EXHIBIT 10.59
CONFORMED COPY
DATED 22 MAY 1996
LOAN AGREEMENT
for a
(pound)1,200,000,000 Credit Facility
to
TELEWEST COMMUNICATIONS NETWORKS LIMITED
THE BANK OF NEW YORK
CIBC WOOD GUNDY PLC
CHASE INVESTMENT BANK LIMITED
NATWEST MARKETS
and
THE TORONTO-DOMINION BANK
ARRANGERS
CIBC WOOD GUNDY PLC
AGENT
CIBC WOOD GUNDY PLC
SECURITY TRUSTEE
AS AMENDED PURSUANT TO AN AMENDMENT AGREEMENT DATED 31 MAY 1996,
A SECOND AMENDMENT AGREEMENT DATED 2 AUGUST 1996,
A THIRD AMENDMENT LETTER DATED 11 SEPTEMBER 1996
AND A FOURTH AMENDMENT AGREEMENT DATED 27 MARCH 1998
CONTENTS
PURPOSE AND DEFINITIONS...............................................1
THE FACILITY.........................................................26
CONDITIONS...........................................................27
REVOLVING ADVANCES...................................................27
INTEREST AND INTEREST PERIODS; ALTERNATIVE INTEREST RATES............33
REPAYMENT, PREPAYMENT AND CANCELLATION...............................36
FEES AND EXPENSES....................................................39
PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS........................41
REPRESENTATIONS AND WARRANTIES.......................................44
POSITIVE COVENANTS...................................................54
NEGATIVE COVENANTS...................................................63
FINANCIAL COVENANTS..................................................66
EVENTS OF DEFAULT....................................................71
INDEMNITIES..........................................................77
UNLAWFULNESS AND INCREASED COSTS; MITIGATION........................78
SET-OFF AND PRO RATA PAYMENTS........................................81
ASSIGNMENT, SUBSTITUTION AND LENDING OFFICES.........................82
ARRANGERS, AGENT AND REFERENCE BANKS.................................85
NOTICES AND OTHER MATTERS............................................89
LEASE FINANCING AND PARI PASSU BORROWINGS............................91
GOVERNING LAW AND JURISDICTION.......................................91
SCHEDULE 1
Part A The Original Charging Subsidiaries
Part B The Original Charging Partnerships
Part C The Original Non-Charging Subsidiaries
Part D The Banks and their Commitments
SCHEDULE 2
Part A Form of Drawdown Notice
Part B Form of Rollover Notice
Part C Form of Conversion Notice
SCHEDULE 3
Documents and evidence required as conditions precedent
SCHEDULE 4
Calculation of Additional Cost
SCHEDULE 5
Form of Substitution Certificate
SCHEDULE 6
Form of Compliance Certificate to be issued by an Authorised Officer
of the Borrower
SCHEDULE 7
Form of Deed of Subordination
SCHEDULE 8
Existing Encumbrances
SCHEDULE 9
The Licences
SCHEDULE 10
Principal Agreements
THIS AGREEMENT is dated 22 May, 1996
BETWEEN:
(1) TELEWEST COMMUNICATIONS NETWORKS LIMITED as Borrower;
(2) THE SUBSIDIARIES OF THE BORROWER set out in part A of Schedule 1;
(3) THE ASSOCIATED PARTNERSHIPS OF THE BORROWER set out in part B of Schedule 1;
(4) THE BANK OF NEW YORK, CIBC WOOD GUNDY PLC, CHASE INVESTMENT BANK
LIMITED, NATWEST MARKETS (a division of NATIONAL WESTMINSTER BANK PLC)
and THE TORONTO-DOMINION BANK as Arrangers;
(5) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set
out in Part D of Schedule 1;
(6) CIBC WOOD GUNDY PLC as Agent; and
(7) CIBC WOOD GUNDY PLC as Security Trustee.
IT IS AGREED as follows:
PURPOSE AND DEFINITIONS
PURPOSE
(a) This Agreement sets out the terms and conditions upon and subject
to which all of the Banks agree, according to their several
obligations, to make available to the Borrower a credit facility
of up to(pound)1,000,000,000 to be used (i) to assist in the
financing of the capital expenditure, working capital
requirements and other permitted related activities for the
construction and operation of all the (directly or indirectly)
wholly-owned (save for minority interests approved prior to the
date hereof) cable telephony and television franchises of the
Borrower, (ii) to fund the loans to Telewest referred to in
paragraph (v) of the definition of Permitted Investments, (iii)
to make payments of interest to Telewest on loans made to the
Borrower by Telewest in order to enable Telewest to pay
equivalent cash interest on the Senior Securities and/or to pay
the costs and expenses of Telewest (up to a maximum of the amount
set out in paragraph (b)(i) of the definition of Permitted
Payments), (iv) to assist in the financing of capital expenditure
incurred or to be incurred in relation to the construction of and
investment in the National Network as projected in the Long Range
Plan, (v) to make loans to TCN Entities in order to facilitate
the purposes set out in (i) to (iv) (inclusive) above, (vi) to
repay Advances under Tranche A or Tranche B or to pay interest,
fees and expenses relating to the facility granted pursuant to
this Agreement and/or (vii) to repay from time to time advances
made by Telewest under the 1997 Telewest Letter Agreement.
(b) The credit facility referred to above shall not be utilised for
either the purchase of and/or bid for any Local Delivery
Operator".
1.2 DEFINITIONS
In this Agreement, unless the context otherwise requires:
"1996 BUDGET" means the budget for the TCN Group for the period commencing on 1
January 1996 and ending on 31 December 1996 in the agreed form;
"1997 TELEWEST LETTER AGREEMENT" means the letter agreement dated 11 September
1997 between Telewest and the Borrower regulating the provision by Telewest to
the Borrower of a (pound)50,000,000 uncommitted revolving on-demand credit
facility;
"ADDITIONAL COST" means in relation to any period a percentage calculated for
such period at an annual rate determined by the application of the formula set
out in Schedule 4;
"ADVANCE" means a Revolving Advance or a Term Advance (as applicable);
"AFFILIATE" means each of Birmingham Cable Corporation Limited (no. 2170379),
Cable London plc (no. 1794264) and The Cable Corporation Limited (no. 2075227)
for so long as the Telewest does not materially reduce its direct or indirect
voting or economic interest in such company;
"AGENT" means CIBC Wood Gundy plc of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇ or such other person as may be appointed agent for the Banks pursuant to
clause 18.11;
"AGREED BASE CASE" means the base case financial and operational projections for
the TCN Group produced by the Borrower dated 12 April 1996;
"ANNUAL BUDGET" means a budget in respect of the TCN Group for each financial
year containing information of the same type and to the same level of detail as
the 1996 Budget or containing such other information or to such other level of
detail as has, at the relevant time, been approved in writing by the Agent
acting on the instructions of the Majority Banks;
"ARRANGERS" means The Bank of New York of ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
CIBC Wood Gundy plc of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Chase
Investment Bank Limited of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, Natwest Markets (a
division of National Westminster Bank Plc) of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
and The Toronto-Dominion Bank of Triton Court, ▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇;
"ASSIGNEE" has the meaning ascribed thereto in clause 17.3;
"ASSOCIATED COMPANY" has the meaning attributed thereto in Section 416 of the
Income and Corporation Taxes ▇▇▇ ▇▇▇▇;
"ASSOCIATED PARTNERSHIP" means, in relation to a company, a partnership that is
controlled by that company, or by that company and one or more of its Associated
Companies together, and a company shall be regarded as having control of a
partnership for those purposes if (directly or indirectly, including through
intermediate Associated Partnerships) it possesses, is entitled to, or is
entitled to acquire:
(a) more than 50% of the assets of the partnership; or
(b) more than 50% of the income of the partnership
or if it (directly or indirectly, including through intermediate Associated
Partnerships) is able to direct how the affairs of the partnership are
conducted;
"AUTHORISED OFFICER" means that officer or officers of the Borrower authorised
to sign Compliance Certificates, Drawdown Notices, Rollover Notices, Conversion
Notices and any other notices, requests or confirmations referred to in this
Agreement or relating to the facility granted pursuant to this Agreement;
"AVON LICENCES" means those licences of TCN Entities details of which are set
out in part A of schedule 9;
"BANKING DAY" means a day (other than Saturday or Sunday) on which dealings in
Sterling deposits are carried on in the London Interbank Market and (if payment
is required to be made on such day) on which banks are open for business in
London;
"BANKS" means the banks and financial institutions listed in Part D of schedule
1 and includes their successors in title, Assignees and Substitutes;
"BOND AND FLOATING CHARGES" means the bond and floating charges, in the agreed
form, to be entered into by each Original Charging Subsidiary which is
incorporated in Scotland;
"BORROWED MONEY" means Indebtedness (including, for the avoidance of doubt, but
without double counting, any guarantees of such Indebtedness) in respect of (i)
money borrowed or raised and debit balances at banks, (ii) any bond, note, loan
stock, debenture or similar debt instrument, (iii) acceptance or documentary
credit facilities, (iv) receivables sold or discounted (otherwise than on a
non-recourse basis), (v) payments for assets or services acquired which are
deferred for a period of 90 days or more after the relevant assets or services
were supplied, (vi) hire purchase contracts, (vii) rental payments under Finance
Leases, (viii) guarantees, bonds, standby letters of credit or other instruments
issued in connection with the performance of contracts and (ix) any other
transaction (including without limitation forward sale or purchase agreements
and issues of redeemable shares) having the commercial effect of a borrowing or
raising of money entered into for the purpose of financing a person's
operational or capital requirements provided that in making any calculation of
Borrowed Money under this Agreement no Indebtedness shall be taken into account
more than once;
"BORROWER" means Telewest Communications Networks Limited (formerly Mintdrive
Limited) (No. 3071086) whose registered office is at ▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"BORROWER/TELEWEST TRANSFER AGREEMENTS" means the agreements entered into
between the Borrower and Telewest pursuant to which the Borrower has acquired
from Telewest the shares in Telewest Communications and SBCC in consideration
for which the Borrower has issued shares to Telewest;
"BT INTER-CONNECT AGREEMENTS" means the agreements referred to in part A of
Schedule 10;
"CABLE INTERNET" means any arrangements put in place between, inter alia,
members of the TCN Group and others for the development and provision of
internet services via the Cable Systems; "CABLE SYSTEMS" means the
telecommunications and television systems constructed or to be constructed in
the areas covered by the Licences and includes any part of any such system and
all modifications, substitutions, replacements, renewals and extensions made to
such systems;
"CHARGING PARTNERSHIPS" means the Original Charging Partnerships and any other
partnership which may from time to time accede to this Agreement and any
relevant Security Documents pursuant to a Supplemental Deed;
"CHARGING SUBSIDIARIES" means the Original Charging Subsidiaries and any other
company which may from time to time accede to this Agreement and any relevant
Security Documents pursuant to a Supplemental Deed;
"COMMITMENT" means in relation to a Bank the amount set opposite its name in
Part D of schedule 1 or, as the case may be, in any relevant Substitution
Certificate, as amended by any relevant term of this Agreement;
"COMPLIANCE CERTIFICATE" means either (i) a certificate substantially in the
form set out in schedule 6A in relation to the compliance (or otherwise) with
the undertakings in clause 12 issued by an Authorised Officer in relation to
Quarterly Management Accounts or (ii) a certificate substantially in the form
set out in Schedule 6B in relation to the compliance (or otherwise) with the
undertakings in clause 12 issued by the auditors of the TCN Group in relation to
annual financial statements;
"CONSOLIDATED ANNUALISED TCN GROUP NET OPERATING CASH FLOW" means, for the TCN
Group, twice the aggregate of the Consolidated TCN Group Net Operating Cash Flow
in respect of the relevant Six Month Period for the TCN Group;
"CONSOLIDATED ANNUALISED TELEWEST GROUP NET OPERATING CASH FLOW" means, for the
Telewest Group, twice the aggregate of the Consolidated Telewest Group Net
Operating Cash Flow in respect of the relevant Six Month Period for Telewest
Group;
"CONSOLIDATED TCN GROUP NET OPERATING CASH FLOW" means, in respect of each Six
Month Period, the Net Income of the TCN Group (plus any depreciation,
amortisation, other non-cash expenses and non-cash taxes, interest or other
charges in respect of Borrowed Money) but excluding:
(i) all sums constituting Management Fees accrued in
respect of such Six Month Period to any member of the
TCN Group by any Restricted Person;
(ii) any extraordinary income (except to the extent that
the same is used to meet a related extraordinary
expense), net of any Taxes paid or payable in respect
of such income, of the TCN Group during such Six
Month Period;
(iii) any interest income, net of any Taxes paid or payable
in respect of such income, of the TCN Group for such
Six Month Period;
(iv) any profits or losses attributable to the interest of
the TCN Group in any undertaking (as defined in
section 259 Companies Act 1985) which is not a
subsidiary undertaking (as defined in section 258
Companies Act 1985) of the Borrower;
all as determined in accordance with GAAP used in the preparation of and as
shown in the financial statements, Monthly Management Accounts or Quarterly
Management Accounts in respect of periods within such Six Month Period prepared
and delivered to the Agent pursuant to clause 10.1(f), clause 10.1(g) or clause
10.1(h) (as the case may be);
"CONSOLIDATED TELEWEST GROUP NET OPERATING CASH FLOW" means, in respect of each
Six Month Period, the Net Income of the Telewest Group (plus any depreciation,
amortisation, other non-cash expenses and non-cash taxes, interest or other
charges in respect of Borrowed Money) but excluding:
(i) any extraordinary income (except to the extent that
the same is used to meet a related extraordinary
expense), net of any Taxes paid or payable in respect
of such income, of the Telewest Group during such Six
Month period;
(ii) any interest income, net of any Taxes paid or payable
in respect of such income, of the Telewest Group for
such Six Month Period;
(iii) to the extent included within Net Income any profits
or losses attributable to the interest of the
Telewest Group in any undertaking (as defined in
section 259 Companies Act 1985) which is not a
subsidiary undertaking (as defined in section 258
Companies Act 1985) of the Borrower;
all as determined in accordance with GAAP used in the preparation of and as
shown in the financial statements, Monthly Management Accounts or Quarterly
Management Accounts in respect of periods within such Six Month Period prepared
and delivered to the Agent pursuant to clause 10.1(f), clause 10.1(g) or clause
10.1(h) (as the case may be);
"CONTRIBUTION" means in relation to a Bank the principal amount of the Loan
owing to such Bank at any relevant time;
"CONVERSION DATE" means the date, as specified in the relevant Conversion
Notice, on which any Revolving Advance made under Tranche A is to be converted
to a Revolving Advance under Tranche B, or vice versa, in each case in
accordance with the terms of this Agreement;
"CONVERSION NOTICE" means a notice substantially in the form of Schedule 2C;
"COTSWOLD LICENCES" means those licences of members of the TCN Group details of
which are set out in Part B of schedule 9;
"COX" means ▇▇▇ Communications, Inc. a company incorporated in Delaware whose
principal place of business is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇;
"DEBENTURE" means the composite guarantee and debenture and/or several guarantee
and debentures entered into or to be entered into by the Borrower and each other
TCN Entity in favour of the Security Trustee in the agreed form;
"DEED OF SUBORDINATION" means a deed of subordination to be entered into between
Telewest and the Security Trustee pursuant to the terms of this Agreement,
substantially in the form of schedule 7 or on terms having substantially the
same commercial effect as the form of schedule 7;
"DEFAULT" means any Event of Default or any event or circumstance which with (i)
the giving of any notice referred to in this Agreement, (ii) the lapse of any
period of time referred to in this Agreement or (iii) the satisfaction of any
other condition referred to in this Agreement (or any combination of (i), (ii)
and (iii) above) would constitute an Event of Default;
"DISCLOSURE LETTER" means the letter of even date from the Borrower to the
Agent;
"DRAWDOWN DATE" means the date being a Banking Day on which an Advance is or is
to be drawn down;
"DRAWDOWN NOTICE" means a notice substantially in the form of schedule 2A;
"EARNINGS" means all monies whatsoever from time to time due or payable to any
member of the TCN Group arising out of the use or operation of the Cable Systems
including (but without limiting the generality of the foregoing) all revenues or
other payments due from Subscribers, damages for breach (or payments for
variation or termination) of any Subscriber's Agreement and any sums recoverable
from the insurers of the Cable Systems for loss of use or damage to such
systems;
"ENCUMBRANCE" means any mortgage, charge (whether fixed or floating), pledge,
lien, hypothecation, assignment, assignation, trust arrangement or security
interest of any kind securing any obligation of any person or any other type of
preferential arrangement (including without limitation title transfer and/or
retention arrangements having similar effect);
"ENVIRONMENTAL CLAIM" means any claim, notice of violation, prosecution, demand,
action, official warning, abatement or other order (condition or otherwise),
relating to Environmental Matters and any notification or order requiring
compliance with the terms of any Environmental Licence or Environmental Law;
"ENVIRONMENTAL LAWS" includes all or any laws, statutes, regulations, treaties,
and judgments of any governmental authority or agency or any regulatory body in
any jurisdiction in which any member of the TCN Group is formed or carries on
business or the European Community relating to Environmental Matters applicable
to any member of the TCN Group and/or construction, installation and operation
of cable television and telecommunications systems in the TCN Franchises and/or
any other activities from time to time carried on by any member of the TCN Group
and/or the occupation or use of any property owned, leased or occupied by any
member of the TCN Group;
"ENVIRONMENTAL LICENCE" means any permit, licence, authorisation, consent or
other approval required at any time by any Environmental Law (but excluding, for
the avoidance of doubt, planning permission, listed building consent and
building regulation approvals) for the construction, installation and operation
of cable television and telecommunications systems in the TCN Franchises and/or
any other activities from time to time carried on by any member of the TCN
Group;
"ENVIRONMENTAL MATTERS" means: (i) any generation, deposit, disposal, keeping,
treatment, transportation, transmission, handling or manufacture of any waste
(as defined in the Environmental Protection Act 1990) or any Relevant Substance;
(ii) nuisance, noise, defective premises, health and safety at work or
elsewhere; and (iii) the pollution, conservation or protection of the
environment (both natural and built) or of man or any living organism supported
by the environment (both natural and built);
"EVENT OF DEFAULT" means any of the events or circumstances described in clause
13.1;
"EXCESS CASH FLOW" means the Consolidated TCN Group Net Operating Cash Flow for
the relevant Six Month Period, as shown in the relevant Compliance Certificate
less (i) any Total TCN Group Cash Paying Debt Interest Charges accrued during
such Six Month Period, (ii) cash repayments and/or prepayments of any Borrowed
Money of the TCN Group made during such Six Month Period and (iii) capital
expenditure of the TCN Group whether or not incurred to the extent that the same
is included in the Annual Budget for such Six Month Period as delivered to the
Agent under this Agreement;
"FACILITY DEBT INTEREST CHARGES" means, in relation to any period, the total
amount of all interest, fees and commissions accruing in respect of the facility
granted pursuant to this Agreement during such period;
"FINANCE LEASE" means a lease treated as a finance lease pursuant to applicable
accounting standards (including at the date of this Agreement, Statement of
Standard Accounting Practice 21);
"GAAP" means generally accepted accounting principles and practices in the
United Kingdom;
"IMMATERIAL GROUP ENTITY" means any member of the TCN Group other than the
Borrower which (i) is dormant for the purposes of section 250(3) of the
Companies ▇▇▇ ▇▇▇▇ and (ii)(a) does not trade, (b) has no interest, legal or
beneficial, in the Licences, the Cable Systems, the Earnings, the Principal
Agreements, the share capital of any other member of the TCN Group which is not
an Immaterial Group Entity or any other assets used in the business of the TCN
Group and (c) is solvent (within the meaning of Section 123 of the Insolvency
▇▇▇ ▇▇▇▇ or otherwise);
"INDEBTEDNESS" means any obligation for the payment or repayment of money,
whether as principal or as surety and whether present or future, actual or
contingent;
"INDEMNITY" means an indemnity issued or to be issued by any TCN Entity in
favour of a bank in relation to a bond issued by such bank in favour of any
regulatory body or other person pursuant to any Telecommunications and Cable
Laws;
"INFORMATION MEMORANDUM" means the information memorandum prepared in relation
to the Borrower and the facility granted pursuant to this Agreement and
distributed to certain banks during April 1996;
"INTELLECTUAL PROPERTY RIGHTS" means any patent, trade ▇▇▇▇, service ▇▇▇▇,
registered design, trade name or copyright required to carry on the business of
constructing, installing or operating cable television and telecommunication
systems in the TCN Franchises and such other business as may be permitted by the
terms of this Agreement and which is carried on at the relevant time;
"INTEREST PAYMENT DATE" means the last day of an Interest Period (and, in the
case of an Interest Period of more than six months, the dates falling at six
monthly intervals from the commencement of such Interest Period);
"INTEREST PERIOD" means, in relation to any Advance or the Loan, each period for
calculation of interest in respect of such Advance or the Loan ascertained in
accordance with clauses 5.5, 5.6 and 5.7;
"LIBOR" means, in relation to a particular period the arithmetic mean (expressed
as a percentage rounded upwards if necessary to the nearest four decimal places)
of the rates respectively quoted to the Agent by each of the Reference Banks at
the request of the Agent as such Reference Bank's offered rate for deposits of
Sterling in an amount approximately equal to the amount in relation to which
LIBOR is to be determined for a period equivalent to such period to prime banks
in the London Interbank Market at or about 11.00 a.m. on the first day of such
period;
"LICENCES" means the Cotswold Licences, the South East Licences, the North East
Licences, the London South Licences, the Avon Licences, the Scotland Licences,
the SBCC Licences and, if applicable, any other licences issued to TCN Entities
under any Telecommunications and Cable Laws;
"LOAN" means the aggregate principal amount owing to the Banks under this
Agreement at any relevant time;
"LOCAL DELIVERY OPERATOR" means a person holding a licence to operate a cable
telephony and/or cable television system under a Telecommunications and Cable
Law in respect of a prescribed geographical area or any person in relation to
which such person is a wholly-owned (directly or indirectly) Subsidiary;
"LONDON SOUTH/AVON FACILITY" means the (pound)190,000,000 loan facility granted
pursuant to a loan agreement dated 4 October 1993 (as amended) between, among
others, London South Cable Partnership and Avon Cable Limited Partnership as
borrowers and The Toronto-Dominion Bank as agent;
"LONDON SOUTH LICENCES" means those licences of members of the TCN Group details
of which are set out in part C of schedule 9;
"LONG RANGE PLAN" means the operational projections for the Telewest Group and
the TCN Group dated 10 December 1997 and the quarterly financing forecast dated
2 February 1998;
"MAJORITY BANKS" means Banks the aggregate of whose Contributions at any
relevant time exceeds 66_ per cent. of the Loan or, if no Advance is then
outstanding, the aggregate of whose Commitments exceeds 66_ per cent.
of the total of the Commitments of all of the Banks;
"MANAGEMENT FEES" means any management, consultancy or similar fees payable by
any TCN Entity to any Restricted Person or by any Restricted Person to any TCN
Entity, as applicable;
"MARGIN" shall be calculated in accordance with clause 5.2 or 5.3 (as
applicable) provided that, for the purposes of clause 5.8, "MARGIN" shall be
calculated in accordance with clause 5.3 (unless the relevant outstanding sum
was outstanding under Tranche A in which event the Margin shall be calculated in
accordance with clause 5.2);
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the ability of the
TCN Entities (taken as a whole) to perform all or any of their respective
obligations under or otherwise comply with the terms of this Agreement or any of
the Security Documents;
"MATERIAL FINANCIAL ADVERSE EFFECT" means a material adverse effect on the
ability of the TCN Entities (taken as a whole) to perform all or any of their
respective payment obligations under this Agreement or any of the Security
Documents;
"MAXIMUM FORECASTED DEBT REQUIREMENT" means, in relation to any TCN Entities or
assets which have been acquired by the TCN Group under paragraph (vi) of the
definition of Permitted Investments, the maximum amount, estimated by the
Borrower in good faith and set out in the relevant investment analysis, that
such TCN Entities (taken as a whole) will be required to raise as Borrowed Money
(together with the amount of Borrowed Money that will be required to be raised,
in the case of an acquisition of assets) in order to comply with the
requirements of any Licences or Necessary Authorisations issued to such TCN
Entities (or comprising such assets) or such investment analysis (whichever is
the higher);
"MONTH" means a period beginning in one calendar month and ending in the next
calendar month on the day numerically corresponding to the day of the calendar
month on which it started,provided that (i) if the period started on the last
Banking Day in a calendar month or if there is no such numerically corresponding
day, it shall end on the last Banking Day in such next calendar month and (ii)
if such numerically corresponding day is not a Banking Day, the period shall end
on the next following Banking Day in the same calendar month but if there is no
such Banking Day it shall end on the preceding Banking Day and "months" and
"monthly" shall be construed accordingly;
"MONTHLY MANAGEMENT ACCOUNTS" means the monthly management accounts of the TCN
Group to be delivered (or which may be delivered) to the Agent pursuant to
clause 10.1(h) in the agreed form or containing information of the same type as
is required by such form;
"NATIONAL NETWORK" means the telecommunications systems together with all
associated cables, hardware and software, constructed or to be constructed in
accordance with or as permitted under the National Network Licence;
"NATIONAL NETWORK LICENCE" means the public telecommunications operating licence
granted by the Secretary of State for Trade and Industry to Telewest under the
Telecommunications ▇▇▇ ▇▇▇▇ on 14 January 1997;
"NECESSARY AUTHORISATIONS" means all approvals, authorisations and licences
(other than the Licences) from, all rights granted by and all filings,
registrations and agreements with any person including, without limitation, any
government or other regulatory authority necessary in order to enable each
member of the TCN Group to construct, maintain and operate the Cable Systems and
to carry on such other business as may be permitted by the terms of this
Agreement and which is carried on at the relevant time;
"NET INCOME" means, (i) in relation to the TCN Group for any period, the net
profit after Taxes of the TCN Group arising out of the use or operation of the
Cable Systems for such period (excluding, if included, the net profit after
Taxes of Cable Guide Limited), and (ii) in relation to the Telewest Group for
any period, the net profit after Taxes of the Telewest Group for such period, in
each case as determined in accordance with GAAP used in the preparation of and
as shown in the financial statements, Monthly Management Accounts or Quarterly
Management Accounts in respect of such period prepared and delivered to the
Agent pursuant to clause 10.1(f), 10.1(g) or 10.1(h);
"NETWORK SERVICE CENTRE" means the arrangements effected pursuant to the
agreement dated 16 May 1994 and expressed to take effect from 1 January 1993
between, inter alia, Telewest Communications Group Limited, United Artists
Communications (North East) Partnership, United Artists Communications
(Cotswolds) Venture and United Artists Communications (South East) Partnership
together with any agreements to similar effect entered into from time to time
between, inter alia, members of the TCN Group and others;
"NON-GUARANTEED COMPUTER LEASE" means any Finance Lease of computer equipment in
respect of which no guarantee has been issued pursuant to this Agreement;
"NON-GUARANTEED LEASE" means any Finance Lease in respect of which (i) no
guarantee has been issued pursuant to this Agreement and (ii) in the case of a
Non-Guaranteed Switch Lease, a Step-in Rights Agreement has been executed;
"NON-GUARANTEED SWITCH LEASE" means any Finance Lease of switch equipment and
software in respect of which (i) no guarantee has been issued pursuant to this
Agreement and (ii) a Step-in Rights Agreement has been executed;
"NON-GUARANTEED VEHICLE LEASE" means any Finance Lease of vehicles in respect of
which no guarantee has been issued pursuant to this Agreement;
"NORTH EAST LICENCES" means those licences of members of the TCN Group details
of which are set out in part D of schedule 9;
"NORTEL STEP-IN RIGHTS AGREEMENT" means the agreement of such name to be entered
into between Nortel Limited, United Artists Communications (North East)
Partnership, United Artists Communications (South East) Partnership, United
Artists Communications (Cotswolds) Venture, London South Cable Partnership,
United Artists Communications (Scotland) Venture, Avon Cable Joint Venture and
the Security Trustee, in the agreed form;
"ORIGINAL CHARGING PARTNERSHIPS" means those partnerships whose names and
principal places of business are set out in part B of schedule 1;
"ORIGINAL CHARGING SUBSIDIARIES" means those companies whose names and
registered numbers are set out in part A of schedule 1;
"ORIGINAL NON-CHARGING SUBSIDIARIES" means those companies whose names and
registered numbers are set out in part C of schedule 1;
"PERMITTED BORROWINGS" means:
(i) any Borrowed Money arising hereunder or under the
Security Documents;
(ii) any Borrowed Money approved by the Agent (acting on
the instruction of the Majority Banks);
(iii) any Borrowed Money included within Permitted
Intra-TCN Group Transactions or
Permitted Guarantees;
(iv) any Borrowed Money arising under the interest rate
protection arrangements referred to in clause
10.1(aa) or clause 11.1(i);
(v) any Borrowed Money arising under:
(a) Non-Guaranteed Switch Leases in aggregate
not exceeding (pound)120,000,000;
(b) Non-Guaranteed Vehicle Leases in aggregate
not exceeding (pound)50,000,000;
(c) Non-Guaranteed Computer Leases in aggregate
not exceeding (pound)20,000,000;
(d) any Borrowed Money arising under
Non-Guaranteed Leases (not falling within
(a), (b) or (c) above) in aggregate not
exceeding (pound)20,000,000;
Provided that the aggregate of all Borrowed Money
falling within this paragraph (v) shall not at any
time exceed (pound)140,000,000;
(vi) Subordinated Debt which is the subject of a Deed of
Subordination;
(vii) any Borrowed Money outstanding to any bank (which has a
credit rating from Standard & Poor's Corporation or
▇▇▇▇▇'▇ Investors Service Inc. of A (or its equivalent)
or better) with whom members of the TCN Group have a
cash management arrangement in place provided that (a)
the aggregate net amounts of Borrowed Money outstanding
to all such banks (after taking account of deposits made
by members of the TCN Group with the relevant banks)
does not exceed(pound)5,000,000 or the excess
above(pound)5,000,000 would not otherwise be prohibited
under this Agreement, (b) the net balance with each such
bank is in credit at least once in any 30 day period and
(c) the average (over any 365 day period) of the
aggregate of the net amount of Borrowed Money
outstanding to all such banks (after taking account of
deposits made by members of the TCN Group with the
relevant banks) does not exceed (pound)2,500,000;
(viii) any Borrowed Money arising under Indemnities not
exceeding (pound)250,000 for each TCN Franchise;
(ix) after the end of the Revolving Period, any Borrowed
Money not within paragraphs (i) to (viii) above provided
that:
(a) such Borrowed Money is incurred after the end of
the Revolving Period;
(b) no Default has occurred and is continuing at the
date of the incurrence of such Borrowed Money;
and
(c) on the two Quarter Days immediately preceding
the incurrence of such Borrowed Money (as shown
in the relevant Compliance Certificates),
immediately after the incurrence of such
Borrowed Money and at all times thereafter Total
TCN Group Debt is less than 3 times Consolidated
Annualised TCN Group Net Operating Cash Flow;
(x) any Borrowed Money arising under or in respect of the
Second Secured Facility in a maximum principal amount of
up to (pound)100,000,000; and
(xi) any Borrowed Money not within paragraphs (i) to (x)
above and not exceeding at any time in aggregate
(pound)15,000,000;
"PERMITTED DISPOSALS" means:
(i) the application of cash in (a) the acquisition of assets
or services in the ordinary course of business, or the
making of loans in the ordinary course of business not,
in any such case, prohibited by the terms of this
Agreement or any Security Document, (b) the repayment of
Permitted Borrowings and the servicing thereof provided
that the same is not prohibited or otherwise restricted
by the terms of this Agreement or (c) the payment of
moneys by the Borrower to Telewest to the extent
permitted by the terms of this Agreement;
(ii) any disposals approved by the Agent (acting on the
instructions of the Majority Banks);
(iii) the placing of deposits with banks (which have a credit
rating from Standard & Poor's Corporation or ▇▇▇▇▇'▇
Investor Service Inc. of A (or its equivalent) or
better) not in contravention of the terms of this
Agreement or any Security Document;
(iv) the sale of property or other assets (but excluding any
ownership interest in any of the TCN Entities) on bona
fide arms length commercial terms in the ordinary course
of business to the extent that the net proceeds of sale
are applied forthwith after such sale in the acquisition
of assets of a similar nature and approximately equal
value to be used in the business of constructing,
installing or operating cable television and
telecommunications systems in the areas covered by the
Licences or any directly related business reasonably
considered to be financially beneficial to such
business;
(v) the disposal of property or other assets (but excluding
any ownership interest in any of the TCN Entities) on
bona fide arms length commercial terms in the ordinary
course of business in consideration for the acquisition
of assets of a similar nature and approximately equal
value to be used in the business of constructing,
installing or operating cable television and
telecommunications systems in the areas covered by the
Licences or any directly related business reasonably
considered to be financially beneficial to such
business;
(vi) the disposal, for full market value, of any interest
rate or currency swap or other hedging instrument no
longer required for the purpose for which it was
originally entered into;
(vii) disposals within Permitted Intra-TCN Group Transactions;
(viii) the disposal of assets pursuant to any sale and
leaseback transactions which are permitted by and fall
within paragraph (v) of the definition of Permitted
Borrowings or as is permitted by the Banks pursuant to
Clause 20.1;
(ix) the disposal of any share (or other securities or any
interest therein) in (a) any Affiliate or (b) Cable
Guide Limited (registered no: 2025654); and
(x) disposals of assets on bona fide arm's length commercial
terms by a member of the TCN Group (other than any
disposals referred to in paragraphs (i) to (ix)
(inclusive) above) where such assets are obsolete or no
longer required for the purposes of such member of the
TCN Group's business;
"PERMITTED ENCUMBRANCES" means:
(i) any Encumbrance arising hereunder or under any of the
Security Documents;
(ii) any Encumbrance existing at the date hereof and set out
in parts I or II of Schedule 8 together with the
proposed Encumbrance set out in part III of Schedule 8;
(iii) any Encumbrance which the Agent, acting on the
instructions of the Majority Banks, has at any time in
writing agreed shall be a Permitted Encumbrance;
(iv) any Encumbrance arising in the ordinary course of
business by operation of law;
(v) any Encumbrance in favour of any bank incurred in
relation to any cash management or interest netting
arrangements;
(vi) rights of set-off arising in the normal course of
business;
(vii) any retention of title of goods supplied to any member
of the TCN Group where such retention is agreed in the
ordinary course of its trading activities and on
customary terms provided that the purchase price
relating to such goods is required to be paid within 120
days of the date on which the relevant goods are
supplied;
(viii) (for the avoidance of doubt) any Encumbrance arising
under Finance Leases where the title to the relevant
assets does not vest in any member of the TCN Group to
the extent amounts outstanding under such Finance Leases
fall under paragraph (v) of the definition of Permitted
Borrowings;
(ix) any Encumbrance (a "NEW ENCUMBRANCE") created by any
member of the TCN Group in substitution for any
Encumbrance referred to in paragraph (ii) above (an
"EXISTING ENCUMBRANCE") provided that (i) such Existing
Encumbrance is irrevocably and unconditionally
discharged no later than the time of creation of the New
Encumbrance, (ii) the New Encumbrance relates only to
the same assets as the Existing Encumbrance, (iii) the
Indebtedness secured by the New Encumbrance does not
exceed the Indebtedness secured by the Existing
Encumbrance and (iv) if required by the Agent, before
such New Encumbrance is entered into, the beneficiary
thereof enters into a priorities arrangement with the
Agent and all of the Banks in form and substance
satisfactory to the Agent;
(x) any Encumbrance arising due to the provision of any
services or operations provided by any member of the TCN
Group whereby a member of the TCN Group agrees to hold
assets and equipment on trust for the benefit of the
users thereof provided that (a) the aggregate book value
of the assets and equipment held in such an arrangement
does not at any time exceed (a) in the case of the
Network Service Centre,(pound)25,000,000, (b) in the
case of Cable Internet,(pound)15,000,000 and (c) in the
case of any such arrangement (including the Network
Service Centre and/or Cable Internet),(pound)10,000,000
and (b) such users are persons engaged in a similar
business to that of the TCN Group;
(xi) any Encumbrance granted as security for the obligations
of TCN Entities under or in respect of the Second
Security Facility provided that an Encumbrance ranking
in priority to such Encumbrance has been or is
contemporaneously with the granting thereof granted as
security for the amounts owed to any of the
Beneficiaries (as defined in the Debenture); and
(xii) any Encumbrance not within paragraphs (i) to (xi) above
and securing Indebtedness in aggregate not exceeding
(pound)10,000,000 and where the assets the subject of
such Encumbrance have an aggregate book value not
exceeding (pound)15,000,000;
"PERMITTED GUARANTEES" means:
(i) any guarantees or indemnities arising hereunder or under
