made free and clear of and without any deduction for or on account
of any set-off or counterclaim.
27.5 CLAWBACK
Where a sum is to be paid hereunder to the Agent for account of another
person, the Agent shall not be obliged to make the same available to
that other person until it has been able to establish to its
satisfaction that it has actually received such sum, but if it does so
and it proves to be the case that it had not actually received such
sum, then the person to whom such sum was so made available shall on
request refund the same to the Agent together with an amount sufficient
to indemnify the Agent against any cost or loss it may have suffered or
incurred by reason of its having paid out such sum prior to its having
received such sum.
27.6 PARTIAL PAYMENTS
If and whenever a payment is made by an Obligor hereunder and the Agent
receives an amount less than the due amount of such payment the Agent
may apply the amount received towards the obligations of that Obligor
under this Agreement in the following order:
27.6.1 FIRST, in or towards payment of any unpaid costs and expenses
of the Agent;
27.6.2 SECONDLY, in or towards payment pro rata of any accrued
interest or commitment commission due but unpaid;
27.6.3 THIRDLY, in or towards payment pro rata of any principal due
but unpaid; and
27.6.4 FOURTHLY, in or towards payment pro rata of any other sum due
but unpaid.
27.7 VARIATION OF PARTIAL PAYMENTS
The order of partial payments set out in Clause 27.6 (Partial Payments)
shall override any appropriation made by the Obligor to which the
partial payment relates but the order set out in sub-clauses 27.6.2,
27.6.3 and 27.6.4 of Clause 27.6 (Partial Payments) may be varied if
agreed by all the Banks.
27.8 BUSINESS DAYS
27.8.1 Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the
same calendar month (if there is one) or the preceding
Business Day (if there is not).
27.8.2 During any extension of the due date for payment of any
principal or an Unpaid Sum under this Agreement interest is
payable on the principal at the rate payable on the original
due date.
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28. SET-OFF
28.1 CONTRACTUAL SET-OFF
Each Obligor authorises each Bank, at any time any sum is due and
payable hereunder and remains unpaid, to apply any credit balance to
which such Obligor is entitled on any account of such Obligor with such
Bank in satisfaction of any sum due and payable from such Obligor to
such Bank under the Finance Documents but unpaid. For this purpose,
each Bank is authorised to purchase with the moneys standing to the
credit of any such account such other currencies as may be necessary to
effect such application.
28.2 SET-OFF NOT MANDATORY
No Bank shall be obliged to exercise any right given to it by Clause
(Contractual Set-off).
29. SHARING
29.1 PAYMENTS TO BANKS
If a Bank (a "RECOVERING BANK") applies any receipt or recovery from an
Obligor to a payment due under this Agreement and such amount is
received or recovered other than in accordance with Clause 27
(Payments), then such Recovering Bank shall:
29.1.1 notify the Agent of such receipt or recovery;
29.1.2 at the request of the Agent, promptly pay to the Agent an
amount (the "SHARING PAYMENT") equal to such receipt or
recovery less any amount which the Agent determines may be
retained by such Recovering Bank as its share of any payment
to be made in accordance with Clause 27.6 (Partial Payments).
29.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Bank) in accordance with Clause 27.6 (Partial
Payments).
29.3 RECOVERING BANK'S RIGHTS
The Recovering Bank will be subrogated into the rights of the parties
which have shared in a redistribution pursuant to Clause 29.2
(Redistribution of Payments) in respect of the Sharing Payment (and the
relevant Obligor shall be liable to the Recovering Bank in an amount
equal to the Sharing Payment).
29.4 REPAYABLE RECOVERIES
If any part of the Sharing Payment received or recovered by a
Recovering Bank becomes repayable and is repaid by such Recovering
Bank, then:
29.4.1 each party which has received a share of such Sharing Payment
pursuant to Clause 29.2 (Redistribution of Payments) shall,
upon request of the Agent, pay to the Agent for account of
such Recovering Bank an amount equal to its share of such
Sharing Payment; and
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29.4.2 such Recovering Bank's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will
be liable to the reimbursing party for the amount so
reimbursed.
29.5 EXCEPTION
This Clause 29 shall not apply if the Recovering Bank would not, after
making any payment pursuant hereto, have a valid and enforceable claim
against the relevant Obligor.
29.6 RECOVERIES THROUGH LEGAL PROCEEDINGS
If any Bank intends to commence any action in any court it shall give
prior notice to the Agent and the other Banks. If any Bank shall
commence any action in any court to enforce its rights hereunder and,
as a result thereof or in connection therewith, receives any amount,
then such Bank shall not be required to share any portion of such
amount with any Bank which has the legal right to, but does not, join
in such action or commence and diligently prosecute a separate action
to enforce its rights in another court.
30. THE AGENT, THE ARRANGERS AND THE BANKS
30.1 APPOINTMENT OF THE AGENT
Each of the Arrangers and the Banks hereby appoints the Agent to act as
its agent in connection herewith and authorises the Agent to exercise
such rights, powers, authorities and discretions as are specifically
delegated to the Agent by the terms hereof together with all such
rights, powers, authorities and discretions as are reasonably
incidental thereto.
30.2 AGENT'S DISCRETIONS
The Agent may:
30.2.1 assume, unless it has, in its capacity as agent for the Banks,
received notice to the contrary from any other party hereto,
that (a) any representation made or deemed to be made by the
Parent, the CWC Parent, NTL CC or an Obligor in connection
with the Finance Documents is true, (b) no Event of Default or
Potential Event of Default has occurred, (c) neither the
Parent, the CWC Parent, NTL CC nor any Obligor is in breach of
or default under its obligations under the Finance Documents
and (d) any right, power, authority or discretion vested
herein upon an Instructing Group, the Banks or any other
person or group of persons has not been exercised;
30.2.2 assume that (a) the Facility Office of each Bank is that
notified to it by such Bank in writing and (b) the information
provided by each Bank pursuant to Clause 37 (Notices), Clause
30.15 (Banks' Mandatory Cost Details) and Schedule 12
(Mandatory Costs) is true and correct in all respect until it
has received from such Bank notice of a change to the Facility
Office or any such information and act upon any such notice
until the same is superseded by a further notice;
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30.2.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or
services may to it seem necessary, expedient or desirable and
rely upon any advice so obtained;
30.2.4 rely as to any matters of fact which might reasonably be
expected to be within the knowledge of an Obligor upon a
certificate signed by or on behalf of such Obligor;
30.2.5 rely upon any communication or document believed by it to be
genuine;
30.2.6 refrain from exercising any right, power or discretion vested
in it as agent hereunder unless and until instructed by an
Instructing Group as to whether or not such right, power or
discretion is to be exercised and, if it is to be exercised,
as to the manner in which it should be exercised;
30.2.7 refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding
arising out of or in connection with the Finance Documents
until it shall have received such security as it may require
(whether by way of payment in advance or otherwise) for all
costs, claims, losses, expenses (including legal fees) and
liabilities together with any VAT thereon which it will or may
expend or incur in complying with such instructions; and
30.2.8 assume (unless it has specific notice to the contrary) that
any notice or request made by the Relevant Obligor is made on
behalf of all the Obligors.
30.3 AGENT'S OBLIGATIONS
The Agent shall:
30.3.1 promptly inform each Bank of the contents of any written
notice or document received by it in its capacity as Agent
from the Parent, the CWC Parent, NTL CC or an Obligor under
the Finance Documents;
30.3.2 promptly notify each Bank of the occurrence of any Event of
Default or any default by an Obligor in the due performance of
or compliance with its obligations under the Finance Documents
of which the Agent has notice from any other party hereto;
30.3.3 promptly notify each Bank of the occurrence of an Event of
Default under Clause 20.1 (Failure to Pay);
30.3.4 promptly notify each Bank of all or any part of the Revolving
Advances being declared to be immediately due and payable in
accordance with either Clause 20.18 (Acceleration and
Cancellation) or Clause 20.19 (Revolving Advances Due on
Demand);
30.3.5 save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by an Instructing
Group, which instructions shall be binding on the Arrangers
and the Banks;
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30.3.6 if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it as
agent hereunder; and
30.3.7 unless it has a Bank's consent, refrain from acting on behalf
of that Bank in any legal or arbitration proceedings relating
to any Finance Document.
The Agent's duties under the Finance Documents are solely mechanical
and administrative in nature.
30.4 EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent nor an Arranger shall:
30.4.1 be bound to enquire as to (a) whether or not any
representation made or deemed to be made by the Parent, the
CWC Parent, NTL CC or an Obligor in connection with the
Finance Documents is true, (b) the occurrence or otherwise of
any Event of Default or Potential Event of Default, (c) the
performance by either the Parent, the CWC Parent, NTL CC or an
Obligor of its obligations under the Finance Documents or (d)
any breach of or default by either the Parent, the CWC Parent,
NTL CC or an Obligor of or under its obligations under the
Finance Documents; 30.4.2 be bound to account to any Bank for
any sum or the profit element of any sum received by it for
its own account;
30.4.3 be bound to disclose to any other person any information
relating to any member of the Group if (a) such information is
confidential or (b) such disclosure would or might in its
reasonable opinion constitute a breach of any law or a breach
of fiduciary duty;
30.4.4 be under any obligations other than those for which express
provision is made herein; or
30.4.5 be or be deemed to be a fiduciary for any other party hereto.
30.5 DELEGATION
The Agent may delegate, transfer or assign to any of its holding
companies, subsidiaries or subsidiaries of any of its holding companies
all or any of the rights, powers, authorities and discretions vested in
it under the Finance Documents and the performance of its duties in
accordance therewith, and such delegation, transfer or assignment may
be made upon such terms and subject to such conditions (including the
power to sub-delegate) and subject to such regulations as the Agent may
think fit (and the term "Agent" as used in this Agreement shall include
any such delegate).
30.6 INDEMNIFICATION
Each Bank shall, in its Proportion, from time to time on demand by the
Agent, indemnify the Agent against any and all costs, claims, losses,
expenses (including legal fees) and liabilities together with any VAT
thereon which the Agent may incur, otherwise than by reason of its own
gross negligence or wilful misconduct, in acting in
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its capacity as agent under the Finance Documents (other than any which
have been reimbursed by the Borrowers pursuant to Clause 25.1
(Borrowers' Indemnity)).
30.7 EXCLUSION OF LIABILITIES
Each Bank confirms that it has read the Notice to Recipients in the
Information Memorandum, that it has complied with the Recipients'
Obligations (as set out in the Notice to Recipients) and, accordingly,
that it enters into this Agreement on the basis of the Notice to
Recipients. In particular, each of the Banks accepts that it is
entering into this Agreement in reliance only on the representations of
the Parent, the CWC Parent, NTL CC and the Obligors in this Agreement
and on its own investigations, that it has not relied on the Arrangers
and that, except as set out below, it neither has nor will have any
claims against the Arrangers arising from or in connection with this
Agreement. Similarly, each of the Banks accepts that the Notice to
Recipients in the Information Memorandum is applicable also to the
Agent as if the Agent had been named in addition to the Arrangers in
the Important Notice.
Except in the case of gross negligence or wilful default, neither the
Agent nor any Arranger accepts any responsibility to any of the Banks:
30.7.1 for the adequacy, accuracy and/or completeness of the
Information Memorandum or any other information supplied by
the Agent or the Arrangers, by the Parent, the CWC Parent, NTL
CC or an Obligor or by any other person in connection with the
Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with the Finance Documents;
30.7.2 for the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection with
the Finance Documents; or
30.7.3 for the exercise of, or the failure to exercise, any
judgement, discretion or power given to any of them by or in
connection with the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the Finance
Documents.
Accordingly, neither the Agent nor an Arranger shall be under any
liability (whether in negligence or otherwise) in respect of such
matters, save in the case of gross negligence or wilful misconduct.
30.8 NO ACTIONS
Each of the Banks agrees that it will not assert or seek to assert
against any director, officer or employee of the Agent or the Arrangers
any claim it might have against any of them in respect of the matters
referred to in Clause 30.7 (Exclusion of Liabilities).
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30.9 BUSINESS WITH THE GROUP
The Agent and the Arrangers may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any
member of the Group whether or not it may or does lead to a conflict
with the interests of any of the Banks. Similarly, the Agent or the
Arrangers may undertake business with or for others even though it may
lead to a conflict with the interests of any of the Banks.
30.10 RESIGNATION
The Agent may resign its appointment hereunder at any time without
assigning any reason therefor by giving not less than thirty days'
prior notice to that effect to each of the other parties hereto,
PROVIDED THAT no such resignation shall be effective until a successor
for the Agent is appointed in accordance with the succeeding provisions
of this Clause 30.
30.11 REMOVAL OF AGENT
An Instructing Group may, after consultation with the Relevant Obligor,
remove the Agent from its role as agent under the Finance Documents by
giving notice to that effect to each of the other parties hereto. Such
removal shall take effect only when a successor to the Agent is
appointed in accordance with the terms of the Finance Documents.
30.12 SUCCESSOR AGENT
If the Agent gives notice of its resignation pursuant to Clause 30.10
(Resignation) or it is removed pursuant to Clause 30.11 (Removal of
Agent), then any reputable and experienced bank or other financial
institution may, with the prior consent of the Relevant Obligor be
appointed as a successor to the Agent by an Instructing Group during
the period of such notice but, if no such successor is so appointed,
the Agent may appoint such a successor itself.