the Security Documents;
(ii) any guarantees or indemnities approved by the Agent
(acting on the instructions of the Majority Banks);
(iii) any guarantees or indemnities included within Permitted
Intra-TCN Group Transactions;
(iv) any guarantees or indemnities included within Permitted
Borrowings;
(v) any guarantees or indemnities given by any TCN Entity in
respect of the liabilities of any other TCN Entity under
or in respect of the Second Secured Facility provided
that a guarantee or indemnity has been or is
contemporaneously with the granting thereof granted by
such TCN Entity in respect of the amounts owed to any of
the Beneficiaries (as defined in the Debenture); and
(vi) any guarantees or indemnities not included in paragraphs
(i) to (v) (inclusive) above provided that the maximum
liability thereunder (actual or contingent) when
aggregated with amounts outstanding as Borrowed Money
permitted by virtue of paragraph (x) of the definition
of Permitted Borrowings do not exceed in aggregate
(pound)15,000,000;
"PERMITTED INTRA-TCN GROUP TRANSACTIONS" means:
(i) loans made by a member of the TCN Group to a TCN Entity;
(ii) any transaction approved as a Permitted Intra-TCN Group
Transaction by the Agent (acting on the instructions of
the Majority Banks);
(iii) the payment or declaration of any dividend, return on
capital, repayment of capital contributions or other
distributions by any member of the TCN Group to a
shareholder which is a TCN Entity;
(iv) the purchase, acquisition, sale or disposal of assets or
revenues (including, without limitation, the acquisition
of any business or interest therein) by a TCN Entity
from or, as the case may be, to another TCN Entity
provided such assets or revenues remain charged to the
Security Trustee pursuant to a Security Document;
(v) the purchase, subscription for, or other acquisition of
any share (or other securities or any interest therein)
in any TCN Entity by any other TCN Entity provided such
shares are charged to the Security Trustee pursuant to a
Security Document;
(vi) the subscription for shares in any company on its
formation or the purchase of shares in any company which
has not at any time carried on any business (other than
that associated with its formation or any necessary
administrative activities) provided that (a) such shares
are charged to the Security Trustee pursuant to a
Security Document and (b) promptly upon such
subscription or purchase being completed such company
becomes a TCN Entity pursuant to the provisions of this
Agreement; and
(vii) in relation to the ordinary course of trading, the
giving by any TCN Entity of any guarantee, bond or
indemnity in respect of the liabilities or obligations
of any other TCN Entity;
"PERMITTED INVESTMENTS" means:
(i) any transaction included within Permitted Disposals;
(ii) any transaction included within Permitted Intra-TCN
Group Transactions;
(iii) any investments approved by the Agent (acting on the
instructions of the Majority Banks);
(iv) any loans to or investments in Affiliates not exceeding
in aggregate (pound)18,000,000 at any time after the
date hereof but on or before 31 December 1997;
(v) any loans to Telewest representing any amount realised
under paragraph (ix)(a) of "Permitted Disposals" and any
acquisition of or investment in, or any acquisition of
assets falling within paragraph (ii) of clause 11.1(g)
of any person which is not a TCN Entity by a TCN Entity
provided that (a) such person is engaged in or such
assets are required for the business of (or a similar
business to that of) the TCN Group, (b) at the relevant
time, no Default has occurred and is continuing or would
result from the making of any such loan, acquisition or
investment and (c) the amount of any such loans together
with the aggregate consideration paid for all
investments or acquisitions falling within this
paragraph (v) does not exceed the aggregate net
consideration received in respect of disposals falling
within paragraph (ix)(a) of the definition of Permitted
Disposals;
(vi) on or after 1 January 1997, (a) any acquisition of the
entire ownership interest in, or (b) any acquisition of
assets falling within paragraph (ii) of clause 11.1(g)
of, any person which is not a TCN Entity in each case by
a TCN Entity provided that:
(1) the consideration payable for such
acquisition is satisfied entirely by (i) the
issue to the vendor of shares in Telewest
and/or (ii) the payment of cash to the
vendor provided that, for the purposes of
funding such payment, Subordinated Debt
which is the subject of a Deed of
Subordination has been lent to a TCN Entity
and/or Telewest has subscribed in cash for
equity share capital in the Borrower (which
share capital is charged to the Security
Trustee pursuant in accordance with Clause
11.1(f)) in an aggregate amount which is not
less than the amount of such consideration
and is applied in satisfaction of such
consideration;
(2) in the case of sub-paragraph (a) above, such
person becomes a TCN Entity
contemporaneously with the making of such
acquisition or investment or, in the case of
sub-paragraph (b) above, such assets are
charged (or become subject to a charge) to
the Security Trustee pursuant to a Security
Document contemporaneously with the
acquisition thereof;
(3) the Borrower has delivered to the Agent an
investment analysis prepared by the Borrower
which shows that, immediately after making
such acquisition or investment:
(A) the Maximum Forecasted Debt Requirement
arising as a result of all such
acquisitions or investments (together
with the aggregate consideration paid or
payable (other than by (i) the issue to
the relevant vendor of shares in
Telewest or (ii) the payment to the
relevant vendor of all or part of the
proceeds of issue of any shares in
Telewest (and, in either case, the
consequential issue of shares and/or the
creation of Subordinated Debt by the
Borrower to Telewest)) in respect of all
such acquisitions or investments) will
not exceed(pound)120,000,000; and
(B) the Maximum Forecasted Debt Requirement
arising as a result of all such
acquisitions or investments will not
exceed (pound)40,000,000 in each of
financial years 1997 and 1998 and
(pound)80,000,000 in any subsequent
financial year of the Borrower; and
(4) in the case of sub-paragraph (a) above such
person is a Local Delivery Operator or in
the case of paragraph (b) above such assets
consist of all or substantially all of the
assets of a Local Delivery Operator
including all licences issued to such Local
Delivery Operator under the relevant
Telecommunications and Cable Laws;
(vii) any transaction not within paragraphs (i) to (vi)
(inclusive) above which would otherwise be prohibited
under clause 11.1(g) where the value of the aggregate
net consideration (in cash or otherwise) paid by members
of the TCN Group in any financial year of the Borrower
does not exceed (pound)1,000,000 (provided that if any
such amount is not used in any financial year it may be
carried forward and used in subsequent financial years);
"PERMITTED PAYMENTS" means any payments or transfers of assets (including Value
Added Tax thereon, if applicable):
(a) to any Restricted Person in relation to transactions carried out on
bona fide arm's length commercial terms in the ordinary course of
business;
(b) (1) by the Borrower to Telewest (whether by way of (in the case of (i),
(ii) or (iv) below) dividend, other distribution, loan or interest
payable on Subordinated Debt or (2) (in the case of (iii) below) rental
payments by the relevant TCN Entity to Telewest in respect of a
sub-Finance Lease entered into between such parties in relation to the
relevant Telewest Lease) where such payment is to be used (and is so
used within a reasonable time) to fund:
(i) costs and expenses of Telewest incurred in relation to the TCN
Group of up to:
(1) in respect of the period from the date hereof to 31
December, 1996,(pound)1,000,000; and
(2) in respect of each financial year thereafter,
(pound)2,000,000;
(ii) the payment by Telewest of cash interest on the Senior
Securities then due or due within five Banking Days;
(iii) the payment of rental due on any Telewest Lease; or
(iv) the repayment of any advances made by Telewest under the 1997
Telewest Facility Agreement (subject to no event or
circumstance having occurred which is continuing and which
constitutes a Default),
provided that (1) no Default has occurred and is continuing or would
result from the making of any payment under this paragraph (b) and (2)
in the case of any rental payment, Telewest directs that such payment
be made to (and such payment is made to) the lessor under the
corresponding Telewest Lease to be applied in or towards discharging
Telewest's rental obligations under such Telewest Lease, and
(c) consisting of dividends or other distributions or the payment of
interest on or the repayment of Subordinated Debt made to any
Restricted Person after the end of the Revolving Period provided that:
(i) on the two Quarter Days immediately preceding the
making of any such payment (adjusted as if such
payment had then been made) and immediately after
such payment the ratio of each of (A) Total TCN Group
Debt to Consolidated Annualised TCN Group Net
Operating Cash Flow and (B) Total Telewest Group Debt
to Consolidated Annualised Telewest Group Net
Operating Cash Flow in each case does not exceed 3.0
times; and
(ii) no Default has occurred and is continuing or would
result from the making of any payment under this
paragraph (c);
"PLEDGE AND SECURITY AGREEMENTS" means each of the pledge and security
agreements to be entered into in favour of the Security Trustee by each of the
partners in each of the Charging Partnerships formed in the State of Colorado in
substantially the agreed form;
"PRINCIPAL AGREEMENTS" means the Sky Standard Cable Operator Agreements and the
BT Inter-Connect Agreements together with any agreements replacing any of the
same;
"PRO-FORMA TOTAL TCN GROUP DEBT SERVICE" means the aggregate of (i) the total
forecast amount of interest (calculated by reference to the rate of interest in
effect in relation to the relevant Borrowed Money of the TCN Group on the date
on which the calculation falls to be made, adjusted to take account of any
interest rate hedging arrangements) and any other charges (other than expenses
and any one-off fees paid otherwise than in lieu of interest or discount)
payable in respect of Borrowed Money of the TCN Group in respect of the twelve
months immediately following the date on which the relevant calculation under
this Agreement falls to be made and (ii) the principal amount of any Borrowed
Money of the TCN Group due to be repaid in accordance with the terms of such
Borrowed Money during such period;
"PRO-FORMA TOTAL TELEWEST GROUP DEBT SERVICE" means the aggregate of (i) the
total forecast amount of interest (calculated by reference to the rate of
interest in effect in relation to the relevant Borrowed Money of the Telewest
Group on the date on which the calculation falls to be made, adjusted to take
account of any interest rate hedging arrangements) and any other charges (other
than expenses and any one-off fees paid otherwise than in lieu of interest or
discount) payable in respect of Borrowed Money of the Telewest Group in respect
of the twelve months immediately following the date on which the relevant
calculation under this Agreement falls to be made and (ii) the principal amount
of any Borrowed Money of the Telewest Group due to be repaid in accordance with
the terms of such Borrowed Money during such period;
"QUALIFYING BANK" means a person which falls within the definition of "bank" for
the purposes of section 840A of the Income and Corporation Taxes ▇▇▇ ▇▇▇▇, which
is beneficially entitled to any interest payable to it under this Agreement and
any other Security Document to which it is a party and which is within the
charge to corporation tax as respects such interest but so that if such Act is
amended or repealed, this definition shall be amended in such manner as the
Agent, after consultation with the Borrower, shall determine to be necessary in
order to define persons of the relevant equivalent category to whom the Borrower
may make payments hereunder without any obligation to make deduction or
withholding thereof;
"QUARTER DAYS" means 31st March, 30th June, 30th September and 31st December in
any year;
"QUARTERLY MANAGEMENT ACCOUNTS" means the quarterly management accounts of the
Telewest Group or the TCN Group (as the case may be) to be delivered to the
Agent pursuant to clause 11.1(g) in the agreed form or containing information of
the same type as is required by such form;
"QUARTERLY PERIOD" means each period of approximately three months commencing on
the day after a Quarter Day and ending on the next following Quarter Day;
"RBL STEP-IN RIGHTS AGREEMENT" means the agreement of such name to be entered
into between RB Leasing (March) Limited, Telewest, United Artists Communications
(North East) Partnership, United Artists Communications (South East)
Partnership, United Artists Communications (Cotswolds) Venture, London South
Cable Partnership, Scotcable (Motherwell) Limited, Kingdom Cablevision Limited,
Tayside Cable Systems Limited, Avon Cable Joint Venture and the Security Trustee
in form and substance reasonably satisfactory to the Borrower and the Agent;
"REFERENCE BANKS" means the principal London offices of The Bank of New York,
Canadian Imperial Bank of Commerce, The Chase Manhattan Bank, N.A., National
Westminster Bank Plc and The Toronto-Dominion Bank and/or any other Bank
appointed as such pursuant to clause 18.12;
"REGION" means each of the geographical regions into which the business of the
TCN Group is divided at any relevant time for management accounting purposes,
being at the date of this Agreement, (i) London South, (ii) South West, (iii)
Scotland, (iv) South East, (v) North East, (vi) the North West and (vii) the
Midlands and being as from 1 January 1998, (a) London and South East, (b)
Scotland and North East, (c) Midlands and South West and (d) North West;
"REIMBURSEMENT AGREEMENT" means the agreement of such name to be entered into
between each of Original Charging Partnerships and the Borrower in the agreed
form;
"RELEVANT REVOLVING PERIOD" means the Tranche A Revolving Period or the Tranche
B Revolving Period, as applicable;
"RELEVANT SUBSTANCE" means (i) any radioactive emissions, (ii) electricity and
any electrical or electromagnetic emissions and (iii) any substance whatsoever
(whether in a solid or liquid form or in the form of a gas or vapour and whether
alone or in combination with any other substance) which is capable of causing
harm to man or any other living organism supported by the environment (both
natural and built), or damaging the environment (both natural and built) or
public health or welfare;
"RESTRICTED PAYMENT" means (a) any direct or indirect distribution, dividend,
loan or other payment (whether in cash, property, securities or otherwise) by
any member of the TCN Group (including, without limitation, any payment on
account of the share capital of the Borrower or capital stock or other
securities of the Borrower) or any interest thereon, (b) any transfer of any
assets by any member of the TCN Group and (c) any payment (whether in cash,
property, securities or otherwise) of principal of, or interest on, Subordinated
Debt, in each case to any Restricted Person;
"RESTRICTED PERSON" means any member of the Telewest Group other than (i) the
TCN Entities and (ii) Cable Guide Limited (registered no: 2025654);
"REVOLVING ADVANCE" means an Advance made during the Revolving Period;
"REVOLVING FACILITY" means the revolving loan facility granted to the Borrower
pursuant to this Agreement;
"REVOLVING PERIOD" means the period from (and including) the date hereof to (and
including) 31 December 2000;
"ROLLOVER NOTICE" means a notice substantially in the form of Schedule 2B;
"SBC" means SBC International Inc. of ▇ ▇▇▇▇'▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇;
"SBCC" means SBC CableComms (UK) Limited (No. 2795350);
"SBCC LICENCES" means those licences of members of the TCN Group details of
which are set out in part G of schedule 9;
"SCOTLAND FACILITY" means the (pound)195,000,000 loan facility granted pursuant
to a loan agreement dated 13 June 1994 (as amended) between, among others,
Telewest Scotland Holdings Limited as borrower and Canadian Imperial Bank of
Commerce as agent;
"SCOTLAND LICENCES" means those licences of members of the TCN Group details of
which are set out in part E of schedule 9;
"SCOTTISH SECURITY DOCUMENTS" means the Bond and Floating Charges, the Standard
Securities, and the Share Pledges;
"SECOND SECURED FACILITY" means the loan facility of up to (pound)100,000,000
granted or to be granted to the Borrower under and in accordance with the Second
Secured Facility Agreement;
"SECOND SECURED FACILITY AGREEMENT" means the agreement for the Second Secured
Facility entered into or to be entered into between the Borrower as borrower,
the Arrangers as arrangers, The Toronto-Dominion Bank as agent and certain banks
and financial institutions;
"SECURITY DOCUMENTS" means the Debenture, the Deed of Subordination, the Pledge
and Security Agreements, the Telewest Assignment, the Reimbursement Agreement,
the Scottish Security Documents, the RBL Step-in Rights Agreement, the Nortel
Step-in Rights Agreement, any other Step-in Rights Agreement, the Security Trust
Deed, any Supplemental Deed and all other mortgages, charges, guarantees,
indemnities and other instruments from time to time entered into in favour of
the Agent, the Security Trustee and/or the Banks by way of guarantee or other
assurance of and/or security for amounts owed to any of the Beneficiaries (as
defined or to be defined in the Debenture);
"SECURITY TRUST DEED" means the security trust deed to be entered into between
the Borrower, Telewest, the Original Charging Subsidiaries, the Original
Charging Partnerships, the Arrangers, the Banks, the Bond Providers referred to
therein, the Interest Rate Beneficiaries referred to therein, the Agent and the
Security Trustee;
"SECURITY TRUSTEE" means CIBC Wood Gundy plc of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ and/or such other person as may be appointed as security trustee
pursuant to any Security Document (as the context requires);
"SENIOR SECURITIES" means the $300,000,000 95/8% senior debentures due 2006 and
$1,536,413,000 11% senior discount debentures due 2007 issued by Telewest on 3
October 1995;
"SHARE PLEDGES" means the share pledges to be entered into by certain Original
Charging Subsidiaries over the shares in those members of the TCN Group
incorporated in Scotland (other than those which are Original Non-Charging
Subsidiaries) in the agreed form;
"SIX MONTH PERIOD" means each period of six months ending on the last day of a
calendar month;
"SKY STANDARD CABLE OPERATOR AGREEMENTS" means the agreements referred to in
part B of Schedule 10;
"SOUTH EAST LICENCES" means those licences of members of the TCN Group details
of which are set out in part F of schedule 9;
"STANDARD SECURITY" means the second ranking standard security to be entered
into by Scotcable (Motherwell) Limited in relation to ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇;
"STEP-IN RIGHTS AGREEMENT" means, in relation to any Non-Guaranteed Switch
Lease, a step-in rights agreement between the lessor, the lessee and the
Security Trustee, in substantially the form, mutatis mutandis (with such
amendments as the Security Trustee may approve) as the Nortel Step-in Rights
Agreement;
"STERLING" and "(POUND)" mean the lawful currency for the time being of the
United Kingdom and in respect of all payments to be made under this Agreement in
Sterling means immediately available, freely transferable cleared funds;
"SUBSCRIBER" means a person who has entered into an agreement (which has not
expired or been terminated) (a "SUBSCRIBER'S AGREEMENT") with a TCN Entity to be
provided with services by a TCN Entity through the operation of the Cable
Systems;
"SUBORDINATED DEBT" means, at any relevant time, all Indebtedness of the TCN
Entities owed to a Restricted Person;
"SUBSIDIARY" of a person means (a) any company or entity directly or indirectly
controlled by such person, for which purpose "control" means either ownership of
more than 50 per cent. of the voting share capital (or equivalent right of
ownership) of such company or entity or power to direct its policies and
management whether by contract or otherwise or the right to receive more than 50
per cent. of any distributions (of whatever nature) made in respect of the share
capital or other ownership interests of such company or entity and (b) in the
case of a company incorporated in England and Wales or Scotland, a Subsidiary
Undertaking;
"SUBSIDIARY UNDERTAKING" has the meaning given to such term in section 258
Companies ▇▇▇ ▇▇▇▇;
"SUBSTITUTE" has the meaning ascribed thereto in clause 17.4;
"SUBSTITUTION CERTIFICATE" means a certificate substantially in the form of
schedule 5;
"SUPPLEMENTAL DEED" means a deed supplemental to this Agreement, the Debenture
and certain of the other Security Documents executed, inter alios, by a
Subsidiary or Associated Partnership of the Borrower in the form of schedule 4
to the Debenture or in such other form as is agreed between the Agent and the
Borrower whereby such Subsidiary or Associated Partnership becomes a party to
this Agreement and any relevant Security Document as a Charging Subsidiary or
Charging Partnership, as the case may be;
"TAXES" includes all present and future taxes, levies, imposts, duties, fees or
charges of a similar nature together with interest thereon and penalties in
respect thereof and "Taxation" shall be construed accordingly;
"TCI" means Tele-Communications, Inc. whose principal place of business is at
Terrace Tower II, ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇.▇.;
"TCN ENTITIES" means the Borrower, each Original Charging Subsidiary and each
Original Charging Partnership together with any company or partnership which is
or becomes a party to this Agreement and the relevant Security Documents
pursuant to clause 10.1(x);
"TCN FRANCHISES" means those areas in which the TCN Group is permitted to
operate cable television and cable telecommunications systems pursuant to the
Licences;
"TCN GROUP" means the Borrower, all its Subsidiaries and all its Associated
Partnerships from time to time;
"TELECOMMUNICATIONS AND CABLE LAWS" means the Telecommunications ▇▇▇ ▇▇▇▇, the
Cable and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the Broadcasting ▇▇▇ ▇▇▇▇ and all other laws,
statutes, regulations and judgements relating to telecommunications or cable
television applicable to any member of the TCN Group, and/or the business
carried on by, any member of the TCN Group (for the avoidance of doubt, not
including laws, statutes, regulations or judgments relating solely to consumer
credit, data protection or intellectual property);
"TELEWEST" means Telewest Communications plc (No. 2983307);
"TELEWEST ASSIGNMENT" means the assignment by way of security to be entered into
by Telewest of Telewest's rights in and to the Subordinated Debt in the agreed
form;
"TELEWEST COMMUNICATIONS" means Telewest Communications Cable Limited (No.
2883742);
"TELEWEST GROUP" means Telewest, all its Subsidiaries and all its Associated
Partnerships;
"TELEWEST LEASE" means a Finance Lease of tangible and/or intangible assets by
Telewest where such assets are the subject of a sub-Finance Lease between
Telewest and a member of the TCN Group;
"TELEWEST/TCN LOAN AGREEMENT" means the loan agreement dated 21 May 1996
pursuant to which Telewest has made a loan to the Borrower in an amount of
(pound)399,739,534.58;
"TERM" means, in relation to a Revolving Advance, the period for which such
Revolving Advance is or is to be made, as specified in the Drawdown Notice or
Rollover Notice for such Revolving Advance, or as otherwise determined in
accordance with the provisions hereof;
"TERM ADVANCE" means, after the end of the Revolving Period, the advance deemed
to be made pursuant to clause 4.15 and any advance resulting from the division
and/or consolidation of any Term Advance in accordance with clause 4.15;
"TERM DATE" means, in relation to a Revolving Advance, the last day of the Term
of such Revolving Advance;
"TERM PERIOD" means the period from (and including) 1 January 2001 to (and
including) 31 December 2005;
"TERM REPAYMENT DATE" means each of the dates referred to in clause 6.2;
"TOTAL COMMITMENTS" means at any relevant time the total of the Commitments of
all the Banks at such time;
"TOTAL TCN GROUP CASH PAYING DEBT" means that part of Total TCN Group Debt in
respect of which interest and any other charges (except expenses and any one-off
fees paid otherwise than in lieu of interest or discount) is currently paid or
payable;
"TOTAL TCN GROUP CASH PAYING DEBT INTEREST CHARGES" means, in relation to any
period, the total amount of all interest, fees and commissions accruing in
respect of Total TCN Group Cash Paying Debt during such period;
"TOTAL TCN GROUP DEBT" means the aggregate consolidated amount of all Borrowed
Money of the TCN Group less the amount of the loan made by Telewest to the
Borrower dated 21 May 1996 pursuant to the Telewest/TCN Loan Agreement;
"TOTAL TELEWEST GROUP CASH PAYING DEBT" means that part of Telewest Group Debt
in respect of which interest and any other charges (except expenses and any
one-off fees paid otherwise than in lieu of interest or discount) is currently
paid or payable;
"TOTAL TELEWEST GROUP CASH PAYING DEBT INTEREST CHARGES" means, in relation to
any period, the total amount of all interest, fees and commissions accruing in
respect of Total Telewest Group Cash Paying Debt during such period;
"TOTAL TELEWEST GROUP DEBT" means the aggregate consolidated amount of all
Borrowed Money of the Telewest Group;
"TRANCHE A" means that part of the Facility made available to the Borrower under
this Agreement which is referred to herein as such;
"TRANCHE A LOAN" means the aggregate principal amount of all Revolving Advances
made under Tranche A which are, at the relevant time, outstanding under Tranche
A;
"TRANCHE A REVOLVING PERIOD" means the period from (and including) the date
hereof to (and including) 30 September 1998;
"TRANCHE B" means that part of the Facility made available to the Borrower under
this Agreement which is referred to herein as such;
"TRANCHE B LOAN" means, at any time during the Revolving Period, the aggregate
principal amount of all Revolving Advances made under Tranche B which are, at
the relevant time, outstanding under Tranche B and, at any time after the
Tranche B Revolving Period, the aggregate principal amount of all Term Advances
outstanding under Tranche B;
"TRANCHE B REVOLVING PERIOD" means the period from (and including) 1 July 1996
to (and including) 31 December 2000;
"ULTIMATE SHAREHOLDERS" means US WEST, TCI, Cox and SBC and "Ultimate
Shareholder" means any one of them; and
"US WEST" means US WEST, Inc. whose principal place of business is at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
1.3 HEADINGS
Clause headings and the table of contents are inserted for convenience of
reference only and shall be ignored in the interpretation of this Agreement.
1.4 CONSTRUCTION OF CERTAIN TERMS
In this Agreement, unless the context otherwise requires:
(a) reference to clauses and schedules are to be construed as
references to the clauses of, and schedules to, this Agreement
and references to this Agreement include its schedules;
(b) reference to (or to any specified provision of) this Agreement
or any other document shall be construed as references to this
Agreement, that provision or that document as in force for the
time being and as from time to time amended in accordance with
the terms thereof, or, as the case may be, with the agreement
of the relevant parties and (where such consent is, by the
terms of this Agreement or the relevant document required to
be obtained as a condition to such amendment being permitted)
the prior written consent of the Agent, all of the Banks or
the Majority Banks (as the case may be);
(c) reference to a "regulation" include any present or future
regulation, rule, directive, requirement, request or guideline
(whether or not having the force of law) of any agency,
authority, central bank or government department or any
self-regulatory or other national or supra-national authority;
(d) words importing the plural shall include the singular and vice versa;
(e) reference to a time of day are to London time;
(f) references to a person shall be construed as including
references to an individual, firm, company, corporation,
unincorporated body of persons or any State or any agency
thereof and that person's successors in title;
(g) reference to a document "in the agreed form" means in the form
of a draft of such document initialled by way of
identification by the Agent and the Borrower;
(h) references to a "guarantee" include references to an indemnity
or other assurance against financial loss including, without
limitation, an obligation to purchase assets or services as a
consequence of a default by any other person to pay any
Indebtedness and "guaranteed" shall be construed accordingly;
(i) reference to "set-off" includes retention, compensation and
the balancing of accounts under Scots law;
(j) references to any enactment shall be deemed to include
reference to such enactment as re-enacted, amended or
extended; and
(k) references to "business" in relation to any member of the TCN
Group mean the construction, installation, operation and
utilisation of cable television and/or telecommunications
systems in the TCN Franchises and/or any business directly
related thereto and reasonably considered to be financially
beneficial to such business, and references to "ordinary
course of business" in relation to any member of the TCN Group
shall be similarly construed.
1.5 MAJORITY BANKS
Where this Agreement provides for any matter to be determined by reference to
the opinion of the Majority Banks or to be subject to the consent or request of
the Majority Banks or for any action to be taken on the instructions of the
Majority Banks, such opinion, consent, request or instructions shall (as between
the Banks) only be regarded as having been validly given or issued by the
Majority Banks if all of the Banks shall have received appropriate prior notice
of the matter on which such opinion, consent, request or instructions are
required to be obtained and the relevant majority of Banks shall have given or
issued such opinion, consent, request or instructions but the Borrower and each
other TCN Entity shall be entitled (and bound) to assume that such notice shall
have been duly received by each Bank and that the relevant majority shall have
been obtained to constitute Majority Banks whether or not this is in fact the
case.
1.6 AGENT'S OPINION
Where this Agreement provides for the Agent's opinion to determine whether any
matter would or is reasonably likely to have a Material Financial Adverse
Effect, a Material Adverse Effect and/or a material adverse effect, as the case
may be, the Agent shall act in accordance with the instructions of the Majority
Banks (acting reasonably) in making such determination.
1.7 BANK COMMITMENTS
For the purpose of the definition of "Majority Banks" in clause 1.2 and of
clause 18.10 references to the Commitment of a Bank shall, if the Total
Commitments have, at any relevant time, been reduced to zero, be deemed to be a
reference to the Commitment of that Bank immediately prior to such reduction to
zero.
2. THE FACILITY
2.1 AMOUNT
The Banks, relying upon each of the representations and warranties in clause 9
and in the Security Documents, agree to lend to the Borrower by way of Advances
upon and subject to the terms of this Agreement the principal sum of up to
(pound)1,200,000,000. The obligation of each Bank under this Agreement shall be
to contribute that proportion of each Advance which, as at the Drawdown Date of
such Advance, its Commitment bears to the Total Commitments.
2.2 OBLIGATIONS SEVERAL
The obligations of each Bank under this Agreement are several; the failure of
any Bank to perform such obligations shall not relieve any other Bank, the
Arrangers, the Agent, the Security Trustee or any TCN Entity of any of their
respective obligations or liabilities under this Agreement nor shall the Agent,
the Arrangers or the Security Trustee be responsible for the obligations of any
Bank (except for its own obligations, if any, as a Bank) nor shall any Bank be
responsible for the obligations of any other Bank under this Agreement.
2.3 INTERESTS SEVERAL
Notwithstanding any other term of this Agreement (but without prejudice to the
provisions of this Agreement relating to or requiring action by the Majority
Banks) the interests of the Agent, the Arrangers, the Security Trustee and the
Banks are several and the amount due to the Agent (for its own account), to each
Arranger, to the Security Trustee and to each Bank is a separate and independent
debt. The Agent, each Arranger, the Security Trustee and each Bank shall have
the right to protect and enforce its rights arising out of this Agreement and it
shall not be necessary for the Agent, any Arranger, the Security Trustee or any
Bank (as the case may be) to be joined as an additional party in any proceedings
for this purpose.
3. CONDITIONS
3.1 DOCUMENTS AND EVIDENCE
The obligations of each Bank to make its Commitment available shall be subject
to the condition that the Agent, or its duly authorised representative, shall
have received the documents and evidence specified in schedule 3 in form and
substance satisfactory to all of the Banks not later than three Banking Days
before the day on which the Drawdown Notice in respect of the first Advance is
given. The Agent shall notify the Banks of receipt of such Drawdown Notice and
whether or not the form and substance of such documents are satisfactory to the
Agent.
3.2 GENERAL CONDITIONS PRECEDENT
The obligation of each Bank to contribute to any Advance is subject to the
further conditions that at the time of the giving of a Drawdown Notice for, and
at the time of the making of, such Advance:
(a) the representations and warranties referred to in clause 9.3,
including those deemed to be made by the Borrower pursuant to
such clause, being (subject as provided in clause 9.3) true
and correct as of each such time as if each was made with
respect to the facts and circumstances existing at such time;
and
(b) no Default shall have occurred and be continuing which has not
been remedied or expressly waived or would result from the
making of such Advance.
3.3 WAIVER OF CONDITIONS PRECEDENT
The conditions specified in this clause 3 are inserted solely for the benefit of
the Banks and may be waived on their behalf in whole or in part and with or
without conditions by the Agent acting on the instructions of all of the Banks
in respect of the first Advance and on the instructions of the Majority Banks in
respect of subsequent Advances without prejudicing the right of the Agent acting
on such instructions to require fulfilment of such conditions in whole or in
part in respect of any other Advance.
4. REVOLVING ADVANCES
TRANCHE A AND TRANCHE B
Subject to the terms and conditions of this Agreement, Revolving Advances may be
made, at the option of the Borrower, under either Tranche A or Tranche B.
4.2 MAXIMUM TRANCHE A OUTSTANDINGS
The aggregate principal amount of Revolving Advances outstanding under Tranche A
on any day falling within the period set out in column (1) below shall not
exceed the amount set out against such period in column (2) below and no
Revolving Advance shall be made under Tranche A if, following the making of such
Revolving Advance, such limit would be exceeded:
(1) (2)
PERIOD MAXIMUM AGGREGATE PRINCIPAL
AMOUNT OF REVOLVING ADVANCES
UNDER TRANCHE A
up to (but excluding) 31 March 1998 (pound)300,000,000
from (and including) 31 March 1998 to
(and including) 30 September 1998 (pound)100,000,000
thereafter
nil
MAXIMUM TRANCHE B OUTSTANDINGS
The aggregate principal amount of Revolving Advances outstanding under Tranche B
on any day falling within the period set out in column (1) below shall not
exceed the amount calculated by multiplying Consolidated Annualised TCN Group
Net Operating Cash Flow (determined by reference to the most recently delivered
Monthly Management Accounts) at such time by the number set out against such
period in column (2) below and no Revolving Advances shall be made under Tranche
B if, following the making of such Revolving Advance, such limit would be
exceeded:
(1) (2)
PERIOD MULTIPLE OF CONSOLIDATED
ANNUALISED TCN GROUP NET
OPERATING CASH FLOW
from 1 July, 1996 to (and including) 31 6.5
December, 1998
from (but excluding) 31 December, 1998 to (and 6.0
including) 30 June, 1999
from (but excluding) 30 June, 1999 to (and 5.0
including) 31 December, 1999
from (but excluding) 31 December, 1999 to (and 4.0
including) 31 December, 2000
4.4 MAXIMUM AGGREGATE OUTSTANDING ADVANCES
The aggregate principal amount of the Loan shall not at any time exceed
(pound)1,200,000,000 and no RevoLVIng Advance shall be made under this Agreement
if, following the making of such Revolving Advance, such limit would be
exceeded.
4.5 DRAWDOWN
Subject to the terms and conditions of this Agreement a Revolving Advance will
be made to the Borrower following receipt by the Agent from the Borrower of a
Drawdown Notice signed by an Authorised Officer not later than 10 a.m. on the
second Banking Day before the proposed Drawdown Date. A Drawdown Notice shall be
effective on actual receipt by the Agent and, once given, shall, subject as
provided in clause 5.10(a), be irrevocable. No Drawdown Notice may be given in
respect of an amount which is the subject of a notice received by the Agent
under clause 6.9.
4.6 ROLLOVER
Subject to the terms and conditions of this Agreement, if the Borrower wishes to
draw a Revolving Advance under Tranche A or Tranche B on any day (the "RELEVANT
DAY") of an amount of not more than the amount of a Revolving Advance which is
due to be repaid on the Relevant Day in accordance with clause 4.13, the
Borrower shall not be obliged to serve a Drawdown Notice in relation to such new
Revolving Advance but may serve a Rollover Notice signed by an Authorised
Officer specifying the amount of the new Revolving Advance and the Term thereof
and whether such new Revolving Advance is to be made under Tranche A or Tranche
B. A Rollover Notice shall be effective on actual receipt by the Agent (which
must be no later than 10 a.m. on the second Banking Day before the Relevant Day)
and, once given, shall, subject as provided in clause 5.10(a), be irrevocable.
No Rollover Notice may be given in respect of an amount which is the subject of
a notice received by the Agent under clause 6.9.
4.7 NO ROLLOVER NOTICE
If the Agent does not receive a Rollover Notice from the Borrower in accordance
with clause 4.6 in respect of a new Revolving Advance under either Tranche A or
Tranche B to be made on the Term Date of a Revolving Advance outstanding to the
Borrower then, subject to the terms and conditions of this Agreement (including
without limitation clauses 4.2, 4.3 and 4.4), a Revolving Advance of an amount
equal to the amount of the Revolving Advance due to be repaid shall be made to
the Borrower under Tranche A, if the Revolving Advance due to be repaid was
outstanding under Tranche A, or under Tranche B, if the Revolving Advance due to
be repaid was outstanding under Tranche B on such Term Date for a Term of one
month or such other period as shall comply with clause 4.10 unless the amount of
such Revolving Advance is the subject of a notice received by the Agent under
clause 6.9.
4.8 CONVERSION TO TRANCHE A
The Borrower may at any time during the Tranche A Revolving Period convert all
or any of the outstanding Revolving Advances made to the Borrower under Tranche
B so that such Revolving Advances are outstanding under Tranche A, in each case
with effect from the relevant Conversion Date, following receipt by the Agent of
a Conversion Notice signed by an Authorised Officer not later than 10 a.m. on
the second Banking Day before the proposed Conversion Date. A Conversion Notice
under this clause 4.8 shall be effective on actual receipt by the Agent and once
given shall be irrevocable. Each Conversion Notice given under this clause 4.8
shall contain a confirmation that, on the relevant Conversion Date, the Borrower
will be in compliance with the provisions of clause 4.2, having taken into
account such conversion. No Tranche B Advance may be converted to a Tranche A
Advance if either (i) such Tranche B Advance became a Tranche B Advance as a
result of conversion from a Tranche A Advance during the then current Interest
Period or (ii) the most recent conversion of a Tranche B Advance to a Tranche A
Advance took place within one month prior to the date of the proposed conversion
(but this proviso (ii) shall not restrict the conversion of more than one
Tranche B Advance to a Tranche A Advance on any one day).
4.9 CONVERSION TO TRANCHE B
The Borrower may at any time during the Tranche A Revolving Period convert all
or any of the outstanding Revolving Advances made to the Borrower under Tranche
A so that such Revolving Advances are outstanding under Tranche B with effect
from the relevant Conversion Date, following receipt by the Agent of a
Conversion Notice signed by an Authorised Officer not later than 10 a.m. on the
second Banking Day before the proposed Conversion Date. A Conversion Notice
under this clause 4.9 shall be effective on actual receipt by the Agent and once
given shall be irrevocable. Each Conversion Notice under this clause 4.9 shall
contain a confirmation that, on the relevant Conversion Date, the Borrower will
be in compliance with the provisions of clause 4.3, having taken into account
such conversion. No Tranche A Advance may be converted to a Tranche B Advance if
either (i) such Tranche A Advance became a Tranche A Advance as a result of
conversion from a Tranche B Advance during the then current Interest Period or
(ii) the most recent conversion of a Tranche A Advance to a Tranche B Advance
took place within one month prior to the date of the proposed conversion (but
this proviso (ii) shall not restrict the conversion of more than one Tranche A
Advance to a Tranche B Advance on any one day).
4.10 TERM AND AMOUNT OF REVOLVING ADVANCES
(a) Revolving Advances may be made only on Banking Days falling
within, in the case of Revolving Advances made under Tranche A,
the Tranche A Revolving Period or, in the case of Revolving
Advances made under Tranche B, the Tranche B Revolving Period,
and may be borrowed only for a Term of one month or two, three
or six months or (with the prior agreement of all of the Banks)
any other period in any such case ending not later than the last
day of the Relevant Revolving Period Provided that any Revolving
Advances made less than one month prior to the last day of the
Relevant Revolving Period may only be borrowed for the period up
to and ending on such date;
(b) each Revolving Advance shall be of either (i) (pound)10,000,000
or any larger sum which IS an integral multiple of
(pound)5,000,000 or (ii) the remaining available facility under
Tranche A or Tranche B (as applicable);
(c) no Revolving Advance may be drawn down under Tranche A and no
Revolving Advance drawn down under Tranche B may be converted to
Tranche A on any day if the making of such Revolving Advance or
such conversion would cause the limits contained in either
clause 4.2 or clause 4.4 to be exceeded;
(d) no Revolving Advance may be drawn down under Tranche B and no
Revolving Advance drawn down under Tranche A may be converted to
Tranche B on any day if the making of such Revolving Advance or
such conversion would cause the limits contained in either
clause 4.3 or clause 4.4 to be exceeded; and
(e) no Revolving Advance may be drawn down if, as a result, there
would be more than eight Revolving Advances then outstanding.
4.11 NOTIFICATION TO BANKS
On the date of receipt of a Drawdown Notice or a Rollover Notice complying with
the terms of this Agreement or if a Revolving Advance is otherwise to be made in
accordance with clause 4.7 the Agent shall notify each Bank thereof, of the date
on which such Revolving Advance is to be made, the Term thereof, whether such
Revolving Advance is to be made under Tranche A or Tranche B. Subject to the
provisions of clauses 3 and 4.13, on the date for the making of the relevant
Revolving Advance each of the Banks shall make available to the Agent its
portion of such Revolving Advance in accordance with clause 8.2. On the date of
receipt of a Conversion Notice complying with the terms of this Agreement the
Agent shall notify each Bank thereof and of the Conversion Date and whether
under Tranche A or Tranche B and the amount which is the subject of such
Conversion Notice.
4.12
TERMINATION OF COMMITMENTS
Any part of the Commitments undrawn and uncancelled in respect of Tranche B at
the end of the Tranche B Revolving Period or, in respect of Tranche A at the end
of the Tranche A Revolving Period, shall thereupon be automatically reduced to
zero.
4.13 REPAYMENT OF REVOLVING ADVANCES
The Borrower agrees to repay each Revolving Advance in respect of which the Term
Date is before the last day of the Relevant Revolving Period on such Term Date.
If a Revolving Advance (the "NEW REVOLVING ADVANCE") is to be made to the
Borrower on a day on which another Revolving Advance made to the Borrower (the
"MATURING REVOLVING ADVANCE") is due to be repaid then, subject to the terms of
this Agreement and so long as the conditions referred to in clause 3.2 shall
have been satisfied in relation to the new Revolving Advance, (i) the maturing
Revolving Advance shall be deemed to have been repaid on its Term Date either in
whole (if the new Revolving Advance is equal to or greater than the maturing
Revolving Advance) or in part (if the new Revolving Advance is less than the
maturing Revolving Advance) and the Borrower shall only be obliged to repay the
principal amount by which the maturing Revolving Advance exceeds the new
Revolving Advance and (ii) to the extent that the maturing Revolving Advance is
so deemed to have been repaid, the principal amount of the new Revolving Advance
to be made on such date shall be deemed to have been credited to the account of
the Borrower by the Agent on behalf of the Banks in accordance with the terms of
this Agreement and the Banks shall only be obliged to make available to the
Borrower pursuant to clause 4.11 a principal amount (if any) equal to the amount
by which the new Revolving Advance exceeds the maturing Revolving Advance.
4.14 CONVERSION TO A TERM LOAN
On the last day of the Tranche B Revolving Period the revolving credit facility
made available under Tranche B shall convert to a term loan and all outstanding
Revolving Advances the Term Date of which is the last day of the Revolving
Period shall be consolidated with any other such Revolving Advances into the
Loan and be repaid in accordance with clause 6.
4.15 TERM ADVANCES
Following the consolidation referred to in clause 4.14, all Revolving Advances
shall be deemed to have been repaid and the Loan shall be deemed to be a Term
Advance for the purposes of this Agreement. The Borrower may by notice received
by the Agent not later than 10 a.m. on the second Banking Day before the
beginning of each Interest Period in respect of a Term Advance specify that such
Term Advance shall be divided into more than one Term Advance, or consolidated
with any other Term Advance outstanding in respect of the Loan in respect of
which the then current Interest Period ends on the same day as the current
Interest Period in respect of such Term Advance. No more than 12 Term Advances
may be outstanding under this Agreement at any time. If more than one Term
Advance is outstanding in respect of the Loan each such Term Advance shall be
either (pound)10,000,000 or any larger sum which is an integral multiple of
(pound)5,000,000 or the balance of the Loan.
5. INTEREST AND INTEREST PERIODS; ALTERNATIVE INTEREST RATES
5.1 NORMAL INTEREST RATES
The Borrower agrees to pay interest on each Advance in respect of each Interest
Period relating thereto on each Interest Payment Date at the rate per annum
determined by the Agent to be the aggregate of (a) the applicable Margin, (b)
the Additional Cost and (c) LIBOR.
5.2 TRANCHE A MARGIN
The Margin in relation to any Revolving Advance made under Tranche A shall be
2.25 per cent. per annum.
5.3 TRANCHE B MARGIN
The Margin in relation to any Revolving Advance made under Tranche B and any
Term Advance shall (subject to the proviso below) be the rate set out in column
(1) below against the ratio of Total TCN Group Cash Paying Debt to Consolidated
Annualised TCN Group Net Operating Cash Flow set out in column (2) below as
shown in the most recently delivered Monthly Management Accounts (or, after the
end of the Revolving Period, the most recently delivered Quarterly Management
Accounts or Monthly Management Accounts) of the TCN Group delivered to the Agent
under this Agreement prior to the first day of the relevant Interest Period:
(1) (2)
RATE (PER CENT. RATIO OF TOTAL TCN GROUP CASH PAYING DEBT TO
PER ANNUM) CONSOLIDATED ANNUALISED TCN GROUP NET OPERATING CASH
FLOW
1.875 greater than or equal to 6.0
1.500 less than 6.0 but greater than or equal to 4.5
1.000 less than 4.5 but greater than or equal to 3.0
0.500 less than 3.0
provided that if on the first day of the relevant Interest Period the Borrower
has failed to deliver any relevant financial statements then due under this
Agreement within the time period for the Borrower so to deliver such financial
statements, then the Margin for such Advance during such Interest Period shall
from (and including) the last day upon which such financial statements were due
to (but excluding) the date of delivery of such financial statements be 1.875
per cent. per annum.
5.4 Conversion Margin
In respect of any Interest Period during which a Revolving Advance is converted
from Tranche A to Tranche B (or vice versa) the Margin for that part of the
Interest Period that the Revolving Advance was outstanding under Tranche A shall
be determined in accordance with clause 5.2 and the Margin for that part of the
Interest Period that the Revolving Advance was outstanding under Tranche B was
outstanding shall be determined in accordance with clause 5.3.
5.5 Interest Periods
The Interest Period in relation to each Revolving Advance shall be of a duration
equal to the Term of such Revolving Advance. Interest Periods in respect of Term
Advances shall be of a duration determined in accordance with clauses 5.6 and
5.7.
5.6 Selection of Interest Periods for Term Advances
The Borrower may by notice received by the Agent not later than 11 a.m. on the
second Banking Day before the beginning of each Interest Period in respect of a
Term Advance specify whether such Interest Period shall have a duration of one
month or two, three or six months or (with the prior agreement of all of the
Banks) any other period.
5.7 Determination of Interest Periods for Term Advances
Every Interest Period in respect of a Term Advance shall be of the duration
specified by the Borrower pursuant to clause 5.6 but so that:
(a) the initial Interest Period in respect of each Term Advance will
commence on the last day of the Tranche B Revolving Period and each
subsequent Interest Period in respect of such Term Advance will
commence forthwith upon the expiry of the previous Interest Period in
respect of such Term Advance;
(b) Interest Periods in respect of Term Advances of an aggregate amount at
least equal to the amount of the Loan to be repaid on any Term
Repayment Date shall end on such date; and
(c) if the Borrower fails to specify the duration of an Interest Period in
accordance with the provisions of clause 5.6 and this clause 5.7 such
Interest Period shall, subject to this clause 5.7, have a duration of
one month.
5.8 Default interest
If the Borrower fails to pay any sum (including, without limitation, any sum
payable pursuant to this clause 5.8) on its due date for payment under this
Agreement the Borrower agrees to pay interest on such sum from the due date up
to the date of actual payment (as well after as before judgment) at a rate
determined by the Agent pursuant to this clause 5.8. The period beginning on
such due date and ending on such date of payment shall be divided into
successive periods of not more than three months as selected by the Agent (after
consultation with the Banks) each of which (other than the first, which shall
commence on such due date) shall commence on the last day of the preceding such
period. The rate of interest applicable to each such period shall be the
aggregate (as determined by the Agent) of (a) one per cent. per annum, (b) the
Margin, (c) the Additional Cost and (d) LIBOR, provided that if such unpaid sum
is all or part of an Advance which shall have become due and payable prior to
the last day of the then current Interest Period relating thereto, the first
such period selected by the Agent shall end on the last day of such Interest
Period and interest shall be payable on such unpaid sum during such period at a
rate one per cent. above the rate applicable thereto immediately before it
became due. Default interest under this clause 5.8 shall be due and payable on
the last day of each period determined by the Agent pursuant to this clause 5.8
or, if earlier, on the date on which the sum in respect of which such default
interest is accruing shall actually be paid. If, for the reasons specified in
clause 5.10(a)(i) or (ii), the Agent is unable to determine a rate in accordance
with the foregoing provisions of this clause 5.8 each Bank shall promptly notify
the Agent of the cost of funds to such Bank and interest on any sum not paid on
its due date for payment shall be calculated for each Bank at a rate determined
by the Agent to be one per cent. per annum above the aggregate of the Margin and
the cost of funds (including Additional Cost) to such Bank.
5.9 Notification of Interest Periods and interest rate
The Agent shall notify the Borrower and the Banks promptly of the amount of each
Term Advance, the duration of each Interest Period or other period for the
calculation of interest (or, as the case may be, default interest) and of each
rate of interest determined by it under this clause 5.
5.10 Market disruption; non-availability
(a) If and whenever, at any time prior to the commencement of any Interest
Period:
(i) the Agent shall have determined (which determination shall,
in the absence of manifest error, be conclusive), that
adequate and fair means do not exist for ascertaining LIBOR
during such Interest Period; or
(ii) none or only one of the Reference Banks supplies the Agent
with a quotation for calculating LIBOR; or
(iii)the Agent shall have received notification from Banks with
Contributions aggregating not less than one-third of the
Loan that deposits in Sterling are not available to such
Banks in the London Interbank Market in the ordinary course
of business in sufficient amounts to fund their
contributions to the relevant Advance for such Interest
Period or that LIBOR does not accurately reflect the cost to
such Banks of obtaining such deposits;
the Agent shall forthwith give notice (a "Determination Notice")
thereof to the Borrower and to each of the Banks. A Determination
Notice shall contain particulars of the relevant circumstances giving
rise to its issue. After the giving of any Determination Notice the
undrawn amount of the Commitments of all of the Banks shall not be
borrowed until notice to the contrary is given to the Borrower by the
Agent.
(b) During the period of 10 days after any Determination
Notice has been given by the Agent under clause 5.10(a), (i)
if the Borrower so requires, the Borrower and the Agent and
each affected Bank shall enter into negotiations with a view
to agreeing a substitute basis for determining the rates of
interest from time to time applicable to the Advances
thereafter and any such substitute basis that is agreed shall
take effect in accordance with its terms; and (ii) if no
substitute basis has been agreed between the Borrower, the
Agent and each affected Bank pursuant to paragraph (i) above,
each affected Bank shall certify a substitute basis for
funding its contribution to the relevant Advance. Such
substitute basis may (without limitation) include alternative
interest periods, alternative currencies or alternative rates
of interest but shall include a margin above the cost of funds
including Additional Cost, if any, to such Bank equivalent to
the Margin for the relevant Interest Period determined in
accordance with clauses 5.2 and 5.3 (as applicable).
Each substitute basis so agreed in accordance with (i) or,
failing such agreement, certified in accordance with (ii) shall be
binding upon the Borrower, the Agent and (in the case of (i)) each
Bank and (in the case of (ii)) each affected Bank and shall take
effect in accordance with its terms from the date specified in the
Determination Notice.
5.11 Reference Bank quotations
If any Reference Bank is unable or otherwise fails to furnish a quotation for
the purpose of calculating LIBOR the interest rate shall be determined, subject
to clause 5.10, on the basis of the quotations furnished by the remaining
Reference Banks.
6. Repayment, prepayment and cancellation Repayment,
prepayment and cancellation
6.1 Repayment of the Tranche A Loan
The Borrower agrees to repay the outstanding amount of the Tranche A Loan on or
before 30 September 1998.
6.2 Repayment of the Tranche B Loan
The Borrower agrees to repay the Tranche B Loan in instalments on each date
specified in column (1) below and in the proportion of the Tranche B Loan
outstanding at the end of the Tranche B Revolving Period specified opposite the
relevant date in column (2) below.
(1) (2)
Date Proportion
31 December 2001 5.00%
31 March 2002 5.00%
30 June 2002 5.00%
30 September 2002 5.00%
31 December 2002 5.00%
31 March 2003 6.25%
30 June 2003 6.25%
30 September 2003 6.25%
31 December 2003 6.25%
31 March 2004 6.25%
30 June 2004 6.25%
30 September 2004 6.25%
31 December 2004 6.25%
31 March 2005 6.25%
30 June 2005 6.25%
30 September 2005 6.25%
31 December 2005 6.25%
6.3 Voluntary prepayment
The Borrower may prepay any Advance in whole or in part (being oe10,000,000 or
any larger sum which is an integral multiple of oe5,000,000) at any time.
6.4 Additional voluntary prepayment
The Borrower may also prepay (in whole but not in part only), without premium or
penalty, but without prejudice to its obligations under clauses 5.10, 8.7 and
15.2:
(a) the Contribution of any Bank to which the Borrower shall have become
obliged to pay additional amounts under clause 8.7 or 15.2;
(b) any Bank's Contribution to which a substitute basis applies by virtue
of clause 5.10(b); or
(c) the Contribution of any Bank if it is or becomes contrary to any law
or regulation for that Bank to contribute to Advances or to maintain
its Commitment or fund or maintain its Contribution.
Upon any notice of such prepayment being given, the Commitment of the relevant
Bank shall be reduced to zero.
6.5 Mandatory Prepayment
(a) The Borrower shall apply, or procure the application of,
50 per cent. of Excess Cash Flow (if any) in respect of each
of the Six Month Periods of the Borrower ending on 30 June and
31 December in each year (commencing with the Six Month Period
ending 30 June 2001) in prepayment of the Loan provided that
the firstoe10,000,000 which the Borrower would, but for this
proviso, have been obliged so to apply or procure the
application of may be retained by the Borrower (but without
prejudice to the operation of this clause 6.5(a) in respect of
all other relevant amounts).
(b) Each prepayment to be made under paragraph (a) above shall:
(i) be made on Interest Payment Dates falling after the date upon
which the Quarterly Management Accounts in respect of the
Quarterly Period ending on the last day of the relevant Six Month
Period are delivered to the Agent pursuant to clause 10.1(g),
beginning with the first such date and continuing until the
prepayment obligation under paragraph (a) above in respect of
such Six Month Period has been satisfied; and
(ii) if on any Interest Payment Date upon which an amount of
Excess Cash Flow is to be applied in prepayment of the Loan:
(1) such amount is less than the amount of the
Advances whose Interest Period ends on such date, the
Borrower may select against which Advance or Advances the
prepayment is to be made and the proportion of the relevant
amount to be prepaid on each Advance but shall ensure that
the full amount of such Excess Cash Flow required to be
applied is so applied in prepayment;
(2) such amount is equal to or greater than the amount
of the Advances whose Interest Period ends on such date, the
Borrower shall prepay each such Advance on such date.
(c) The Borrower's obligations under paragraphs (a) and (b)
above shall cease in respect of the relevant Six Month Period
and all future Six Month Periods if, in respect of each of two
consecutive Six Month Periods, Total TCN Group Debt on the
last day of the relevant Six Month Period is less than 3.5
times Consolidated Annualised TCN Group Net Operating Cashflow
calculated by reference to such Six Month Period, each as
demonstrated in the Compliance Certificate for the Quarterly
Period ending on the last day of the relevant Six Month
Period.
(d) If the Compliance Certificate for one Quarterly Period
demonstrates that Total TCN Group Debt on the relevant Quarter
Day is less than 3.5 times Consolidated Annualised TCN Group
Net Operating Cashflow calculated by reference to the Six
Month Period ending on such Quarter Day, then the Borrower's
obligations under paragraphs (a) and (b) above shall be
suspended until the delivery of the Quarterly Management
Accounts for the subsequent Quarterly Period (the "Subsequent
Accounts") are delivered. If the Compliance Certificate in
respect of that subsequent Quarterly Period also demonstrates
that Total TCN Group Debt on the relevant Quarter Day is less
than 3.5 times Consolidated Annualised TCN Group Net Operating
Cashflow calculated by reference to the Six Month Period
ending on such subsequent Quarter Day then such suspended
obligations shall be extinguished; if not, then such suspended
obligations shall take effect as of the date of delivery of
the Subsequent Accounts but otherwise in accordance with
paragraphs (a) and (b) above.
6.6 Application of prepayments to repayment instalments
Any amounts prepaid pursuant to this Agreement in respect of the Tranche B Loan
after the end of the Tranche B Revolving Period shall be applied against the
repayment instalments calculated pursuant to clause 6.2 pro rata to such
instalments.
6.7 Amounts payable on prepayment
Any prepayment under this Agreement shall be made together with: (a) accrued
interest to the date of prepayment (calculated, in the case of any prepayment of
a Bank's Contribution pursuant to clause 6.4(b), and in respect of the period
during which the relevant substitute basis has applied by virtue of clause
5.10(b), at a rate per annum equal to the rate certified by such Bank in
accordance with clause 5.10(b)); (b) any additional amount payable under clause
8.7 or 15.2; and (c) all other sums payable by the Borrower to the relevant Bank
or the Banks (as the case may be) under this Agreement including, without
limitation, any accrued commitment commission payable under clause 7.1(c) and
any amounts payable under clause 14.
6.8 Notice of prepayment
No prepayment may be effected unless the Borrower shall have given the Agent at
least two Banking Days' notice of its intention to make such prepayment. Every
notice of prepayment shall be effective only on actual receipt by the Agent,
shall be irrevocable and shall oblige the Borrower to make such prepayment on
the date specified. No amount prepaid after the end of the Tranche B Revolving
Period may be reborrowed. The Borrower may not prepay the Loan or any part
thereof save as expressly provided in this Agreement.
6.9 Cancellation of Commitments
The Borrower may at any time by notice to the Agent (effective only on actual
receipt) cancel with effect from a date not less than two Banking Days after the
receipt by the Agent of such notice the whole or any part (being oe10,000,000 or
any larger sum which is an integral multiple of oe5,000,000) of the total of the
Commitments of all of the Banks which is not then outstanding or requested in a
Drawdown Notice in respect of which an Advance has not then been made. Any such
notice of cancellation, once given, shall be irrevocable and upon such
cancellation taking effect the Commitment of each of the Banks shall be reduced
proportionately.
7. Fees and expenses Fees and expenses
7.1 Fees
The Borrower agrees to pay to the Agent whether or not any part of the
Commitments is ever advanced:
(a) Front end fee
on the earlier of (i) the date of the first Revolving Advance
and (ii) the date falling 7 days after the date of this Agreement, for
the account of the Arrangers, an up-front fee of an amount agreed
between the Borrower and the Arrangers and set out in a letter of even
date herewith;
(b) Agency fee
on the earlier of (i) the date of the first Advance and (ii) the
date falling 7 days after the date of this Agreement and on each
anniversary of the date of this Agreement until all moneys owing under
this Agreement have been paid in full, for the account of the Agent,
an agency fee of an amount agreed between the Borrower and the Agent
and set out in a letter of even date herewith; and
(c) Commitment commission
in arrears on each Quarter Day after the date of this Agreement
and on the last day of the Revolving Period, for the account of each
Bank, commitment commission computed from the date of this Agreement
at the rate of 0.35 per cent. per annum on the daily undrawn and
uncancelled amount of such Bank's Commitment provided that commitment
commission shall cease to be payable to any Bank which shall be in
breach of its obligation to make Revolving Advances under this
Agreement with effect from the date of such breach and for so long as
such breach is continuing.
7.2 Expenses
The Borrower agrees to pay to the Agent within 30 days from the date on which
the Agent makes demand on the Borrower for payment of the same:
(a) all reasonable out-of-pocket expenses (including legal,
other professional, printing and out-of-pocket expenses)
incurred by the Agent, the Arrangers and the Security Trustee
in connection with the negotiation, preparation (including
reasonable due diligence), syndication and execution of this
Agreement and the Security Documents and of any amendment or
extension of or the granting of any waiver or consent under
this Agreement or any Security Document together with interest
at the rate referred to in clause 5.8 from the date falling 30
days after the date of demand for payment of such expenses to
the date of payment (as well after as before judgment); and
(b) all expenses (including legal and out-of-pocket expenses)
incurred by the Agent, the Arrangers, the Security Trustee and
the Banks or any of them in contemplation of, or otherwise in
connection with, the enforcement of, or preservation of any
rights under, this Agreement or any Security Document, or
otherwise in respect of the moneys owing under this Agreement,
together with interest at the rate referred to in clause 5.8
from the date falling 30 days after the date of demand for
payment of such expenses to the date of payment (as well after
as before judgment).
7.3 Value Added Tax
All fees and expenses payable pursuant to this clause 7 shall be paid together
with Value Added Tax (if any) properly chargeable thereon.
7.4 Stamp and other duties
The Borrower agrees (i) to pay all stamp, documentary, registration or other
like duties or taxes (including any duties or taxes payable by the Agent, the
Arrangers, the Security Trustee and the Banks) imposed on or in connection with
this Agreement, any Security Document or the Loan and (ii) to indemnify the
Agent, the Arrangers, the Security Trustee and the Banks against any liability
arising by reason of any delay or omission by the Borrower to pay such duties or
taxes.
8. Payments and Taxes; accounts and calculations Payments and Taxes; accounts
and calculations
8.1 No set-off or counterclaim; distribution to the
Banks
All payments to be made by the Borrower under this Agreement shall be made in
full, without any set-off or counterclaim whatsoever and, subject as provided in
clause 8.7, free and clear of any deductions or withholdings, in Sterling on the
due date to the account of the Agent at such bank in London as the Agent may
from time to time specify for this purpose. Save as otherwise expressly provided
by this Agreement such payments shall be for the account of the Banks and the
Agent shall forthwith distribute such payments in like funds as are received by
the Agent to the Banks rateably in accordance with their Commitments and/or
Contributions, as the case may be.
8.2 Payments by the Banks
All sums to be advanced by the Banks to the Borrower under this Agreement shall
be remitted in Sterling on the date of the relevant Advance to the account of
the Agent at such bank in London as the Agent may have notified to the Banks and
shall be paid by the Agent on such date in like funds as are received by the
Agent to the account of the Borrower specified in the relevant Drawdown Notice.
8.3 Agent may assume receipt
Where any sum is to be paid under this Agreement to the Agent for the account of
another person, the Agent may assume that the payment will be made when due and
may (but shall not be obliged to) make such sum available to the person so
entitled. If it proves to be the case that such payment was not made to the
Agent, then the person to whom such sum was so made available shall on request
refund such sum to the Agent together with interest thereon sufficient to
compensate the Agent for the cost of making available such sum up to the date of
such repayment and the person by whom such sum was payable shall indemnify the
Agent for any and all loss or expense which the Agent may sustain or incur as a
consequence of such sum not having been paid on its due date.
8.4 Non-Banking Days
When any payment under this Agreement would otherwise be due on a day which is
not a Banking Day, the due date for payment shall be extended to the next
following Banking Day unless such Banking Day falls in the next calendar month
in which case payment shall be made on the immediately preceding Banking Day. If
any date or day specifically referred to in this Agreement (being a date for the
making of any payment under this Agreement) is not a Banking Day all references
thereto shall be deemed to be references to the immediately preceding Banking
Day.
8.5 Calculations
All interest and other payments of an annual nature under this Agreement or to
be calculated on an annual basis shall accrue from day to day and be calculated
on the basis of actual days elapsed and a 365 day year.
8.6 Certificates conclusive
Any certificate or determination of the Agent, any Arranger, the Security
Trustee or any Bank as to any rate of interest or any amount payable under this
Agreement shall, in the absence of manifest error, be conclusive and binding on
each TCN Entity and (in the case of a certificate or determination by the Agent)
on the Banks.
8.7 Grossing-up for Taxes
If at any time the Borrower is required to make any deduction or withholding in
respect of Taxes from any payment due under this Agreement for the account of
any Bank, any Arranger, the Security Trustee or the Agent (or if the Agent is
required to make any such deduction or withholding from a payment to any
Arranger, the Security Trustee or a Bank), the sum due from the Borrower in
respect of such payment shall, subject to clause 8.8, be increased to the extent
necessary to ensure that, after the making of such deduction or withholding,
each Bank, any Arranger, the Security Trustee and the Agent receives on the due
date for such payment (and retains, free from any liability in respect of such
deduction or withholding) a net sum equal to the sum which it would have
received had no such deduction or withholding been required to be made and the
Borrower shall indemnify each Bank, each Arranger, the Security Trustee and the
Agent against any losses or costs incurred by any of them by reason of any
failure of the Borrower to make any such deduction or withholding or by reason
of any increased payment not being made on the due date for such payment. The
Borrower shall promptly deliver to the Agent copies of (or, where required,
originals of) any receipts, certificates or other proof evidencing the amounts
(if any) paid or payable in respect of any deduction or withholding as
aforesaid.
8.8 Qualifying Banks
Each Bank agrees promptly to notify the Borrower if it ceases to be a Qualifying
Bank. If any Bank is not or ceases to be a Qualifying Bank, then (save in
circumstances where such Bank has ceased to be a Qualifying Bank by reason of
any change in any law, directive or regulation or in its application or
interpretation, in each case taking effect after the date of this Agreement) the
Borrower shall not be liable to pay to that bank under clause 8.7 any sum in
excess of the sum it would have been obliged to pay if that Bank had been, or
had not ceased to be, a Qualifying Bank.
8.9 Claw-back of Tax benefit
If following any such deduction or withholding as is referred to in clause 8.7
from any payment by the Borrower, the Agent, any Arranger, the Security Trustee
or any Bank shall receive or be granted a credit against or remission for any
taxes payable by it, the Agent, any Arranger, the Security Trustee or such Bank
shall, subject to the Borrower having made any increased payment in accordance
with clause 8.7 and to the extent that the Agent, such Arranger, the Security
Trustee or such Bank can do so without prejudicing the retention of the amount
of such credit or remission and without prejudice to the right of the Agent,
such Arranger, the Security Trustee or such Bank to obtain any other relief or
allowance which may be available to it, reimburse the Borrower with such amount
as the Agent, such Arranger, the Security Trustee or such Bank shall in its
absolute discretion certify to be the proportion of such credit or remission as
will leave the Agent, such Arranger, the Security Trustee or such Bank (after
such reimbursement) in no worse position than it would have been in had there
been no such deduction or withholding from the payment by the Borrower as
aforesaid. Such reimbursement shall be made forthwith upon the Agent, such
Arranger, the Security Trustee or such Bank certifying that the amount of such
credit or remission has been received by it provided that the Agent, the
relevant Arranger, the Security Trustee or the relevant Bank shall not
unreasonably delay before so certifying. Nothing contained in this Agreement
shall oblige the Agent, any Arranger, the Security Trustee or any Bank to
disclose to the Borrower, any other TCN Entity or any other person any
information regarding its tax affairs or tax computations or interfere with the
right of the Agent, such Arranger, the Security Trustee or such Bank to arrange
its tax affairs in whatever manner it thinks fit and, in particular, none of the
Agent, the Arrangers, the Security Trustee or the Banks shall be under any
obligation to claim relief from its corporate profits, tax liability or similar
tax liabilities in respect of such tax in priority to any other claims, reliefs,
credits or deductions available to it. Without prejudice to the generality of
the foregoing, none of the Borrower or any other TCN Entity shall by virtue of
this clause 8.9, be entitled to enquire about the Agent's, any Arranger's, the
Security Trustee's or any Bank's tax affairs.
8.10 Bank accounts
Each Bank shall maintain, in accordance with its usual practices, an account or
accounts evidencing the amounts from time to time lent by, owing to and paid to
it under this Agreement. The Agent shall maintain a control account showing the
Loan and other sums owing by the Borrower under this Agreement and all payments
in respect thereof made by the Borrower from time to time. The control account
shall be prima facie evidence as to the amount from time to time owing by the
Borrower under this Agreement.
8.11 Partial payments
If, on any date on which a payment is due to be made by the Borrower under this
Agreement, the amount received by the Agent from the Borrower falls short of the
total amount of the payment due to be made by the Borrower on such date then,
without prejudice to any rights or remedies available to the Agent and the Banks
under this Agreement, the Agent shall apply the amount actually received from
the Borrower in or towards discharge of the obligations of the Borrower under
this Agreement in the following order, notwithstanding any appropriation made,
or purported to be made, by the Borrower:
(a) first, in or towards payment to the Arrangers, of any portion of the
front end fee payable under clause 7.1(a) which shall have become due
but remains unpaid;
(b) secondly, in or towards payment to the Agent, the Arrangers, the
Security Trustee and the Banks, on a pro rata basis, of any unpaid
fees, costs and expenses of the Agent, the Arrangers, the Security
Trustee and the Banks under this Agreement and any portion of the
agency fee payable under clause 7.1(b) which shall have become due but
remains unpaid;
(c) thirdly, in or towards payment to the Banks, on a pro rata basis, of
any accrued commitment commission payable under clause 7.1(c) which
shall have become due but remains unpaid;
(d) fourthly, in or towards payment to the Banks, on a pro rata basis, of
any accrued interest in respect of the Tranche A Loan which shall have
become due but remains unpaid;
(e) fifthly, in or towards payment to the Banks, on a pro rata basis, of
any accrued interest on the Tranche B Loan which shall have become due
but remains unpaid;
(f) sixthly, in or towards payment to the Banks, on a pro rata basis, of
any principal of the Tranche A Loan which shall have become due but
remains unpaid;
(g) seventhly, in or towards payment to the Banks, on a pro rata basis, of
any principal of the Tranche B Loan which shall have become due but
remains unpaid;
(h) eighthly, in or towards payment of any other sum which shall have
become due but remains unpaid (and, if more than one such sum so
remains unpaid, on a pro rata basis).
The order of application set out in this clause 8.11 may be varied by the Agent
if all Banks so direct.
9. Representations and warranties Representations
and warranties
9.1 Repeated representations and warranties
Each TCN Entity severally represents and warrants in respect of itself and, in
the case of the Borrower, each other member of the TCN Group to each of the
Banks, the Arrangers, the Security Trustee and the Agent that:
(a) Due incorporation of the Borrower and the Charging
Subsidiaries
the Borrower, each Charging Subsidiary and each other Subsidiary
of the Borrower are duly incorporated and validly existing under the
laws of the respective countries of their incorporation as limited
liability companies and have power to carry on their respective
business as they are now being and hereafter proposed to be conducted
and to own their respective property and other assets;
(b) Power of the Borrower and each Charging Subsidiary
the Borrower and each Charging Subsidiary have all requisite
power to execute, deliver and perform their respective obligations
under this Agreement and the Security Documents to which they are
party including, in the case of the Borrower to borrow the
Commitments; compliance has been made with all necessary requirements
and all necessary corporate, shareholder or other action has been
taken by the Borrower and each Charging Subsidiary to authorise the
execution, delivery and performance of this Agreement and the Security
Documents to which they are a party; no limitation on the powers of
the Borrower to borrow will be exceeded as a result of borrowings
under this Agreement and notwithstanding the generality of the
foregoing, each Charging Subsidiary (where necessary) has amended its
Articles of Association to permit:
(i) any transfer of its shares in favour of the Security
Trustee (or its nominee) pursuant to any Security Document;
and
(ii) any transfer of its shares where such transfer is duly
executed by the Security Trustee (or its nominee) pursuant
to any power of sale under any Security Document;
(c) Due formation of Charging Partnerships
each Charging Partnership is a general or limited partnership
duly formed, validly existing and in good standing under the laws of
the State of Colorado or England and having other TCN Entities (being
in the case of the Charging Partnerships formed in the State of
Colorado, the TCN Entities that have executed or are expected to
execute the Pledge and Security Agreements) as its only partners
(there being no outstanding rights to acquire further interests
therein) and has provided to the Agent a true, correct and complete
copy of the partnership agreement pursuant to which it was formed and
currently exists, as amended to date. Each Charging Partnership has
the power and authority to own its properties and to carry out its
business as it is now being and is hereafter proposed to be conducted.