30.13 RIGHTS AND OBLIGATIONS
If a successor to the Agent is appointed under the provisions of Clause
30.12 (Successor Agent), then (a) the retiring or departing Agent shall
be discharged from any further obligation under the Finance Documents
but shall remain entitled to the benefit of the provisions of this
Clause 30 and (b) its successor and each of the other parties hereto
shall have the same rights and obligations amongst themselves as they
would have had if such successor had been a party hereto.
30.14 OWN RESPONSIBILITY
It is understood and agreed by each Bank that at all times it has
itself been, and will continue to be, solely responsible for making its
own independent appraisal of and investigation into all risks arising
under or in connection with the Finance Documents including, but not
limited to:
30.14.1 the financial condition, creditworthiness, condition, affairs,
status and nature of each member of the Group;
30.14.2 the legality, validity, effectiveness, adequacy and
enforceability of the Finance Documents and any other
agreement, arrangement or document entered into,
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made or executed in anticipation of, pursuant to or in
connection with the Finance Documents;
30.14.3 whether such Bank has recourse, and the nature and extent of
that recourse, against an Obligor or any other person or any
of their respective assets under or in connection with the
Finance Documents, the transactions therein contemplated or
any other agreement, arrangement or document entered into,
made or executed in anticipation of, pursuant to or in
connection with the Finance Documents; and
30.14.4 the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent or
the Arrangers, the Parent, the CWC Parent, NTL CC or an
Obligor or by any other person in connection with the Finance
Documents, the transactions contemplated therein or any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection with
the Finance Documents.
Accordingly, each Bank acknowledges to the Agent and the Arrangers that
it has not relied on and will not hereafter rely on the Agent and the
Arrangers or any of them in respect of any of these matters.
30.15 BANKS' MANDATORY COST DETAILS
Each Bank will supply the Agent with such information and in such
detail as the Agent may require in order to calculate the Mandatory
Cost Rate in accordance with Schedule 12 (Mandatory Costs).
30.16 RECEIPT OF INFORMATION BY THE AGENT
Any information or document received by the Agent shall only be treated
as having been received by the Agent if the same has been delivered to
the Agent's agency department in accordance with Clause 37 (Notices).
Accordingly, any information or documents received by the Agent other
than by its agency department in accordance with Clause 37 (Notices) is
not by reason of that receipt to be treated as having been received by
the Agent unless and until the Agent's agency department has received
actual notice of the same in accordance with such Clause. Save as
expressly set out in this Agreement and, unless the Agent's agency
department shall have received information or documents in accordance
with Clause 37 (Notices) the Agent shall have no duty to disclose, and
shall not be liable for the failure to disclose, any information or
documents, that are communicated to or obtained by the Agent.
31. ASSIGNMENTS AND TRANSFERS
31.1 BINDING AGREEMENT
The Finance Documents shall be binding upon and enure to the benefit of
each party hereto and its or any subsequent successors and Transferees.
31.2 NO ASSIGNMENTS AND TRANSFERS BY NTL
Neither the Parent, the CWC Parent, NTL CC nor any Obligor shall be
entitled to assign or transfer all or any of its rights, benefits and
obligations under the Finance
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Documents, other than as permitted pursuant to the terms of this
Agreement PROVIDED THAT the Original Borrower may novate its rights and
obligations under the Finance Documents to NTLIH pursuant to the
implementation of the Pushdown.
31.3 ASSIGNMENT AND TRANSFERS BY BANKS
31.3.1 Any Bank may, at any time, assign all or any of its rights and
benefits hereunder or transfer in accordance with Clause 31.5
(Transfers by Banks) all or any of its rights, benefits and
obligations hereunder to, or enter into any form of
sub-participation agreement with, a bank or financial
institution.
31.3.2 The prior written consent of the Relevant Obligor (which shall
be deemed to be given on its own behalf and on behalf of the
other Obligors) is required for an assignment or transfer by a
Bank unless the assignment or transfer is to:
(a) another Bank; or
(b) any subsidiary or holding company (or to any
subsidiary of any holding company) of the
transferring Bank.
31.3.3 The Relevant Obligor's consent must not be (a) unreasonably
delayed or withheld or (b) withheld solely because the
assignment or transfer may result in an increase to the
Mandatory Cost Rate.
31.4 ASSIGNMENTS BY BANKS
If any Bank assigns all or any of its rights and benefits under the
Finance Documents in accordance with Clause 31.3 (Assignments and
Transfers by Banks), then, unless and until the assignee has delivered
a notice to the Agent confirming in favour of the Agent, the Arrangers
and the other Banks that it shall be under the same obligations towards
each of them as it would have been under if it had been an original
party hereto as a Bank (whereupon such assignee shall become a party
hereto as a "Bank"), the Agent, the Arrangers and the other Banks shall
not be obliged to recognise such assignee as having the rights against
each of them which it would have had if it had been such a party
hereto.
31.5 TRANSFERS BY BANKS
If any Bank wishes to transfer all or any of its rights, benefits
and/or obligations under the Finance Documents as contemplated in
Clause 31.3 (Assignments and Transfers by Banks), then such transfer
may be effected by the delivery to the Agent of a duly completed
Transfer Certificate executed by such Bank and the relevant Transferee
in which event, on the later of the Transfer Date specified in such
Transfer Certificate and the fifth Business Day after (or such earlier
Business Day endorsed by the Agent on such Transfer Certificate falling
on or after) the date of delivery of such Transfer Certificate to the
Agent:
31.5.1 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer by novation its rights, benefits and
obligations under the Finance Documents, the Parent, the CWC
Parent, NTL CC and each of the Obligors and such Bank shall be
released from further obligations towards one another
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under the Finance Documents and their respective rights
against one another shall be cancelled (such rights and
obligations being referred to in this Clause 31.5 as
"DISCHARGED RIGHTS AND OBLIGATIONS");
31.5.2 the Parent, the CWC Parent, NTL CC and each of the Obligors
and the Transferee party thereto shall assume obligations
towards one another and/or acquire rights against one another
which differ from such discharged rights and obligations only
insofar as the Parent, the CWC Parent, NTL CC, the Obligors
and such Transferee have assumed and/or acquired the same in
place of the Parent, the CWC Parent, NTL CC the Obligors and
such Bank;
31.5.3 the Agent, the Arrangers, such Transferee and the other Banks
shall acquire the same rights and benefits and assume the same
obligations between themselves as they would have acquired and
assumed had such Transferee been an original party hereto as a
Bank with the rights, benefits and/or obligations acquired or
assumed by it as a result of such transfer and to that extent
the Agent, the Arrangers and the relevant Bank shall each be
released from further obligations to each other under the
Finance Documents; and
31.5.4 such Transferee shall become a party hereto as a "BANK".
31.6 NO INCREASED OBLIGATIONS
If:
31.6.1 a Bank assigns or transfers any of its rights or obligations
under the Finance Documents or changes its Facility Office;
and
31.6.2 as a result of circumstances existing at the date of the
assignment, transfer or change of Facility Office, an Obligor
would be obliged to make a payment to the assignee, Transferee
or the Bank acting through its new Facility Office under
Clause 11.1 (Tax Gross-up), Clause 11.2 (Tax Indemnity) or
Clause 13 (Increased Costs),
then the assignee, Transferee or the Bank acting through its new
Facility Office shall only be entitled to receive payment under those
Clauses to the same extent as the assignor, transferor or the Bank
acting through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
31.7 ASSIGNMENT AND TRANSFER FEES
On the date upon which an assignment takes effect pursuant to Clause
31.4 (Assignments by Banks) or a transfer takes effect pursuant to
Clause 31.5 (Transfers by Banks), in each case where such an assignment
or transfer takes effect after the Syndication Date, the relevant
assignee or Transferee shall pay to the Agent for its own account a fee
of L1,000.
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31.8 DISCLOSURE OF INFORMATION
Any Bank may disclose to any person:
31.8.1 to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights,
benefits and obligations under the Finance Documents;
31.8.2 with (or through) whom such Bank enters into (or may
potentially enter into) any sub-participation in relation to,
or any other transaction under which payments are to be made
by reference to, the Finance Documents or any Obligor;
31.8.3 to whom information may be required to be disclosed by any
applicable law; or
31.8.4 any of its subsidiaries or any holding company (or any
subsidiary of a holding company),
such information about the Parent, the CWC Parent, NTL CC, any Obligor
or the Group and the Finance Documents as such Bank shall consider
appropriate PROVIDED THAT, in relation to sub-clauses 31.8.1 and
31.8.2, the person to whom such information is to be given has entered
into a Confidentiality Undertaking. Any Bank which discloses any such
information to any of the persons referred to in sub-clause 31.8.4
shall procure that those persons keep the information they receive
confidential (save for disclosures they are required to make by any
applicable law).
31.9 NOTIFICATION
The Agent shall within fourteen days of receiving a Transfer
Certificate or a notice relating to an assignment pursuant to Clause
31.4 (Assignments by Banks) notify the Relevant Obligor (on its own
behalf and on behalf of the other Obligors) of any assignment or
transfer completed pursuant to this Clause 31.
31.10 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ COMMITMENT
References to the Commitment of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Bank Limited
in relation to the Revolving Facility shall be construed as references
to the aggregate Commitment in relation to the Revolving Facility of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Bank Limited and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior
Funding, Inc., in such proportions as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Bank
Limited notifies to the Agent from time to time and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Funding, Inc. is a party to this Agreement to give effect to
such Commitment (as so notified).
32. ECONOMIC AND MONETARY UNION
32.1 ECONOMIC AND MONETARY UNION
If the United Kingdom becomes a Participating Member State and as a
result the Bank of England recognises more than one currency or
currency unit as the lawful currency of the United Kingdom:
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32.1.1 (unless prohibited by law) the Agent may designate (after
consultation with the Relevant Obligor) which currency or
currency unit the obligations arising under the Finance
Documents are to be denominated or payable in;
32.1.2 (unless prohibited by law) any translation from currency or
currency unit to another shall be at the official rate of
exchange recognised by the Bank of England for conversion,
rounded up or down by the Agent (acting reasonably); and
32.1.3 the Finance Documents shall be subject to such reasonable
changes of construction as the Agent may specify from time to
time to be appropriate to reflect the adoption of the euro in
the United Kingdom and any relevant market conventions or
practices relating to the euro.
32.1.4 any amount payable by the Agent to the Banks under the Finance
Document shall be paid in the euro unit.
32.2 INCREASED COSTS
The Relevant Obligor shall, from time to time on demand of the Agent,
pay to the Agent for the account of such Bank the amount of any cost or
increased cost incurred by, or of any reduction in any amount payable
to or in the effective return on its capital to, or of interest or
other return foregone by, a Bank or any holding company of such Bank as
a result of the introduction of, changeover to or operation of the euro
in the United Kingdom, other than any such cost or reduction or amount
foregone reflected in the Mandatory Cost Rate.
33. ADDITIONAL BORROWERS
33.1 REQUEST FOR ADDITIONAL BORROWER
The Relevant Obligor may request that any member of the Target Group or
any member of the UK Group become an Additional Borrower by delivering
to the Agent a Borrower Accession Memorandum duly executed by the
Relevant Obligor and such member of the Target Group or, as the case
may be, the UK Group, together with the documents and other evidence
listed in Part A (Accession Conditions Precedent) Schedule 10
(Additional Conditions Precedent) in relation to such member of the
Target Group or, as the case may be, the UK Group.
33.2 BORROWER CONDITIONS PRECEDENT
A company, in respect of which the Relevant Obligor has delivered a
Borrower Accession Memorandum to the Agent, shall become an Additional
Borrower and assume all the rights, benefits and obligations of a
Borrower as if it had been an Original Borrower on the date on which
the Agent notifies the Relevant Obligor that the Agent has received, in
form and substance satisfactory to it, all documents and other evidence
listed in Part A (Accession Conditions Precedent) of Schedule 10
(Additional Conditions Precedent) in relation to such member of the
Target Group or, as the case may be, the UK Group, unless on such date
an Event of Default or Potential Event of Default is continuing or
would occur as a result of such member of
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the Target Group or, as the case may be, the UK Group becoming an
Additional Borrower.
33.3 RESIGNATION OF A BORROWER
If at any time a Borrower (other than, prior to the Pushdown Date, the
Original Borrower and, at any time thereafter, NTLIH for so long as it
has the rights and obligations of the Original Borrower) is under no
actual or contingent obligation under or pursuant to any Finance
Document, the Relevant Obligor may request that such Borrower shall
cease to be a Borrower by delivering to the Agent a Resignation Notice.
Such Resignation Notice shall be accepted by the Agent on the date on
which it notifies the Relevant Obligor that it is satisfied that such
Borrower is under no actual or contingent obligation under or pursuant
to any Finance Document and such Borrower shall immediately cease to be
a Borrower and shall have no further rights, benefits or obligations
hereunder save for those which arose prior to such date.