Each Charging Partnership is duly qualified, validly existing and in
good standing and authorised to do business in each jurisdiction in
which the character of its properties or the nature of its business
requires such qualification or authorisation;
(d) Power of the Charging Partnerships
each Charging Partnership has all requisite power to execute,
deliver and perform its obligations under this Agreement and the
Security Documents to which it is a party, compliance has been made
with all necessary requirements and all necessary action has been
taken to authorise the execution, delivery and performance by each
Charging Partnership of this Agreement and the Security Documents to
which it is a party; no resolution (other than resolutions that have
already been adopted) is required pursuant to the terms of any
partnership agreement forming any Charging Partnership to authorise
the execution, delivery and performance by it of this Agreement and
the Security Documents to which it is a party;
(e) Binding Obligations
this Agreement constitutes valid and legally binding obligations
of each TCN Entity enforceable in accordance with its terms subject to
the qualifications contained in the legal opinions referred to in
Schedule 3 which relate to this Agreement. The Security Documents to
which they are a party constitute valid and legally binding
obligations of each TCN Entity enforceable in accordance with their
respective terms subject to the qualifications contained in the legal
opinions referred to in Schedule 3 which relate to the relevant
Security Document and for this purpose any statement contained in the
qualifications to any such legal opinion that no opinion is given or
expressed in relation to any particular matter shall be deemed to be a
qualification of such opinion as regards such matter;
(f) No conflict with other obligations
the execution and delivery of, the performance of their
respective obligations under, and compliance with the provisions of,
this Agreement by each TCN Entity and the Security Documents to which
they are a party by each TCN Entity will not (i) contravene in any
material respect any existing applicable law, statue, rule or
regulation or any judgment, decree or permit to which any TCN Entity
is subject, (ii) (in the case of the Borrower and each Charging
Subsidiary) contravene or conflict with any provision of the
Memorandum and Articles of Association of the Borrower or any Charging
Subsidiary, (iii) (in the case of each Charging Partnership)
contravene or conflict with any provision of the partnership agreement
of any Charging Partnership, (iv) breach in any material respect any
term of the Licences or the Necessary Authorisations, (v) conflict
with in any material respect, or result in any breach of any of the
terms of, or constitute a default under any agreement (including any
partnership agreements) to which any TCN Entity is a party or is
subject or by which it or any of its property is bound or (vi) result
in the creation or imposition of or oblige any TCN Entity, any
Subsidiary or Associated Partnership of the Borrower or any of their
respective Associated Companies or Associated Partnerships to create
any Encumbrance (other than those created by the Security Documents)
on any TCN Entity, any Subsidiary or Associated Partnership of the
Borrower's or any of their respective Associated Companies' or
Associated Partnerships' undertakings, assets, rights or revenues;
(g) No litigation
save as disclosed in the Disclosure Letter, no litigation,
arbitration or administrative proceeding is taking place, pending or,
to the knowledge of the officers of any TCN Entity (as the case may
be), threatened against any TCN Entity or Telewest which (if adversely
determined) would or is reasonably likely, in the opinion of the
Agent, to have a Material Adverse Effect;
(h) Financial statements
(i) the audited financial statements of the Telewest Group,
the TCN Group and the Borrower in respect of the financial
year ended on 31 December 1995 as delivered to the Agent have
been prepared in accordance with GAAP which principles have
(save, in relation to any repetition of this warranty pursuant
to this Agreement, where the Borrower is permitted to prepare
financial statements on a New Basis and is not required to
prepare financial statements on the Original Basis (each as
defined in clause 10.1(i))) been consistently applied and
present fairly and accurately the financial position of each
such entity as at such date and the results of the operations
of each such entity respectively for the financial year ended
on such date and, as at such date, no such entity had any
significant liabilities (contingent or otherwise) nor any
significant unrealised or anticipated losses, which, in any
such case, are not disclosed by, or reserved against in, such
financial statements;
(ii) the pro forma consolidated financial projections for the
financial years ending 31 December 1996 to 31 December 2006
inclusive for the TCN Group and the operating statistics
projections for each Region for such financial years, and the
Agreed Base Case have been prepared based upon historical
financial information and upon the assumptions set forth therein,
which assumptions were reasonable both when made and are
reasonable on the date hereof;
(i)
No filing required
it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement or any
of the Security Documents that any of them or any other instrument be
notarised, filed, recorded, registered or enrolled in any court or
public office (save for (i) the registration of the Debenture, the
Pledge and Security Agreements, the Telewest Assignment and the
Scottish Security Documents pursuant to Section 395 or 410 Companies
▇▇▇ ▇▇▇▇ and, in the case of (1) the Debenture, pursuant to the Land
Registration ▇▇▇ ▇▇▇▇ and the Land Charges Act 1925 and regulations
made thereunder and (2) the Standard Securities, the recording thereof
in the Register of Sasines or registration thereof in the Land
Register for Scotland (as appropriate) and (ii) the filing of UCC- 1
Financing Statements and continuation statements with respect to the
Pledge and Security Agreements pursuant to the Colorado Uniform
Commercial Code);
(j) Choice of law
the choice by each TCN Entity of English law to govern this
Agreement and the Security Documents to which they are a party (other
than the Pledge and Security Agreements and the Reimbursement
Agreement, under which Colorado law is to govern and the Scottish
Security Documents, under which Scots law is to govern) and the
submission by such TCN Entity to the jurisdiction of the English
courts, are valid and binding subject to the qualifications contained
in the legal opinions referred to in Schedule 3 which relate to this
Agreement or the Security Documents and for this purpose any statement
contained in the qualifications to any such legal opinion that no
opinion is given or expressed in relation to any particular matter
shall be deemed to be a qualification of such opinion as regards such
matter;
(k) Legal and beneficial owners
save as disclosed in the Disclosure Letter and subject to any
Permitted Encumbrances, the TCN Entities are the legal and beneficial
owners of and have good and marketable title to all their respective
properties and other material assets free from any Encumbrances;
(l) No material adverse change
there has been no adverse change in the financial position of
the TCN Group from that set forth in the financial statements referred
to in clause 9.1(h)(i) and there has been no adverse change in the
operations or business prospects of the TCN Group from that set forth
in such financial statements which, in either case, would or is
reasonably likely, in the opinion of the Agent, to have a Material
Financial Adverse Effect;
(m)
Solvency
after giving effect to the transactions contemplated hereby,
the Revolving Advances to be made hereunder and the application of the
proceeds thereof, and taking into account the execution, delivery and
effectiveness of the Reimbursement Agreement, (i) on a pro forma
basis, the fair value and the present fair saleable value of each
Associated Partnership's assets will exceed that Associated
Partnership's stated liabilities and identified contingent
liabilities, (ii) each Associated Partnership will have the ability to
pay its debts as they become absolute or mature, and (iii) the capital
or assets remaining in each Associated Partnership after consummation
of the transactions contemplated hereby will not be unreasonably small
to conduct that Associated Partnership's business as it is now
conducted and is proposed to be conducted during the term hereof;
(n) Compliance with Environmental Laws and Licences
each member of the TCN Group:
(i) complies and has at all times complied with all Environmental
Laws and Environmental Licences and all other laws, regulations
and judgments (other than Telecommunications and Cable Laws) the
breach of which would or is reasonably likely to have a Material
Financial Adverse Effect; and
(ii) has obtained and maintains in full force and effect all
Environmental Licences, and there are no facts or circumstances
entitling any such Environmental Licences to be revoked,
suspended, amended, varied, withdrawn or not renewed where such
revocation, suspension, amendment, variation, withdrawal or
non-renewal, would or is reasonably likely to have a Material
Financial Adverse Effect;
(o) Environmental Claim
no Environmental Claim is pending or has been made or threatened
against any member of the TCN Group or any of their respective
officers or any occupier of any property owned or leased by any member
of the TCN Group and no member of the TCN Group has any reason to
believe that it or, in the case of the Borrower, any of its
Subsidiaries or Associated Partnerships has or is likely to have any
liability in relation to Environmental Matters which would or is
reasonably likely to have a Material Financial Adverse Effect;
(p) Deposit of Relevant Substance
to the best of its knowledge and belief, no Relevant Substance
has been deposited, disposed of, kept, treated, imported, exported,
transported, processed, manufactured, used, collected, sorted or
produced at any time, or is present in the environment (whether or not
on property owned, leased, occupied or controlled by any member of the
TCN Group) in circumstances which are likely to result in an
Environmental Claim against any member of the TCN Group which would,
or is reasonably likely to have a Material Financial Adverse Effect;
(q) Disclosure of inspection results
full details have been given to the Agent of any inspections,
investigations, studies, audits, tests, reviews or other analyses in
relation to Environmental Matters relating to any member of the TCN
Group or to the best of the knowledge of any member of the TCN Group
(as the case may be) any property now owned, leased or occupied by any
member of the TCN Group and of all Environmental Licences which
disclose any matters which would or would be reasonably likely to have
a Material Financial Adverse Effect;
(r) Intellectual Property Rights
(i) the Intellectual Property Rights owned by each member of the TCN
Group are free from any Encumbrance (save for those created or to
be created by or pursuant to the Security Documents) and any
other rights or interests in favour of third parties;
(ii) the Intellectual Property Rights owned by each member of the TCN
Group are all the Intellectual Property Rights required by them
in order to carry on, maintain and operate in all material
respects their respective businesses, properties and assets and
no member of the TCN Group in carrying on its business infringes
any Intellectual Property Rights of any third party where any
action taken by such third party in respect of any such
infringement would or is reasonably likely to have a Material
Financial Adverse Effect; and
(iii)no Intellectual Property Rights owned by each member of the TCN
Group are being infringed, nor is there any threatened
infringement of any such Intellectual Property Rights which, in
either case would or is reasonably likely to have a Material
Financial Adverse Effect; and
(s) Copyright matters
save as disclosed in the Disclosure Letter, each member of the
TCN Group has obtained all consents and taken all other action
required in connection with the secondary transmission by it of any
broadcast television signals and no member of the TCN Group has any
knowledge, nor is it aware of any claim, that it is or may be liable
to any person for any copyright infringement of any nature whatsoever
as a result of the operation of its business which liability in the
opinion of the Agent would or is reasonably likely to have a Material
Financial Adverse Effect.
9.2 Further Representations and Warranties
Each TCN Entity severally further represents and warrants in respect of itself
and, in the case of the Borrower, each other member of the TCN Group to each of
the Banks, the Arrangers, the Security Trustee and the Agent that:
(a) Principal Agreements
save as disclosed in the Disclosure Letter (i) the Principal
Agreements which have been entered into on or prior to the date of
this Agreement are in full force and effect and (ii) to the best of
its knowledge and belief after due enquiry, (1) no party is in breach
of the terms thereof, (2) there is no dispute subsisting between the
parties thereto and (3) no amendments have been made thereto (save for
any amendments thereto referred to in Schedule 10 to this Agreement);
(b) Licences and Necessary Authorisations
the Licences are in full force and effect and each TCN Entity
(as the case may be) is in compliance in all material respects with
all provisions thereof. Save as set out in the Disclosure Letter, each
TCN Entity has secured all the Necessary Authorisations, all such
Necessary Authorisations are in full force and effect and each TCN
Entity is in compliance in all material respects with all provisions
thereof. To the best of the knowledge of the TCN Entity, neither the
Licences nor any of the Necessary Authorisations are the subject of
any pending or threatened attack or revocation;
(c) Consents obtained
every consent, authorisation, licence or approval of, or
registration with or declaration to, governmental or public bodies or
authorities or courts (other than the Licences and the Necessary
Authorisations) required by each TCN Entity to authorise, or required
by each TCN Entity in connection with, the execution, delivery,
validity, enforceability or admissibility in evidence of this
Agreement and the Security Documents to which they are a party or the
performance by each TCN Entity of their respective obligations under
this Agreement and the Security Documents (other than (i) the
registration of the Debenture, the Pledge Security Agreements, the
Telewest Assignment and the Scottish Security Documents pursuant to
Section 395 or 410 of the Companies ▇▇▇ ▇▇▇▇ and, in the case of (1)
the Debenture, pursuant to the Land Registration ▇▇▇ ▇▇▇▇ and the Land
Charges Act 1925 and regulations made thereunder and (2) the Standard
Securities, the recording thereof in the Register of Sasines or
registration thereof in the Land Register for Scotland (as
appropriate) and (ii) the filing of UCC- 1 Financing Statements with
respect to the Pledge and Security Agreements pursuant to the Colorado
Uniform Commercial Code) has been obtained or made and is in full
force and effect and there has been no material default in the
observance of the conditions or restrictions (if any) imposed in, or
in connection with, any of the same;
(d)
Contractual commitments
no dividends of the Borrower or repayments of the capital
contributions made by Telewest to the Borrower or any other rights or
benefits have been declared, made or paid by the Borrower and no
member of the TCN Group has entered into any contractual commitments
of a material nature (other than (i) the Principal Agreements, (ii)
for the purpose of carrying out the business of constructing,
installing and operating cable television and telecommunications
systems in the TCN Franchises or such other business as is permitted
by the terms of this Agreement or (iii) contractual commitments
arising pursuant to or constituting Permitted Borrowings, Permitted
Disposals, Permitted Guarantees, Permitted Intra-TCN Group
Transactions, Permitted Investments or Permitted Encumbrances);
(e) No withholding Taxes
as at the date of this Agreement, on the basis that all of the
Banks are Qualifying Banks, no Taxes are imposed by withholding or
otherwise on any payment to be made to the Agent, the Arrangers, the
Security Trustee or the Banks by any TCN Entity under this Agreement
or any Security Document to which any of them is a party or are
imposed on or by virtue of the execution or delivery by any TCN Entity
of this Agreement or any Security Document to which any of them is a
party or any document or instrument to be executed or delivered under
this Agreement or any such Security Document (other than stamp duty
payable on any Security Document);
(f) Telecommunications and Cable Laws
each member of the TCN Group complies and has at all times
complied in all material respects with all Telecommunications and
Cable Laws but excluding, for these purposes only, breaches of
Telecommunications and Cable Laws which have been expressly waived by
the relevant regulatory authority;
(g) No Default
no Default has occurred and is continuing which
has not been expressly waived;
(h) Information Memorandum
subject to the next paragraph, to the best of the Borrower's
knowledge and belief after due enquiry, as at the date of the
Information Memorandum the factual information contained in the
Information Memorandum was true and accurate in all material respects
and not misleading in any material respect and the Information
Memorandum does not omit any material facts; all reasonable enquiries
have been made by the Borrower to verify the facts and statements
contained therein; all opinions, projections and forecasts contained
therein and the assumptions on which such opinions, projections and
forecasts were based were arrived at after due and careful
consideration and enquiry and represent the views of the Borrower as
at the date of the Information Memorandum; there are no material facts
or circumstances which have not been disclosed to the Arrangers prior
to the date hereof the omission of which would make any material
factual information contained in the Information Memorandum inaccurate
or misleading in any material respect either as at the date of the
Information Memorandum or as at the date of this Agreement or any of
the opinions, projections and forecasts contained in the Information
Memorandum (and the assumptions on which such opinions, projections
and forecasts were made) misleading in any material respect either as
at the date of the Information Memorandum or as the date of this
Agreement.
No warranty or representation is made in respect of (i) any
information, facts, statements, opinions, projections, forecasts,
demographic statistics or circumstances relating to the cable and
telecommunications industry as a whole ("Information"), (ii) any
person other than Telewest, the Borrower and members of the TCN Group
or (iii) any Information which is in the public domain or which is
identified in the Information Memorandum as having been obtained from
or made by a source, or being those of a person, other than the
Borrower, any other member of the TCN Group or Telewest;
(i) Carry on business solely in UK
each of the TCN Entities (i) does not employ any employees in
the State of Colorado or elsewhere in the United States of America and
(ii) carries on business solely in, and its principal places of
business, books and records and the property (other than the interests
in the Original Charging Partnerships) subject to the Security
Documents are located in, the United Kingdom (except that, in the case
of any Charging Partnership formed in the State of Colorado, if it
maintains an office in the United States of America, it maintains such
office in the State of Colorado). Control and management of each of
the TCN Entities takes place outside the United States of America; and
(j) Immaterial Group Entities
each member of the TCN Group (other than Cable Guide Limited
(registered no. 2025654)) which is not an Immaterial Group Entity is a
party to this Agreement and each Original Non-Charging Subsidiary
(other than Cable Guide Limited) is an Immaterial
Group Entity.
9.3 Repetition
The representations and warranties in clause 9.1 (and so that (i) the
representation and warranty in clause 9.1(h)(i) shall for this purpose refer to
the then latest audited financial statements of the Borrower or the latest
consolidated financial statements of the TCN Group or the Telewest Group (as
applicable) verified by the auditors of the TCN Group and delivered to the Agent
under clause 10.1, (ii) the representation and warranty contained in clause
9.1(h)(ii) shall for this purpose refer to the then latest pro forma
consolidated financial projections of the TCN Group and the then latest
operating statistics projections for each Region and shall not include a
representation or warranty as to the Agreed Base Case, and (iii) the
representation and warranty in clause 9.1(l) shall for this purpose refer to the
latest audited financial statements of the TCN Group delivered to the Agent
under clause 10.1) shall be deemed to be repeated by each TCN Entity in respect
of itself on and as of each Interest Payment Date and the date on which each
Advance is made under this Agreement. Additionally, the Borrower shall be deemed
to represent and warrant as at each such date in respect of the then latest
audited and/or verified financial statements delivered to the Agent under clause
10.1(f) that (A) such financial statements have been prepared in accordance with
GAAP which have been consistently applied (save as provided for in Clause
10.1(i)) and present fairly and accurately the financial position of the
Borrower and the consolidated financial position of the TCN Group and the
Telewest Group respectively as at the dates to which such financial statements
were made up and the results of the operations of the Borrower and the
consolidated results of the operations of the TCN Group and the Telewest Group
respectively for the financial year ended on such date and that as at such date,
neither the Borrower nor any member of the TCN Group nor the Telewest Group had
any significant liabilities (contingent or otherwise) which are not disclosed
by, or reserved against in, such financial statements (or the notes thereto) and
neither the TCN Group nor the Telewest Group had any unrealised or anticipated
losses and (B) there has been no adverse change in the financial position of the
Borrower or the consolidated financial position of the TCN Group or the Telewest
Group from that set forth in the latest set of financial statements delivered
pursuant to clause 10.1(f) and there has been no adverse change in the
operations or business prospects of the Borrower or the TCN Group or the
Telewest Group from that set forth in such financial statements which, in either
case, would or is reasonably likely to have a Material Financial Adverse Effect.
10. Positive covenants Positive covenants
10.1 Covenants
Each TCN Entity jointly and severally undertakes with each of the Banks,
each of the Arrangers, the Security Trustee and the Agent that they will
from the date of this Agreement and so long as any monies are owing under
this Agreement or any part of the Commitments remains outstanding:
(a) Notice of Default, etc.
promptly inform the Agent of (i) any occurrence of which it
becomes aware which would or is reasonably likely to have a Material
Adverse Effect (ii) any Default and any potential breach of any of the
undertakings set out in clause 12 forthwith upon becoming aware
thereof and will from time to time, if so requested by the Agent,
confirm to the Agent in writing that, save as otherwise stated in such
confirmation, no Default has occurred and is continuing, (iii) any
lapse, suspension or termination of or refusal by any person to renew
or extend any Licence or Necessary Authorisation or any breach of any
Licence or Necessary Authorisation where any such breach would or is
reasonably likely to have a Material Adverse Effect, (iv) (to the
extent known to any TCN Entity) the commencement of all proceedings
and investigations by or before any governmental body and all actions
and proceedings in any court or before any arbitrator where any such
proceedings, investigations or actions would, if adversely determined,
have a Material Adverse Effect (v) any application of which it becomes
aware for any other licence or franchise agreement by means of cable
television systems (including satellite master antennae television
systems and multi-point microwave distribution systems) with respect
to the territory covered by the Licences where any such application,
if successful, would or is reasonably likely to have a Material
Adverse Effect and (vi) any breach of any Telecommunications and Cable
Laws by any member of the TCN Group which would or is reasonably
likely to have a Material Adverse Effect;
(b) Consents and authorisations
obtain or cause to be obtained (i) every consent, authorisation,
licence (other than a Licence or a renewal or extension thereof) or
approval of, or registration with or declaration to, governmental or
public bodies or authorities or courts and (ii) every notarisation,
filing, recording, registration or enrolment in any court or public
office in the United Kingdom (in any such case) required by any TCN
Entity or Telewest to authorise the execution, delivery, validity,
enforceability or admissibility in evidence of this Agreement and the
Security Documents or the performance by any TCN Entity or Telewest of
their respective obligations under this Agreement and the Security
Documents to which they are a party;
(c) Licences
(i) obtain or cause to be obtained every Licence and ensure
that (A) where there are any Subscribers within the relevant
TCN Franchise subscribing for services covered by a Licence,
(1) such Licence is not revoked, cancelled, suspended,
withdrawn, terminated, expires or otherwise ceases to be in
full force and effect unless the same is, prior to or
contemporaneously with such event, renewed or replaced and (2)
none of the DTI, ITC, OFTEL nor any other relevant authority
issues any notice in respect of any TCN Franchise informing
any TCN Entity that it has or will (whether or not following
the failure to satisfy certain conditions) revoke, cancel,
suspend, withdraw, terminate or not permit the renewal of such
Licence (whether or not such notice gives any TCN Entity a
period within which to remedy the matter which gave rise to
such notice) and (B) such Licence is not modified and no TCN
Entity commits any breach of the terms or conditions thereof
(including, without limitation, any failure to meet the
milestones referred to therein) where any such modification,
breach or failure would or is reasonably likely, in the
opinion of the Agent, to have a Material Financial Adverse
Effect;
(ii) apply to extend or renew each Licence no later than 12
months before the date on which the same is scheduled to
expire and take all steps required by Telecommunications and
Cable Laws and all other steps reasonably necessary to
effect the extension or renewal of the same for a period
extending at least 24 months after the scheduled final
repayment date of the Tranche B Loan;
(d) Necessary Authorisations
obtain or cause to be obtained every Necessary Authorisation and
ensure that (i) none of the Necessary Authorisations is revoked,
cancelled, suspended, withdrawn, terminated, expires and is not
renewed or otherwise ceases to be in full force and effect and (ii) no
Necessary Authorisation is modified and no TCN Entity commits any
breach of the terms or conditions of any Necessary Authorisation
which, in the case of any of the actions or events referred to in
either (i) or (ii), would or is reasonably likely, in the opinion of
the Agent, to have a Material Adverse Effect;
(e) Business of the Borrower and the Charging Subsidiaries
in the case of the Charging Subsidiaries and Charging
Partnerships, engage in the business of acting as the holder of shares
and/or partnership interests in other TCN Entities and/or the business
of constructing, installing, operating and utilising cable television
and telecommunications systems in the TCN Franchises and in no other
activities save for any directly related business reasonably
considered to be financially beneficial to such business; in the case
of the Borrower engage in the business of acting as the holding
company of its Subsidiaries and Associated Partnerships (which shall
include the raising of Permitted Borrowings and the onlending of such
Borrowed Money to TCN Entities or to Telewest in accordance with the
provisions of this Agreement) and in no other activities;
(f) Financial statements
prepare financial statements of the Borrower and consolidated
financial statements of the Telewest Group and the TCN Group in
accordance with GAAP and cause such financial statements to be
reported on by their respective auditors and deliver to the Agent
sufficient copies of the same for distribution to all of the Banks as
soon as practicable but not later than 180 days after the end of the
financial year to which they relate;
(g) Quarterly Management Accounts
in respect of each Quarterly Period, prepare unaudited
consolidated Quarterly Management Accounts for the TCN Group and the
Telewest Group in each case containing information of the same type
and to the same level of detail as in the format agreed with the
Arrangers (including, without limitation, a profit and loss account,
balance sheet, cash flow statement and, in relation to each Region, a
summary of operating statistics in the agreed form and, in the case of
the last Quarterly Period of each financial year, a profit and loss
account, balance sheet and cash flow statement for that financial year
in the agreed form) or omitting any such information or detail or
containing such other information or to such other level of detail or
containing such other information or to such other level of detail as
may, from time to time, be approved by the Agent (acting on the
instructions of the Majority Banks) in writing and deliver a copy of
the same to the Agent for distribution to all of the Banks as soon as
practicable but not later than 30 days (in the case of the last
Quarterly Period of each financial year, 50 days) after the Quarterly
Period to which they relate;
(h)
Monthly Management Accounts
in respect of each calendar month ending during the Revolving
Period (and in respect of each calendar month after the end of the
Revolving Period for which the Borrower so chooses), prepare unaudited
consolidated Monthly Management Accounts for the TCN Group in each
case containing information of the same type and to the same level of
detail as in the format agreed with the Arrangers (including, without
limitation, a profit and loss account, balance sheet and cash flow
statement) or omitting any such information or detail or containing
such other information or to such other level of detail or containing
such other information or to such other level of detail as may, from
time to time, be approved by the Agent (acting on the instructions of
the Majority Banks) in writing and deliver a copy of the same to the
Agent for distribution to all of the Banks as soon as practicable but
not later than 30 days (in the case of the last calendar month of each
financial year 50 days) after the calendar month to which they relate;
(i) Change in basis of accounts
the Borrower shall ensure that all financial statements
delivered under Clause 10.1(f) are prepared in accordance with GAAP
and in accordance with the accounting principles and practices used in
the preparation of the financial statements referred to in clause
9.1(h)(i) and the 1996 Budget (the "Original Basis") consistently
applied in respect of each financial year unless to do so would be
inconsistent with then current GAAP (the "New Basis"). If the
preparation of financial statements on the Original Basis is contrary
to New Basis then the Borrower shall promptly notify the Agent in
writing of the relevant change and (at the option of the Borrower)
shall either (1) prepare and deliver to the Agent audited financial
statements on both the Original Basis and the New Basis (or shall
prepare and deliver financial statements on the New Basis only but
shall also prepare and deliver an audited reconciliation statement (a
"Reconciliation Statement") showing those adjustments necessary in
order to reconcile the financial statements produced on the New Basis
to the Original Basis) or (2) request the Agent to enter into good
faith negotiations for such amendment (if any) as are necessary to the
covenants contained in Clause 12.1 and any other provisions of this
Agreement affected by such change, in which event the Agent will enter
into such negotiations for a period of not more than 28 days. If
agreement is reached between the Borrower and the Agent (acting on the
instructions of the Majority Banks) within such period as to the
amendment of any such covenants or provisions, then the parties hereto
will enter into such documentation and take such other steps as are
required to put such amendments into effect following which the
Borrower shall then be obliged to produce financial statements on the
New Basis only. If no such agreement is reached then the Borrower
shall be obliged to prepare and deliver financial statements on both
the Original Basis and the New Basis (or shall prepare and deliver
audited financial statements on the New Basis accompanied by a
Reconciliation Statement).
Where the Borrower is under an obligation to deliver financial
statements under clause 10.1(f) on both the Original Basis and the New
Basis (or on the New Basis but accompanied by a Reconciliation
Statement), Monthly Management Accounts and Quarterly Management
Accounts shall also be delivered on both bases or on the New Basis but
accompanied by a Reconciliation Statement.
All financial statements, Quarterly Management Accounts, Monthly
Management Accounts and Reconciliation Statements delivered pursuant
to this clause 10.1(i) shall be delivered within the relevant time
period set out in clause 10.1.
The provisions of this clause 10.1(i) shall also apply, mutatis
mutandis, to the preparation and delivery of the Annual Budget under
clause 10.1(j)(a)(iii);
(j) Delivery of reports
deliver to the Agent, for distribution to the Banks (in the case
of a Compliance Certificate issued by the auditors of the TCN Group)
sufficient copies for all of the Banks or (in any other case):
(a) each of the following documents, in each case at the
time of issue thereof or (in the case of the Compliance
Certificates referred to in (ii) below) together with the
financial statements prepared in respect of each financial year
and Quarterly Management Accounts prepared in respect of each
Quarterly Period pursuant to clause 10.1(g) in respect of the
financial period to which such Compliance Certificate relates:
(i) every document issued by the Borrower to its shareholders
(in their capacity as a shareholder) or issued by the
Borrower or any of its Subsidiaries or Associated
Partnerships to its creditors generally;
(ii) a Compliance Certificate stating that the Borrower and each
other member of the TCN Group as at the last day of the
financial period to which such financial statements or
Quarterly Management Accounts relate were in compliance with
the relevant covenants and undertakings in clause 12 (or if
it was not in compliance indicating the extent of the
breach);
(iii)an Annual Budget for each financial year for the TCN Group
no later than 45 days after the beginning of such financial
year; and
(iv) no later than 90 days after the end of each financial year,
revised financial projections and revised projections for
operating statistics in relation to the TCN Group containing
information of the same type and to the same level of detail
as the base case financial projections and operating
statistics projections contained in the Agreed Base Case,
such projections to extend to at least the earlier of (a)
ten years from the end of such financial year and (b) 31
December 2007 and to contain details of the assumptions on
the basis of which such projections have been prepared and
an explanation of any discrepancies from the most recently
delivered financial projections and projections for
operating statistics delivered under this sub-paragraph
(j)(iv) (or, in the case of the first such financial
projections, from the base case financial projections or
operating statistics projections (as the case may be)
contained in the Agreed Base Case); and
(b) sufficient copies for all of the Banks of every
document or announcement issued by Telewest to its shareholders
generally or made available by Telewest to the public where any
such document or announcement relates to the financial position
or prospects of Telewest;
(k) Financial Year End
maintain a financial year end of 31 December
for each TCN Entity;
(l) Authorised Officers
ensure that any new or replacement Authorised Officer has
provided the Agent with evidence satisfactory to it of such new
officer(s)' authority and a specimen of his or their signature(s)
prior to signing any Compliance Certificates, Drawdown Notices,
Rollover Notices, Conversion Notices or any other notices, requests or
confirmations referred to in this Agreement or relating to the
facility granted pursuant to this Agreement;
(m) Auditors
ensure that KPMG Peat Marwick is appointed as auditors of each
TCN Entity and not change such appointment without appointing a major
firm of recognised international standing and repute;
(n) Provision of Further Information
notify the Agent of any change to the business of any TCN Entity
where due to such change such business would thereafter be carried on
in a different Region providing details of such change as soon as
practicable after making such change and provide the Agent with a copy
of (i) each Principal Agreement entered into after the date of this
Agreement and (ii) any material report, notice or other communication
relating to the Licences, the Necessary Authorisations and such
financial and other information concerning each TCN Entity and their
respective affairs as the Agent or any Bank (acting through the Agent)
may from time to time reasonably require;
(o) Insurance
maintain insurance cover in accordance with the terms and
conditions of the Security Documents and ensure that such insurance
cover is governed by English law;
(p) Inspection
permit representatives of the Agent or any of the Banks upon
three Banking Days' prior written notice to the Borrower and after
having made arrangements with the Borrower so to do to (a) visit and
inspect the properties of any TCN Entity during normal business hours,
(b) inspect and make extracts from and copies of its books and records
and (c) discuss with its principal officers and auditors, its
business, assets, liabilities, financial position, results of
operations and business prospects;
(q) Notification of Environmental Claim and Expenditure
promptly on becoming aware of it inform the Agent of any
Environmental Claim which has been made or threatened against any
member of the TCN Group or any occupier of any property owned or
leased by any member of the TCN Group or any requirement by any
Environmental Licence or applicable Environmental Laws for any member
of the TCN Group to make any investment or incur any expenditure in
excess of oe500,000 in aggregate in any calendar year or to take or
desist from taking any action which would or is reasonably likely, if
substantiated, to have a Material Financial Adverse Effect;
(r) Delivery of Environmental Licences and other information
promptly on receipt provide the Agent with copies of all
material Environmental Licences and the terms and conditions thereof
and any material amendments thereto;
(s) Compliance with laws and regulations
comply with the terms and conditions of all laws (other than
Telecommunications and Cable Laws, the Licences and the Necessary
Authorisations including any milestone requirements in respect
thereof), regulations, agreements, licences and concessions including,
without limitation, all Environmental Laws and all Environmental
Licences if the failure to comply therewith, would or is reasonably
likely, in the opinion of the Agent, to have a Material Financial
Adverse Effect;
(t) Relevant Substance
notify the Agent forthwith upon becoming aware of any Relevant
Substance at or brought on to any property owned, leased or occupied
by any member of the TCN Group which is likely to give rise to an
Environmental Claim which would or is reasonably likely to have a
Material Financial Adverse Effect and take or procure the taking of
all necessary action to deal with, remedy or remove from such property
or prevent the incursion of (as the case may be) that Relevant
Substance in order to prevent such an Environmental Claim and in a
manner that complies with all requirements of Environmental Law;
(u) Taxes
file or cause to be filed all tax returns required to be filed
in all jurisdictions in which it is situated or carries on business or
is otherwise subject to Taxation and will pay all Taxes shown to be
due and payable on such returns or any assessments made against it
within the period stipulated for such payment (other than those being
contested in good faith and where such payment may be lawfully
withheld);
(v) Cost capitalisation policy
maintain a cost capitalisation policy consistent with the cost
capitalisation policy used in the preparation of the financial
statements referred to in clause 9.1(h)(i) or such other cost
capitalisation policy as may be approved by the auditors and the Agent
(acting on the instructions of the Majority Banks) from time to time;
(w) Use of Proceeds
ensure that the Borrower uses the Loan
exclusively for the purposes specified in clause
1.1;
(x) New TCN Entities
it will and will procure that each Subsidiary or Associated
Partnership that is or becomes a member of the TCN Group (other than
an Immaterial Group Entity unless such Immaterial Group Entity no
longer complies with the definition of Immaterial Group Entity) and
which is not already a party to this Agreement promptly upon such
Subsidiary or Associated Partnership becoming a member of the TCN
Group, executes and delivers a Supplemental Deed and provides the
Agent with such evidence as it may reasonably request as to the power
and authority of such party to enter into such Supplemental Deed and
that such Supplemental Deed constitutes (subject to any qualifications
contained in any legal opinions delivered in connection therewith and
reasonably acceptable to the Majority Banks and for this purpose any
statement contained in the qualification to any such legal opinion
that no opinion is given or expressed in relation to any particular
matter shall be deemed to be a qualification of such opinion as
regards such matter) valid and legally binding obligations of such
party enforceable in accordance with its terms. The parties hereto
agree that upon the execution and delivery of such Supplemental Deed
by all parties thereto such Subsidiary or Associated Partnership shall
become a party to this Agreement as a TCN Entity and a party to each
relevant Security Document as a chargor;
(y) Maintain Operating Capacity
ensure that the TCN Group will maintain:
(i) managerial, subscriber and technical services from time to
time sufficient, in the reasonable opinion of the Borrower
to meet the projected demand from Subscribers for cable
television and telephony services at that time; and
(ii) switch capacity from time to time sufficient, based on the
projections most recently delivered under Clause
10.1(j)(a)(iv) (or, if none, the projections contained in
the Agreed Base Case), to meet the projected demand from
Subscribers for cable telephony services at that time;
(z) Reimbursement Agreement
comply with their respective obligations under the Reimbursement
Agreement and not assign or transfer all or any part of their
respective rights and/or obligations under the Reimbursement Agreement
or amend, vary or waive all or any of the provisions of the
Reimbursement Agreement; and
(aa) Agreed Hedging Programme
as from the first Drawdown Date, maintain interest rate hedging
with a Bank in accordance with the following principles:
(i) Fixed Rate (not including the Margin): In respect of hedging
outstandings at any time, no more than 2% over the swap
yield curve for the relevant time at the date of entry into
the hedging instrument first entered into in respect of
outstandings at such future date;
(ii) Period: Minimum of 3 years hence at any time;
(iii)Notional Principal Amount: At any time no less than 50% of
the forecasted amount of the Loan from time to time
outstanding over the following 3 year period as set out in
the Agreed Base Case.
11. Negative Covenants Negative Covenants
11.1 Covenants
Each TCN Entity jointly and severally undertakes with each of the Banks, each of
the Arrangers, the Security Trustee and the Agent from the date of this
Agreement and so long as any monies are owing under this Agreement or any of the
Commitments remain outstanding that, without the prior written consent of the
Agent acting on the instructions of the Majority Banks:
(a) Negative Pledge
they will not permit any Encumbrance (other than Permitted
Encumbrances) by any member of the TCN Group to subsist, arise or be
created or extended over all or any part of their respective present
or future undertakings, assets, rights or revenues to secure or prefer
any present or future Indebtedness of any member of the TCN Group or
any other person;
(b) No Merger
they will procure that no member of the TCN
Group merges or consolidates with any other company
or person;
(c) Disposals
they will procure that no TCN Entity sells, transfers, leases,
lends or otherwise disposes of or ceases to exercise control over the
whole or any part of their present or future undertakings, assets,
rights or revenues whether by one or a series of transactions related
or not other than Permitted Disposals, provided that in the case of
any Permitted Intra-TCN Group Transaction which involves any asset of
any nature being transferred by any means whatsoever (directly or
indirectly) by the Borrower, an Original Charging Subsidiary or an
Original Charging Partnership to another TCN Entity (not being the
Borrower, an Original Charging Subsidiary or an Original Charging
Partnership), the relevant transfer must be made expressly subject to
the security interests granted under the Security Documents;
(d) Borrowed Money
they will procure that no member of the TCN Group creates,
assumes, incurs or otherwise permits to be outstanding any Borrowed
Money other than Permitted Borrowings;
(e) Guarantees
they will procure that no member of the TCN Group incurs any
obligations or assumes any liability under any guarantee other than
Permitted Guarantees;
(f) Issue of Shares
neither the Borrower nor any other member of the TCN Group
issues any shares of any class provided that the Borrower may issue
shares to Telewest and any member of the Group may issue shares to any
TCN Entity provided that such shares are charged in favour of the
Security Trustee pursuant to the terms of a Security Document and
there is delivered at the same time to the Security Trustee the
relevant share certificates and blank stock transfer forms in respect
thereof;
(g) Investments
they will procure that no member of the TCN Group (i) makes any
loan or advance to, or enters into any transaction having the effect
of lending money with, any person or otherwise acquires for a
consideration any document evidencing Indebtedness, capital stock or
other securities of any person or (ii) acquires all or any substantial
part of the assets, property or business of any other person or any
assets that constitute a division or operating unit of the business of
any other person or creates or acquires any Subsidiary or Associated
Partnership other than in the case of any of (i) and (ii) above,
Permitted Investments;
(h) Capital Expenditure
they will procure that no member of the TCN Group incurs any
capital expenditure other than (a) in relation to the business of
constructing, installing, operating and utilising cable television and
telecommunications systems in the area permitted by the Licences or
any directly related business reasonably considered to be financially
beneficial thereto or (b) in Permitted Investments provided that no
capital expenditure may be incurred or Permitted Investment made in
relation to Telewest (Worcester) Limited (No. 0247098) until such time
as licences are issued to such Company pursuant to both the
Broadcasting ▇▇▇ ▇▇▇▇ and the Telecommunications ▇▇▇ ▇▇▇▇ in relation
to a cable television and telecommunications system;
(i) Swaps and Hedging
they will procure that no member of the TCN Group enters into
any interest rate or currency swaps or other hedging arrangements
other than in the case of a TCN Entity (i) directly relating to the
risk management of any Borrowed Money permitted to subsist by the
terms of this Agreement or (ii) forward foreign exchange contracts
entered into in the normal course of business in relation to future
liabilities of such TCN Entity incurred in relation to the
construction, maintenance or operation of the Cable Systems up to an
aggregate notional principal amount at any time outstanding of (in
respect of all such contracts entered into by TCN Entities)
oe80,000,000, for a period not in excess of 15 months and having an
average life not in excess of nine months;
(j) Change of Business
they will procure that the TCN Group (taken as a whole) does not
change the nature of the business carried on by it in any material
respect from that carried on at the date of this Agreement and that no
TCN Entity ceases to carry on a business where any such cessation
would or is reasonably likely to have a Material Adverse Effect;
(k) Memoranda and Articles of Association; Partnership
Agreements
the Borrower will not, and will procure that no Charging
Subsidiary amends its Memorandum or Articles of Association in any way
which would restrict the ability of the Security Trustee to exercise
its rights under the Security Documents in respect of the shares in
such company and no Charging Partnership will amend its partnership
agreement in any way which would restrict or impair the ability of the
Security Trustee to exercise its rights under the Pledge and Security
Agreements in respect of the partnership interests in such partnership
or otherwise as may be limited or prohibited under the Pledge and
Security Arrangements;
(l) Restricted Payments
they will procure that no member of the TCN Group makes any
Restricted Payment other than Permitted Payments;
(m) Services to Restricted Persons, TCI and US WEST
they will procure that no TCN Entity enters into any contractual
or other arrangements with a Restricted Person or any of the Ultimate
Shareholders or any of their Subsidiaries or Associated Partnerships
other than on bona fide arms length commercial terms in the ordinary
course of trading or contractual arrangements between Telewest and the
Borrower regulating any Subordinated Debt which is the subject of a
Deed of Subordination, provided that, for the avoidance of doubt, no
TCN Entity shall be entitled to pay any amount to any Restricted
Person pursuant to any contractual or other arrangement referred to in
this clause 11.1(m) unless such payment is a Permitted Payment;
(n) Liabilities of Restricted Persons
they will procure that no Restricted Person has outstanding any
liabilities to any TCN Entity which, when aggregated with the
liabilities of that Restricted Person to each other TCN Entity and of
each other Restricted Person to each TCN Entity, exceeds oe100,000.
In this clause 11.1(n) "liabilities" of a Restricted Person to a
TCN Entity shall mean liabilities incurred after the date hereof and
shall include, without limitation, (i) any liabilities of that TCN
Entity to a third party entered into on behalf of that Restricted
Person and (ii) any payments made by that TCN Entity on behalf of that
Restricted Person, in either case where such liabilities or payments
have not been discharged or reimbursed but shall exclude any
liabilities of a Restricted Person to a TCN Entity which are a
Permitted Investment by that TCN Entity in that Restricted Person; and
(o) No Carrying on Business in United States
None of the TCN Entities (i) shall employ any employees in the
State of Colorado or elsewhere in the United States and (ii) shall
carry on any business or maintain its principal places of business,
books and records and the property subject to the Security Documents
in the United States. Control and management of each of the TCN
Entities shall take place outside the United States of America.
12. Financial Covenants Financial Covenants
12.1 Covenants
Each TCN Entity jointly and severally undertakes with each of the Banks, the
Arrangers, the Security Trustee and the Agent:
(a) Minimum Consolidated TCN Group Net Operating Cash Flow
to ensure that from (and including) the date hereof to (but
excluding) the second consecutive Quarter Day (as shown in the
relevant Compliance Certificates) upon which Total TCN Group Debt is
equal to or less than five times Consolidated Annualised TCN Group Net
Operating Cash Flow (i) on each Quarter Day as shown in the relevant
Compliance Certificate and (ii) on the last day of each financial year
as shown in the relevant Compliance Certificate, the amount of
Consolidated TCN Group Net Operating Cash Flow for the preceding Six
Month Period shall not be less than:
Date Covenant (pound)000s
---- --------------------
31 March 1998 40,000
30 June 1998 46,000
30 September 1998 54,000
31 December 1998 64,000
31 March 1999 71,000
30 June 1999 74,000
30 September 1999 84,000
31 December 1999 98,000
31 March 2000 110,000
30 June 2000 118,000
30 September 2000 129,000
31 December 2000 147,000
31 March 2001 180,800
30 June 2001 204,800
30 September 2001 213,500
31 December 2001 230,900
31 March 2002 260,700
30 June 2002 286,400
30 September 2002 295,200
31 December 2002 304,000
31 March 2003 325,400
30 June 2003 348,800
30 September 2003 359,600
31 December 2003 370,400
31 March 2004 391,100
30 June 2004 413,800
30 September 2004 426,600
31 December 2004 439,400
31 March 2005 451,500
30 June 2005 465,300
30 September 2005 479,700
31 December 2005 494,100
(b) Tranche B Loan/Consolidated Annualised TCN Group Net
Operating Cash Flow
to ensure that (i) on each Quarter Day falling within the period
set out in column (1) below and (ii) on the last day of each financial
year falling within the period set out in column (1) below the ratio
of the Tranche B Loan to Consolidated Annualised TCN Group Net
Operating Cash Flow calculated by reference to the Six Month Period
ending on such day (as shown in the relevant Compliance Certificate)
shall not exceed the number set out against such period in column (2)
below
(1) (2)
Period Ratio
from 1 July 1996 to (and 6.5
including) 31 December, 1998
from 1 January 1999 to (and 6.0
including) 30 June, 1999
from 1 July 1999 to (and 5.0
including) 31 December, 1999
from 1 January 2000 to (and 4.0
including) 31 December 2000
thereafter 3.5
(c) Facility Debt Interest Cover
to ensure that (i) on each Quarter Day falling within the period
set out in column (1) below and (ii) on the last day of each financial
year falling within the period set out in column (1) below the ratio
of Consolidated TCN Group Net Operating Cash Flow in respect of the
Six Month Period ending on such day to Facility Debt Interest Charges
for such Six Month Period shall not be less than the number set out
against such period in column (2) below
(1) (2)
Period Ratio
from 1 January 1997 to (and 1.20:1
including) 31 December 1997
from 1 January 1998 to (and 1.50:1
including) 31 December 1998
from 1 January 1999 to (and 2.00:1
including) 31 December 1999
from 1 January 2000 to (and 2.50:1
including) 30 June 2000
from 1 July 2000 to (and 3.00:1
including) 31 December 2000
from 1 January 2001 onwards 4.00:1
12.(jjjjj) TCN Group Debt Interest Cover
to ensure that (i) on each Quarter Day falling within the period
set out in column (1) below and (ii) on the last day of each financial
year falling within the period set out in column (1) below, the ratio
of Consolidated TCN Group Net Operating Cash Flow in respect of the
Six Month Period ending on such day to Total TCN Group Cash Paying
Debt Interest Charges during such Six Month Period shall not be less
than the number set out against such period in column (2) below
(1) (2)
Date Ratio
1 January 1998 - 30 June 1998 1.00:1
1 July 1998 - 31 December 1998 1.20:1
1 January 1999 - 30 June 1999 1.25:1
1 July 1999 - 31 December 1999 1.35:1
1 January 2000 - 31 March 2000 1.50:1
1 April 2000 - 30 September 2001 1.75:1
1 October 2001 - 31 March 2002 2.00:1
1 April 2002 - 30 June 2002 2.25:1
1 July 2002 - 31 December 2002 2.50:1
1 January 2003 - 31 March 2003 2.75:1
1 April 2003 onwards 3.00:1
(d) Telewest Group Debt Interest Cover
to ensure that (i) on each Quarter Day falling within the period
set out in column (1) below and (ii) on the last day of each financial
year falling within the period set out in column (1) below the ratio
of Consolidated Telewest Group Net Operating Cash Flow in respect of
the Six Month Period ending on such day to Total Telewest Group Cash
Paying Debt Interest Charges during such Six Month Period shall not be
less than the number set out against such period in column (2) below
(1) (2)
Period Ratio
from 1 January 1998 to (and 1.00:1
including) 31 December 1998
from 1 January 1999 to (and 1.25:1
including) 31 December 1999
from 1 January 2000 onwards 1.50:1
(e)
Pro-Forma Total Telewest Group Debt Service Cover
to ensure that (i) on each Quarter Day falling within the period
set out in column (1) below and (ii) on the last day of each financial
year falling within the period set out in column (1) below, the ratio
of Consolidated Annualised Telewest Group Net Operating Cash Flow
calculated by reference to the Six Month Period ending on such day to
Proforma Total Telewest Group Debt Service (as shown in the relevant
Compliance Certificate) shall not be less than the number set out
against such period in column (2) below:
(1) (2)
Date Ratio
1 January 1999 - 31 December 2001 1.00 :1
1 January 2002 - 31 December 2002 1.20 :1
1 January 2003 - 31 December 2003 1.40 :1
1 January 2004 onwards 1.50 : 1
(f) Pro-forma Total TCN Group Debt Service Cover
to ensure that (i) on each Quarter Day falling within the period
set out in column (1) below and (ii) on the last day of each financial
year falling within the period set out in column (1) below, the ratio
of Consolidated Annualised TCN Group Net Operating Cash Flow
calculated by reference to the Six Month Period ending on such day to
Proforma Total TCN Group Debt Service (as shown in the relevant
Compliance Certificate) shall not be less than the number set out
against such period in column (2) below:
(1) (2)
Period Ratio
1 April 2000 - 31 December 2001 1.00 : 1
1 January 2002 - 31 December 2002 1.20 : 1
1 January 2003 - 31 December 2003 1.40 : 1
1 January 2004 onwards 1.50 : 1
12.2 Auditors certificate
If at any time the Majority Banks do not consider (acting reasonably) that any
figure set out in any Compliance Certificate issued by any Authorised Officer is
correct, they shall be entitled within 30 days of the date of the delivery of
such Compliance Certificate to the Agent pursuant to clause 10.1 to call for a
certificate from the Borrower's auditors as to such figure. For such purposes
the Borrower's auditors shall act as independent experts and not as arbiters and
every such certificate shall be addressed to the Agent (on behalf of the Banks)
and be at the expense of the Borrower. The Majority Banks may only call for one
such certificate in any calendar year. If the Majority Banks call for such a
certificate all calculations under this Agreement by reference to the relevant
figure shall (i) until the Borrower's auditors deliver the relevant certificate
under this clause 12.2 be made by reference to the figure set out in the
relevant Compliance Certificate delivered to the Agent under this Agreement and
(ii) following the delivery by the Borrower's auditors of a certificate under
this clause 12.2 be made by reference to such certificate and the Borrower
undertakes forthwith to take all action, including, without limitation, the
prepayment of all or part of the Loan so as to procure that all action taken on
the basis of the relevant Compliance Certificate which on the basis of such
auditors certificate would not have been permitted is reversed.
13. Events of Default Events of
Default
13.1 Events of Default
Each of the following events and circumstances is an Event of Default (whether
or not caused by any reason outside the control of any TCN Entity):
(a) Non-payment
(i) any principal amount due and payable under this Agreement is
not paid on the due date or (ii) an amount of interest due and payable
under this Agreement is not paid within 3 Banking Days of the due date
or (iii) any other sum due and payable under this Agreement is not
paid within 5 Banking Days of the due date, and, in each such case, in
the manner stipulated in this Agreement; or
(b) Breach of certain obligations
(i) any TCN Entity or Telewest commits any breach of the
undertakings contained in clauses 10.1(a), (c)(i)(A) and (B), (e)
and (k), 11.1(a), (b), (c), (f), (g), (h), (i), (j), (k) and (l),
and 12.1; or
(ii) any TCN Entity commits any breach of the undertakings
contained in clauses 11.1(d) and (e) and, in respect of any such
breach where the principal amount of the relevant Borrowed Money
or guarantee does not exceed oe1,000,000, such breach is not
remedied within five Banking Days of such breach; or
(c) Breach of other obligations
any TCN Entity or Telewest commits any breach of or omits to
observe any of the obligations or undertakings expressed to be assumed
by them under this Agreement (other than failure to pay any sum when
due or any breach of the undertakings referred to in (b)) above or any
of the Security Documents and, in respect of any such breach or
omission which in the opinion of the Majority Banks is capable of
remedy, such remedial action as the Majority Banks shall require is
not carried out within 28 days of the Agent notifying the Borrower of
such default and of such remedial action; or
(d) Misrepresentation
any representation or warranty made or deemed to be made or
repeated by or in respect of any TCN Entity or Telewest in or pursuant
to this Agreement or the Security Documents or in any notice,
certificate or statement referred to in or delivered under this
Agreement or the Security Documents is or proves to have been
incorrect or misleading in any material respect on the date on which
it was made or deemed to be made or repeated; or
(e) Challenge to security
any Security Document is not or ceases to be effective (unless
by reason of the Banks' or the Security Trustee's failure to file any
required UCC Statements in the United States) or any TCN Entity or
Telewest shall in any way challenge, or any proceedings shall in any
way be brought to challenge (and in the case of a proceeding brought
by someone other than any TCN Entity or Telewest shall continue
unstayed for 30 days) the prior status of the charges created by the
Security Documents or the validity or enforceability of the Security
Documents Provided that the creation or existence of the Permitted
Encumbrances shall not be deemed to be a challenge to the prior status
of such charges for the purposes of this clause 13.1(e); or
(f) Cross-default
(i) Borrowed Money of any member of the TCN Group or Telewest
(which, in aggregate and including for these purposes any Borrowed
Money referred to in clause 13.1(f)(ii) below, exceeds oe7,500,000) is
not paid when due (or within any applicable grace period expressly
contained in the agreement relating to such Borrowed Money in its
original terms) or becomes due or (ii) any creditor of any member of
the TCN Group, or Telewest becomes entitled to declare any such
Borrowed Money in excess of oe7,500,000 (in aggregate) due and payable
prior to the date when it would otherwise have become due; or
(g) Hedging Default
an event entitling the relevant counterparty to terminate any
arrangements in relation to interest rate hedging permitted pursuant
to clause 11.1(i) or any other interest rate or currency swap or other
hedging arrangements entered into by any member of the TCN Group
occurs and the aggregate notional principal amounts of the swaps or
other hedging arrangements entitled to be so terminated exceeds
oe25,000,000; or
(h) Appointment of receivers and managers
(i) any administrative or other receiver is appointed of any
member of the TCN Group (other than an Immaterial Group Entity), or
Telewest or any part of their respective assets and/or undertakings or
(ii) any other legal proceedings are taken which are not irrevocably
discharged or withdrawn within 28 days of the commencement thereof to
enforce any Encumbrance over all or any part of the assets of any
member of the TCN Group or Telewest; or
(i) Insolvency
any member of the TCN Group (other than an Immaterial Group
Entity) or Telewest is deemed unable to pay its debts within the
meaning of sections 123(1)(e) or (2) of the Insolvency ▇▇▇ ▇▇▇▇ or any
member of the TCN Group, (other than an Immaterial Group Entity) or
Telewest otherwise becomes insolvent or stops or suspends making
payments (whether of principal or interest) with respect to all or any
class of its debts or is unable or announces an intention so to do or
admits inability to pay its debts as they fall due; or
(j) Legal process
any judgment or order made against any member of the TCN Group
(other than an Immaterial Group Entity) or Telewest is not stayed or
complied with within 28 days or a creditor attaches or takes
possession of, or a distress, execution, sequestration, diligence
(other than on the dependence of an action) or other process is levied
or enforced upon or sued out against, any material part of the
undertaking, assets, rights or revenues of any member of the TCN Group
(other than an Immaterial Group Entity) or Telewest and is not
discharged within 28 days; or
(k) Compositions
any steps are taken or negotiations commenced, by any member of
the TCN Group (other than an Immaterial Group Entity) or Telewest or
by their respective creditors with a view to proposing any kind of
composition, compromise or arrangement involving such company and any
group or class of its creditors generally; or
(l) Winding-up
(i) any member of the TCN Group (other than an Immaterial Group
Entity) or Telewest takes any action or any legal proceedings are
started (not being action or proceedings which can be demonstrated to
the satisfaction of the Agent by providing an opinion of a leading
firm of London solicitors to that effect, is frivolous, vexatious or
an abuse of the process of the court or relates to a claim to which
such person has a good defence and which is being vigorously contested
by such body) for any member of the TCN Group (other than an
Immaterial Group Entity) or Telewest to be adjudicated or found
bankrupt or insolvent (other than for the purpose of an amalgamation
or reconstruction previously approved in writing by the Agent acting
on the instructions of the Majority Banks) or (ii) an order is made or
resolution passed for the winding-up of any other member of the TCN
Group (other than an Immaterial Group Entity) or Telewest or a notice
is issued convening a meeting for the purpose of passing any such
resolution; or
(m) Administration
any petition is presented or other step is taken for the purpose
of the appointment of an administrator of any member of the TCN Group
(other than an Immaterial Group Entity) or Telewest or an
administration order is made in relation to any member of the TCN
Group (other than an Immaterial Group Entity) or Telewest; or
(n) Analogous proceedings
there occurs, in relation to any member of the TCN Group (other
than an Immaterial Group Entity) or Telewest in any country or
territory in which any of them carries on business or to the
jurisdiction of which courts any part of their respective assets is
subject, any event which, in the reasonable opinion of the Agent,
appears in that country or territory to correspond with, or have an
effect equivalent or similar to, any of those mentioned in clauses
13.1(h) to (m) inclusive or any member of the TCN Group or Telewest
(subject always to equivalent grace periods and de minimis amounts as
are referred to in such clauses being exceeded) otherwise becomes
subject, in any such country or territory, to the operation of any law
relating to insolvency, bankruptcy or liquidation; or
(o) Change of control of Telewest
at any time prior to the second consecutive Quarter Day in
respect of which the relevant Compliance Certificates demonstrate that
each of the ratios of (A) Total TCN Group Debt to Consolidated
Annualised TCN Group Net Operating Cash Flow and (B) Total Telewest
Group Debt to Consolidated Annualised Telewest Group Net Operating
Cash Flow is less than or equal to 3.0 times, either:
(i) TCI and US WEST (directly or indirectly) cease to hold
at least (1) if TCI or US WEST have at any time disposed of any
of their voting or economic interest in Telewest Group to any
third party (not being TCI, US WEST or any entity controlled,
directly or indirectly, by either of them or by both of them
together) 40 per cent. or (2) otherwise, 30 per cent. of the
voting and economic interest in Telewest; or
(ii) any person or persons acting together in concert
(other than, for these purposes, TCI, US WEST, SBC and/or Cox
and/or any entities controlled, directly or indirectly, by any of
them or by any two or more of them together or which controls any
one or more of them) acquire either (1) a greater voting or
economic interest in Telewest than TCI and US WEST (together, and
directly or indirectly) or (2) 40 per cent. of the voting and
economic interest in Telewest.
For these purposes persons "acting together in concert" means
persons who pursuant to an agreement or understanding (whether formal
or informal) actively co-operate together with a view to acquiring all
or any part of the voting and economic interest in Telewest and those
persons who are presumed to be acting in concert for the purposes of
the City Code on Take-overs and Mergers shall also be deemed to be
acting in concert for these purposes; or
(p) Change of control of the Borrower or any Charging Subsidiary or
Charging Partnerships
(i) any Charging Subsidiary (other than an Immaterial Group
Entity and United Artists Communications (London South)
Limited) ceases to be a wholly owned and controlled
Subsidiary of the Borrower or any Charging Partnership
ceases to have as its sole partners members of the TCN
Group; or
(ii) the Borrower ceases to be a wholly owned Subsidiary of
Telewest; or
(q) Principal Agreements
(i) any Principal Agreement is terminated, suspended, revoked
or cancelled or otherwise ceases to be in full force and
effect unless services of a similar nature to those provided
pursuant to such Principal Agreement are at all times provided
to the TCN Group on similar commercial terms or on terms no
less beneficial to the relevant member of the TCN Group save
where any such services are provided on more onerous terms to
the relevant member of the TCN Group due to the mandatory
requirements of OFTEL, the Office of Fair Trading, the
Department of Trade and Industry, the European Commission or
any other regulatory body and any such termination,
suspension, revocation, cancellation or cessation would have a
Material Financial Adverse Effect; or
(ii) any alteration or variation is made to any term of any
Principal Agreement which would have a Material Financial
Adverse Effect; or
(iii)any party breaches any term of or repudiates any of its
obligations under any of the Principal Agreements where such
breach or repudiation would have a Material Financial
Adverse Effect; or
(r) Unlawfulness
it becomes unlawful at any time for the Borrower, any TCN Entity
or Telewest to perform any of their respective material (in the
opinion of the Majority Banks) obligations under this Agreement or the
Security Documents or any of the material (in the opinion of the
Majority Banks) obligations of any TCN Entity or Telewest under this
Agreement and the Security Documents becomes unenforceable in any way
or there ceases to be a first priority charge over the relevant
property or assets of the Borrower, any TCN Entity or Telewest as
intended and created by the Security Documents save for Permitted
Encumbrances; or
(s)
Environmental matters
as a result of any Environmental Law: (a) the Agent, any of the
Arrangers, the Security Trustee or any of the Banks becomes, in the
opinion of the Agent, subject to a material obligation (actual or
contingent, in the case of any contingent obligation, being one which,
at the relevant time, would be likely to arise) in relation to any
Relevant Substance on or from any property, owned, occupied or leased
by any member of the TCN Group or Telewest; or (b) the rights and
claims of the Agent, any of the Arrangers, the Security Trustee, or
any of the Banks under this Agreement or any of the Security Documents
become subordinated to the claims and rights of any competent agency
of the United Kingdom or the European Community; or
(t) Telecommunications and Cable Laws
any TCN Entity fails to comply with any term or condition of any
Telecommunications and Cable Law where such non-compliance would or is
reasonably likely to have a Material Adverse Effect, in the opinion of
the Agent; or
(u) Repudiation
any TCN Entity or Telewest repudiates this Agreement or any
Security Document to which it is a party or does or causes or permits
to be done any act or thing evidencing an intention to repudiate this
Agreement or any such Security Document; or
(v) Seizure
all or a material part of the undertakings, assets, rights or
revenues of or shares or other ownership interests in the TCN Group
(taken as a whole) or Telewest are seized, nationalised, expropriated
or compulsorily acquired by or under the authority of any government;
or
(w) Material events
any other event occurs or circumstances arise which in the
opinion of the Agent acting on the instructions of the Majority Banks
is likely materially adversely to affect the ability of the TCN Group
(taken as a whole) to fulfil all or any of its obligations under this
Agreement or any Security Document.
13.2 Acceleration
(A) If at any time or during any period, (i) Telewest or any member of the
TCN Group (other than an Immaterial Group Entity) shall reside or have a
domicile, a place of business or a property in the United States (to the
extent that such residence, domicile, place of business or property is
sufficient for a person to become a "debtor" under section 109(a) of the
U.S. Federal Bankruptcy Code) and (ii) an Event of Default specified in
clauses 13.1(h) to (n) shall have occurred and be continuing in respect
of Telewest or any such member of the TCN Group, as applicable, in
furtherance of which Event of Default an order for relief with respect
to Telewest or such member of the TCN Group, as applicable, shall
actually be (or shall be deemed to have been) entered under the U.S.
Federal Bankruptcy Code, then the obligation of each Bank to make its
Commitment available shall be automatically terminated and the Loan and
all interest and commitment commission accrued and all other sums
payable under this Agreement immediately shall become due and payable.
(B) At any time after the happening of any Event of Default (other than in
the circumstances set out in sub-clause (A) above), so long as the same
is continuing, the Agent may, and if so requested by the Majority Banks
shall, without prejudice to any other rights of the Banks, by notice to
the Borrower declare that:
(a) the obligation of each Bank to make its Commitment available shall be
terminated, whereupon the Commitments shall be reduced to zero
forthwith; and/or
(b) the Loan and all interest and commitment commission accrued and all
other sums payable under this Agreement have become due and payable,
whereupon the same shall, immediately, or on demand or otherwise in
accordance with the terms of such notice, become due and payable;
and/or
(c) it and/or the Security Trustee shall exercise any of the rights
granted to the Agent, the Security Trustee or the Banks under the
Security Documents.
13.3 On demand basis
If, pursuant to clause 13.2(B)(b), the Agent declares the Loan to be due and
payable on demand then, at any time thereafter, the Agent may (and, if so
instructed by the Majority Banks, shall) by written notice to the Borrower: (a)
call for repayment of the Loan on such date as may be specified in such notice
whereupon the Loan shall become due and payable on the date so specified
together with all interest and commitment commission accrued and all other sums
payable under this Agreement or (b) withdraw such declaration with effect from
the date specified in such notice.
Indemnities Indemnities
14.1 Miscellaneous Indemnities
The Borrower shall on demand indemnify each Bank, each Arranger, the Security
Trustee and the Agent, without prejudice to any of their other rights under this
Agreement, against any loss (including in the case of (a) or (b) below loss of
Margin) or expense which such Bank, such Arranger, the Security Trustee or the
Agent shall certify as sustained or incurred by it as a consequence of:
(a) any default in payment by the Borrower of any sum under
this Agreement when due;
(b) the occurrence of any other Event of Default;
(c) any repayment or prepayment of the Loan or part thereof being made
under clause 6 or 15.1 otherwise than on the last day of an Interest
Period relating to the part of the Loan repaid or prepaid; or
(d) any Advance not being made for any reason (excluding any default by
the Agent or any Bank) after a Drawdown Notice has been given,
including, but not limited to, any loss or expense sustained or incurred by such
Bank in maintaining or funding its Contribution or any part thereof or in
liquidating or reemploying deposits from third parties acquired or contracted
for to fund its Contribution or any part thereof or any other amount owing to
such Bank.
14.2 Currency Indemnity
If any sum due from the Borrower under this Agreement or any order or judgment
given or made in relation hereto has to be converted from the currency (the
"first currency") in which the same is payable under this Agreement or under
such order or judgment into another currency (the "second currency") for the
purpose of (a) making or filing a claim or proof against the Borrower, (b)
obtaining an order or judgment in any court or other tribunal or (c) enforcing
any order or judgment given or made in relation to this Agreement, the Borrower
agrees to indemnify and hold harmless the Agent, each Arranger, the Security
Trustee, and each Bank from and against any loss suffered as a result of any
difference between (i) the rate of exchange used for such purpose to convert the
sum in question from the first currency into the second currency and (ii) the
rate or rates of exchange at which the Agent, such Arranger, the Security
Trustee or such Bank may in the ordinary course of business purchase the first
currency with the second currency upon receipt of a sum paid to it in
satisfaction, in whole or in part, of any such order, judgment, claim or proof.
Any amount due from the Borrower under this clause 14.2 shall be due as a
separate debt and shall not be affected by judgment being obtained for any other
sums due under or in respect of this Agreement and the term "rate of exchange"
includes any premium and costs of exchange payable in connection with the
purchase of the first currency with the second currency.
14.3 Environmental Indemnity
The Borrower agrees to indemnify on demand each Bank, each Arranger, the
Security Trustee and the Agent, and their respective officers, employees, agents
and delegates (together the "Indemnified Parties") in respect of which each
Bank, each Arranger, the Security Trustee and the Agent holds this indemnity on
trust, without prejudice to any of their other rights under this Agreement,
against any loss, liability, action, claim, demand, cost, expense, fine or other
outgoing whatsoever whether in contract, tort, delict or otherwise and whether
arising at common law, in equity or by statute which the relevant Indemnified
Party shall certify as sustained or incurred by it at any time as a consequence
of, or relating to, or arising directly or indirectly out of, an Environmental
Claims made or asserted against such Indemnified Party which would not have
arisen if this Agreement had not been executed and which was not caused by the
negligence or wilful default of the relevant Indemnified Party.
15. Unlawfulness and Increased Costs; Mitigation
Unlawfulness and Increased Costs; Mitigation
15.1 Unlawfulness
If it is or becomes contrary to any law or regulation for any Bank to contribute
to Advances or to maintain its Commitment or fund or maintain its Contribution,
such Bank shall promptly, through the Agent, notify the Borrower whereupon (a)
such Bank's Commitment shall be reduced to zero and (b) the Borrower shall be
obliged to prepay the Contribution of such Bank on the earlier of (i) the date
falling 30 days after the date of receipt by the Borrower of the relevant notice
pursuant to this clause or (ii) the latest date permitted by the relevant law or
regulation. Without prejudice to the reduction of such Bank's Commitment to zero
or the obligations of the Borrower to make such repayment, the Borrower, the
Agent and such Bank shall negotiate for a period not exceeding 14 days with a
view to such Bank making available its Commitment and/or funding or maintaining
its Contribution in whole or in part in a manner which is not unlawful.
15.2 Increased Costs
If the result of any change in, or in the interpretation or application of, or
the introduction of, any law or regulation, request or requirement (whether or
not having the force of law, but, if not having the force of law, with which the
relevant Bank or, as the case may be, its holding company habitually complies)
including, without limitation, those relating to Taxation, capital adequacy,
liquidity, reserve assets, cash ratio deposits and special deposits is to:
(a) subject any Bank to Taxes or change the basis of Taxation
of any Bank with respect to any payment under this Agreement
(other than Taxes or Taxation on the overall net income,
profits or gains of such Bank imposed in the jurisdiction in
which its principal or lending office under this Agreement is
located and other than Taxes currently payable by such Bank on
amounts received by it under this Agreement but only to the
extent so payable at the date hereof); and/or
(b) increase the cost to, or impose an additional cost on, any Bank or its
holding company in making or keeping available all or part of such
Bank's Commitment or maintaining or funding such Bank's Contribution;
and/or
(c) reduce the amount payable or the effective return to any Bank under
this Agreement; and/or
(d) reduce any Bank's or its holding company's rate of return on its
overall capital by reason of a change in the manner in which it is
required to allocate capital resources to such Bank's obligations
under this Agreement; and/or
(e) require any Bank or its holding company to make any additional payment
or forego (to a greater extent than at the date hereof) a return
calculated by reference to or on any amount received or receivable by
such Bank under this Agreement; and/or
(f) require any Bank or its holding company to incur or sustain a loss
(including a loss of future potential profits) additional to that
incurred or sustained at the date hereof by reason of being obliged to
deduct a greater part of such Bank's Commitment or Contribution from
its capital for regulatory purposes, than is required to be deducted
at the date hereof,
then and in each such case (but subject to clauses 15.3 and 15.4):
(i) such Bank shall notify the Borrower through the Agent in writing
of such event promptly upon its becoming aware of the same; and
(ii) the Borrower agrees to pay on demand, made at any time, whether
or not such Bank's Contribution has been repaid, to the Agent for
the account of such Bank the amount which such Bank specifies (in
a certificate setting forth the basis of the computation of such
amount but not including any matters which such Bank or its
holding company regards as confidential) is required to
compensate such Bank and/or (if and to the extent that, such
holding company has passed the cost of the same on to such Bank)
its holding company for such liability to Taxes, increased or
additional cost, reduction, payment or foregone return.
15.3 Exceptions
Nothing in this clause shall entitle any Bank to compensation for any such
increased cost, reduction, payment or foregone return (a) to the extent that the
same is taken into account in calculating the Additional Cost or (b) to the
extent that the same is the subject of an additional payment under clause 8.7.
15.4 Further Exception
Nothing in this clause shall entitle any Bank to compensation for any such
increased cost, reduction, payment or foregone return which arises as a
consequence of any law or regulation implementing the proposals as currently
drafted for international convergence of capital measurement and capital
standards published by the Basle Committee on Banking Regulations and
Supervisory Practices in July 1988.
15.5 Mitigation
If, in respect of any Bank, circumstances arise which would, or would upon the
giving of notice, result in:
(a) the Borrower being required to make an increased payment to such Bank
pursuant to clause 8.7;
(b) the reduction of such Bank's Commitment to zero or the Borrower being
required to prepay such Bank's Contribution pursuant to clause 15.1;
or
(c) the Borrower being required to make a payment to such Bank to
compensate such Bank for an increased cost, reduction, payment or
foregone return pursuant to clause 15.2(ii),
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrower under clauses 8 and 15, such Bank shall, in
consultation with the Agent, endeavour to take such reasonable steps as may be
open to it to mitigate or remove such circumstances including (without
limitation) the transfer of its rights and obligations under this Agreement to
another bank or financial institution acceptable to the Borrower or a change of
lending office of such Bank to one acceptable to the Borrower unless, in either
case, to do so might (in the opinion of such Bank) be prejudicial to such Bank
or be in conflict with such Bank's general banking policies or involve such Bank
in expense or an increased administration burden.
16. Set-off and Pro Rata Payments Set-off and Pro
Rata Payments
16.1 Set-off
The Borrower authorises each Bank to apply any credit balance to which the
Borrower is then entitled on any account of the Borrower with such Bank at any
of its branches in or towards satisfaction of any sum then due and payable from
the Borrower to such Bank under this Agreement. For this purpose each Bank is
authorised to purchase with the moneys standing to the credit of such account
such other currencies as may be necessary to effect such application. No Bank
shall be obliged to exercise any right given to it by this clause. Each Bank
shall notify the Agent and the Borrower forthwith upon the exercise or purported
exercise of any right of set-off giving full details in relation thereto and the
Agent shall inform the other Banks.
16.2 Pro Rata Payments
(a) If at any time any Bank (the "Recovering Bank") receives
or recovers any amount owing to it by the Borrower under this
Agreement by direct payment, set-off or in any manner (but
excluding any recoveries by virtue of any cash management or
interest netting arrangements operated by any Bank in its
capacity as a provider of day to day banking services to the
TCN Group to the extent that such arrangements are permitted
by this Agreement) other than by payment through the Agent
pursuant to clause 8.1 or 8.11 (not being a payment received
from an Assignee, a Substitute or a Sub-Participant), the
Recovering Bank shall, within two Banking Days of such receipt
or recovery (a "Relevant Receipt") notify the Agent of the
amount of the Relevant Receipt. If the Relevant Receipt
exceeds the amount which the Recovering Bank would have
received if the Relevant Receipt had been received by the
Agent and distributed pursuant to clause 8.1 or 8.11 (as the
case may be) then:
(i) within two Banking Days of demand by the Agent, the
Recovering Bank shall pay to the Agent an amount equal to
the excess;
(ii) the Agent shall treat the excess amount so paid by the
Recovering Bank as if it were a payment made by the Borrower
and shall distribute the same to the Banks (other than the
Recovering Bank) in accordance with clause 8.11; and
(iii)as between the Borrower and the Recovering Bank the excess
amount so re-distributed shall be treated as not having been
paid but the obligations of the Borrower to the other Banks
shall, to the extent of the amounts so re-distributed to
them, be treated as discharged.
(b) If any part of the Relevant Receipt subsequently has to be wholly or
partly refunded by the Recovering Bank (whether to a liquidator or
otherwise) each Bank to which any part of such Relevant Receipt was so
re-distributed shall on request from the Recovering Bank repay to the
Recovering Bank such Bank's pro rata share of the amount which has to
be refunded by the Recovering Bank.
(c) Each Bank shall on request supply to the Agent such information as the
Agent may from time to time request for the purpose of this clause
16.2.
(d) Notwithstanding the foregoing provisions of this clause
16.2 no Recovering Bank shall be obliged to share any Relevant
Receipt which it receives or recovers pursuant to legal
proceedings taken by it to recover any sums owing to it under
this Agreement with any other party which has a legal right
to, but does not, either join in such proceedings or commence
and diligently pursue separate proceedings to enforce its
rights in the same or another court (unless the proceedings
instituted by the Recovering Bank are instituted by it without
prior notice having been given to such party through the
Agent).
16.3 No Release
For the avoidance of doubt it is hereby declared that failure by any Recovering
Bank to comply with the provisions of clause 16.2 shall not release any other
Recovering Bank from any of its obligations or liabilities under clause 16.2.
16.4 No Charge
The provisions of this clause 16 shall not, and shall not be construed so as to,
constitute a charge by a Bank over all or any part of a sum received or
recovered by it in the circumstances mentioned in clause 16.2.
17. Assignment, Substitution and Lending Offices
Assignment, Substitution and Lending Offices
17.1 Benefit and Burden
This Agreement shall be binding upon, and enure for the benefit of, the Banks,
the Arrangers, the Agent, the Security Trustee, the TCN Entities and their
respective successors.
17.2 No Assignment by Borrower
None of the TCN Entities may assign or transfer any of its rights or obligations
under this Agreement.
17.3 Assignment by Banks
Each Bank (an "Assignor Bank") may assign all or any part of its rights in
respect of its Contribution to any Qualifying Bank (an "Assignee") with the
prior written consent of the Borrower (which shall not be unreasonably withheld
or delayed) provided that no such consent is necessary if such Assignee is a
wholly owned Subsidiary of such Assignor Bank or a person of whom such Assignor
Bank is a wholly owned Subsidiary. No Bank may assign all or any part of its
rights in respect of its Contribution to any person which is not a Qualifying
Bank.