34. ACCESSION OF GUARANTORS AND THE CWC PARENT
34.1 REQUEST FOR GUARANTOR
The Relevant Obligor may request that any member of the UK Group or,
prior to the Pushdown Date, the Target Group become a Guarantor by
delivering to the Agent a Guarantor Accession Memorandum duly executed
by the Relevant Obligor and such member of the UK Group or, as the case
may be, the Target Group, together with the documents and other
evidence listed in Part A (Accession Conditions Precedent) of Schedule
10 (Additional Conditions Precedent) in relation to such subsidiary.
34.2 GUARANTOR CONDITIONS PRECEDENT
A company, in respect of which the Relevant Obligor has delivered a
Guarantor Accession Memorandum to the Agent, shall became a Guarantor
and assume all the rights, benefits and obligations of a Guarantor as
if it had been an original party hereto as a Guarantor on the date on
which the Agent notifies the Relevant Obligor that it has received, in
form and substance satisfactory to it, all the documents and other
evidence listed in:
34.2.1 Part B (CWC Holdings Conditions Precedent) of Schedule 3
(Conditions Precedent), in respect of the accession of CWC
Holdings as a Guarantor; or
34.2.2 Part A (Accession Conditions Precedent) of Schedule 10
(Additional Conditions Precedent), in all other cases.
34.3 RESIGNATION OF A GUARANTOR
The Relevant Obligor may request that a Guarantor (other than, prior to
the Pushdown Date, the CWC Parent and, at any time thereafter, the
Parent) ceases to be a Guarantor by delivering to the Agent a
Resignation Notice. The Agent shall accept such Resignation Notice and
notify the Relevant Obligor of its acceptance (whereupon such Guarantor
shall immediately cease to be a Guarantor and shall have no further
rights, benefits or obligations hereunder) if:
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34.3.1 the Agent has received evidence, in form and substance
satisfactory to it, confirming that after the release of such
a Guarantor the requirements of Clause 19.32 (Guarantors) will
continue to be satisfied; or
34.3.2 an Instructing Group has consented to such request,
unless on such date an Event of Default or Potential Event of Default
is continuing or would occur as a result of such cessation.
34.4 ACCESSION OF CWC PARENT
Upon the Original Borrower delivering the CWC Accession Memorandum to
the Agent, CWC Holdings shall:
34.4.1 become a Guarantor in accordance with, and subject to the
requirements of, Clause 34.2 (Guarantor Conditions Precedent);
and
34.4.2 become the CWC Parent and assume all the rights, benefits and
obligations of the CWC Parent as if it had been an original
party hereto as the CWC Parent.
34.5 NTL TRIANGLE ACCESSION
The Parent may request that all the members of the NTL Triangle
Sub-Group become Guarantors by delivering to the Agent Guarantor
Accession Memoranda duly executed by the Parent and the members of the
NTL Triangle Sub-Group, together with the documents and other evidence
listed in Part A (Accession Conditions Precedent) and Part B (Security
Documentation) of Schedule 10 (Additional Conditions Precedent) in
relation to such members of the NTL Triangle Sub-Group.
34.6 NTL TRIANGLE ACCESSION CONDITIONS PRECEDENT
The members of the NTL Triangle Sub-Group, in respect of which the
Parent has delivered Guarantor Accession Memoranda to the Agent, shall
became Guarantors and each assume all the rights, benefits and
obligations of a Guarantor as if it had been an original party hereto
as a Guarantor on the date on which the Agent notifies the Parent that
it has received, in form and substance satisfactory to it:
34.6.1 all the documents and other evidence listed in Part A
(Accession Conditions Precedent) and Part B (Security
Documentation) of Schedule 10 (Additional Conditions
Precedent);
34.6.2 a pro forma business plan (over a period ending at least one
year after the Final Maturity Date), together with the key
operating assumptions relating thereto, such a pro forma
business plan demonstrating:
(a) pro forma compliance with the financial covenants set
out in Clause 18 (Financial Condition) until the
Final Maturity Date; and
(b) that amounts available for drawdown under the
Revolving Facility and under other financing sources
committed to the UK Group are sufficient to meet the
UK Group's projected financing needs until the Final
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Maturity Date (excluding the amount of principal to
be repaid in respect of the Revolving Facility on the
Final Maturity Date); and
34.6.3 representations from the Parent to the Finance Parties (in the
form agreed by the Agent, acting reasonably) in relation to
such a business plan.
35. CALCULATIONS AND EVIDENCE OF DEBT
35.1 BASIS OF ACCRUAL
Interest and commitment commission shall accrue from day to day and
shall be calculated on the basis of a year of 365 days (or, in any case
where market practice differs, in accordance with market practice) and
the actual number of days elapsed.
35.2 QUOTATIONS
If on any occasion a Reference Bank or Bank fails to supply the Agent
with a quotation required of it under the foregoing provisions of this
Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Agent,
PROVIDED THAT, in relation to determining LIBOR, this Clause 35.2 shall
not apply if only one Reference Bank supplies a quotation.
35.3 EVIDENCE OF DEBT
Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it
hereunder.
35.4 CONTROL ACCOUNTS
The Agent shall maintain on its books a control account or accounts in
which shall be recorded (a) the amount of any Revolving Advance or any
Unpaid Sum and each Bank's share therein, (b) the amount of all
principal, interest and other sums due or to become due from an Obligor
and each Bank's share therein and (c) the amount of any sum received or
recovered by the Agent hereunder and each Bank's share therein.
35.5 PRIMA FACIE EVIDENCE
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 35.3 (Evidence of Debt) and Clause 35.4 (Control Accounts) shall
be prima facie evidence of the existence and amounts of the specified
obligations of the Obligors.
35.6 CERTIFICATES OF BANKS
A certificate of a Bank as to (a) the amount by which a sum payable to
it hereunder is to be increased under Clause 11.1 (Tax Gross-up), (b)
the amount for the time being required to indemnify it against any such
cost, payment or liability as is mentioned in Clause 11.2 (Tax
Indemnity), Clause 13.1 (Increased Costs) or Clause 25.1 (Borrower's
Indemnity) or (c) the amount of any credit, relief, remission or
repayment as is mentioned in Clause 12.3 (Tax Credit Payment) or Clause
12.4 (Tax Credit Clawback) shall, in the absence of manifest error, be
prima facie evidence of the existence and amounts of the specified
obligations of the Obligors.
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35.7 AGENT'S CERTIFICATES
A certificate of the Agent as to the amount at any time due from a
Borrower hereunder or the amount which, but for any of the obligations
of such Borrower hereunder being or becoming void, voidable,
unenforceable or ineffective, at any time would have been due from such
Borrower hereunder shall, in the absence of manifest error, be
conclusive for the purposes of Clause 21 (Guarantee and Indemnity).
36. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
36.1 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver thereof, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise thereof or
the exercise of any other right or remedy. The rights and remedies
herein provided are cumulative and not exclusive of any rights or
remedies provided by law.
36.2 PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions thereof nor the legality, validity or
enforceability of such provision under the law of any other
jurisdiction shall in any way be affected or impaired thereby.
37. NOTICES
37.1 COMMUNICATIONS IN WRITING
Each communication to be made under the Finance Documents shall be made
in writing and, unless otherwise stated, shall be made by fax or
letter.
37.2 ADDRESSES
Any communication or document to be made or delivered pursuant to the
Finance Documents shall be made or delivered to the address or fax
number (and the department or officer, if any, for whose attention the
communication is made):
37.2.1 in the case of the Parent, NTL CC, the Original
Borrower, the Security Trustee and the Agent,
identified with its name below;
37.2.2 in the case of each Bank, notified in writing to the
Agent prior to the date hereof (or, in the case of a
Transferee, at the end of the Transfer Certificate to
which it is a party as Transferee);
37.2.3 in the case of the CWC Parent, in the CWC Accession
Memorandum; and
37.2.4 in the case of each Additional Obligor, in the
relevant Accession Memorandum,
or to any substitute address, fax number or department or officer as
the Parent, the CWC Parent, NTL CC, the Security Trustee, an Obligor or
a Bank may notify to the
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Agent (or the Agent may notify to the Relevant Obligor (on its own
behalf and on behalf of the other Obligors), the Security Trustee and
the Banks, if a change is made by the Agent) by not less than five
Business Days' notice. Any communication to be made to an Obligor
(other than the Relevant Obligor) by fax shall be made to the fax
number identified with the Relevant Obligor's name below (or, in the
case of the CWC Parent, in the CWC Accession Memorandum). Any
communication or document to be made or delivered to an Obligor (other
than the Relevant Obligor) shall be copied to the Relevant Obligor. Any
communication or document to be made or delivered to the Parent, the
CWC Parent or any Obligor pursuant to the Finance Documents shall be
copied to NTL CC (at the address or fax number indicated with its name
below)
37.3 DELIVERY
Any communication or document to be made or delivered by one person to
another under or in connection with the Finance Documents shall only be
effective:
37.3.1 if by way of fax, when received in legible form;
37.3.2 if by way of letter, when left at the relevant address or, as
the case may be, five days after being deposited in the post
postage prepaid in an envelope addressed to it at such
address; and
37.3.3 if a particular department or officer is specified as part of
the address details provided under Clause 37.2 (Addresses), if
addressed to that department or officer,
PROVIDED THAT any communication or document to be made or delivered to
the Agent shall be effective only when received by its agency division
and then only if the same is expressly marked for the attention of the
department or officer identified with the Agent's signature below (or
such other department or officer as the Agent shall from time to time
specify for this purpose).
37.4 THE AGENT
All notices from or to either the Parent, the CWC Parent, NTL CC or an
Obligor shall be sent through the Agent.
37.5 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to
another pursuant to the Finance Documents shall be in the English
language or accompanied by a translation thereof into English certified
(by an officer of the person making or delivering the same) as being a
true and accurate translation thereof.
37.6 NOTIFICATION OF CHANGES
Promptly upon receipt of notification of a change of address or fax
number pursuant to Clause 37.2 (Addresses) or changing its own address
or fax number the Agent shall notify the other parties hereto of such
change.
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37.7 DEEMED RECEIPT BY THE OBLIGORS
Any communication or document made or delivered to the Relevant Obligor
in accordance with Clause 37.3 (Delivery) shall be deemed to have been
made or delivered to each of the Obligors.
38. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
39. AMENDMENTS
39.1 AMENDMENTS
If the Agent has the prior consent of an Instructing Group, the Agent,
the Relevant Obligor, NTL CC and the Obligors party to a Finance
Document may from time to time agree in writing to amend such Finance
Document or, as the case may be, the Agent may consent to or waive,
prospectively or retrospectively, any of the requirements of such
Finance Document and any amendments or waivers so agreed or consents so
given shall be binding on all the Finance Parties, PROVIDED THAT no
such waiver or amendment shall subject any Finance Party hereto to any
new or additional obligations without the consent of such Finance
Party.
39.2 AMENDMENTS REQUIRING THE CONSENT OF ALL THE BANKS
An amendment or waiver which relates to:
39.2.1 Clause 29 (Sharing) or this Clause 39;
39.2.2 a change in the principal amount of or currency of any
Revolving Advance, or deferral of any Repayment Date, any
Reduction Date or the Final Maturity Date;
39.2.3 a change in the Margin, the amount of any payment of interest,
fees or any other amount payable hereunder to any Finance
Party or deferral of the date for payment thereof;
39.2.4 Clause 21 (Guarantee and Indemnity);
39.2.5 a release of any of the Security;
39.2.6 a Security Document, where such an amendment or waiver could
affect the nature or scope of the property subject to the
Security;
39.2.7 an increase in the commitment of a Bank;
39.2.8 a change to the Borrowers or Guarantors other than in
accordance with Clause 33 (Additional Borrowers) or Clause 34
(Accession of Guarantors and the CWC Parent);
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39.2.9 Clause 2.6 (Banks' Obligations Several), Clause 2.7 (Banks'
Rights Several), Clause 33 (Additional Borrowers) or Clause 34
(Accession of Guarantors and the CWC Parent);
39.2.10 the conditions set out in sub-clause 3.1.9 of Clause 3.1
(Drawdown Conditions for Revolving Advances) if an Event of
Default or Potential Event of Default which relates to a
Repeated Representation or Clause 19.23 (Negative Pledge) is
continuing;
39.2.11 the definition of Instructing Group, Permitted Encumbrance or
Potential Event of Default; or
39.2.12 any provision which contemplates the need for the consent or
approval of all the Banks,
shall not be made without the prior consent of all the Banks.
39.3 EXCEPTIONS
Notwithstanding any other provisions hereof, the Agent shall not be
obliged to agree to any such amendment or waiver if the same would:
39.3.1 amend or waive this Clause 39, Clause 23 (Costs and Expenses)
or Clause 30 (The Agent, the Arrangers and the Banks); or
39.3.2 otherwise amend or waive any of the Agent's rights hereunder
or subject the Agent or the Arrangers to any additional
obligations hereunder.
40. GOVERNING LAW
This Agreement is governed by English law.
41. JURISDICTION
41.1 ENGLISH COURTS
The courts of England have exclusive jurisdiction to settle any dispute
(a "DISPUTE") arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or termination
of this Agreement or the consequences of its nullity).
41.2 CONVENIENT FORUM
The parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes between them and, accordingly,
that they will not argue to the contrary.
41.3 NON-EXCLUSIVE JURISDICTION
This Clause 41 is for the benefit of the Finance Parties only. As a
result and notwithstanding Clause 41.1 (English Courts), it does not
prevent any Finance Party from taking proceedings relating to a Dispute
("PROCEEDINGS") in any other courts with jurisdiction. To the extent
allowed by law, the Finance Parties may take concurrent Proceedings in
any number of jurisdictions.