17.4 Substitution
Each Bank (a "Transferor Bank") may transfer, by way of novation, all or any
part of its rights, benefits and/or obligations under this Agreement and the
Security Trust Deed to any Qualifying Bank (a "Substitute") with the prior
written consent of the Borrower (which shall not be unreasonably withheld or
delayed) provided that no such consent is necessary if such Substitute is a
wholly-owned Subsidiary (being a Qualifying Bank) of such Transferor Bank or a
person (being a Qualifying Bank) of whom such Transferor Bank is a wholly-owned
Subsidiary if any such transfer would not give rise to any obligation to make
any payment on the part of the Borrower which it would not have had to make at
such time but for such transfer. Any such novation shall be effected upon five
Banking Days' prior notice by delivery to the Agent of a duly completed
Substitution Certificate duly executed by such Bank, the Substitute and the
Agent (for itself, the Arrangers, the Security Trustee, the Borrower, the
Charging Subsidiaries and the other Banks). On the effective date specified in a
Substitution Certificate so executed and delivered, to the extent that they are
expressed in such Substitution Certificate to be the subject of the novation
effected pursuant to this clause 17.4:
(a) the existing parties to this Agreement and the Bank party to the
relevant Substitution Certificate shall be released from their
respective obligations towards one another under this Agreement and
the Security Trust Deed ("discharged obligations") and their
respective rights against one another under this Agreement
("discharged rights") shall be cancelled;
(b) the Substitute party to the relevant Substitution Certificate and the
existing parties to this Agreement and the Security Trust Deed (other
than the Bank party to such Substitution Certificate) shall assume
obligations towards each other which differ from the discharged
obligations only insofar as they are owed to or assumed by such
Substitute instead of to or by such Bank;
(c) the Substitute party to the relevant Substitution Certificate and the
existing parties to this Agreement and the Security Trust Deed (other
than the Bank party to such Substitution Certificate) shall acquire
rights against each other which differ from the discharged rights only
insofar as they are exercisable by or against such Substitute instead
of by or against such Bank,
and on the date upon which such novation takes effect (where such novation takes
place after 19 July 1996) the Substitute shall pay to the Agent for its own
account a fee of oe500. The Agent shall promptly notify the Borrower of the
receipt by it of any Substitution Certificate and deliver a copy thereof to the
Borrower.
17.5 Reliance on Substitution Certificate
The Agent, the Banks, the Arrangers, the Security Trustee and each TCN Entity
shall be fully entitled to rely on any Substitution Certificate delivered to the
Agent in accordance with the foregoing provisions of this clause 17 which is
complete and regular on its face as regards its contents and purportedly signed
on behalf of the relevant Bank and the Substitute and none of the Agent, the
Banks, the Arrangers, the Security Trustee or each TCN Entity shall have any
liability or responsibility to any party as a consequence of placing reliance on
and acting in accordance with any such Substitute Certificate if it proves to be
the case that the same was not authentic or duly authorised.
17.6 Authorisation of Agent
Each TCN Entity, each Arranger, the Security Trustee and each Bank irrevocably
authorises the Agent to counter-sign each Substitution Certificate on its behalf
without any further consent of, or consultation with such TCN Entity, such
Arranger, the Security Trustee or such Bank except, in the case of the Borrower,
the consent required pursuant to clause 17.3 or 17.4.
17.7 Construction of certain references
If any Bank assigns all or any part of its rights or novates all or any part of
its rights, benefits and obligations as provided in clause 17.3 or 17.4 all
relevant references in this Agreement to such Bank shall thereafter be construed
as a reference to such Bank and/or its Assignee or Substitute (as the case may
be) to the extent of their respective interests.
17.8 Lending offices
Each Bank shall lend through its office at the address specified in Schedule 1
or, as the case may be, in any relevant Substitution Certificate or through any
other office located in the United Kingdom of such Bank selected from time to
time by such Bank through which such Bank wishes to lend for the purposes of
this Agreement. If the office through which a Bank is lending is changed
pursuant to this clause 17.8, such Bank shall notify the Agent promptly of such
change.
17.9 Disclosure of information
Save as permitted pursuant to the terms of this Agreement or the relevant
Security Document any information furnished pursuant to this Agreement or any
Security Document to which the Borrower or any other TCN Entity (as the case may
be) is a party to the Agent, the Arranger, the Security Trustee or the Banks
shall be kept confidential by the recipient and the Agent, the Arrangers, the
Security Trustee and the Banks, save that the provisions of this clause 17.9
shall not apply:
(a) to any information already known to the recipient;
(b) to any information subsequently received by the recipient which it
would otherwise be free to disclose;
(c) to any information which is or becomes public knowledge otherwise than
as a result of a breach by any person of this clause 17.9 or of any
confidentiality undertaking entered into pursuant to clause 17.11; and
(d) to any extent that the recipient is required to disclose the same
pursuant to any law or order of any court or order or request of any
governmental agency with whose instructions the recipient habitually
complies.
17.10 Sub-participation
No Bank may enter into any sub-participation arrangements in relation to all or
any part of its rights and obligations under this Agreement with any person
without the consent of the Borrower and the Agent.
17.11 Confidentiality undertaking
Any Bank, the Security Trustee, any Arranger or the Agent may, having obtained
the prior consent of the Borrower (such consent not to be unreasonably withheld)
disclose to a prospective Assignee or Substitute or to any other person who may
propose entering into contractual relations with such Bank, the Security
Trustee, any Arranger or the Agent in relation to this Agreement or any Security
Document any information referred to in clause 17.9 subject to the prospective
Assignee or Substitute or other person first entering into a confidentiality
undertaking with the Borrower and the other TCN Entities in substantially the
same terms as clause 17.9 and this clause 17.11.
18. Arrangers, Agent and Reference Banks Arrangers,
Agent and Reference Banks
18.1 Appointment of Agent
Each Bank irrevocably appoints the Agent as its agent for the purposes of this
Agreement and any relevant Security Document and authorises the Agent (whether
or not by or through employees or agents) to take such action on such Bank's
behalf and to exercise such rights, remedies, powers and discretions as are
specifically delegated to the Agent by this Agreement and/or any relevant
Security Document, together with such powers and discretions as are reasonably
incidental thereto. None of the Agent, the Arrangers or the Security Trustee
shall, however, have any duties, obligations or liabilities to the Banks beyond
those expressly stated in this Agreement and/or the Security Documents.
18.2 Amendments to this Agreement
(a) Subject to clause 18.2(b) and save where otherwise
provided in this Agreement, the Agent may, with the consent of
the Majority Banks (or if and to the extent expressly
authorised by the other provision of this Agreement), amend,
modify or otherwise vary or waive breaches of, or defaults
under, or otherwise excuse performance of, any provision of
this Agreement or any other Security Document entered into in
favour of the Agent. Any such action so authorised and
effected by the Agent shall be promptly notified to the Banks
by the Agent and shall be binding on all of the Banks.
(b) Except with the prior written consent of all of the
Banks, the Agent shall not have authority on behalf of the
Banks (A) to agree with any TCN Entity any amendment to this
Agreement or to grant waivers in respect of breaches of or
defaults under this Agreement or to excuse performance of this
Agreement which would (i) reduce the Margin, (ii) extend the
due date or reduce the amount of any payment of principal,
interest or other amount payable under this Agreement, (iii)
change the currency in which any amount is payable under this
Agreement, (iv) increase any Bank's Commitment, (v) change the
definition of "Majority Banks" in clause 1.2, change clauses
3.3, 4.2, 4.3, 4.4, 15.2, 16.2 or 17.2, (vi) change this
clause 18.2, (B) to release any asset of whatever nature that
is subject to a Security Document unless such release is to
permit the disposal or other dealing with such asset in
accordance with the terms of this Agreement or the relevant
Security Document or (C) to release any TCN Entity (other than
an Immaterial Group Entity) from all of its obligations under
this Agreement and the Security Documents.
(c) Each TCN Entity (other than the Borrower) irrevocably appoints the
Borrower to act on its behalf as its agent in relation to this
Agreement and any amendment agreement relating hereto and irrevocably
authorises the Borrower to execute on its behalf any amendments to
this Agreement without further reference to or the consent of such TCN
Entity and to give any waivers, consents and notices in relation to
this Agreement and any amendment agreement relating hereto and to take
any other action in relation to this Agreement and any amendment
agreement relating hereto.
18.3 Rights of Agent, Security Trustee and each Arranger
as Bank; no partnership
With respect to its own Commitment and Contribution (if any) the Agent, the
Security Trustee and each Arranger shall have the same rights and powers under
this Agreement as any other Bank and may exercise the same as though it were not
performing the duties and functions delegated to it under this Agreement and/or
the Security Documents and the term "Banks" shall, unless the context clearly
otherwise indicates, include the Agent, the Security Trustee, each Arranger in
its individual capacity as a Bank. This Agreement shall not and shall not be
construed so as to constitute a partnership between the parties or any of them.
18.4 No liability of the Arrangers, the Security Trustee
and Agent
None of the Arrangers, the Security Trustee or the Agent shall:
(a) be obliged to request any certificate or opinion under
clause 10 or 12 or to make any enquiry as to the use of the
proceeds of the Loan unless (in the case of the Agent) so
required in writing by any Bank, in which case the Agent shall
promptly make the appropriate request of the Borrower, or be
obliged to make any enquiry as to any default by the Borrower
in the performance or observance of any of the provisions of
this Agreement or as to the existence of a Default unless (in
the case of the Agent) the Agent has actual knowledge thereof
or has been notified in writing thereof by a Bank, in which
case the Agent shall promptly notify the Banks of the relevant
event or circumstance; or
(b) be liable to any Bank for any action taken or omitted under or in
connection with this Agreement or the Loan unless caused by their or
its gross negligence or wilful misconduct.
For the purpose of this clause 18 neither the Agent nor the Security Trustee
shall be treated as having actual knowledge of any matter of which the corporate
finance or any other division outside the corporate lending or loan
administration departments of the person for the time being acting as the Agent
or the Security Trustee, as the case may be, may become aware in the context of
corporate finance or advisory activities from time to time undertaken by the
Agent or the Security Trustee, as the case may be, for any TCN Entity, Telewest,
any Affiliate, any Ultimate Shareholder or any of their respective Subsidiaries,
Associated Partnerships or Affiliates.
18.5 Agent's duty to notify and take action
The Agent shall:
(a) promptly notify each Bank of the contents of each notice, certificate
or other document received by the Agent from the Borrower under or
pursuant to clause 11 and provide each Bank with a copy of each set of
financial statements, Monthly Management Accounts or Quarterly
Management Accounts delivered to the Agent under clause 10.1(f), (g)
or (h); and
(b) (subject to its being indemnified to its satisfaction) take such
action or, as the case may be, refrain from taking such action with
respect to any Default of which the Agent has actual knowledge as the
Majority Banks or Banks (as the case may be) may reasonably direct.
18.6 Identity of the Banks
The Agent may deem and treat (a) each Bank as the person entitled to the benefit
of the Contribution of such Bank for all purposes of this Agreement unless and
until a notice of assignment of such Bank's Contribution or any part thereof or
a Substitution Certificate shall have been filed with the Agent, and (b) the
office set opposite the name of each Bank in Part D of Schedule 1 or, as the
case may be, in any relevant Substitution Certificate as such Bank's lending
office unless and until a written notice of change of lending office shall have
been received by the Agent; and the Agent may act upon any such notice unless
and until the same is superseded by a further such notice.
18.7 Non-reliance on the Arrangers, the Security Trustee
or the Agent
Each Bank acknowledges that it has not relied on any statement, opinion,
forecast or other representation made by the Arrangers, the Security Trustee or
the Agent to induce it to enter into this Agreement an that it has made and will
continue to make, without reliance on the Agent, the Arrangers or the Security
Trustee and based on such documents as it considers appropriate, its own
appraisal of the creditworthiness of each TCN Entity and Telewest and its own
independent investigation of the financial condition and affairs of each TCN
Entity and Telewest in connection with the making and continuation of the Loan
under this Agreement. None of the Arrangers, the Security Trustee or the Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to provide any Bank with any credit or other information with respect to
any TCN Entity or Telewest, whether coming into their or its possession before
the making of any Advance or at any time or times thereafter, other than (in the
case of the Agent) as provided in clause 18.5(a).
18.8 No Responsibility on Arrangers, Security Trustee or Agent
for Borrower's, etc. performance
None of the Arrangers, the Security Trustee or the Agent shall have any
responsibility to any Bank on account of the failure of any TCN Entity or
Telewest, to perform their respective obligations under this Agreement or the
Security Documents or for the financial condition of any TCN Entity or Telewest,
or for the completeness or accuracy of any statements, representations or
warranties in this Agreement, the Security Documents or any document delivered
under this Agreement, the Security Documents or for the execution,
effectiveness, adequacy, genuineness, validity, enforceability or admissibility
in evidence of this Agreement or the Security Documents or of any certificate,
report or other document executed or delivered under this Agreement or the
Security Documents or otherwise in connection with the Loan or its negotiation
or for acting (or, as the case may be, refraining from acting) in accordance
with the instructions of the Majority Banks or all of the Banks (as the case may
be). The Arrangers, the Security Trustee and the Agent shall be entitled to rely
on any communication, instrument or document believed by them or it to be
genuine and correct and to have been signed or sent by the proper person and
shall be entitled to rely as to legal or other professional matters on opinions
and statements of any legal or other professional advisers selected or approved
by them or it.
18.9 Other dealings
The Arrangers, the Security Trustee and the Agent may, without any liability to
account to the Banks, accept deposits from, lend money to, and generally engage
in any kind of banking or trust business with, each TCN Entity, Telewest or any
of their respective Subsidiaries, Associated Partnerships or Affiliates or any
of the Banks as if they or it were not an Arranger, the Security Trustee or the
Agent (as the case may be).
18.10 Reimbursement and indemnity by Banks
Each Bank shall reimburse the Arrangers, the Security Trustee and the Agent
(rateably in accordance with such Bank's Commitment, at any time before the
making of the first Advance or if no Advance is then outstanding, or
Contribution, at any other time) to the extent that such Arranger, the Security
Trustee or the Agent is not reimbursed by the Borrower, for the charges and
expenses incurred by such Arranger, the Security Trustee and the Agent in
connection with the negotiation, preparation, syndication and execution of this
Agreement and/or in contemplation of, or otherwise in connection with, the
enforcement of, or the preservation of any rights under, or in carrying out its
duties under, this Agreement and/or the Security Documents including (in each
case) the fees and expenses of legal or other professional advisers. Each Bank
shall indemnify the Agent and the Security Trustee (rateably in accordance with
such Bank's Commitment, at any time before the making of the first Advance or if
no Advance is then outstanding, or Contribution, at any other time) against all
liabilities, damages, costs and claims whatsoever incurred by the Agent or the
Security Trustee (as the case may be) in connection with this Agreement and/or
the Security Documents or any document or report referred to in this Agreement
or the performance of its duties under this Agreement and/or the Security
Documents or any action taken or omitted by the Agent or the Security Trustee
(as the case may be) under this Agreement and/or the Security Documents, unless
such liabilities, damages, costs or claims arise from the Agent's or the
Security Trustee's (as the case may be) own gross negligence or wilful
misconduct.
18.11 Retirement of Agent
(a) The Agent may retire from its appointment as Agent under this
Agreement and/or the relevant Security Documents having given to the
Borrower and each of the Banks not less than 30 days' notice of its
intention to do so, provided that no such retirement shall take effect
unless there has been appointed by the Banks (after consultation with
the Borrower) as a successor agent:
(i) a Bank; or
(ii) any other reputable and experienced financial institution
with offices in London nominated and accepted by the
Majority Banks and to which the Borrower has given its
consent (such consent not to be unreasonably withheld or
delayed); or, failing such nomination;
(iii)any reputable and experienced bank or financial institution
with offices in London nominated by the Agent and to which
the Borrower has given its consent (such consent not to be
unreasonably withheld or delayed).
(b) All of the Banks (other than the Agent, in its capacity
as a Bank) may, having given to the Agent not less than 30
days' notice of the intention to do so, remove the Agent from
its appointment as such under the Agreement. The removal
shall automatically be of effect on the expiry of the notice
save, where the Banks (other than the Agent, in its capacity
as a Bank) shall have failed to appoint a successor agent
falling within the requirements of clause 18.11(a) (i) or
(ii), in which case the removal shall be deferred until such
appointment is made. The Banks (other than the Agent, in its
capacity as a Bank) shall immediately notify the Agent in
writing of their making such appointment.
(c) Upon any such successor as aforesaid being appointed, the
retiring Agent shall be discharged from any further obligation
under this Agreement and/or the relevant Security Documents
and its successor and each of the other parties to this
Agreement and/or the relevant Security Documents shall have
the same rights and obligations among themselves as they would
have had if such successor had been a party to this Agreement
and/or the relevant Security Documents in place of the
retiring Agent.
18.12 Change of Reference Banks
If (a) the whole of the Contribution (if any) of any Reference Bank is prepaid,
(b) the Commitment (if any) of any Reference Bank is reduced to zero in
accordance with clause 6.4 or 15.1, (c) a Reference Bank assigns and/or novates
the whole of its rights and obligations (if any) as a Bank under this Agreement
or (d) any Reference Bank ceases to provide quotations to the Agent for the
purposes of determining LIBOR, the Agent may, acting on the instructions of the
Majority Banks, terminate the appointment of such Reference Bank and after
consultation with the Borrower appoint another Bank to replace such Reference
Bank.
18.13 Security Documents
Each Bank acknowledges and agrees to the terms and conditions of the Security
Documents and the Security Trustee and the Banks agree that the Banks will,
subject to the terms of the Security Trust Deed, be entitled to all the rights
and subject to the liabilities and obligations of the Banks (and, if applicable,
the Bond Providers and/or Interest Rate Beneficiaries (as defined therein))
under the Debenture and any other Security Document entered into by the Security
Trustee for the benefit of the Banks and, if applicable, the Bond Providers
and/or Interest Rate Beneficiaries.
19. Notices and other matters Notices and
other matters
19.1 Notices
Every notice, request, demand or other communication under this Agreement shall,
if addressed to the Borrower, be copied to Telewest and, if addressed to any
other TCN Entity, be copied to the Borrower and Telewest, and shall:
(a) be in writing delivered personally or by first-class prepaid letter
(airmail if applicable and available), telex or telefax (confirmed in
the case of a telefax, by first-class prepaid letter (airmail if
available));
(b) be deemed to have been received, subject as otherwise
provided in this Agreement, in the case of a letter, when
delivered personally or 3 days (7 days in the case of a letter
posted from one country to another) after it has been put into
the post and, in the case of a telex or telefax, at the time
of despatch with, in the case of telex, confirmed answerback
of the addressee appearing at the beginning and end of the
transmission or it the case of a telefax, with confirmation by
the sender's facsimile machine that the message has been
received at the correct facsimile number (provided that if the
date of delivery or despatch is not a business day in the
country of the addressee or if the time of despatch of any
telex or telefax is after the close of business in the country
of the addressee it shall be deemed to have been received at
the opening of business on the next such business day); and
(c) be sent:
(i) to the Borrower and each other TCN Entity at:
c/o Telewest Communications plc
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telefax: 01483 750901
Attention: Vice-President - Treasury
(ii) to the Agent and the Security Trustee at:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telex: 888229 - CIBC G
Telefax: 0171 234 6433
Attention: Supervisor, Banking Services
(iii)to each Arranger and each Bank at its address, telex number
or telefax number specified in Part D of Schedule 1 or in
any relevant Substitution Certificate,
or to such other address, telex number or telefax number as is
notified by the Borrower, a TCN Entity, the Agent, an Arranger, the
Security Trustee or a Bank (as the case may be) to the other parties
to this Agreement.
19.2 Notices through the Agent
Every notice, request, demand or other communication under this Agreement to be
given by any TCN Entity to any other party shall be given to the Agent for
onward transmission as appropriate and to be given to any TCN Entity shall
(except as otherwise provided in this Agreement) be given by the Agent.
19.3 No implied waivers, remedies cumulative
No failure or delay on the part of the Agent, the Arrangers, the Security
Trustee, the Banks or any of them to exercise any power, right or remedy under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise by the Agent, the Arrangers, the Security Trustee, the Banks or
any of them of any power, right or remedy preclude any other or further exercise
thereof or the exercise of any other power, right or remedy. The remedies
provided in this Agreement are cumulative and are not exclusive of any remedies
provided by law.
20. Lease Financing and Pari Passu BorrowingsLease Financing
and Pari Passu Borrowings
20.1 Lease Financing
Each Bank, the Security Trustee, the Arrangers and the Agent acknowledges that
the Borrower or a TCN Entity may wish to enter into Finance Leases from time to
time. Accordingly the parties hereto agree that they will negotiate in good
faith should the relevant TCN Entity wish to use the facility granted pursuant
to this Agreement by way of guarantees or letters of credit in favour of the
lessors in respect of such Finance Leases in order to agree arrangements
satisfactory to all parties. If, no later than 30 June, 1997, any Finance Lease
is entered into by a TCN Entity which is supported by guarantees or letters of
credit given under the facility granted pursuant to this Agreement (and the
mandate therefor has been awarded to the prospective lessor no later than 31
January, 1997) which does not, in the opinion of each Bank (acting reasonably),
require such Bank to assume any greater credit or other risk or any onerous
obligations, then any such arrangements shall not involve the payment of a fee
to any of the Banks, the Arrangers, the Agent or the Security Trustee and each
Bank, the Security Trustee, each of the Arrangers and the Agent undertakes to
act reasonably to agree any relevant documentation.
20.2 Pari Passu Borrowings
Each Bank, the Security Trustee, the Arrangers and the Agent agrees that any
lender of any Borrowed Money within paragraph (ix) of Permitted Borrowings shall
be entitled to share in the security constituted by the Security Documents on a
pari passu basis with the Banks and agrees to enter into such supplemental
documentation (at the cost of the Borrower) as may reasonably be required in
order to effect the same.
21. Governing law and jurisdiction Governing law and
jurisdiction
21.1 Law
This Agreement is governed by and shall be construed in accordance with English
law.
21.2 Submission to jurisdiction
Each TCN Entity agrees for the benefit of the Agent, the Arrangers, the Security
Trustee and the Banks that any legal action or proceedings in connection with
this Agreement against any TCN Entity or any of their respective assets may be
brought in the English courts. Each TCN Entity irrevocably and unconditionally
submit to the jurisdiction of such courts and in the case of TCN Entities which
are not incorporated or organised under the laws of England, irrevocably
designate, appoint and empower Legibus Secretaries Limited at present of ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ to receive for them and on their behalf,
service of process issued out of the English courts in any legal action or
proceedings arising out of or in connection with this Agreement. The submission
to such jurisdiction shall not (and shall not be construed so as to) limit the
right of the Agent, the Arrangers, the Security Trustee or the Banks to take
proceedings against any TCN Entity to enforce any judgment obtained in any court
referred to in this clause 21.2 in any jurisdiction in which any of the assets
of any TCN Entity are situated, nor shall the taking of proceedings in any one
or more jurisdiction referred to in this clause 21.2 preclude the taking of
proceedings in any other such jurisdiction, whether concurrently or not.
21.3 Inconvenient forum
Each TCN Entity irrevocably waives any objection they may have now or hereafter
to the laying of venue of any action or proceeding in any court or jurisdiction
referred to in clause 21.2 and any claim they may have now or hereafter that any
action or proceeding brought in such courts or jurisdiction has been brought in
an inconvenient forum.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
SCHEDULE 1
Part A
The Original Charging Subsidiaries
(1) (2)
COMPANY NAME COMPANY NUMBER
Telewest Communications Group 2514287
Limited
Telewest Communications Cable 2883742
Limited
Telewest Holdings Limited 2982404
Telewest Parliamentary Holdings 251 4316
Limited
Theseus No 1 Limited 2994027
Theseus No. 2 Limited 2994061
The Cable Equipment Store Limited 2693805
United Artists Communications 1743081
(Cotswolds) Limited
United Artists Communications 2318746
(Nominees) Limited
United Artists Communications (North 2378214
East) Limited
United Artists Communications (South 2270764
East) Limited
United Artists Communications (South 2270763
Thames Estuary) Limited
United Artists Communications 2407676
(Tyneside) Limited
SBC CableComms (UK) Limited 2795350
Southwestern ▇▇▇▇ International 2378768
Holdings Limited
Midlands Cable Communications 1882074
Limited
Telford Telecommunications Limited 2389377
North West Cable Communications 2321124
Limited
Cable Communications Wigan Limited 2451112
Cable Communications (Central 1737862
Lancashire) Limited
Cable Communications Liverpool 1615567
Limited
Cable Communications (St. Helens & 2466599
Knowsley) Limited
Telewest (Motherwell) Limited SC150057
United Artists Communications 1697437
(London South) Limited
United Artists Communications (Avon) 2271287
Limited
Tayside Cable Systems Limited SC096816
Kingdom Cablevision Limited SC119523
Scotcable (Motherwell) Limited SC121617
Scotcable (Cumbernauld) Limited SC121614
Scotcable (Dumbarton) Limited SC121700
Cable North (Forth District) SC122481
Limited
United Artists Communications SC80891
(Scotland) Limited
Telewest Scotland Holdings Limited SC150058
Telewest Communications (Internet) 03141035
Limited
Telewest Southport Limited 03085912
Crystal Palace Radio Limited 01459745
Avon Cable Investments Limited 2487110
Telewest (Worcester) Limited 02475098
Part B
The Original Charging Partnerships
(1) (2)
PARTNERSHIP NAME PRINCIPAL PLACE OF BUSINESS
Cotswolds Cable Limited Concord House,
Partnership Staverton ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Estuaries Cable Limited Communications House,
Partnership ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇
TCI/US WEST Cable Communications Genesis Business Park,
Group ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tyneside Cable Limited Partnership Communications House,
1 Duke's Way West,
Team Valley,
Gateshead,
County Durham NE11 6EG
United Artists Communications Communications House,
(North East) Partnership ▇ ▇▇▇▇'▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
United Artists Communications Communications House,
(South East) Partnership Scimitar Park,
Courtauld Park, Basildon,
Essex SS1 1ND
London South Cable Partnership Communications Centre, ▇
▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ Cable Limited Partnership ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
West,
Almondsbury, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ Cable Limited ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
United Cable (London South) Communications Centre,
Limited Partnership ▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇
▇▇▇▇ Cable Joint Venture ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
West,
Almondsbury, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ South Joint Venture Communications Centre,
5 Factory Lane, Croydon,
Surrey
United Artists Communications Network Centre,
(Cotswolds) Venture ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
United Artists Communications ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
(▇▇▇▇▇▇▇▇) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Part C
The Original Non-Charging Subsidiaries
(1) (2)
COMPANY NAME COMPANY NUMBER
Cable Communications Telecomm Limited 02423585
Cable Communications Limited 01860121
Cable Communications (Fylde & Wyre) 02935056
Limited
Telewest Share Trust Limited 02472760
Telewest Trustees Limited 03071066
Crystalvision Productions Limited 01947225
Capital City Cablevision Limited SC80665
Edinburgh Cablevision Limited SC078895
Hieronymous Limited SC80135
Cable Communications South East 03006851
Staffordshire Limited
Cable Communications Shrewsbury Limited 03039816
Perth Cable Television Limited SC032627
Dundee Cable and Satellite Limited SC093114
Cable Guide Limited 02025654
Part D
The Banks and their Commitments
Name Address and telex and Commitment
facsimile numbers (pound)
The Bank of New York ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 240,000,000
Company, Inc. ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention:Loans
Administration
Canadian Imperial Cottons Centre 240,000,000
Bank of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention:Supervisor,
Banking Services
Chemical Bank Trinity Tower 240,000,000
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention:▇▇▇▇▇▇ ▇▇▇▇,
Asset Finance
National Westminster ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 240,000,000
Bank Plc ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 882121
Attention:Portfolio
Management
The Toronto-Dominion Triton Court 240,000,000
Bank ▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 886142
Attention:Manager,
Corporate
Services
1,200,000,000
-------------
SCHEDULE 2
Part A
Form of Drawdown Notice
To: CIBC Wood Gundy plc
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Supervisor, Banking Services [Date]
(pound)1,200,000,000 Loan Facility
Loan Agreement dated 22 May, 1996
(as from time to time amended, varied, extended, restated
or replaced the "Loan Agreement")
1. We refer to the above Loan Agreement and hereby give you notice that we
wish to draw a Revolving Advance under Tranche [A]/[B] of oe[ ] on [ ] and
select a Term for such Revolving Advance of [ ] months. The funds should be
credited to [name and number of account] with [bank in London].
2. We confirm that:
(i) no event or circumstance has occurred and is continuing
which constitutes a Default;
(ii) the representations and warranties referred to in clause 9.3
including those deemed to be made by the Borrower pursuant to
such clause are (subject as provided in clause 9.3) true and
correct at the date hereof as if each was made with respect to
the facts and circumstances existing at the date hereof;
(iii)the borrowing to be effected by such Revolving Advance will be
within our powers, has been validly authorised by appropriate
action and will not cause any limit on our borrowings (whether
imposed by statute, regulation, agreement or otherwise) to be
exceeded; and
(iv) [if drawdown is to be used to fund an acquisition or
investment within (vi) of "Permitted Investments"] the
investment/acquisition towards which the proceeds of this
drawdown will be applied satisfies the requirements of paragraph
(vi) of the definition of Permitted Investments.
3. We confirm that Consolidated Annualised TCN Group Net Operating Cash Flow
in the most recently delivered Monthly Management Accounts was [ ].
4. We further confirm that the ratio of the Tranche B Loan (including, for
these purposes, the amount of the Advance the subject of this notice) to
Consolidated Annualised TCN Group Net Operating Cash Flow as calculated
from the most recently delivered Monthly Management Accounts delivered to
the Agent under this Agreement was [ ].
Words and expressions defined in the Loan Agreement shall have the same meanings
where used herein.
For and on behalf of
Telewest Communications Networks Limited
..................................................
Authorised Officer
SCHEDULE 2
Part B
Form of Rollover Notice
To: CIBC Wood Gundy plc
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Supervisor, Banking Services [Date]
(pound)1,200,000,000 Loan Facility
Loan Agreement dated 22 May, 1996
(as from time amended, varied, extended, restated
or replaced the "Loan Agreement")
We refer to the above Loan Agreement and hereby give you notice that we wish to
draw a Revolving Advance of oe[ ] on [ ] under Tranche [A/B] and select a Term
for such Revolving Advance of [ ] months. The funds should be applied in
repayment [in part] of the Revolving Advance of oe[ ] which falls due to be
repaid on the same day in accordance with clause 4.13 of the Loan Agreement.
Words and expressions defined in the Loan Agreement shall have the same meanings
when used herein.
For and on behalf of
Telewest Communications Networks Limited
...........................
Authorised Officer
SCHEDULE 2
Part C
Form of Conversion Notice
To: CIBC Wood Gundy plc
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Supervisor, Banking Services [Date]
(pound)1,200,000,000 Loan Facility
Loan Agreement dated 22 May, 1996
(as from time amended, varied, extended, restated
or replaced the "Loan Agreement")
We refer to the Revolving Advance made to us of oe[ ] on [ ] with a Term of [ ]
under Tranche [A]/[B]. Words and expressions defined in the Loan Agreement shall
have the same meanings when used herein.
We hereby give you notice that we wish to convert such Revolving Advance to a
Revolving Advance under Tranche [A/B] with effect from [ ] (the "Conversion
Date").
We confirm that:
(iv) no event or circumstance has occurred and is continuing
which constitutes a Default;
(v) the representations and warranties referred to in clause 9.3
including those deemed to be made by the Borrower pursuant to
such clause are (subject as provided in clause 9.3) true and
correct at the date hereof as if each was made with respect to
the facts and circumstances existing at the date hereof; and
(vi) the borrowing effected by such Revolving Advance is within our
powers, has been validly authorised by appropriate action and
will not cause any limit on our borrowings (whether imposed by
statute, regulation, agreement or otherwise) to be exceeded.
We confirm that as at the Conversion Date we will be in compliance with clause
4.2 and clause 4.3 of the Loan Agreement.
For and on behalf of
Telewest Communications Networks Limited
...................................
Authorised Officer
SCHEDULE 3
Documents and evidence required as conditions precedent
(b) Copies, certified as true, complete and up-to-date copies by the Company
Secretary of the Borrower, of the Memorandum and Articles of Association
of the Borrower.
(c) A copy certified as a true copy by the Company Secretary of Resolutions
of the Board of Directors of the Borrower evidencing approval of this
Agreement and any Security Document to which it is a party and
authorising its appropriate officers to execute and deliver this
Agreement, each Security Document to which it is a party and to give all
notices and take all other action required by the Borrower under this
Agreement and each Security Document to which it is a party.
(d) A copy, certified as a true copy by the Company Secretary, of
Resolutions of the Board of Directors of Telewest evidencing approval of
the Deed of Subordination, the Telewest Assignment and the RBL Step-In
Rights Agreement and authorising its appropriate officers to execute and
deliver the Deed of Subordination, the Telewest Assignment and the RBL
Step-In Rights Agreement and to give all notices and to take all action
required by it under the Deed of Subordination, the Telewest Assignment
and the RBL Step-In Rights Agreement.
(e) Specimen signatures, authenticated by the relevant Company Secretary, of
the persons authorised in the Resolutions of the Board of Directors
referred to in paragraphs (b) and (c) above.
(f) Copies, certified as true copies by the relevant duly authorised officer
from Legibus Secretaries Limited as agents for receipt of service of
process referred to in this Agreement and/or the Security Documents of
acknowledgment of appointment as such.
(g) The Deed of Subordination, the Telewest Assignment and the RBL Step-in
Rights Agreement having been duly executed and delivered by Telewest.
(h) The Security Documents having been duly executed and delivered by the
Borrower and the other applicable TCN Entities.
(i) A notice in the form attached to the Debenture having been given to each
insurer of all or any of the material assets of the Borrower and each
TCN Entity and the same having been agreed and accepted by each relevant
insurer.
(j) Copies, certified as true copies by the Company Secretary of the
Borrower, of each Principal Agreement, the Licences, and each
inter-connect agreement entered into between Mercury Communications
Limited and members of the TCN Group together with a certificate from
the Company Secretary of the Borrower confirming that such documents are
in full force and effect.
(k) Confirmation from Alexander & Alexander that all the assets of the
Borrower and each other TCN Entity are insured in accordance with the
provisions of this Agreement and the Debenture.
(l) An opinion of ▇▇▇▇▇▇ ▇▇▇▇, solicitors to the Agent, dated no earlier than
15 days prior to the date of this Agreement.
(m) A letter, addressed to the Agent and the Banks, from KPMG Peat Marwick
stating that in KPMG Peat Marwick's opinion the financial projections and
underlying accounting assumptions of the Agreed Base Case delivered to the
Arrangers prior to the date of this Agreement are reasonable.
(n) A copy of the budget of the TCN Group for the period commencing on 1
January 1996 and ending on 31 December 1996.
(o) A copy, certified as a true copy by a Director of the Borrower, of the
Agreed Base Case.
(p) A letter from KPMG Peat Marwick confirming that any borrowing limit set out
in Telewest's Articles of Association will not be exceeded by the borrowing
by the Borrower of all the Commitments.
(q) A letter from a director of Telewest confirming that as of the first
Drawdown Date there has been no change in the financial position of the TCN
Group which would result in KPMG Peat Marwick's letter being incorrect if
taken as at the first Drawdown Date.
(r) Copies, certified as true, complete and up-to-date copies by the relevant
Company Secretary or Partnership Secretary of the certificate of
incorporation and Memorandum and Articles of Association of each Original
Charging Subsidiary or Partnership Agreement of each Original Charging
Partnership incorporating any amendments thereto reasonably required by the
Agent to ensure each Original Charging Subsidiary or Original Charging
Partnership can comply with the terms of this Agreement and the Security
Documents.
(s) A copy certified as a true copy by the Company Secretary of Resolutions of
the Board of Directors of each Original Charging Subsidiary and by a
Partnership Secretary of Resolutions of the Partners of each Original
Charging Partnership evidencing approval of this Agreement, and any
Security Document to which it is a party and authorising its appropriate
officers to execute and deliver this Agreement and the Security Documents
to which it is a party and to give all notices and take all other action
required by each such Original Charging Subsidiary or, as the case may be,
such Original Charging Partnership under this Agreement and each Security
Document to which it is a party together with a copy of the resolutions of
the authorised representative of each General Partner of each Charging
Partnership evidencing approval of this Agreement and any Security Document
to which it is a party certified as a true copy by a responsible officer of
such General Partner and certifying as to the authority of such authorised
representative.
(t) Specimen signatures certified by the relevant Company Secretary or
Partnership Secretary of the persons authorised by the resolutions referred
to in paragraph (r) above.
(u) Save where the relevant shares are registered in the name of the Security
Trustee or its nominee, share certificates (together with any relevant
declarations of trust and copies, certified as true copies by the relevant
Company Secretaries of resolutions of the Boards of Directors of the
relevant legal owners authorising the execution and delivery of such
declarations of trust and duly executed stamped stock transfer forms but
with the name of the transferee left blank) in respect of the entire issued
share capital of the Original Charging Subsidiaries.
(v) Opinions of legal counsel to the Agent in the jurisdiction of incorporation
or formation of each Original Charging Subsidiary and each Original
Charging Partnership dated no earlier than 15 days prior to the date hereof
including an opinion from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ together with an opinion from
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ L.L.C., special legal counsel to the Borrower in Denver,
Colorado, dated no earlier than 15 days prior to the date hereof.