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41.4 SERVICE OF PROCESS
NTL CC agrees that the documents which start any Proceedings and any
other documents required to be served in relation to those Proceedings
may be served on it by service of such documents on NTL Group Limited
at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(marked for the attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) or, if different, its
registered office.
If NTL Group Limited ceases to have a place of business in Great
Britain or, as the case may be, its appointment ceases to be effective,
NTL CC shall immediately appoint another person in England to accept
service of process on its behalf in England. If NTL CC fails to do so
(and such failure continues for a period of not less than fourteen
days), the Agent shall be entitled to appoint such a person by notice
to NTL CC. Nothing contained herein shall restrict the right to serve
process in any other manner allowed by law. This Clause 41.4 applies to
Proceedings in England and to Proceedings elsewhere.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
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SCHEDULE 1
THE BANKS
BANK COMMITMENT
POUNDS
The Chase Manhattan Bank 135,876,363.65
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Bank Limited 135,876,363.65
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. -
Bank of America, N.A. 135,876,363.65
BNP Paribas 135,876,363.65
CIBC World Markets plc 135,876,363.65
Citibank, N.A. 135,876,363.65
Deutsche Bank AG London 135,876,363.65
The Royal Bank of Scotland plc 135,876,363.65
Banca Commerciale Italiana S.p.A., London Branch 90,355,878.78
The Bank of Nova Scotia 90,355,878.78
Bankgesellschaft Berlin AG 90,355,878.78
The Governor and Company of the Bank of Scotland 90,355,878.78
Bayerische Landesbank Girozentrale acting through its
London Branch 90,355,878.78
Credit Lyonnais 90,355,878.78
Fortis Bank S.A./N.V. 90,355,878.78
HSBC Bank plc 90,355,878.78
▇▇▇▇▇▇ Guaranty Trust Company of New York 90,355,878.78
Westdeutsche Landesbank Girozentrale 90,355,878.78
Abbey National Treasury Services plc 54,616,969.70
Bayerische Hypo- und Vereinsbank AG, London Branch 54,616,969.70
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
(trading as Rabobank International, London Branch) 54,616,969.70
The Dai-Ichi Kangyo Bank, Limited 54,616,969.70
Dresdner Bank AG London Branch 54,616,969.70
Fleet National Bank 45,672,727.28
Lloyds TSB Bank plc 45,672,727.28
Credit Agricole Indosuez 25,000,000.00
Credit Industriel et Commercial 25,000,000.00
The Bank of Tokyo-Mitsubishi, Ltd. 20,000,000.00
Barclays Bank PLC 20,000,000.00
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IBM United Kingdom Financial Services Limited 20,000,000.00
Natexis Banques Populaires (London Branch) 15,000,000.00
The Governor and Company of the Bank of Ireland 10,000,000.00
N M Rothschild & Sons Ltd 10,000,000.00
TOTAL 2,500,000,000
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SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
To: Chase Manhattan International Limited
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "CREDIT AGREEMENT") dated o May 2000 whereby a L2,500,000,000
revolving loan facility was made available to a group of borrowers including NTL
Business Limited by a group of banks on whose behalf Chase Manhattan
International Limited acted as agent in connection therewith.
1. Terms defined in the Credit Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank, Transferee
and Portion Transferred are defined in the schedule hereto.
2. The Bank (i) confirms that the details in the schedule hereto under the
heading "BANK'S PARTICIPATION IN THE REVOLVING FACILITY" and "REVOLVING
ADVANCES" accurately summarises its participation in the Credit
Agreement and the Term of any existing Revolving Advances and (ii)
requests the Transferee to accept and procure the transfer by novation
to the Transferee of the Portion Transferred (specified in the schedule
hereto) of its Commitment and/or its participation in such Revolving
Advance(s) by counter-signing and delivering this Transfer Certificate
to the Agent at its address for the service of notices specified in the
Credit Agreement.
3. The Transferee hereby requests the Agent to accept this Transfer
Certificate as being delivered to the Agent pursuant to and for the
purposes of Clause 31.5 (Transfers by Banks) of the Credit Agreement so
as to take effect in accordance with the terms thereof on the Transfer
Date or on such later date as may be determined in accordance with the
terms thereof.
4. The Transferee confirms that it has received a copy of the Credit
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will not
hereafter rely on the Bank to check or enquire on its behalf into the
legality, validity, effectiveness, adequacy, accuracy or completeness of
any such information and further agrees that it has not relied and will
not rely on the Bank to assess or keep under review on its behalf the
financial condition, creditworthiness, condition, affairs, status or
nature of the Parent, the CWC Parent, the NTL Holding Group or the
Obligors.
5. The Transferee hereby undertakes with the Bank and each of the other
parties to the Credit Agreement that it will perform in accordance with
their terms all those obligations which by the terms of the Finance
Documents will be assumed by it after delivery of this Transfer
Certificate to the Agent and satisfaction of the conditions (if any)
subject to which this Transfer Certificate is expressed to take effect.
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6. The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Finance Documents or any document
relating thereto and assumes no responsibility for the financial
condition of the Obligors or for the performance and observance by the
Obligors of any of its obligations under the Finance Documents or any
document relating thereto and any and all such conditions and
warranties, whether express or implied by law or otherwise, are hereby
excluded.
7. The Bank hereby gives notice that nothing herein or in the Finance
Documents (or any document relating thereto) shall oblige the Bank to
(a) accept a re-transfer from the Transferee of the whole or any part of
its rights, benefits and/or obligations under the Finance Documents
transferred pursuant hereto or (b) support any losses directly or
indirectly sustained or incurred by the Transferee for any reason
whatsoever including the non-performance by an Obligor or any other
party to the Finance Documents (or any document relating thereto) of its
obligations under any such document. The Transferee hereby acknowledges
the absence of any such obligation as is referred to in (a) or (b)
above.
8. This Transfer Certificate and the rights, benefits and obligations of
the parties hereunder shall be governed by and construed in accordance
with English law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Bank's Participation in the Portion Transferred
Revolving Facility:
Bank's Commitment
5. Revolving Advance(s): Term and Repayment Date
Portion Transferred
Amount of Bank's Participation
[Transferor Bank] [Transferor Bank]
By: By:
Date: Date:
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----------------------------------------------------------------------------
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments:
Telex:
Fax:
Telephone:
-----------------------------------------------------------------------------
NOTE: EACH TRANSFEREE SHOULD, AT THE SAME TIME AS EXECUTING THIS TRANSFER
CERTIFICATE, EXECUTE ACCESSION MEMORANDA IN RELATION TO THE SECURITY TRUST
AGREEMENT AND THE INTERCREDITOR AGREEMENT.
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SCHEDULE 3
CONDITIONS PRECEDENT
PART B
INITIAL CONDITIONS PRECEDENT
(A) CORPORATE DOCUMENTS
1. In relation to the Parent, the Original Borrower, NTL UK, NTL CC and NTL
Inc. (each an "ORIGINAL OBLIGOR"):
(a) a copy, certified as at the date of this Agreement a true and
up-to-date copy by an Authorised Signatory of such Original
Obligor, of the constitutional documents of such Original
Obligor;
(b) a copy, certified as at the date of this Agreement a true and
up-to-date copy by an Authorised Signatory of such Original
Obligor, of a board resolution of such Original Obligor
approving the execution, delivery and performance of the Finance
Documents to which that Original Obligor is a party and the
terms and conditions thereof and authorising a named person or
persons to sign such Finance Documents and any documents to be
delivered by such Original Obligor pursuant thereto;
(c) a certificate of an Authorised Signatory of such Original
Obligor setting out the names and signatures of the persons
authorised to sign, on behalf of such Original Obligor, the
Finance Documents to which that Original Obligor is a party and
any documents to be delivered by such Original Obligor pursuant
thereto.
2. In relation to the Original Borrower, a certificate of an Authorised
Signatory of the Original Borrower confirming that utilisation of the
full amount of the Revolving Facility would not breach any restriction
of its borrowing powers.
3. The Group Structure Chart referred to in paragraph (a) of the definition
of that term.
(B) ACCOUNTS AND REPORTS
1. The Business Plan.
2. Copies of the Original Financial Statements referred to in paragraphs
(a) to (c) of the definition of that term, certified true copies by an
Authorised Signatory of either the Original Borrower (in the case of its
and the Target's financial statements) or the Parent (in the case of its
financial statements).
(C) ACQUISITION AND RELATED MATTERS
1. A copy, certified by an Authorised Signatory of the Parent as true,
complete and up-to-date, of the Transaction Agreement.
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2. A certificate from an Authorised Signatory of the Parent confirming that
all the conditions precedent to the completion of the Acquisition in
accordance with the Transaction Agreement have been satisfied or waived
as permitted thereby save insofar as such conditions precedent relate to
or are dependent upon the utilisation of the Revolving Facility.
3. A copy, certified as being a true and complete copy by an Authorised
Signatory of the Parent of the resolutions of the shareholders of the
Target passed at the Court Meetings.
4. A copy, certified as being a true and complete copy by an Authorised
Signatory of Parent, of the resolutions of the shareholders of the
Target passed at the EGM.
5. A certified copy of the order of the Court sanctioning the Scheme under
Section 425, as registered with the Registrar of Companies.
6. Certified copies of executed stock transfer forms evidencing that NTL
Holdings will, upon registration of the transfers effected by such stock
transfer forms, hold shares in the issued share capital of CWC Holdings
(representing 100 per cent. of the shares in CWC Holdings subject to the
call option in favour of NTL Holdings granted pursuant to the
Transaction Agreement).
7. A certificate from an Authorised Signatory of the Parent confirming
that, immediately following the completion of the Acquisition neither
any member of the UK Group nor (to the best of such Authorised
Signatory's knowledge and belief) any member of the Target Group shall
have (or will have) any Financial Indebtedness outstanding (other than
Permitted Indebtedness) and that all Encumbrances (other than Permitted
Encumbrances) have been, or will be, discharged.
8. A Certificate of an Authorised Signatory of the Parent confirming that
all necessary consents, licences, authorisations and approvals in
relation to the Acquisition and the Finance Documents have been
obtained, together with copy letters from the ITC, Oftel and the DTI and
copies of any consents or other approvals required under the terms of
any Licence.
9. A letter from the Parent's insurance broker addressed to the Agent
confirming the adequacy of the UK Group's insurance cover.
(D) SECURITY DOCUMENTS AND RELATED DOCUMENTATION
1. The Original Borrower Intra-Group Loan Assignment and the Original
Borrower Security Over Cash Agreement, duly executed and delivered by
the Original Borrower.
2. The NTL UK Subordination Agreement, duly executed by NTL UK.
3. The NTL Subordination Agreement, duly executed by NTL Inc.
4. The NTL Intra-Group Loan Assignment and the NTL Security Over Cash
Agreement, duly executed and delivered by NTL Inc.
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5. The Security Trust Agreement duly executed and delivered by the parties
thereto.
(E) LEGAL OPINIONS
1. A legal opinion from ▇▇▇▇▇▇▇▇ Chance, London, the Agent's English
counsel in substantially the form distributed to the Banks prior to the
signing of this Agreement.
2. A legal opinion from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, NTL CC's
Delaware counsel, in substantially the form distributed to the Banks
prior to the signing of this Agreement.
(F) MISCELLANEOUS
1. The fees letters referred to in Clause 22.5 (Agency and Other Fees).
2. Evidence that NTL Group Limited has agreed to act as the agent of NTL
Inc. and NTL CC for the service of process in England in respect of:
(a) this Agreement (for NTL CC); and
(b) the NTL Subordination Agreement, the NTL Intra-Group Loan
Assignment and the NTL Security Over Cash Agreement (for NTL
Inc.).
3. Evidence confirming that, in addition to the amounts specified in the
balance sheet in the management accounts for the Group for the period
ended 30 April 2000, an amount of no less than L2,800,000,000 (or its
equivalent) has been or will on the Acquisition Date be invested in the
common stock or convertible preferred stock of NTL Holdings by France
Telecom S.A.
4. Evidence that no less than:
(a) L215,798,000 was available for use by the UK Group as at 25 May
2000; and
(b) L591,166,950 was available for use by the Original Borrower as
at 25 May 2000,
such evidence comprising of certificates from an Authorised Signatory of
the Parent or, as the case may be, the Original Borrower.
5. Evidence that the Working Capital Facility is in place and all
conditions precedent thereunder (save for those that are conditional on
the effectiveness of this Agreement) have been satisfied or waived in
accordance with their terms.
-146-
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PART C
CWC HOLDINGS CONDITIONS PRECEDENT
(A) CORPORATE DOCUMENTS
1. In relation to CWC Holdings:
(a) a copy, certified as at the Execution Date a true and up-to-date
copy by an Authorised Signatory of CWC Holdings, of the
constitutional documents of CWC Holdings;
(b) a copy, certified as at the Execution Date a true and up-to-date
copy by an Authorised Signatory of CWC Holdings, of a board
resolution of CWC Holdings approving the execution, delivery and
performance of the Finance Documents to which CWC Holdings is a
party and the terms and conditions thereof and authorising a
named person or persons to sign such Finance Documents and any
documents to be delivered by CWC Holdings pursuant thereto;
(c) a certificate of an Authorised Signatory of CWC Holdings setting
out the names and signatures of the persons authorised to sign,
on behalf of CWC Holdings, the Finance Documents to which CWC
Holdings is a party and any documents to be delivered by CWC
Holdings pursuant thereto.