(w) A Pledge and Security Agreement with respect to each of the Original
Charging Partnerships organised under the laws of one of the United States
of America in each case duly executed and delivered by each and every of
the partners in such Original Charging Partnership.
(x) Certificates of valid existence by the appropriate State in relation to
each of the Original Charging Partnerships that is a limited partnership
and is organised under the laws of one of the United States of America.
(y) Evidence of release of all Encumbrances listed in Part I of Schedule 8.
(z) Certified copies of notices from the relevant Borrowers to the relevant
Agents cancelling the London South/Avon and Scotland Facilities.
(aa) Receipt of all regulatory consents and letters (in the agreed form) and the
effecting of all registrations required in connection with this Agreement
and the Security Documents, including letters from the ITC, OFTEL and the
DTI.
(bb) Confirmation from an authorised officer of the Borrower that a minimum of
oe1,750,000,000 of equity and/or subordinated shareholder loans has been
injected into the TCN Group (for these purposes including predecessor
businesses).
(cc) Confirmation from an authorised officer of the Borrower that no member of
The Telewest Group is in default under any existing financing arrangements
including the Senior Securities.
(dd) A UCC-1 financing statement executed by each of the partners in each of the
Original Charging Partnerships that is organised under the laws of one of
the United States of America with respect to their respective pledges under
the Pledge and Security Agreements.
(ee) Certified copy of each Borrower/Telewest Transfer Agreement.
(ff) Certified copies of those charges detailed at Part II of Schedule 8 and
underlying loan documentation, together with a notice to each party secured
by an existing encumbrance, such notice to be in a form agreed between the
Borrower and the Agent, and any acknowledgements of such notices which the
Borrower has, using its reasonable endeavours, been able to procure.
(gg) Certified copies of Telewest/TCN Group loan documentation and details of
all amounts outstanding thereunder.
(hh) Confirmation from the Company Secretary of the Borrower that there are no
outstanding Encumbrances or Borrowings other than Permitted
Encumbrances/Permitted Borrowings.
(ii) Title documents to all properties to be charged under the Debenture which
are valued at over oe500,000 (other than those subject to a Prior Charge
(as defined in the Debenture) where the prior Chargee has or is entitled to
the title documents).
(jj) Disclosure Letter.
(kk) Evidence that interest rate hedging arrangements in accordance with Clause
10.1(aa) of this Agreement have been put in place, effective as of the
first Drawdown Date.
SCHEDULE 4
Calculation of Additional Cost
22. The Additional Cost for any period is calculated in accordance with the
following formula:
where on the day of application of the formula:
B is the percentage of the Agent's eligible liabilities which the Bank
of England then requires the Agent to hold on a non-interest-bearing
deposit account in accordance with its cash ratio requirements;
Y is the percentage rate at which Sterling deposits are offered by the
Agent to leading banks in the London interbank market at or about 11
a.m. on that day for the relevant period;
L is the percentage of eligible liabilities which (as a result of the
requirements of the Bank of England) the Agent maintains as secured
money with members of the London Discount Market Association or in
certain marketable or callable securities approved by the Bank of
England;
X is the percentage rate at which secured Sterling investments may be
placed by the Agent with members of the London Discount Market
Association at or about 11 a.m. on that day for the relevant period
or, if greater, the rate at which Sterling bills of exchange (of a
tenor equal to the duration of the relevant period) eligible for
rediscounting at the Bank of England can be discounted in the London
Discount Market at or about 11 a.m. on that day;
S is the percentage of the Agent's eligible liabilities which the Bank
of England requires the Agent to place as a special deposit; and
Z is the interest rate expressed as a percentage per annum allowed by
the Bank of England on special deposits.
23. For the purposes of this Schedule 4:
23.1 "eligible liabilities" and "special deposits" have the meanings given
to them at the time of application of the formula by the Bank of
England; and
23.2 "relevant period" in relation to each period for which Additional Cost
falls to be calculated means:
(a) if it is 3 months or less, that period; or
(b) if it is more than 3 months, 3 months.
24. In the application of the formula, B, Y, L, X, S and Z are included in the
formula as percentages, e.g. if B = 0.5 per cent. and Y = 15 per cent. BY
is calculated as 0.5 x 15.
25. The formula is applied on the first day of each relevant period. Each
amount is rounded up (if necessary) to the nearest four decimal places.
26. If the Agent determines that a change in circumstances has rendered, or
will render, the formula inappropriate, the Agent (after consultation with
all of the Banks) shall notify the Borrower of the manner in which the
Additional Cost will subsequently be calculated. The manner of calculation
so notified by the Agent shall, in the absence of manifest error, be
binding on all the parties.
SCHEDULE 5
Form of Substitution Certificate
Banks are advised not to employ Substitution Certificates or otherwise to assign
or transfer interests in the Agreement without first ensuring that the
transaction complies with all applicable laws and regulations, including the
Financial Services ▇▇▇ ▇▇▇▇ and regulations made thereunder.
To: CIBC Wood Gundy plc
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Supervisor, Banking Services
[Date]
Substitution Certificate
This Substitution Certificate relates to a Loan Agreement (as from time to time
amended, varied, extended, restated or replaced (the "Agreement") dated 22 May,
1996 between Telewest Communications Networks Limited as Borrower (1), the
Subsidiaries of the Borrower whose respective names and registered numbers are
set out in part A of Schedule 1 thereto, (2), the Associated Partnerships of the
Borrower whose respective names and principal places of business are set out in
part B of Schedule 1 thereto, (3), the Arrangers (4), the banks and financial
institutions whose respective names and addresses are set out in Part D of
Schedule 1 thereto as Banks (5), the Agent (6) and the Security Trustee (7).
Terms defined in the Agreement shall have the same meaning in this Substitution
Certificate.
27. [Existing Bank] (the "Existing Bank") (a) confirms the
accuracy of the summary of its participation in the Agreement
set out in the Schedule hereto; and (b) requests [Substitute
Bank] (the "Substitute") to accept by way of novation the
portion of such participation specified in the schedule hereto
by countersigning and delivering this Substitution Certificate
to the Agent at its address for the service of notices
specified in the Agreement.
28. The Substitute hereby requests the Agent (on behalf of
itself, the Arrangers, the Security Trustee, the Borrower, the
other TCN Entities, the Banks, the Bond Providers (as defined
in the Security Trust Deed and the Interest Rate Beneficiaries
(as defined in the Security Trust Deed)) to accept this
Substitution Certificate as being delivered to the Agent
pursuant to and for the purposes of clause 17.4 of the
Agreement, so as to take effect in accordance with the
respective terms thereof on [date of transfer] (the "Effective
Date") or on such later date as may be determined in
accordance with the terms thereof.
29. The Agent (on behalf of itself, the Arrangers, the
Security Trustee, the Borrower, the other TCN Entities, the
Banks, the Bond Providers (as defined in the Security Trust
Deed and the Interest Rate Beneficiaries (as defined in the
Security Trust Deed)) confirms the novation effected by this
Substitution Certificate pursuant to and for the purposes of
clause 17.4 of the Agreement so as to take effect in
accordance with the terms thereof.
30. The Substitute confirms:
30.1 that it has received a copy of the Agreement, the Security Documents
and all other documentation and information required by it in
connection with the transactions contemplated by this Substitution
Certificate;
30.2 that it has made and will continue to make its own assessment of the
validity, enforceability and sufficiency of this Agreement and the
Security Documents and the Substitution Certificate and has not relied
and will not rely on the Existing Bank, any Arranger, the Security
Trustee, any other Bank or the Agent or any statements made by any of
them in that respect;
30.3 that it has made and will continue to make its own credit assessment
of the Borrower, each other TCN Entity and Telewest and has not relied
and will not rely on the Existing Bank, any Arranger, the Security
Trustee, any other Bank or any statements made by any of them in that
respect;
30.4 accordingly, none of the Existing Bank, any Arranger, the Security
Trustee, any other Bank or the Agent shall have any liability or
responsibility to the Substitute in respect of any of the foregoing
matters; and
30.5 it is a Qualifying Bank.
31. Execution of this Substitution Certificate by the Substitute constitutes
its representation to the Existing Bank and all other parties to the
Agreement and the Security Trust Deed that it has power to become party to
the Agreement and the Security Trust Deed as a Bank on the terms herein and
therein set out and has taken all necessary steps to authorise execution
and delivery of this Substitution Certificate.
32. The Existing Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Agreement or the Security Documents or
any document relating thereto and assumes no responsibility for the
financial condition of the Borrower, each other TCN Entity and Telewest or
any other party to the Agreement or the Security Documents or for the
performance and observance by the Borrower, each other TCN Entity and
Telewest or any other such party of any of its obligations under the
Agreement or the Security Documents or any document relating thereto and
any and all such conditions and warranties, whether express or implied by
law or otherwise, are hereby excluded.
33. The Substitute hereby undertakes to the Existing Bank, the Borrower, the
other TCN Entities, the Arrangers, the Security Trustee, the other Banks,
the Bond Providers, the Interest Rate Beneficiaries and the Agent that it
will perform in accordance with their terms all those obligations which by
the respective terms of the Agreement and the Security Documents will be
assumed by it after acceptance of this Substitution Certificate by the
Agent.
34. This Substitution Certificate and the rights and obligations of the parties
hereunder are governed by and shall be construed in accordance with English
law.
Note: This Substitution Certificate is not a security,
bond, note, debenture, investment or similar instrument.
AS WITNESS the hands of the authorised signatories of the parties hereto on the
date appearing below.
The Schedule
Amount of Next Interest Portion novated
Contribution Payment Date(s) (oe)
Tranche A Advance(s)
Tranche B Revolving
Advance(s)
Tranche B Term
Advance(s)
Amount of Commitment Portion novated (oe)
Administrative Details of Substitute
Lending office:
Account for payments:
Telephone:
Telex:
Fax:
Attention:
[Existing Bank] [Substitute]
By: By:
Date: Date:
The Agent
By:
Date:
on its own behalf and on behalf of the Borrower, the other TCN Entities, the
Arrangers, the Security Trustee, the Bond Providers, the Interest Rate
Beneficiaries and the Banks.
SCHEDULE 6
Part A
Form of Compliance Certificate to be issued by an
Authorised Officer of the Borrower
CIBC Wood Gundy plc
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Supervisor, Banking Services
[Date]
Dear Sirs
Telewest Communications Networks Limited
(pound)1,200,000,000 Loan Facility, Loan Agreement dated 22 May, 1996
(as from time to time amended, varied, extended, restated or replaced
(the "Loan Agreement")
We refer to the Loan Agreement and deliver this Certificate in respect of the
Quarterly Period ended [ ] pursuant to clause 10.1(j)(a)(ii) thereof. Terms
defined in the Loan Agreement shall have the same meaning when used in this
Certificate. Net Operating Cashflow shall herein be defined as "NOCF".
We confirm that on or as of the last day of the Quarterly Period ending [ ]:
35. Consolidated TCN Group Net Operating Cashflow for the Six Month Period
ended [ ] was [ ].
36. **Consolidated Annualised TCN Group NOCF for the Six Month Period ended [
], was [ ].
37. **Total TCN Group Debt as at [ ] was [ ].
38. **Tranche B Loan as at [ ] was [ ].
39. ***Facility Debt Interest Charges for the Six Month Period ended [ ] was [
].
40. ****Total TCN Group Cash Paying Debt Interest Charges for the Six Month
Period ended [ ] was [ ].
41. ****Consolidated Telewest Group NOCF for the Six Month Period ended [ ] was
[ ].
42. ****Total Telewest Group Cash Paying Debt Interest Charges for the Six
Month Period ended [ ] was [ ].
43. *****On the basis of projections provided by Telewest management, Pro-forma
Total Telewest Group Debt Service for the twelve months commencing [ ] is [
].
44. ******On the basis of projections provided by Telewest management, Proforma
Total TCN Group Debt Service for the twelve months commencing [ ].
Based on the above, we confirm that on [ ]:
(1) *Actual Consolidated TCN Group NOCF divided by Consolidated TCN Group NOCF
as set out in the Agreed Base Case was [ %].
(2) **Tranche B Loan divided by Consolidated Annualised TCN Group NOCF was [
x].
(3) ***Consolidated TCN Group NOCF divided by Facility Debt Interest Charges
was [ x].
(4) ****Consolidated TCN Group NOCF divided by Total TCN Group Cash Paying Debt
Interest Charges was [ x].
(5) ****Consolidated Telewest Group NOCF divided by Total Telewest Group Cash
Paying Debt Interest Charges was [ x].
(6) *****Consolidated Annualised Telewest Group NOCF divided by Proforma Total
Telewest Group Debt Service was [ x].
(7) ******Consolidated Annualised TCN Group NOCF divided by Proforma Total TCN
Group Debt Service was [ x].
Based on the above, we confirm that the Borrower was in compliance with the
undertakings set out in clause 12.1(a) to (g) as at [ ].
We also confirm that the representations and warranties referred to in clause
9.3 including those deemed to be made by the Borrower pursuant to such clause
are (subject as provided in clause 9.3) true and correct at the date hereof as
if each was made with respect to the facts and circumstances existing at the
date hereof.
For and on behalf of
Telewest Communications
Networks Limited
..........................................................
Authorised Officer
* To be reported until Total TCN Group Debt: Consolidated Annualised TCN
Group NOCF is equal to or less than 5.0x for two consecutive quarters
** To be reported with effect from 30 September 1996
*** To be reported with effect from 31 March 1997
**** To be reported with effect from 31 March 1998
***** To be reported with effect from 31 March 1999
****** To be reported with effect from 31 June 2000
Part B
Form of Compliance Certificate to be issued by the
Auditors of the TCN Group
CIBC Wood Gundy plc
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Supervisor, Banking Services
Dear Sirs
Telewest Communications Networks Limited
(pound)1,200,000,000 Loan Facility, Loan Agreement dated 22 May, 1996
as from time to time amended, varied, extended, restated or replaced
(the "Loan Agreement")
We refer to the Loan Agreement and, in accordance with our instructions, deliver
this Certificate in respect of the financial year ended 31 December [ ] pursuant
to clause 10.1(j)(a)(ii) thereof. Terms defined in the Loan Agreement shall have
the same meaning when used in this Certificate. Net Operating CashFlow shall be
defined as "NOCF".
On the basis of the consolidated audited accounts of the Borrower and Telewest
for the financial year ended 31 December [ ] and on the basis of unaudited
management accounts for the six month period ended 30 June [ ], we confirm that:
45. Consolidated TCN Group Net Operating Cashflow for the Six Month Period
ended [ ] was [ ].
46. **Consolidated Annualised TCN Group NOCF for the Six Month Period ended [
], was [ ].
47. **Total TCN Group Debt as at [ ] was [ ].
48. **Tranche B Loan as at [ ] was [ ].
49. ***Facility Debt Interest Charges for the Six Month Period ended [ ] was [
].
50. ****Total TCN Group Cash Paying Debt Interest Charges for the Six Month
Period ended 31 December [ ] was [ ].
51. ****Consolidated Telewest Group NOCF for the Six Month Period ended [ ] was
[ ].
52. ****Total Telewest Group Cash Paying Debt Interest
Charges for the Six Month Period ended [ ] was [
].
53. *****On the basis of projections provided by Telewest management, Pro-forma
Total Telewest Group Debt Service for the twelve months commencing [ ] is [
].
54. ******On the basis of projections provided by Telewest management, Proforma
Total TCN Group Debt Service for the twelve months commencing [ ].
Based on the above, we confirm that on [ ]:
(a) *Actual Consolidated TCN Group NOCF divided by Consolidated TCN Group NOCF
as set out in the Agreed Base Case was [ %].
(b) **Tranche B Loan divided by Consolidated Annualised TCN Group NOCF was [
x].
(c) ***Consolidated TCN Group NOCF divided by Facility Debt Interest Charges
was [ x].
(d) ****Consolidated TCN Group NOCF divided by Total TCN Group Cash Paying Debt
Interest Charges was [ x].
(e) ****Consolidated Telewest Group NOCF divided by Total Telewest Group Cash
Paying Debt Interest Charges was [ x].
(f) *****Consolidated Annualised Telewest Group NOCF divided by Proforma Total
Telewest Group Debt Service was [ x].
(g) ******Consolidated Annualised TCN Group NOCF divided by Proforma Total TCN
Group Debt Service was [ x].
Based on the above, we confirm that the Borrower was in compliance with the
undertakings set out in clause 12.1(a) to (g) as at [ ].
For and on behalf of
..........................................................
Auditors
* To be reported until Total TCN Group Debt: Consolidated Annualised TCN
Group NOCF is equal to or less than 5.0x for two consecutive quarters
** To be reported with effect from 31 December 1996
*** To be reported with effect from 31 December 1997
**** To be reported with effect from 31 December 1998
***** To be reported with effect from 31 December 1999
****** To be reported with effect from 31 December 2000
SCHEDULE 7
Form of Deed of Subordination
DATED 22 May 1996
TELEWEST COMMUNICATIONS PLC
and
CIBC WOOD GUNDY PLC
as Security Trustee
---------------------------------------------
DEED OF SUBORDINATION
---------------------------------------------
THIS DEED OF SUBORDINATION is dated 22 May, 1996 and made
BETWEEN:
(1) TELEWEST COMMUNICATIONS PLC (Company No. 2983307) whose registered office
is at ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the
"Creditor"); and
(2) CIBC WOOD GUNDY PLC of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ in its
capacity as Security Trustee for the Beneficiaries (as defined below) (in
this capacity, the "Security Trustee").
WHEREAS
55. By an agreement dated 22 May, 1996 (as from time amended, varied, extended,
restated or replaced the "Loan Agreement") and made between Telewest
Communications Networks Limited as Borrower (1), certain Subsidiaries of
the Borrower (2), certain Associated Partnerships of the Borrower (3), the
Arrangers (4), the banks and financial institutions whose names and
addresses are set out in Part D of Schedule 1 thereto, (5) the Agent (6)
and the Security Trustee (7), the Banks agreed, upon and subject to the
terms and conditions of the Loan Agreement, to make available to the
Borrower a revolving credit facility converting to a reducing term loan of
up tooe1,200,000,000.
56. The execution of this Deed is one of the conditions precedent to the
obligation of each Bank to make its Commitment available under the Loan
Agreement.
NOW IT IS AGREED as follows:
57. Interpretation
57.1 Definitions
In this Deed, unless the context otherwise requires:
"Beneficiaries" has the meaning ascribed thereto in the Security Trust Deed;
"Collateral Instruments" means the Security Documents, any guarantees and any
other documents or instruments (including, without limitation, any other
document or instrument creating or evidencing a mortgage, charge (whether fixed
or floating), pledge, lien, hypothecation, assignment, trust arrangement or
security interest of any kind) which contain or evidence an obligation (with or
without security) to pay, discharge or be responsible directly or indirectly for
any of the Secured Liabilities under or pursuant to the Loan Agreement;
"Incapacity" means in relation to a person the death, bankruptcy, insolvency,
liquidation, dissolution, winding-up, administration, receivership,
amalgamation, reconstruction or other incapacity of that person whatsoever (and,
in the case of a partnership, includes the termination or change in the
composition of such partnership);
"Insolvency Event" means, in relation to the Borrower or any of its Subsidiaries
or Associated Partnerships (other than any Immaterial Group Entities) any of the
events or circumstances described in clause 13.1(h) to (n) inclusive of the Loan
Agreement;
"Insolvency Proceedings" means winding-up, dissolution, liquidation,
receivership, administration, voluntary arrangements, proceedings under Title 11
of the United States Bankruptcy Code or any proceedings in any jurisdiction
which correspond with or have an effect equivalent to any of the same;
"Liabilities" means all obligations and liabilities whatsoever, whether express
or implied, whether as principal or surety, whether present or future, actual or
contingent, whether joint or several, in whatever style, name or form and in
whatever currency denominated;
"Permitted Amounts" means all amounts which the Borrower or
any of its Subsidiaries are permitted to pay pursuant to
Clauses 11.1(l), (m) and (n) of the Loan Agreement;
"Secured Liabilities" means all obligations, present, future or contingent,
joint or several, of any TCN Entity pursuant to the Loan Agreement and/or any
Security Document; and
"Security Provider" means any person who has or may at any time hereafter enter
into a Collateral Instrument.
57.2 Defined Expressions
Unless the context requires or unless otherwise defined in this Deed, words and
expressions defined in the Loan Agreement shall have the same meaning when used
in this Deed (including its Recitals).
57.3 Headings
Clause headings are inserted for convenience of reference only and shall be
ignored in the interpretation of this Deed.
57.4 Construction of certain terms
In this Deed, unless the context otherwise requires:
(a) references to clauses are to be construed as references to the clauses of
this Deed;
(b) reference to (or to any specified provision of) this Deed or any other
document shall be construed as references to this Deed, that provision or
that document as in force for the time being and as amended in accordance
with the terms thereof or, as the case may be, with the agreement of the
relevant parties and (where such consent is, by the terms of this Deed or
the relevant document, required to be obtained as a condition to such
amendment being permitted) the prior written consent of the Agent, the
Security Trustee, all of the Banks, the Majority Banks or the Beneficiaries
(as the case may be);
(c) references to a "regulation" include any present or future regulation,
rule, directive, requirement, request or guideline (whether or not having
the force of law) of any agency, authority, central bank or government
department or any self-regulatory or other national or supra-national
authority;
(d) words importing the plural shall include the singular and vice versa;
(e) references to a time of day are to London time;
(f) references to a person shall be construed as including references to an
individual, firm, company, corporation, unincorporated body of persons or
any State or any agency thereof;
(g) reference to "set-off" includes retention, compensation and balancing of
accounts under Scots law;
(h) references to a "guarantee" include references to an indemnity or other
assurance against financial loss including, without limitation, an
obligation to purchase assets as a consequence of default by any other
person to pay any Indebtedness and "guaranteed" shall be construed
accordingly; and
(i) references to any enactment shall be deemed to include references to such
enactment as replaced, amended or reenacted from time to time.
57.5 Effect as a deed
This Deed is intended to take effect as a deed notwithstanding that the Security
Trustee and/or the Creditor may have executed it under hand only.
57.6 Successors and assigns
The expressions "Beneficiary", "Security Trustee", "Borrower", "TCN Entity",
"Agent", "Arranger", "Bank", "Security Provider" and "Creditor" include, where
the context admits, their respective successors, permitted assigns, in the case
of the Banks, their Assignees and Substitutes, in the case of the Security
Trustee such other person as may from time to time be appointed as Security
Trustee for the Beneficiaries pursuant to the terms of the Security Trust Deed
and, in the case of the Agent, such other person as may from time to time be
appointed as Agent pursuant to clause 18.11 of the Loan Agreement.
58. Restricted Payments
The Creditor undertakes with the Security Trustee that so long as any of the
Secured Liabilities remain outstanding:
(a) it will not, and will procure that none of its Subsidiaries or Associated
Partnerships (which are not TCN Entities) demand, take, accept or receive,
by set-off or in any other manner, any Restricted Payment other than a
Permitted Amount;
(b) it will not, and will procure that none of its Subsidiaries or Associated
Partnerships (which are not TCN Entities) take, accept, receive or permit
to exist any Encumbrance over all or any part of the present or future
undertakings, assets, rights or revenues of any member of the TCN Group to
secure any Restricted Payment;
(c) it will not, and will procure that none of its Subsidiaries, or Associated
Partnerships (which are not TCN Entities) assign, transfer, create any
Encumbrance over or otherwise dispose of any Restricted Payment other than
a Permitted Amount; and
(d) it will not, and will procure that none of its Subsidiaries or Associated
Partnerships (which are not TCN Entities) commence any proceedings against
any member of the TCN Group in respect of any Restricted Payment,
(including, without limitation, any action or step with a view to
winding-up any member of the TCN Group).
59. Subordination
59.1 Insolvency Events
Upon an Insolvency Event occurring in respect of any TCN Entity:
(a) the claims of the Creditor in respect of any Restricted Payment owed by
that TCN Entity other than any Permitted Amounts shall be postponed in all
respects to the Secured Liabilities;
(b) the Creditor shall not, unless otherwise directed by the
Security Trustee, prove in any Insolvency Proceedings for any
Restricted Payment, other than the Permitted Amounts until the
Secured Liabilities have first been irrevocably paid or
discharged in full (and for all purposes any payment or
distribution of assets (whether in cash, property, securities
or otherwise) received by the Security Trustee or any of the
Beneficiaries shall only be taken to discharge the Secured
Liabilities to the extent of the actual amount received);
(c) if the Creditor is directed by the Security Trustee to
prove in any Insolvency Proceedings for all or any part of any
Restricted Payment, other than any Permitted Amounts then it
shall act in accordance with such directions and shall procure
that any resultant payment or distribution of assets (whether
in cash, property, securities or otherwise) shall be made by
the liquidator of any member of the TCN Group or, as the case
may be, any other person making the payment or distribution of
assets (whether in cash, property, securities or otherwise) to
the Security Trustee to the extent necessary to repay all the
Secured Liabilities in full; and
(d) the Creditor hereby irrevocably authorises and directs the Security Trustee
to submit any proof and/or to instruct the relevant liquidator or other
person to make any payment or distribution of assets (whether in cash,
property, securities or otherwise) in accordance with the foregoing.
59.2 Payments contrary to this Deed
In the event of:
(a) any payment or distribution of assets (whether in cash, property,
securities or otherwise) being made to or right of set-off being exercised
by the Creditor contrary to the provisions of this Deed; or
(b) any payment or distribution of assets (whether in cash, property,
securities or otherwise) being made by a liquidator or any other person to
the Creditor rather than to the Security Trustee as required by clause 3.1,
the Creditor shall forthwith pay to the Security Trustee an amount equal to the
payment or distribution of assets (whether in cash, property, securities or
otherwise) which shall have been so received by it up to an aggregate amount
equal to the Secured Liabilities or, as the case may be, in the case of set-off,
an amount equal to the sum set-off up to an aggregate amount equal to the
Secured Liabilities and, until such payment to the Security Trustee, the
Creditor will hold such sums on trust for the Security Trustee (provided that,
for the avoidance of doubt, this clause 3.2 shall not oblige the Creditor to
create any Encumbrance in favour of the Security Trustee over such money or
other property) and any sums so paid to the Security Trustee shall be applied in
accordance with the terms of the Security Trust Deed.
59.3 Subrogation
If the Secured Liabilities are partially paid out of any proceeds received in
respect of or on account of any Restricted Payment, the Creditor will not be
subrogated to the Secured Liabilities so paid (or any Collateral Instrument)
until the Secured Liabilities have been irrevocably paid in full.
60. Continuing Obligations
60.1 Continuing obligations
The obligations of the Creditor hereunder shall be continuing obligations and
shall be and remain fully effective until this Deed is terminated following the
discharge in full of the Secured Liabilities notwithstanding any intermediate
reduction or settlement of the Secured Liabilities or any part thereof and
notwithstanding any increase in or variation of the Secured Liabilities or any
variation, extension or supplement to the Loan Agreement or any Security
Documents. This Deed shall terminate immediately upon the discharge in full of
the Secured Liabilities and no Beneficiary being under any obligation to permit
any Secured Liabilities to become outstanding.
60.2 Statements of accounts
Any statement of account of any TCN Entity, signed as correct by an officer of
the Security Trustee, showing the amount of the Secured Liabilities shall be
prima facie evidence of the amount of the Secured Liabilities.
60.3 Continuing security and other matters
This Deed shall:
(a) secure the ultimate balance from time to time of the Secured Liabilities
and shall be a continuing security, notwithstanding any settlement of
account or other matter whatsoever;
(b) be in addition to any present or future Collateral Instrument, right or
remedy held by or available to the Security Trustee, the Beneficiaries or
any of them; and
(c) not be in any prejudiced by the existence of any such Collateral
Instrument, rights or remedies or by the same becoming wholly or in part
void, voidable or unenforceable on any ground whatsoever or by the Security
Trustee, the Beneficiaries or any of them dealing with, exchanging, varying
or failing to perfect or enforce any of the same or giving time for payment
or indulgence or compounding with the Borrower or any Security Provider.
60.4 Liability unconditional
The liability of the Creditor shall not be affected, discharged or reduced by
reason of:
(a) the Incapacity or any change in the name, style or
constitution of the Borrower or any other Security Provider;
(b) the Security Trustee, the Beneficiaries or any of them granting any time,
indulgence or concession to, or compounding with, discharging, releasing or
varying the liability of, the Borrower or any other Security Provider or
renewing, determining, varying or increasing any accommodation, facility or
transaction or otherwise dealing with the same in any manner whatsoever or
concurring in, accepting or varying any compromise, arrangement or
settlement or omitting to claim or enforce payment from the Borrower or any
other Security Provider; or
(c) any act or omission which but for this provision might operate to exonerate
the Creditor.
60.5 Collateral Instruments
None of the Beneficiaries or the Security Trustee shall be obliged to make any
claim or demand on the Borrower or any other Security Provider or to resort to
any Collateral Instrument or other means of payment now or hereafter held by or
available to them or it before enforcing this Deed and no action taken or
omitted by the Security Trustee or any Beneficiary in connection with any such
Collateral Instrument or other means of payment shall discharge, reduce,
prejudice or affect the liability of the Creditor under this Deed nor shall the
Security Trustee or any Beneficiary be obliged to account for any money or other
property received or recovered in consequence of any enforcement or realisation
of any such Collateral Instrument or other means of payment.
60.6 Suspense accounts
Any money received in connection with this Deed (whether before or after any
Incapacity of the Borrower, any other Security Provider or the Creditor) may be
placed to the credit of an interest bearing suspense account with a view to
preserving the rights of the Security Trustee and each Beneficiary to prove for
the whole of their respective claims against the Borrower or any other person
liable or may be applied in or towards satisfaction of such of the Secured
Liabilities as the Security Trustee may from time to time determine in
accordance with the terms of the Security Trust Deed (which determination shall,
save in the case of manifest error, be conclusive). Interest shall accrue on
monies from time to time standing to the credit of any suspense account at the
rate agreed between the Security Trustee and the Creditor at the relevant time
or, failing such agreement, the Security Trustee's overnight deposit rate from
time to time and shall be credited to such suspense account or may be applied in
or towards satisfaction of such of the Secured Liabilities as the Security
Trustee may from time to time determine in accordance with the terms of the
Security Trust Deed (which determination shall, save in the case of manifest
error, be conclusive).
60.7 Settlements conditional
Any release, discharge or settlement between the Creditor and the Security
Trustee or any of the Beneficiaries shall be conditional upon no security,
disposition or payment to the Security Trustee, or any of the Beneficiaries by
the Borrower or any other person liable being void, set aside or ordered to be
refunded pursuant to any enactment or law relating to bankruptcy, liquidation,
administration or insolvency or for any other reason whatsoever and if such
condition shall not be fulfilled the Security Trustee shall be entitled to
enforce this Deed subsequently as if such release, discharge or settlement had
not occurred and any such payment had not been made.
60.8 Retention of this Deed
Notwithstanding any other provision of this Deed, this Deed shall not be
released, the Security Trustee shall be entitled to retain this Deed and all the
provisions of this Deed shall remain in full force and effect until the
irrevocable payment or discharge in full of all the Secured Liabilities.
Following the irrevocable payment or discharge in full of all the Secured
Liabilities, the Security Trustee shall forthwith release this Deed (and to
effect or evidence such release shall execute such documents (at the cost of the
Creditor) as the Creditor may reasonably require) and deliver this Deed,
together with such documents, to the Creditor.
61. Representations and Warranties
61.1 Representation and warranties
The Creditor represents and warrants to the Security Trustee that:
(a) Due Incorporation
it is duly incorporated, validly existing as a limited liability company
and has all requisite corporate power and authority to own its property and
other assets and to carry on its business as it is now being conducted and
is authorised to do business in each jurisdiction where such qualification
or authorisation is required, except where the failure to so qualify, to be
so authorised or to be in good standing would not have a material adverse
effect on the ability of the Creditor to perform any of its obligations
under this Deed;
(b) Power of the Creditor
the Creditor has all requisite power to execute, deliver and perform its
obligations under this Deed and compliance has been made with all necessary
requirements and all necessary action has been taken to authorise the
execution, delivery and performance of the same;
(c)
Binding obligations
this Deed constitutes valid and legally binding obligations of the Creditor
enforceable in accordance with its terms subject to the qualifications
contained in the legal opinions referred to in schedule 3 to the Loan
Agreement which relate to this Deed and for this purpose any statement
contained in the qualifications to any such legal opinion which relate to
this Deed that no opinion is given or expressed in relation to any
particular matter shall be deemed to be a qualification of such opinion as
regards such matter;
(d) No conflict with other obligations
the execution and delivery of, the performance of its obligations under,
and compliance with the provisions of, this Deed by the Creditor, will not
(i) contravene any existing applicable law, statute, rule or regulation or
any judgment, decree or permit to which the Creditor is subject except
where such contravention would not or would not be likely to have a
material adverse effect on the ability of the Creditor to perform any of
its obligations under or otherwise to comply with the terms of this Deed,
(ii) contravene or conflict with any provision of the Memorandum and
Articles of Association of the Creditor, (iii) breach any term of the
Licences or the Necessary Authorisations, (iv) conflict with, or result in
any breach of any of the terms of, or constitute a default under, any
agreement to which the Creditor is a party or is subject or by which it or
any of its property is bound except where such breach or default would not
or would not be likely to have a material adverse effect on the ability of
the Creditor to perform any of its obligations under or otherwise to comply
with the terms of this Deed or (v) result in the creation or imposition of
or oblige the Creditor to create any Encumbrance (other than those created
by the Security Documents) on any of the Creditor's material undertakings,
assets, rights or revenues;
(e) No litigation
no litigation, arbitration or administrative proceeding is taking place,
pending or, to the knowledge of the officers of the Creditor threatened
against the Creditor which would or is reasonably likely to have a material
adverse effect on the ability of the Creditor to fulfil its obligations
under this Deed;
(f) No filing required
it is not necessary to ensure the legality, validity, enforceability or
admissibility in evidence of this Deed that this Deed or any other
instrument be notarised, filed, recorded, registered or enrolled in any
court or public office in the United Kingdom or that any stamp,
registration or similar tax or charge be paid in the United Kingdom on or
in relation to this Deed;
(g) Choice of law
the choice by the Creditor of English law to govern this
Deed is valid and binding;
(h)
Consents obtained
every consent, authorisation, licence or approval of, or registration with
or declaration to, governmental or public bodies or authorities or courts
required by the Creditor (i) to authorise the execution and delivery of
this Deed or the performance by the Creditor of its obligations under this
Deed or (ii) to ensure the validity, enforceability or admissibility in
evidence of this Deed or the performance by the Creditor of its obligations
under this Deed has been obtained or made and is in full force and effect
and there has been no material default in the observance of the conditions
or restrictions (if any) imposed in, or in connection with, any of the same
which would, in any such case, adversely affect the execution, delivery,
validity, enforceability or admissibility in evidence of this Deed or the
performance by the Creditor of its obligations under this Deed.
61.2 Repetition
The representations and warranties in clause 5.1 shall be deemed to be repeated
by the Creditor in respect of itself and its Subsidiaries on and as of each
Interest Payment Date and the date on which each Revolving Advance is made under
the Loan Agreement.
62. Covenants
62.1 Covenants by Telewest
The Creditor hereby undertakes with the Security Trustee that from the date of
this Deed and so long as any of the Secured Obligations remain outstanding or
any Beneficiary remains under any commitment to any TCN Entity:
(a) New Debt
all Borrowed Money incurred or assumed by the Creditor after the date of
the Loan Agreement (herein "New Debt") will have a contractual maturity
date falling not earlier than 1 January 2007 (and will be on terms which
would not reasonably be considered by the Agent (acting on the instructions
of the Majority Banks) to be materially more onerous than the terms
currently applying to existing Senior Securities) except for:
(i) Finance Leases where the asset in question has been sub-Finance Leased
by Telewest to a TCN Entity and such sub-Finance Lease falls within
paragraph (v) of the definition of Permitted Borrowings;
(ii) Borrowed Money where (a) the lender is a TCN Entity and (b) the
relevant payment by the TCN Entity in question is a Permitted Payment;
(iii)Borrowed Money comprising a guarantee or indemnity of any obligations
of a TCN Entity;
(iv) Borrowed Money resulting from a refinancing of any Borrowed Money of
the Creditor outstanding at the date hereof provided that the
principal amount thereof is not increased, the term thereof is not
decreased and the terms and conditions thereof taken as a whole
(taking into account the pricing, covenants (unless Telewest shall
have entered into covenants in substantially the same form with or for
the benefit of the Banks) and term) are not materially more onerous
than the terms applying to the existing Borrowed Money;
(v) any hedging entered into (1) in compliance with paragraph (g) below,
(2) in connection with any Borrowed Money falling within paragraph
(iv) of this clause 6.1(a) or (3) in connection with any Borrowed
Money having a contractual maturity date falling not earlier than 1
January 2007;
(vi) Borrowed Money comprising a guarantee or indemnity issued or to be
issued by the Creditor in favour of a bank in relation to a bond
issued by such bank in favour of any regulatory body or other person
pursuant to any Telecommunications and Cable Laws in an aggregate
amount not exceeding oe1,250,000; and
(vii) any Borrowed Money not within sub- paragraphs (i) to (vi) (inclusive)
above and not exceeding in aggregate oe5,000,000;
(b) Rolling Gateway
the Creditor will not incur or assume any Borrowed Money after the date
hereof (other than Borrowed Money referred to in paragraphs (i) to (v) of
clause 6.1(a)) unless at the time of incurring or assuming the same and
immediately following such incurrence or assumption the ratio of Total
Telewest Group Debt to Consolidated Annualised Telewest Group Net Operating
Cash Flow is equal to or less than 4.0:1;
(c) Change to Senior Securities
to ensure that there is no change to the terms and conditions of the Senior
Securities which would reasonably be considered to be materially adverse by
the Agent (acting on the instructions of the Majority Banks);
(d) Nature of Acquisitions
not to make any acquisitions of any companies or businesses other than
those engaged in the cable/telecommunications business, any television
and/or licensing business or any programming guide or telephone directory
business.