2. A copy, certified as at the date of this Agreement a true and up-to-date
copy by an Authorised Signatory of CWC Holdings, of the constitutional
documents of the Target.
3. A certificate of an Authorised Signatory of CWC Holdings confirming that
the utilisation of the Revolving Facility would not breach any
restriction of its borrowing and/or guaranteeing powers.
(B) SECURITY DOCUMENTS AND RELATED DOCUMENTATION
1. The CWC Holdings Share Charge and the CWC Holdings Intra-Group Loan
Assignment, duly executed and delivered by CWC Holdings.
2. A deed of accession to the Security Trust Agreement executed by CWC
Holdings, substantially in the form set out in schedule 1 (Form of
Obligor Deed of Accession) to the Security Trust Agreement.
3. A letter from the Original Borrower to the Agent (attaching supporting
advice from the Original Borrower's English solicitors) confirming that
CWC Holdings is not prohibited by section 151 of the Companies ▇▇▇ ▇▇▇▇
from entering into the Finance Documents and performing its obligations
thereunder.
(C) LEGAL OPINION
A legal opinion from ▇▇▇▇▇▇▇▇ Chance, London, the Agent's English counsel
in substantially the form distributed to the Banks prior to the signing
of this Agreement.
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SCHEDULE 4
NOTICE OF DRAWDOWN
From: [Borrower]
To: Chase Manhattan International Limited
Dated:
Dear Sirs,
1. We refer to the agreement (the "CREDIT AGREEMENT") dated o May 2000 and
made between, among others, NTL Business Limited as the Original
Borrower, Chase Manhattan International Limited as agent and the
financial institutions named therein as Banks. Terms defined in the
Credit Agreement shall have the same meaning in this notice.
2. This notice is irrevocable.
3. We hereby give you notice that, pursuant to the Credit Agreement and on
[date of proposed Revolving Advance], we wish to borrow a Revolving
Advance of L[ ] upon the terms and subject to the conditions contained
therein.
4. We would like this Revolving Advance to have a Term of [ ] months'
duration.
5. We confirm that, at the date hereof [no Certain Funds Event of Default
is continuing] [(i) no Event of Default or Potential Event of Default is
continuing and (ii) the Repeated Representations are true in all
material respects] [(i) no Event of Default is continuing and (ii) those
of the Repeated Representations, which are not capable of remedy or
change if incorrect or misleading in any material respect, are true in
all material respects]*.
6. [L[ ] of this Revolving Advance will be applied to refinance Existing
Target Indebtedness.] [As at the proposed date of drawdown, the Existing
Target Indebtedness will have been fully repaid.]**
7. [L[ ] of this Revolving Advance will be used to finance either the Cable
& Wireless Loan, the South Herts Refinancing Loan, Asset Adjustment
Payments or the working capital requirements of the UK Group or the
Target Group. We confirm that the amount of such a Revolving Advance is
equal to or less than the Available Working Capital Amount.]***
------------------
* Use the first option for Revolving Advances to be made during the Certain
Funds Period. Use second option for Revolving Advances to be made after the
Certain Funds Period (if not Rollover Advances). Use third option for
Rollover Advances.
** Delete as appropriate.
*** To be included for working capital Advances to be made prior to the Pushdown
Date.
-148-
152
8. The proceeds of this drawdown should be credited to [insert account
details].
Yours faithfully
.............................
Authorised Signatory
for and on behalf of
[Insert name of Borrower]
-149-
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SCHEDULE 5
EXISTING ENCUMBRANCES
(A) TARGET GROUP
CHARGOR DATE BENEFICIARY SUMMARY
------- ---- ----------- -------
CWC (Ealing) Ltd 30.12.91 Citicorp Investment Bank Ltd Deed of Charge (relating to obligations
under a lease, ancillary agreements and
guarantee). Charges the "Charges
Equipment".
CWC Holdings (Leeds) Ltd 07.09.95 NatWest Leasing (GB) Ltd Fixed charge over 16,092,892 shares in CWC
(Leeds) and the "Equipment" as defined in
the 12 and 7 year leases (unavailable).
CWC Holdings (East
London) Ltd 22.03.96 NatWest Specialist Finance Ltd Fixed charge over 317,520 shares in the
Borrower (presumably CWC (East London).
CWC (Kent) Ltd 22.03.96 NatWest Specialist Finance Ltd Debenture.
CWC (B) Ltd (i) and (ii) (i) and (ii) Nationbanks N.A. (i) Share charge re. Monies due from BCM
18.04.95 x 2 (Carolinas) x2 (South Herts) Ltd
(ii) Subordination deed (again relating to
BCM (South Herts) Ltd)
CWC (Southampton and
Eastleigh) Ltd 30.07.92 NatWest Bank plc Charge over credit balance (L1,139,199)
-150-
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CHARGOR DATE BENEFICIARY SUMMARY
------- ---- ----------- -------
CWC (South East) Ltd (i) 06.05.97 (i) NatWest Specialist Finance (i) Collateral accounts security
assignment.
(ii) 25.08.98 (ii) NatWest Leasing (GB) (ii) Deed of sale, assignment and
amendment re leases dated 22/3/96
(fiche not available).
(iii) 06.10.99 (iii) Canadian Imperial
Bank of Commerce (iii) Deposit agreement and charge.
(iv) 06.10.99 (iv) Canadian Imperial
Bank of Commerce (iv) Deposit agreement and charge.
(v) 06.10.99 (v) NatWest Lessors Ltd (v) Deed of assignment, amendment and
security unwind re agreements dated
22/3/96.
CWC Corporation Ltd 16.08.93 Barclays Bank plc Legal charge over ▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ (279230 and SGL 1037). Secures
only liabilities relating to bank account
24923057 with the Ocean Village,
Southampton branch.
CWC (Leeds) Ltd (i) 07.09.95 (i) NatWest Leasing (GB) Ltd (i) Debenture. Secures all obligations.
Charges all real property with
market value of L1m+, goodwill, bad
debts, IP etc.
(ii) 26.09.96 (ii) NatWest Leasing (GB) Ltd (ii) Conformatory deed of assignment.
(iii) 06.05.97 (iii) NatWest Leasing (GB) Ltd (iii) Collateral accounts security
assignment.
(iv) 06.10.99 (iv) NatWest Lessors (iv) Deed of assignment, amendment and
security unwind relating to leases
dated 7/9/95. Secures all
liabilities under the "Operative
Documents" (all
-151-
155
CHARGOR DATE BENEFICIARY SUMMARY
------- ---- ----------- -------
dated 07.09.95)
- 12 year lease
- 17 year lease
- Agreement to acquire
- Construction agreement
- Collateral accounts agreement
- Lease security agreement
- Guarantee from CWC Holdings (Leeds)
- 10m Guarantee
- Priority agreement (06.05.97)
- Collateral accounts security assignment
-152-
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(B) UK GROUP
CHARGOR DATE BENEFICIARY SUMMARY
------- ---- ----------- -------
NTL Technologies Limited (i) 30.09.95 (i) Barclays Bank Plc (i) Guarantee and debenture.
(ii) 15.1.96 (ii) Barclays Bank Plc (ii) Deed of assignment of
life policies.
(iii) 3.11.97 (iii) Barclays Bank Plc (iii) Debenture.
(iv) 23.11.98 (iv) Barclays Bank Plc (iv) Charge on cash
collateral account.
(v) 23.11.98 (v) Barclays Bank Plc (v) Charge over shares and
securities.
NTL Kirklees (i) 31.01.97 (i) National Westminster Plc (i) Charge over credit
balance.
(ii) 06.09.97 (ii) National Westminster Plc (ii) Charges over credit
balances.
NTL South Wales Limited (i) 31.01.97 (i) National Westminster Bank Plc (i) Charge over credit
balances.
(ii) 04.06.97 (ii) National Westminster Bank Plc (ii) Charges over credit
balances.
(iii) 06.08.97 (iii) National Westminster Bank Plc (iii) Charge over credit
balances.
Cable Tel Surrey & Hampshire 06.08.97 National Westminster Bank Plc Charge over credit
Limited balances.
Cable Tel Herts. & Beds Limited 06.08.97 National Westminster Bank Plc Charge over credit
balances.
NTL South Central Limited 14.12.93 Uberior Nominees (Gulliver
D.P.U.T.) Limited Deed of deposit.
-153-
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CHARGOR DATE BENEFICIARY SUMMARY
------- ---- ----------- -------
National Trans-communications (i) 10.06.96 (i) Chase Manhattan Bank N.A. (i) Mortgage or charge
Limited executed outside the
United Kingdom and
comprising property
situated outside the
United Kingdom.
(ii) 17.10.97 (ii) Chase Manhattan International Limited (ii) Debenture.
CableTel (Northern Ireland) Limited (i) 06.08.97 (i) National Westminster Bank PLC (i) Charge over deposit.
(ii) 17.10.97 (ii) Chase Manhattan International Limited (ii) Debenture.
-154-
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SCHEDULE 6
FORM OF COMPLIANCE CERTIFICATE
To: Chase Manhattan International Limited
Date:
Dear Sirs,
1. We refer to an agreement (the "CREDIT AGREEMENT") dated o May 2000 and
made between, among others, NTL Business Limited as the Original
Borrower, Chase Manhattan International Limited as agent and the
financial institutions defined therein as Banks.
2. Terms defined in the Credit Agreement shall bear the same meaning
herein.
3. We confirm that:
(a) [The ratio of the Target Group Net Senior Debt on [Quarter
Date] to the Annualised EBITDA of the Target Group for the
Relevant Period ended on [Quarter Date] was [ ]:1.]
(b) [The ratio of the EBITDA of the Target Group for the Relevant
Period ended on [Quarter Date] to the Target Group Net Senior
Finance Charges for that Relevant Period was [ ]:1.]
(c) The ratio of the UK Group Net Senior Debt on [Quarter Date] to
the Annualised EBITDA of the UK Group for the period ended on
[Quarter Date] was [ ]:1.
(d) The ratio of the EBITDA of the UK Group for the Relevant
Period ended on [Quarter Date] to the UK Group Net Senior
Finance Charges for that Relevant Period was [ ]:1.
(e) [The ratio of the EBITDA of the UK Group for the Relevant
Period ended on [Quarter Date] to the Total Net Finance
Charges for that Relevant Period was [ ]:1.]
(f) [The ratio of the Total Net Debt on [Quarter Date] to the
Annualised EBITDA of the UK Group for the Relevant Period
ended on [Quarter Date] was [ ]:1.
The calculations of the above ratios are set out in the Schedule to
this Compliance Certificate.
4. On the basis of above, we confirm that the Margin in relation to any
Revolving Advance made after your receipt of this Compliance
Certificate will be [ ] per cent. per annum
5. We also confirm that:
-155-
159
(a) The aggregate EBITDA of the Guarantors for the 12 month period
ending on [Quarter Date] equalled or exceeded [90/95] per
cent. of the consolidated EBITDA of the [UK Group / Target
Group] for such 12 month period.
(b) The amount of Available Excess Cash Flow as at [ ] was [ ].
Signed
----------------------------------- --------------------------------------
Director Director
of of
[Cable & Wireless Communications [Cable & Wireless Communications
(Holdings) plc/NTL Communications (Holdings) plc/NTL Communications
Limited] Limited]
THE SCHEDULE
COMPLIANCE CERTIFICATE CALCULATIONS
(A) RATIO OF TARGET GROUP NET SENIOR DEBT TO TARGET GROUP ANNUALISED EBITDA:
1. Target Group Net Senior Debt:
Outstandings under the Facility:
-------------------
Other relevant Indebtedness for Borrowed Money:
-------------------
Minus
Intercompany Loans:
-------------------
Minus
Subordinated Debt:
-------------------
Minus
Ending Cash held by members of the Target Group
-------------------
TARGET GROUP NET SENIOR DEBT
-156-
160
2. Target Group Annualised EBITDA:
(All line items below refer to the Relevant Period)
Target Group net income
-------------------
Plus
Any tax provisions
-------------------
Plus
Any interest (whether cash or PIK), commissions,
discounts or other fees, and any amounts related to
interest hedging arrangements
-------------------
Plus
Any exceptional or extraordinary items
-------------------
Plus
Any amortisation and depreciation
-------------------
TARGET GROUP EBITDA FOR THE RELEVANT PERIOD
-------------------
Multiplied by 2
TARGET GROUP ANNUALISED EBITDA
-------------------
3. Ratio:
-------------------
(B) RATIO OF TARGET GROUP NET SENIOR INTEREST COVER:
1. Target Group EBITDA for the Relevant Period:
(All line items below refer to the Relevant Period)
Target Group net income
-------------------
Plus
Any tax provisions
-------------------
Plus
Any interest (whether cash or PIK), commissions,
discounts or other fees, and any amounts related to
interest hedging arrangements
-------------------
Plus
Any exceptional or extraordinary items
-------------------
Plus
Any amortisation and depreciation
-------------------
TARGET GROUP EBITDA FOR THE RELEVANT PERIOD
-------------------
-157-
161
2. Target Group Net Senior Finance Charges (for the Relevant Period):
Aggregate amount of interest
-------------------
on Target Group Net Senior Debt
Plus
Commission, fees, and finance payments payable by
Target Group under interest hedging arrangements
-------------------
Minus
Commission, fees, and finance payments receivable
by Target Group
-------------------
Minus
Any interest receivable
-------------------
TARGET GROUP NET SENIOR FINANCE CHARGES
-------------------
3. Ratio:
-------------------
(C) UK GROUP NET SENIOR DEBT TO ANNUALISED EBITDA:
1. UK Group Net Senior Debt:
Outstandings under the Facility:
-------------------
Other relevant Indebtedness for Borrower Money:
-------------------
Minus
Intercompany loans
-------------------
Minus
Subordinated Debt
-------------------
Minus
Ending Cash held by members of the UK Group
-------------------
UK GROUP NET SENIOR DEBT
-------------------
2. UK Group Annualised EBITDA:
(All line items below refer to the Relevant Period)
UK Group net income
-------------------
Plus
Any tax provisions
-------------------
Plus
Any interest, commissions, discounts or other fees,
and any amounts related to
interest hedging arrangements
-------------------
Plus
Any exceptional or extraordinary items
-------------------
-158-
162
Plus
Any amortisation and depreciation
-------------------
UK GROUP EBITDA FOR THE RELEVANT PERIOD
Multiplied by 2
-------------------
UK GROUP ANNUALISED EBITDA
-------------------
3. Ratio:
-------------------
(D) RATIO OF UK GROUP NET SENIOR INTEREST COVER RATIO:
1. UK Group EBITDA for the Relevant Period:
(All line items below refer to the Relevant Period)
UK Group net income
-------------------
Plus
Any tax provisions
-------------------
Plus
Any interest, commissions, discounts or other fees,
and any amounts related to
interest hedging arrangements
-------------------
Plus
Any exceptional or extraordinary items
-------------------
Plus
Any amortisation and depreciation
-------------------
UK GROUP EBITDA FOR THE RELEVANT PERIOD
-------------------
2. UK Group Net Senior Finance Charges (for the Relevant Period):
Aggregate amount of senior interest
on UK Group Net Senior Debt
-------------------
Plus
Commission, fees, and finance payments payable by
UK Group under interest hedging arrangements
-------------------
Minus
Commission, fees, and finance payments receivable
by UK Group
-------------------
Minus
Any interest receivable
-------------------
-159-
163
UK GROUP NET SENIOR FINANCE CHARGES
-------------------
3. Ratio:
-------------------
(E) RATIO OF TOTAL NET DEBT TO ANNUALISED EBITDA:
1. UK Group Net Total Debt:
UK Group Net Senior Debt:
-------------------
Plus
Covenant Group Net Debt
-------------------
Minus
Ending Cash held by members of the UK Group
-------------------
Minus
Ending Cash held by member of the Covenant Group:
-------------------
TOTAL NET DEBT
-------------------
2. UK Group Annualised EBITDA:
(All line items below refer to the Relevant Period)
UK Group net income
-------------------
Plus
Any tax provisions
-------------------
Plus
Any interest, commissions, discounts or other fees,
and any amounts related to
interest hedging arrangements
-------------------
Plus
Any exceptional or extraordinary items
-------------------
Plus
Any amortisation and depreciation
-------------------
UK GROUP EBITDA FOR THE RELEVANT PERIOD
-------------------
Multiplied by 2
UK GROUP ANNUALISED EBITDA
-------------------
3. Ratio:
-------------------
(F) TOTAL INTEREST COVER RATIO:
1. UK Group EBITDA for the Relevant Period:
(All line items below refer to the Relevant Period)
-160-
164
UK Group net income
-------------------
Plus
Any tax provisions
-------------------
Plus
Any interest, commissions, discounts or
other fees, and any amounts related to
interest hedging arrangements
-------------------
Plus
Any exceptional or extraordinary items
-------------------
Plus
Any amortisation and depreciation
-------------------
UK GROUP EBITDA FOR THE RELEVANT PERIOD
-------------------
2. Total Net Finance Charges (for the Relevant Period):
Aggregate amount of interest
-------------------
on Total Net Debt
Plus
Commission, fees, and finance
payments payable by Target Group under
interest hedging arrangements
-------------------
Minus
Commission, fees, and finance
payments receivable by Target Group
-------------------
Minus
Any interest receivable
-------------------
TOTAL NET FINANCE CHARGES
-------------------
3. Ratio:
-------------------
-161-
165
SCHEDULE 7
FORM OF BORROWER ACCESSION MEMORANDUM
To: Chase Manhattan International Limited
From: [Subsidiary]
and
[Cable & Wireless Communications (Holdings) plc (the "CWC
PARENT")/ NTL Communications Limited (the "PARENT").]
Dated:
Dear Sirs,
1. We refer to an agreement (the "CREDIT AGREEMENT") dated o May 2000 and
made between, among others, NTL Business Limited as the Original
Borrower, Chase Manhattan International Limited as agent and the
financial institutions defined therein as Banks.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. The [CWC] Parent requests that [Subsidiary] become an Additional Borrower
pursuant to Clause 33.1 (Request for Additional Borrower) of the Credit
Agreement.
4. [Subsidiary] is duly organised under the laws of [name of relevant
jurisdiction].
5. [Subsidiary] confirms that it has received from the [CWC] Parent a true
and up-to-date copy of the Credit Agreement.
6. [Subsidiary] undertakes, upon its becoming a Borrower, to perform all the
obligations expressed to be undertaken under the Credit Agreement by a
Borrower and agrees that it shall be bound by the Credit Agreement in all
respects as if it had been an original party thereto as an Original
Borrower.
7. [The [CWC] Parent confirms that, if [Subsidiary] is accepted as an
Additional Borrower, its guarantee obligations pursuant to Clause 21
(Guarantee and Indemnity) of the Credit Agreement will apply to all the
obligations of [Subsidiary] under the Finance Documents in all respects
in accordance with the terms of the Credit Agreement.]
8. The [CWC] Parent:
(a) repeats the Repeated Representations; and
(b) confirms that no Event of Default or Potential Event of Default is
continuing or would occur as a result of [Subsidiary] becoming an
Additional Borrower.
9. [Subsidiary] makes the representations and warranties referred to in
sub-clause 16.1.1 of Clause 16.1 (Representing Parties).
-162-
166
10. [Subsidiary's] administrative details are as follows:
Address:
Fax No.:
11. [Subsidiary] agrees that the documents which start any Proceedings and
any other documents required to be served in relation to those
Proceedings may be served on it at [address of Subsidiary's place of
business in England] or at any address in Great Britain at which process
may be served on it in accordance with Part XXIII of the Companies Act
1985]/[on name of process agent in England at address of process agent
or, if different, its registered office. If [[Subsidiary] ceases to have
a place of business in Great Britain]/[the appointment of the person
mentioned above ceases to be effective], [Subsidiary] shall immediately
appoint another person in England to accept service of process on its
behalf in England. If it fails to do so (and such failure continues for a
period of not less than fourteen days), the Agent shall be entitled to
appoint such a person by notice. Nothing contained herein shall restrict
the right to serve process in any other manner allowed by law. This
applies to Proceedings in England and to Proceedings elsewhere.]
12. [Notwithstanding any other provision of the Finance Documents, the
Additional Borrower shall not, prior to the Pushdown Date, be liable for
or in respect of, or to procure the performance of, any obligations of
the Original Borrower or any member of the Target Group nor, prior to the
Pushdown Date, shall there be any recourse to the Additional Borrower for
any representation, warranty or certification made in respect of the
Original Borrower or any member of the Target Group or any document,
circumstances or matter pertaining to any member of the Target Group or
the Original Borrower nor prior to the Pushdown Date, shall any member of
the Group (other than the Original Borrower and any members of the Target
Group) be liable for any commitment commission or costs, expenses or
taxes arising in connection with the availability of the Revolving
Facility or the utilisation of the Revolving Facility by the Original
Borrower or any member of the Target Group nor, prior to the Pushdown
Date shall any of the Finance Parties exercise any right to consolidate
or set-off credit balances maintained by any member of the Group (other
than the Original Borrower or any member of the Target Group) against any
obligations or liabilities of the Original Borrower or any member of the
Target Group.]1
13. This Memorandum shall be governed by English law.
[CABLE & WIRELESS COMMUNICATIONS [Subsidiary]
(HOLDINGS) plc/NTL COMMUNICATIONS LIMITED]
By: By:
----------------------------------- ------------------------
-163-
167
SCHEDULE 8
FORM OF GUARANTOR ACCESSION MEMORANDUM
To: Chase Manhattan International Limited
From: [Subsidiary] (the "ADDITIONAL GUARANTOR")
and
[Cable & Wireless Communications (Holdings) plc (the "CWC PARENT")/
NTL Communications Limited (the "PARENT")]
Dated:
Dear Sirs,
1. We refer to an agreement (the "CREDIT AGREEMENT") dated May 2000 and
made between, among others, NTL Business Limited as the Original
Borrower, Chase Manhattan International Limited as agent and the
financial institutions defined therein as Banks.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. The [CWC] Parent requests that the Additional Guarantor become a
Guarantor pursuant to Clause 34.1 (Request for Guarantor) of the Credit
Agreement.
4. The Additional Guarantor is duly organised under the laws of [name of
relevant jurisdiction].
5. The Additional Guarantor confirms that it has received from the [CWC]
Parent a true and up-to-date copy of the Credit Agreement and a list of
the Borrowers as at the date hereof.
6. The Additional Guarantor undertakes, upon its becoming a Guarantor, to
perform all the obligations expressed to be undertaken under the Credit
Agreement by a Guarantor and agrees that it shall be bound by the Credit
Agreement in all respects as if it had been an original party thereto as
a Guarantor.
7. The [CWC] Parent:
(a) repeats the Repeated Representations; and
(b) confirms that no Event of Default or Potential Event of Default is
continuing or would occur as a result of the Additional Guarantor
becoming a Guarantor.
8. The Additional Guarantor makes the representations and warranties
referred to in sub-clause 16.1.1 of Clause 16.1 (Representing Parties)
insofar as such representations and warranties are Repeated
Representations.
-164-
168
9. The Additional Guarantor's administrative details are as follows:
Address:
Fax No.:
10. The Additional Guarantor agrees that the documents which start any
Proceedings and any other documents required to be served in relation to
those Proceedings may be served on it at [address of Subsidiary's place
of business in England] or at any address in Great Britain at which
process may be served on it in accordance with Part XXIII of the
Companies Act 1985] / [on name of process agent in England at address of
process agent or, if different, its registered office. If the Additional
Guarantor ceases to have a place of business in Great Britain]/[ the
appointment of the person mentioned above ceases to be effective], the
Additional Guarantor shall immediately appoint another person in England
to accept service of process on its behalf in England. If it fails to do
so (and such failure continues for a period of not less than fourteen
days), the Agent shall be entitled to appoint such a person by notice.
Nothing contained herein shall restrict the right to serve process in any
other manner allowed by law. This applies to Proceedings in England and
to Proceedings elsewhere.]
11. [Notwithstanding any other provision of the Finance Documents, the
Additional Guarantor shall not, prior to the Pushdown Date, be liable for
or in respect of, or to procure the performance of, any obligations of
the Original Borrower or any member of the Target Group nor, prior to the
Pushdown Date, shall there be any recourse to the Additional Guarantor
for any representation, warranty or certification made in respect of the
Original Borrower or any member of the Target Group or any document,
circumstances or matter pertaining to any member of the Target Group or
the Original Borrower nor prior to the Pushdown Date, shall any member of
the Group (other than the Original Borrower and any member of the Target
Group) be liable for any commitment commission or costs, expenses or
taxes arising in connection with the availability of the Revolving
Facility or the utilisation of the Revolving Facility by the Original
Borrower or any member of the Target Group nor, prior to the Pushdown
Date shall any of the Finance Parties exercise any right to consolidate
or set-off credit balances maintained by any member of the Group (other
than the Original Borrower or any member of the Target Group) against any
obligations or liabilities of the Original Borrower or any member of the
Target Group.]2
12. This Memorandum shall be governed by English law.
13. This Memorandum is executed and delivered as a deed by [the Additional
Guarantor].
----------------------------------------------------
[Director of [Subsidiary]
-----------------------------------------------------
-165-
169
Director/Secretary of [Subsidiary]]
or
[The Common Seal of [Subsidiary]
was affixed to this deed in the presence of
------------------------------------
Director of [Subsidiary]
------------------------------------
Director/Secretary of [Subsidiary]]**
[CABLE & WIRELESS COMMUNICATIONS (HOLDINGS) PLC/
NTL COMMUNICATIONS LIMITED]
By:
----------------------------------------
-166-
170
SCHEDULE 9
CWC ACCESSION MEMORANDUM
To: Chase Manhattan International Limited
From: Cable & Wireless Communications (Holdings) plc ("CWC HOLDINGS")
and
NTL Business Limited (the "ORIGINAL BORROWER")
Dated: [ ]
Dear Sirs,
1. We refer to an agreement (the "CREDIT AGREEMENT") dated May 2000 and
made between, among others, the Original Borrower, Chase Manhattan
International Limited as agent and the financial institutions defined
therein as Banks.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. The Original Borrower requests that CWC Holdings becomes:
(a) a Guarantor; and
(b) the CWC Parent,
in each case pursuant to Clause 34 (Accession of Guarantors and the CWC
Parent) of the Credit Agreement.