The above prohibition will cease and shall have no further effect on the
first occasion upon which the ratio of Total Telewest Group Debt to
Consolidated Annualised Telewest Group Operating Cash Flow is or is less
than 5 to 1;
(e) Adequacy of finance
to ensure that for a period of at least 18 months following the acquisition
by any Restricted Person of a cable television and/or telecommunications
franchise adequate monies are available to the relevant Restricted Person
to finance the working capital and capital expenditure requirements of such
franchise;
(f) Financial Information
to provide to the Agent copies of all circulars, statements and other
information about the Creditor at the time that the same is made generally
available by the Creditor to the public or to the shareholders of the
Creditor, including, without limitation, Forms 10K and 10Q (and any
equivalent replacement thereof) for the Telewest Group;
(g) Hedging
to maintain foreign exchange arrangements in relation to the Senior
Securities which cap the Sterling amount of the liabilities under the
Senior Securities at no more than the maximum sterling amount payable under
the hedging arrangements in place at the date hereof in relation to the
Senior Securities;
(h) Borrower to be wholly-owned
to ensure that the Borrower remains its wholly-owned and
controlled Subsidiary.
63. Benefit of this Deed
63.1 Benefit and burden
This Deed shall be binding upon the Creditor and its successors in title and
shall enure for the benefit of the Security Trustee (and any successor Security
Trustee appointed pursuant to the provisions of the Security Trust Deed) and
their respective successors for the benefit of the Beneficiaries in accordance
with the provisions of the Security Trust Deed.
63.2 Changes in constitution or reorganisation of Banks
For the avoidance of doubt and without prejudice to the provisions of clause
7.1, this Deed shall remain binding on the Creditor notwithstanding any change
in the constitution of the Security Trustee or any of the Beneficiaries or their
or its absorption in, or amalgamation with, or the acquisition of all or part of
their or its undertaking or assets by, any other person, or any reconstruction
or reorganisation of any kind, to the intent that this Deed shall remain valid
and effective in all respects in favour of the Security Trustee (and any
successor Security Trustee appointed pursuant to the provisions of the Security
Trust Deed and their respective successors in title) as trustee for the
Beneficiaries and any assignee, transferee or other successor in title of a
Beneficiary.
63.3 No assignment by the Creditor
The Creditor may not assign or transfer any of its rights or obligations under
this Deed.
63.4 The Security Trust Deed
The Creditor and the Security Trustee hereby acknowledge that the covenants of
the Creditor contained in this Deed and the rights constituted by this Deed and
all moneys, property and assets paid to, or held, received or recovered by the
Security Trustee pursuant to or in connection with this Deed are held by the
Security Trustee subject to and on the terms of the trusts declared in the
Security Trust Deed.
64. Notices and Other Matters
64.1 Notices
Every notice, request, demand or other communication under this Deed shall be
given in accordance with clause 19.1(a) and (b) of the Loan Agreement and shall
be sent to the Creditor at its address set out above (facsimile number: 01483
750901) or to the Security Trustee at its address or telex or facsimile number
set out in clause 19.1(c)(ii) of the Loan Agreement or to such other address or
such telex or facsimile number as is notified by one party to this Deed to the
other.
64.2 No implied waivers, remedies cumulative
No failure or delay on the part of the Security Trustee or the Beneficiaries (or
any of them) to exercise any power, right or remedy under this Deed shall
operate as a waiver thereof, nor shall any single or partial exercise by the
Security Trustee or the Beneficiaries (or any of them) of any power, right or
remedy preclude any other or further exercise thereof or the exercise of any
other power, right or remedy. The remedies provided in this Deed are cumulative
and are not exclusive of any remedies provided by law.
64.3 Other Collateral Instruments
The Creditor agrees to be bound by this Deed notwithstanding that any other
person intended to execute or to be bound by any Collateral Instrument may not
do so or may not be effectively bound and notwithstanding that such other
Collateral Instrument may be determined or be or become invalid or unenforceable
against any other person, whether or not the deficiency is known to the Security
Trustee or any of the Beneficiaries.
64.4 Severability
Each of the provisions of this Deed is severable and distinct from one another
and if at any time one or more of such provisions is or becomes illegal, invalid
or unenforceable under any applicable law the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
65. Law and Jurisdiction
65.1 Governing Law
This Deed is governed by and shall be construed in accordance with English law.
IN WITNESS whereof the parties to this Deed have caused this Deed to be duly
executed on the date first above written.
EXECUTED by
Telewest COMMUNICATIONS plc
By:
.............................
Director
..............................
Director/Secretary
Signed for and on behalf of )
CIBC Wood Gundy PLC )
by: )
SCHEDULE 8
Existing Encumbrances
Part I
Company Encumbrance
66. Theseus No. 1 Limited (i) Partnership Interest
Accession Agreement dated 21st November, 1994 with
The Toronto-Dominion Bank relating to a Pledge and
Security Agreement dated 4 October, 1993 relating
to a pledge of partnership interest in Avon Cable
Limited Partnership or London South Cable
Partnership in favour of The Toronto-Dominion
Bank.
66.1 Partnership Interest Accession Agreement
dated 21st November, 1994 with Canadian
Imperial Bank of Commerce relating to a Pledge
and Security Agreement dated 13 June, 1994
relating to a pledge of partnership interest
in Edinburgh Cable Limited Partnership.
66.2 Deed of Adherence dated 21st November, 1994
with The Toronto-Dominion Bank.
66.3 Deed of Adherence dated 21st November, 1994
with Canadian Imperial Bank of Commerce.
66.4 Deed of Subordination dated 21st November,
1994 with The Toronto-Dominion Bank.
66.5 Deed of Subordination dated 21st November,
1994 with Canadian Imperial Bank of Commerce.
67. Theseus No. 2 Limited (i) Partnership Interest
Accession Agreement dated 21st November, 1994 with
The Toronto-Dominion Bank relating to a Pledge and
Security Agreement dated 4 October, 1993 relating
to a pledge of partnership interest in Avon Cable
Limited Partnership or London South Cable
Partnership in favour of The Toronto-Dominion
Bank.
67.1 Partnership Interest Accession Agreement
dated 21st November, 1994 with Canadian
Imperial Bank of Commerce relating to a Pledg
and Security Agreement dated 13 June, 1994
relating to a pledge of partnership interest
in Edinburgh Cable Limited Partnership.
67.2 Deed of Adherence dated 21st November, 1994
with The Toronto-Dominion Bank.
67.3 Deed of Adherence dated 21st November, 1994
with Canadian Imperial Bank of Commerce.
67.4 Deed of Subordination dated 21st November,
1994 with The Toronto-Dominion Bank.
67.5 Deed of Subordination dated 21st November,
1994 with Canadian Imperial Bank of Commerce.
68. Telewest Holdings Limited (i) Pledge over shares
in Telewest Scotland Holdings Limited dated 23 May
and 13 June 1994 in favour of Canadian Imperial
Bank of Commerce assigned by TCI/US WEST Cable
Communications Inc. to Telewest Holdings Limited.
68.1 Assignation of share pledge dated 21st
November, 1994 with Canadian Imperial Bank of
Commerce.
68.2 Mortgage of Shares dated 21st November, 1994
with The Toronto-Dominion Bank.
68.3 Deed of Subordination dated 21st November,
1994 in favour of The Toronto-Dominion Bank.
68.4 Deed of Subordination dated 21st November,
1994 in favour of Canadian Imperial Bank of
Commerce.
69. United Artists Communications
(Nominees) Limited
(xv) Mortgage of Shares dated 4th October,
1993 with The Toronto-Dominion Bank.
(ii) Charge over Shares dated 4 October, 1993
in United Artists Communications (Avon)
Limited in favour of The
Toronto-Dominion Bank.
(iii) Deed of Subordination dated 4 October,
1993 with The Toronto-Dominion Bank.
70. London South Cable Partnership (i)
Debenture dated 4 October, 1993 in
favour of The Toronto-Dominion Bank.
71. Avon Cable Limited Partnership (i)
Debenture dated 4 October, 1993 in
favour of The Toronto-Dominion Bank.
72. United Artists Communications (i)
Debenture dated 4 October, 1993 in
favour of (London South) Limited The
Toronto-Dominion Bank.
(ii) Deed of Subordination dated 4 October,
1993 with The Toronto-Dominion Bank.
73. United Artists Communications (i)
Debenture dated 4 October, 1993 in
favour of Communications (Avon) Limited
The Toronto-Dominion Bank.
(ii) Deed of Subordination dated 4 October,
1993 with The Toronto-Dominion Bank.
74. TCI/US WEST Cable (i) Charge over Shares
dated 4 October, 1993 in United Artists
Communications (Avon) Limited in favour
of The Toronto- Dominion Bank.
(ii) Pledge and Security Agreement dated 4
October, 1993 with The Toronto-Dominion
Bank.
(iii) Deed of Subordination dated 4 October,
1993 with The Toronto-Bank (as partner
of Avon Cable Limited Partnership).
(iv) Pledge and Security Agreement dated 13
June, 1994 in favour of Canadian
Imperial Bank of Commerce.
(v) Deed of Subordination dated 13 June,
1994 with Canadian Imperial Bank of
Commerce.
75. The Cable Equipment Store Limited (i)
Deed of Subordination dated 4 October,
1993 with The Toronto-Dominion Bank.
75.1 Mortgage of Shares dated 4 October, 1993
with The Toronto-Dominion Bank.
75.2 Deed of Subordination dated 13 June,
1994 with Canadian Imperial Bank of
Commerce.
76. Avon Cable Investments Limited (i)
Pledge and Security Agreement dated 4
October, 1993 with The Toronto-Dominion
Bank.
(ii) Deed of Subordination dated 4 October,
1993 with The Toronto-Dominion Bank (as
partner of Avon Cable Limited
Partnership).
(iii) Legal Mortgage dated 25 February, 1994
with The Toronto-Dominion Bank.
(iv) Debenture dated 4 October, 1993 with The
Toronto-Dominion Bank.
77. Crystal Palace Radio Limited (i) Pledge
and Security Agreement dated 4 October,
1993 with The Toronto-Dominion Bank.
(ii) Deed of Subordination dated 4 October,
1993 with The Toronto-Dominion Bank (as
partner of London South Cable
Partnership).
(iii) Debenture dated 8 March, 1990 in favour
of The Toronto-Dominion Bank.
(iv) Debenture dated 4 October, 1993 in
favour of The Toronto-Dominion Bank.
(v) Mortgage of Shares dated 6 April, 1994
in favour of The Toronto-Dominion Bank.
78. United Cable (London South) (i) Pledge
and Security Agreement dated 4 October
Limited Partnership 1993 with The
Toronto- Dominion Bank.
78.1 Deed of Subordination dated 4 October,
1993 with The Toronto-Dominion Bank (as
partner of London South Cable
Partnership).
78.2 Mortgage of Shares dated 6 April, 1994
in favour of The Toronto-Dominion Bank.
79. Telewest Communications (i) Deed of
Subordination dated 4 October, 1993 with
The Toronto-Dominion Bank.
(ii) Deed of Subordination dated 13 June,
1994 with Canadian Imperial Bank of
Commerce.
80. Edinburgh Cable Limited Partnership (i)
Guarantee and Debenture dated 13 June,
1994 in favour of Canadian Imperial Bank
of Commerce.
81. Telewest Scotland Holdings Limited (i)
Debenture dated 13 June, 1994 in favour
of Canadian Imperial Bank of Commerce.
(ii) Bond and floating charge dated 13 June,
1994 in favour of Canadian Imperial Bank
of Commerce.
(iii) Pledge over shares dated 21 September
and 12 October 1994 in Tayside Cable
Systems Limited, Kingdom Cablevision
Limited, Scotcable (Motherwell) Limited,
Scotcable (Cumbernauld) Limited,
Scotcable (Dumbarton) Limited, Cable
North (Forth District) Limited in favour
of Canadian Imperial Bank of Commerce.
(iv) Pledge over shares dated 21 September
and 12 October, 1994 in United Artists
Communications (Scotland) Limited in
favour of Canadian Imperial Bank of
Commerce.
82. Tayside Cable Systems Limited (i)
Debenture dated 13 June, 1994 in favour
of Canadian Imperial Bank of Commerce.
(ii) Bond and floating charge dated 13 June,
1994 in favour of Canadian Imperial Bank
of Commerce.
(iii) Standard Security dated 13 June, 1994
and recorded 24 June, 1994 in relation
to the property at Speygate/Canal
Street, Perth.
(iv) Pledge of shares in Dundee Cable and
Satellite Limited and Perth Cable
Television Limited dated 23 May and 13
June, 1994 in favour of Canadian
Imperial Bank of Commerce.
83. Kingdom Cablevision Limited (i)
Debenture dated 13 June, 1994 in favour
of Canadian Imperial Bank of Commerce.
(ii) Bond and floating charge dated 13 June,
1994 in favour of Canadian Imperial Bank
of Commerce.
84. Scotcable (Motherwell) Limited (i)
Debenture 13 June, 1994 in favour of
Canadian Imperial Bank of Commerce.
(ii) Bond and floating charge dated 13 June,
1994 in favour of Canadian Imperial Bank
of Commerce.
85. Dundee Cable and Satellite Limited (i)
Debenture dated 13 June, 1994 in favour
of Canadian Imperial Bank of Commerce.
(ii) Bond and floating charge dated 13 June,
1994 in favour of Canadian Imperial Bank
of Commerce.
86. Perth Cable Television Limited (i)
Debenture dated 13 June, 1994 in favour
of Canadian Imperial Bank of Commerce.
(ii) Bond and floating charge dated 13 June,
1994 in favour of Canadian Imperial Bank
of Commerce.
87. Scotcable (Cumbernauld) Limited (i)
Debenture dated 13 June, 1994 in favour
of Canadian Imperial Bank of Commerce.
(ii) Bond and floating charge dated 13 June,
1994 in favour of Canadian Imperial Bank
of Commerce.
88. Scotcable (Dumbarton) Limited (i)
Debenture dated 13 June, 1994 in favour
of Canadian Imperial Bank of Commerce.
(ii) Bond and floating charge dated 13 June,
1994 in favour of Canadian Imperial Bank
of Commerce.
89. Cable North (Forth District) Limited (i)
Debenture dated 13 June, 1994 in favour
of Canadian Imperial Bank of Commerce.
(ii) Bond and floating charge dated 13 June,
1994 in favour of Canadian Imperial Bank
of Commerce.
90. United Artists Communications (i)
Debenture dated 13 June, 1994 in favour
of (Scotland) Limited Canadian Imperial
Bank of Commerce.
(ii) Bond and floating charge dated 13 June,
1994 in favour of Canadian Imperial Bank
of Commerce.
(iii) Standard Securities dated 13 June, 1994
and recorded 24 June, 1994 in relation
to properties at ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇.
(iv) Pledge of shares in Capital City
Cablevision Limited, Edinburgh
Cablevision Limited and Hieronymous
Limited dated 23 May and 13 June, 1994
in favour of Canadian Imperial Bank of
Commerce.
91. Capital City Cablevision Limited (i)
Debenture dated 13 June, 1994 in favour
of Canadian Imperial Bank of Commerce.
(ii) Bond and floating charge dated 13 June,
1994 in favour of Canadian Imperial Bank
of Commerce.
92. Edinburgh Cablevision Limited (i)
Debenture dated 13 June, 1994 in favour
of Canadian Imperial Bank of Commerce.
(ii) Bond and floating charge dated 13 June,
1994 in favour of Canadian Imperial Bank
of Commerce.
93. Hieronymous Limited (i) Debenture dated
13 June, 1994 in favour of Canadian
Imperial Bank of Commerce.
(ii) Bond and floating charge dated 13 June,
1994 in favour of Canadian Imperial Bank
of Commerce.
94. Edinburgh Cable Limited Partnership (i)
Debenture dated 13 June, 1994 in favour
of Canadian Imperial Bank of Commerce as
partner of the partnership created by
the Edinburgh Cable Joint Venture
Agreement.
Part II
Company/Partnership Encumbrance
95. United Artists Communications (i)
Mortgage of deposited moneys dated 21st
(South East) Limited January, 1994 with
Electricity Supply Nominees Limited.
95.1 Deed of Variation and Further Charge
dated 26th June, 1995 with Electricity
Supply Nominees Limited.
96. United Artists Communications (i) Legal
charge dated 9 October, 1991 in favour
(Avon) Limited of Barclays Bank Plc over
▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇.
97. United Artists Communications (i) Deed
of Charge over Credit Balance dated 3
(North East) Limited March, 1993 in
favour of Barclays Bank Plc.
98. United Artists Communications (i)
Mortgage dated 29 August, 1986 in favour
of (London South) Limited Singer &
▇▇▇▇▇▇▇▇▇▇▇ Limited over Communications
House, Croydon.
(ii) Mortgage dated 23 March, 1992 in favour
of National Westminster Bank Plc over
▇▇▇▇▇▇▇ Commercial Centre, New Malden.
99. Avon Cable Partnership (i) Mortgage
dated 4 October, 1993 in favour of
Barclays Bank Plc over ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
▇▇▇. Telewest Holdings Limited (i) Mortgage
of Shares in Cable London PLC dated 29
September, 1995 with Canadian Imperial
Bank of Commerce.
Part III
Company/Partnership Encumbrance
A. Scotcable (Motherwell) Limited Standard Security granted or to be
granted over premises at ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ in favour
of British Linen Bank Limited
SCHEDULE 9
Part A
The Avon Licences
Telecommunications Act 1984 Licence:
Licence Holder Licence Area Date of Grant
-------------- ------------ -------------
Telewest Avon 05.12.89
Communications (South
West) Limited
Broadcasting Act 1990 - Local Delivery Licence:
Licence Holder Licence Licence Date of Grant
-------------- No. Area -------------
--- ----
Telewest LDS005 Avon 16.10.91
Communications (South
West) Limited
Licence Holder Licence Licence Date of Grant
-------------- No. Area -------------
--- ----
Telewest LDS 037 Taunton 2.9.97
Communications and
(Taunton and Bridgewa
Bridgewater) Limited ter
Part B
The Cotswolds Licences
Telecommunications Act 1984 Licence:
Licence Holder Licence Area Date of Grant
-------------- ------------ -------------
Telewest Communications Cheltenham and 26.08.88
(Cotswolds) Limited Gloucester
Broadcasting Act 1990 - Local Delivery Licence:
Licence Holder Licence No. Licence Area Date of Grant
-------------- ----------- ------------ -------------
Telewest ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and 16.10.91
Communications Gloucester
(Cotswolds)
Limited
Part C
The London South Licences
Telecommunications ▇▇▇ ▇▇▇▇ Licence:
Licence Holder Licence Area Date Of Grant
-------------- ------------ -------------
Telewest Croydon 14.01.94
Communications Kingston and 08.05.90
(London South) Richmond 23.01.90
Limited Merton and ▇▇▇▇▇▇
Cable and Broadcasting ▇▇▇ ▇▇▇▇ - Prescribed Diffusion Service
Licences:
Licence Holder Licence Licence Date of Grant
-------------- No. Area -------------
--- ----
Telewest ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and 15.03.90
Communications ▇▇▇▇▇▇
(London South) PDSL109 Kingston 03.12.90
Limited and
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ - Local Delivery Licence:
Licence Holder Licence Licence Date of Grant
-------------- No. Area -------------
--- ----
Telewest ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 16.10.91
Communications
(London South)
Limited
Part D
The North East Licences
Telecommunications Act 1984 Licence:
Licence Holder L****************** 18.01.90
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
*******************
Motherwell, ▇▇▇▇▇▇▇▇
and East Kilbride
Cable and Broadcasting ▇▇▇ ▇▇▇▇ - Prescribed Diffusion Service
Licences:
Licence Holder Licence No. Licence Area Date of Grant
-------------- ----------- ------------ -------------
Telewest ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 03.12.90
Communications and Monkland
(Cumbernauld)
Limited
Telewest ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ 03.12.90
Communications
(Dumbarton)
Limited
Telewest ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ 03.12.90
Communications ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ 03.12.90
(Dundee & Perth)
Limited
Telewest ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ and 03.12.90
Communications ▇▇▇▇▇▇▇▇▇▇▇
(Falkirk)
Limited
Telewest ▇▇▇▇ ▇▇▇ Glenrothes and 03.12.90
Communications Kirkcaldy
(Glenrothes)
Limited
Telewest ▇▇▇▇ ▇▇▇ Motherwell, 03.12.90
Communications ▇▇▇▇▇▇▇▇ and
(Motherwell) ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ - Local Delivery Licence:
Licence Holder Licence No. Licence Area Date of Grant
-------------- ----------- ------------ -------------
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ 16.10.91
Communications
(Scotland) Limited
Licence Holder Licence No. Licence Area Date of Grant
-------------- ----------- ------------ -------------
Telewest LDS 038 East 29.7.97
Communications (East Lothian
Lothian and Fife)
Limited
Part F
The South East Licences
Telecommunications Act 1984 Licences:
Licence Holder Licence Area Date of Grant
-------------- ------------ -------------
Telewest Communications Basildon, 14.11.90
(South East) Limited Brentwood and
Chelmsford
Telewest Communications Chatham, 30.11.90
(South Thames Estuary) Gillingham,
Limited Gravesend,
Maidstone,
Northfleet,
Rochester and
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ - Local Delivery Licences:
Licence Holder Licence No. Licence Area Date of Grant
-------------- ----------- ------------ -------------
Telewest ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 16.10.91
Communications Brentwood and
(South East) Chelmsford
Limited
Telewest LDS007 Chatham, 16.10.91
Communications Gillingham,
(South Thames Gravesend,
Estuary) Limited Maidstone,
Northfleet,
Rochester and
Sittingbourne
Part G
The Midlands and North West Licences
Telecommunications ▇▇▇ ▇▇▇▇ Licences:
Licence Holder Licence Area Date of Grant
-------------- ------------ -------------
Telewest Communications Merseyside 14.10.89
(Liverpool) Limited
Telewest Communications North Liverpool 30.11.90
(Liverpool) Limited and Sefton
Telewest Communications St Helens and 08.12.90
(St Helens & Knowsley) Knowsley
Limited
Telewest Communications Wigan 14.11.90
(Wigan) Limited
Telewest Communications Central Lancashire 14.10.89
(Central Lancashire)
Limited
Telewest Communications Telford 12.04.91
(Telford) Limited
Telewest Communications Black Country 25.01.91
(Midlands) Limited
Telewest Communications Southport 19.12.96
(Southport) Limited
Telewest Communications Fylde and Wyre 19.12.96
(Fylde and Wyre)
Limited
Telewest Communications Worcester 25.9.93
(Worcester) Limited
Cable and Broadcasting ▇▇▇ ▇▇▇▇ - Prescribed Diffusion Service
Licences:
Licence Holder Licence No. Licence Area Date of Grant
-------------- ----------- ------------ -------------
Telewest ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 14.09.84
Communications
(Liverpool)
Limited
Telewest ▇▇▇▇ ▇▇▇ North 03.12.90
Communications Liverpool and
(Liverpool) Sefton
Limited
Telewest PDSL ▇▇▇ ▇▇. ▇▇▇▇▇▇ and 03.12.90
Communications Knowsley
(St Helens &
Knowsley)
Limited
Telewest PDSL 105 Wigan 03.12.90
Communications
(Wigan) Limited
Telewest ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ 17.10.89
Communications Lancashire
(Central
Lancashire)
Limited
Telewest ▇▇▇▇ ▇▇▇ Telford 03.12.90
Telecommunicatio
ns (Telford)
Limited
Telewest ▇▇▇▇ ▇▇▇ Black Country 03.12.90
Communications
(Midlands)
Limited
Telewest ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ 31.12.90
Communications
(Worcester)
Limited
Broadcasting ▇▇▇ ▇▇▇▇ - Local Delivery Licence:
Licence Holder Licence No. Licence Area Date of Grant
-------------- ----------- ------------ -------------
Telewest LDS 011 Fylde and Wyre 16.12.94
Communications
(Fylde & Wyre)
Limited
Licence Holder Licence No. Licence Area Date of Grant
-------------- ----------- ------------ -------------
Telewest LDS 029 Southport 19.1.98
Communications
(Southport)
Limited
Part H
The National Licence
Telecommunications Act 1984 Licence
Licence Holder Licence No. Licence Area Date of Grant
-------------- ----------- ------------ -------------
Telewest - Out of Area 14.1.97
Communications
plc
SCHEDULE 10
Principal Agreements
Part A
BT Interconnection Agreements
(i) First Supplemental Agreement dated 18 August 1997 between (1) Various
Operators (Telewest) and (2) British Telecommunications Plc;
(ii) Network Charge Control Supplementary Agreement dated 20 October 1997
between (1) Telewest Group and (2) British Telecommunications Plc;
(iii) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (Central Lancashire) Limited and (2) British
Telecommunications Plc relating to the Preston franchise;
(iv) Interconnection Agreement dated 26 July 1996 between (1) Telewest
Communications (Cotswolds) Limited and (2) British Telecommunications
Plc relating to the Cheltenham and Gloucester franchise;
(v) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Cumbernauld) Limited and (2) British
Telecommunications Plc;
(vi) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Dumbarton) Limited and (2) British Telecommunications
Plc;
(vii) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Dundee & Perth) Limited and (2) British
Telecommunications Plc relating to the Dundee and Broughty Ferry
franchise;
(viii) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Scotland) Limited and (2) British Telecommunications
Plc relating to the Edinburgh franchise;
(ix) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Falkirk) Limited and (2) British Telecommunications
Plc relating to the Falkirk and West Lothian franchise;
(x) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Glenrothes) Limited and (2) British Telecommunications
Plc relating to the Glenrothes, Kirkcaldy and Leven franchise;
(xi) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (Liverpool) Limited and (2) British Telecommunications
Plc relating to the Liverpool South franchise;
(xii) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (Liverpool) Limited and (2) British Telecommunications
Plc relating to the Liverpool North, Sefton and Bootle franchise;
(xiii) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (London South) Limited and (2) British
Telecommunications Plc relating to the Croydon franchise;
(xiv) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (London South) Limited and (2) British
Telecommunications Plc relating to the Kingston and Richmond
franchise;
(xv) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (London South) Limited and (2) British
Telecommunications Plc relating to the Merton and ▇▇▇▇▇▇ franchise;
(xvi) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (Midlands) Limited and (2) British Telecommunications
Plc relating to the ▇▇▇▇▇▇, Wolverhampton and Black Country
franchises;
(xvii) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Motherwell) Limited and (2) British Telecommunications
Plc relating to the Motherwell and ▇▇▇▇▇▇▇▇ franchise;
(xviii) Interconnection Agreement dated 1 September 1996 between (1) Telewest
Communications (North East) Limited and (2) British Telecommunications
Plc relating to the Newcastle and Gateshead franchise;
(xix) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Dundee & Perth) Limited and (2) British
Telecommunications Plc relating to the Perth and Scone franchise;
(xx) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (South Thames Estuary) Limited and (2) British
Telecommunications Plc relating to the Gravesend and Rochester
franchise;
(xxi) Interconnection Agreement dated 26 July 1996 between (1) Telewest
Communications (South West) Limited and (2) British Telecommunications
Plc relating to the Bristol, Bath and Weston franchise;
(xxii) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (South East) Limited and (2) British Telecommunications
Plc relating to Basildon and Southend franchise;
(xxiii) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (St Helens & Knowsley) Limited and (2) British
Telecommunications Plc;
(xxiv) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (Telford) Limited and (2) British Telecommunications
Plc;
(xxv) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (Wigan) Limited and (2) British Telecommunications Plc;
(xxvi) Multiple Systems Operator Agreement dated 23 December 1996 between (1)
British Telecommunications Plc and (2) SBC CableComms (UK) Limited
(renamed Telewest Communications (Midlands and North West) Limited);
(xxvii) Interconnection Agreement dated 15 January 1997 between (1) Telewest
Communications plc and (2) British Telecomunications Plc amending
(i)-(xxvi) above.
Part B
Sky Standard Cable Operator Agreements
(i) Standard Cable Operator Agreement dated 25 February 1993 made between Sky
Television Plc, British Sky Broadcasting Limited, Telewest Communications
Group Limited and certain other companies party thereto;
(ii) Standard Cable Operator Agreement dated 30 April 1995 made between British
Sky Broadcasting Limited, British Sky Broadcasting Group Plc, Telewest
Communications plc and the other companies party thereto as amended by all
or any of the following:
(a) letter from Telewest to BSkyB dated 27 June 1995,
(b) letter to British Sky Broadcasting Limited and British Sky
Broadcasting Group Plc from Telewest Communications plc
dated 25 May 1995, and
(c) undated letter from British Sky Broadcasting Limited and
British Sky Broadcasting Group Plc to Telewest
Communications Plc; and
(iii)Unsigned/undated agreement between British Sky Broadcasting Limited, Sky
Television Limited, SBC Cablecomms UK and certain other companies party
thereto.
The Borrower
SIGNED for and on behalf of )
Telewest COMMUNICATIONS ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
NETWORKS LIMITED )
The Original Charging Subsidiaries
SIGNED for and on behalf of each of
TELEWEST COMMUNICATIONS GROUP LIMITED
TELEWEST COMMUNICATIONS CABLE LIMITED
TELEWEST HOLDINGS LIMITED
TELEWEST PARLIAMENTARY HOLDINGS LIMITED
THESEUS NO. 1 LIMITED
THESEUS NO. 2 LIMITED
THE CABLE EQUIPMENT STORE LIMITED
UNITED ARTISTS COMMUNICATIONS (COTSWOLDS)
LIMITED UNITED ARTISTS COMMUNICATIONS (NOMINEES) LIMITED
UNITED ARTISTS COMMUNICATIONS (NORTH EAST) LIMITED
UNITED ARTISTS COMMUNICATIONS (SOUTH EAST)LIMITED
UNITED ARTISTS COMMUNICATIONS (SOUTH THAMES ESTUARY) LIMITED
UNITED ARTISTS COMMUNICATIONS (TYNESIDE) LIMITED
SBC CABLECOMMS (UK) LIMITED
SOUTHWESTERN ▇▇▇▇ INTERNATIONAL HOLDINGS LIMITED
MIDLANDS CABLE COMMUNICATIONS LIMITED
TELFORD TELECOMMUNICATIONS LIMITED
NORTHWEST CABLE COMMUNICATIONS LIMITED
CABLE COMMUNICATIONS WIGAN LIMITED
CABLE COMMUNICATIONS (CENTRAL LANCASHIRE) LIMITED
CABLE COMMUNICATIONS LIVERPOOL LIMITED
CABLE COMMUNICATIONS (ST. HELENS & KNOWSLEY) LIMITED
TELEWEST (MOTHERWELL) LIMITED
UNITED ARTISTS COMMUNICATIONS (LONDON SOUTH) LIMITED
UNITED ARTISTS COMMUNICATIONS (AVON) LIMITED
TAYSIDE CABLE SYSTEMS LIMITED KINGDOM CABLEVISION LIMITED
SCOTCABLE (MOTHERWELL) LIMITED
SCOTCABLE (CUMBERNAULD) LIMITED
SCOTCABLE (DUMBARTON) LIMITED
CABLE NORTH (FORTH DISTRICT) LIMITED
UNITED ARTISTS COMMUNICATIONS (SCOTLAND) LIMITED
TELEWEST SCOTLAND HOLDINGS LIMITED
TELEWEST COMMUNICATIONS (INTERNET) LIMITED
TELEWEST SOUTHPORT LIMITED CRYSTAL PALACE RADIO LIMITED
AVON CABLE INVESTMENTS LIMITED TELEWEST (WORCESTER) LIMITED
by: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Original Charging Partnerships
SIGNED for and on behalf of each of
COTSWOLDS CABLE LIMITED PARTNERSHIP
ESTUARIES CABLE LIMITED PARTNERSHIP
TYNESIDE CABLE LIMITED PARTNERSHIP
EDINBURGH CABLE LIMITED PARTNERSHIP
AVON CABLE LIMITED PARTNERSHIP
UNITED CABLE (LONDON SOUTH) LIMITED PARTNERSHIP
TCI/US WEST CABLE COMMUNICATIONS GROUP
by their general partner
THESEUS NO. 1 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and by their general partner
THESEUS NO. 2 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LONDON SOUTH CABLE PARTNERSHIP
by its managing partner
UNITED CABLE (LONDON SOUTH) LIMITED PARTNERSHIP
by its general partner
THESEUS NO.1 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and by its general partner
THESEUS NO.2 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of the partners of
UNITED ARTISTS COMMUNICATIONS
(SOUTH EAST) PARTNERSHIP by the following:
Signed for and on behalf of
ESTUARIES CABLE LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and by its general partner
THESEUS NO. 2 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Signed by
UNITED ARTISTS COMMUNICATIONS
(SOUTH EAST) LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Signed by
UNITED ARTISTS COMMUNICATIONS
(SOUTH THAMES ESTUARY) LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of the partners of
UNITED ARTISTS COMMUNICATIONS
(NORTH EAST) PARTNERSHIP by the following:
Signed for and on behalf of
TYNESIDE CABLE LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and by its general partner
THESEUS NO. 2 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Signed by
UNITED ARTISTS COMMUNICATIONS
(NORTH EAST) LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Signed by
UNITED ARTISTS COMMUNICATIONS
(TYNESIDE) LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of the partners of
AVON CABLE JOINT VENTURE
by the following:
Signed for and on behalf of
AVON CABLE LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and by its general partner
THESEUS NO. 2 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Signed by
UNITED ARTISTS COMMUNICATIONS
(AVON) LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of the partners of
LONDON SOUTH JOINT VENTURE
by the following:
Signed for and on behalf of
LONDON SOUTH CABLE PARTNERSHIP
by its managing partner
UNITED CABLE (LONDON SOUTH)
LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and by its general partner
THESEUS NO. 2 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Signed for and on behalf of
UNITED ARTISTS COMMUNICATIONS
(LONDON SOUTH) LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of the partners of
UNITED ARTISTS COMMUNICATIONS
(COTSWOLDS) VENTURE
by the following:
Signed for and on behalf of
COTSWOLDS CABLE LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and by its general partner
THESEUS NO. 2 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Signed by
UNITED ARTISTS COMMUNICATIONS
(COTSWOLDS) LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of
UNITED ARTISTS COMMUNICATIONS
(SCOTLAND) VENTURE
by the following:
Signed by
EDINBURGH CABLE LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and by its general partner
THESEUS NO. 2 LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Signed for and on behalf of
UNITED ARTISTS COMMUNICATIONS
(SCOTLAND) LIMITED: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Arrangers
SIGNED for and on behalf of
THE BANK OF NEW YORK
by:
▇▇▇▇▇ ▇▇▇
attorney-in-fact
SIGNED for and on behalf of
CIBC WOOD GUNDY PLC
by:
▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of
CHASE INVESTMENT BANK LIMITED
by:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of
NATWEST MARKETS
by:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
SIGNED for and on behalf of
THE TORONTO-DOMINION BANK
by:
▇▇▇▇▇▇ ▇▇▇▇▇
The Banks and Financial Institutions
SIGNED for and on behalf of
THE BANK OF NEW YORK, COMPANY INC.
by:
▇▇▇▇▇ ▇▇▇
attorney-in-fact
SIGNED for and on behalf of
CANADIAN IMPERIAL BANK
OF COMMERCE
by:
▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of
CHEMICAL BANK
by:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SIGNED for and on behalf of
NATIONAL WESTMINSTER
BANK PLC
by:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
SIGNED for and on behalf of
THE TORONTO-DOMINION BANK
by:
▇▇▇▇▇▇ ▇▇▇▇▇
The Agent
SIGNED for and on behalf of
CIBC WOOD GUNDY PLC
by:
▇▇▇▇ ▇▇▇▇▇▇▇▇
The Security Trustee
SIGNED for and on behalf of
CIBC WOOD GUNDY PLC
by:
▇▇▇▇ ▇▇▇▇▇▇▇▇