4. CWC Holdings is a company duly incorporated under English law (company
number 3922682).
5. CWC Holdings confirms that it has received from the Original Borrower a
true and up-to-date copy of the Credit Agreement and a list of the
Borrowers as at the date hereof.
6. CWC Holdings undertakes:
(a) upon its becoming a Guarantor, to perform all the obligations
expressed to be undertaken under the Credit Agreement by a
Guarantor; and
(b) upon its becoming the CWC Parent, to perform all the obligations
expressed to be undertaken under the Credit Agreement by the CWC
Parent,
and agrees that it shall be bound by the Credit Agreement in all respects
as if it had been an original party thereto as a Guarantor and the CWC
Parent.
7. The Original Borrower:
(a) repeats the Repeated Representations; and
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(b) confirms that no Event of Default or Potential Event of Default is
continuing or would occur as a result of CWC Holdings becoming a
Guarantor and the CWC Parent.
8. CWC Holdings makes the representations and warranties referred to in
sub-clause 16.1.2 and 16.1.3 of Clause 16.1 (Representing Parties).
9. CWC Holdings' administrative details are as follows:
Address:
Fax No.:
10. This Memorandum shall be governed by English law.
11. This Memorandum is executed and delivered as a deed by CWC Holdings.
CABLE & WIRELESS COMMUNICATIONS (HOLDINGS) PLC
Executed as a Deed for it and on its behalf
By:
-------------------------------------
Director
------------------------------------
Director/Secretary
NTL BUSINESS LIMITED
By:
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SCHEDULE 10
ADDITIONAL CONDITIONS PRECEDENT
PART A
ACCESSION CONDITIONS PRECEDENT
1. Copies, certified as at the date of the relevant Accession Memorandum a
true and up-to-date copies by an Authorised Signatory of the proposed
Additional Obligor, of:
(a) if such a proposed Additional Obligor is incorporated in a state
of the United States of America, the certificate of incorporation,
by laws and a certificate of good standing of such a proposed
Additional Obligor; or
(b) in all other cases, the constitutional documents of such proposed
Additional Obligor.
2. A copy, certified as at the date of the relevant Accession Memorandum a
true and up-to-date copy by an Authorised Signatory of the proposed
Additional Obligor, of a board resolution of such proposed Additional
Obligor approving the execution and delivery of an Accession Memorandum,
the accession of such proposed Additional Obligor to this Agreement and
the performance of its obligations under the Finance Documents and
authorising a named person or persons to sign such Accession Memorandum,
any other Finance Document and any other documents to be delivered by
such proposed Additional Obligor pursuant thereto.
3. A certificate of an Authorised Signatory of the proposed Additional
Obligor setting out the names and signatures of the person or persons
authorised to sign, on behalf of such proposed Additional Obligor, the
Accession Memorandum, any other Finance Documents and any other documents
to be delivered by such proposed Additional Obligor pursuant thereto
(including, without limitation, a Debenture and the other Security
Documents to be delivered pursuant to Part B (Security Documentation) of
this Schedule) and the deed of accession referred to in paragraph 11 of
this Schedule.
4. A certificate of an Authorised Signatory of the proposed Additional
Obligor confirming that the utilisation of the Revolving Facility would
not breach any restriction of its borrowing and/or guaranteeing powers.
5. If the proposed Additional Obligor is (a) to become an Additional
Borrower and (b) organised under the laws of any state of the United
States of America a certificate from NTL Holdings providing NTL Holding's
consent to such a proposed Additional Obligor borrowing under the
Revolving Facility.
6. If the proposed Additional Obligor is incorporated in a jurisdiction
other than England and Wales, a copy, certified a true copy by or on
behalf of the proposed Additional Obligor, of each such law, decree,
consent, licence, approval, registration or declaration as is, in the
reasonable opinion of counsel to the Banks, necessary to render the
relevant Accession Memorandum legal, valid, binding and enforceable, to
make
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such Accession Memorandum admissible in evidence in the proposed
Additional Obligor's jurisdiction of incorporation and to enable the
proposed Additional Obligor to perform its obligations thereunder and
under the other Finance Documents.
7. If requested by the Agent, a copy, certified a true copy by an Authorised
Signatory of the proposed Additional Obligor, of its latest financial
statements.
8. An opinion of the Banks' counsel in the jurisdiction in which the
proposed Additional Obligor is incorporated in form and substance
reasonably satisfactory to the Agent.
9. If the proposed Additional Obligor is to become a Guarantor and is
incorporated in England and Wales, a letter from the CWC Parent to the
Agent (attaching supporting advice from the CWC Parent's English
solicitors) confirming that such proposed Additional Obligor is not
prohibited by section 151 of the Companies ▇▇▇ ▇▇▇▇ from entering into
the Finance Documents and performing its obligations thereunder.
10. If the proposed Additional Obligor is incorporated in a jurisdiction
other than England and Wales, evidence that the process agent specified
in the relevant Accession Memorandum has agreed to act as its agent for
the service of process in England.
11. A deed of accession to the Security Trust Agreement executed by the
proposed Additional Obligor, substantially in the form set out in
schedule 1 (Form of Obligor Deed of Accession) to the Security Trust
Agreement.
12. Where the proposed Additional Obligor is to become an Additional
Borrower, a Guarantor Accession Memorandum executed by such a proposed
Additional Obligor PROVIDED THAT the liability of any member of the UK
Group under such a Guarantor Accession Memorandum delivered prior to the
Pushdown Date shall be limited to the obligations of other members of the
UK Group under the Finance Documents.
13. Other than in respect of the accession of the members of the Target Group
specified in Schedule 13 (Members of the Target Group Providing
Guarantees and Security) in accordance with Clause 19.17
(Post-Acquisition Date Security), the documents and evidence specified in
Part B (Security Documentation) of this Schedule.
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PART B
SECURITY DOCUMENTATION
1. If the relevant Additional Obligor is incorporated in England and Wales,
Northern Ireland or Scotland a Debenture and, if relevant, Standard
Securities and Northern Irish supplemental mortgages, executed by the
proposed Additional Obligor.
2. If the relevant Additional Obligor is incorporated in a state of the
United States of America:
(a) a general security agreement executed by such an Additional
Obligor granting the Security Trustee a security interest in all
of its assets;
(b) if applicable, a pledge agreement executed by such an Additional
Obligor pledging to the Security Trustee all of the shares and
other securities held by it; and
(c) UCC Financing Statements filed against such an Additional Obligor.
3. If the relevant Additional Obligor is incorporated in a jurisdiction
other than those mentioned in paragraphs 1 and 2 above, such duly
executed Security Documents as the Agent may reasonably require to secure
substantially all of the assets of such an Additional Obligor.
4. Where the relevant Additional Obligor is granting security over a
Principal Property:
(a) a Report on Title relating to that Principal Property;
(b) delivery of all title deeds and documents relating to that
Principal Property as set out in the agreed form schedule;
(c) if that Principal Property is situated in England and Wales and is
registered at HM Land Registry, official priority searches in
favour of the Agent of the registers of title of each of the
registered titles comprising such Principal Property which confirm
a period of priority of no less than 14 days;
(d) if that Principal Property is situated in England and Wales and is
unregistered, official priority searches in favour of the Agent in
respect of each of the Land Charges Registers against all relevant
estate owners since the date of the root conveyance;
(e) if that Principal Property is situated in Northern Ireland, a
priority search issued by the Land Registry in Northern Ireland
which is valid and in force which confirms a sufficient period of
priority;
(f) if that Principal Property is situated in Scotland and its title
is registered in the Land Register of Scotland, a Form 13 Report;
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(g) if that Principal Property is situated in Scotland and its title
is recorded in the General Register of Sassiness, appropriate
personal searches;
(h) if that Principal Property is situated in Scotland, letters of
obligation in a form which reflects current professional practice
in Scotland;
(i) if that Principal Property is situated in a state of the United
States of America, a mortgage executed by such an Additional
Obligor over that Principal Property (together with title,
insurance and such other documents as the Agent may reasonably
require);
(j) notices of charge in duplicate to each of the landlords and
licensors or other third parties interested in respect of that
Principal Property, and cheques for any relevant registration
fees;
(k) if that Principal Property is located in England and Wales, such
Land Registry forms in relation to that Principal Property,
including Forms AP1 (if necessary) Forms FR1 or the equivalent and
other forms as the Agent may reasonably require, duly completed by
and on behalf of the proposed Additional Obligor, together with
cheques for the payment of all Land Registry fees (including fees
for expedition) or, if the Principal Property is situated in
Scotland, all recording/registration dues payable in connection
with the registration or recording of the security created over
that Principal Property by or pursuant to the terms of any
Debenture;
(l) any other document, form or fee reasonably required to enable
security to be registrable and effective in any relevant
jurisdiction and all third party consents necessary for the
creation or perfection of any security; and
(m) an undertaking from a solicitor satisfactory to the Agent to use
all reasonable endeavours to satisfy any requisitions raised by HM
Land Registry or other analogous bodies in connection with the
application to register any security over such a Principal
Property.
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SCHEDULE 11
FORM OF RESIGNATION NOTICE
To: Chase Manhattan International Limited
From: [NTL Incorporated ("NTL HOLDINGS")/
NTL Communications Limited (the "PARENT")]
Dated:
Dear Sirs,
1. We refer to an agreement (the "CREDIT AGREEMENT") dated o May 2000 and
made between, among others, NTL Business Limited as the Original
Borrower, Chase Manhattan International Limited as agent and the
financial institutions defined therein as Banks.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. [We declare that [name of Borrower] is under no actual or contingent
obligation under any Finance Document in its capacity as a Borrower.]*
4. Pursuant to Clause [33.3 (Resignation of a Borrower)]/[34.3 (Resignation
of a Guarantor)] we hereby request that [name of Obligor] shall cease to
be a [Borrower]/[Guarantor] under the Credit Agreement.
5. The aggregate EBITDA of the remaining Guarantors for the last financial
year of [Cable & Wireless Communications (UK) Holdings plc/the Parent]
equalled or exceeded [90/95] per cent. of the consolidated EBITDA of the
[Target Group/UK Group] for such a financial year.]**
Yours faithfully
[NTL INCORPORATED/
NTL COMMUNICATIONS LIMITED]
* Delete if notice is for a Guarantor.
** Delete if notice is for a Borrower.
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SCHEDULE 12
MANDATORY COSTS
1. The Mandatory Cost Rate is an addition to the interest rate to compensate
Banks for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2. On the first day of each Term (or as soon as possible thereafter) the
Agent shall calculate, as a percentage rate, a rate (the "ADDITIONAL
COSTS RATE") for each Bank, in accordance with the formula set out below.
The Mandatory Cost Rate will be calculated by the Agent as a weighted
average of the Banks' additional costs rates rounded to five decimal
places (weighted in proportion to the percentage participation of each
Bank in the relevant Revolving Advance) and will be expressed as a
percentage rate per annum.
3. The additional costs rate for any Bank lending from a Facility Office in
a Participating Member State will be notified by that Bank to the Agent
as the cost of complying with the minimum reserve requirements of the
European Central Bank.
4. The additional cost rate for any Bank lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
AB+C(B-D)+Ex0.01
________________________ per cent. per annum.
100-(A+C)
Where:
A is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Bank is from time to time
required to maintain as an interest free cash ratio deposit with
the Bank of England to comply with cash ratio requirements.
B is the percentage rate of interest (excluding the Margin and the
Mandatory Cost Rate) payable for the relevant Term on the
Revolving Loan.
C is the percentage (if any) of Eligible Liabilities which that Bank
is required from time to time to maintain as interest bearing
Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to
the Agent on interest bearing Special Deposits.
E is the rate of charge payable by that Bank to the Financial
Services Authority pursuant to the Fees Regulations (but, for this
purpose, ignoring any minimum fee required pursuant to the Fees
Regulations) and expressed in pounds per L1,000,000 of the Fee
Base of that Bank.
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5. For the purposes of this Schedule:
(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings
given to them from time to time under or pursuant to the Bank of
England Act 1998 or (as may be appropriate) by the Bank of
England;
(b) "FEES REGULATIONS" means the Banking Supervision (Fees)
Regulations 1999 or such other law or regulation as may be in
force from time to time in respect of the payment of fees for
banking supervision; and
(c) "FEE BASE" has the meaning given to it, and will be calculated in
accordance with, the Fees Regulations.
6. In application of the above formula, A, B, C and D will be included in
the formula as percentages (i.e. 5 per cent. will be included in the
formula as 5 and not as 0.05). A negative result obtained by subtracting
D from B shall be taken as zero.
7. Each Bank shall supply any information required by the Agent for the
purpose of calculating its additional costs rate. In particular, but
without limitation, each Bank shall supply the following information in
writing on or prior to the date on which it becomes a Bank:
(a) its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
(b) such other information that the Agent may reasonably require for
such purpose.
Each Bank shall promptly notify the Agent in writing of any change to the
information provided by it pursuant to this paragraph.
8. The percentages or rates of charge of each Bank for the purpose of A, C
and E above shall be determined by the Agent based upon the information
supplied to it pursuant to paragraph 7 above and on the assumption that
unless a Bank notifies the Agent to the contrary, each Bank's obligations
in relation to cash ratio deposits, Special Deposits and the Fee
Regulations are the same as those of a typical bank from its jurisdiction
of incorporation with a Facility Office in the same jurisdiction as its
Facility Office.
The Agent shall have no liability to any person if such determination
results in an additional costs rate which over or under compensates any
Bank and shall be entitled to assume that the information provided by any
Bank pursuant to paragraphs 3 and 7 above is true and correct in all
respects.
9. The Agent shall distribute the additional amounts received pursuant to
the Mandatory Cost Rate to the Banks on basis of the additional cost rate
incurred by each Bank, as calculated in accordance with the above formula
and based on the information provided by each Bank pursuant to paragraphs
3 and 7 above.
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10. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost Rate, an additional costs rate or any amount
payable to a Bank shall, in the absence of manifest error, be conclusive
and binding on all of the parties hereto.
11. The Agent may from time to time, after consultation with the Parent (on
behalf of the Borrowers) and the Banks, determine and notify to all
parties any amendments or variations which are required to be made to
this Schedule in order to comply with any change in law, regulation or
any requirements from time to time imposed by the Bank of England, the
Financial Services Authority or the European Central Bank (or, in either
case, any other authority which replaces all or any of its functions) and
any such determination shall, in the absence of manifest error, be
conclusive and binding on all the parties hereto.
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SCHEDULE 13
MEMBERS OF THE TARGET GROUP GRANTING SECURITY
In the table set out below, "Crown" means either CWC or Cable & Wireless
Communications, as the case may be.
NAME OF MEMBER OF THE TARGET GROUP JURISDICTION OF COMPANY NUMBER (IF
INCORPORATION APPLICABLE)
Cable & Wireless Communications Limited England 3288998
Crown Programming Limited England 3403986
Crown Services Limited England 3403985
Crown (Chichester) Limited England 3056817
Crown (N) UK England 2463427
Crown Acquisition Company Limited England 2270117
Crown Holdings (East London) Limited England 2032186
Crown (South East) Limited England 1870928
Crown Equipment No 1 Limited England 2794518
Crown (Kent) Limited England 2456153
Crown (Aylesbury and Chiltern) Limited England 2416084
Crown (County Durham) Limited England 3128449
Crown (Eastbourne and Hastings) Limited England 3074517
Crown Holdings (Broadland) Limited England 2427172
Crown (Broadland) Limited England 2443741
Crown Holdings (Fenland) Limited England 2427199
Crown (Fenland) Limited England 2459153
Crown Holdings (Leeds) Limited England 2766909
Crown (Leeds) Limited England 2400103
Crown Holdings (Norwich) Limited England 2412962
Crown (Norwich) Limited England 2332233
Crown Holdings (Peterborough) Limited England 2888397
Crown (Peterborough) Limited England 2332232
Crown Management Limited England 2924200
Crown (Wearside) Limited England 2475099
Crown (Sunderland) Limited England 2402393
Crown (Yorcan) Limited England 2371785
Crown (Harrogate) Limited England 2404019
Crown (York) Limited England 2406267
Crown (CRUK) Limited England 2329254
Crown (V) Holdings Plc England 2719474
Crown (City and Westminster) Limited England 2809080
Crown Corporation Limited England 2719477
Crown (Ealing) Limited England 1721894
Crown Equipment No 2 Limited England 2071491
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NAME OF MEMBER OF THE TARGET GROUP JURISDICTION OF COMPANY NUMBER (IF
INCORPORATION APPLICABLE)
Crown (Hampshire) Limited England 2351070
Crown No 4 Limited England 2351068
Crown (Harrow) Limited England 2459179
Crown No 2 Limited England 2441766
Crown No 3 Limited England 2441768
Crown (Southampton and Eastleigh) Limited England 1866504
Crown (South London) Limited England 657093
Crown (Greenwich and Lewisham) Limited England 2254009
Crown (Lambeth and Southwark) Limited England 2277986
Crown (Wandsworth) Limited England 1866178
Crown (Thamesmead) Limited England 2461140
Crown (West London) Limited England 1735664
Crown Chartwell Holdings Limited England 3290823
Crown Winston Holdings Limited England 3290821
Crown CableComms Group PLC England 3024703
North CableComms Holdings, Inc. Delaware
North CableComms Management, Inc. Delaware
North CableComms LLC Delaware
NYNEX CableComms Group, Inc Delaware
NYNEX Chartwell Holdings, Inc Delaware
Crown (N) UK Telephone and Cable
TV Holdings Company Limited England 2511877
Crown CableComms Lancashire No 1 England 2453249
Crown CableComms Lancashire No 2 England 2453059
Crown CableComms Limited England 2664006
Crown CableComms Manchester Limited England 2511868
Crown CableComms West Surrey Limited England 2512757
Crown (N) Microclock Services Limited England 2861856
Crown (N) Partcheer Company Limited England 2861817
Crown (N) Sideoffer Limited England 2927099
Crown (N) Solent Telephone and Cable TV Company Limited England 2511653
Crown (N) Streetunique Projects Limited England 2851203
Crown (N) Streetunit Projects Limited England 2851201
Crown (N) Streetusual Services Limited England 2851019
Crown (N) Streetvision Services Limited England 2851020
Crown (N) Streetvital Services Limited England 2851021
Crown (N) Streetwarm Services Limited England 2851011
Crown (N) Streetwide Services Limited England 2851013
Crown (N) Stikeagent Trading Limited England 2851014
Crown (N) Strikeamount Trading Limited England 2851015
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NAME OF MEMBER OF THE TARGET GROUP JURISDICTION OF COMPANY NUMBER (IF
INCORPORATION APPLICABLE)
Crown (N) Strikeapart Trading Limited England 2851018
Crown (N) Technical Support Company Limited England 2512756
NNS UK Holdings 1, Inc Delaware
NNS UK Holdings 2, Inc Delaware
NYNEX Bromley Company Delaware
NYNEX North CableComms Holdings, Inc Delaware
NYNEX North CableComms Management, Inc Delaware
Crown CableComms Holdings No 1 Limited England 3709869
Crown CableComms Bury and Rochdale England 2446183
Crown CableComms Cheshire England 2379804
Crown CableComms East Lancashire England 2114543
Crown (N) Wirral Telephone and Cable TV Company England 2511873
Crown CableComms Macclesfield England 2459067
Crown CableComms Oldham and Tameside England 2446185
Crown CableComms Staffordshire England 2379800
Crown CableComms Stockport England 2443484
Crown CableComms Wirral England 2531604
Crown (N) Bolton Cablevision Holdings Company England 2422198
Crown Cablecomms Bolton England 1883383
Crown Derby Cablevision Holdings Company England 2422310
Crown CableComms Derby England 2387713
Crown (N) Manchester Cablevision Holding Company England 2455631
Crown CableComms Greater Manchester England 2407924
NYNEX Programming Subsidiary Company Delaware
NYNEX South CableComms Holdings, Inc Delaware
NYNEX South CableComms Management, Inc Delaware
Crown CableComms Holdings No 2 Limited England 3709840
Crown CableComms Bromley England 2422195
Crown CableComms Solent England 2422654
Crown CableComms Surrey England 2531586
Crown CableComms Sussex England 2266092
Crown CableComms Wessex England 2410378
NYNEX Winston Holdings, Inc Delaware
Winston Investors LLC Delaware
South CableComms Holdings, Inc Delaware
South CableComms Management, Inc Delaware
South CableComms LLC Delaware
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NAME OF MEMBER OF THE TARGET GROUP JURISDICTION OF COMPANY NUMBER (IF
INCORPORATION APPLICABLE)
NYNEX Chartwell Holdings 2, Inc. Delaware
NYNEX Solent Company Delaware
NYNEX Surrey Company Delaware
NYNEX Sussex Company Delaware
NYNEX UK Cablecomms Holdings, Inc. Delaware
NYNEX Wessex Company Delaware
NYNEX Wirral Company Delaware
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SCHEDULE 14
MEMBERS OF THE UK GROUP
NAME JURISDICTION OF COMPANY NUMBER (IF
INCORPORATION APPLICABLE)
NTL Communications Limited England 3521915
NTL Kirklees England 2495460
CableTel West Riding Limited England 2372564
NTL Investment Holdings Limited England 3173552
CableTel Scotland Limited Scotland SC119938
NTL Glasgow Scotland SC075177
CableTel ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Limited England 2857050
CableTel Cardiff Limited England 2740659
CableTel ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Limited England 3092897
NTL Group Limited England 2591237
National Transcommunications Limited England 2487597
CableTel Surrey and Hampshire Limited England 2740651
CableTel Northern Ireland Limited Northern Ireland NI029131
NTL Internet Limited England 2985161
NTL Telecom Services Limited England 2937788
Enablis Limited England 3144815
CableTel Hertfordshire Limited England 2381354
CableTel Telecom Supplies Limited England 2919285
Columbia Management Limited England 2361163
Secure Backup Systems Limited England 3130333
NTL Networks Limited England 3045209
DTELS Limited England 2834403
CableTel Central Hertfordshire Limited England 2347168
CableTel Herts and Beds Limited England 1785533
CableTel North Bedforshire Limited England 2455397
Digital Television Network Limited England 3288768
Prospectre Limited Scotland SC145280
Metro Hertfordshire Limited England 3092899
NTL Systems Limited England 3217975
Andover Cablevision Limited England 1932254
ComTel Coventry Limited England 277802
Tamworth Cable Communications Limited England 3016602
CableTel (UK) Limited England 2835551
Lichfield Cable Communications Limited England 3016595
Vision Networks Services UK Limited England 3135501
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NAME JURISDICTION OF COMPANY NUMBER (IF
INCORPORATION APPLICABLE)
Wessex Cable Limited England 2433185
Oxford Cable Limited England 2450228
ComTel Cable Services Limited England 2265315
NTL Limited England 2586701
Heartland Cablevision (UK) Limited England 2415170
CableTel Investments Limited England 3157216
▇▇▇▇▇▇▇▇ Communications Limited England 2381842
Heartland Cablevision II (UK) Limited England 2443617
CableTel Limited England 2857052
NTL ▇▇▇▇▇▇ Keynes Limited England 2410808
NTL ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Cable Limited England 318216
Bracknell Cable TV Limited England 2499321
Cable Thames Valley Limited England 2254089
Cable Television Limited England 683065
NTL South Central Limited England 2387692
Maza Limited England 2785299
Berkhamsted Properties & Building Contractors Limited England 958564
South Yorkshire Cablevision (UK) Limited England 2420981
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SCHEDULE 15
UK GROUP PRINCIPAL PROPERTIES
OFFICES
1. Crawley Court
SWITCH STATIONS/HEADENDS
1. Guildford.
2. Huddersfield.
3. Cardiff.
4. Renfrew.
5. Luton.
6. Belfast.
7. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (freehold).
8. ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
9. Unit K2 Gildersom Spur Distribution Centre Leeds.
10. ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
11. ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
12. ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
13. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇.
TRANSMISSION SITES
1. Croydon.
2. St. Hilary.
3. Black Hill.
4. Emley Moor.
5. Lichfield.
6. Moel Y Parc.
7. Ridge Hill.
8. ▇▇▇▇▇▇ ▇▇▇▇.
▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
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10. Black Mountain.
OTHER
1. Morne Hill, Winchester.
2. ▇▇▇▇▇▇ Street, London.
3. ▇▇▇▇ ▇, ▇▇▇▇▇▇▇.
4. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇.
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SCHEDULE 16
FORM OF REPORT ON TITLE
1. Property name and address:
2. Owner:
(a) legal
(b) beneficial
3. Tenure:
4. If leasehold:
(a) term
(b) is charging permitted?
(c) is assignment permitted?
(d) any unduly onerous lease covenants
(e) permitted use
(f) forfeiture only on breach of covenant and non-payment of rent
5. If registered, title number and quality of title:
6. Restrictions or impediments on sale (other than mentioned above):
7. Other material comments:
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SIGNATURES
THE PARENT
NTL COMMUNICATIONS LIMITED
By: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
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Attention: Company Secretary
THE ORIGINAL BORROWER
NTL BUSINESS LIMITED
By: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇
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Attention: Company Secretary
NTL COMMUNICATIONS CORP.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ PLC
By: ▇▇▇ ▇. ▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ BANK LIMITED
By: MATHIAS BLUMSCHEIN
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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THE AGENT
CHASE MANHATTAN INTERNATIONAL LIMITED
By: ▇▇▇ ▇. ▇▇▇▇▇
Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Fax: ▇▇▇(▇) ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Loans Agency Department
THE SECURITY TRUSTEE
CHASE MANHATTAN INTERNATIONAL LIMITED
By: ▇▇▇ ▇. ▇▇▇▇▇
Address: Trinity Tower
9 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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Fax: ▇▇▇(▇) ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
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THE BANKS
THE CHASE MANHATTAN BANK
By: ▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ BANK LIMITED
By: MATHIAS BLUMSCHEIN
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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